Accessibility is incredibly important to ensure all voters have equal access to the voting process. More importantly, of late, the Department of Justice and U.S. Attorney’s offices have been stepping up enforcement of ADA standards. As a result, counties are wise to be proactive in dealing with this issue. Once the Department of Justice gets involved the process get much more intense, as well as expensive.
At ElectionIQ we have over a decade of experience conducting ADA surveys. Additionally several of our team have, or have had, members of their family living with disabilities. This gives us an intimate understanding of the need for making accessibility a priority.
Along with our partners at Inclusion Solutions, we can solve almost any accessibility issue. We pride ourselves on being able to put an action plan together that is both budget friendly, and ADA compliant.
ADA Enforcement: A Primer on ADA Enforcement
The Department of Justice, and US Attorney’s Office, is responsible for enforcing the Americans With Disabilities Act (ADA). At the core of their enforcement actions is the ideal that all Americans should have equal access and ability to participate in the democratic process. With regards to polling places, this means accessing/entering a polling place, obtaining a ballot, marking their ballot, and casting their ballot with minimal (if any) assistance.
The DOJ relies heavily on the use of lawsuits (or the threat of lawsuits) as its main enforcement tool. As stated on their website…
“Through lawsuits and settlement agreements, the Department of Justice has achieved greater access for individuals with disabilities in hundreds of cases. Under general rules governing lawsuits brought by the Federal government, the Department of Justice may not sue a party unless negotiations to settle the dispute have failed.
The Department of Justice may file lawsuits in federal court to enforce the ADA, and courts may order compensatory damages and back pay to remedy discrimination if the Department prevails. Under title III, the Department of Justice may also obtain civil penalties of up to $55,000 for the first violation and $110,000 for any subsequent violation.”
So you’ve been contacted by the Department of Justice (or U.S. Attorney’s Office) and informed that they want to assess your polling places for compliance with the Americans with Disabilities Act (ADA). Now what?
First and foremost you should meet with the appropriate parties within your county. This usually includes (but is not limited to) commissioners, solicitor, county manager, and election director. It’s important that everyone understand the upcoming process and what will be expected of all involved parties.
The process will not necessarily be fun, but it will ultimately ensure that your voters have appropriate access regardless of their physical or mental abilities. In fact the process will likely be stressful and, unfortunately, costly. The good news is there are ways to minimize the stress and cost, while maximizing the benefits. And in the end your county will be better off.
DOJ Initial Contact
The Department of Justice will send your county a letter stating their intentions to evaluate your polling places. Upon receiving this letter consider yourself officially in the enforcement protocol. At this point you will need to start crafting a plan that includes:
- how you wish to respond/interact with the DOJ
- how you will conduct surveys on ALL of your polling places
- how you will implement needed modifications to polling places
Shortly after receiving the letter you will have an initial meeting with the U.S. Attorney’s assigned representative to discuss how they wish to proceed.
DOJ Polling Place Evaluation and Reporting
Typically, after the initial meeting with the U.S. Attorney’s Office, evaluators will come out (normally on Election Day) and survey a random number of your polling locations. Afterwards they will compile the information and analyze the surveys to produce a final report stating the status of the evaluated locations. The results are typically sorted into one of three categories:
- Accessible without any modication
- Inaccessible, but fixable with temporary measures
- Inaccessible and NOT fixable with temporary measures.
This final report usually takes between 4 and 8 months to be delivered to you. Once delivered the U.S. Attorney’s Office will request another meeting to discuss the results and negotiate a settlement agreement. The settlement agreement will be aimed at ensuring that the county remedies the issues found and bring the location in compliance with the most current ADA standards.
Action Plan and Settlement Agreement
Once a settlement agreement is reached it is up to your county to implement the actions spelled out in that agreement. Be very careful to review the agreement and ensure everyone understands the actions required, timelines, and potential penalties.
More than likely you will be required to survey all polling locations for ADA compliance. From those surveys the U.S. Attorney’s Office will want a full report of issues and your plans for remedying the issues.
One of the most often complaints we hear is “we don’t have the money to do all this at once.” Typically as long as you provide a detailed plan for how and when (as long as you propose reasonable timelines) you will be ok.
The consequence for not following through or adhering to the agreed upon settlement agreement is costly. To begin with you can be taken to court or fined. But what will be truly costly is that you will (in most cases) be forced to use the DOJ-sanctioned consultant to survey polling locations and provide solutions. Counties that have been through this report that they are essentially forced to pay for any and all expenses incurred by the consultants. This can include flights, rental cars, hotels, meals, supplies, and more. And because you are in breach of the settlement agreement you have little to no recourse or ability to challenge the expenses submitted.
Additionally, it has been found that the cures required by the consultants tend to be widely expensive (even when cheaper solutions exist).
Bottom line = don’t break the settlement agreement terms or expectations!
Many counties we deal with want to fight the DOJ in the beginning. While this is an option we tend to advise against this. To begin with it is very difficult to win. For the most part the DOJ is correct in that many polling locations across the U.S. are not compliant. Additionally, it is very expensive. The average lawyer charges between $150-500 per hour. And that’s just HIS time. That doesn’t include his staff or other junior attorney’s working on your behalf.
At that rate it is easily conceivable that if you truly try and fight the DOJ you could rack up tens or hundreds of thousands of dollars in legal fees. And when you lose, you will STILL be required to fix all the issues that exist.
There may very well be situations where you and your county have a legitimate reason to push back, or even flat out fight the DO. However, those situations are few and far between.
Plus, fixing the accessibility issues that exist can actually be a great PR story for the county…certainly a much better one than a story chronically the thousands spent fighting only to be forced to spend thousands more to fix the problems.
There are many things you can do to make this processes easier and less painful.
- Be proactive and survey your polling sites BEFORE the Department of Justice ever comes knocking. After all, knowledge is power and the more you know about your polling places, the better equipped you are to deal with issues.
- Hire a survey expert – assessing polling places isn’t as straightforward as it may seem. While the ADA checklist says it’s designed to be used by people without special training, the reality is there are many nuances to the ADA. Some of these include the difference between rules for permanent structures/access vs. temporary access (like on Election Day), exceptions to rules, allowed deviation from requirements, etc. Being versed in these nuances is critical to ensuring a proper assessment.
- Consult an attorney with experience dealing with the Department of Justice on ADA issues.
- Plan ahead and fix issues that exist. No one likes having to spend money. It’s also getting harder and harder to get money put into budgets. However by doing it now you can do it on YOUR schedule, and at YOUR pace. Once the DOJ is involved you lose a lot of control.
- Work with the owners of polling places. Encourage borough/township/city government to take ownership of the access issues. Many times these groups can work with state and federal legislators to gain access to block grants to help with cost. Every fix done by them is one less you have to deal with.
- Hire a solutions expert – Working with a company that has experience providing ADA solutions can save your county significant money. In many cases they can find ways to make a location compliant for a fraction of what a permanent fix requires. Temporary fixes like ramps, door bells, signs, and more should all be a part of your solutions plan.
This information should not be considered official legal advice and should not be used in lieu of consulting with a licensed attorney. The information above is a compilation of our experiences, our clients experiences, and our staffs’ decades of experience with the ADA enforcement process.