Despite the fact that the Americans with Disabilities Act of 1990 requires all polling places to be accessible to people with disabilities and the Help America Vote Act of 2002 mandates that all Americans have the right to a private and independent vote, polling places and voting stations across the U.S. remain largely inaccessible.
In this report, Blocking the Ballot Box: Ending Misuse of the ADA to Close Polling Places, the National Disability Rights Network spoke to and visited counties with recent Department of Justice settlements for polling place accessibility. NDRN’s recommendations and suggestions are available in the conclusion section of this report.
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Dear Friends,
If you live in the United States, what are your rights? To this question, many of us might say the right to free speech, the right to petition government, the right to a free press, and the right to assemble. Or perhaps you would say the right to vote – the foundation of our democracy, the right on which all of these other rights depend.
As we have worked toward a more perfect union, the right to vote has evolved. The Fifteenth, Nineteenth, and Twenty-sixth Amendments to the United States Constitution have expanded the franchise, as legislation like the Voting Rights Act and the Help America Vote Act were passed to protect it. Today, although we have come so far over the course of our history, our electoral system far from perfect.
Voters across the country are still being denied equal access to the ballot box and this includes voters with disabilities. Laws, such as the Voting Accessibility for the Elderly and Handicapped Act and the Americans with Disabilities Act, are in place to protect the rights of people with disabilities and their access to the vote. Yet jurisdictions make routine decisions every election cycle, knowingly or unknowingly, that prevent equal access on Election Day. Americans have fought too long and too hard to create a representative government in which everyone has a voice and a vote. We must do better.
This means that we must stop blaming people with disabilities and the laws that protect their rights. Over the course of recent elections, we have heard of counties and cities closing, relocating, or consolidating their polling places while unjustly invoking the historic civil rights provisions of the Americans with Disabilities Act. Many of these same jurisdictions have lamented being “targeted” by the U.S. Department of Justice when it rightly steps in to enforce federal disability rights law and to ensure equal access at polling places across the country.
The narrative simply cannot be to blame people with disabilities for, in fact, being victims of widespread failure to comply with the Americans with Disabilities Act. Instead, we must come together with dignity and respect to ensure all eligible voters the same opportunity to a private and independent vote. This change will not be easy. People with disabilities know this all too well, as proven by years of unequal access and denial of their civil rights, but it must happen.
People with disabilities have overcome tremendous odds to participate in elections, but they simply should not have to. People with disabilities will continue to have their voices heard on Election Day. They are a force in American politics. They cannot and will not be scared off from the ballot box as the U.S. strives for full realization of equal access.
Sincerely,
Curtis L. Decker, J.D.
Executive Director
For decades during American history, literacy tests, poll taxes, and other voter suppression tactics have restricted and prohibited the right to vote. More recently, polling place closures, strict photo identification laws, and purging of voter rolls have emerged as threats to the core of our democracy and have prevented voters from participating in their electoral system. Yet, Constitutional amendments and passage of sweeping voting rights laws have continually combatted barriers to the ballot box as they arise. People with disabilities have been impacted by every Constitutional amendment and piece of legislation related to voting, as disability lies within every community.
The Voting Rights Act of 1965
The Voting Rights Act (VRA) of 1965 prohibits known discriminatory practices, including literacy tests, and established federal preclearance as a proactive measure to prevent voter suppression. A historic achievement for the civil rights movement, the VRA is also likely the oldest legislation of its kind to include provisions for people with disabilities. Section 208 of the VRA provides that “any voter who requires assistance to vote by reason of blindness, disability, or inability to read or write may be given assistance by a person of the voter’s choice, other than the voter’s employer or agent of that employer or officer or agent of the voter’s union.”7
Section 5 of the VRA mandates that counties and cities with a history of discrimination report any changes in election administration to the DOJ and the U.S. District Court for the District of Columbia prior to making any changes, including closing or relocating polling places. Section 4 of the VRA includes a formula to determine which states or jurisdictions will be subject to federal preclearance. To many, federal preclearance under the VRA was an invaluable tool to ensure discrimination was stopped before it began.
The Voting Accessibility for the Elderly and Handicapped Act of 1984
Prior to 1984, polling places were not required to be physically accessible for people with disabilities or required to accommodate people with disabilities, even if it meant they could not vote because of it. However, when Congress passed the Voting Accessibility for the Elderly and Handicapped Act (VAEHA) in 1984, states were required to ensure accessible polling places during federal elections. The VAEHA sought to give people with disabilities the right to equal access to polling places six years before the passage of the Americans with Disabilities Act.8
The Americans with Disabilities Act of 1990
Although some improvements to polling place access were required by prior voting rights legislation, the ADA was the landmark civil rights legislation for people with disabilities, which includes provisions for voting.9 While the VAEHA allowed for alternative means to vote when those with disabilities were assigned to an inaccessible polling place, Title II of the ADA requires state and local governments to ensure that people with disabilities have a full and equal opportunity to vote. The ADA was the first piece of major legislation to require the equal treatment of people with disabilities by society. As George H.W. Bush famously stated when signing the ADA in 1990, “Let the shameful wall of exclusion finally come tumbling down.”10
ADA-Compliance at Polling Places
According to the DOJ, the five most common ADA violations at polling places over recent years include: 1.) Parking 2.) Sidewalks 3.) Entrances 4.) Hallways and 5.) The voting area itself.11 Understandably, these violations can be somewhat complicated. For example, simply paving a sloped parking lot or building a ramp that is too steep or not wide enough will not provide access. Public and private entities need to consider all elements of accessibility, including slopes, grades, and distances to make curb cuts, sidewalks, parking lots, passenger drop off areas, and other paths of travel usable and safe. In other words, the most well intended paved parking lots, ramps, or other accessibility changes can still be inaccessible if not in compliance with the ADA Accessibility Guidelines (ADAAG).12
PARKING
In order to ensure ADA-compliance of parking lots, election officials must refer to precise measurements and collect accurate data. The ADA provides requirements for access aisles – those areas where cars do not park and that allow enough space for an accessible vehicle’s ramp or lift to deploy for wheelchair access. Under the ADA, access aisles must be at least 60 inches wide for cars and 96 inches wide for vans. Access aisles typically feature diagonally striped lines or some way to indicate “no parking.” In addition, while a jurisdiction looking to affordably bring an unpaved parking lot into compliance may opt to pave only the accessible parking space, the parking space and access aisle itself must not have a significant slope and must be level with the rest of the parking area to prevent a wheelchair from falling backwards off the paved accessible space.
An accessible parking spot at a polling site in Virginia City, located in Storey County, Nevada. Photo courtesy of Nevada Disability Advocacy and Law Center.
All accessible parking spaces must include signs to ensure full ADA-compliance. A sign designating the accessible space for people with disabilities must be placed by every individual accessible parking space so that every driver knows the space can only be used by those with accessible parking license plates or tags, as determined by the state.
SIDEWALKS
Safe sidewalks are crucial for voters with disabilities to have equal access to their polling places. Sidewalks must be at least 36 inches wide and must not have level changes greater than half an inch. They also need to be maintained and repaired when needed. Good sidewalks make things easier for everyone. Not only do those who use wheelchairs, walkers, and canes greatly benefit from safe sidewalks, but those with strollers, or people with temporary disabilities (such as a cast and crutches for a broken leg) use them as well. It is required that curb ramps (curb cuts), the ramps that enable access on and off of sidewalks, not be too steep. Curb ramps are dangerous if they are too steep or lack flared sides and could in fact force a person with a disability into oncoming traffic if the ramp cannot be traversed successfully.
ENTRANCES
Kenneth Shiotani of NDRN measures the height of a curb drop off.
Polling place entrances must be ADA accessible as well to ensure equal access. No voter’s ability to access the ballot should depend on the kindness of strangers to hold a door open for a voter with a disability. All door openings must provide at least 32 inches clear width, and the door threshold should not exceed a half an inch in height and be beveled if more than one-quarter inch in height. As with parking and sidewalks, entrance areas must be level and should not slope steeply in any one direction. For example, a wheelchair user must be able to open the door with enough space to back up or maneuver and provide space for the door’s swing without being hit by the door, blocked from the doors opening, or rolling backwards. Additionally, the door handle itself must not require tight grasping, pinching, or twisting – such as a round knob. Rather, lever type door handles, which are operable with a closed fist, provide access to most people.
HALLWAYS
Hallways at polling places must provide an accessible route of at least 36 inches clear width. Hallways should not have any objects protruding the path of travel to the voting area itself at a polling place in order to accommodate different types of mobility devices, like wheelchairs. For example, wall-mounted objects such as water fountains should be mounted inside an alcove in the wall that prevents any protrusion. Otherwise, water fountains or other objects cannot extend more than 4 inches from the wall and cannot reduce the clear route and also should be detectable by a white cane used by those who are blind to navigate a path.
VOTING AREA
The voting area itself (i.e. start to finish path of travel from entering the area, to voting stations, to exiting the polling place) must provide an accessible route that is at least 36 inches wide. The floor surfaces in the voting area must also be flat and stable. Power cords for accessible voting and other devices must be covered or taped down to prevent tripping.
The National Voter Registration Act of 1993
The National Voter Registration Act (NVRA or Motor Voter Act) of 1993 made it easier for Americans to register to vote, including people with disabilities. For example, the Act requires states to offer voter registration opportunities at offices that provide public assistance and services to people with disabilities, such as Vocational Rehabilitation services and Independent Living Services.13
The Help America Vote Act of 2002
In 2002, Congress passed the Help America Vote Act (HAVA) with the goal to reform the voting process throughout the country and make it easier for all Americans to participate in democracy. HAVA mandates that voters with disabilities have the same opportunity to vote “privately and independently” by requiring that every polling place have at least one voting system that is accessible to people with disabilities.14 Accessible voting systems are typically either a direct recording electronic (DRE) voting system, which uses an electronic interface to cast and record votes electronically with or without a paper back up, or ballot marking devices (BMDs), that use an electronic interface to assist voters to mark selections on a paper ballot that is then cast.15
HAVA also established the U.S. Election Assistance Commission (EAC) as an independent, bipartisan federal commission to develop guidance and act as a clearinghouse of best practices to meet HAVA’s requirements, including access for voters with disabilities. Additionally, HAVA created the PAVA program as a direct charge to P&As to assist in HAVA’s implementation and ensure voter access for people with disabilities from registration to casting a ballot. PAVA is the first dedicated source of funding for advocacy for voters with disabilities.
Close examination of polling place closures reveals an alarming trend – the ability of states and local jurisdictions to close polling places at their leisure. For years, the federal preclearance provision of the VRA was the law of the land in states like Georgia, Arizona, Mississippi, and jurisdictions in Michigan, New York, North Carolina, and others. However, in 2013 the U.S. Supreme Court changed the course of history with a 5-4 ruling in Shelby County v. Holder by striking down the formula used to require preclearance as set forth in the VRA in any state or jurisdiction with a demonstrated history of discriminatory practices.38
Shelby County v. Holder
On June 25, 2013, the Supreme Court ruled that the “coverage formula” in Section 4(b) of the VRA was unconstitutional. The Supreme Court did not rule on the constitutionality of Section 5 itself, leaving a federal preclearance program intact. Yet, the coverage formula determined which jurisdictions were subject to preclearance under Section 5 of the law. When the Court struck down the primary avenue to determine which states required preclearance, it immediately freed jurisdictions with known discriminatory practices. Today, such jurisdictions no longer need to seek approval before enacting voting changes — including the closure, relocation, and consolidation of their polling places. As a result, the U.S. has seen a dramatic drop in the numbers of polling places across the country over the last few years.39
Polling Place Closures by the Numbers
In September 2019, the Leadership Conference on Civil and Human Rights reported that 1,688 polling places had closed in jurisdictions that were previously under the preclearance requirement of the VRA between 2012 and 2018.40
The U.S. EAC reported that election officials operated 116,990 polling places during the 2016 Election while they operated 119,968 polling places in 2012. The EAC credited this decrease to the expansion of alternative voting options such as absentee, early, and mail voting, as well as transition from traditional polling places to vote centers (a high-capacity polling place where any voter in the entire jurisdiction can choose to vote on Election Day).41
However, the EAC did report in the 2018 Midterm Election that 230,871 polling places were used, an increase from both 2012 and 2016.42 Yet, these figures do not highlight which jurisdictions closed their polling places, and those that increased the number of polling places in use. Essentially, the numbers do not always paint a full portrait of polling place closures in the U.S.43 To illustrate, while some jurisdictions may report a drastic drop in the number of polling places, raw data may not show that the state implemented mail-in balloting for all voters supplemented with a more limited number of voter centers. Additionally, these figures also do not describe the jurisdictions that relocated their polling places, potentially to the detriment of voter access. It is also important to note that jurisdictions self-report their information to the EAC, and the questions jurisdictions are asked to respond to have changed over the years. Qualitative data that tells the stories of these jurisdictions are the best way to truly understand where polling place closures are happening and why.
Polling Place Closures and Relocations: Blamed on the ADA
Alarmingly, recent polling place closures, consolidations, and relocations across the country are being unjustly blamed on the ADA. To be clear, the ADA should never be used as the impetus to close large numbers of polling places. Occasional consolidations or reasonable relocations may be necessary to bring a polling place that always should have been accessible to all into compliance with the ADA. For example, a polling place with a parking area and path of travel located on a steep hillside cannot be temporarily modified or reasonably afford to have the entire grounds leveled. In which case, the polling place may have to be moved to a more accessible location in the immediate vicinity. But ultimately, the way to make polling places accessible is not to close them; it is to make them accessible. The ADA is a civil rights law which mandates equality for all at the polls, and yet shockingly, it has been used in recent years to pit civil and voting rights allies against each other in the struggle for access to the ballot. Jurisdictions and election officials claim that because of the costs associated with making their polling places ADA-compliant, they are better off relocating the polling places, or worse, closing them altogether.
Title II of the ADA mandates that state and local governments do not deny participation in or the benefits of services, programs, or activities of state and local governments to any American, which includes voting in elections. Prior to the ADA, the VAEHA required that polling places also be accessible to people with disabilities dating all the way back to 1984. Essentially, mandating accessible polling places and equal access for voters has been required by law for 35 years. Clearly, given the abysmal rate of ADA-compliance among polling places, jurisdictions across the U.S. continue to act as if they do not need to follow the law.
Jurisdictions that raise their consciousness of ADA regulations and bring their electoral systems into compliance should be recognized for their efforts. Regardless, when a jurisdiction realizes they are not compliant with the law, it does not mean the “best” solution is to close a significant percentage of polling places. In most cases, low-cost permanent or temporary fixes can be made to existing polling places to prevent relocation, consolidation, or closure.
Randolph County, Georgia
The fact that the ADA can be weaponized to close polling places struck a national nerve in August 2018, when a rural county in southern Georgia announced plans to close seven out of only nine polling places in a majority Black community just three months before Election Day. The news of this announcement made national headlines including CNN44, Fox News,45 and the Washington Post.46
In 2018, Randolph County had a population of about 7,224 people across 428 square miles47 In August of that year, the county’s two-member Board of Elections hired a consultant to review the county’s polling places in the hope of saving money. As a result, the election consultant recommended closing all but two polling places, claiming that the seven in question were not ADA-compliant.
The election consultant, Mike Malone, said regarding Randolph County, “The trend in Georgia, and other states, is to reduce the polling places, to reduce election costs, which is natural.”48 Yet, this reasoning stands in direct contradiction to earlier claims of ADA-compliance. Malone failed to produce DOJ-issued ADA surveys of the polling places or any evidence of coordination with disability access experts in making these claims. Options for adapting inaccessible polling places were not considered publicly.
It is also important to acknowledge that in 2018, the state of Georgia was undergoing a heated, historic gubernatorial election with the state’s first-ever female African American candidate to run for governor, Stacy Abrams. Her opponent, Brian Kemp, was Georgia’s Secretary of State at the time — the state’s chief elections official.49 Former Congressman and co-author of the ADA, Tony Coelho commented on the proposed plan and said “[Malone] callously tried to use the ADA as a justification for closing polling locations entirely, which is a violation of the law I and others worked so hard to pass.”50
Following the events in Randolph County, many local and national disability organizations publicly opposed the proposal to close polling places because of ADA-compliance concerns.51 The ARC of Georgia said, “Too many polling places and voting technology throughout the country remain inaccessible. The solution, however, is not to shut down polling places, impacting access to polling places for registered voters with and without disabilities.” 52 Rev Up Georgia stated that the “decision to invoke the ADA to deny other groups’ access to the fundamental right to vote is a total misuse of the ADA and all that it stands for.” 53
Luckily, as a result of national bad press and local activism, Randolph County’s Election Board hastily voted to oppose closing the vast majority of its polling places. However in July 2019, the County announced plans to close three of the county’s polling places — arguing that it will save the county money.54 One article in the Atlanta Journal-Constitution reported “rather than spend tens of thousands of dollars to make precincts accessible to people with disabilities, the county will save roughly $4,500 per election by closing those polling places.”55 Yet, the county has not explained how these costs were calculated or demonstrated any consultation from the disability community.
Randolph County might have been the one jurisdiction that made national news, but it is far from the only county to attempt to or successfully use the ADA as a tool to close polling places.
Toombs County, Habersham County, and Lumpkin County, Georgia
In late 2014, Habersham County opted to consolidate 14 of its polling places into two, stating that the consolidation was because their existing polling places were not ADA-compliant.56In 2015, Toombs County closed nine of its polling places claiming the county would save close to $200,000 by not making their existing polling places accessible to people with disabilities.57 In 2016, Reuters reported that officials in Lumpkin County consolidated seven out of its eight polling places, in order to make themselves ADA-compliant as well.58
Pearl River County, Mississippi
In October 2017, Pearl River County’s Board of Supervisors discussed reducing its 32 polling places to 20, immediately prior to the county’s Picayune School District Board of Trustees Election set for November that same year. One commissioner of the Board said, regarding opposition to the planned decrease in polling places, “this thing has been a political football. I mean are we going to do what’s the right thing, or what’s the right amount of money? Are we going to cut these things back like we need to or are we just going to bow down to the folks that don’t want to vote somewhere else.”59 Although the reason for the closures was ADA-compliance, Commissioners openly noted that they were not qualified to know whether polling places are accessible to people with disabilities.60
McLennan County, Texas
In July 2018, McLennan County Commissioners wanted to consolidate their polling places “after reviewing security concerns, cost, and accessibility issues.”61 One of their polling places was located in a school, and the school was concerned about the safety of their students. Meanwhile, the Commissioners were also concerned about the costs associated with making the school ADA-compliant. One county Commissioner stated that bringing an existing polling place into ADA compliance “would have cost about $100,000, so moving the vote center will save significant money.”62
Dauphin County, Pennsylvania
In March 2018, Dauphin County voted to merge four of its polling places down to two because of ADA-compliance concerns. The county argued that it made sense to consolidate the polling places because, not only would it address the ADA-compliance concerns, but that one of the polling places already had a low voter turnout and the other had problems finding poll workers. The county noted that some of its polling place remedies were simple and could be completed easily while others could not.63
Baxter County, Arkansas
In 2018, Baxter County opted to cut their polling places by half from 22 to 11, because they wanted to shift to vote centers. However when asked to defend the plan, county officials said “they would have had to shut down 10 polling places anyway, because they were not compliant with the ADA.”64 To Baxter County’s credit, they worked closely with Disability Rights Arkansas, Arkansas’s P&A, to ensure this was the best solution for the county. Ultimately, good planning and opening up the more limited number of locations as vote centers minimized pushback from the community, but the message remained the same “because of the ADA.”
Jefferson Parish, Louisiana
In 2015, Jefferson Parish notified voters they planned to relocate “some polling precincts to comply with the Americans with Disabilities Act.”65 This announcement came after the county reached a settlement agreement in a lawsuit, Drake v. Jefferson Parish, brought by a community member with a disability. The Advocacy Center, Louisiana’s P&A who filed the suit, noted that ramps at the county’s polling places were too steep and had no railings that could prevent wheelchair users from “sliding off.”66 The cost of Jefferson Parish’s legal defense would likely have covered the full cost of making the jurisdiction’s polling places accessible, perhaps even saving money in the process. Instead, the county relocated over two dozen of its polling places.67
Richland County, Ohio
In 2015, the Ohio Secretary of State’s Office found that Richland County had ADA-compliance issues at their polling places, including five town halls or fire stations and three churches.68 The ADA-compliance concerns involved no lift or ramp equipped van parking spaces near entrances, inaccessible door handles, and ramps that were too steep for voters in wheelchairs. Although Richland County tried fixing some of the problems highlighted by the Secretary of State’s Office, trustees of the Board of Elections noted, “The state is putting a lot of mandates out. But the townships don’t have a lot of money.” As a result, the county opted to consolidate many of its polling places prior to the 2016 Election.69
Ford County, Kansas
Ford County made news in 2018 for deciding to relocate their only polling place in town to outside of town. The reason for relocating the polling place: the ADA. Furthermore, the closest bus stop to the new polling place was over a mile away. As a result, Ford County had 13,000 registered voters and 1 polling place on Election Day 2018.70 County officials failed to consult with Disability Rights Center of Kansas, Kansas’s P&A, or any other disability advocacy group about the ADA before the polling place was moved.
Department of Justice: Enforcing the ADA
In the rush of media coverage following the controversial plan by Randolph County, investigative journalists called the role of the DOJ to enforce the ADA’s provisions into question. According to a ThinkProgress article, “It’s a diabolical move: citing one civil rights statute (the ADA) as the justification for violating another (the VRA)” and that “these sorts of closures can effectively disenfranchise entire communities of voters, all under the false guise of purportedly seeking to make polling places accessible for the disabled.”71
Over the years, the DOJ has entered into multiple settlement agreements with cities and counties through projects they call “Project Civic Access” and the “ADA Voting Initiative.”
In August 1999, the DOJ reached a settlement with the City of Toledo, Ohio, in which Toledo agreed to remove barriers and relocate activities throughout its city government to ensure equal access to people with disabilities.72 As a result, the DOJ’s Civil Rights Division, Disability Rights Section began similar reviews as a part of Project Civic Access program. The project now includes 221 settlement agreements with 206 localities in all 50 states, the District of Columbia, and Puerto Rico. Many of these settlement agreements include polling places.
Project Civic Access, is a wide-ranging effort to ensure that all the services, programs, and activities of state and local governments comply with the ADA “by eliminating physical and communication barriers that prevent people with disabilities from participating fully in community life.” DOJ examines many polling places under the project given that its scope includes physical and architectural barriers. Subsequently, the ADA Voting Initiative focuses on protecting the rights of voters with disabilities specifically and prides itself in working collaboratively with jurisdictions to increase accessibility at the polls. The DOJ, so far has surveyed over 1,600 polling places and increased polling place accessibility in over 35 jurisdictions all over the US.
Despite efforts in the media to tie DOJ intervention to the political whims of any particular presidential administration, the DOJ enforcement actions questioned by the media span multiple administrations. While jurisdictions such as Pearl River County, McLennan County and Dauphin County may claim to have been “targeted” by recent DOJ settlements, there is no clear association between DOJ action and polling place closures that suppress voter turnout. In summary, it is the law of the land for polling places to be accessible under the ADA, and DOJ intervention is an important tool to ensure that compliance.
Rather than forcing polling place closures, DOJ intervention examines each polling place, looking at both temporary and permanent changes needed to comply with the ADA, while keeping polling places open and costs in check. It is, as the DOJ proves, entirely possible to comply with the ADA without closing polling places or breaking the bank.
City of Chicago, Illinois
When it first approached the City of Chicago, the DOJ requested to check 100 of the city’s 1,452 polling places. The initial findings showed that many of the city’s polling places were not ADA-compliant and were inaccessible to people with disabilities. As a result, Chicago’s Board of Election Commissioners, in collaboration with Equip for Equality, the Illinois P&A, and over 200 volunteers and pro bono attorneys checked almost all of the remaining polling places, over 1,000 of them, during the 2016 General Election. Like the DOJ, they found many ADA violations that created barriers to voters with disabilities.
As a result of these findings the Board of Elections and the DOJ reached a settlement agreement in April 2017, under which the city of Chicago willingly agreed to make all of its 1,452 polling places ADA-compliant. In addition to ensuring access for voters with disabilities, the settlement will make the large number of public buildings, that were already required to comply with federal access laws, fully accessible and open up public life more broadly for Chicagoans with disabilities.
Today, many more polling places in Chicago are accessible, with exceedingly few relocations or closures. According to Equip for Equality, the Board of Elections used their experience with the DOJ as an educational opportunity on equal access under the ADA, as well as a chance to educate poll workers and the community.73
Jefferson County, Alabama
During the March 1, 2016 election, the DOJ surveyed 36 out of Jefferson County’s 173 polling places and found that many of them violated the ADA. As a result, Jefferson County agreed to survey the remaining polling places and ensure that all its polling places be fully accessible to people with disabilities in future elections.
According to Barry Stephenson, Jefferson County Board of Registrars chairperson, the DOJ’s investigation into the county’s polling places brought “everyone to the table” and allowed for a productive conversation on what needs to be done.74 This type of collaboration with the disability community had not been seen before, as election officials previously thought they were ADA-compliant. Stephenson even had the opportunity to bring Tate Fall, a disability rights advocate who specializes in voting rights, on board to survey the county’s polling places.
Jefferson County examined its remaining polling places with Fall and found that the majority were not ADA-compliant, as they lacked accessible parking, signs, ramps, or curb cuts. Barry Stephenson said that “most facilities wanted to be compliant too, since the residents are using those facilities every day.”75
Jefferson County noted that geography was key while examining their polling places, as the county is large, and any closures or relocations could have greatly affected its community members and their ability to reach the polls. Yet, the county also realized that many simple fixes were available to become accessible on Election Day. Ultimately, the supplies bought to adapt polling places, such as orange cones to mark accessible parking spaces and access aisles, doorstops to hold open doors that are too heavy, and signs, would represent a significant cost savings over fighting the DOJ in court. According to Barry Stephenson, “in regard to all the supplies we bought for modifications, attorney’s fees would have eaten that up without blinking.”76
Jefferson County also shows that creative solutions are possible for achieving ADA-compliance, even on the tight budget of a predominantly rural local elections official. When faced with the potential closure of a polling place housed in a long-standing church and the realization that an alternate location would be an uncomfortable distance away, Jefferson County elections staff solicited a home improvement chain store to donate lumber and contacted a local Carpenters for Christ group to donate their labor. The county was able to build a permanent, ADA-compliant ramp on a church polling place at no cost.77
Following Jefferson County’s DOJ settlement, the community was able to come together and create a more inclusive environment for everyone. Changes made, like the new church ramp, affected not just Election Day, but every day for Alabamans with disabilities.
Richland County, South Carolina
In June 2016, the DOJ surveyed 54 of Richland County’s 150 polling places.78 The majority of the polling places surveyed were not ADA-compliant. As a result, the South Carolina County entered into a settlement agreement with the DOJ to ensure future ADA-compliance.79 Richland County agreed to use portable ramps (including curb ramps), portable wedges or wedge ramps, floor mats, traffic cones, and other temporary fixes to address the needs of inaccessible polling places.80
The South Carolina P&A had said for years that Richland County had several inaccessible polling places and was happy to see the agreement.81 The P&A also noted that because of the settlement agreement, other South Carolina counties stepped up and worked to ensure accessibility in their jurisdictions as well, to prevent DOJ intervention. Whether it was for fear of being sued, lack of knowledge about compliance, or the willingness to ensure access at the ballot box, DOJ’s enforcement efforts had a positive impact on many voters with disabilities in South Carolina and resulted in other counties also making their polling places accessible on Election Day.
Anderson County, South Carolina
In November 2018, the DOJ announced a settlement agreement with Anderson County, South Carolina following a survey of the county’s polling places.82 The DOJ surveyed 15 polling places in Anderson County and concluded that many were inaccessible to voters with disabilities. Katy Smith, Anderson County’s Elections Director, noted that the county did not realize they were doing anything wrong prior to working with DOJ, but viewed their experience with the DOJ as an important educational opportunity.83
One voter in Anderson County, who is a wheelchair user, had to wait up to 45 minutes at a polling place in an attempt to vote using curbside voting prior to the DOJ settlement agreement and had even filed a complaint with the Department in 2016.84 The voter noted, “I shouldn’t have to do curbside. I’d have been happy to park and get out with everybody else. That’s part of the experience. I shouldn’t have to ask other voters to go inside and get poll workers to help me.”85
Harris County, Texas
In March 2019, the DOJ announced a settlement agreement with Harris County, Texas under the ADA Voting Initiative.86 The county has over 750 polling places. The DOJ noted that the county violated the ADA by using ramps that were too steep, sidewalks and walkways with dangerous gaps, and locked gates along paths of travel barring pedestrian access.87
Disability Rights Texas (DRTx) attempted to contact Harris County multiple times to support making their polling places ADA-compliant prior to DOJ intervention.88 The county did not respond, despite the fact that DRTx offers their services free of charge. However, the DOJ has since commended Harris County for willingly entering into the settlement agreement.
City of Chesapeake, Virginia
In May 2017, the DOJ announced a settlement agreement with the City of Chesapeake, Virginia following its survey of 20 of the City’s 64 polling places. The Department found that the majority of the city’s polling places violated the ADA, and as a result, the city agreed to change their voting system in the years ahead to comply with the ADA.89
McKinley County, New Mexico
In June 2019, the DOJ announced a settlement agreement with McKinley County, New Mexico. Zuni Pueblo and portions of the Navajo Nation are a part of the county, and over 20 of the county’s polling places are located on tribal land.90 The DOJ indicated they had received a complaint and as a result surveyed 32 of the county’s then 47 total polling places. The Department found that many of the polling places had barriers to people with disabilities and entered into an agreement with the county to ensure that they install temporary measures and/or permanent solutions to all of its 47 polling places.91
Coconino County, Arizona: A Closer Look
Four sovereign nations, Navajo, Hopi, the San Juan Southern Paiute, and the Havasupai Tribe, are located within Coconino County, Arizona. Coconino County is the second largest county in the U.S. by area, following San Bernardino, California. Coconino County itself is even larger than some states, including Maryland and New Jersey. The Navajo Nation land area, within Arizona, alone is larger than the state of Connecticut. The population in Coconino County, as of 2018, was approximately 142,854—with 27.6 percent of the population identifying as Native American.92 With much of the land being owned by the various Sovereign Nations in the county, only 12 percent of the land is private taxable property. In addition, there are many spoken languages including various primarily oral languages. Notably, there is a large University population located in Coconino County, Northern Arizona University (NAU), and the Grand Canyon is located within the jurisdiction of Coconino County.
A large geographical area with extremely rural areas, the physically challenging land of the Grand Canyon, limited resources, and a diverse population are some of the factors that play a key role in the decisions Coconino County election officials make in the administration of elections. Coconino County has been cited in recent years for polling place closures allegedly related to DOJ enforcement. Yet, Coconino County’s journey to elections accessibility presents itself as one that is far from finished, and the elections officials themselves are working actively with tribal leadership to find creative solutions for a challenging setting.
BACKGROUND
Even after ratification of the Fourteenth Amendment of the U.S. Constitution in 1868, Native American men still did not have the right to vote, let alone Native American women. Native Americans were finally granted official U.S. citizenship in 1924 when Congress passed the Indian Citizenship Act, also known as the Snyder Act.93 It should be noted that despite the Snyder Act, Native Americans will always have a haunted legacy of being separated from their own culture in order to make them more “American.”94
Landscape photo of Coal Mine Canyon in Coconino County, Arizona
Today, 567 Sovereign Nations across the entire U.S. have a formal nation-to-nation relationship with the U.S. government, with a total land mass of over 100 million acres.95 The Navajo Nation located in areas of Utah, Arizona, and New Mexico would be the 42nd largest state in the U.S., alone larger than states like Maryland, New Hampshire, and Hawaii. While tribal lands are exempted from Titles I and II of the ADA, there is legal precedent to suggest that Title III of the ADA applies to public accommodations in reservations.96 Further, federal elections funded with government dollars must fully comply with ADA’s regulations
DOJ SETTLEMENT AGREEMENT
In August 2016, as a part of the DOJ’s ADA Voting Initiative, the Department surveyed 31 of Coconino County’s 61 polling places. As with most jurisdictions, the DOJ found that many of Coconino County’s polling places were not ADA-compliant. Most of Coconino County’s polling places lacked van accessible parking, appropriate signage, and accessible door hardware.97
Almost two years later, in May 2018, the DOJ announced a settlement agreement with Coconino County. As a result, Coconino County agreed to start adapting their polling places to ensure that all sites are accessible to people with disabilities before the November 2020 election.98 The agreement noted that the county is not limited “from making ADA-compliant, permanent modifications to its polling place locations instead of providing temporary remedial measures or relocating a polling place location.”99
The DOJ settlement did not list how many of the polling places surveyed lacked ADA-compliance. Rather, the settlement states “that many of the County’s precincts and early voting locations are housed in polling places which contain barriers to access for persons with disabilities, and that Coconino County violated Title II by failing to select and use facilities as polling places on Election Day that are accessible to persons with disabilities.”100 However, Type Investigations (a program of Type Media Center, a nonprofit media center) reported in November 2018 that, following the settlement, Coconino County reviewed the additional polling places and found that 46 of the total 65 polling places at the time were not ADA-complaint.101 In other words, over half of the county’s polling places were, in some way, inaccessible to people with disabilities.
Following the news of the settlement agreement, the DOJ received accusations that it was targeting Coconino County and that DOJ enforcement would lead to polling place closures to suppress the Native American vote.102 Opponents expressed concerns that the Department’s efforts would hinder opening future polling places and early voting sites that serve Indigenous communities.103
COCONINO COUNTY’S POLLING PLACES
As of September 2019, Coconino County has a total of 71 precincts, 54 polling places, and 3 vote centers (Tuba City High School, Flagstaff Mall, and J. Lawrence Walkup Skydome). The Sovereign Nations (Navajo, Hopi, the San Juan Southern Paiute, and the Havasupai Tribe) are located among 15 of the total precincts in the county. Thirteen polling places and two of the vote centers, Tuba City High School and Flagstaff Mall, serve the reservations as well.104
The Leadership Conference reported that Coconino County’s polling places went from 64 to 55 between 2012 and 2018.105 During the 2016 Election, Coconino County had 61 polling places according to the DOJ, and in September 2019, Coconino County reported that they had 54 polling places. Coconino County stated the decrease in polling places was mostly as a result of consolidations, vote centers, and certain polling places that had to be closed because of safety concerns, including locations that were being condemned.106
High Country News reported that following the settlement agreement with the DOJ, Coconino County had a total of five polling places that could not be updated to meet the requirements of the ADA and had to be relocated; the farthest moving roughly 10 miles away from its original location.107 According to the Coconino County’s election officials, the Inscription House polling place located on the Navajo Nation was just moved across the street based on request of the Chapter Manager. The polling place in Leupp’s Community building was closed in 2016 due to unsanitary conditions, while the polling place in Tonalea’s Chapter House was moved to a different building on the same Chapter House campus.
Election officials in Coconino County also opted to consolidate three of their polling places in Tuba City into one, as two of the polling places were no longer usable. Coconino County’s Tuba City Elementary School was new, but lacked sufficient parking, and became too crowded for it to be a polling place. Tuba City Junior High School’s polling place also had limited parking. As a result, Coconino County consolidated these two polling places with Tuba City’s high school. Tuba City Elementary School is approximately 1.6 miles away from the high school, while Tuba City Junior High School is about 1.8 miles from the high school.
According to Coconino County election officials, out of the 13 polling places located on tribal land — all of them required remediation in 2018 as none of them were fully ADA-compliant. All of the polling places were missing van accessible parking and appropriate signage. All of them were missing access aisles. Five of the 13 polling places had unpaved parking. Eight of the polling places had abrupt changes in ground levels. Four of them had inaccessible surface openings. Six of the polling places had inaccessible door hardware. One of the polling places had an improper threshold, while one of polling places had a non ADA-compliant ramp.108
Cameron’s Polling Place
Polling site in Cameron, Arizona.
On Election Day, voters travel to Cameron’s Senior Center to cast their ballot. Voters have to drive on a gravel parking lot when turning off the main road next to the local Chapter House. At first glance, there is a concrete slab parking space in front of the building by the entrance. The concrete slab is designated as the polling place’s accessible parking and might seem to be a fully compliant permanent ADA accessible parking space. Unfortunately, the width of the lines designating the parking space are too narrow and there is no accessible parking signage. Temporary signage and orange parking cones on Election Day would correct these issues. Unfortunately, the slope of the concrete parking slab is also significantly too steep. Thus, an alternative temporary accessible parking space which is more level would need to be created.
Tuba City’s Polling Place
Tuba City High School is one of the county’s three vote centers, meaning anyone in Coconino County can vote there on Election Day. The polling place is located in the school’s gym, placing it far from the main entrance and creating issues regarding ADA-compliance, including accessible parking that is far from the gym entrance and a path of travel from the parking lot to the voting entrance with abrupt surface level changes.
In response to these ADA issues, Coconino County uses orange cones to designate accessible parking and places temporary signage to signify the accessible parking spaces as close as possible to the entrance to the gym. The county also places a ramp where the pathway to the voting area has abrupt level changes, including a curb where no curb cut exists. These low cost, temporary measures make this polling place accessible on Election Day and allow it to remain open.
Moenkopi’s Polling Place
Moenkopi Community Center, located on Hopi land, opens its doors to Coconino County election officials and voters on Election Day.109 The parking lot itself is gravel and lacks a van accessible parking space, along with access aisles with appropriate signage. Furthermore, the current door hardware requires gripping and twisting motion to open, which is not operable by all voters.
Fortunately, rather than moving Moenkopi’s polling place, Coconino County has put in place several temporary measures to improve accessibility, including placing orange cones and signage to designate an accessible parking space and providing a “Ballot Call” (door bell system) for individuals that prefer to vote curbside on Election Day, given that the gravel parking lot is not slip resistant. Election officials also place a temporary lever handle to assist voters in opening the door.
Coalmine’s Polling Place
Coalmine has a Chapter House that has served as a polling place for the past couple election cycles with no other public buildings for miles. With a concrete accessible parking slab and concrete sidewalks, it has worked well on Election Day for most. Unfortunately, the settling of the foundation beneath the Coalmine Chapter House has led to cracks in the building’s walls and ground, and the building is no longer safe for occupancy. Cracks are apparent on the sidewalks outside, and on some of building’s exterior walls. The interior floor slopes down at an odd angle. The bathrooms no longer work as a result of the foundation settling and people using the Chapter House have been using outhouses. As a result, Coalmine’s Chapter House will most likely not be a polling place during the next election and is an example of a polling place closure or relocation for public safety. Measures will have to be taken to ensure voter turnout, as the county is forced to move its polling place to one that is habitable. In addition to proper enforcement, funding is sorely needed for jurisdictions to support the maintenance of polling places and to support Sovereign Nations who are being impacted by the earth’s natural shift.
Coconino County’s Voter Participation Work
In recognition of the challenges that have surfaced in making Coconino County’s elections accessible for all, the county government and the county’s election officials are dedicated to ensuring that all people have the same right to vote, including people with disabilities and Native Americans. Within Coconino County and specifically on tribal land, such as Navajo and Hopi, elections staff hold regular voter participation events, voter registration drives, and present at Chapter and tribal meetings. Staff also ensure that all reservation voting locations have translators, and Coconino County has recruited several tribal election board members and election board staff to support this work. Collaboratively, staff have gone to great lengths to prevent poll closures, including re-roofing, repairing, and painting buildings on tribal land to create new polling places and even creating an outhouse for a polling place.
A CROSSROADS: Native American Rights and Disability Rights
Randolph County, Georgia provides a valuable lesson in combatting voter suppression across the U.S. – voting rights advocates cannot allow a divide and conquer strategy. Much the way Randolph County officials attempted to pit voters with disabilities against Black voters, the narrative surrounding Coconino County, Arizona threatens to position voters with disabilities and Native American voters as opponents in the struggle for equal access to the ballot.
Tribal lands in the U.S. are admittedly not required to follow all federal laws, including parts of the ADA.110 However, if counties such as Coconino County have polling places on tribal land — the polling places must be accessible during federal elections and when using government funds. Of course, the solution is not to remove all polling places from tribal land and reduce access to the ballot for Native Americans. Similarly, the solution cannot be to look the other way when polling places on reservations are not accessible as required under the ADA. In the end, Native Americans with disabilities have the same right as any other citizen in this country to participate in their democracy, on and off reservations, and solutions and compromises must be found to protect their rights.
Twila Honyaoma of the Hopi tribe holds out traditional gourd shaker.
Curbside voting has been a “go to” compromise on tribal lands. Proponents argue that polling places on reservations do not have to be ADA-complaint, as a person with a disability can just vote by having a ballot brought to them outside the inaccessible location. In the long journey to making America’s polling places accessible, curbside voting has indeed been an important stop gap measure – providing access for voters with disabilities on Election Day as while elections officials work to make their polling places accessible. That said, the ADA is clear that curbside voting can only be used in limited circumstances and that people with disabilities must be given the same terms and level of privacy to vote as other voters. There is also evidence to show that they are committed to voting alongside their non-disabled peers. In a national poll conducted in 2019, roughly 90 percent of voters with disabilities felt it was important to vote privately, independently, and in the same manner as other voters.111
CONCLUSION
Coconino County provides potentially the most complex case study in the interplay between elections administration, the ADA, and DOJ enforcement. Admittedly, Coconino County has experienced poll closures following the Shelby County decision and the county’s settlement with the DOJ. Yet, the impetus for closures are broader than ADA-compliance, including lack of capacity to process voters and building foreclosures. Further, elections staff in Coconino County are diverse and include leadership from the Native American communities for whom polling place closures threaten access. Coconino County appears to be working actively to prevent closure and relocation of polling places, in a challenging environment. Fundamentally, the ADA is only as strong as its ability to protect the rights of people with disabilities wherever they live, work, play, and vote in the United States. DOJ enforcement in environments that are already compliant or in which easy solutions are readily available does not strengthen the ADA or its practical protection of the rights of people with disabilities in their communities. In fact, DOJ’s enforcement of the ADA is only as strong as its ability to drive innovative solutions in the most challenging environments.
Resistance to DOJ intervention raises some red flags – unveiling a large-scale unfamiliarity with the ADA’s provisions and the Act’s unearned reputation for forcing costly fixes. The detail and complexity of the ADA’s accessibility regulations clearly drives this kind of misinformation, which can easily be leveraged by jurisdictions looking to close polling places either to save money or influence voter turnout. Audiences unfamiliar with the ADA and what it actually takes to be accessible on Election Day are ill-prepared to combat narratives designed to necessitate poll closures.
The law is clear — all polling places need to be accessible; however, the intent of the ADA is not to close or remotely relocate polling places. While a small number of closures, consolidations, and relocations in the immediate vicinity are inevitable, jurisdictions can use a mix of temporary and permanent changes to make elections accessible under the ADA. The example set by the Jefferson County, Alabama church, which was able to construct a ramp through a combination of donated materials and volunteer labor, proves that even permanent ADA modifications can be made at little to no cost.
Where this is not possible, jurisdictions can temporarily make polling places accessible on Election Day. This can be as simple as creating accessible parking spots with orange cones and temporary signs. These solutions are low cost and well below the inflated estimates offered by some election administrators as an impetus for poll closures. Further, temporary modifications allow election administrators to purchase and keep their own supply of materials and deploy them where needed on Election Day.
If temporary fixes will not bring the location into compliance, then and only then, should a jurisdiction consider relocating the polling place. If the polling place must be relocated, it is crucial to receive input from all impacted stakeholders, including the disability community and other voters, to ensure that the relocation of the polling place will not suppress voter participation.
Temporary Remedies to Polling Places
Permanent remedies to polling place access are generally more desirable because they will continue to provide access for all community members in typically public spaces every day of the year, rather than just on Election Day. However, temporary remedies to polling places should be used if permanent fixes are not feasible. Although not designed to be permanent solutions, the following tools can be used to provide remedies on Election Day to improve accessibility. These tools can often be found in local hardware and home improvement stores or online for reasonable cost.
Parking
If a polling place does not have any designated accessible parking, election officials, volunteers, or poll workers can either paint boundary lines, place traffic cones, or use tape to mark off boundary lines for accessible parking. In other words, if parking is available at the polling place, accessible parking must be available and can be “created” at minimum cost.
Duct tape designates access aisle as temporary measure. Photo courtesy of Disability Rights Texas.
To be ADA-compliant, accessible parking spaces must also have designated signage, and temporary signs can be made with little effort. Elections staff can paint a sign using poster board or cardboard with the international symbol of accessibility and tape it on a pole (if located in front of the accessible parking spot) or place the sign on a cone in front of the parking space. If the parking space is specifically for lift or ramp equipped van accessible parking, the sign must include the words “Van Accessible” somewhere as well.
Ramps
If polling places have stairs with no available ramps, temporary ramps with edge protection can often make the location accessible. Ramps can provide access to sidewalks and building entrances. However, it is important to remember that portable ramps that are not permanently connected to the structure and without handrails cannot be used if the vertical rise is greater than six inches. Ramps with a vertical rise greater than six inches must have handrails.
Wedge ramps can also give access to people if thresholds are too high and if there are slight changes in level, such as big cracks in the sidewalks. Rubberized mats can also provide access over broken pavement that creates inaccessible surface changes, as well as over thresholds that exceed the one half inch ADA standards.
<h3″>Doors
Round doorknob is outfitted with a retrofitted lever knob.
Many door handles are not accessible. If doorways to do not have automatic door openers, doors should be openable by using one hand and should not require tight grasping, pinching, or twisting of the wrist.112 If this is the case, polling places can use “retro-fitted lever knobs.” These retrofitted levers fit over existing round knobs. However if this is not an option, polling places can prop open doors on Election Day. Standard doorstops can be used to achieve this as well.
Water Fountains and Protruding Objects
Hallways at polling places might not always be fully accessible. For example, water fountains, fire extinguisher boxes, and display cases that stick out of the wall are not detectible for people who use white canes. However, election officials can place detectable objects, such as traffic cones or other skirting objects to make these protruding objects detectable for voters who are blind or low vision.
Relocating Polling Places
When counties and cities discuss relocating polling places they must consider many factors including safety and distance. However, it is important to note that sometimes jurisdictions have no other option, for instance when long-term polling places decline to serve again, are undergoing construction or renovation, or are condemned or foreclosed upon, then election officials’ only option is to relocate. Notably, the U.S. is seeing an increase in schools that no longer want to serve as polling places for security concerns following multiple incidences of gun violence in and around schools, and if that is the case, jurisdictions again have no choice but to relocate a polling place.113
If a jurisdiction needs to relocate a polling site, election officials should work with the community to locate the best option. Facilitating communication with the voters and working with community leaders and groups can help find the best solution, can prevent unintended hardship on voters, and can reduce overall costs. Disability rights organizations and people with disabilities, especially if a polling place is being relocated because of ADA concerns, must be brought to the table. P&A agencies can provide a wealth of knowledge and support to jurisdictions seeking to achieve access for all.
Consolidating Polling Places
Consolidation of polling places can be an appropriate remedy in some cases. For example, two polling places in immediate proximity, such as a community’s middle school and elementary school, may make sense to combine if one location is significantly more accessible than the other. Of course, the surviving polling place must have the appropriate capacity to take the new influx of voters. Extreme consolidations, i.e. pairing 40 polling places down to two, is typically not recommended unless all 40 polling places were in very close proximity and the remaining two are being used as vote centers – an admittedly unlikely scenario.
“Accessible” Poll Workers
Even the most ideal polling places are only as accessible as the poll workers that run them on Election Day. With minimal training and high expectations for job performance, providing effective and timely accommodation to voters with disabilities can be daunting for polling place staff. Jurisdictions that have the capacity should consider a dedicated poll worker whose mission is to ensure equal access for all at the polls. In other words, every polling place should assign a poll worker whose main Election Day duty is to support voters with disabilities who might be unaware of the accessibility features available to cast a ballot and their rights for accommodation, or who otherwise need assistance. A poll worker with this specialization can also ensure that the polling place is set up to be fully compliant with the ADA and enact any necessary same-day modifications. Although poll workers are frequently in short supply, the “accessible” poll worker can perform regular job functions in addition to serving as a specialist.
“Accessible” Money
Responsibility for ADA-compliance at polling places falls exclusively with the local jurisdictions that are responsible for recruiting and planning polling sites. No elections office with a desire to comply or facing DOJ intervention should be limited by a lack of funding. The federal government must accept its role in providing a continual funding stream to state and local election officials for the purpose of making electoral processes fully accessible. Following the passage of the Help America Vote Act (HAVA), many states received funding to give to jurisdictions to ensure polling place accessibility, and these funds should be fully reinstated.114
In order to provide jurisdictions with funding to make their polling places accessible, Congress must renew funding through the HAVA grant program to ensure voting access for individuals with disabilities. Jurisdictions that are not ADA-compliant and lack the funding to make necessary improvements simply dismiss the need to comply with the law.
Congress must also fully fund the Protection and Advocacy for Voter Access (PAVA) program, created by HAVA, the P&As have a federal mandate to “ensure the full participation in the electoral process for individuals with disabilities, including registering to vote, casting a vote and accessing polling places.”115 The PAVA program has had a positive impact on the accessibility of polling places since its creation in 2002. Yet, as a nationwide program, limited funding has restricted the overall positive impact. Since the creation of the PAVA program, overall funding per year has never exceeded $7 million. Spread currently across 55 P&As, this has limited the amount of work the PAVA program can do each year.
