The following is a guest post from Michael Waterstone:
Thanks to Dan and Rick for inviting me to post on the recent opinion in AAPD v. Harris. As Dan notes, the wheels of justice have moved slowly on this case. The original district court opinion (from 2004) is in an earlier edition of my disability law casebook. It held that voting machines requiring voters with visual impairments to vote with third-party assistance violated Title II of the ADA. The Eleventh Circuit previously reversed the district court, holding that plaintiffs did not have a private right of action to enforce the ADA. This decision holds that voting machines are not a facility and therefore are not covered by one of the regulations implementing Title II of the ADA.
Plaintiffs made three specific claims under the ADA. This first is premised on the actual language of the statute. Title II of the ADA (the operative title here) 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.” Plaintiffs’ argument is that inaccessible machines prevent them from participating in voting (a public program) in the same manner as citizens without disabilities.
Plaintiffs’ next two claims were based more specifically on the ADA’s implementing regulations. The second claim, brought under the “effective communication” regulation, argues that visually impaired voters are unable to communicate as effectively as non-disabled voters and were not provided auxiliary aids that allowed them an equal opportunity to participate in and enjoy he benefits of the program of voting. The district court here – as other courts had done – rejected this argument, reasoning that third-party assistance is adequate.
Plaintiffs’ third claim was brought under Title II’s “facilities” regulation, which provides that facilities altered after the effective date of the ADA need to be readily accessible and usable to individuals with disabilities to the maximum extent feasible. Defendants violated the ADA because it was feasible to purchase accessible voting machines. The district court accepted this argument, holding that voting equipment “plainly falls within the expansive definition of facility contained in the regulations.” The Eleventh Circuit here disagreed, reasoning that voting machines are not facilities within the meaning of the regulations.
I think this is wrong, and represents a cramped view of the term “facility,” despite the practice of the various courts of appeals (and the US Supreme Court) of taking a broad view of “programs, services, and activity,” the umbrella statutory provision to which the “facilities” regulation helps provide context. The regulation includes “equipment” or “personal property” in the definition of facility, which, without a great leap of logic, could and should apply to voting machines. And the opinion takes language from cases and regulatory guidances describing items which have been held to be facilities (call boxes, ATM’s, ticket vending machines) and reasons by analogy that voting machines are not facilities. So, because call boxes were “presumably affixed to either a pole or the side of a building” and voting machines are not so affixed, voting machines are not facilities. This is not persuasive.
That said, as I have written elsewhere, I believe that inaccessible voting machines violate the statute itself, and that one need not resort to the regulations to find an ADA violation. Secret and independent voting is an important value; the Florida constitution recognizes this by requiring that voting machines must enable voters to cast a direct and secret vote. Yet because Florida election officials choose to purchase inaccessible machines, Florida citizens with disabilities are forced into a different – and worse – voting system, where they are required to vote with the assistance of third parties. This is prohibited discrimination: second class citizenship, especially in important civic acts, is exactly what the ADA was designed to eliminate. And the ADA is clear that “discrimination against individuals with disabilities persists in such critical areas as … voting.”
The Eleventh Circuit did not meaningfully consider plaintiff’s statutory argument. In a footnote, it agreed with the district court that “plaintiffs’ generic discrimination claim appears to be coterminous with this claim under [the regulations].” This is both unfortunate and incorrect, as it is entirely possible for voting machines to be discriminatory without falling within the ambit of any of the implementing regulations. Of course, if it had considered these statutory claims, given the spirit with which the court treated plaintiff’s regulatory claims, it may have held that the ADA does not require secret and independent voting for people with disabilities. It would not be the first court to do so. Courts presented with claims of inaccessible voting machines have held that plaintiffs sued an individual who did not have authority to make needed changes (Lightbourn v. County of El, Paso, Texas, 118 F.3d 421 (5th Cir. 1997); that the relevant state did not actually guarantee secret and independent voting to its citizens without disabilities (Nelson v. Miller, 170 F.3d 641 (6th Cir. 1991); or, most recently, explicitly held that the ADA does not require secret and independent voting. AAPD v. Shelley, 324 F.Supp.2d 1120 (2004).
In contrast, the Help America Vote Act does explicitly provide that individuals with disabilities are guaranteed the right to vote secretly and independently, in the same way as other citizens. But HAVA does not contain a private right of action and depends on federal enforcement (which has been underwhelming to date). Thus, those (like me) who believe in the importance of a secret and independent vote for all voters are in an unfortunate Catch-22: the statute that does contain a private right of action has been held not to guarantee this right, and the statute that does guarantee this right does not have a private right of action. If widely followed, this case will foreclose the only (up until now) regulatory basis on which inaccessible machines could be found violative of the ADA.