A federal appeals panel has upheld an order requiring New York City’s Board of Elections to enact a “comprehensive remedial plan” to make its polling places accessible to people with disabilities.
Second Circuit Judge Denny Chin (See Profile) wrote the opinion in Disabled in Action v. Board of Elections, 12-4412, handed down Wednesday. The decision, which was joined by Judges Jose Cabranes (See Profile) and Peter Hall (See Profile), affirmed an order by Southern District Judge Deborah Batts (NYLJ, Oct. 22, 2012).
The suit was filed in 2010 by two non-profits that advocate for the rights of people with disabilities, Disabled in Action and the United Spinal Association.
The groups alleged that polling places in New York City were routinely inaccessible to people with disabilities, violating the Americans with Disabilities Act. They cited surveys conducted by the Center for Independence of the Disabled, New York (CIDNY), an entity designated by the state to train poll site surveyors in accessibility issues. The surveys, conducted between 2008 and 2011, showed that at least 80 percent of polling places had at least one barrier to access.
The city argued that it already provided reasonable accommodations by allowing people whose designated poll sites were inaccessible to vote at different, accessible sites. In order to vote at a different site, they were required to submit an application 14 days before an election.
Batts granted the plaintiffs’ motion for summary judgment and ordered the parties to develop a remedial plan. She signed off on a plan in October 2012, to be implemented in time for the November 2012 general election.
The plan, based on a settlement between the U.S. Department of Justice and the city of Philadelphia, required the city to designate one poll worker at every polling site as an Americans with Disabilities Act Coordinator, who would be specially trained on accessibility issues.
The elections board was also required to develop an accessibility checklist for polling sites, working with the center to document complaints about accessibility and to file a report on those complaints within 45 days of election day.
The plan further required the the board to contract with a third-party expert on accessibility to survey poll sites throughout the city. The plan gave the district court jurisdiction over its implementation through Dec. 16, 2016.
The city complied, but also appealed the summary judgment order and the remedial order.
Chin, affirming Batts, rejected the city’s argument that assigning people with disabilities to new polling places could be a sufficient accommodation under the ADA. The law, he said, required the city to offer them the same benefit it offered everyone else.
“Indeed, to assume the benefit is anything less—such as merely the opportunity to vote at some time and in some way—would render meaningless the mandate that public entities may not ‘afford’ persons with disabilities services that are not equal to that afforded others,’” Chin wrote, quoting the Second Circuit’s 2003 decision in Henrietta D. v. Bloomberg, 331 F.3d 261, 290.
“By designating inaccessible poll sites and failing to assure their accessibility through temporary equipment, procedures, and policies on election days, BOE denies plaintiffs meaningful access to its voting program,” he said.
Chin also said that assigning people to alternative polling places “may constitute a reasonable accommodation under some circumstances.”
In practice, however, the city provided no evidence that it actually reassigned any voters or gave them notice that they could be reassigned, Chin said. In fact, he said, it was unclear how voters would know that their polling site was inaccessible before election day, since the city itself didn’t always know.
Finally, Chin rejected the city’s “conclusory claims” that the remedial order was excessive and an undue burden.
The plaintiffs’ attorney, Stuart Seaborn of the non-profit Disability Rights Advocates, said he was “thrilled” with the decision.
“We’re surprised and pleased with how thorough the court was,” he said. “This is a widespread problem. In an older city like New York, poll sites have been inaccessible for many years.”
“We raised the issue multiple times with the city before filing our complaint,” Seaborn added. “We experienced incredible resistance from the city at every step of the way.”
The plaintiffs are also represented by solo attorney Kevin Mintzer and by Mariann Meier Wang of Cuti Hecker Wang.
The city is represented by Drake Colley and Edward Hart of the city law department. A spokesperson said the city was reviewing the decision.