Disability and Voting - The (As of Yet) Unfulfilled Potential Of The ADA And Rehabilitation Act

INTRODUCTION

Voting is one of our most important civic functions. At its most basic level, voting is the way that citizens effect change in the political process. But voting is also a vehicle for a person to express his belonging in the larger community, and to show that whatever his ethnicity or socioeconomic status, that he is fundamentally equal to other citizens. For these reasons, the right to vote freely for the candidate of one's choice has been called the essence of a democratic society. [1]

Historically, voting scholarship and policy has focused on eliminating the purposeful disenfranchisement of groups of citizens. But times are changing. Bush v. Gore [2] brought national attention to the fact that the administration of elections (referred to elsewhere as the "nuts and bolts" of elections) [3] have real civil rights consequences. Nowhere is this more apparent than in the case of voting by people with disabilities. Whereas most citizens have the option of voting secretly and independently, and in a polling place, people with disabilities often do not.

This Article tells the story of how this situation came to pass, and discusses how two federal civil rights statutes have impacted the voting rights of people with disabilities. The Americans with Disabilities Act ("ADA") [4] and Section 504 of the Rehabilitation Act ("Rehab Act") [5] are the two main statutes protecting people with disabilities from discrimination in all areas of life. This Article suggests that while these statutes have eliminated discrimination against and improved the lives of people with disabilities, they have had a limited effect on the real issues facing people with disabilities in voting. This Article concludes, however, that the future may be brighter than the past. There are new court decisions strengthening the viability of voting rights claims, and indicating that courts may be revisiting earlier interpretations of the ADA and Rehab Acts.

I. VOTING FOR PEOPLE WITH DISABILITIES

As I have written about in more detail elsewhere, [6] and as other articles in this symposium more fully explain, people with disabilities face a set of challenges in voting that are different than other voters.

A. Secret and Independent Voting

Most people's voting experience includes the ability to vote secretly and independently. Early in our nation's history, voter intimidation was a large problem.7 Similarly, there were corruption and fraud concerns, which continue to the present day. [8] To combat these problems, nearly every jurisdiction provides for a secret and independent ballot, and criminalizes attempts to interfere with this voting feature. [9]

Yet the voting options in place for people with disabilities (especially people with mobility and/or visual impairments) typically provide for voting with third-party assistance, either at the polls or in filling out absentee ballots. [10] As discussed in other articles in this symposium, this is a failure of law and policy, not technology. These are not just outdated historical concerns. Several academics have persuasively argued that secret voting is preferable to other voting options (such as absentee and Internet voting) because of voter intimidation and fraud. [11] More specifically, there are anecdotal reports of people with disabilities being pressured to change their votes by "volunteers." [12] In addition to these instrumental concerns, as a matter of fairness and dignity it is wrong for people with disabilities to be treated differently, in a way that most people would consider worse, in such an important civic function as voting. [13]

B. Polling Place Voting

With the exception of overseas military, most Americans have the option of voting in a polling place. Many do so because they enjoy the public, civic function of going to the polls on Election Day. [14] Yet people with disabilities are too often kept away from this community experience by inaccessible polling places, or are directed to other non-polling place voting options, like absentee or curbside voting. [15]

These are incomplete substitutes for polling place voting. Curbside voting has proven ineffective in bad weather, and has been referred to as a "cheapened version" of polling place voting. [16] Similarly, absentee ballots almost always have to be received in advance of Election Day, often before key debates or late-breaking issues. [17] Forcing people with disabilities to vote in a non-public manner sends a harmful signal about their full inclusion in larger society. [18]

Although no conclusive studies have yet been done, there has been suggestion that these differences in voting for people with disabilities are depressing voter turnout. A 2000 National Organization on Disability/Harris Survey found that voter registration is lower for people with disabilities than for people without disabilities (62% vs. 78% respectively). [19] A different survey in 1999 found that people with disabilities were on average about 20 percentage points less likely than those without disabilities to vote, and 10 points less likely to be registered to vote, even after adjusting for differences in demographic characteristics (age, sex, race, education, and marital status). [20] There was additional evidence of political isolation and marginalization. [21]

II. LEGAL LANDSCAPE

How has the law allowed this situation to come to pass? To fully understand the issues facing people with disabilities in voting, one must consider the broader legal landscape. Roughly speaking, there are three bodies of law that impact the voting rights of people with disabilities. These are federal constitutional law, state and local policies, and federal statutory law.

A. Federal Constitutional Law

Constitutional law sets certain parameters that states and localities must meet when they administer federal and state elections. For example, any state or local regulation or practice that discriminates in elections on the basis of race is invalid under the Equal Protection Clause. [22] But for several reasons, constitutional law has not protected the ability of people with disabilities to vote in the same way as their fellow citizens, that is, secretly and independently and in polling places.

First, unlike state laws that draw lines on the basis of race or gender, state laws and practices that draw lines on the basis of disability do not receive heightened scrutiny. In City of Cleburne v. Cleburne Living Center, the Supreme Court held that state laws that discriminate on the basis of disability need only receive rational basis review. [23] Subsequent Court decisions have reinforced this rule. [24] This doctrine has limited the ability of people with disabilities to bring constitutional challenges to voting practices that provide different voting experiences for people with disabilities. As stated by one court (in dicta): "[I]t is not necessarily irrational for a state to require disabled voters to submit absentee ballots rather than going to the expense of retrofitting or relocating an established polling place." [25]

Second, although voting is a "fundamental right," which means that state actions impairing the right of people to vote receive strict scrutiny, [26] the Court has not applied strict scrutiny to claims involving the administration of elections. [27] Said differently, although state laws or practices that deny the right to vote receive strict scrutiny, state action that provides different voting experiences for different groups of people do not. [28] Although some have speculated that Bush v. Gore signals an extension of the Court's strict scrutiny Equal Protection jurisprudence to the "nuts and bolts" of elections, [29] the case's express (and unusual) pronouncement that it is a "one way ticket" makes this unlikely. [30]

B. State and Local Policies

Except for federal constitutional and statutory "baselines," states and localities are free to administer federal and state elections as they see fit. Practically speaking, this is where the bulk of election law relating to the administration of elections exists. With some exceptions, state laws have not guaranteed people with disabilities (either textually or in practice) the ability to vote secretly and independently or in polling places. [31]

Commentators have speculated on several reasons for state law's failures. The first is lack of funding. Voting machines and polling place accessibility modifications are expensive, and often states and localities are working with limited funds as they seek to administer their elections. [32] There is often a lack of political will at the local level to spend the funds to make necessary changes. [33] Even when accessible machines exist, they require poll workers with the training and expertise to make them work. State officials also cite frustrations in procuring accessible buildings, exposing the extent to which disability discrimination is literally built into the environment. [34]

C. Federal Statutory Law

The final part of the legal landscape affecting the voting rights of people with disabilities is federal statutory law. Historically, there have been four federal civil rights statutes addressing voting and disability. The Voting Rights Act provides that "[a]ny 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 . . . ." [35] On its surface, this allows for third-party assistance and does not provide for a secret and independent vote. The Voting Accessibility for the Elderly and Handicapped Act provides that "[w]ithin each state . . . each political subdivision responsible for conducting elections shall assure that all polling places for Federal elections are accessible to handicapped and elderly voters." [36] This statute offers no definition or standards for "accessibility," and when the General Accounting Office did a study of the November 2000 presidential election, they found widespread instances of polling place inaccessibility. [37]

The Americans with Disabilities Act ("ADA") and the Section 504 of the Rehabilitation Act of 1973 ("Rehab Act") are the two main statutes protecting people with disabilities from discrimination in all areas of life. The Rehab Act, passed in 1973, provides that "no otherwise qualified individual with a disability in the United States ... shall, by reason of his or her disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance." [38] The ADA was passed in 1990. Title II of the ADA protects against discrimination in public services, providing that "no qualified individual with a disability shall, by reason of such 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 any such entity." [39] Title III of the ADA protects against discrimination in public accommodations, providing that "no individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodations." [40]

Congress certainly considered voting when it passed the ADA, and courts have uniformly held that voting is covered by the ADA's program accessibility standard. [41] This means that the voting "programs, services, and activities" offered by states, when viewed in their entirety, must be readily accessible and useable by people with disabilities, unless to do so would result in a fundamental alteration or cause an undue or financial burden. The same is true with the Rehabilitation Act.

1. The ADA & Rehab Act Have Not Generally Been Interpreted As Requiring Secret and Independent Voting, and Polling Place Access

Do the ADA and Rehab Acts require secret and independent voting, and polling place access, for people with disabilities? The text of the two statutes is unclear. These statutes have a broad antidiscrimination focus, and do not address any given issue area, like voting, in much detail. Similarly, the relevant regulations have not squarely addressed the issue.

There is certainly a persuasive argument that the ADA and Rehab Acts require secret and independent voting, and polling place access. A different (and worse) voting experience on the basis of disability violates Title II (with voting as a program, service, or activity) or Title III (with voting taking place in places of public accommodation). The ADA Title II regulations draw a connection between different and discrimination. [42] And the Title III statutory text also equates discrimination with separate and unequal benefits. [43] Under this argument, to the extent that difference in voting is necessary, it would need to be justified under the undue burden or fundamental alterations standard. [44]

This argument fits well into the overall structure and purpose of the ADA. When Congress passed the ADA, it intended to remedy the "political powerlessness" of people with disabilities. [45] Its goals were to ensure "equality of opportunity, full participation, ... [and] independent living... ." [46] Congress expressly recognized that there was discrimination against people with disability in voting. [47]

Yet the ADA has not been interpreted in this manner. Various administrative agencies have rejected the idea that the ADA requires secret and independent voting, and polling place access. The Department of Justice ("DOJ") has issued non-binding "letters of finding" taking the position that curbside and absentee voting are consistent with the ADA. [48] The Title II Assistance Manual, promulgated by the Attorney General, opines that blind voters are not entitled to cast ballots in Braille, even though this method would allow them to vote in private. [49] The Federal Election Commission's statement of voting requirements under the ADA takes the position that states are not required to furnish Braille or tape-recorded ballots for blind voters. [50]

The case law involving voting and the ADA and Rehab Acts has been sparse, and until recently, fairly inhospitable to the idea that these laws require polling place access and secret and independent voting. To date, two cases have reached the federal Court of Appeals, both with negative results. In Lightbourn v. County of El Paso, a class of mobility- and vision-impaired Texas voters brought an action under the Rehab Act and Title II of the ADA, alleging that El Paso County discriminated against them by providing inaccessible polling places and voting apparatus that only allowed blind individuals to vote with third-party assistance. [51] The court held that the Rehab Act did not apply because the Texas Secretary of Elections did not receive federal funds. [52] The court further held that the class could not make out an ADA claim, because the Secretary did not have a duty or responsibility to prevent the claimed violations. Although the Secretary was charged under a Texas law with assisting election authorities in interpreting "election laws, the court held that the ADA was not an "election law." [53]

In another case, Nelson v. Miller, a class of blind voters brought suit against the Michigan Secretary of State, alleging that the Secretary violated the Rehab Act and ADA by not providing machines through which blind voters could mark ballots without third-party assistance. [54] The district court rejected these claims, holding that the Rehab Act and ADA did not intend to displace the VAEH and VRA, which the court construed to provide that third-party assistance for blind voters is sufficient. [55] The Sixth Circuit affirmed, holding that the Michigan Constitution did not guarantee a secret vote, and therefore the state of Michigan had not denied its visually impaired citizens a right that it had given to its other citizens. [56]

At least one lower court has recently come to a similar conclusion. In American Association of People with Disabilities, a group of visually and physically impaired voters challenged the decision by the California Secretary of State to decertify certain direct recording electric (DRE) machines. The Secretary had concerns about the reliability, accuracy, and security of these machines. The plaintiffs argued that these machines allowed them to vote secretly and independently, and were therefore required under Title II of the ADA. The court, while conceding the importance of a secret and independent vote, nevertheless held that Title II did not require it. [57]

2. For Secret and Independent Voting and Polling Place Access For People with Disabilities, The Future Looks Brighter Than the Past

Despite these setbacks, there are several reasons to be optimistic about the future of the federal statutory model and protection of voting rights for people with disabilities. First, several courts have reached the opposite conclusion as the decisions discussed above. In American Association of People with Disabilities v. Hood, a group of manually and visually impaired voters sued the Secretary of State of Florida, arguing that Title II entitled them to accessible voting machines. [58] The Court held that Duval County, Florida violated Title II of the ADA by purchasing machines that only allowed plaintiffs to vote with third-party assistance. [59] Similarly, in New York v. County of Scoharie, a federal district court in New York held that defendants had violated the ADA by having all twenty-five polling places in Scoharie County inaccessible to people with disabilities. [60] These cases suggest that an alternative view of the ADA is a possible, and more courts may be persuaded by this view.

There is another positive development in the case law that may encourage similar suits. Until recently, courts have been divided on the issue of whether litigants can sue for damages under Title II of the ADA. The Supreme Court, in Tennessee v. Lane, recently clarified this issue. Lane held that to the extent Title II applies to the fundamental right of access to courts, private individuals can sue state actors for damages and prospective injunctive relief. [61] This sheds guidance on how courts will treat claims for damages in voting rights lawsuits in ADA Title II claims. Voting, like access to courts, is a fundamental right. Although courts will need to find that the record of state voting violations is commensurate with access to courts for damage claims to be allowed, this author has already suggested elsewhere that it is. [62] This is an important issue, as litigants will be more likely to bring Title II claims for ADA voting violations if they can ask for damages.

Finally, there is a new federal statute that for the first time guarantees the right to a secret and independent vote for people with disabilities. After the 2000 presidential election, Congress passed the Help America Vote Act of 2002 ("HAVA"), a sweeping electoral reform statute providing for extensive change in federal elections. [63] HAVA states that voting systems "shall be accessible for individuals with disabilities, including nonvisual accessibility for the blind and visually impaired, in a manner that provides the same opportunity for access and participation (including privacy and independence) as for other voters." [64] HAVA is less absolute regarding polling place access. It provides funds to states and local governments to "mak[e] polling places, including the path of travel, entrances, exits, and voting areas of each polling facility, accessible to individuals with disabilities, including the blind and visually impaired, in a manner that provides the same opportunities for access and participation (including privacy and independence) as for other voters... ." [65] While HAVA gives money to achieve accessibility and offers more guidance on the meaning of accessibility than previous federal statutes, [66] it still does not guarantee people with disabilities that their polling places will be fully accessible.

Even with HAVA, however, there is still an important role for the ADA and Rehab Act in the federal statutory landscape. HAVA, unlike the ADA and Rehab Acts, does not provide for a private right of action. Its enforcement is limited to suits brought by the Department of Justice, and a state-based administrative grievance procedure. [67] And HAVA has no damage remedy. So if state and federal officials are to provide equal voting access to all of their citizens, the ADA and Rehab Acts will need to be interpreted in a manner that is consistent with secret and independent voting and polling place access.

CONCLUSION

It is beyond dispute that the ADA and Rehab Act have improved the lives of people with disabilities. In contrast to earlier federal statutes centered on the welfare and medical models, these statutes take a civil rights approach to eliminating discrimination against people with disabilities. They focus on removing barriers and integrating people with disabilities into larger society, and in the areas of education, employment, public services, and public accommodations, they have made a significant difference.

Yet these statutes have had less of a genuine effect on the real issues facing people with disabilities in the voting process. This is particularly unfortunate, because voting is such an important civic function that is preservative of all other rights. This Article has shown that there are competing interpretations of these statutes - one that addresses the need for people with disabilities to vote secretly and independently, and in polling places, and one that does not. It is my hope that the tide is turning to the former interpretation.

REFERENCES

1 See Reynolds v. Sims, 377 U.S. 533, 555 (1964).

2 531 U.S. 98 (2000).

3 See Richard L. Hasen, Bush v. Gore and the Future of Equal Protection Law in Elections, 29 Fla. St. U. L. Rev. 377, 377-78 (2001).

4 42 U.S.C. § 12101 et. seq.

5 29 U.S.C. § 794.

6 See Michael Waterstone, Constitutional and Statutory Voting Rights for People with Disabilities, 14 Stan. L. & Pol'y Rev. 353 (2003) (hereinafter Constitutional and Statutory Voting Rights); see also Michael Waterstone, Civil Rights and the Administration of Elections - Toward Secret Ballots & Polling Place Access, 8 Journal of Gender, Race, & Justice 102 (2004) (hereinafter Civil Rights and the Administration of Elections).

7 See Christopher W. Carmichael, Proposals for Reforming the American Electoral System After the 2000 Presidential Election: Universal Voter Registration, Mandatory Voting, and Negative Balloting, 25 Hamline J. Pub. L. & Pol'y 255, 269-70 (2002); see also James C. Fortier & Norman J. Ornstein, The Absentee Ballot and the Secret Ballot: Challenges for Election Reform, 36 U. Mich. J. L. Reform 483, 487-92 (2003).

8 See Carmichael, supra note 7, at 269-70; see also Civil Rights and the Administration of Elections, supra note 6, at 102, n. 3.

9 See, e.g., Fla. St. ch. 101.151 (2003); Minn. Stat .§ 205.185 (2002)

10 During the 2000 presidential election, the General Accounting Office conducted a voting accessibility survey. This study found, among other things, that no polling places that were surveyed had voting equipment that was adapted to blind voters, enabling these voters to vote privately and independently. See Gen. Accounting Office, Voters with Disabilities - Access to Polling Places and Alternative Voting Methods, at 32 (Oct. 2001) [hereinafter "GAO Report"]. The GAO Report also found that 67% of the time, the solution for inaccessible polling places was curbside voting, which is by definition requires assistance. Id. at 26.

11 See Carmichael, supra note 7; see also Fortier & Ornstein, supra note 7.

12 See James C. Dickson, Testimony before the N.Y. City Council Committees on Mental Health, Mental Retardation, Alcoholism, Drug Abuse and Disability Services (July 22, 2002), available at http://www.aapd.com/dvpmain/pollaccess/testimonynycommit.html); see also Disabled Hail e-voting despite doubts, CNN.com, October 4, 2004 ("Blind, Rivera Ley had to rely on someone else to read the ballot aloud, then voter for her. That meant as many as four people - Rivera Ley, the person who pulled the levers an the election judges from both major parties as witnesses - huddled in the voting booth. 'It's like a party in there,' Rivera Ley said. 'You lose any kind of privacy when you have to speak how you want to vote.'").

13 See Constitutional and Statutory Voting Rights, supra note 6, at 364-69; see also Civil Rights and the Administration of Elections, supra note 6, at 105-08.

14 See Adam Winkler, Expressive Voting, 68 N.Y.U. L. Rev. 330, 331 (1993) ("By voting, the individual says essentially, 'I am a member of the American community.' Through participation itself, the voter expresses an identification with the greater community and reveals her attachments to and associations with it. In this way the act of voting is the individual's alignment to the greater society; it is the method by which the individual 'signs' her name to the social contract and becomes herself part of the collective self-consciousness."); see also Daniel P. Tokaji, First Amendment Equal Protection: On Equality, Discretion, and Participation, 101 Mich. L. Rev. 2409, 2497-2510 (2003).

15 See GAO Report, supra note 10, at 7 (finding that 84% of the polling places surveyed had at least one impediment that could deter persons with disabilities from casting their ballot; see also id. at 26 (finding that 67% of the time, the solution for inaccessible polling places was curbside voting).

16 See Kay Schriner & Andrew Bratavia, The Americans with Disabilities Act: Does It Secure the Fundamental Right to Vote?, 29 Pol'y Stud. J. 663, 668 (2001) ("Voting curbside makes it difficult for a voter with a mobility impairment to enjoy the communitarian benefits of participating in the electoral process. 'Drive-by' voting is a cheapened version of the citizen's ultimate exercise of power and responsibility in a democracy."); see also Douglas Druse & Lisa Schur, Fact Sheet on Voter Turnout, Voting Difficulties, and Disability in the 2000 Elections: Laying A Challenge At Democracy's Door, at http://www.wcdd.org/dawn/votebackground/fact_sheet_voting.cfm (noting a random household survey of 10002 American citizens of voting age conducted through Rutgers Center for Public Interest Polling showing a majority of people with and without disabilities felt curbside voting was not as good as voting inside the polling station).

17 On the inadequacies of absentee voting as a substitute for polling place voting, see S. REP. NO. 101-116, at 12 ("The Committee heard about people with disabilities who were forced to vote by absentee ballot before key debates by the candidates were held."); see also Schriner & Batavia, supra, at 672 ("[S]ome individuals with disabilities view absentee voting as a second-class form of voting - one that may be seen by some state election officials as relieving them of the requirement to make accessible polling places available.").

18 See Constitutional & Statutory Voting Rights, supra note 6, at 364-69; see also Civil Rights and the Administration of Elections, supra note 6, at 105-08.

19 See 2000 National Organization on Disability/Harris Survey of Americans With Disabilities, 83 (2000).

20 See Kruse, et. al., Empowerment through civic participation: A study of the political behavior of people with disabilities (Executive Summary at 5). (Final Report to the Disability Research Consortium and New Jersey Developmental Disabilities Council). Piscataway, NJ: Rutgers University (1999). If people with disabilities voted at the same rate as those without disabilities, there would have been 4.6 million additional voters in 1998, raising the overall turnout rate by 2.5%. Id. at 3.

21 People with disabilities were less likely to be contacted by political parties. They were less likely to view the political system as responsive "to people like me." They were less likely to have contributed money to a political party or candidate, written or spoken to an elected representative/official, attended a political meeting, written a letter to a newspaper, contributed money to an organization trying to influence governmental policy or legislation, and worked with others on a community problem. Id. at 5.

22 See, e.g., Reynolds v. Sims, 377 U.S. 533 (1964) (striking down apportionment scheme as vioalative of the Equal Protection Clause).

23 473 U.S. 432, 446-47 (1985).

24 See Bd. of Trustees of the University of Alabama v. Garrett, 531 U.S. 356 (2001).

25 Wessel v. Glendening, 306 F.3d 203, 212 (4th Cir. 2002).

26 See, e.g., Reynolds v. Sims, 377 U.S. 533, 562 (1964) ("[A]ny alleged violation of the right of citizens to vote must be carefully and meticulously scrutinized."); see also Dunn v. Bumstien, 405 U.S. 330, 337 (1972); Harper v. Va. Bd. of Elections, 383 U.S. 663, 670 (1966).

27 See Burdick v. Takushi, 504 U.S. 428, 436 (1992) (applying "flexible" scrutiny to challenge on Hawaii's prohibition on write-in voting, which the court characterized as regulating the "mechanism by which a candidate may appear on the ballot."); see also McDonald v. Bd. of Election Commm'rs, 394 U.S. 802, 807 (1969).

28 For a fuller explanation of this concept, see Constitutional and Statutory Voting Rights, supra note 6, at 371-74.

29 See Hasen, supra note 3.

30 See Bush v. Gore, 531 U.S. at 109 ("Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities.").

31 See GAO Report, supra note 10, at 26-32 (showing that although nearly every state has some type of provision that explicitly addresses voting for people with disabilities, not all counties allow for curbside voting on Election Day to combat inaccessible polling places, and no counties have special ballots or voting equipment adapted for blind voters to vote independently and in secret.").

32 Id. at 34 ("Most state election officials told us that limited funding is one of the main barriers to improving voting accessibility, especially with regard to providing more accessible voting equipment."); see also Constitutional and Statutory Voting Rights, supra note 6, at 363-64.

33 See GAO Report, supra note 10, at 34-35 ("[C]ompeting priorities for funding at a local level may limit funding for improving voting accessibility, according to several election officials we interviewed. For example, counties needing road improvements may decide to pave roads rather than purchase or lease new voting equipment.").

34 Id. at 33-34.

35 42 U.S.C. § 1973aa-6.

36 42 U.S.C. § 1973ee.

37 See GAO Report, supra note 10, at 7.

38 29 U.S.C. § 794.

39 42 U.S.C. § 12132.

40 42 U.S.C. § 12182(a). The GAO estimated that 70% of all polling places are in facilities "potentially subject to Title II or III of the ADA, irrespective of their use as polling places. See GAO Report, supra note 10, at 29.

41 See 42 U.S.C. § 12101(a)(3) ("[D]iscrimination against individuals with disabilities persists in such critical areas as employment, housing, public accommodations, education, transportation, communication, recreation, institutionalization, health services, voting, and access to public services.")(emphasis added); see New York v. County of Schoharie, 82 F.Supp.2d 19, 25 (N.D.N.Y. 2000) (holding that accessibility to polling places qualifies as a "service, program, or activity"); AAPD v. Hood, 310 F.Supp.2d 1226, 1234 (M.D. Fla. 2004) (same).

42 The Department of Justice's Title II regulations giving guidance on discrimination list a number of things public entities cannot due on the basis of disability, including: "(ii) Afford a qualified individual with a disability an opportunity to participate in or benefit from the aid, benefit, or service that is not equal to that afforded others; (iii) provide a qualified individual with a disability withy an aid, benefit, or service that is not as effective in affording equal opportunity to obtain the same result, to gain the same benefit, or to reach the same level of achievement as that provided to others; (iv) provide different or separate aids, benefits, or services to individuals or to any class of individuals with disabilities unless such action is necessary to provide qualified individuals with disabilities with aids, benefits, or services that are as effective as those provided to others." 28 C.F.R. § 35.130. The Regulations also provide that public entities shall administer services, programs, or activities in the most integrated setting appropriate as those provided to others. See id. § 35.130(d).

43 See 42 U.S.C. § 12182(d)(ii) ("It shall be discriminating to afford an individual or a class of individuals, on the basis of a disability or disabilities of such individual or class, directly, or through contractual, licensing, or other arrangements with the opportunity to participate in or benefit from a good, service, facility, privilege, advantage, or accommodation that is not equal to that afforded to other individuals"; see also id. § 12182(d)(iii) ("It shall be discriminatory to provide an individual or class of individuals, on the basis of disability or disabilities of such individual or class, directly or through contractual, licensing, or other arrangements with a good, service, facility, privilege, advantage, or accommodation that is different or separate from that provided to other individuals, unless such action is necessary to provide the individual or class of individuals with a good, service, facility, privilege, advantage, or accommodation that is as effective as that provided to others."). Title III also requires integration in the most integrated setting appropriate to the needs of an individual. See id. § 12182(b)(1)(c).

44 See 28 C.F.R. § 35.130(b)(7); see also 42 U.S.C. § 12182(b)(2)(A)(i)-(v).

45 See 42 U.S.C. § 12101(A)(7).

46 Id. at § 12101(A)(8).

47 Id. at § 12101(A)(3).

48 See DOJ Letter of Finding #18 (Aug. 25, 1993), available at http://www.usdoj.crt/foia/lofc018; DOJ Letter of Finding #21 (Sept. 10, 1993), available at http://www.usdoj.gov/crt/foia/lofc021.txt; DOJ Letter of Finding #23 (Sept. 30, 1993), available at http://www.usdoj.gov/crt/foia/lofc023.txt.

49 See Title II Assistance Manual, § 7.1100.

50 See Fed. Election Comm'n, Innovations in Election Administration 15: Ensuring the Accessibility of the Election Process (1996) at 3-4.

51 118 F.3d 421 (5th Cir. 1997).

52 Id. at 426-27.

53 Id. at 428-31.

54 170 F.3d 641 (6th Cir. 1999).\

55 950 F.Supp. 201, 204-05 (W.D. Mich. 1996).

56 170 F.3d 641, 649-53 (6th Cir. 1999).

57 See American Association of People with Disabilities v. Shelley, 324 F.Supp.2d 1120, 1126 (C.D. Cal. 2004) ("It cannot be disputed that casting a vote independently and secretly would be preferred over casting a vote with the assistance of a family member or other aide. However, the ADA does not require accommodation that would enable disabled persons to vote in a manner that is comparable in every way with the voting rights enjoyed by persons without disabilities. Rather, it mandates that voting programs be made accessible, giving a disabled person the opportunity to vote.").

58 310 F.Supp.2d 1226 (M.D. Fla. 2004).

59 The Court held that at the time the City purchased its optical scan system, it was technologically and financially feasible to employ a voting system readily accessible to visually impaired voters. Id. at 1234.

60 82 F.Supp.2d 19, 25 (N.D.N.Y. 2000).

61 124 S.Ct. 1978 (2004).

62 See Michael Waterstone, Lane, Fundamental Rights, & Voting, Alabama Law Review (forthcoming 2004).

63 42 U.S.C. § 15301 et. seq.

64 Id. § 15481(a)(3)(A).

65 Id. § 15423.

66 Id. § 15421.

67 Id. §§ 15511, 15512.