IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

KIRK NIELSEN, et al.,

Plaintiffs,

v.

RON DESANTIS, et al.,

Defendants.

Case No. 4:20-cv-236-RH-MJF

Judge Robert L. Hinkle

DREAM DEFENDERS, et al.,

Plaintiffs,

v.

RON DESANTIS, et al.,

Defendants.

Case No. 1:20-cv-67-RH- GRJ

Judge Robert L. Hinkle

INTERVENORS’ MOTION FOR PRELIMINARY INJUNCTION

COMES NOW, Intervenors, DEBORAH C. GRUBB, DOUGLAS E. HALL, 

CARL F. MCCOY, JAMES K. KRACHT, DOLOR GINCHEREAU, and the 

FLORIDA COUNCIL OF THE BLIND, by and through undersigned counsel, and 

pursuant to Rule 68, Fed. R. Civ. P. 65(a) and respectfully requests that this court 

issue a preliminary injunction requiring Defendants, LAUREL M. LEE, in her 

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Disability Independence Group, Inc. * 2990 Southwest 35th Avenue * Miami, Florida 33133

official capacity as Florida Secretary of State and each of the individual Supervisors 

of Elections,1 and states as follows:

1 This includes Defendants KIM A. BARTON, in her official capacity as Supervisor of Elections 

for ALACHUA County, NITA CRAWFORD, in her official capacity as Supervisor of Elections 

for BAKER County, MARK ANDERSEN, in his official capacity as Supervisor of Elections for 

BAY County, TERRY L. VAUGHAN, in his official capacity as Supervisor of Elections for 

BRADFORD County, LORI SCOTT, in her official capacity as Supervisor of Elections for 

BREVARD County, PETER ANTONACCI, in his official capacity as Supervisor of Elections for 

BROWARD County, SHARON CHASON, in her official capacity as Supervisor of Elections for 

CALHOUN County, PAUL A. STAMOULIS, in his official capacity as Supervisor of Elections 

for CHARLOTTE County, SUSAN A. GILL, in her official capacity as Supervisor of Elections 

for CITRUS County, CHRIS H. CHAMBLESS, in his official capacity as Supervisor of Elections 

for CLAY County, JENNIFER J. EDWARDS, in her official capacity as Supervisor of Elections 

for COLLIER County, ELIZABETH P. HORNE, in her official capacity as Supervisor of 

Elections for COLUMBIA County, MARK F. NEGLEY, in his official capacity as Supervisor of 

Elections for DESOTO County, STARLET CANNON, in her official capacity as Supervisor of 

Elections for DIXIE County, MIKE HOGAN, in his official capacity as Supervisor of Elections 

for DUVAL County, DAVID H. STAFFORD, in his official capacity as Supervisor of Elections 

for ESCAMBIA County, KAITI LENHART, in her official capacity as Supervisor of Elections 

for FLAGLER County, HEATHER RILEY, in her official capacity as Supervisor of Elections for 

FRANKLIN County, SHIRLEY G. KNIGHT, in her official capacity as Supervisor of Elections 

for GADSDEN County, CONNIE SANCHEZ, in her official capacity as Supervisor of Elections 

for GILCHRIST County, ALETRIS FARNAM, in her official capacity as Supervisor of Elections 

for GLADES County, JOHN HANLON, in his official capacity as Supervisor of Elections for 

GULF County, LAURA HUTTO, in her official capacity as Supervisor of Elections for 

HAMILTON County, DIANE SMITH, in her official capacity as Supervisor of Elections for 

HARDEE County, BRENDA HOOTS, in her official capacity as Supervisor of Elections for 

HENDRY County, SHIRLEY ANDERSON, in her official capacity as Supervisor of Elections for 

HERNANDO County, PENNY OGG, in her official capacity as Supervisor of Elections for 

HIGHLANDS County, CRAIG LATIMER, in his official capacity as Supervisor of Elections for 

HILLSBOROUGH County, THERISA MEADOWS, in her official capacity as Supervisor of 

Elections for HOLMES County, LESLIE ROSSWAY SWAN, in her official capacity as 

Supervisor of Elections for INDIAN RIVER County, SYLVIA D. STEPHENS, in her official 

capacity as Supervisor of Elections for JACKSON County, MARTY BISHOP, in his official 

capacity as Supervisor of Elections for JEFFERSON County, TRAVIS HART, in his official 

capacity as Supervisor of Elections for LAFAYETTE County, ALAN HAYS, in his official 

capacity as Supervisor of Elections for LAKE County, TOMMY DOYLE, in his official capacity 

as Supervisor of Elections for LEE County, MARK EARLEY, in his official capacity as 

Supervisor of Elections for LEON County, TAMMY JONES, in her official capacity as Supervisor 

of Elections for LEVY County, GINA MCDOWELL, in her official capacity as Supervisor of 

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Disability Independence Group, Inc. * 2990 Southwest 35th Avenue * Miami, Florida 33133

I. Preliminary Statement

In March 2020, the Florida Council of the Blind’s members believed that they 

were on the threshold of being able to cast an absentee vote with the same ease and 

privacy of any other citizens. Software developed by Democracy Live was on the 

Director of Elections desk and about to be certified. This software would have 

Elections for LIBERTY County, THOMAS “TOMMY” R. HARDEE, in his official capacity as 

Supervisor of Elections for MADISON County, MICHAEL BENNETT, in his official capacity as 

Supervisor of Elections for MANATEE County, WESLEY WILCOX, in his official capacity as 

Supervisor of Elections for MARION County, VICKI DAVIS, in her official capacity as 

Supervisor of Elections for MARTIN County, CHRISTINA WHITE, in her official capacity as 

Supervisor of Elections for MIAMI-DADE County, JOYCE GRIFFIN, in her official capacity as 

Supervisor of Elections for MONROE County, VICKI P. CANNON, in her official capacity as 

Supervisor of Elections for NASSAU County, PAUL A. LUX, in his official capacity as 

Supervisor of Elections for OKALOOSA County, DIANE HAGAN, in her official capacity as 

Supervisor of Elections for OKEECHOBEE County, BILL COWLES, in his official capacity as 

Supervisor of Elections for ORANGE County, MARY JANE ARRINGTON, in her official 

capacity as Supervisor of Elections for OSCEOLA County, WENDY SARTORY LINK, in her 

official capacity as Supervisor of Elections for PALM BEACH County, BRIAN E. CORLEY, in 

his official capacity as Supervisor of Elections for PASCO County, DEBORAH CLARK, in her 

official capacity as Supervisor of Elections for PINELLAS County, LORI EDWARDS, in her 

official capacity as Supervisor of Elections for POLK County, CHARLES OVERTURF, in his 

official capacity as Supervisor of Elections for PUTNAM County, TAPPIE A. VILLANE, in her 

official capacity as Supervisor of Elections for SANTA ROSA County, RON TURNER, in his 

official capacity as Supervisor of Elections for SARASOTA County, CHRIS ANDERSON, in his 

official capacity as Supervisor of Elections for SEMINOLE County, VICKY OAKES, in her 

official capacity as Supervisor of Elections for ST. JOHNS County, GERTRUDE WALKER, in 

her official capacity as Supervisor of Elections for ST. LUCIE County, WILLIAM KEEN, in his 

official capacity as Supervisor of Elections for SUMTER County, GLENDA B. WILLIAMS, in 

her official capacity as Supervisor of Elections for SUWANNEE County, DANA 

SOUTHERLAND, in her official capacity as Supervisor of Elections for TAYLOR County, 

DEBORAH K. OSBORNE, in her official capacity as Supervisor of Elections for UNION County, 

LISA LEWIS, in her official capacity as Supervisor of Elections for VOLUSIA County, HENRY 

WELLS, in his official capacity as Supervisor of Elections for WAKULLA County, BOBBY 

BEASLEY, in his official capacity as Supervisor of Elections for WALTON County, CAROL F. 

RUDD, in her official capacity as Supervisor of Elections for WASHINGTON County. This 

motion does not include relief from Governor Ron DeSantis or each counties Canvasing Board. 

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Disability Independence Group, Inc. * 2990 Southwest 35th Avenue * Miami, Florida 33133

allowed persons who are blind to be able to receive absentee ballots via email, and 

then use their screen reading software to fill out the ballots, which would then be 

printed out and mailed. After certification, then the software could be purchased by 

all 67 supervisors of elections, and used in the same exact way as the supervisors 

had conducted absentee voting with those who are in the military or overseas under 

Uniformed and Overseas Citizens Absentee Voting Act. With federal money 

flooding in from the CARES Act, the purchase of these systems would essentially 

be subsidized by the federal government. 

However, in March, this progress lost its momentum and these citizen’s 

Florida and federal right to have an accessible ballot became a pawn in a political 

battle regarding the right to vote. While the right to vote should never become 

political, there is no reason whatsoever that the certification and the implementation 

of the Democracy Live software should be further delayed, and a Preliminary 

Injunction to ensure these blind voters have the same opportunity as other citizens 

to exercise their right to vote. Furthermore, over the past month, district courts in 

New York, Michigan, and Pennsylvania have been faced with identical issues that 

have granted a similar remedy to what the intervenors seek in this action. See 

Drenth v. Boockvar, 1:20-CV-00829, 2020 WL 2745729 (M.D. Pa. May 27, 

2020)(granting preliminary injunction for accessible write-in ballot for blind 

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Disability Independence Group, Inc. * 2990 Southwest 35th Avenue * Miami, Florida 33133

voters); Powell v. Benson, 2:20-cv-11023-GAD-MJH (E.D. MI May 19, 2020), 

found at https://www.browngold.com/wp-content/uploads/Powell-031-FiledConsent-Decree-ACE.pdf (consent decree for accessible absentee ballots). 

Hernandez v. New York State Board of Elections, Case No: 1:20-cv-04003.

2

Unlike these other states, the Secretary of State has admitted as follows:

The Secretary can represent to this Court that the testing is complete, 

and the results are under review

DE 209, p. 3. According to the declarants, this has been under review for months. 

As such, the proposed intervenors could not have been more timely and the Florida 

Council of the Blind and its members are entitled to immediate injunctive relief to 

put the certification of Democracy Live back on the rails and facilitate its journey to 

fruition. 

II. Facts

The Florida Council of the Blind, Inc. is an organization of and for persons 

who are blind and is the Florida affiliate of the American Council of the Blind. 

Declaration of James Kracht (Kracht Dec) ¶ 5. Its purpose is to make life better 

through public education, legislative actions, and offer educational, social, and 

economic opportunities specific to the needs of blind individuals. Id. FCB is 

2 Found at https://dralegal.org/wpcontent/uploads/2020/06/38_Stipulation_of_Settlement_and_Withdrawal_of_Prelim_Injunction_accessible.pdf

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Disability Independence Group, Inc. * 2990 Southwest 35th Avenue * Miami, Florida 33133

comprised of over 800 members who live throughout the State of Florida, and are 

predominately blind or deaf-blind, and are otherwise qualified individuals with 

disabilities within the meaning of all applicable statutes. Id. One of the major focuses 

of FCB was to ensure that persons who are blind become involved with 

governmental officials and community action and have equal access to the ability to 

be able to vote privately and independently in all elections. Id. 

From the 2000 elections, FCB became a leader in ensuring that accessible and 

audible voting machines were obtained and to ensure that such machines were 

maintained.3 Id. ¶ 6. FCB also had two of its members on the first post Bush v. Gore 

Secretary of State’s Disability Task Force and subsequent HAVA Working Group. 

Id. ¶ 5. FCB worked to ensure that Florida law was changed to include accessibility 

for voting through accessibility for polling places in § 101.715, Fla. Stat., and with 

vote by mail ballots in § 101.662, Fla. Stat.

In 2018, when Florida still had not complied with the requirements under the 

promise in the accessible vote-by-mail law in Florida, James Kracht, who is an 

officer of FCB approached and met with Director of the State Division of Elections, 

Maria Matthews, on May 7th, and discussed utilizing recently distributed federal 

3 See The White Cane Bulletin March-April 2015, President’s Message 

https://www.fcb.org/node/305 (last accessed May 31, 2020)

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Disability Independence Group, Inc. * 2990 Southwest 35th Avenue * Miami, Florida 33133

funding from the Help America Vote Act (HAVA) for the state's purchase, 

certification and approval of accessible vote-by-mail software. Id. ¶ 7

That same month, FCB accepted this as a mission and at their convention in 

Jacksonville on May 20, 2018. FCB adopted a resolution to have equal access to 

absentee voting in Florida, and to encourage the certification of an accessible voting 

by mail system and that such voting systems to be used by all 67 counties. Id. at ¶ 

8

In September 2019, FCB discovered that Florida was proceeding with 

certification of is currently proceeding with certification of the Democracy Live 

Accessible Vote by Mail Software. Democracy Live was the same vendor that had 

Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA) software 

certified by the state in 2016. Id. at ¶ 9, Declaration of Bryan Finney (Finney Dec.) 

¶ 4. Since 2016, Florida has implemented an ability to ensure that Florida citizens in 

the military receive ballots, the State of Florida has implemented the UOCAVA, 

whereby members of the military and others overseas can receive their absentee 

ballot in an electronic format, print them out and send them so their vote can be 

counted. 

The Democracy Live Software was the answer to this issue of being able to 

vote absentee confidentially and privately by using the screen reader on an electronic 

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Disability Independence Group, Inc. * 2990 Southwest 35th Avenue * Miami, Florida 33133

device. Kracht Dec. ¶ 9. The Democracy Live is an accessible online balloting portal 

where the ballots are generated and stored in a federally approved secure cloud. 

Finney Dec ¶5. A voter using the system would access a link available on the county 

web site or the ballot would be sent directly to the voter upon request. Id. ¶7 The 

balloting portal has been developed to the accessibility compliance standard of 

WCAG 2.0 Level AA conformance. Id. ¶8 As such, the voter who is blind would 

use their screen reader or their tactile input device to access, mark and print their 

ballot from their own computer or device. Id. ¶9 

The voter starts the process by logging into the online portal using their first, 

last and date of birth to pull up their correct ballot. Id. ¶10 Once the ballot is pulled 

up, the voter can listen and navigate through the ballot using their computer to mark 

their ballot selections. Id. ¶10 When finished marking the ballot, the voter can listen 

to a summary of their selections and go back and modify their choices if they choose. 

Id. ¶10 When the voter is satisfied with their selections, the system prompts the voter 

to print the ballot and any required return materials. Id. ¶10. The voter would then 

place their ballot and any required documents into an envelope and mail the ballot 

back to their local elections’ office. Id. ¶ 10 According to the vendor, they work 

directly with each jurisdiction to support and implement the system. Finney ¶ 11. 

On average, system implementation can be done in less than one to three days. 

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Disability Independence Group, Inc. * 2990 Southwest 35th Avenue * Miami, Florida 33133

Finney ¶ 11. Most of the implementation work is done by Democracy Live. Id. The 

entire statewide costs for the 2020 Presidential election is approximately one to 1.2 

million dollars. Finney ¶ 12. This same software has been used in thousands of 

jurisdictions across the country. Id. ¶ 13 Furthermore, numerous other states and 

jurisdictions, including, but not limited to California, Colorado, Washington, 

Oregon, Washington D.C., Delaware, Ohio, New Jersey, Vermont, West Virginia, 

Maryland, and Michigan provide accessible electronic absentee ballot marking tools 

using commercially available systems that allow voters to receive ballots online or 

by email, mark ballots on their computers using assistive technology, and return 

ballots via online submission, email, or postal mail. Id. ¶ 13

In September 9, 2019, James Kracht again contacted Director Matthews and 

offered FCB’s assistance with regards to the certification process of the Democracy 

Live software. Kracht ¶ 10. Kracht emphasized the importance of the Democracy 

Live voting system that would enable voters with disabilities to vote by mail 

privately and verifiably without assistance and requested expedited certification. Id.

On November 7, 2019, James Kracht contacted Director Matthews and asked for 

update and urging the immediate completion of Democracy Live software. Id. ¶11.

On November 23, 2019, FCB passed another resolution to file a complaint 

with the Department of Justice for the failure of the State of Florida to certify an 

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Disability Independence Group, Inc. * 2990 Southwest 35th Avenue * Miami, Florida 33133

accessible vote by mail system, and sent a copy of the resolution to Governor 

DeSantis and Secretary of State Lee as well as Director Matthews. Id. ¶12. FCB 

also urged its county affiliate presidents to contact their county supervisors of 

elections and request the acquisition of the Democracy Live Software voting 

system. Id. ¶13. On May 12, 2020, James Kracht was advised that the application 

of the approval report for the Democracy Live software was on Director Matthew’s 

desk. Id. ¶ 14.

After not hearing from Director Matthews or the State of Florida, FCB 

reached out to Director Matthews on May 20, 2020. Id. ¶ 15 James Kracht wrote to 

Director Matthews and suggested that since the Federal Elections Commission 

authorized use of federal funding from the Coronavirus Aid, Relief, and Economic 

Security Act (CARES) Act for an absentee voting system, that Florida should 

purchase that Democracy Live Software to ensure that counties can at last comply 

with the state law mandating accessible mail-in-ballots in time for a 2020 election 

launch. Id. 

James Kracht has not heard from Director Matthews since March of 2020, 

and because of this lawsuit, as well as other political implications of voting by mail, 

it appears that this effort to get this software certified has been derailed. Id. ¶16. 

Director Matthews has not contacted James Kracht or any other member of FCB 

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Disability Independence Group, Inc. * 2990 Southwest 35th Avenue * Miami, Florida 33133

regarding the certification of the Democracy Live Software. In addition to speaking 

to the state election officials, FCB has additionally contacted and plead with their 

supervisors of Elections to acquire the software once certified.

James K. Kracht, Deborah C. Grubb, Douglas E. Hall, Carl F. McCoy and 

Dolor Ginchereau are all members of FCB and are blind. Kracht Dec.; Grubb Dec., 

Hall Dec., McCoy Dec., Gincherau Dec.. They all wish to be able to vote 

independently and cast a secret ballot in the primary election in August 18, 2020, as 

well in the General Election in November 3, 2020. Like any other Florida voter, 

they would like the ability to vote by mail. It is more concerning for Ms. Grubb, 

Mr. Hall, Mr. McCoy, Mr. Kracht, and Ms. Ginchereau because of the COVID-19 

pandemic. Each of these individual intervenors are over sixty-five years old and 

have several risk factors to contract COVID-19.

Mr. Ginchereau is 68 years old, suffers from asthma, and has a stent in his 

heart. Gincherau Dec. Ms. Grubb is 72 years old and a diabetic. Grubb Dec Mr. 

Hall is 72 years old and is the sole caregiver for his wife Nancy Burgess-Hall, who 

is 65 years old and is immunocompromised due to severe advanced Rheumatoid 

arthritis (RA), heart condition, asthma, an open leg wound, heat and humidity

intolerance, and has reduced stamina. Hall Dec. The Halls must avoid any situation 

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Disability Independence Group, Inc. * 2990 Southwest 35th Avenue * Miami, Florida 33133

that could result in infections or viruses. Mr. Kracht is 70 years old and Mr. McCoy 

is 93 years old. McCoy Dec.

In order for these intervenors to vote, they would need to be driven to a board 

of elections office to use a voting machine or would need to seek in-person 

assistance from others to complete their absentee ballots. Both of these options put 

them at risk of COVID-19 infection.

FCB and its members expect to have the same ability to vote as any other 

Florida Citizen, which includes the ability to vote by mail in a private and secure 

manner. Defendants’ failure to meet their obligations to provide them with an equal 

opportunity to vote absentee constitutes discrimination, and the remedy is a method 

that is readily available. 

III. Argument

A. Standard of Law for a Preliminary Injunction

“The standard for a preliminary injunction is essentially the same as for a 

permanent injunction with the exception that the plaintiff must show a likelihood 

of success on the merits rather than actual success.” Amoco Prod. Co. v. Vill. of 

Gambell, 480 U.S. 531, 546 n.12, 107 S.Ct. 1396, 1404 (1987) “A district court 

may grant injunctive relief if the movant shows the following: (1) substantial 

likelihood of success on the merits; (2) irreparable injury will be suffered unless the 

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injunction issues; (3) the threatened injury to the movant outweighs whatever 

damage the proposed injunction may cause the opposing party; and (4) if issued, 

the injunction would not be adverse to the public interest.” Jones v. Governor of 

Florida, 950 F.3d 795, 806 (11th Cir. 2020)(quoting Siegel v. LePore, 234 F.3d 

1163, 1176 (11th Cir. 2000)

B. substantial likelihood of success on the merits

Section 504 of the Rehabilitation Act of 1973, as amended, provides “No 

otherwise qualified individual with a disability . . . shall, solely by reason of her or 

his disability, be excluded from the participation in, be denied the benefits of, or be 

subjected to discrimination under any program or activity receiving Federal 

financial assistance...” 29 U.S.C. §794(a). All defendants receive Federal financial 

assistance for the purposes of voting, and specifically for persons with disabilities 

though both the Help America Vote Act (HAVA), 52 U.S.C. § 20901, as well as 

the 400 million dollars available in the Election Assistance Commission in the 

Coronavirus Aid, Relief, and Economic Security Act (CARES) Act, Pub. L. 116-

136. A qualified individual with a disability is one who meets the essential 

eligibility requirements for the services in question. 28 C.F.R. § 41.32. 

Title II of the Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12131-

12165, provides at §12132 that “no qualified individual with a disability shall, by 

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reason of such disability, be excluded from participation in or be denied the benefits 

of the services, programs or activities of a public entity, or be subjected to 

discrimination by any such entity.” “Public entities” include any department, 

agency, special purpose district, or other instrumentality of a State or States or local 

government; 42 U.S.C. §12131(1)(B), and similarly, Ex Parte Young, 209 U.S. 123, 

28 S. Ct. 441, 52 L.Ed. 714 (1908), allows a party to seek prospective injunctive 

relief against a state or local official for violating a federal law. Nat'l Ass'n of the 

Deaf v. Florida, 945 F.3d 1339, 1351–52 (11th Cir. 2020). The Intervenors are 

challenging the program and service of voting in the state of Florida, and the 

officials who are primarily responsible for administering the Florida's election 

system and registering voters are the Secretary of State at the state level and the 

Supervisors of Elections at the county level. Jones v. DeSantis, 2020 WL 2618062, 

at *11 (N.D. Fla. 2020)

A qualified individual with a disability is an individual who, with or without 

reasonable modifications rules, policies, or practices, the removal of architectural, 

communication, or transportation barriers, or the provision of auxiliary aids and 

services, meets the essential eligibility requirements for the receipt of services or 

the participation in programs or activities provided by a public entity. 42 U.S.C. § 

12131(2). 

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The ADA prohibits discrimination against a disabled person by reason of the 

person's disability. See 42 U.S.C. § 12132. To state a claim under Title II of the 

ADA, Plaintiff must allege: (1) that he or she is a qualified individual with a 

disability; (2) that he was excluded from participation in or denied the benefits of 

the services, programs, or activities of a public entity or otherwise discriminated 

against by such entity; (3) by reason of such disability. Id.; Shotz v. Cates, 256 F.3d 

1077, 1079 (11th Cir. 2001). “Because causes of action brought under Title II of 

the ADA and Section 504 of the Rehabilitation Act are essentially identical, they 

can be analyzed together.” Savage v. S. Fla. Reg'l Transp. Auth., 523 F. App'x 554, 

554 (11th Cir. 2013); Cash v. Smith, 231 F.3d 1301, 1305 (11th Cir. 2000) 

("Discrimination claims under the Rehabilitation Act are governed by the same 

standards used in ADA cases, and therefore we will discuss these two claims 

together." (citation omitted)). Generally, case law interpreting one statute as if it 

applies directly to the other.

1. Intervenors are qualified individuals with disabilities and have 

standing to bring this action

Individual Intervenors, Deborah Grub, Douglass E. Hall, Carl F. McCoy, 

James Kracht, and Dolor Gincherau are all persons with disabilities because they 

are blind and cannot see. 42 U.S.C. § 12102(1)(A-B) All individual intervenors are 

registered voters in the State of Florida and would like to vote absentee in a method 

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that secures their privacy. As such, each of these intervenors have been harmed by 

the failure to have a method in which cast an absentee vote independently.

The Florida Council of the Blind, Inc., has standing in both its own right and 

by virtue of its 800 members throughout the state of Florida, including the named 

individual intervenors, who would each have standing in this case. FCB has 

experienced an injury in fact when it has been advocating for and expending 

resources for the implementation of accessible voting for the blind. See Warth v. 

Seldin, 422 U.S. 490, 511, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). In addition, by 

virtue of its 800 members, each with standing to bring this action, and the fact that 

this action is germane to FCB’s purpose, it also has standing. See Hunt v. 

Washington State Apple Advertising Comm'n, 432 U.S. 333, 343, 97 S.Ct. 2434, 

53 L.Ed.2d 383 (1977). 

2. Intervenors were excluded from participation in or denied the 

benefits of the services, programs, or activities of a public entity or 

otherwise discriminated against by such entity by reason of such 

disability

Florida’s reliance exclusively on paper absentee ballots has kept one group 

of people with disabilities—those with vision disabilities from participating in 

absentee and mail-in voting. Florida’s Absentee Voting program is inaccessible to 

Plaintiffs because their disabilities prevent them from reading, marking, and/or 

signing a ballot with a pen or marker. Voters with vision disabilities either vote in 

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Disability Independence Group, Inc. * 2990 Southwest 35th Avenue * Miami, Florida 33133

person on Election Day so they can vote privately and independently using 

accessible voting machines, or are forced to give up their privacy and independence 

by having others read and mark their ballots at home. Today, in the midst of the 

novel coronavirus pandemic, remedying this discrimination has become a matter of 

life and death. Defendants have acted swiftly and decisively to allow other voters 

to avoid the risk of contracting the novel coronavirus by voting absentee, but 

refused to take any meaningful steps to similarly protect those with vision 

disabilities.

A public entity may not, in providing any aid, benefit, or service, “[d]eny a 

qualified individual with a disability the opportunity to participate in or benefit 

from the aid, benefit, or service[,] [a]fford a qualified individual with a disability 

an opportunity to participate in or benefit from the aid, benefit, or service that is not 

equal to that afforded others[,]” or “[p]rovide a qualified individual with a disability 

with an aid, benefit, or service that is not as effective in affording equal opportunity 

to obtain the same result, to gain the same benefit, or to reach the same level of 

achievement as that provided to others[.]” 28 C.F.R. §§ 35.130(b)(1)(i)-(iii); 

accord 45 C.F.R. § 84.4(b)(1)(ii)-(iii) (Rehabilitation Act). Nor can a public entity 

employ unnecessary policies, practices, criteria or methods of administration that 

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have the effect or tendency of excluding or discriminating against persons with 

disabilities. 28 C.F.R. § 35.130(b)(3), (8).

The ADA and Section 504 specifically require covered entities to “take 

appropriate steps to ensure that communications with applicants, participants, 

members of the public ... with disabilities are as effective as communications with 

others.” 28 C.F.R. § 35.160. The applicable regulations are clear that public entities 

must provide individuals with auxiliary aids and services under the ADA and 

Section 504: 

(b)(1) A public entity shall furnish appropriate auxiliary aids and 

services where necessary to afford individuals with disabilities... an 

equal opportunity to participate in, and enjoy the benefits of, a 

service, program, or activity of a public entity. 

(b)(2) ... In determining what types of auxiliary aids and services are 

necessary, a public entity shall give primary consideration to the 

requests of individuals with disabilities. In order to be effective, 

auxiliary aids and services must be provided in accessible formats, in 

a timely manner, and in such a way as to protect the privacy and 

independence of the individual with a disability. 

28 C.F.R. § 35.160 (emphasis added); See also 29 U.S.C. § 794. Auxiliary aids and 

services include “accessible electronic and information technology” such as the 

accessible absentee ballots Intervenors seek. 28 C.F.R. § 35.104. Florida 

recognizes this duty when its legislature enacted Florida Statute 101.662, which 

provides as follows:

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Accessibility of vote-by-mail ballots. It is the intent of the 

Legislature that voting by vote-by-mail ballot be by methods that are 

fully accessible to all voters, including voters having a disability. The 

Department of State shall work with the supervisors of elections and 

the disability community to develop and implement procedures and 

technologies, as possible, which will include procedures for 

providing vote-by-mail ballots, upon request, in alternative formats 

that will allow all voters to cast a secret, independent, and verifiable 

vote-by-mail ballot without the assistance of another person.

This Florida law was initially passed in 2002, in response to the funding provided 

through the Help America Vote Act (HAVA), which was passed as a result of the 

2000 elections. 

The Eleventh Circuit has interpreted the standard for effective 

communication as obtaining an equal opportunity to participate in obtaining, 

benefiting, and utilizing programs and services. Silva v. Baptist Health S. Florida, 

Inc., 856 F.3d 824, 834 (11th Cir. 2017). “In other words, the ADA and RA focus 

on the communication itself, not on the downstream consequences of 

communication difficulties, which could be remote, attenuated, ambiguous, or 

fortuitous.” Id. 

In this matter, for the past two years, the Intervenors have continually advised 

the Director of the State Division of Elections, Maria Matthews, and its membership 

has contacted their own supervisors of elections and have advised them that the 

existing absentee voting system denies them as well as all citizens who are blind the 

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opportunity to cast a private and secure vote. The Intervenors have urged them to 

adopt the Democracy Live system, and currently, they are ignored. In this 

circumstance, an undue delay is tantamount to the denial of their request for this 

auxiliary aid. Bhogaita v. Altamonte Heights Condo. Ass'n, Inc., 765 F.3d 1277, 

1286 (11th Cir. 2014).

C. Irreparable injury will be suffered unless the injunction issues; 

and the threatened injury to the movant outweighs whatever 

damage the proposed injunction may cause the opposing party.

In Jones v. Governor of Florida, 950 F.3d at 828, the Eleventh Circuit upheld 

this Court’s finding that impingement on the right to vote is an irreparable injury:

An injury is “irreparable if it cannot be undone through monetary 

remedies.” Scott v. Roberts, 612 F.3d 1279, 1295 (11th Cir. 2010) 

(quotation omitted). Casting a vote has no monetary value. It is 

nothing other than the opportunity to participate in the collective 

decisionmaking of a democratic society and to add one’s own 

perspective to that of his or her fellow citizens. Each vote provides a 

unique opportunity to do that. No compensation a court can offer 

could undo that loss. The denial of the opportunity to cast a vote that 

a person may otherwise be entitled to cast—even once—is an 

irreparable harm.

Id. 

The Intervenors are requesting that the Defendants follow though with their 

obligations to provide an accessible absentee ballot which was their obligation 

under the ADA and RA since 1990, and their specific obligation under Florida law 

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Disability Independence Group, Inc. * 2990 Southwest 35th Avenue * Miami, Florida 33133

since 2002. While this software is like other software the supervisors of elections 

currently uses, the cost of the software is eligible for the 400 million dollars of 

funding though the CARES Act.

Each county and municipality in Florida have local elections throughout the 

year,4 and every day that a person cannot vote is an injury. “The right to vote freely 

for the candidate of one’s choice is of the essence of a democratic society, and any 

restrictions on that right strike at the heart of representative government.” Harman 

v. Forssenius, 380 U.S. 528, 537 (1965); Jones v. Governor of Fla., 950 F.3d 795, 

806 (11th Cir. 2020) (“The denial of the opportunity to cast a vote that a person may 

otherwise be entitled to cast—even once—is an irreparable harm.”). The major 

statewide primary is on August 18, 2020.5

 According to the Democracy Live 

vendor, the software would need to be implemented at least 45 days prior to that 

date, which would be July 4, 2020.

In this case, there is no hardship on the Defendants. In fact, if they cooperate 

and work together, the price of the software and implementation may be paid for 

out of available funds from the CARES Act. Furthermore, the Intervenors’ right to 

vote independently is an interest which the State of Florida has already deemed to 

4 See https://dos.elections.myflorida.com/calendar/

5 https://dos.myflorida.com/elections/for-voters/election-dates/

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be an important interest and has previously directed that such ballots must be made 

accessible. 

D. If issued, the injunction would not be adverse to the public 

interest.

“The public, of course, has every interest in ensuring that their peers who are 

eligible to vote are able to do so in every election. See Husted, 697 F.3d at 437 (“The 

public interest ... favors permitting as many qualified voters to vote as possible.”). 

The preliminary injunction does no more than safeguard that interest.” Jones v. 

Governor of Florida, 950 F.3d at 831.

WHEREFORE, Intervenors, DEBORAH GRUBB, DOUGLASS E. HALL, 

CARL F. MCCOY, JAMES KRACHT, DOLOR GINCHERAU, and the FLORIDA 

COUNCIL OF THE BLIND respectfully request this Court enter a preliminary 

injunction immediately requiring Secretary of State Lee to immediately certify the 

Democracy Live software, and to facilitate purchase of such software with the 

County Defendants prior to July 4, 2020, and implement its usage, including (1) 

appropriate training to the county supervisors of elections and their staff, (2) 

advertising availability of such accessible absentee ballots to the public; and such 

other relief as the Court deems just andproper.

Respectfully submitted this 11th day of June, 2020.

By: s/ Matthew W. Dietz _____

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Disability Independence Group, Inc. * 2990 Southwest 35th Avenue * Miami, Florida 33133

Matthew W. Dietz, Esq.

Florida Bar No. 84905

CERTIFICATION OF WORD COUNT

I HEREBY CERTIFY, pursuant to Northern District of Florida Local Rule 

7.1(F), that this motion contains approximately 6,373 words.

By: s/ Matthew W. Dietz 

Matthew W. Dietz, Esq.

Florida Bar No. 84905

CERTIFICATE OF COMPLIANCE

Pursuant to Local Rule 7.1(B), the attorney for the moving party made an 

attempt in good faith to resolve the issue through a meaningful conference with an 

attorney for the adverse party, and the Defendants object to the relief herein.

By: s/ Matthew W. Dietz _____

Matthew W. Dietz, Esq.

Florida Bar No. 84905

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Disability Independence Group, Inc. * 2990 Southwest 35th Avenue * Miami, Florida 33133

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on June 11, 2020, I electronically filed the 

foregoing with the Clerk of the Court by using the CM/ECF system which will send 

notice of electronic filing to all parties and counsel of record in the herewith service 

list, or in some other authorized manner for those counsel or parties who are not 

authorized to receive notices electronically.

By: s/ Matthew W. Dietz 

MATTHEW W. DIETZ, ESQ.

Florida Bar No.: 00849

DISABILITY INDEPENDENCE GROUP, INC.

2990 Southwest 35th Avenue

Miami, Florida 33133

Tel: (305) 669-2822

Fax: (305) 442-4181

Mdietz@justDIGit.org

aa@justdigit.org

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