---

May 13, 2015

 

VIA FEDERAL EXPRESS

The Honorable Ruth C. Talmage
Chairman, Augusta County Electoral Board
Augusta County Government Center
18 Government Center Lane
P.O. Box 590 
Verona, VA  24482

Re: Investigation of Augusta County Regarding Polling Place Accessibility, DJ No. 204-80-98

Dear Ms. Talmage: 

We write concerning the Department of Justice’s investigation of Augusta County’s voting program under Title II of the Americans with Disabilities Act of 1990, as amended, 42 U.S.C. §§ 12131-12134 (ADA), and the Department of Justice’s implementing regulation, 28 C.F.R. Part 35.  Title II prohibits discrimination against qualified individuals with disabilities by public entities, such as Augusta County.  The investigation focused on the physical accessibility of polling places for persons with mobility disabilities and persons with vision disabilities.  In the course of the investigation, the Department met with County officials, reviewed information provided by the County, and surveyed all 25 polling places used by the County in 2013.  We appreciate the cooperation we received from Augusta County while conducting our investigation.

The Department finds that the County is in violation of Title II by denying voters with disabilities an equal opportunity to participate in the County’s voting programs, services, and activities, including by failing to select facilities to be used as polling places that are accessible to persons with disabilities on Election Day.  Set forth below are the Department’s findings of fact and conclusions of law, as well as the minimum steps the County must take to meet its legal obligations and remedy the violations the Department has identified.

I.  Background and Findings of Fact

Based on a citizen’s complaint that polling places were not accessible, we initiated an investigation of the accessibility of the County’s polling places for persons with disabilities.  In addition to voting in person on Election Day at an assigned polling place, voters may alternatively vote by absentee ballot by mail, in person prior to Election Day at the Office of Voter Registration¹, or curbside on Election Day at an assigned polling place.  The Department’s investigation of this matter included the review of information provided by the County and site visits to the 25 facilities used by the County as polling places in the 2013 elections.  Based on our review, the Department finds that many polling place locations selected by the County and used for Election Day were not physically accessible to persons with disabilities; of these, many but not all can be made temporarily accessible on Election Day if the County implements appropriate measures.

We conducted our surveys on July 1-2, 2013, at which time no election was taking place.  For the majority of the surveys, we were accompanied by you, the County Attorney, and the other Electoral Board members.  In conducting the surveys, we relied on the Department’s ADA Checklist for Polling Places;² the 1991 ADA Standards for Accessible Design (1991 ADA Standards), 28 C.F.R. Part 36, App. D; and the 2010 ADA Standards for Accessible Design (2010 Standards), 28 C.F.R. § 35.104.³  In assessing ADA compliance in this matter, we used the 1991 Standards and the 2010 Standards, as appropriate.  In order to remedy the non-compliant elements, however, the County must use the 2010 Standards as a guide.

In conducting our surveys, we did not review every architectural element at a polling place.  We surveyed only those elements necessary to conduct the County’s voting program.  We looked at off-street parking, if provided; the route from the parking or the street to the building entrance; the building entrance; the route to the voting area; and the voting area.⁴  We did not survey each facility to determine if it as a whole is compliant with either Title II or Title III of the ADA; we assessed only whether each facility would be accessible on Election Day.  We also accepted the County’s statement that it implements certain temporary remedial measures at polling place locations and did not identify those barriers as violations.  For example, at a number of polling places, there are doorknobs on entry doors that do not comply with the ADA Standards, but the County informed us that it uses doorknob adapters on Election Day to temporarily remediate the non-compliant knobs.  Additionally, our survey of the parking area was limited as we did not assess whether the parking area included the required number of accessible parking spaces overall; instead we assessed whether the parking area at a polling place had a minimum of one van accessible parking space.  We leave the complete review of parking to the County to determine whether it is in compliance with the 2010 Standards (Sections 208 and 502). 

Of the County’s 25 facilities, only four were accessible for use as polling places.  Attachment A lists these accessible facilities.  Of the remaining 21 facilities, we found that 19 were not accessible for use as polling places, but had non-compliant elements that could be remedied with temporary measures so that the polling place would be accessible on Election Day, if the County implements the appropriate measures.  Attachment B lists these non-compliant but temporarily remediable facilities, along with the ADA Standards the County must meet in order to remediate each non-complying element and make the polling place accessible on Election Day.

The remaining two facilities surveyed, the Augusta County Government Center and the Crimora United Methodist Church, were not accessible for use as polling places, and cannot be made accessible on Election Day through the use of temporary measures.  Permanent, architectural modifications would be needed to make these facilities accessible to persons with disabilities.  Because the County Government Center houses a large number of County programs in addition to voter registration and serving as a polling place, it should be made accessible through permanent modifications.  With regard to the Crimora United Methodist Church, unless the County intends to make the necessary permanent modifications, this polling place must be relocated to an accessible location.  Attachment C describes the non-complying elements of these two facilities.

II.  Conclusions of Law and Recommended Remedial Measures

Under Title II of the ADA, individuals may not, on the basis of 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 a public entity.  42 U.S.C. § 12132, 28 C.F.R. § 35.130(a).  The Title II regulation, set out at 28 C.F.R. Part 35, reflects and implements the statute’s broad nondiscrimination mandate.  42 U.S.C. § 12134 (directing the Attorney General to promulgate regulations).  Under Title II and its implementing regulation, a public entity, in providing any aid, benefit, or service, may not afford qualified individuals with a disability an opportunity to participate in or benefit from the aid, benefit, or service that is not equal to that afforded to others, nor can the entity otherwise limit such individuals in the enjoyment of any right, privilege, advantage, or opportunity enjoyed by others receiving the aid, benefit, or service.  See 28 C.F.R. § 35.130(b)(1). 

A public entity’s obligations with respect to selection of sites or facilities in which to provide programs, services, or activities is explicitly addressed in the Title II regulation at 28 C.F.R. § 35.130(b)(4), and provides, in part:

A public entity may not, in determining the site or location of a facility, make selections—

(i) That have the effect of excluding individuals with disabilities from, denying them the benefits of, or otherwise subjecting them to discrimination.

Id.  The Title II regulation also requires the County to administer its services, programs, and activities in the most integrated setting appropriate to the needs of persons with disabilities. Id. § 35.130(d).  “[T]he most integrated setting appropriate” is “a setting that enables individuals with disabilities to interact with non-disabled persons to the fullest extent possible.”  28 C.F.R. pt. 35, app. B (analysis of § 35.130).

Applying the above, the County must ensure that qualified individuals with disabilities can fully participate in and benefit from the County’s voting programs, services, and activities.  With respect to polling place selection, Title II’s site selection regulation prohibits the County from selecting sites for Election Day Voting that have the effect of excluding individuals with disabilities from, denying them the benefits of, or otherwise subjecting them to discrimination.  Thus, in order to afford individuals with disabilities the opportunity to vote alongside their neighbors at their local precinct and with the same ease and convenience offered to nondisabled voters, the County must select polling places that are or can be made accessible to voters with disabilities.  Voting is a fundamental right and the hallmark of our democracy, and voters with disabilities should have an equal opportunity to cast a ballot in person on Election Day alongside their friends and neighbors.

In the rare circumstances that the County is unable to select an accessible facility (or one that can be made temporarily accessible) to be used as a polling place in a particular voting precinct, then the Program Accessibility provisions of the Title II regulation would apply to the County’s voting program.  See 28 C.F.R. Part 35, Subpart D.  These provisions prohibit a public entity from excluding or discriminating against individuals with disabilities because a facility is inaccessible.  Id. § 35.149.  In such instances, public entities must operate each program, service, or activity so that, when viewed in its entirety, it is readily accessible to and usable by persons with disabilities, unless doing so would result in a fundamental alteration in the nature of the service, program or activity or in undue financial and administrative burdens.  Id. at § 35.150(a).  When choosing among available methods for meeting program accessibility requirements, a public entity must give priority to those methods that offer services, programs, and activities to individuals with disabilities in the most integrated setting appropriate.  Id. at § 35.150(b)(1). 

Given the architectural barriers at the County’s polling places, as summarized above and listed in Attachments B and C, the Department finds that the County violated Title II by failing to select facilities to be used as polling places that are accessible (either permanently or through temporary measures) to persons with disabilities on Election Day.  The County has provided no information to indicate that there were no accessible facilities that could serve as polling places in the voting precincts at issue, and therefore Title II’s Program Accessibility provisions are inapplicable.  We thus conclude that the County’s use of inaccessible facilities as polling places discriminates against voters with disabilities and denies them the opportunity to participate in the County’s voting programs, services, and activities in the most integrated setting appropriate, i.e., at their designated polling place and alongside their fellow citizens.

To comply with Title II of the ADA and ensure that individuals with disabilities have an equal opportunity to participate in the County’s voting programs, services, and activities, the County must, at a minimum, remediate the non-compliant elements identified by the Department.  As summarized above, Attachment B to this letter specifies the accessibility barriers found that can be remedied with temporary measures, if the County appropriately implements such measures, along with the ADA Standards the County must meet in order to remedy each non-complying element and to make the polling place accessible on Election Day.  Attachment C identifies the two polling places that cannot be made accessible through temporary measures.  The County must relocate the polling place at Crimora United Methodist Church to a facility that is or can be made accessible to individuals with disabilities.  The County must make permanent, architectural modifications to the County Government Center to make it accessible to individuals with disabilities.  In addition, the County must assess the interior of four County polling places not surveyed by the Department (identified on Attachments A and B) and determine whether temporary measures or relocation to alternative accessible sites are necessary to bring all of the County’s polling places into compliance with Title II. 

  III.  Conclusion

We hope to work with you and other officials in an amicable and cooperative fashion to resolve our outstanding concerns with respect to the County’s voting programs, services, and activities.  The Department prefers to resolve this matter cooperatively through an agreed court-enforceable resolution to bring the County into compliance with the ADA.  In the event that the United States is unable to reach such a resolution, it may take appropriate action, including initiating a contested civil action. See 42 U.S.C. § 12133-34; 42 U.S.C. § 2000d-1.  Please contact Elizabeth Johnson, at 202-307-3543, by May 27, 2015,if you are willing to resolve this matter in a manner that will bring the County into full compliance with Title II, or if you have any questions regarding this letter.⁵  

Sincerely,

/s/ Rebecca B. Bond

Rebecca B. Bond
Chief
Disability Rights Section

---