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Absentee voting begins

A voter drops an absentee ballot into the ballot box on Tuesday, Sept. 27, 2016, on the first day of absentee voting in St. Louis County for the Nov. 8 election. The absentee voting office, located at 3232 Laclede Station Road, is the only St. Louis County location for in-person absentee voting. Photo by Christian Gooden,

ST. LOUIS • A federal judge on Friday ordered the St. Louis Election Board to make electronic machines available to the disabled for absentee voting in the Nov. 8 general election after two blind men sued the board.

The lawsuit alleged that not making the technology available was a violation of the Americans With Disabilities Act.

U.S. District Judge Audrey G. Fleissig said the temporary restraining order against the Election Board is in effect until a decision is made on the men’s request for a preliminary injunction. A hearing is set for Oct. 13.

However, the attorney for the men, John J. Ammann, said he is working with the Election Board to extend the order for electronic voting “throughout the election period.” The order applies to all people who could not otherwise vote without access to a touch-screen machine, which allows a blind person to vote with the help of audio equipment.

Ammann said election officials have been cooperative but felt constrained by a ruling by the Missouri Court of Appeals.

On Sept. 13, the appeals court upheld a St. Louis circuit judge’s decision that all absentee ballots must be placed in sealed envelopes to comply with state law.

The lack of envelopes accompanying absentee ballots cast in person at the Election Board office was the crux of Circuit Judge Rex Burlison’s decision to call for a do-over election between Bruce Franks Jr. and Penny Hubbard in their Aug. 2 Democratic primary race for state representative.

Franks, the newcomer, received more votes on the day of the election but the large number of absentee ballots cast for incumbent Hubbard put her over the top. Franks sued for a new election, saying there were absentee ballot irregularities that could have affected the outcome of the election. In the do-over election on Sept. 16, Franks won by a 3-to-1 ratio.

A week after the election, an attorney for the Missouri Council of the Blind sent the Election Board a letter arguing that limiting voting to paper ballots was a violation of three federal laws, including the Americans with Disabilities Act.

According to federal law, polling places must have voting systems accessible to individuals with disabilities, including a nonvisual system for the blind. The voting system must provide an equal opportunity for voting in private without assistance.

“Since federal law supersedes state law … the rights ensured by these acts must be given effect,” said Ammann, who also is a law professor at St. Louis University.

Absentee voting began on Tuesday.

Rather than make electronic voting systems available for voters with disabilities, the St. Louis Election Board filed a motion on Wednesday asking the appeals court to modify its ruling.

“The Board respectfully suggests the following sentence: ‘This Opinion does not bar the use of touch-screen absentee ballot voting without the use of envelopes for persons who appear in person to vote absentee and who demonstrate that a disability prevents them from voting using a paper ballot but would be able to vote using a touch-screen voting machine,’” the motion said.

As a result, the appellate court did add a footnote to its Sept. 13 ruling, saying that “nothing in this opinion should be construed to prevent election authorities from complying with federal law.”

On Friday, Ammann said he filed his lawsuit because he wanted to get his clients a federal ruling that would apply statewide.

“By going to federal court we are really looking for direction for every county clerk in the state,” Ammann said.

In previous elections, the St. Louis County Board of Elections also failed to require that in-person absentee voters seal their ballots in envelopes. But now officials with the county board say they, too, must abide by the appeals court ruling. As a result, board employees will have to remove an additional 40,000 ballots from envelopes on election day, as detailed in a Post-Dispatch story on Monday.

However, the county board has made touch-screen voting and audio ballots available for in-person absentee voters with disabilities. Those voters are the only ones who can vote absentee without envelopes in the county.

Eric Fey, the county election board’s democratic director, estimates that more than 2,500 in-person absentee voters with disabilities would benefit from the use of touch-screen voting, according to a declaration filed with the lawsuit.

Voting irregularities were detailed in a Post-Dispatch investigation Aug. 31. Secretary of State Jason Kander called the findings “very troubling,” and the problems highlighted are part of an investigation by Circuit Attorney Jennifer Joyce’s office.

Stephen Deere is a reporter for the St. Louis Post-Dispatch.