IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
HARRISONBURG DIVISION

Press Release

CONSENT DECREE

I. BACKGROUND

A. Introduction

1. This Consent Decree is agreed to by and between Plaintiff United States of America and Defendant Augusta County, Virginia. The term “Augusta County,” as used in this Decree, shall include the Augusta County Board of Supervisors and the Augusta County Electoral Board, all of each board’s members, officers, employees, contractors, successors, assigns, and administrative personnel; and any other person under the authority or control of Augusta County.
2. The United States brought this civil action, following an investigation, to enforce Title II of the Americans with Disabilities Act of 1990, as amended (“Title II” and “ADA”), 42 U.S.C. §§ 12131-12134, and the Title II implementing regulation, 28 C.F.R. pt. 35 (“Title II regulation”).
3. The United States alleges that Augusta County has discriminated, and continues to discriminate, on the basis of disability, by failing to provide physically accessible polling places to people with mobility and vision disabilities, as required by Title II and the Title II regulation. The United States found that at least 21 of Augusta County's 25 polling places contained architectural barriers such as excessively sloped parking areas, narrow doorways, steep ramps, protruding objects, and inaccessible doorknobs that rendered the facilities inaccessible to voters with disabilities. Augusta County cooperated with the United States in the course of its investigation.

B. Jurisdiction

4. Individuals with mobility impairments have disabilities within the meaning of the ADA because mobility impairments are physical impairments that substantially limit one or more major life activities of such individuals, including walking. Individuals with vision impairments have disabilities within the meaning of the ADA because vision impairments are physical impairments that substantially limit one or more major life activities of such individuals, including seeing. 42 U.S.C. § 12102(2).
5. Augusta County is a “public entity” within the meaning of the ADA, 42 U.S.C. § 12131(1) and 28 C.F.R. § 35.104, and is therefore subject to Title II of the ADA, 42 U.S.C. §§ 12131 – 12134, and its implementing regulation, 28 C.F.R. pt. 35.
6. Augusta County operates services, programs, and activities within the meaning of Title II, including operating a voting program for federal, state, and local elections for which it selects the sites used as polling places in those elections.
7. This Court has jurisdiction over this action under Title II of the ADA, 42 U.S.C. § 12133, and under 28 U.S.C. §§ 1331 and 1345 because the action involves claims arising under federal law.  The Court may grant the relief sought in this action pursuant to 28 U.S.C. §§ 2201-2202. The parties agree that venue is appropriate pursuant to 28 U.S.C. § 1391.

C. Consent of the Parties

8. The Parties agree that it is in their mutual interest, and the United States believes that it is in the public interest, to resolve this lawsuit on mutually agreeable terms without further litigation. Accordingly, the Parties agree to entry of this Consent Decree.

It is hereby ADJUDGED, ORDERED, and DECREED:

II. NONDISCRIMINATION REQUIREMENTS

A. Accessible Voting Program

9. Augusta County shall not exclude individuals with disabilities from participation in or deny them the benefits of the voting program, or subject them to discrimination, on the basis of disability. 42 U.S.C. § 12132, 28 C.F.R. §§ 35.130(a), 35.149.
10. Augusta County shall select facilities to be used as polling places that do not exclude individuals with disabilities from or deny them the benefits of the polling place, or otherwise subject them to discrimination. 42 U.S.C. § 12132; 28 C.F.R. § 35.130(b)(4).
11. Augusta County shall administer its voting program in the most integrated setting appropriate to the needs of persons with disabilities. 28 C.F.R. § 35.130(d).

III. ACTIONS TO REMEDY NONCOMPLIANCE WITH TITLE II

A. Implementing An Accessible Voting Program

12. For all elections beginning with the March 2016 election, Augusta County will implement the agreed upon measures to remediate the violations at polling places as identified in the remediation plan attached hereto as Attachment 1 and incorporated herewith by reference,to make those polling place locations temporarily accessible on Election Day, or will relocate those locations to an alternative accessible location pursuant to the process established in Paragraphs 21-22 of this Consent Decree.  If remediation or relocation to an accessible facility is impossible, as agreed to by the United States, then the County agrees to comply with Title II's program accessibility requirements.
13. Nothing in this Consent Decree limits Augusta County from making ADA-compliant, permanent modifications to its polling place locations instead of providing temporary remedial measures or relocating a polling place location.
14. Augusta County has retained an architect to address remediation of the violations at the polling place at the Augusta County Government Center; within ninety (90) days of the Effective Date of this Consent Decree, the County shall forward to the United States its plan of remediation for review and approval. Augusta County shall incorporate in its remediation plan any changes, additions, or modifications proposed by the United States. Upon receiving approval of its plan by the United States, Augusta County will take such actions as are necessary to implement and complete the remediation plan no later than the November election of 2016.
15. Beginning with the Effective Date of this Consent Decree, for all polling place locations that will be used in the March 2016 election that were not surveyed fully by the United States (listed on Attachment 2), Augusta County will conduct a survey, using the survey instrument (including photographs) referenced in Paragraph 20 of this Consent Decree. Augusta County will provide these surveys to the United States, with all surveys to be completed no later than 180 days after the Effective Date of this Consent Decree. If the United States disputes the accuracy of a survey, then Augusta County will re-survey the portions in question. If the United States concludes that Augusta County has proposed a remedial provision that does not fully address the barrier to accessibility, then Augusta County will propose and implement, subject to the review and approval of the United States, a remedial measure consistent with Paragraph 19 of this Consent Decree.
16. Augusta County will implement the appropriate remedial provisions to make the polling place locations identified in Attachment 2 accessible on Election Day in the elections following the review and approval of the survey by the United States. If Augusta County chooses not to or is unable to implement one or more of the remedial provisions to make a polling place location accessible on Election Day, it will relocate the inaccessible polling place location to an accessible polling place location selected pursuant to the process established by Paragraphs 21-22 of this Consent Decree.  If remediation or relocation to an accessible facility is impossible, as agreed to by the United States, then the County agrees to comply with Title II's program accessibility requirements.
17. Augusta County shall maintain in operable working condition on Election Day those features of facilities and equipment (including, but not limited to, permanent equipment such as lifts and elevators and temporary equipment such as portable ramps, traffic cones, signs, wedges, and door stops) that are required to make polling places accessible to and usable by persons with disabilities.28 C.F.R. § 35.133(a).If circumstances arise such that a polling place location that was previously accessible is no longer accessible because a feature of the facility or equipment is no longer operable, then Augusta County shall purchase new equipment or relocate the polling place to an alternative, accessible location pursuant to the process established in Paragraphs 21-22 of this Consent Decree.  If remediation or relocation to an accessible facility is impossible, as agreed to by the United States, then the County agrees to comply with Title II's program accessibility requirements.
18. Augusta County will cooperate fully with the United States' efforts to monitor compliance with this Consent Decree, including but not limited to, providing the United States with timely access to polling places (including on Election Day), maps, surveys, and other requested information.
19. Augusta County agrees that the following measures are reasonable and will be implemented where necessary to make an otherwise inaccessible polling place temporarily accessible on Election Day. The list of measures is not exhaustive; Augusta County may propose other reasonable temporary measures subject to the review and approval of the United States.
1. Portable ramps (including curb ramps) up to and including ramps six feet long, with side edge protection.
2. Portable wedges or wedge ramps.
3. Floor mats.
4. Traffic Cones.
5. Relocating furniture or other moveable barriers.
6. Door stops.
7. Propping open doors.
8. Unlocking doors.
9. Signage, including parking signage.
10. Portable buzzers or door bells.
11. Removing astragals that are not a permanent part of the structure from doorways.

B. Polling Place Site Selection Process

20. Augusta County will develop a survey instrument to assess whether a polling place location is or can be made temporarily accessible on Election Day. The survey instrument will be based on the 2010 ADA Standards for Accessible Design and the United States’ “ADA Checklist for Polling Places” publication. The survey instrument will include a requirement to include photographs and will also require the identification of appropriate remedial provisions, including the remedial provisions in Paragraph 19 of this Consent Decree. The survey instrument will be submitted to the United States for review and approval within 90 days of the Effective Date of this Consent Decree. Augusta County shall incorporate in its survey instrument any changes, additions, or modifications proposed by the United States.
21. It shall be the policy and practice of Augusta County each newly proposed polling place location to determine whether it is accessible to persons with disabilities or could be made temporarily accessible on the remedial measures provided for in Paragraph 19 of this Consent Decree, Augusta County's selection of the location as a polling place. Augusta County shall use the survey instrument referenced in Paragraph 20 of this Consent Decree to make all future polling place location selections. If Augusta County ultimately determines that a newly proposed location is inaccessible (as defined by the survey instrument) and cannot be made temporarily accessible on Election Day, then Augusta County will reject the location and continue searching until an accessible location or one that can be made temporarily accessible on Election Day can be found.
22. For the duration of this Consent Decree, when Augusta County selects a new polling place location, Augusta County will provide the United States notice within twenty-one (21) days of the decision. Augusta County will provide the United States with copies of all surveys (and photographs) conducted within twenty-one (21) days of the decision to use the location as a polling place. The United States' approval must be obtained prior to the location being used in an election. The United States' approval will be based exclusively on whether the proposed polling place location satisfies the survey instrument referenced in Paragraph 20.
23. If Augusta County finds that it cannot implement a previously agreed to or approved remedial provision regarding a specific polling place location, Augusta County will immediately notify the United States and, upon request, meet and confer with the United States. If the issue cannot be resolved to the United States' satisfaction, Augusta County will relocate the polling place location to an alternative accessible location pursuant to the process established by Paragraphs 21-22 of this Consent Decree.

C. Training

24. Prior to each election during the term of this Consent Decree, as part of its training program for election officials and poll workers, Augusta County will provide training concerning temporary remedial measures, including: (a) why such measures are necessary; (b) how the measures must be implemented (e.g., how to install ramps, the placement of mats over (and not in front of) thresholds); and (c) a description of the role of Augusta County's Election Day Surveyors (EDSs), as set forth in Paragraph 29 of this Consent Decree, and the need to follow the instructions of the EDSs regarding the implementation of temporary measures on Election Day.
25. Augusta County will request that all election officials who attend a training session, and who will be assigned to a polling place location that includes one or more temporary remedies, sign a form in which they are asked to swear or affirm that in performing Election Day duties the election official will make sure that all temporary measures at their polling place location be installed where instructed, be in place before the opening of the polls, and be maintained in place until the polling place closes to provide independent access to voters with disabilities.
26. After the March 2016 election, and for each election thereafter, Augusta County will identify at each training session each election official in attendance whose polling place was the subject of a report from the previous election indicating that a temporary modification was not implemented properly, and will explain the noncompliance and what must be done to remedy the identified issue(s) on Election Day. The election official will be asked to initial the noncompliance report.
27. Prior to each election during the term of this Consent Decree, Augusta County will provide training to all EDSs designated pursuant to Paragraph 29 of this Consent Decree. The training of the EDSs will address: (a) temporary measures, including why they are needed and how the measures must be implemented (e.g., how to install ramps, the placement of mats over (and not in front of) thresholds); (b) how to resolve errors in the implementation of temporary measures on Election Day; (c) how to document the implementation of temporary measures on Election Day using checklists or compliance review forms referenced in Paragraph 28; and (d) what the EDSs are required to do to implement the requirements of this Consent Decree.

D. Election Day Compliance Review

28. In the materials provided to each Election Official for Election Day, Augusta County will include a checklist of the temporary measures to be implemented on Election Day at each polling place location where such measures are required. The checklist should contain a place for a signature by the Election Official that he or she put the temporary measures in place and kept them in place throughout Election Day, from the opening of the polls to their closing, and should be returned to Augusta County along with other election materials. Copies of these checklists will be provided to the United States within ninety (90) days of the election.
29. Beginning with the March 2016 election, and for the duration of this Consent Decree, Augusta County will designate County personnel (or contractors) as EDSs to review compliance at the polling place locations where temporary measures are to be implemented on Election Day. Augusta County and the EDSs will use the checklist developed pursuant to Paragraph 28 of this Consent Decree to review compliance on Election Day. The EDSs will be required to document their compliance reviews (both compliant and non-compliant polling place locations) with photographs. After documenting a non-compliant polling place location, the EDSs shall remedy any non-compliant implementation of a temporary remedy when possible. Copies of these compliance reviews will be provided to the United States within ninety (90) days after the election.
30. If Augusta County does not properly implement the temporary remedial measures necessary at a particular polling place location on Election Day in two (2) consecutive elections, then Augusta County will no longer use the polling place location and will relocate it to an accessible location or one that can be made temporarily accessible on Election Day pursuant to Paragraphs 21-22 of this Consent Decree. If remediation or relocation to an accessible facility is impossible, as agreed to by the United States, then the County agrees to comply with Title II's program accessibility requirements.

IV. ENFORCEMENT, MONITORING, AND OTHER MISCELLANEOUS PROVISIONS

31. Delivery of Reporting Materials: All materials sent to the United States pursuant to this Consent Decree shall be sent by e-mail to elizabeth.johnson@usdoj.gov or to the following address by common carrier Federal Express, delivery prepaid: Chief, Disability Rights Section, Civil Rights Division, U.S. Department of Justice, 1425 New York Avenue, N.W., Fourth Floor, Washington, D.C. 20005. The cover letter shall include a subject line referencing Augusta County and DJ# 204-80-98.
32. Enforcement: The United States may review compliance with this Consent Decree at any time. If the United States believes that Augusta County has failed to comply in a timely manner with any requirement of this Consent Decree or that any requirement has been violated, the United States will notify Augusta County in writing and will attempt to resolve the issue in good faith. If the United States is unable to reach a satisfactory resolution of the issue within sixty (60) days of the date it notifies Augusta County, the United States may file a motion to enforce this Consent Decree or may seek any other appropriate relief.
33. Entire Agreement:  This Consent Decree and its attachments constitutes the entire agreement between the United States and Augusta County on the matters raised herein and no other statement or promise, written or oral, made by any party or agents of any party, that is not contained in this written Consent Decree, including its attachments, shall be enforceable.
34. Severability:  If any term of this Consent Decree is determined by any court to be unenforceable, the other terms of this Consent Decree shall nonetheless remain in full force and effect.
35. Non-Waiver: Failure by the United States to enforce any provisions or deadlines in this Consent Decree shall not be construed as a waiver of the right of the United States to enforce any deadlines or provisions of this Consent Decree.
36. Effective Date: The Effective Date of this Consent Decree (“Effective Date”) is the date of entry by the Court after the signatures of all Parties have been obtained.
37. Limitation: This Consent Decree is limited to resolving claims under Title II of the ADA related to the facts specifically set forth in Paragraph 3 above concerning physical accessibility of polling places. Nothing in this Consent Decree relates to other provisions of the ADA or affects Augusta County's obligations to comply with any other federal, state, or local statutory, administrative, regulatory, or common law obligation, including those relating to nondiscrimination against individuals with disabilities.
38. Retention of Jurisdiction:  The Court shall retain continuing jurisdiction for the duration of the Consent Decree to enforce the terms of the Consent Decree.  The United States may apply to the Court for such further orders as may be necessary for, or consistent with, the enforcement of this Consent Decree.
39. Extensions: Any time limits for performance imposed by this Consent Decree may be extended only by the mutual written consent of the Parties.
40. Fees and Costs: Each of the Parties to this litigation will bear its own costs and attorney's fees associated with this litigation.
41. Successor Liability: This Consent Decree is final and binding on Augusta County as defined herein, including any successor members of the Board of Supervisors or Electoral Board.
42. Authority: The individuals signing this Consent Decree represent that they are authorized to do so on behalf of the respective entity for which they have signed.
43. Term: This Consent Decree shall remain in effect for a term of five (5) years from its Effective Date. The term of this Consent Decree may be extended by mutual written consent of the Parties.

SO ORDERED this 20th day of January, 2016

Signatures indicating agreement to entry of this Consent Decree:

LORETTA E. LYNCH
Attorney General of the United States