Rehearing the case as a three judge panel, the Eleventh Circuit upheld its prior decision to vacate a district court’s grant of a preliminary injunction against the State of Florida and Duval County for violating the Americans with Disabilities Act of 1990 (ADA) and its regulations through the state’s purchase of inaccessible voting machines. American Association of People with Disabilities v. Harris, WL 3117872 (11th Cir. July 27, 2011)( No. 07-15004). This opinion “substitute[s]” for the previous opinion which vacated the district court ruling on the ground that regulations are not privately enforceable under the ADA’s private right of action where there is no violation of the statutory language itself. See American Association of People with Disabilities v. Harris, 605 F.3d 1124 (11th Cir. 2010). See our posting here. The court did not address its earlier reasoning regarding the enforceability of ADA regulations and ruled solely on the ground that voting machines are not “facilities” within the meaning of 28 C.F.R. §35.151(b) (implementation regulation of Title II of the ADA). Judge Tjoflat (Ford) wrote the opinion joined by Judge Carnes (H.W. Bush), and district judge Hood (H.W. Bush).
The plaintiffs are visually and manually impaired individuals registered to vote in Duval County who alleged that the county violated federal and state statutory provisions when it bought new voting machines following the 2000 election, but failed to purchase machines that are accessible to the visually and manually impaired. The new machines used technology that did not allow the plaintiffs to vote without assistance; the county purchased only three machines that would allow visually and manually impaired voters to cast their ballot without third-party assistance.
The plaintiffs initially alleged that the new machines violated 42 U.S.C. § 12132 of the ADA by preventing the plaintiffs from engaging in a public activity—voting—which Florida’s constitution requires to be cast in a “direct and secret” manner. The district court interpreted the phrase broadly and determined that third party assistance was consistent with a “direct and secret” ballot.
The district court noted that while the plaintiffs were not prevented in engaging in a public program, they were discriminated against under the ADA and its regulations. It found that the county failed to satisfy 28 C.F.R. § 35.151(b), which requires public entities, like the County, to make any facilities altered after 1992 accessible to disabled individuals. A declaratory judgment was issued enjoining County officials to provide at least one handicapped-accessible voting machine at twenty percent of the polling places and to install an unspecified number of touch screen voting machines with audio capacity, as certified by the Department of State. Am. Ass’n of People with Disabilities v. Hood, 310 F. Supp. 2d 1226, 1235–36 (M.D. Fla. 2004).
Vacating the ruling under new reasoning, the Eleventh Circuit agreed with the defendants that a voting machine was not a “facility” within the meaning of ADA regulations. The court relied on Department of Justice regulations and guidance to limit the definition of “facilities” to “physical structures and the fixed items attached to those structures.” The DOJ regulations define “facility” as “all or any portion of buildings, structures, sites, complexes, equipment…” §35.104, and its commentary states that the term ““facility . . . includes… areas where human-constructed improvements, structures, equipment, or property have been added to the natural environment.” Nondiscrimination on the Basis of Disability in State and Local Government Services, 56 Fed. Reg. 35,694, 35,700 (July 26, 1991). Significantly for the court a DOJ publication addressing polling locations discussed only the polling location’s physical attributes, not the machines themselves. U.S. Dep’t of Justice, ADA Checklist for Polling Places (2004), available at http://www.ada.gov/votingscrn.pdf. Voting machines, which are wheeled in and out of facilities on the election days, did not fall under the court’s “umbrella” of facilities.
The court also relied on the case law of other courts. Blind plaintiffs successfully sued a railroad station for installing automated ticketing machines that were not, to maximum extent feasible, readily usable by the plaintiffs. Molloy v. Metropolitan Transportation Authority, 94 F.3d 808 (2d Cir. 1996). The court emphasized that there was a physical modification to the station, which required wiring and communication lines. Id at 812. However, in Colorado Cross-Disability Coalition v. Too (Delaware), Inc., 344 F. Supp. 2d 707, 711-12 (D. Colo. 2004), movable shelves were not considered part of a facility because their arrangement did not affect the cost of altering the store’s physical plan. Concluding that voting machines are closer to moving shelves than permanent ticketing machines connected to the building’s broader infrastructure, the court found that the state’s conduct did not violate the ADA.