Daily Archives: February 13, 2020

Cortnay Cymrot, CLS ’21

The Supreme Court’s decision to deny a petition to review a recent Ninth Circuit ruling—affirming a blind man’s right to access Domino’s Pizza website and mobile app—opens the door for a flood of litigation targeting website and app accessibility.

In Robles v. Domino’s Pizza, the plaintiff alleged that, despite his use of common screen-reading software, he was unable to order food on Domino’s website and mobile app. He brought suit under the Americans with Disabilities Act (ADA), which requires that businesses serving as “places of public accommodation”—including restaurants—remove barriers to access for the disabled. Circuit courts are split on whether—and in what circumstances—the ADA applies to websites and mobile apps.[1]

Domino’s argued that, as the ADA does not explicitly address accessibility with regard to mobile apps and the internet, it applies only to physical spaces—not websites. The Ninth Circuit disagreed, focusing on the nexus between Domino’s website/app and its physical location to find the ADA violated. As the online inaccessibility impeded blind customers from accessing products sold at Dominos’ physical locations, the pizza chain fell short of federal disability requirements.

In declining to revisit the Ninth Circuit’s decision, the Supreme Court has put on alert all places of public accommodation that operate websites or mobile apps (read: the vast majority of such businesses).  The ruling is expected to cause these businesses to improve their website and app accessibility, ensuring they’re optimized to enable screen-reading software to read and vocalize all content. [2]

Disability advocates regard the Ninth Circuit’s decision—and the Supreme Court’s subsequent denial of the appeal—as a major win. As mobile apps and the internet are an increasingly integral part of the modern economy, a contrary decision threatened to further isolate the visually impaired (and others relying on accessibility tools).[3]

Yet some fear the decision will have a perverse impact on accessibility.[4] Many within the retail and restaurant industries filed amicus briefs backing Domino’s, stressing the “impossibility of guessing what accessibility means in the online environment.” The threat of litigation could lead such businesses to reduce or eliminate their online presence, rather than fronting the costs necessary to ensure full accessibility.

Federal courts have already seen an increasing number of lawsuits addressing website accessibility. Over 2200 such suits were filed in federal courts in 2018—nearly tripling the prior year’s figure.[5] The Ninth Circuit’s decision will likely give rise to an escalation of this trend, emboldening plaintiffs to bring suit against inaccessible online businesses on a much larger scale.

[1] Alexis Kramer, Supreme Court Won’t Hear Domino’s Pizza Website Access Dispute, Bloomberg Law (Oct. 7, 2019), https://news.bloomberglaw.com/tech-and-telecom-law/supreme-court-wont-hear-dominos-pizza-website-access-dispute.

[2] Steven Melendez, Domino’s Pizza Was Just Dealt a Supreme Court Blow That Could Reshape the ADA in the Digital Era, Fast Company (Oct. 7, 2019), https://www.fastcompany.com/90414147/dominos-pizza-dealt-scotus-blow-that-could-affect-ada.

[3] Richard Supple, Domino’s Wants to Slice Away at the Americans With Disabilities Act (Sept. 30, 2019), https://slate.com/technology/2019/09/supreme-court-dominos-web-accessibility-visually-impaired.html.

[4] Stephanie Condon, Supreme Court Lets Blind Man Sue Domino’s Over Website Accessibility, ZDNet (Oct. 7, 2019), https://www.zdnet.com/article/supreme-court-lets-blind-man-sue-dominos-over-website-accessibility.

[5] Tucker Higgins, Supreme Court Hands Victory to Blind Man Who Sued Domino’s Over Site Accessibility, CNBC (Oct. 7, 2019), https://www.cnbc.com/2019/10/07/dominos-supreme-court.html.

Abigail Kertzman, CLS ’21

On November 15, the District Court for the Northern District of Florida struck down a Florida election law mandating that candidates in the same party as the current Governor be listed first on ballots.[1] The challengers to the law claimed that this rule gave the Governor’s party (currently in Florida, Republicans) an unfair and unconstitutional advantage.

To analyze whether the law was in fact unconstitutional, the court applied the Anderson/Burdick standard which weighs the character and magnitude of the burden on the plaintiffs’ First and Fourteenth Amendment rights against the legitimacy and necessity of the interests the State expresses to justify the burden.[2] Under this framework, the Court then considers the magnitude of the burden in order to determine which level of scrutiny to apply.[3]

In assessing the Plaintiff’s injury, the court explored the existence and potential impact of the primacy effect – the theory that voters are more likely to vote for the first candidate on a ballot. Judge Mark E. Walker relied heavily on the testimony of two Plaintiff’s experts who testified that scholarship on ballot ordering indicates that a candidate listed first likely receives an advantage of three[4] to five[5] percentage points. The court noted that this may seem like a “relatively small percentage taken in isolation, but the records of Florida’s elections which are before this Court demonstrate it is more than the margin of victory or defeat in a great many elections.”[6] Accordingly, the court held that the law was discriminatory because it gave candidates “a statistically significant advantage in that election, conferred by the primacy effect; and it does so on the explicit basis of the candidates’ party affiliation.”[7]

In weighing the State’s interests to justify this burden, the court considered Florida’s expressed interests of ballot uniformity and preventing voter confusion.[8] While the court did agree that the State had some legitimate interests, it found that the evidence linking the current ballot ordering scheme to those interests was weak.[9] The court decided that the burdens imposed by this scheme merited a level of review between rational basis and strict scrutiny. The court held that Florida’s law did not satisfy this level of review, opining in dicta that it would not even hold up to rational-basis review, and thus found that the law violated the First and Fourteenth Amendments. [10] As Judge Walker wrote, “[i]n our democracy there are no head starts.”[11]

Florida Secretary of State Laurel Lee says that the State will comply with the order to devise a new rule for ordering candidates while seeking to appeal.[12]

Multiple states, including New York, have similar laws that now may face similar challenges.[13] Earlier in the month, Democratic organizations filed such challenges in Texas, Arizona, and Georgia – three states which have a similar history of close elections results as Florida.[14] While the results of any potential appeal remain to be seen, Democrats may see Judge Walker’s opinion as an open door to continue challenging state ballot rules that can be perceived as giving any slight advantage to one party.

[1] Jacobson. v. Lee, No. 4:18cv262-MW/CAS (N.D. Fla. Nov. 15, 2019).

[2] Id. at 27.

[3] Id. at 60.

[4] Id. at 39.

[5] Id. at 33.

[6] Id. at 48.

[7] Id. at 49.

[8] Id. at 51.

[9] Id. at 60.

[10] Id. at 64.

[11] Id. at 26.

[12] Lori Rozsa, Federal judge declares Florida ballots unconstitutional, orders change, Washington Post (Nov. 15, 2019), https://www.washingtonpost.com/politics/federal-judge-declares-florida-ballots-unconstitutional-orders-change/2019/11/15/0b91dc0a-0810-11ea-924a-28d87132c7ec_story.html.

[13] N.Y. Elec. Law § 7-116 (McKinney).

[14] Colby Itkowitz, Democrats sue three battleground states over law that GOP candidates’ names be listed first on ballot, Washington Post (Nov 1, 2019), https://www.washingtonpost.com/politics/democrats-sue-three-battleground-states-over-law-that-gop-candidates-names-be-listed-first-on-ballot/2019/11/01/b62c8f44-fcc0-11e9-8906-ab6b60de9124_story.html.