RECOMMENDED FOR FULL-TEXT PUBLICATION 

Pursuant to Sixth Circuit I.O.P. 32.1(b) 

File Name: 17a0257p.06 

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT 

SHELBI HINDEL; BARBARA PIERCE; MARIANNE 

DENNING; THE NATIONAL FEDERATION OF THE BLIND,

INC., 

Plaintiffs-Appellants, 

v. 

JON HUSTED, Ohio Secretary of State, 

Defendant-Appellee. 

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No. 17-3207 

Appeal from the United States District Court 

for the Southern District of Ohio at Columbus. 

No. 2:15-cv-03061—George C. Smith, District Judge. 

Argued: October 12, 2017 

Decided and Filed: November 13, 2017 

Before: SUHRHEINRICH, GRIFFIN, and KETHLEDGE, Circuit Judges. 

_________________ 

COUNSEL 

ARGUED: Jessica P. Weber, BROWN, GOLDSTEIN & LEVY, LLP, Baltimore, Maryland, 

for Appellants. Nicole M. Koppitch, OFFICE OF THE OHIO ATTORNEY GENERAL, 

Columbus, Ohio, for Appellee. ON BRIEF: Jessica P. Weber, Daniel F. Goldstein, BROWN, 

GOLDSTEIN & LEVY, LLP, Baltimore, Maryland, Jason C. Boylan, Kristen Henry, 

DISABILITY RIGHTS OF OHIO, Columbus, Ohio, for Appellants. Nicole M. Koppitch, 

OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellee. Claudia 

Center, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, INC., San Francisco, 

California, Sophia Lin Lakin, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, INC., 

New York, New York, Daniel R. Walfish, Andrea G. Hood, Benjamin J. Reed, Michael E. 

Mirdamadi, MILBANK, TWEED, HADLEY & MCCLOY LLP, New York, New York, for 

Amici Curiae. 

>
No. 17-3207 Hindel, et al. v. Husted Page 2

_________________ 

OPINION 

_________________ 

GRIFFIN, Circuit Judge. 

The Americans with Disabilities Act (ADA), 42 U.S.C. § 12101, et seq., provides 

important safeguards protecting the rights of the disabled. In this appeal, plaintiffs claim Ohio’s 

paper-ballot absentee voter system discriminates against the blind, in violation of Title II of the 

ADA. Under the Ohio scheme, blind voters must seek the aid of a sighted person in order to 

vote absentee, thus depriving them of the ability to vote anonymously. Plaintiffs propose that the 

State of Ohio provide blind voters with an online absentee ballot in lieu of a paper one, and adopt 

online ballot marking tools used in other states for blind voters. The district court granted 

judgment on the pleadings in favor of defendant Ohio Secretary of State, ruling that plaintiffs’ 

proposed accommodation would fundamentally alter Ohio’s voting program. Because the 

district court based its ruling on defendant’s mere allegation of an affirmative defense without 

any evidentiary support, we reverse and remand for further proceedings consistent with this 

opinion. 

I. 

Plaintiffs allege Ohio’s absentee voter system violates the ADA by failing to provide 

reasonable accommodations for the blind. A paper ballot is generally the only available means 

for an absentee voter to vote.1

 Because blind voters must seek assistance from sighted 

individuals to fill out their paper ballots, plaintiffs allege Ohio deprives them of their equal 

opportunity to vote privately and independently. 

Plaintiffs contend that the deprivation is not intractable. On the contrary, they claim that 

multiple auxiliary aids and services exist that could afford plaintiffs the ability to vote privately. 

For example, Maryland developed its own online ballot marking tool specifically designed to be 

 1

In accordance with the Uniformed and Overseas Civilian Absentee Voting Act of 1986, 42 U.S.C. 

§ 1973ff, et seq., military personnel and overseas civilians may vote via email. This section was editorially 

reclassified to 52 U.S.C. § 20301, et seq., and made part of the Voting Assistance and Election Administration. 
No. 17-3207 Hindel, et al. v. Husted Page 3

compatible with screen readers that allows blind voters to vote without assistance from others. 

Maryland has offered to share its online ballot marking tool with other states free of charge. 

Oregon, Wisconsin, New Hampshire, and Alaska use substantially similar systems. On the basis 

of these allegations, plaintiffs’ complaint raises one count alleging a violation of the ADA, 

requesting a permanent injunction prohibiting defendant from violating the ADA, and requiring a 

private and independent method of absentee voting for the blind.2 

Defendant raised the affirmative defense of “fundamental alteration” under the ADA in 

his answer and, concurrently, filed a Rule 12(c) motion for judgment on the pleadings based 

upon this defense. See Fed. R. Civ. P. 12(c). He argued, contrary to plaintiffs’ allegations, that 

he has not refused to implement the absentee voting technology plaintiffs have requested; 

instead, it would violate state law for defendant to do so in light of Ohio’s certification 

requirements for voting equipment. According to defendant, plaintiffs’ attempt to circumvent 

Ohio’s election laws and force through untested and uncertified voting tools—which are neither 

appropriate nor necessary auxiliary aids under the ADA—would fundamentally alter Ohio 

election law. 

The district court granted defendant’s motion for judgment on the pleadings. Relying in 

part on National Federation of the Blind v. Lamone, 813 F.3d 494 (4th Cir. 2016), the district 

court held that plaintiffs had alleged a prima facie case of discrimination under the ADA. 

However, the court diverged from Lamone’s reasoning in ruling that the modifications, 

accommodations, or auxiliary aids proposed by plaintiffs did not meet the ADA’s requirements 

that the proposals be reasonable and not fundamentally alter Ohio’s voting laws. 

The district judge noted that while the proposed ballot marking software met the 

regulatory definitions of “auxiliary aids and services,” it would not afford plaintiffs and other 

blind voters with the complete voting independence they desired because third parties would still 

need to assist blind voters in completing and returning the ballot by mail. Moreover, plaintiffs 

were asking the court to order the implementation of new software throughout the state before its 

 2

Plaintiff also complained about Ohio’s voter website, which the district court resolved in plaintiffs’ favor 

by way of a permanent injunction, and which neither party has appealed. Accordingly, the absentee voting claim is 

the only one before us. 
No. 17-3207 Hindel, et al. v. Husted Page 4

compatibility with all of the different voting systems currently used in Ohio’s 88 counties was 

established. Because plaintiffs’ proposed accommodation would essentially waive Ohio’s 

existing laws regarding pre-implementation review of election tools, the purpose of which are to 

protect the validity of elections in Ohio, the district court refused to impose the requested 

accommodation on the state. Therefore, the court granted judgment on the pleadings in favor of 

defendant. 

Plaintiffs now appeal. 

II. 

 “After the pleadings are closed—but early enough not to delay trial—a party may move 

for judgment on the pleadings.” Fed. R. Civ. P. 12(c). We review de novo an order dismissing 

an action under Rule 12(c) of the Federal Rules of Civil Procedure, W.J. O’Neil Co. v. Shepley, 

Bulfinch, Richardson & Abbott, Inc., 765 F.3d 625, 629 (6th Cir. 2014), and apply the same 

review standard as for review of a Rule 12(b)(6) motion to dismiss. Barany-Snyder v. Weiner, 

539 F.3d 327, 332 (6th Cir. 2008). “[A]ll well-pleaded material allegations of the pleadings of 

the opposing party must be taken as true, and the motion may be granted only if the moving 

party is nevertheless clearly entitled to judgment” as a matter of law. JPMorgan Chase Bank, 

N.A. v. Winget, 510 F.3d 577, 581–82 (6th Cir. 2007) (quoting S. Ohio Bank v. Merrill Lynch, 

Pierce, Fenner & Smith, Inc., 479 F.2d 478 (6th Cir. 1973)). To survive a Rule 12(c) motion, “a 

complaint must contain direct or inferential allegations respecting all the material elements under 

some viable legal theory.” Commercial Money Ctr., Inc. v. Ill. Union Ins. Co., 508 F.3d 327, 

336 (6th Cir. 2007); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“[A] complaint must 

contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its 

face.’ A claim has facial plausibility when the plaintiff pleads factual content that allows the 

court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” 

(citations omitted) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556, 570 (2007))). 
No. 17-3207 Hindel, et al. v. Husted Page 5

III. 

A. 

Plaintiffs challenge the district court’s decision both procedurally and on the merits. 

We focus on their procedural argument—the court erred in making a fact-specific determination 

on the basis of the pleadings alone that plaintiffs’ proposed accommodation would 

fundamentally alter Ohio’s voting system. Instead, they argue this determination should have 

been made only after discovery, expert testimony, an evidentiary hearing, or trial. We agree. 

“Fundamental alteration” is an affirmative defense under the ADA providing that 

governmental entities need not accommodate disabled individuals if doing so “would result in a 

fundamental alteration in the nature of a service, program, or activity or in undue financial and 

administrative burdens.” 28 C.F.R. § 35.164.3 Affirmative defenses to ADA claims such as this 

are typically fact-based and not capable of resolution on the basis of the pleadings alone. 

See Mary Jo C. v. N.Y. State & Local Ret. Sys., 707 F.3d 144, 153 (2d Cir. 2013) (“It is a factual 

issue whether a plaintiff’s proposed modifications amount to ‘reasonable modifications’ which 

should be implemented, or ‘fundamental alterations,’ which the state may reject.” (alterations 

& citations omitted)); Radaszewski ex rel. Radaszewski v. Maram, 383 F.3d 599, 609–14 (7th 

Cir. 2004) (discussing the difficulty in resolving the fundamental alteration question on the 

pleadings); cf. Anderson v. City of Blue Ash, 798 F.3d 338, 356 (6th Cir. 2015) (describing the 

“‘highly fact-specific’ nature of the [ADA] reasonableness inquiry”). 

In the present case, the district court acknowledged as much: 

Although . . . the fundamental alteration analysis is normally a fact-intensive 

inquiry, Plaintiffs are asking this Court to judicially certify an election tool that 

has never been used in Ohio or even presented to the Ohio Board of Elections for 

review. Regardless of any factual findings the Court may make at a later hearing, 

there are no allegations before this Court like the factual findings in Lamone. 

Namely, neither of the suggested tools have been presented to the Board of 

 3

Within the ADA, Congress granted the Attorney General the authority to promulgate regulations 

necessary to its implementation, 42 U.S.C. § 12134(a), which “are entitled to ‘controlling weight, unless they are 

arbitrary, capricious, or manifestly contrary to the statute.’” Johnson v. City of Saline, 151 F.3d 564, 570 (6th Cir. 

1998) (quoting Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 843–44 (1984)). 
No. 17-3207 Hindel, et al. v. Husted Page 6

Elections for certification, testing, or a vote, nor have the tools been used in an 

Ohio election before. 

However, the district court erred in merely accepting defendant’s affirmative defense 

without requiring facts and evidence to support it. Throughout these proceedings, plaintiffs have 

alleged that Ohio discriminates against them on the basis of their visual impairments. Their 

proposed remedy is to require the state to provide online ballots and allow the use of online 

ballot marking tools, as have been used successfully by blind voters in other states. In response, 

defendant alleged that adopting plaintiffs’ proposed remedy would fundamentally alter Ohio’s 

voting system. This is because all voting machines, and related materials, must be examined by 

a bipartisan “board of voting machine examiners,” comprising “competent and experienced 

election officer[s]” or persons knowledgeable about the operation of voting equipment before 

they can be certified for use in an election. Ohio Rev. Code § 3506.05(B). 

But the ADA requires more. The Secretary of State’s mere affirmative-defense 

allegation is insufficient to warrant judgment on the pleadings in his favor because “a public 

entity has the burden of proving that compliance with this subpart would result in [a 

fundamental] alteration.” 28 C.F.R. § 35.164 (emphasis added); cf. Keith v. Cty. of Oakland, 703 

F.3d 918, 923 (6th Cir. 2013) (noting, in a Title I case, that the burden shifts to the defendant to 

prove its defense under the ADA). 

In cases such as this, where an ADA plaintiff is asking for the waiver of a generally 

applicable rule, the court’s “focus should be on whether waiver of the rule in the particular case 

would be so at odds with the purposes behind the rule that it would be a fundamental and 

unreasonable change.” Jones v. City of Monroe, 341 F.3d 474, 480 (6th Cir. 2003) (internal 

quotation marks omitted), abrogated in part on other grounds by Lewis v. Humboldt Acquisition 

Corp., 681 F.3d 312 (6th Cir. 2012) (en banc). The purpose of Ohio’s certification system is 

evident from the statutory text. Ohio Rev. Code § 3506.10 explains that the purpose of the 

certification requirements is to ensure the voting device “will correctly, accurately, and 

continuously register and record every vote cast.” And “Ohio’s interests in preserving the 

integrity of its elections, protecting ‘voters from confusion and undue influence,’ and ‘ensuring 

that an individual’s right to vote is not undermined by fraud in the election process’ are 
No. 17-3207 Hindel, et al. v. Husted Page 7

compelling.” Susan B. Anthony List v. Driehaus, 814 F.3d 466, 473 (6th Cir. 2016) (quoting 

Burson v. Freeman, 504 U.S. 191, 199 (1992) (plurality opinion)). 

But it is not enough for defendant to merely allege plaintiffs’ proposed remedy 

undermines these interests. In order to prevail on his affirmative defense, defendant has the 

burden of production and persuasion to prove that plaintiffs’ proposed accommodation—the 

ballot marking tools and electronic ballots—would fundamentally alter Ohio’s election system 

by not “correctly, accurately, and continuously register[ing] and record[ing] every vote cast.” 

Ohio Rev. Code § 3506.10. Without proof that the proposed ADA accommodation is 

unreasonable or incompatible with Ohio’s election system, defendant’s affirmative defense based 

on an allegation, alone, is insufficient. 

Here, defendant’s arguments fall into the logical fallacy dismissed by the Fourth Circuit 

in Lamone: “defendant[] [is] merging [the] procedural certification requirement with 

substantive concerns about whether the tool should be certified. The mere fact that a procedural 

requirement has not been met does not necessarily mean that the underlying substantive purpose 

of that requirement has not been met. The underlying question is fact-specific.” 813 F.3d at 

509. The district court erred in accepting defendant’s allegation that the remedy would 

fundamentally alter Ohio’s voting system simply because it had not passed the certification 

process—only if the substantive interests undergirding the certification rules cannot be met by 

the ballot marking tools and electronic ballots, as shown by evidence presented by the parties, 

can the district court properly make a determination on defendant’s affirmative defense. 

Moreover, a state procedural requirement may not excuse a substantive ADA violation. 

Id. at 508 (“The Supreme Court has held that the ADA’s Title II, at least in certain 

circumstances, represents a valid exercise of 14th Amendment powers, and as such it trumps 

state regulations that conflict with its requirements.”). “Requiring public entities to make 

changes to rules, policies, practices, or services is exactly what the ADA does.” Jones, 341 F.3d 

at 487 (Cole, J., dissenting). Nonetheless, at the evidentiary hearing on remand, the district court 

may look to the certification process as a manner to evaluate the merits of the factual issue. 
No. 17-3207 Hindel, et al. v. Husted Page 8

In addition, Ohio’s certification process for “vendors” and “software developers” does 

not apply to disabled plaintiffs who claim an ADA violation. See Ohio Rev. Code 

§ 3506.05(A)(3) (defining “vendor” as “the person that owns, manufactures, distributes, or has 

the legal right to control the use of equipment, or the person’s agent”); § 3506.05(C)(1) 

(requiring “vendor[s]” to submit the proposed voting equipment or software for certification).4 

Plaintiffs have no statutory standing or duty to employ the certification process. 

B. 

Defendant also argues the district court correctly distinguished Lamone on the 

fundamental alteration analysis for the reasons explicitly noted by the district court in that case. 

See Nat’l Fed’n of the Blind v. Lamone, No. RDB-14-1631, 2014 WL 4388342, at *13 (D. Md. 

Sept. 4, 2014) (noting the fundamental alteration “analysis would [perhaps] be different if 

Plaintiffs sought to gain access to an uncertified tool that had never been used in a real-world 

situation.”). But this is a distinction without a difference at this point in the proceedings. The 

Fourth Circuit was reviewing a district court judgment post-bench trial. Id. at *1–2; Lamone, 

813 F.3d at 501. On the contrary, the district court here did not—and could not, given that it was 

reviewing a motion for judgment on the pleadings—engage in the requisite factual inquiry to 

determine whether plaintiffs’ proposed remedy would fundamentally alter Ohio’s voting system. 

Thus, while the Maryland district court had the opportunity to review and weigh the evidence 

before it made its determination, the district court here had no such opportunity. Given, as noted 

 4

In its entirety, Ohio Rev. Code § 3506.05(C)(1) provides: 

A vendor who desires to have the secretary of state certify equipment shall first submit the 

equipment, all current related procedural manuals, and a current description of all related support 

arrangements to the board of voting machine examiners for examination, testing, and approval. 

The submission shall be accompanied by a fee of two thousand four hundred dollars and a detailed 

explanation of the construction and method of operation of the equipment, a full statement of its 

advantages, and a list of the patents and copyrights used in operations essential to the processes of 

vote recording and tabulating, vote storage, system security, pollbook storage and security, and 

other crucial operations of the equipment as may be determined by the board. An additional fee, 

in an amount to be set by rules promulgated by the board, may be imposed to pay for the costs of 

alternative testing or testing by persons other than board members, record-keeping, and other 

extraordinary costs incurred in the examination process. Moneys not used shall be returned to the 

person or entity submitting the equipment for examination. 

See also § 3506.05(H)(1) (“The guidelines shall establish procedures requiring vendors or computer software 

developers to place in escrow with an independent escrow agent approved by the secretary of state a copy of all 

source code and related documentation, together with periodic updates as they become known or available.”). 
No. 17-3207 Hindel, et al. v. Husted Page 9

above, the highly factual nature of defendant’s fundamental alteration defense, see, e.g., 

Anderson, 798 F.3d at 356, the court erred in granting judgment on the pleadings. 

IV. 

While plaintiffs also allege the district court erred in granting judgment on the pleadings 

to defendant because their proposed remedy would not fundamentally alter Ohio’s voting 

system, we do not address that issue here. This court cannot assess that substantive issue for the 

same reason the district court erred in so doing—namely, the facts supporting the parties’ 

positions have yet to be litigated. 

V. 

We reverse the judgment of the district court and remand for further proceedings 

consistent with this opinion.