An 11th Circuit panel has issued this opinion in AAPD v. Harris — yes, that’s Katherine Harris — an almost ten-year old case alleging that Florida’s voting machines aren’t sufficiently accessible to people with disabilities. In so doing, the panel withdrew an opinion issued last year, which rejected plaintiffs’ claim on the ground that they lacked a private right of action to enforce the Americans with Disabilities Act regulations. (I’ve discussed the thorny question of when election-related federal laws are privately enforceable in this article.)
The new opinion, written by Judge Tjoflat after a petition for rehearing, reaches the same result for an entirely different reason. The panel abandons the private-right-of-action rationale, instead holding that voting machines aren’t a facility and therefore aren’t covered by the regulation implementing Title II of the ADA, the basis for the only remaining claim. The opinion reasons: “[T]he ‘facilities’ at issue in [the regulation] are permanent, physical structures, and those objects affixed to that physical structure. Voting machines, which are wheeled into—and out of—voting precincts on election day, do not fall under this umbrella.”
I’m curious about ADA experts’ views on the Eleventh Circuit’s reasoning or its significance for future voting access cases.
Update: Doug Chapin has more in this post.