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Eason v. New York State Board of Elections

United States District Court, S.D. New York

December 20, 2017


          OPINION & ORDER


         In today's world, access to an entity's website is, in many respects, access into its shop or office. So very much of our daily life is now spent on the internet; we are constantly referred by an entity to its website as a more convenient, less expensive or better way of accessing services. If the disabled are denied access to a website, the “door” to a vast array of information and services is closed; if they are denied meaningful access, they are getting less than that to which the law entitles them.

         Section 504 of the Rehabilitation Act and Title II of the Americans with Disabilities Act (“ADA”), long ago provided that the disabled are entitled to meaningful access to a public entity's programs and services. Just as buildings have architecture that can prevent meaningful access, so too can software.

         This lawsuit, commenced by two visually impaired individuals along with the National Federation for the Blind and the Center for Independence for the Blind (collectively, “plaintiffs”), seeks redress for what plaintiffs assert is a lack of access to the services offered by the New York State Department of Motor Vehicles (“DMV”) and the New York State Board of Elections (“SBOE”). (See generally Third Amend. Compl. (“TAC”), ECF No. 128.) The websites provide a host of services relating to voter registration, polling location information, organ donation, gifting of motor vehicles, vehicle registration and use, and non-vehicle identity cards.

         Plaintiffs have asserted claims pursuant to the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq., and the Rehabilitation Act of 1973 (“Rehabilitation Act”), 29 U.S.C. § 794. Prior to the fall 2016 presidential election, plaintiffs brought an emergency application for mandatory injunctive relief, seeking immediate changes to the portion of the SBOE website relating to voter registration. (ECF No. 26.) After briefing and a hearing, the parties stipulated to withdrawal of that motion on August 11, 2016. (ECF No. 48.) That stipulation included an agreement to make certain changes on an agreed timeline. Plaintiffs brought a second emergency application a little less than two months later, claiming that certain agreed-upon changes had not been made. (ECF No. 81.) In a Memorandum Decision & Order dated October 7, 2016, the Court denied that motion. (ECF No. 87.) Thereafter, the parties engaged in fact and expert discovery. Both have now moved for summary judgment (ECF Nos. 151, 152), and defendants have additionally moved to preclude plaintiffs' proffered expert, Sharron Rush (“Rush”), Executive Director of Knowability, Inc. (ECF No. 158). The Court has received hundreds of pages of submissions in connection with these motions and held extensive oral argument on December 19, 2017.

         The submissions and the oral argument leave no doubt as to certain points. First, New York State is committed to ensuring accessibility to the disabled and has dedicated resources and made great efforts to do so. Second, dueling technological developments have resulted in even more robust DMV and SBOE websites, but also additional ways to enhance accessibility for the blind and visually disabled. Accordingly, the circumstances in both respects-in terms of what these websites have offered as a general matter, and the type of accessibility that is possible for the blind and visually impaired-has changed. That New York State (with budgetary and personnel constraints endemic to all governmental entities) may not be entirely state of the art, particularly when the “art” dynamically changes, is perhaps unsurprising; and certainly any lack of capability for the disabled on the DMV and SBOE websites does not signal a lack of State commitment.

         As previously noted, both sides have now moved for summary judgment, and defendants have also moved to preclude plaintiffs' proffered expert. If defendants' preclusion motion were successful, plaintiffs' claims would necessarily fail as the proffered expert (Rush) is the conduit for plaintiffs' evidence as to ongoing website deficiencies.

         For the reasons set forth below, the Court DENIES both motions for summary judgment, and further DENIES defendants' motion to preclude Rush. This case shall proceed to a bench trial.


         Plaintiffs' principle contention is that they have brought a lawsuit seeking meaningful access to the State's DMV and SBOE websites, which provide important information to which they have a legal right of access. At the outset of the lawsuit and in several amended pleadings, plaintiffs have specifically identified a number of issues with the websites that allegedly present barriers to meaningful access. According to plaintiffs, although discovery has revealed that the State has fixed many of those specific issues, websites are “dynamic” (in the sense that information and capabilities are regularly changing), and so new issues have arisen and others are likely to arise in the future. Plaintiffs argue that what is most needed are clear policies, processes, and procedures to ensure that the relevant websites are designed and maintained in an accessible manner.

         Defendants are fighting a different battle. According to defendants, plaintiffs filed a complaint raising certain specific issues, and the defendants have now fixed those issues. The “new” issues that plaintiffs have since identified, according to the defendants, raise fundamental notice pleading concerns under Rule 8 of the Federal Rules of Civil Procedure. Further, certain of the new issues that have been raised relate to website services that no named plaintiff has evinced a personal desire to use or access, raising standing issues. Thus, according to defendants, there is no basis for any relief as plaintiffs' initial claims have been mooted, and the new claims are deficient for multiple reasons. And, in all events, according to defendants, plaintiffs have proffered an expert report that has numerous deficiencies including a failure to provide a clear statement of methodology that may be used by the Court to make a determination of site utility.


         ON The Court has spent a great deal of time considering the parties' submissions. A few issues can be taken off the table at the outset. First, the TAC is a broad pleading-far broader than the specific list of issues on which defendants have concentrated. (See generally TAC.) Without attempting to be exhaustive, there are numerous places in the complaint in which the plaintiffs indicate that they would like to access certain specific information, as well as “other information and services Defendants' websites.” (See TAC ¶¶ 6, 13, 16.) In addition, the TAC refers to a lack of meaningful access to specific services as well as to the “websites” more generally. (See, e.g., TAC ¶¶ 25, 27.) The specific issues that defendants have focused on are referred to in certain instances as “includ[ing], but not limited to.” (See, e.g., TAC ¶ 27.) Further, the TAC calls out general issues with lack of text alternatives for images and non-text content, inadequate alternatives, insufficient contrast ratios, inadequate and absent field labels on forms, inaccessible PDFs, poor interaction with keyboard commands, poor link text, and the like. (TAC ¶ 27.) In short, the breadth of the language in the TAC, combined with the Second Circuit's decision in Kreisler v. Second Ave. Diner Corp., 731 F.3d 184, 188-89 (2d Cir. 2013), persuade this Court this case is not limited to the specific issues that defendants have focused on. Thus, plaintiffs' claims are not deficient under Fed.R.Civ.P. 8, and we can take that off the table.[1]

         Second, there are no standing issues. Kreisler makes clear that a lack of access to one part of a facility may fairly put other areas that a particular plaintiff did not and simply could not access in play. Id. at 188 (Agreeing with the Ninth and Eighth Circuits that a plaintiff may bring ADA challenges with respect to all other barriers on the premises that affect the plaintiff's particular disability; “because Kreisler has standing to pursue injunctive relief as to the Diner's entrance, he has standing to seek removal of all barriers inside the Diner related to his disability that he would likely encounter were he able to access the Diner.” And, “Kreisler need not personally encounter each ADA violation within the Diner in order to seek its removal.”) This is particularly true with regard to websites, since it is well known and accepted that use of a website is dynamic; people are expected to access a site and essentially explore it, to find out what they can do, and what services are offered on the site. Thus, lack of meaningful access is the equivalent of ...

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