PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 14-2001

NATIONAL FEDERATION OF THE BLIND; KENNETH CAPONE; MELISSA 

RICCOBONO; JANICE TOOTHMAN,

Plaintiffs - Appellees,

v.

LINDA H. LAMONE, State Administrator, State Board of 

Elections, in her official capacity; DAVID J. MCMANUS, JR., 

Chairman, State Board of Elections, in his official 

capacity; BOBBIE S. MACK, Member, State Board of Elections, 

in her official capacity; PATRICK J. HOGAN, Member, State 

Board of Elections, in his official capacity; MICHAEL R. 

COGAN, Member, State Board of Elections, in his official 

capacity; KELLY A. HOWELLS, Member, State Board of 

Elections, in her official capacity,

Defendants – Appellants,

and

AMERICAN COUNCIL OF THE BLIND OF MARYLAND;

VERIFIEDVOTING.ORG; SAVEOURVOTES.ORG; CINDY LABON; CHARLES 

CRAWFORD; JANE SHEEHAN,

Intervenors.

--------------------------

CIVIL RIGHTS EDUCATION AND ENFORCEMENT CENTER; MARYLAND 

DISABILITY LAW CENTER; ADAPT MARYLAND; AMERICAN CIVIL 

LIBERTIES UNION; ARC MARYLAND; ARC OF THE UNITED STATES; 

ASSOCIATION OF ASSISTIVE TECHNOLOGY ACT PROGRAMS; DISABILITY 

LAW CENTER FOR VIRGINIA; DISABILITY RIGHTS ADVOCATES; 

DISABILITY RIGHTS BAR ASSOCIATION; DISABILITY RIGHTS 

EDUCATION & DEFENSE FUND; DISABILITY RIGHTS NORTH CAROLINA; 

FREEDOM CENTER; IMAGE CENTER FOR PEOPLE WITH DISABILITIES; 

INDEPENDENCE NOW; JUDGE DAVID L. BAZELON CENTER FOR MENTAL 
2

HEALTH LAW; LEAGUE FOR PEOPLE WITH DISABILITIES; MARYLAND 

DEVELOPMENTAL DISABILITIES COUNCIL; MARYLAND DISABILITIES 

FORUM; NATIONAL ASSOCIATION OF THE DEAF; NATIONAL DISABILITY 

RIGHTS NETWORK; ON OUR OWN OF MARYLAND; PARALYZED VETERANS 

OF AMERICA; PEOPLE ON THE GO; PROTECTION AND ADVOCACY FOR 

PEOPLE WITH DISABILITIES; SOUTHERN MARYLAND CENTER FOR 

INDEPENDENT LIVING; UNITED SPINAL ASSOCIATION; WEST VIRGINIA 

ADVOCATES; UNITED STATES OF AMERICA,

Amici Supporting Appellees.

Appeal from the United States District Court for the District of 

Maryland, at Baltimore. Richard D. Bennett, District Judge. 

(1:14-cv-01631-RDB)

Argued: October 28, 2015 Decided: February 9, 2016 

Before GREGORY, DUNCAN, and FLOYD, Circuit Judges.

Affirmed by published opinion. Judge Floyd wrote the opinion,

in which Judge Gregory and Judge Duncan joined.

ARGUED: Julia Doyle Bernhardt, OFFICE OF THE ATTORNEY GENERAL OF 

MARYLAND, Baltimore, Maryland, for Appellants. Jessica Paulie 

Weber, BROWN, GOLDSTEIN & LEVY, LLP, Baltimore, Maryland, for 

Appellees. Thomas Evans Chandler, UNITED STATES DEPARTMENT OF 

JUSTICE, Washington, D.C., for Amicus United States of America. 

ON BRIEF: Brian E. Frosh, Attorney General of Maryland, OFFICE 

OF THE ATTORNEY GENERAL OF MARYLAND, Baltimore, Maryland, for 

Appellants. Daniel F. Goldstein, BROWN, GOLDSTEIN & LEVY, LLP, 

Baltimore, Maryland, for Appellees. Amy F. Robertson, CIVIL 

RIGHTS EDUCATION AND ENFORCEMENT CENTER, Denver, Colorado; 

Alyssa R. Fieo, MARYLAND DISABILITY LAW CENTER, Baltimore, 

Maryland, for Amici Civil Rights Education and Enforcement 

Center, Maryland Disability Law Center, ADAPT Maryland, American 

Civil Liberties Union, Arc Maryland, Arc of the United States, 

Association of Assistive Technology Act Programs, disAbility Law 

Center for Virginia, Disability Rights Advocates, Disability 

Rights Bar Association, Disability Rights Education & Defense 

Fund, Disability Rights North Carolina, Freedom Center, IMAGE 

Center for People with Disabilities, Independence Now, Judge 
3

David L. Bazelon Center for Mental Health Law, League for People 

with Disabilities, Maryland Developmental Disabilities Council, 

Maryland Disabilities Forum, National Association of the Deaf, 

National Disability Rights Network, On Our Own of Maryland, 

Paralyzed Veterans of America, People on the Go, Protection and 

Advocacy for People with Disabilities, Southern Maryland Center 

for Independent Living, United Spinal Association, and West 

Virginia Advocates. Vanita Gupta, Principal Deputy Assistant 

Attorney General, Mark L. Gross, Civil Rights Division, UNITED 

STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Amicus 

United States of America.
4

FLOYD, Circuit Judge:

Maryland allows any voter to vote via absentee ballot. A 

voter may obtain a blank hardcopy absentee ballot by mail, fax, 

or by downloading and printing one from a website. The hardcopy 

ballot must be marked by hand, signed, and returned via mail or 

hand-delivery to the voter’s local election board.

The National Federation of the Blind and individual

disabled Maryland voters sued state election officials under 

Title II of the Americans with Disabilities Act (“ADA”) and 

Section 504 of the Rehabilitation Act. Plaintiffs allege that 

marking a hardcopy ballot by hand without assistance is 

impossible for voters with various disabilities, and that they 

have therefore been denied meaningful access to absentee voting. 

After a bench trial, the district court found that Maryland’s 

program, as then structured, did not comport with ADA and 

Rehabilitation Act requirements. The district court further 

found that plaintiffs’ proposed remedy—the use of an “online 

ballot marking tool” that would enable disabled voters to mark 

their ballots electronically—was a reasonable modification that 

did not fundamentally alter Maryland’s absentee voting program. 

Defendant election officials now appeal all these aspects of the 

district court’s decision. For the reasons below, we affirm.
5

I.

A.

Elections in the State of Maryland are overseen by the 

State Board of Elections (“Board”). Md. Code Ann., Elec. Law 

§§ 2-101 to 102 (Westlaw current through the 2015 Regular 

Session of the General Assembly) (“Elec. Law”). The Board is 

comprised of five members. Elec. Law § 2-101(a). The Board 

appoints a State Administrator of Elections who is designated as 

“the chief State election official” and tasked with 

administering Maryland’s election apparatus. Id. § 2-103.

Maryland provides its voters with a number of different 

means to vote. Maryland has nearly 2,000 polling places at 

which a voter may cast a ballot on Election Day. The 

overwhelming majority of these polling places are accessible to 

physically disabled voters and are staffed with election judges 

trained in serving voters with disabilities. The polling place 

voting machines have a number of accessibility features designed 

to assist disabled voters in casting their ballots. Maryland’s 

voting machines allow voters to magnify the font of the ballot, 

to alter the color contrast, and to position the interface 

screen such that voters can sit down while casting their 

ballots. The voting machines can also be programed for nonvisual access by means of an audio ballot; when using the audio 

features a voter receives a headset and numeric keypad to 
6

navigate the ballot choices. Voters who desire assistance in 

marking their ballots may be assisted by an individual of their 

choosing or by an election judge (in the presence of an election 

judge of another political party). The voting machines are not 

compatible with some common personal accessibility devices such 

as refreshable Braille displays.

Maryland also allows voters to vote in person for an eightday period before Election Day at sixty-four early voting 

polling stations. All of these early voting polling places are 

physically accessible.

Finally, any Maryland voter may vote by absentee ballot. A 

voter can obtain a ballot by mail, fax, or electronically by 

downloading a ballot from a website. A voter who electronically 

downloads an absentee ballot must print out the ballot in 

hardcopy, mark their choices by hand, and then sign and return 

the hardcopy ballot to their local board of elections. An 

absentee voter may designate an agent to pick up and deliver a 

ballot. Absentee voters may also have an individual of their 

choice assist them in hand marking the ballot.

B.

Historically, as noted, an absentee voter who obtained an 

absentee ballot electronically needed to print out the blank 

ballot and mark their choices by hand on the printed hardcopy 
7

ballot. For several years, Maryland has been developing a piece 

of software referred to as an “online ballot marking tool.” The 

tool can be used by absentee voters who choose to obtain their 

absentee ballots electronically; the tool enables voters to mark 

their choices electronically and then print out a completed 

ballot.1 When the ballot is printed, the voter’s selections 

appear on a number of pages followed by a separate signature 

page. The voter must still sign the signature page and return 

the entire hardcopy ballot to the local board of elections. 

Only printed and signed ballots received by a local board of 

elections are counted in determining the result of an election.

Maryland’s Board developed the online ballot marking tool 

over a number of years, including with the participation of 

plaintiff National Federation of the Blind. The Board has 

solicited feedback and implemented a number of usability and 

accessibility enhancements for disabled voters. The tool is not 

compatible with all computer browsers or operating systems, but 

does function properly with a variety of reasonably up-to-date 

products. Importantly for individuals with certain 

 1 The tool provides the voter an interface program on the 

computer they are using. Voters mark their ballots using the 

computer program and are then presented with a review screen 

that allows voters to verify that their selections are accurate. 

When a voter confirms the selections, the computer transmits the 

information to the state election board’s computer server. The 

server generates a marked ballot in the form of a PDF file, 

which the voter can then print out.
8

disabilities, the ability to use the tool on their own computers 

may enable them to use the personal assistive devices that they 

ordinarily use to interface with the computer, such as a 

refreshable Braille display, to mark their ballot choices.

C.

An early, non-accessible version of the online ballot 

marking tool was available to absentee voters during Maryland’s 

2012 primary elections. Following the primary elections, a 

question arose as to whether the tool needed to be officially 

certified pursuant to Maryland Election Law Section 9-102, which 

requires certification of any “voting system” prior to use. The 

Maryland Attorney General provided an opinion that the tool did 

not meet the statutory definition of a “voting system” and did 

not require certification. See Certification of Voting Systems 

Does Not Apply to Absentee-Ballot-Marking Wizard, 97 Op. Md. 

Att’y Gen. 32 (2012). However, apparently due to lingering 

concerns over the status of the online ballot marking tool, the 

Board only made the tool available to certain overseas and 

military absentee voters for the 2012 general election. Use of 

the tool in the 2012 primary and general elections was 

apparently uneventful.

The Maryland General Assembly subsequently clarified the 

status of the tool. In 2013, the General Assembly passed the 
9

“Improving Access to Voting Act,” 2013 Md. Laws Ch. 157, which, 

among other things, explicitly required the Board to certify any 

online ballot marking tool prior to use by voters. See id.

(codified at Elec. Law § 9-308.1). Certification requires a 

supermajority: at least four of the five members of the Board 

must vote in favor of certification. See Elec. Law § 2-102(c).

The Board continued to make improvements to the version of 

the tool that had been used in the 2012 election cycle. In 

particular, the Board implemented certain changes to make the 

tool more accessible to voters with disabilities. Additionally, 

in accordance with the 2013 Improving Access to Voting Act, the 

Board hired an independent consultant, Unatek Inc. (“Unatek”), 

to perform security testing on the tool. Unatek produced a 

report in December 2013 concluding that use of the tool was 

secure.

In February 2014, the Board met and discussed the online 

ballot marking tool. The Board reviewed the December 2013 

Unatek report and interviewed the report’s author. Some Board 

members continued to express concerns about the security of the 

tool, and the Board did not hold a certification vote. 

The Board subsequently hired a second independent 

consultant, Mainstay Enterprises, Inc. (“Mainstay”), to audit 

the Unatek security report. The Mainstay audit concluded that 

Unatek’s security assessment had followed industry best 
10

practices. The Board also received and reviewed public comments

and had Board staff obtain information on the use of similar

ballot marking tools in other states.

The certification issue was again discussed at the Board’s 

April 2014 meeting. At the meeting, Mainstay briefed the Board 

on the results of its audit. Some Board members continued to 

express concerns about certification and the Board did not take 

a certification vote.

D.

On May 19, 2014, plaintiffs sued Linda Lamone, Maryland’s 

State Administrator of Elections, and the five Board members, 

all in their official capacities. At the heart of plaintiffs’ 

suit are claims that Maryland’s absentee voting process violates 

the ADA and the Rehabilitation Act. Plaintiffs sought both a 

declaratory judgment to that effect as well as an injunction 

requiring state election officials to make the online ballot 

marking tool available for use starting with the 2014 general 

election.2 The district court subsequently scheduled a bench 

trial to begin on August 13, 2014. The schedule would provide 

 2 Plaintiffs also sought a preliminary injunction requiring 

election officials to make the tool available for the June 24, 

2014 primary election. The district court held a hearing on 

June 11, 2014, and ultimately denied plaintiffs’ request.
11

defendants with sufficient time to implement the tool before the 

2014 general election in the event that plaintiffs prevailed.

While the suit was pending, the Board held a speciallyscheduled meeting on July 10, 2014, with one Board member 

absent. The four Board members in attendance voted 3 to 1 to 

certify the online ballot marking tool. The vote did not 

satisfy the statutory supermajority requirement and the tool was 

not certified.

The district court held a three-day bench trial beginning 

on August 13, 2014.3 The district court heard testimony on: the 

 3 On August 1, 2014, less than two weeks before trial, 

several individuals and entities who were similarly situated to 

plaintiffs here filed a motion to intervene in the case. The 

putative intervenors asserted similar ADA and Rehabilitation Act 

claims, along with additional claims against Maryland state 

officials under 18 U.S.C. § 1983 for various alleged 

constitutional violations. The putative intervenors argued that 

their rights had been violated in ways substantially similar to 

plaintiffs, but sought an almost diametrically opposed remedy—an 

injunction barring certification of the online ballot marking 

tool. Very broadly, the putative intervenors appeared to be 

concerned that the tool plaintiffs sought to require Maryland to 

use was not sufficiently accessible to disabled voters.

The district court held a conference with all parties and 

the putative intervenors on August 8, 2014. With the agreement 

of the parties, the district court held the motion sub curia and 

permitted the putative intervenors to participate in the trial. 

In its memorandum opinion in this case, the district court 

ultimately granted the motion to the extent of the intervenors’

participation up to and through trial, and considered the 

intervenors’ evidence and legal arguments in reaching its 

decision; the district court denied the motion to the extent the 

intervenors sought to assert independent claims against the 

defendants. It does not appear that either the parties or the 

(Continued)
12

difficulties disabled voters have experienced while voting; the 

Board’s development of the online ballot marking tool and the 

Board’s deliberation over certification; the accessibility of 

the tool for disabled voters; and the security risks posed by 

the tool.

The district court found that “the evidence demonstrated 

specific difficulties that some disabled voters have experienced 

while voting,” J.A. 1043, and that “under the current absentee 

ballot voting program, individuals with disabilities such as 

those of the Plaintiffs cannot vote privately and 

independently.” J.A. 1044. The district court credited the 

results of a University of Baltimore usability study that 

concluded the tool was “highly accessible for disabled voters,” 

J.A. 1047-48, though the district court acknowledged that two 

individuals testified that they had difficulty accessing and 

using the tool during a public demonstration period. J.A. 1048. 

The district court found the tool “compatible with reasonably 

up-to-date computer and screen access software,” “designed in 

accordance with the Web Content Accessibility Guidelines,” and 

“compatible with refreshable Braille displays.” Id. The 

district court did find that there were still “challenges to 

 

intervenors have appealed any part of the district court’s 

disposition on this issue, and we see no reason to disturb it.
13

private and independent voting by absentee ballot for disabled 

voters even when using the tool,” including that “disabled 

voters may need assistance in signing their ballots before 

submission.” Id. “However, the testimony at trial also 

indicated that, because the signature sheet prints on a separate 

page, the risk of disclosure of a disabled voter’s selections 

was minimalized and, in any event, was significantly less than 

that afforded under the current paper absentee ballot 

system . . . .” J.A. 1048-49.

With respect to the security risks posed by the online 

ballot marking tool, the district court credited expert 

testimony that the tool “exhibited software independence, 

meaning a change to the voting software used for an election 

cannot cause an undetectable change to the outcome of an 

election” and that “there were no additional risks that did not 

exist in other methods already available to Maryland voters.” 

J.A. 1049. The district court found that the tool was “not 

without some security risks” including that “malware could 

enable [a] third party to observe a voter’s selections” and that 

“a voter’s selections could be captured if a third party 

infiltrated the Board’s server during the time a voter’s 

selections and/or the printable ballot were being transmitted.” 

J.A. 1049-50. Additionally, “[t]here was no evidence at trial 

that the online ballot marking tool had been tested against 
14

intentional attempts to infiltrate or hack into the Board’s 

server or the tool.” J.A. 1050.

The district court further found that “it is clear that 

most voters may mark their absentee ballots without assistance” 

and that plaintiffs “should be afforded the same opportunity, 

but the State’s current voting program does not allow for it.” 

J.A. 1055. Based on the facts found at trial, the district 

court concluded that plaintiffs had established that they had 

been denied meaningful access to absentee voting in Maryland in 

violation of Title II of the ADA and Section 504 of the 

Rehabilitation Act. The district court entered a declaratory 

judgment for plaintiffs to this effect. The district court 

further concluded that plaintiffs’ proposed remedy, access to 

the online ballot marking tool, was a reasonable modification 

that did not fundamentally alter Maryland’s voting program. 

Consistent with these conclusions, the district court entered a 

permanent injunction prohibiting defendants from violating 

plaintiffs’ rights under the ADA and the Rehabilitation Act and 

requiring defendants to make the online ballot marking tool 

available to plaintiffs for the 2014 general election. This 

appeal followed.
15

II.

We review judgments resulting from a bench trial under a 

mixed standard of review: factual findings may be reversed only 

if clearly erroneous, while conclusions of law are examined de 

novo. Plasterers’ Local Union No. 96 Pension Plan v. Pepper, 

663 F.3d 210, 215 (4th Cir. 2011). We review the grant of a 

permanent injunction for abuse of discretion. Legend Night Club 

v. Miller, 637 F.3d 291, 297 (4th Cir. 2011).

Defendants’ appeal principally focuses on the district 

court’s three core legal conclusions: (1) that plaintiffs have 

been denied meaningful access to absentee voting in violation of 

the ADA and the Rehabilitation Act; (2) that the online ballot 

marking tool constitutes a reasonable remedial modification; and 

(3) that requiring defendants to allow use of the tool does not 

fundamentally alter Maryland’s voting program. We address each 

of these issues in turn.

III.

Title II of the ADA provides that “no qualified individual 

with a disability shall, by 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.” 42 U.S.C. 
16

§ 12132.4 To make out a violation of Title II, plaintiffs must 

show: (1) they have a disability; (2) they are otherwise 

qualified to receive the benefits of a public service, program, 

or activity; and (3) they were denied the benefits of such 

service, program, or activity, or otherwise discriminated 

against, on the basis of their disability. Constantine v. 

Rectors & Visitors of George Mason Univ., 411 F.3d 474, 498 (4th 

Cir. 2005).

Only the third of these elements—whether plaintiffs were 

denied the benefits of a public service, program, or activity on 

the basis of their disability—is at issue here.5 Much of the 

 4 Section 504 of the Rehabilitation Act similarly provides 

that “[n]o otherwise qualified individual with a disability in 

the United States . . . 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. “Claims under the ADA’s Title II and the Rehabilitation 

Act can be combined for analytical purposes because the analysis 

is ‘substantially the same.’” Seremeth v. Bd. of Cty. Comm'rs 

Frederick Cty., 673 F.3d 333, 336 n.1 (4th Cir. 2012) (quoting 

Doe v. Univ. of Md. Med. Sys. Corp., 50 F.3d 1261, 1265 n.9 (4th 

Cir. 1995)). Because under the circumstances presented in this 

case plaintiffs’ ADA and Rehabilitation Act claims rise and fall 

together, for simplicity our opinion combines them and 

principally analyzes the ADA claim. Cf., e.g., A Helping Hand, 

LLC v. Baltimore Cty., Md., 515 F.3d 356, 362 (4th Cir. 2008) 

(“Congress has directed courts to construe the ADA to grant at 

least as much protection as the Rehabilitation Act and its 

implementing regulations.”).

5 Title II allows plaintiffs to pursue three distinct 

grounds for relief: (1) intentional discrimination or disparate 

treatment; (2) disparate impact; and (3) failure to make 

reasonable accommodations. A Helping Hand, LLC, 515 F.3d at 

(Continued)
17

dispute revolves around the proper way to define the scope of 

the relevant public service or program at issue. Plaintiffs 

argue that the appropriate analytic scope is Maryland’s absentee 

voting program. Defendants urge analysis of Maryland’s voting 

program in its entirety, encompassing the various voting 

alternatives—including in-person voting—available to Maryland 

voters. Defendants argue that even if absentee voting is not 

fully accessible, the full accessibility of Maryland’s in-person 

polling places provides disabled voters with meaningful access 

to voting. As explained below, we conclude that defendants’ 

proposed focus is overbroad and would undermine the purpose of 

the ADA and its implementing regulations.

A.

Defendants’ argument for holistic consideration of 

Maryland’s voting program is in some immediate tension with the 

 

362. Defendants somewhat mischaracterize plaintiffs’ claims as 

advancing a disparate impact theory of discrimination. See, 

e.g., Br. of Appellants 38. While some sort of disparity will 

necessarily be present in cases of discrimination, that does not 

mean that all discrimination cases are legally evaluated as 

“disparate impact” cases; we do not interpret plaintiffs’ 

arguments as advancing a legal disparate impact theory (and the 

district court did not evaluate them as such). We understand 

plaintiffs to be pursuing their claims on the theory that 

defendants have failed to make reasonable accommodations that 

would afford disabled individuals meaningful access to 

Maryland’s absentee voting program.
18

text of the ADA. Title II states that a disabled individual may 

not 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.” 42 U.S.C. 

§ 12132. Defendants’ proposed focus on voting in its entirety 

effectively reads out much of this language, suggesting that 

Title II prohibits only complete exclusion from participation in 

broadly-defined public programs. However, Title II is 

disjunctive. By its own terms it is not limited only to public 

“programs”; it applies to “services, programs, or activities.” 

Id. (emphasis added). Title II does not only prohibit 

“exclusion from participation” in a public program; it also 

separately prohibits “den[ying] the benefits” of that program. 

Id.6 And in addition to those prohibitions, Title II separately 

generally prohibits “discrimination by any [public] entity.” 

Id. Although the bare language of Title II does not 

definitively resolve the question of appropriate scope, it does 

 6 The United States, as amicus, suggests that defendants 

would still be in violation of Title II even were we to conclude 

that Maryland’s entire voting program was “the” program subject 

to Title II’s requirements. We acknowledge that it is possible 

to view the ability to vote from the comfort of one’s home as 

one of the “benefits” of Maryland’s overall voting program, the 

denial of which benefit on the basis of disability might support 

a Title II claim. However, given our conclusion below that we 

must evaluate Maryland’s absentee voting program directly, we 

need not address the United States’s contention.
19

suggest to us that some granularity in analytic focus is

necessary.

The Supreme Court has cautioned against defining the scope 

of a public benefit so as to avoid questions of discriminatory 

effects. In Alexander v. Choate, 469 U.S. 287, 301 (1985), a 

Rehabilitation Act case, a unanimous Court counseled that in 

assessing whether a disabled individual had been provided with 

meaningful access to a benefit, “[t]he benefit itself, of 

course, cannot be defined in a way that effectively denies 

otherwise qualified handicapped individuals the meaningful 

access to which they are entitled.” See also id. at n.21 

(citing with approval the government’s statement that 

“[a]ntidiscrimination legislation can obviously be emptied of 

meaning if every discriminatory policy is ‘collapsed’ into one’s 

definition of what is the relevant benefit”). The logic of 

Alexander further suggests that we should proceed cautiously to 

avoid defining a public program so generally that we overlook 

real difficulties in accessing government services.

Also significant for our analysis of the proper scope of 

review here is the fact that Maryland allows any voter to vote 

by absentee ballot. Elec. Law §§ 9-301, 9-304. Absentee 

ballots are not provided only to a limited set of voters with a 

demonstrated need to vote absentee; they are instead provided to 

the entire Maryland electorate at the option of each individual 
20

voter. On the whole, then, we think it is far more natural to 

view absentee voting—rather than the entire voting program—as 

the appropriate object of scrutiny for compliance with the ADA 

and the Rehabilitation Act.

Defendants’ remaining arguments against this 

straightforward conclusion are unpersuasive. Defendants cite an 

ADA-implementing regulation, 28 C.F.R. § 35.150(a), which they 

assert requires a reviewing court to view Maryland’s voting 

program “in its entirety.” However, the cited regulation 

expressly pertains to “existing facilities.” See id. On its 

face, this regulation simply provides that a public entity does 

not have to make each of its facilities accessible as long as 

individuals with disabilities have access to that entity’s 

offered public services. This regulation is targeted 

principally at physical accessibility and allows a public entity 

to provide accessibility alternatives that would not require 

large-scale architectural modifications of existing facilities. 

Accord Constantine, 411 F.3d at 489 (discussing 28 C.F.R. 

§ 35.150(a) and explaining that “structural changes in existing 

physical facilities” are “probably the most expensive 

enterprise” in providing accessibility). 

Other ADA-implementing regulations, however, are applicable 

here and conflict with defendants’ proposed focus on the 

entirety of Maryland’s voting program. As one example, 
21

28 C.F.R. § 35.130 (“General prohibitions against 

discrimination”) directly implements the general antidiscrimination mandate of Title II. Subsection (b)(7) of the 

regulation requires public entities to make certain reasonable 

modifications in “policies, practices, or procedures when the 

modifications are necessary to avoid discrimination on the basis 

of disability”; this regulation clearly contemplates a focus on 

accessibility at a more granular level than entire government 

programs—the level of “policies, practices, and procedures.” 

Id.7

Defendants also cite to three district court decisions from 

other circuits that they argue stand for the proposition that 

all aspects of a state’s voting program must be viewed together 

when analyzing an ADA claim. Br. of Appellants 55-56. It is 

 7 As another example, 28 C.F.R. § 35.160 states that “[a] 

public entity shall take appropriate steps to ensure that 

communications with [disabled persons] are as effective as 

communications with others” and “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.” Id. § (a)(1), (b)(1). The 

requirement to provide “auxiliary aids and services” again 

suggests to us that accessibility cannot be adequately assessed 

at the highest level of program abstraction. The United States 

argues that this particular regulation alone is a sufficient 

basis to affirm the decision here. Br. for United States as 

Amicus Curiae 17-19. We think that the ADA itself and the 

general anti-discrimination regulation discussed above provide

the most direct resolution in this case. We therefore need not 

consider whether there might be other independent bases that 

support an ADA or Rehabilitation Act claim on the facts here.
22

not clear to us that the cited cases in fact support defendants’ 

proposition; in any event, we find them unpersuasive. Further, 

later decisions in some of those districts (and decisions by the 

courts of appeals sitting above them), flatly reject the very 

argument defendants advance here. See, e.g., United Spinal 

Ass’n v. Bd. of Elections in New York, 882 F. Supp. 2d 615, 623-

24 (S.D.N.Y. 2012) (“It is abundantly clear that Defendants are 

obligated to provide a level of access to their voting program 

beyond the simple assurance that voters with disabilities are 

able to cast a ballot in some way, shape, or form.”); Disabled 

in Action v. Bd. of Elections in New York, 752 F.3d 189, 198-99 

(2d Cir. 2014) (“[T]o assume the benefit is . . . merely the 

opportunity to vote at some time and in some way [] would render 

meaningless the mandate that public entities may not afford 

persons with disabilities services that are not equal to that 

afforded others.” (quotation omitted)).

B.

Having determined that Maryland’s absentee voting program 

is the appropriate subject of our ADA analysis, we must 

determine whether absentee voting is accessible to disabled 

individuals as required by statute and implementing regulations. 

As the Supreme Court has explained:
23

Congress enacted the ADA in 1990 to remedy widespread 

discrimination against disabled individuals. In 

studying the need for such legislation, Congress found 

that “historically, society has tended to isolate and 

segregate individuals with disabilities, and, despite 

some improvements, such forms of discrimination 

against individuals with disabilities continue to be a 

serious and pervasive social problem.”

PGA Tour, Inc. v. Martin, 532 U.S. 661, 674-75 (2001) (quoting 

42 U.S.C. § 12101(a)(2)). Congress explicitly found that 

discrimination was not limited to “outright intentional 

exclusion,” but was also to be found in “the ‘failure to make 

modifications to existing facilities and practices.’” Id. at 

675 (quoting 42 U.S.C. § 12101(a)(5)). After thorough 

investigation and debate, Congress concluded that there was a 

“compelling need” for a “clear and comprehensive national 

mandate” to both eliminate discrimination and to integrate 

disabled individuals into the social mainstream of American 

life. Id. (internal citations omitted). “In the ADA, Congress 

provided that broad mandate.” Id.

Congress has explicitly directed the Attorney General to 

promulgate regulations implementing Title II’s 

non-discrimination mandate. 42 U.S.C. § 12134. Pursuant to 

this directive, the Department of Justice (“DoJ”) promulgated a 

number of regulations, including 28 C.F.R. § 35.130. That 

regulation provides:

A public entity, in providing any aid, benefit, or 

service, may not . . . [a]fford a qualified individual 
24

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.

28 C.F.R. § 35.130(b)(1)(ii)-(iii).8 We have recognized that 

“[t]he department’s regulations are the agency’s interpretation 

of the statute, and they are therefore given ‘controlling 

weight’ unless they conflict with other departmental regulations 

or the ADA itself.” Seremeth, 673 F.3d at 338 (citing Stinson 

v. United States, 508 U.S. 36 (1993), and Chevron, U.S.A., Inc. 

v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 844 (1984)).

We have little trouble concluding from the record before us 

that Maryland’s absentee voting program does not provide 

disabled individuals an “opportunity to participate . . . equal 

to that afforded others.” See 28 C.F.R. § 35.130(b)(1)(ii). 

The district court found that “it is clear that most voters may 

mark their absentee ballots without assistance.” J.A. 1055. 

This finding is not clearly erroneous. The district court 

further found that Maryland’s current absentee voting program 

does not allow disabled individuals such as plaintiffs to mark 

their ballots without assistance. Id. This finding is also not 

clearly erroneous. This sharp disparity makes obvious that 

 8 The Rehabilitation Act’s regulations impose similar 

requirements. See, e.g., 45 C.F.R. § 84.4(b)(1)(ii)-(iii).
25

defendants have provided “an aid, benefit, or service [to 

disabled individuals] 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.” See 28 C.F.R. § 35.130(b)(1)(iii). The 

ADA requires more.

Defendants do not seriously challenge the district court’s 

factual findings concerning plaintiffs’ current inability to 

vote without assistance. Instead, defendants argue that 

plaintiffs have not been denied meaningful access to absentee 

voting because disabled individuals such as plaintiffs have no 

right to vote without assistance. See Br. of Appellants 59-60. 

This argument simply misapprehends the nature of plaintiffs’ 

claims.

This case does not turn on whether there is a standalone 

right to vote privately and independently without assistance. 

Plaintiffs’ argument is that defendants have provided such a

benefit to non-disabled voters while denying that same benefit 

to plaintiffs on the basis of their disability. This is 

precisely the sort of harm the ADA seeks to prevent. Cf., e.g., 

Disabled in Action, 752 F.3d at 199-200 (“Although [plaintiffs] 

were ultimately able to cast their vote with the fortuitous 

assistance of others, the purpose of the Rehabilitation Act is 

‘to empower individuals with disabilities to maximize 
26

employment, economic self-sufficiency, independence, and 

inclusion and integration into society’ . . . . The right to 

vote should not be contingent on the happenstance that others 

are available to help.” (emphasis by 2d Circuit)(quoting 

29 U.S.C. § 701(b)(1))); Cal. Council of the Blind v. Cty. of 

Alameda, 985 F. Supp. 2d 1229, 1239 (N.D. Cal. 2013)

(“[R]equiring blind and visually impaired individuals to vote 

with the assistance of a third party, if they are to vote at 

all, at best provides these individuals with an inferior voting 

experience ‘not equal to that afforded others.’” (quoting 

28 C.F.R. § 35.130(b)(1)(ii))).

Voting is a quintessential public activity. In enacting 

the ADA, Congress explicitly found that “‘individuals with 

disabilities . . . have been . . . relegated to a position of 

political powerlessness in our society, based on characteristics 

that are beyond the control of such individuals.’” Tennessee v. 

Lane, 541 U.S. 509, 516 (2004) (quoting 42 U.S.C. § 

12101(a)(7)). Ensuring that disabled individuals are afforded 

an opportunity to participate in voting that is equal to that 

afforded others, 28 C.F.R. § 35.130, helps ensure that those 

individuals are never relegated to a position of political 

powerlessness. We affirm the district court’s conclusion that 

by effectively requiring disabled individuals to rely on the 

assistance of others to vote absentee, defendants have not 
27

provided plaintiffs with meaningful access to Maryland’s 

absentee voting program.

IV.

Determining that plaintiffs have been denied meaningful 

access to absentee voting does not end our analysis. Not all 

public services, programs, or activities can be made 

meaningfully accessible to all citizens, or at least they cannot 

be made so without a prohibitive cost or unreasonable effort on 

the part of the public entity. For this reason, to prevail on 

their ADA claim, plaintiffs must propose a reasonable 

modification to the challenged public program that will allow 

them the meaningful access they seek. See, e.g., Halpern v. 

Wake Forest Univ. Health Scis., 669 F.3d 454, 464 (4th Cir. 

2012) (noting that federal law mandates that federal grantees 

and public accommodations make “reasonable” modifications to 

accommodate persons with disabilities).9 

DoJ regulations implementing the ADA explain that “[a] 

public entity shall make reasonable modifications in policies, 

practices, or procedures when the modifications are necessary to 

 9 Halpern was a Title III and Rehabilitation Act case. We

have noted that in general the different language of Titles II, 

III, and the Rehabilitation Act should be construed together to 

the extent possible. Halpern, 669 F.3d at 461-62 (collecting

cases).
28

avoid discrimination on the basis of disability.” 28 C.F.R. 

§ 35.130(b)(7).10 A modification is reasonable if it is 

“reasonable on its face” or used “ordinarily or in the run of 

cases” and will not cause “undue hardship.” Halpern, 669 F.3d 

at 464 (citing U.S. Airways, Inc. v. Barnett, 535 U.S. 391, 401-

02 (2002)); cf. Henrietta D. v. Bloomberg, 331 F.3d 261, 280 

(2d. Cir 2003) (stating that the burden of establishing the 

reasonableness of an accommodation is “‘not a heavy one’” and 

that it “is enough for the plaintiff to suggest the existence of 

a plausible accommodation, the costs of which, facially, do not 

clearly exceed its benefits” (quoting Borkowski v. Valley Cent. 

Sch. Dist., 63 F.3d 131, 138 (2d Cir. 1995))). Determination of 

the reasonableness of a proposed modification is generally factspecific. Halpern, 669 F.3d at 464.

The district court here found that plaintiffs’ proposed 

modification—the online ballot marking tool—was both reasonably 

secure and reasonably accessible to disabled voters. Reviewing 

the record as a whole, these findings do not appear clearly 

erroneous and we see no need to disturb them. Further, although 

not determinative by itself, the fact that a version of the tool 

 10 The regulations, however, do not require implementation 

of even reasonable modifications where the “public entity can 

demonstrate that making the modifications would fundamentally 

alter the nature of the service, program, or activity.” 

28 C.F.R. § 35.130(b)(7). We address defendants’ “fundamental 

alteration” defense below.
29

was voluntarily implemented by defendants in the 2012 elections—

“without any apparent incident,” J.A. 1057—speaks to the 

reasonableness of using the tool. Additionally, because the 

tool has already been developed, there does not appear to be any 

substantial cost or implementation burden that would need to be 

borne by Maryland to make the tool available for use. On the 

facts before us, we conclude that plaintiffs’ proposed use of 

the online ballot marking tool is a reasonable modification to 

Maryland’s absentee voting policies and procedures.

V.

Defendants correctly argue that even a reasonable 

modification to Maryland’s absentee voting program need not be 

made if that modification would “fundamentally alter” the 

program. See 28 C.F.R. § 35.130(b)(7); Halpern, 669 F.3d at 

464. Defendants bear the burden of proving that the requested 

modification would be a fundamental alteration to the program. 

See 28 C.F.R. § 35.130(b)(7). After considering defendants’ 

arguments and reviewing the record as a whole, we conclude that 

they have not met this burden.

Defendants’ principal argument is that certification of 

voting systems, including certification of the online ballot 

marking tool under Election Law Section 9-308.1, is fundamental 

to Maryland’s voting program. They argue from this that 
30

requiring them to make the online ballot marking tool available 

for plaintiffs’ use, where that tool has not yet received the 

statutorily-required supermajority vote, works a fundamental 

alteration to Maryland’s voting program. Therefore, defendants 

argue, the district court abused its discretion in enjoining 

them to make the tool available to plaintiffs. We disagree.11

As an initial matter, the strong form of defendants’ 

argument—that the mere fact of a state statutory requirement 

insulates public entities from making otherwise reasonable 

modifications to prevent disability discrimination—cannot be 

correct. The Constitution’s Supremacy Clause establishes that 

valid federal legislation can pre-empt state laws. Oneok, Inc. 

v. Learject, Inc., 135 S. Ct. 1591, 1595 (2015) (citing U.S. 

Const. Art. VI, cl. 2). The Supreme Court has held that the 

ADA’s Title II, at least in certain circumstances, represents a 

valid exercise of 14th Amendment powers, Lane, 541 U.S. at 533-

34, and as such it trumps state regulations that conflict with 

its requirements. As the Sixth Circuit has put it, “[r]equiring 

public entities to make changes to rules, policies, practices, 

or services is exactly what the ADA does.” Jones v. City of 

 11 Given our conclusion that use of the online ballot 

marking tool does not fundamentally alter Maryland’s program, we 

discern no abuse of discretion in the district court’s decision 

to issue the injunction as the other factors to be considered 

easily weigh in favor of granting injunctive relief. Cf. Legend 

Night Club, 637 F.3d at 302-03.
31

Monroe, MI, 341 F.3d 474, 487 (6th Cir. 2003) (citing Oconomowoc 

Residential Programs, Inc. v. City of Milwaukee, 300 F.3d 775, 

782-83 (7th Cir. 2002)), abrogated on other grounds by Anderson 

v. City of Blue Ash, 798 F.3d 338 (6th Cir. 2015); accord Mary 

Jo C. v. New York State and Local Ret. Sys., 707 F.3d 144, 163 

(2d Cir. 2013) (“If all state laws were insulated from Title 

II’s reasonable modification requirement solely because they 

were state laws . . . the ADA would be powerless to work any 

reasonable modification in any requirement imposed by state law, 

no matter how trivial the requirement and no matter how minimal 

the costs of doing so.”).

However, we also think that the converse proposition cannot 

be correct either. Certain requirements of state law could in 

fact be fundamental to a public program in a way that might 

resist reasonable modifications otherwise necessary to bring 

that program into compliance with the ADA. Defendants here urge 

that Maryland’s statutory certification requirement is just such 

an example: certification, they argue, goes to the very heart 

of the voting program by ensuring the integrity of the voting 

process as a whole. Public confidence in elections is 

undoubtedly an important governmental concern. But on the 

record before us defendants simply have not established their 

premise, that is, that use of the online ballot marking tool 

degrades the integrity of Maryland’s voting processes.
32

Put another way, defendants are merging Maryland’s 

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. 

See, e.g., Halpern, 669 F.3d at 464-68; cf. Jones, 341 F.3d at 

480 (“In cases involving waiver of applicable rules and 

regulations, the overall 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.” (quotation omitted)). The relevant 

inquiry here is not whether certification qua certification is 

fundamental to Maryland’s voting program, but whether use of the 

tool without certification would be so at odds with the purpose 

of certification that such use would be unreasonable.12

Here, the district court found, after a three-day bench 

trial, that the tool is reasonably secure, safeguards disabled 

voters’ privacy, and (in earlier versions at least) has been 

 12 The problem with conflating procedure and substance here 

can be illustrated by analogy to the archetypal physical 

accessibility modifications often associated with the ADA. It 

would be difficult for a government entity to resist 

installation of, for example, wheelchair ramps for a new 

courthouse, solely by enacting a law requiring that ramps be 

certified and then declining to certify any ramps.
33

used in actual elections without apparent incident.13 We do not 

think these findings are clearly erroneous and defendants have 

not provided any substantial reasons that they should be called 

into question. Cf., e.g., Pepper, 663 F.3d at 215 (“[I]f the 

district court's account of the evidence is plausible in light 

of the record in its entirety, we will not reverse the district 

court's finding simply because we have become convinced that we 

would have decided the question of fact differently.” (quoting 

TFWS, Inc. v. Franchot, 572 F.3d 186, 196 (4th Cir. 2009))). On 

the record as a whole, we do not conclude that use of the online 

ballot marking tool is so at odds with the purposes of 

certification that its use would be unreasonable. We agree with 

the district court that defendants have not met their burden to 

show that plaintiffs’ proposed modification—use of the online 

ballot marking tool—would fundamentally alter Maryland’s voting 

program.

VI.

We recognize that some of the standard analytic language 

used in evaluating ADA claims—“failure to make reasonable 

accommodations”; “denial of meaningful access”—carries with it 

 13 Nothing in the post-trial record indicates any problems

with the use of the tool by plaintiffs in the 2014 general 

election subsequent to the district court’s decision.
34

certain negative connotations. We would be remiss in not 

highlighting that the record is devoid of any evidence that the 

defendants acted with discriminatory animus in implementing

Maryland’s absentee voting program. Indeed, we recognize that 

Maryland’s decision to provide “no excuse” absentee voting to 

all its citizens provides a benefit that is far from universal 

across the United States.

However, the ADA and the Rehabilitation Act do more than 

simply provide a remedy for intentional discrimination. They 

reflect broad legislative consensus that making the promises of 

the Constitution a reality for individuals with disabilities may 

require even well-intentioned public entities to make certain 

reasonable accommodations. Our conclusions here are not driven 

by concern that defendants are manipulating the election 

apparatus intentionally to discriminate against individuals with 

disabilities; our conclusions simply flow from the basic promise 

of equality in public services that animates the ADA.

For the foregoing reasons, we affirm.

AFFIRMED