Case 3:01-cv-01275-HLA-HTS Document 1 Filed 11/08/01 Page 1 of 21

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION

FILED
1fP
zom NOV -8 P 2: Sb

)

American Association of People with

)

Disabilities, Daniel W. O'Conner,

)

Kent Bell, and Beth Bowen

)

)

Plaintiffs, on behalf of themselves and )

others similarly situated

)

)

v.

)

)

Katherine Harris, as Secretary of State for the )

State of Florida; L. Clayton Roberts, as Director, )

Division of Elections; John Stafford. as

)

Supervisor of Elections in Duval County,

)

Florida; Warren Alvarez; Elaine Brown; Matt )

Carlucci; Doyle D. Carter; Gwen Chandler-

)

Thompson; Lad Daniels; Reggie Fullwood;

)

Alberta Hipps; Jerry Holland; King Holzendorf; )

Suzanne Jenkins; Pat Lockett-Felder; Jim

)

Overton; Lake Ray, HI; Faye Rustin; Lynette )

Self; Ginger Soud; Mary A. Southwell; and

)

Gwen Yates, as Members ofthe Jacksonville, )

Florida City Council,

)

)

Defendants.

)

COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF AND DEMAND FOR JURY TRIAL
NATURE OF ACTION
"The Administration ... supports improving access to polling places and ballot secrecy
for people with disabilities .... The story of America ... is the story of ever-widening circle of
inclusion ... That circle was widened ten years ago, when Congress passed the Americans with Disabilities Act. Because of the ADA, discrimination against a person with a disability is not just unkind or cruel or wrong: It is an infringement of federal law, and a violation of civil rights ." President George W Bush, February i, 2001.

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1. By this action, blind and manually impaired voters in Duval County, Florida seek to ensure their basic right to cast a direct and secret ballot. Through the action and inaction of the bodies that govern the Duval County voting process, voters with visual and manual disabilities have been denied their right to vote for the candidates of their choice in the free and unimpaired manner enjoyed by non-disabled citizens. They have been denied that right because the voting equipment certified, used and recently purchased by Defendants is not accessible to voters with visual or manual impainnents. The baniers imposed by that voting equipment vanish through the use of existing and readily available technology. Accessible voting equipment is the only method of ensuring that voters with visual or manual disabilities can exercise their right to cast a direct and secret ballot. Plaintiffs seek the Court's assistance in assuring that such equipment becomes a standard part of the voting process.
JURISDICTION AND VENUE 2. This action arises under the Americans with Disabilities Act ("ADA"), 42 U.S.C. Siction 12133, Section 504 of the Rehabilitation Act of 1973 ("Rehabilitation Act"), 29 U.S.C. Section 794, and the Florida Constitution. Accordingly, subject matter jurisdiction is founded upon 28 U.S.C. Sections 1331 and 1343 . 3. Venue is proper in this judicial disuict pursuant to 28 U.s.C. Sections 1391(b)(l) and (b)(2) because (a) some of the Defendants reside in this judicial district and all Defendants reside in Florida, and (b) a substantial part of the events or omissions giving rise to Plaintiffs' claims occurred and are occurring within this judicial district.
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THE PARTIES A. Individual Plaintiffs 4. Plaintiff, Daniel W. O'Conner ("O'Conner"), a voter with manual impairments,
is a citizen of and is registered to vote in Duval County, Florida. 5. Plaintiff, Kent Bell (<<Bell"), a voter with visual impairments, is a citizen of and is
registered to vote in Duval County. Florida. 6. Plaintiff, Beth Bowen ("Bowen"), a voter with visual impairments, is a citizen of
and is registered to vote in Duval County, Florida. B. Organizational Plaintiff
7. Plaintiff, American Association of People with Disabilities C'AAPD"), is a national nonprofit membership organization dedicated to promoting the economic and political empowerment of all people with disabilities; educating business and the general public about disability issues~ and providing membership benefits, such as financial services and product discounts. A group of cross·disability leaders founded AAPD in 1995 to unite the diverse community of people with disabilities·· including their families, friends and supporters·· and to be a local and national voice for change in implementing the goals of the ADA, equality of opportunity, full participation, independent living, and economic self·sufficiency.
C. Defendants 8. Defendant, Katherine Harris ("Harris"), is the Florida Secretary of State. Defendant Harris is sued in her official capacity only.
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9. Defendant, L. Clayton Roberts ("Roberts"), is the Director for the Division of Elections within the Florida Department of State. Defendant Roberts is sued in his official capacity only.
10. Defendant, John Stafford ("Stafford"), is the Supervisor of Elections for Duval County, Florida. Defendant Stafford is sued in his official capacity only.
II. Defendant, Warren Alvarez ("Alvarez"), is a Member of the Jacksonville City Council. Alvarez is sued in his official capacity only.
12. Defendant, Elaine Brown ("Brown"), is a Member of the Jacksonville City Council. Brown is sued in her official capacity only.
13. Defendant, Matt Carlucci ("Carlucci"), is a Member of the Jacksonville City Council. Carlucci is sued in his official capacity only.
14. Defendant, Doyle D. Carter ("Carter"), is a Member of the Jacksonville City Council. Carter is sued in his official capacity only.
15. Defendant, Gwen Chandler-Thompson ("Chandler-Thompson"), is a Member of the Jacksonville City Council. Chandler-Thompson is sued in her official capacity only.
16. Defendant, Lad Daniels ("Daniels"), is a Member of the Jacksonville City Council. Daniels is sued in his official capacity only.
17. Defendant, Reggie Fullwood ("Fullwood"), is a Member of the Jacksonville City Council. Fullwood is sued in his official capacity only.
18. Defendant, Alberta Hipps ("Hipps"), is a Member of the Jacksonville City Council. Hipps is sued in her official capacity only.
19. Defendant, Jerry Holland ("Holland"), is a Member of the Jacksonville City Council. Holland is sued in his official capacity only.
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20. Defendant, King Holzendorf("Holzendorf,), is a Member of the Jacksonville City Council. Holzendorf is sued in his official capacity only.
21. Defendant, Suzanne Jenkins ("Jenkins"), is a Member afthe Jacksonville City Council. Jenkins is sued in her official capacity only.
22. Defendant, Pat Lockett-Felder ("Locket-Felder"), is a Member of the Jacksonville City Council. Lockett-Felder is sued in her official capacity only.
23. Defendant, Jim Overton ("Overton"), is a Member of the Jacksonville City Council. Overton is sued in his official capacity only.
24. Defendant, Lake Ray, III ("Ray"), is a Member of the Jacksonville City Council. Ray is sued in his official capacity only.
25. Defendant, Faye Rustin ("Rustin''), is a Member of the Jacksonville City Council. Rustin is sued in her official capacity only.
26. Defendant, Lynette Self("Self'), is a Member of the Jacksonville City Council. Self is sued in her official capacity only.
27. Defendant, Ginger Soud ("Soud"), is a Member of the Jacksonville City Council. Soud is sued in her official capacity only.
28. Defendant, Mary A. Southwell ("Southwell"), is a Member of the Jacksonville City Council. Southwell is sued in her official capacity only.
29. Defendant, Gwen Yates ("Yates"), is a Member of the Jacksonville City CounciL Yates is sued in her official capacity only.
30. The Defendant Council Members listed in paragraphs 12 through 29 above are referred to herein collectively as the "Council".
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D. Class Action Allegations 31. Plaintiffs bring this action on their own behalf and on behalf of all other persons similarly situated, pursuant to Federal Rule of Civil Procedure 23(a) and 23(b)(2). The class consists of all persons who are citizens of Duval County, Florida, who are registered to vote in that county, and who have either visual or manual impainnents that have prevented them from voting directly and secretly in the past and will do so in the future if the county fails to procure accessible voting equipment.
1. Subclasses 32. The class consists of two subclasses.
a. Plaintiffs with visual impairments 33. The first subclass consists of citizens of Duval County, Florida who are registered to vote in that county and who have visual impainnents that prevent them from voting directly and secretly using either the current voting system or the voting system Duval County has decided to purchase. 34. On infonnation and belief, Plaintiffs believe the subclass to number no less than 30,000 persons.
2. Plaintiffs with manual impairments 35. The second subclass consists of citizens of Duval County, Florida who are registered to vote in that county and who have manual impainnents that prevent them from voting directly and secretly using either the current voting system or the voting system Duval County has decided to purchase. 36. On infonnation and belief, Plaintiffs believe the subclass to number no less than 10,000 persons.
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E. Class Action Prerequisites 37. The questions of law or fact common to the class include whether Defendants have violated the ADA, the Rehabilitation Act, andlor the Florida Constitution by denying class members full participation in the voting process by, among other things, failing to provide voting machines that are accessible and independently usable by persons with visual or manual impairments so as to allow them to vote directly and secretly. 38. The claims of the named Plaintiffs - that Defendants violate their rights under the ADA, the Rehabilitation Act, and the Florida Constitution by failing to provide voting machines accessible to and independently usable by persons with visual and manual impainnents - are typical of all putative class members ' claims. 39. The named Plaintiffs will fairly and adequately protect the interests of the class. The named Plaintiffs wish to exercise their right to a direct and secret ballot under the same conditions as non-disabled persons and seek to secure this right for themselves and all similarly situated persons. They have no interests that conflict with other class members. Plaintiffs' counsel is experienced in litigating class actions, including enforcement of the civil rights of people with disabilities. 40. Defendants have acted or refused to act on grounds generally applicable to the class, thereby making injunctive and declaratory relief appropriate.
FACTS COMMON TO ALL COUNTS A. Plaintiffs With Disabilities in Duval County, Florida 41. Individual Plaintiffs are all persons with disabilities who desire to participate fully and equally in the voting process in Duval County, Florida. They are legally entitled to vote as
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non-disabled voters do - in person using accessible voting machines that permit them to cast direct and secret ballots.
42. Plaintiffs Bell and Bowen are voters with visual impainnents. Because of their disabilities, they cannot cast a direct and secret ballot with the equipment currently in use or the equipment Duval County has decided to purchase. In order to cast their ballots, they must be assisted by a third party of their choosing or provided by the polling place. The third party reads the ballot to the voter. Then the voter chooses a candidate and tells the third party the choice. Finally, the third party must mark the ballot with the voter 's choice. The voter has no way of assuring that the ballot was correctly cast. His or her vote is neither direct nor secret.
43. PlaintifTO'Conner is a voter with manual impainnents. Because he cannot manipulate a writing instrument or touchscreen, he cannot cast a direct and secret ballot with the equipment currently in use or the equipment Duval County has decided to purchase. In order to cast his ballot, he must be assisted by a third party of his choosing or provided by the polling place. The voter chooses a candidate and tells the third party the choice. The third party must then mark the ballot with the voter's choice. His or her vote, therefore, is neither direct nor secret.
44. Plaintiff AAPD has members with visual and manual impainnents who are citizens of and are registered to vote in Duval County, Florida. These members are required to vote under the conditions described in Paragraphs 42 and 43 above and, therefore, their votes are neither direct nor secret.
B. Voting Systems 45. In Florida, a county cannot purchase or use a voting machine until it has been certified by the Florida Department of State.
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46. The Florida Department of State only authorizes counties to purchase and use two types of voting systems.
47. The two types of voting systems currently authorized are optical scan and touchscreen.
Optical Scan Machines 48. With an optical scan voting system, the voter selects a candidate by using a pencil or pen to darken the oval, rectangle, or square on the ballot. The ballot is then fed into an optical reader, which detects and counts the votes. 49. Optical scan voting systems are not accessible to voters with visual or manual impairments sufficient to ensure a direct and secret ballot. 50. If a county implemented the inaccessible optical scan system, voters with visual or manual disabilities could not complete, verify, and cast direct and secret ballots or otherwise vote under the same conditions as non-disabled persons.
Touchscreen Machines 51. With a touchscreen voting system, the voter uses a keyboard to select a candidate and then presses "vote." The ballot is registered and processed through the system much like a computer or ATM. 52. Touchscreen voting systems are not accessible to voters with visual impainnents without using an audio option whereby the voter listens to the candidates' names on headphones and then selects a candidate on a key that is distinctively shaped. 53. Touchscreen systems also are not accessible to voters with manual impairments without the option of selecting a candidate by blowing into a putT stick device or using some other accessible switch technology.
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54. If a county implemented the potentially accessible touchscreen system with the audio and puff stick modifications, voters with disabilities could complete, verify, and cast direct and secret ballots.
55. Duval County, Florida has decided to purchase approximately 300 optical scan machines and may purchase no more than three or four touchscreen voting machines to be located only at voting headquarters.
56. There are 147,000 people with disabilities in Duval County, Florida. On infonnation and belief, there are no less than 40,000 voters with visual or manual impainnents. The three or four touchscreen machines, even if purchased, will cover 268 precincts (upon redistricting approximately 300 precincts), 268 polling places, and all of Jacksonville, Florida, which is the largest land area city in the United States.
C. Denial of Rigbts 57. Defendants have failed to ensure that voters with visual or manual impainnents may cast a direct and secret ballot or otherwise vote under the same conditions as non-disabled persons. 58. By failing to guarantee voters with visual and manual impainnents a direct and secret ballot. Defendants have discriminated and continue to discriminate against Plaintiffs and others similarly situated on the basis of their disabilities.
1. Defendants Harris and Roberts 59. Defendants Harris and Roberts oversee elections, prescribe rules and regulations to implement election laws, and ensure that al1 aspects of the election process comply with Florida law. 60. Defendants Harris and Roberts must approve all voting systems used in any state or federal election in Florida. This approval is known as certification of voting systems.
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61. A county can only purchase a voting system that Defendants Harris and Roberts have certified.
62. Currently, six optical scan systems and one touchscreen system are certified for purchase by the counties in Florida.
63. Only the touchscreen system is potentially accessible to voters with visual and manual impairments, and it is accessible to members of the Plaintiff class only if modified with the audio and puff stick options.
64. Plaintiffs have asked Defendants Harris and Roberts to certify only voting systems that are accessible to persons with visual and manual impairments.
65. Defendants Harris and Roberts have certified voting systems that are not accessible to voters with visual or manual impairments and, thus, have authorized counties to purchase inaccessible voting systems.
66. By certifying inaccessible voting systems, and thereby allowing counties to continue purchasing inaccessible voting systems, Defendants Harris and Roberts have denied Plaintiffs and others similarly situated their right to a direct and secret ballot and discriminated against Plaintiffs and others similarly situated based on their disabilities.
2. Defendants Stafford and Council 67. Defendants Stafford and Council are responsible for supervising all elections in Duval County, Florida, and for choosing and purchasing voting systems used in those elections. 68. Recently, Defendants Stafford and Council decided to purchase optical scan voting systems for Duval County. 69. Despite the knowledge that the optical scan voting system is not accessible and independently useable by voters with visual or manual impairments, Defendants Stafford and
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Council decided to purchase optical scan systems and failed to provide voters with disabilities full access to the voting process.
70. By deciding to purchase optical scan systems, Defendants Stafford and Council perpetuated a voting system inaccessible to voters with visual and manual impainnents, denied Plaintiffs and others similarly situated their right to a direct and secret ballot and discriminated against Plaintiffs and others similarly situated based on their disabilities.
71. Recently, Defendants Stafford and Council also decided that Duval County may purchase nor more than three or four touchscreen systems for Duval County.
72. Despite the knowledge that the touchscreen voting system is accessible and independently useable by voters with visual or manual impairments only with the audio and puff stick options or other switch modifications, Defendants Stafford and Council decided that Duval County may purchase nor more than three or four touchscreen systems to be located only at voting headquarters thereby depriving Plaintiffs and others similarly situated of their right to vote through a direct and secret ballot under the same conditions as non-disabled persons.
73. By failing to provide an accessible touchscreen machine in every precinct, Defendants Stafford and Council perpetuated a voting system inaccessible to voters with visual and manual impainnents, denied Plaintiffs and others similarly situated their right to a direct and secret ballot, and discriminated against Plaintiffs and others similarly situated based on their disabilities.
74. Failure to implement a voting system that is compliant with the ADA, Rehabilitation Act, and the Florida Constitution by the next election would cause irreparable injury to voters with visual or manual impainnents by preventing them from fully exercising their right to vote by direct and secret ballot in that election.
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COUNT ONE AMERICANS WITH DISABILITIES ACT 75. Plaintiffs reallege and incorporate herein the allegations set forth in Paragraphs I through 74 above. 76. Individual Plaintiffs are either visually or manually impaired. They are qualified
individuals with a disability as defined in 42 U.S.C. § 12131 (2) and 28 CFR § 35.104. 77. Defendant Katherine Hams is Florida Secretary of State, Defendant L. Clayton
Roberts is Director of the Division of Elections, Defendant John Stafford is the Supervisor of Elections of Duval County. Florida, and Defendant Council are the entities responsible for elections in Duval County, They are public entities in their official capacities and are departments of a local government as defined in 42 U.S.c. § 12131 (I) and 28 CFR § 35.104.
1. Denial of Participation 78. The ADA, 42 U.S.C. § 12132, and its implementing regulation at and 28 C.F.R. § 35.130, require that no qualified individual with a disability, on the basis of that disability. be excluded from participation in or be denied the benefit of the services, programs, or activities of a public entity. 79. Defendants have discriminated and will continue to discriminate against Plaintiffs and others similarly situated because of their disabilities by excluding them from participation in and denying them the benefits of the Defendants' services, programs or activities, specifically, the right to vote in the same manner as non-disabled persons. 80. FLA. STAT. CH. 101.294 requires Defendants Harris and Roberts to certify all voting systems that are available for purchase by Florida counties. 81. FLA. STAT. CH. 101.5606(1) requires Defendants Harris and Roberts to decline to approve a voting system unless it pennits and requires voters to cast a secret ballot.
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82. By certifying voting systems that are inaccessible, Defendants Harris and Roberts have denied Plaintiffs and others similarly situated the benefit of voting by direct and secret ballot and. therefore. have not afforded Plaintiffs and others similarly situated the same opportunity to participate in the voting process as non-disabled voters.
83. FLA. STAT. CH. 101 .294 authorizes Defendants Stafford and Council to purchase voting equipment that Defendants Harris and Roberts have certified.
84. FLA. STAT. CH. 101.28(1)(a) requires Defendants Stafford and Counci l to purchase voting equipment that allows voters to cast a secret ballot.
85. By deciding to purchase voting equipment that is not accessible to voters with visual or manual impainnents, Defendants Stafford and Council have denied Plaintiffs and others similarly situated the benefit of voting by direct and secret ballot and, therefore, have not afforded Plaintiffs and others simi larly situated the same opportunity to participate in the voting process as non-disabled voters.
86. Through the actions and circumstances described above, Defendants have violated and, unless enjoined, will continue to violate the ADA, 42 U.S.C. § 12132 and 28 C.F.R. § 35. 130.
2. Failure to Ensure Accessible Design and Construction 87. 28 C.F.R. § 35.151 (a) and (b) requires that facilities constructed or altered for Defendants' use must be designed and constructed to be readily accessible to and usabl e by people with di sabilities. 88. By certifying voting systems that are not designed and constructed to be readily accessible to and usable by voters with visual and manual impainnents. Defendants Harris and
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Roberts have failed to ensure that the Florida's new voting equipment will be designed and constructed to be readily accessible to and usable by people with disabilities.
89. By deciding to purchase voting equipment that is not accessible to voters with visual and manual impairments, Defendants Stafford and Council have failed to ensure that the Florida's new voting equipment will be designed and constructed to be readily accessible to and usable by people with disabilities.
90. Through the actions and circumstances described above, Defendants have violated and, unless enjoined, will continue to violate the ADA, 42 U.S.C. § 12132 and 28 C.F.R. § 35.151 (a) and (b).
3. Failure To Provide Auxiliary Aids And Service 91. 28 C.F.R. § 35. 160(a) requires Defendants to take appropriate steps to ensure that voters with visual and manual impairments can communicate their vote as effectively as nondisabled voters. 92. By certifying voting systems that are not accessible to voters with visual and manual impairments, Defendants Harris and Roberts have failed to take appropriate steps to ensure that voters with disabilities are able to communicate their votes as effectively as nondisabled voters. 93 . By deciding to purchase voting systems that deprive voters with disabilities of their right to vote directly and secretly, Defendants Stafford and Council have failed to take appropriate steps to ensure that voters with disabilities are able to communicate their votes as effectively as non-disabled voters.
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94. 28 C.F.R. § 35.160(b)(1) requires Defendants to furnish appropriate auxiliary aids so that voters with disabilities have an equal opportunity to participate in and enjoy the benefits of voting by direct and secret ballot.
95. By certifying voting systems that do not have accessible components, Defendants Hams and Roberts have failed to furnish appropriate auxiliary aids so that voters with disabilities have an equal opportunity to participate in and enjoy the benefits of voting by direct and secret ballot.
96. By deciding to purchase optical scan voting systems that do not have accessible components, Defendants Stafford and Council have failed to furnish appropriate auxiliary aids so that voters with disabilities have an equal opportunity to participate in and enjoy the benefits of voting by direct and secret ballot.
97. 28 C.F.R. § 35.160(b)(2) requires Defendants to give primary consideration to requests of the individual with disabilities in determining the auxiliary aids and services to provide.
98. Plaintiffs have made specific requests of Defendants to certify and purchase only accessible voting systems that ensure Plaintiffs' right and the right of others similarly situated to cast a direct and secret ballot under the same conditions as non-disabled persons.
99. By ignoring Plaintiffs' request to certify only accessible voting systems, Defendants Harris and Roberts have failed to give primary consideration to the requests of voters with disabilities in detennining the auxiliary aids and services to provide.
100. By disregarding Plaintiffs' pleas to ban optical scan and by deciding to purchase optical scan systems, Defendants Stafford and Council have failed to give primary consideration
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to the requests of voters with disabilities in determining the auxiliary aids and services to provide.
101 . Through the actions and circumstances described above. Defendants have violated and, unless enjoined, will continue to violate the ADA, 42 U.S.C. § 12132 and 28 C.F.R. § 35.160(a), (b).

COUNT TWO ARTICLE VI OF THE FLORIDA CONSTITUTION
102. Plaintiffs reallege and incorporate herein the allegations set forth in Paragraphs 1-

74 and 79-85 above.

103. Article VI, Section 1. of the Florida Constitution guarantees each citizen the right

to a "direct and secret vote." FLA. CONST. ART. VI, § I (1968).

104. By certifying voting systems that are not accessible to voters with visual and

manual impairments without third party assistance, Defendants Harris and Roberts have denied

such voters (including Plaintiffs) the right to a direct and secret vote in violation of Article VI, §

1 of the Florida Constitution.

•

105. By deciding to purchase voting systems that prevent voters with visual and

manual impainnents (including Plaintiffs) from voting without third party assistance.

Defendants Stafford and Council are perpetuating a system that denies such voters their right to

a direct and secret vote.

106. FLA. STAT. CH. 101.051 permits voters with visual or manual impairments to cast

their votes with the assistance of a third person who marks the ballot for the disabled individual.

This statute violates the Florida Constitution because it prevents voters with disabilities from

secretly and directl y casting their own ballots.

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107. FLA. STAT. CH. 101.5606 requires that each voting system approved by Defendant Harris and Defendant Roberts "permits and requires voting in secrecy." This statute does not require a direct and secret vote and, thus, violates the Florida Constitution.
108. FLA. STAT. CH. 101.28 requires that all voting machines purchased "secure to the elector secrecy in the act of voting." This statute does not require the purchase of voting equipment that ensures a direct and secret vote and, thus, violates the Florida Constitution.
109. Through the actions and circumstances described above, Defendants have violated, and unless enjoined, will continue to violate Plaintiffs' rights under Article VI, § 1 of the Florida Constitution.
COUNT THREE REHABILITATION ACT 110. Plaintiffs reallege and incorporate herein the allegations set forth in Paragraphs 174 and 79-85 above. 111 . Individual Plaintiffs have either visual or manual impairments. They are qualified individuals with disabilities according to 28 C.F.R. Section 42.540(k) and 45 C.F.R. Section 84.3. They are registered to vote in Duval County, Florida. 112. Defendants are an instrumentality of a local government that is a recipient of federal financial assistance. 113. Section 504 of the Rehabilitation Act, 29 U.S.C. § 794, and its implementing regulation, 28 CFR § 42.503, require that no qualified individual with a disability, on the basis of that disability. be excluded from participation in or be denied the benefit of the selVices, programs, or activities of a public entity. 114. Defendants have discriminated and will continue to discriminate against Plaintiffs and others similarly situated because of their disabilities by excluding them from participation in
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and denying them the benefits of the Defendants' services, programs or activities, specifically, the right to vote in the same manner as non-disabled persons.
115. By certifying machines that do not enable voters with visual and manual impainnents to mark their own ballots without third party assistance, Defendants Harris and Roberts violate the Rehabilitation Act of 1973, Section 504, 29 U.S.c. § 794 and 28 CFR § 42.503.
116. By deciding to purchase voting machines that prevent voters with visual and manual impainnents from voting without third party assistance, Defendants Stafford and Council have violated the Rehabilitation Act of 1973, Section 504, 29 U.S.C. § 794 and 28 CFR
§ 42.503.
117. Through the actions and circumstances described above, Defendants have violated and, unless enjoined, will continue to violate the Rehabilitation Act, Section 504, 29 U.S.c. §
794 and 28 CFR § 42.503. (a). COUNT FOUR
DECLARATORY RELIEF
118. Plaintiffs reallege and incorporate herein the allegations set forth in Paragraphs 174,76-101, 103-109, and 111-117above.
119. Plaintiffs on behalf of themselves and all others similarly situated seek a declaratory judgment pursuant to 28 U.S.C. Section 2201 to resolve an actual and justiciable controversy as alleged above.
PRAYER FOR RELIEF WHEREFORE, Plaintiffs request that this Court enter judgment in their favor as follows:
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A. That this Court assume jurisdiction; B. That this Court certify the case as a class action; C. That this Court declare that Defendants' actions and inactions violate the ADA, Rehabilitation Act, and Florida Constitution; D. That this Court declare voting machines that do not enable persons with visual or manual disabilities to cast direct and secret votes, without the assistance of another person, violate Article VI, Section 1, of the Florida Constitution. E. That this Court declare FLA. STAT. CH. 101.051 (200 I), FLA. STAT. CH. 101.5606 (2001), and FLA. STAT. CH. 101.28 (2001) unconstitutional under the Florida Constitution. F. That this Court issue preliminary and pennanent injunctions enjoining Defendants from continuing their illegal and discriminatory actions, including the purchase ofnew voting equipment that is inaccessible in violation of the Americans with Disabilities Act. Section 504 of the Rehabilitation Act, and the Florida Constitution; G. That this Court issue such other relief as may be just, equitable and appropriate, including an award ofreasonable attorneys' fees, litigation expenses and costs pursuant to 42 U.S.c. § 12205.
JURY TRIAL DEMAND Pursuant to Federal Rule of Civil Procedure 38, Plaintiffs demand trial by jury of all issues so triable of right.
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Respectfully submitted,
~ <-<4 ,.g?-~' '''1r=
l. ouglas Baldndge Trial Counsel Florida Bar No. 0708070 HOWREY SlMON ARNOLD & WHITE, L.L.P. 1299 Pennsylvania Ave. , N.W. Washington, D.C. 20004 (202) 783-0800 Lois G. Williams Co-Counsel Washington Lawyers' Committee for Civil
Rights and Urban Affairs II Dupont Circle NW, Suite 400 Washington, D.C. 20036 (202) 319-1000 Attorneys for Plaintiffs
Dated: November 8, 2001 Of Counsel: Alan M. Wiseman Danielle R. Oddo Courtney O. Taylor Vincent E. Verrocchio HOWREY SlMON ARNOLD & WHITE, L.L.P. 1299 Pennsylvania Ave., N.W. Washington, D.C. 20004 (202) 783-0800
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 Case 3:01-cv-01275-HLA-HTS Document 6 Filed 12/21/01 Page 1 of 23 PageiD 34

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA

• •1)1)

JACKSONVILLE DIVISION

ZOOI DEC 21 P ) 21 ·

American Association ofPeople with Disabilities, Daniel W. O'Conner, Kent Bell, and Beth Bowen,
Plaintiffs,

CLERK. US DISTRICT COURT ~~IOOLE DISTRICT OF FLORIDA
JACKSONVILLE. FLORIDA

v.

Case No.: 3:01-CV-1275-J-21 TJC

Katherine Harris, as Secretary of State for the State of Florida; L. Clayton Roberts, as Director, Division of Elections; John Stafford, as Supervisor of Elections, Duval County; Warren Alvarez; Elaine Brown; Matt Carlucci; Doyle D. Carter; Gwen ChandlerThompson; Lad Daniels; Reggie Fullwood; Alberta Hipps; Jerry Holland; King Holzendorf; Suzanne Jenkins; Pat Lockett-Felder; Jim Overton; Lake Ray, III; Faye Rustin; Lynette Self; Ginger Soud; Mary A Southwell; and Gwen Yates, as Members of the Jacksonville, Florida City Council.

Defendants.
--------------------------------~'
MOTION TO DISMISS AND MEMORANDUM OF LAW Pursuant to Rule 12(b), Federal Rules of Civil Procedure, Defendants, John Stafford, as Supervisor of Elections, and the members of the City Council, move to dismiss this action. Plaintiffs seek declaratory and injunctive relief, asserting violations of the Americans With Disabilities Act (ADA), the Rehabilitation Act (RA), and the Florida Constitution. Their Complaint fails to state claims for relief under each of these theories. In addition, the City Council Defendants should be dismissed because they are entitled to legislative immunity.
BACKGROUND The Complaint alleges that Plaintiffs are individuals with either visual or manual impairments who, because of their disabilities, cannot cast a direct and secret ballot without the assistance of others on new optical scanning equipment to be used in Duval County in

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future elections. 1 Specifically, Plaintiffs, and the class they seek to represent, claim that the use of optical scanning technology is a per se violation of the ADA and RA. They also claim that touchscreen technology violates the ADA and RA unless accompanied by audio and puff stick/switch technology. Comp., ~~52-53. They assert that touchscreen equipment with these additional features is "available"2 and mandatory at each of Duval County's 300 polling locations. Finally, Plaintiffs claim that sections 101.051, 101.5606, and 101.28, Florida Statutes, which provide for assistance to disabled voters and protect voter secrecy, violate article VI, section 1 of the Florida Constitution, which states that "[a]ll elections by the people shall be by direct and secret vote." Art. VI, § 1, Fla. Const. (2001).
Florida Law Provides Assistance To Disabled Voters And Protects The Secrecy Of Their Votes
Under Florida law, disabled voters are entitled to assistance in casting their votes, either directly at the voting booth or via absentee ballot. In addition, they are entitled to register with the supervisor of elections for special assistance. Specifically, section 101.051 (1 ), Florida Statutes, which provides for assistance at the polls to blind and other disabled voters, states that:
(1) Any elector applying to vote in any election who requires assistance to vote by reason of blindness, disability, or inability to read or write may request the assistance of two election officials or some other person of the elector's own choice, other than the elector's employer, an agent of the employer, or an officer or agent of his or her union, to assist the elector in casting his or her vote. Any such elector, before retiring to the voting booth, may have one of such persons read over to him or her, without suggestion or interference, the titles of the offices to be filled and the candidates therefor and the issues on the ballot. After the
1 For purposes of this Motion, the "facts stated in [the] complaint and all reasonable inferences therefrom are taken as true." Stephens v. Dep't of Health & Human Servs., 901 F.2d 1571, 1573 (11th Cir. 1990)~ see Conley v. Gibson, 35 U.S. 41, 45-46 (1957). 2 Plaintiffs do not assert that such is economically available, only that such technology exists in some unspecified form without consideration of affordability/expense, technological compatibility, or reliability. See Comp., ~ I (one terse reference to "existing and readily available technology").
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elector requests the aid of the two election officials or the person of the elector's choice, they shall retire to the voting booth for the purpose of casting the elector's vote according to the elector's choice. § 101.051(1), Fla. Stat. (2001). Further, section 101.051(3), which provides for assistance in casting an absentee ballot, states that: (3) Any elector applying to cast an absentee ballot in the office of the supervisor, in any election, who requires assistance to vote by reason of blindness, disability, or inability to read or write may request the assistance of some person of his or her own choice, other than the elector's employer, an agent of the employer, or an officer or agent ofhis or her union, in casting his or her absentee ballot. Id. § 101.051(3). As a safeguard, electors complete a "DECLARATION TO SECURE ASSISTANCE" attesting to their desire for assistance from persons they list in the form. Id. In order to protect the right of secrecy, no person may be "in the voting booth with any elector except as provided in subsection (1)." Id. § 101.051(2). As a specific deterrent against violation of voting secrecy, Florida law provides that "[a]ny election official or person assisting any elector who willfully discloses how any elector voted, except upon trial in court, is guilty of a felony ofthe third degree" punishable under Florida law. Id. § 104.23. In furtherance of these purposes, poll inspectors and clerks are sworn to an oath requiring that they "perform [their] duties ... according to law and will endeavor to prevent all fraud, deceit, or abuse in conducting the election." Id. § 102.012.
Finally, any eligible voter who is unable to read or write, or needs assistance in voting due to some disability, is entitled to register with the supervisor of elections, who "shall note in that person's registration record that the person needs assistance in voting." Id. § 97.061(1)-(2). Registrants are "entitled to receive assistance at the polls" including:
the assistance of two election officials or some other person of his or her own choice, other than the person's employer, the agent of the person's employer, or an officer or agent of the person's union, without the necessity of executing the "Declaration to Secure Assistance" prescribed in s. 101.051. Such person shall
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notify the supervisor of any change in his or her condition which makes it unnecessary for him or her to receive assistance in voting. Id. § 97.061(3). Based upon these statutory provisions, disabled voters are entitled to assistance in voting, whether at the polls or via absentee ballot; in addition, they are entitled to such assistance by either registering with the supervisor of elections beforehand or by simply showing up at a polling place and requesting assistance. Throughout the voting process, inspectors and clerks who provide assistance are sworn to perform their duties according to Florida law, which provides for maintaining the secrecy of voters' ballots and criminal sanctions for disclosure of how any elector voted.
Florida Law: Purchases of Voting Machines Supervisors of Election in Florida may purchase only voting equipment that the Division of Elections, Department of State, has certified for purchase, use and sale in the state. § 101.294(1), Fla. Stat. (2001) ("No governing body shall purchase or cause to be purchased any voting equipment unless such equipment has been certified for use in this state by the Department of State."). A "governing body" contemplating the purchase of voting equipment must "notify the Division of such considerations." Id. § 101.294(2). The Division has "adopt[ed] uniform rules for the purchase, use, and sale of voting equipment" in Florida, such rules relating to the technical and bid specifications for the procurement of such equipment. Id.; see Rules 1S-2.0004 & 2.007, Fla. Admin. Code (2001).
One of the many factors for approval of electronic or electromechanical voting equipment is that it be "so constructed that ... [i]t permits and requires voting in secrecy." § 101.5606, Fla. Stat. Likewise, a statutory requirement for the purchase of voting machines in Florida is that "[e]ach voting machine shall ... (a) Secure to the elector secrecy in the act ofvoting." Id. § 101.28.
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Plaintiffs' Complaint alleges that the Division of Elections has certified six optical scan systems and one touchscreen system for purchase in Florida. Comp., ~ 62. In addition, it is alleged that only the touchscreen system, if modified with audio and puff stick options, will be "accessible" to Plaintiffs and the class they seek to represent. Id. ~ 63. Plaintiffs' Complaint also asserts that Plaintiffs have asked Defendants Harris and Roberts to certify only "accessible" systems, but that they have not done so thereby "authorizing counties to purchase inaccessible voting systems." Id. ~ 65.
Voting Machines In Duval County Duval County will have approximately 300 polling locations in future elections. Plaintiffs alleged that Defendants have "decided to purchase approximately 300 optical scan machines and may purchase no more than three or four touchscreen voting machines to be located only at voting headquarters." Comp., ~55. They allege that such purchases, if made, will fail "to ensure that voters with visual and manual impairments may cast a direct and secret ballot or otherwise vote under the same conditions as non-disabled persons." Id. ~56. Plaintiffs desire to have touchscreen voting technology with audio and puff stick/switch technology at each of Duval County's approximately 300 polling locations. Plaintiffs explicitly state that "[b]y failing to provide an accessible touchscreen machine in every precinct, Defendants Stafford and City Council perpetuated a voting system inaccessible to voters with visual and manual impairments, denied Plaintiffs and others similarly situated their right to a direct and secret ballot, and discriminated against Plaintiffs and others similarly situated based on their disabilities." Comp. ~ 73 (emphasis added). Plaintiffs do not claim that voting locations and certified machines will be unavailable or physically inaccessible to Plaintiffs. In fact, Plaintiffs' Complaint acknowledges that both optical scanning and touchscreen technology will be made available, the former at every polling place with the latter at the office of the Supervisor of Elections. Comp., ~ 55. Plaintiffs do not claim that either optical scanning or touchscreen technology deprives them
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of the ability to vote with the assistance provided under Florida law; nor do they assert that Plaintiffs-- or any member of the class they seek to represent-- have ever been denied access to voting machines, made a complaint about their voting experience in the past (which necessarily involved third party assistance), or otherwise had any violation of their secrecy rights in their votes arising from unauthorized disclosure by those who assisted at the polls.
Instead, they claim that disabled voters have an absolute right to vote without third party assistance. They claim a potential deprivation of their asserted right to absolute secrecy of their votes if consensual third party assistance under Florida law is utilized. See, e.g., Comp. ~~ 85, 93, 95, 98, 104, 105, 115 & 116. As a remedy, they assert that touchscreen technology with audio and puff stick/switch devices is "available" and must be purchased and implemented at every polling location in future elections in Duval County to avoid "perpetuating" a voting system "inaccessible" to voters with visual and manual impairments. Id. ~~ 1, 73. In essence, Plaintiffs assert that touchscreen systems with audio and puff stick/switch devices are compulsory under the ADA, RA, and Florida's Constitution, all other systems being per se illegal.
MEMORANDUM OF LAW Count I of the Complaint, which alleges violations of the American with Disabilities Act (ADA), Count IT, which alleges a violation of article VI, section 1 of the Florida Constitution, and Count III, which alleges a Rehabilitation Act (RA) violation, should each be dismissed based on the principles applied in Nelson v. Miller, 170 F.3d 641 (6th Cir. 1999), which is virtually on point both procedurally and substantively. As discussed below, the district court and the appellate court in Nelson v. Miller both concluded that neither the ADA nor the RA created a cause of action under the facts alleged. In addition, both concluded that a state law authorizing third-party assistance for disabled voters did not violate the state constitution's requirement that laws be enacted to "to preserve the secrecy of
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the ballot." Section I discusses Nelson v. Miller, related caselaw, and pronouncements of the
Office of Civil Rights, Department of Justice. Section II explains why all counts in this
action should be dismissed based upon these precedents and policy statements.
I. CASELAW AND PRONOUNCEMENTS OF THE OFFICE OF CIVIL RIGHTS ESTABLISH NO RIGHT OF THE DISABLED TO VOTE WITHOUT THIRD PARTY ASSISTANCE OR WITH ABSOLUTE SECRECY.
A. The Decision in Nelson v. Miller Is Directly On Point Substantively and Procedurally.
The decision in Nelson v. Miller is dispositive of this action. In Nelson, a statewide class of blind voters brought an action under the ADA claiming violations arising from the failure of the State of Michigan to implement methods by which the "Plaintiffs could cast their votes unassisted by another person." Id. at 644. Specifically, the plaintiffs alleged the existence of "inexpensive technologies that are currently in commercial use which [sic] permit persons who are blind to read and mark ballots without involving a third party, including braille ballot overlays or templates, taped text or phone-in voting systems." Id. at 644 n.1. Plaintiffs sought a permanent injunction to require that the State implement such methods in the future. Id at 644.
The Defendants moved to dismiss the entire action for two reasons. First, the Defendants argued that the Michigan statute3 allowing blind voters to designate any person over the age of eighteen or a family member to assist in casting a ballot was in compliance with the Federal Voting Rights Act of 1965 and the Voting Accessibility for the Elderly and Handicapped Act of 1984, both of which specifically address the issues of assistance with
3 The Michigan Statute at issue,§ 168.751, states:
When at an election an elector shall state that the elector cannot mark his or her ballot, the elector shall be assisted in the marking of his or her ballot by 2 inspectors of election. If an elector is so disabled on account of blindness, the elector may be assisted in the marking of his or her ballot by a member of his or her immediate family or by a person over 18 years of age designated by the blind person.
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and accessibility to voting by handicapped individuals. 950 F. Supp. at 202. Second, the Defendants argued that the ADA and RA do not establish a right to privately cast a ballot without the assistance of a third party. Id.
The district court granted the Defendant's motion, holding that "Michigan's current voting law, which permits blind voters to have third-party assistance of their choosing in marking their ballots, complies with the ADA and RA and thus that the Plaintiffs had failed to allege facts upon which relief could be granted under either act." Id. at 644. The district court made two rulings.
First, the court found that the ADA and RA, statutes that apply generally to disability-based discrimination, needed to be read in conjunction with older, specific congressional acts dealing with voting rights for the disabled, namely the Voting Rights Act of 1965 (as amended in 1982), 42 U.S.C.A. § 1973aa-6 (West 1994) ("VRA"), and the Voting Accessibility for the Elderly & Handicapped Act of 1984, 42 U.S.C.A. § 1973ee-1 (West 1994) ("VAEH"), insofar as they involved the elections of federal officers.
.ML at 644. In doing so, the district "court stated that Congress did not intend for the ADA to
displace the Federal Voting Rights Acts" and noted that "the VRA specifically required that a blind voter be provided assistance by a person of his or her choice when voting" (with certain immaterial exceptions). Id. Also, the Senate Report accompanying the VAEH (which requires polling places to be "accessible" to handicapped voters), specifically noted "'that any minimal effect on the privacy of those who are elderly or handicapped is more than offset by the expanded opportunities for participation in the political process."' Id. at 644-45 (citation omitted). Thus, to the extent these enactments were applicable, the district court "concluded that the Defendant could not be said to have violated them by providing the Plaintiffs with the same type of meaningful assistance prescribed by them." Id. at 645.
Second, the district court addressed whether, as to state and local elections that the VRA and VAEH did not cover, the ADA or RA created a private right of blind or visually impaired voters to cast a secret ballot. In rejecting this claim, the district court:
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reasoned that nothing in the language of the ADA or RA indicated that voting privacy was a benefit Congress sought to protect under them ... and that Congress did not intend the ADA and RA to extend to blind voters in state and local elections anything more than it had already extended to them in federal elections through the VRA and VAEH. Id. Stated differently, the ADA and RA were intended to ensure that disabled voters are not excluded from participation in, or denied the benefits of, the state's voting program;4 they were not intended to create a federal right of secrecy of the ballot independent of that established under state law. For these reasons, the district court dismissed the Plaintiffs' ADA and RA claims.
The Sixth Circuit affirmed dismissal of the ADA and RA claims. At the outset, the court noted the similarities between the ADA and RA, which both generally prohibit a disabled person's exclusion from participation in or denial of benefits for services, programs and other activities by reason of disability. The court also addressed the Michigan blind voter statute, section 168.751 (supra), and the Michigan Constitution, which provides that:
The legislature shall enact laws to regulate the time, place and manner of all nominations and elections, except as otherwise provided in this constitution or in the constitution and laws of the United States. The legislature shall enact laws to preserve the purity of elections, to preserve the secrecy of the ballot, to guard against abuses of the elective franchise, and to provide for a system of voter registration and absentee voting.
ld. at 649 (citing Mich. Const. art. 2, § 4 (emphasis added)). The Plaintiffs claimed that this
provision created "a constitutional right to secrecy of the ballot, or a 'secret voting program,'
for all of Michigan's voters." Id. The Plaintiffs alleged that the Secretary of State "denied
Michigan's blind voters the benefit of complete secrecy of the ballot enjoyed by Michigan's
4 The Americans with Disabilities Act states in pertinent part, that "[s]ubject to the provisions of this title, 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 subject to discrimination by any such entity." 42 U.S.C. § 12132 (emphasis added).
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sighted voters" due to her refusal "to implement a system by which blind voters could vote without third-party assistance of their choosing." Id. In other words, the Plaintiffs claimed "that the State has violated the ADA and RA by 'exclud[ing them] from participation in or ... den[ying them] the benefits of the State's constitutionally mandated 'secret voting program."' Id. at 650 (quoting district court).
The Sixth Circuit phrased the issue as whether Michigan constitutional and statutory law mandated absolute secrecy in voting where blind or visually impaired voters are at issue.
For such a claim to be true, Appellants essentially must show that the Michigan legislature, by providing blind voters with third-party voting aid, rather than unassisted voting aid, has violated the Michigan Constitution's mandate that it "enact laws to ... preserve the secrecy of the ballot," Mich. Const. art. 2, § 4. The question, then, is whether the Michigan Constitution requires more secrecy than the Michigan legislature has provided for in Mich. Comp. Laws Ann. § I 68.751. Id. at 650. In determining how the Michigan Supreme Court, if faced with this issue, would decide the matter, the Sixth Circuit concluded that it would find that the statute fulfilled the requirements of the state constitution for three reasons, each applicable in the instant action. First, the court noted that no Michigan court had found the voter assistance statute in violation of the constitutional requirement that the legislature "preserve the secrecy of the ballot." Id. at 651. It noted that prior cases, which permitted blind voters to have someone aid them in voting, were "perfectly in keeping" with the purpose of the predecessor to article 2, section 4, whose purpose was to preserve the "purity of elections. "5 Id. It relied on Michigan caselaw that upheld third-party voter assistance to the blind, which indicated that such programs were seen as "complying with the requirements of the Michigan Constitution,
5 A prior version ofFlorida's constitution also protected the "purity" of the ballot. See Article VI, section 9, Fla. Const. (1885) ("Legislature shall enact such laws as will preserve the purity of the ballot given under this Constitution.").
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rather than violating them." Id. Similarly, the court noted that the Michigan Supreme Court had upheld a third party assistance statute, which required those seeking assistance to take an oath, as not an "unreasonable restriction upon the right to vote." Id. In upholding the constitutionality of the statute, the state court stated that the "regulations are to preserve the purity of the election, and we see no constitutional objections to them as prescribed by the act." Id. (citation omitted) (emphasis added by Sixth Circuit). The state court also stated:
The law aims to secure secrecy in the ballot, and does not attempt to disenfranchise any voter. At the expense ofthis secrecy, and in order to enable voters who are physically incapacitated from marking their ballots, the law provides a methodfor such aid, as well as to those who cannot read the English language. The law does not deprive these voters of any right, but rather secures to them aid in voting intelligently; it is plain and simple in its provisions. Every voter, however illiterate or however much incapacitated physically, has a method pointed out by which he may exercise his right of franchise. The law does not shut off any class of voters from the ballot, and, we think, was designed by the legislature to accomplish the purpose specified in the constitution. Id. (citing Ellis ex rei. Reynolds v. May, 58 N.W. 483, 485-86 (1894)) (emphasis added by Sixth Circuit). In light of these precedents, the Sixth Circuit concluded that the phrase "secrecy of the ballot" in the Michigan Constitution had been understood to mean that "at least ... that third-party assistance to blind voters was within its ambit." Id. Second, the court noted that a statute is clothed with a "presumption of constitutionality unless the conflict between the Constitution and the statute is palpable and free from reasonable doubt." Id. at 651 (citing state caselaw) (emphasis added by Sixth Circuit). Further, an "act of the legislature must be plainly at variance with some provision of the constitution before a court will so declare it. Doubtful questions will be resolved in favor of the validity of the legislative act." Id. (citations omitted) (emphasis added by Sixth Circuit). This rule of deference to the legislative body means that a "statute is to be treated with that deference due to the deliberate action of a co-ordinate branch of government and is to be set
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aside only when it is apparent it was the result of action which the Legislature was prohibited by the Constitution from taking." Id. (citation omitted). For these reasons, the judicial branch must "respect any law" and "presume in favor of its validity, until its violation is proved beyond all reasonable doubt."' Id. (citation omitted) (emphasis added by Sixth Circuit). When an "issue could reasonably go either way" it was the federal court's duty to presume the constitutionality ofthe statute in question. Id.
Third, the Sixth Circuit noted that the Michigan legislature "has clearly interpreted" its constitutional provision "as not meaning 'absolute secrecy' in all instances." Id. at 652. It noted that the Michigan legislature "believed that the [challenged] statutory provision satisfies the mandate contained within Article 2, § 4 and its predecessors" such that the "phrase 'secrecy of the ballot"' was not meant to mean "'absolute secrecy from everyone in all instances."' Id.6 The Sixth Circuit noted that "members of the state legislature 'are presumed to have acted within the scope of their authority [when enacting a statute]. We cannot suppose they intentionally spent their time enacting a measure which they knew or had reason to believe would be ineffective and useless because unconstitutional."' Id. (citation omitted).
Based upon the substantial assistance that the Michigan statute provides for blind electors to cast their votes, the Sixth Circuit concluded that the refusal "to provide [Plaintiffs] with voting assistance other than that already extended to them under ... § 168.751, does not discriminate against them in violation of the ADA and/or the RA. "7 Id. at 653. In addition,
6 The court noted that the legislature, since at least 1955, had enacted laws providing for the secrecy of voting, but had noted that exceptions for "cases of assisted electors" had been made statutorily. Id. (citing section 168.786). 7 The court also upheld dismissal of plaintiffs' RA claim due to the lack of sufficiently (Continued ... )
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the court concluded that "the [Plaintiffs] are not being denied their state constitutional right
to 'secrecy of the ballot' as that right has, up to this point, been understood by those charged
with interpreting Michigan's constitution." Id. As such, the court upheld in full the district
court's dismissal of the ADA and RA claims. See also NAACP v. Philadelphia Bd. of
Elections, 1998 WL 321253 at *4 (E.D. Pa. 1998) ("Defendants are not required to provide
the specific procedures authorized under the VAEH, but the decision to do so is a reasonable
modification to comply with the ADA.... The defendants' provision of the alternative ballot
procedures [authorized by the VAEH] to qualified individuals with disabilities fulfills their obligation under the ADA. ... ").8
pleaded federal financial assistance necessary for jurisdiction. The plaintiffs' complaint alleged that "Defendant is an official of the State of Michigan which receives federal financial assistance." Id. at 653 n.8. Plaintiffs only alleged that the State ofMichigan, rather than the Secretary of State, received federal financial assistance. As the Sixth Circuit noted:
Appellants did not allege that the Secretary of State received federal financial assistance directly from the federal government, that she is the entity of the state who distributes such assistance, or that she has been extended such assistance from the state entity charged with its distribution; therefore, they have failed to state a claim under the RA. Remand to permit Appellants to amend their complaint to plead this jurisdictional prerequisite is not appropriate, since, even if they could plead facts establishing this jurisdictional prerequisite, Appellants cannot prevail on the substance oftheir claim.
8 Plaintiffs may attempt to rely on the district court decision in National Org. on Disability v. Tartaglione, 2001 WL 1231717 (E.D. Pa. Oct. 11, 2001), which denied a motion to dismiss the claims ofvisually and mobility disabled voters who asserted similar claims for relief The decision in Tartaglione, however, is not binding on this Court; moreover, it is unpersuasive because it fails to even mention the Sixth Circuit's 1999 decision in Nelson v. Miller, a precedent directly on point. In addition, the plaintiffs in Tartaglione made broader allegations that "only three percent of polling locations in Philadelphia are accessible to persons using wheelchairs" and that the defendants "fail[ed] to select accessible polling places to make them accessible." Id. at *3. As such, Tartaglione is both legally and factually distinct.
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B. The Office of Civil Rights Has Upheld Florida's Assistance Program Under The ADA.
Notably, the Office of Civil Rights, Department of Justice, has specifically held that
Florida's statutory program of assistance for blind voters meets ADA standards. For instance,
in a Letter ofFindings dated August 25, 1993, the Department addressed whether the failure to provide blind voters in Pinellas County, Florida with an electronic method of voting violated the ADA. 9 The complainant specifically asserted that blind voters were not provided
a method of voting that allowed a secret ballot. The Department stated that the supervisor of
elections, who followed section 97.061 by providing third party assistance to blind voters,
was in compliance with the Act. The Department stated:
Although providing assistance to blind voters does not allow the individual to vote without assistance, it is an effective means ofenabling an individual with a vision impairment to cast a ballot Title II requires a public entity to provide equally effective communications to individuals with disabilities, but "equally effective" encompasses the concept of equivalent, as opposed to identical, services. Poll workers who provide assistance to voters are required to respect the confidentiality ofthe voter's ballot, and the voter has the option of selecting an individual of his or her choice to provide assistance in place of poll workers. The Supervisor of Elections is not, therefore, required to provide Braille ballots or electronic voting in order to enable individuals with vision impairments to vote without assistance. Letter of Findings, Dep't of Justice (August 25, 1993) (to Supervisor of Elections, Pinellas
County, Florida) http://usdoi.gov/crtlfoia/cltr099.txt (emphasis added) (footnote omitted). As
the highlighted language indicates, the Division viewed Florida's voter assistance statute as
an "effective" method of enabling the visually impaired to vote while preserving the secrecy
of their votes. Moreover, the Division recognized that, under both the ADA and RA, a public
entity is not required to provide "identical services" in order to meet legal requirements.
9 The Division noted that electronic systems for voting by telephone that meet security requirements were not currently available. Id.
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Instead, the longstanding interpretation of these acts is that a public entity must provide
"equally effective communications to individuals with disabilities" that includes "equivalent, as opposed to identical, services." Id. 10
II. PLAINTIFFS' ADA RA AND STATE LAW CLAIMS SHOULD BE DISMISSED. A. Counts I and III (ADA and RA Claims)
Based on the Nelson v. Miller decisions, as well as the plain language of the ADNRA, the Plaintiffs fail to state claims under the ADA and RA. The gist of the Plaintiffs' Complaint is that disabled voters have an absolute right to vote without third party assistance to avoid possible impingement on the secrecy of their votes protected under Florida state law. As the courts in Nelson v. Miller recognized, however, their claim -- if any -- is a privacy claim under state law, not one arising from being excluded from participation in, or denied the benefits of, the state's voting program. The Plaintiffs' claim is not that they will be excluded from participation in, or denied the benefits of, federally secured voting rights due to inaccessible or unavailable polling locations or voting machines. 11 Nor is their claim that either optical scanning or touchscreen technology itself deprives them of the ability to vote, given the assistance provided to the disabled under Florida law. See§§ 97.061, 101.051, & 102.012, Fla. Stat (2001).
Rather, as in Nelson v. Miller, they claim a potential deprivation of a claimed right to absolute secrecy in their votes if consensual third party assistance is provided under Florida law. In essence, they claim an absolute right to cast their votes free from third party
°1 Consistent with this equivalency concept, the Division has stated that certain "curbside
voting policies" -- which permit disabled voters to vote curbside where existing polling places are inaccessible-- are "effective" "alternative methods" that enable disabled voters to cast a ballot on the day of the election." See, e.g., Letter of Findings, Dep't of Justice, Civil Rights Division (August 19, 1993) (to County Elections Department, Las Vegas, Nevada) http://usdoj.gov/crt/foia/lofc017.txt~ Letter to Senator Thurmond, Dep't of Justice, Civil Rights Division (Aug. 11, 1995) http://usdoi.gov/crt/foia/lofcl73.txt (same). 11 Throughout their Complaint, Plaintiffs assert and acknowledge that both optical scanning and touchscreen technology will be made available and will be physically accessible.
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assistance, a right no court has recognized under federal or state law. In this regard, the disabled voter assistance statute upheld in Nelson v. Miller is substantia1ly the same as Florida's statute. Both provide for the assistance of two inspectors if an elector needs assistance in casting his or her vote. Both also provide blind voters with the ability to designate a person (e.g., a family member) to assist in the casting of their votes. Additionally, Florida law specifically protects secrecy rights by penalizing any person who wrongfully discloses an elector's vote. § 104.23, Fla. Stat. (2001). As such, the analysis in Nelson v. Miller that such statutes provide legally adequate assistance, and do not discriminate in violation of the ADA or RA, is equally applicable here thereby justifying dismissal of Plaintiffs' claims.
Of note, Plaintiffs' Complaint actually demonstrates that the voting machines to be used in Duval County exceed the requirements of state law and the ADNRA. Specifically, the allegations indicate that optical scan machines will be used at every polling location where assistance will be made available for disabled voters under Florida law. This deployment of voting machines and disabled voter assistance fully satisfies Florida law and, under Nelson v. Miller, satisfies both the ADA and RA. The Defendants, however, have gone beyond such requirements and provided for three/four touchscreen machines to be available at the main office of the Supervisor of Elections. These machines are not required under Florida law or mandated by either the ADA or RA. Instead, they reflect an additional accommodation to blind and disabled voters beyond the requirements of these laws. As such, Plaintiffs fail to state claims for relief, particularly given their allegations establish compliance beyond that required by law.12
12 As an independent basis for dismissal, the Plaintiffs' RA claim fails to adequately plead the jurisdictional requirement that the Defendants receive federal funds. Plaintiffs merely state that "Defendants are an instrumentality [sic] of a local government that is a recipient of federal funds." Comp., ~ 112. This bare allegation falls short of the pleading requirements under the RA Nelson v. Miller, 170 F.3d at 653 n.8 (allegation that secretary of state is an official of a state that receives federal funds, held insufficient); see also Lightbourn v. (Continued... )
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B. Count II (Art. Vl § 1. Fla. Constitution) Likewise, Count II, which alleges a violation of article VI, section 1 of the Florida Constitution, should be dismissed because it fails to state a claim for relief Article VI, section 1 provides that: "All elections by the people shall be by direct and secret vote." Art. VI, § 1, Fla. Const. (2000). Plaintiffs claim that section 101.051, which provides for third party assistance to disabled voters, violates the constitutional right to a "direct and secret vote." They also claim that sections 101.5606 and 101.28, which provide for voting systems that protect secrecy in voting, are unconstitutional because they do "not require a direct and secret vote." Comp., ~~ 107-08. Again, the Plaintiffs' claim is based on a claimed right to absolute secrecy in voting, a right that no state or federal court has recognized. Of course, legislative enactments -- such as the challenged election statutes -- come to a court "with a presumption of validity -- an extremely strong presumption in statutes regulating the conduct of elections." Bodner v. Gray, 129 So. 2d 419, 421 (Fla. 1961) (emphasis added). In this regard, no indication exists that the state constitutional right to a "direct and secret vote" was intended to be an absolute. Instead, much like constitutional rights such as free speech and press, the right of secrecy in one's vote is not an absolute and can be subject to reasonable regulations. 13 Florida courts have held explicitly that reasonable
County ofEl Paso. Texas, 118 F.3d 421, 427 (5th Cir. 1997) (same)("§ 504 claim must allege that the specific program or activity with which [plaintitl] is involved receives or directly benefits from federal financial assistance."). 13 Plaintiffs' claims, if couched in constitutional terms, would be analyzed under the "rational basis" test. For example, in Smith v. Dunn, 381 F. Supp. 822 (M.D. Tenn. 1974), which involved equal protection claims to a state's disabled voter assistance statute, the court stated: (Continued ... )
17

Case 3:01-cv-01275-HLA-HTS Document 6 Filed 12/21/01 Page 18 of 23 PageiD 51
regulations on the exercise of constitutional rights and liberties are permitted, specifically in the context of voting and elections. 14 Here, rather than impinging on the constitutional right
to secrecy, the challenged statutes actually promote disabled voters' constitutional rights to
exercise the franchise through assistance that also safeguards the voters' rights of
confidentiality in their votes. Rather than a hindrance and burden, the challenged statutes
safeguard the rights challenged in this litigation. In this regard, federal courts addressing these circumstances have recognized that
reasonable accommodations, such as third party assistance in voting, do not infringe upon the rights of the disabled; instead, they assist in protecting those rights. See Nelson v. Miller,
supra. As stated in Smith v. Dunn, 381 F. Supp. 822 (M.D. Tenn. 1974), a case involving a
challenge to a state law requiring blind voters without designated relatives to reveal their
votes to two elections judges: The statute under attack in this case does not impose state regulations which disenfranchise a segment of the citizenry, nor does it erect barriers which make exercise of suffrage more difficult for a particular group. To the contrary, the challenged statute was designed to afford blind, otherwise physically disabled, or illiterate an opportunity to exercise the franchise while attempting to
In choosing the appropriate standard in the instant case, we conclude that the statute under review must be upheld if it can be justified under the rational basis standard of equal protection review. Certainly we do notfind the classification of blind persons for voting purposes to be 'suspect,' and while the right to vote is clearly fundamental, in the circumstances of this case we view the interest of blindpersons to do so secretly to be oflesser magnitude.
Id. at 826 (emphasis added). 14 See, e.g., Bodner, 129 So. 2d at 421 ("The law places restraints upon all of its citizens in the exercise of their rights and liberties under a republican form of government. Such restraints have been found to be necessary in the development of our democratic process to preserve the very liberties which we exercise.") (upholding an $875 qualifying fee for individual candidate for public office as constitutional).
18

Case 3:01-cv-01275-HLA-HTS Document 6 Filed 12/21/01 Page 19 of 23 PageiD 52
minimize the incidence of fraudulent voting practices on the part of those lending assistance. 381 F. Supp. at 824 (emphasis added). Similarly, Florida's voter assistance statutes are designed to expand the ability of the disabled to vote while attempting to minimize the potential for impinging on the secrecy of their votes. Beyond the physical assistance provided, the right to a secret vote is specifically shielded by Florida criminal laws, which makes it a felony for any election official (or any person assisting a voter) to willfuJly disclose how the voter cast his or her ballot. § 104.23, Fla. Stat. (2001).
Finally, as mentioned above, the agency charged with enforcing federal civil rights has indicated that Florida's statutory assistance for blind voters is a reasonable accommodation that "is an effective means of enabling an individual with a vision impairment to cast a ballot." Letter of Findings, Dep't of Justice (August 25, 1993). For all these reasons, the Plaintiffs have failed to state a claim for relief in asserting that sections 101.051, 101.5606 and 101.28, Florida Statutes violate the provisions of article VI, section 1 requiring a "direct and secret vote." III. CLAIMS AGAINST CITY COUNCIL l\.1EMBERS SHOULD BE DISMISSED.
The claims against the Defendant City Council members, who merely voted to approve an ordinance for the appropriation of funds for voting machines, should be dismissed based on absolute legislative immunity. The ordinance at issue, Ordinance 2001-874-E (Exhibit A), provides that for fiscal year 2001-2002 the sum of $1,005,000.00 is to be appropriated from state funds for the purchase of an optical scan voting system. In voting to approve the appropriation, each member's vote was a purely legislative function. See § 5.07, Charter, City of Jacksonville (2001) ("All legislative powers of the consolidated government ... are vested in the Council" which "shall review the budgets and appropriate money" based
19

Case 3:01-cv-01275-HLA-HTS Document 6 Filed 12/21/01 Page 20 of 23 PageiD 53
on requests received).Under these circumstances, the Defendant City Council members are
entitled to absolute legislative immunity and the action dismissed as to them. See, e.g.,
Woods v. Gamel, 132 F.3d 1417 (11th Cir. 1998) (county commissioners, who voted to
approve county budget, entitled to dismissal based on absolute legislative immunity from
lawsuit claiming inadequate facility conditions); Ellis v. Coffee County Bd. of Registrars,
981 F.2d 185 (11th Cir. 1993 (county commission members, who voted to remove plaintiffs'
names from county voting list, entitled to dismissal based on absolute legislative immunity).
CONCLUSION Based upon the foregoing, Defendants Stafford and members of the City Council, request that this Court dismiss each of the claims in the Plaintiffs' Complaint with prejudice.
RICHARD A. MULLANEY GENERAL COUNSEL
~~
fRAEYiARPEN, JR. (FBN 154493) Deputy General Counsel SCOTT D. MAKAR (FBN 709697) JASON R.TEAL (FBN 157198) 117 West Duval Street, Suite 480 Jacksonville, FL 32202 (904) 630-1847 (904) 630-1316 (fax)
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing was furnished by U.S. Mail and facsimile to J. Douglas Baldridge, Esq., Howrey, Simon, Arnold & White, LLP, 1299 Pennsylvania Avenue, N.W., Washington, D.C. 20036; Lois G. Williams, Esq., Washington Lawyers' Committee for Civil Rights and Urban Affairs, 11 DuPont Circle, NW, Suite 400, Washington, D.C., 20036, and Charles A. Finkel, Assistant Attorney General, Office of the Attorney General, PL-01, The Capitol, Tallahassee, Florida 323 99-1050, on this 21st day of December, 2001.
Attorney
20

Case 3:01-cv-01275-HLA-HTS Document 6 Filed 12/21/01 Page 21 of 23 PageiD 54

1 Introduced by the Council President at the request of the Mayor:

2

3

4

ORDrNANCE 2001-874-E

5

AN ORDINANCE APPROPRIATING $1,005,000 FROM THE

6

STATE OF FLORIDA FOR AN OPTICAL SCAN VOTING

7

SYSTEM; PROVIDING AN EFFECTIVE DATE.

8

9

BE IT ORDAINED by the Council of the City of Jacksonville:

10

-Section 1.

For the 2001-2002 fiscal year, within the

11 City's budget, there are hereby appropriated the indicated sum(s)

12 from the account(s) listed in subsection (a) to the account(s)

13 listed in subsection (b) :

14 (B.T. 10, attached hereto and made a part hereof.)

15

(a) Appropriated from:

16

See B.T. 10

$1,005,000

17

{b) Appropriated to:

18

See B.T. 10

$1,005,000

19

(c) The purpose of this appropriation is to purchase an

20 optical scan voting system.

21

Section 2.

This ordinance shall become effective upon

22 signature by the Mayor or upon becoming effective without the

23 Mayor's signature.

24

25 Form Approved:

26

27

28

Counsel

29 Legislation Prepared by: Cheryl R. Peek

30 9/4/01 G:\shared\LEGIS.CC\Peek\MBRC Legis\2001\BTilO.doc

Exhibit A

m • Case 3 01-cv-01275-HLA-(j"fFfee"O~ lflijtli(t)~3 PageiD 55

City of Jacksonville, Florida

] l 1f:'" /0

(!~BUDGET ORDINANCE

0TRANSFER DIRECTIVE

REQUEST NUMBER_ __

Date Ree'd.

Disapproved

Department Head

Mayor's Office

Accounting Division

Budget Division
.u.AUXJG""--2..._.7~200J~---~rftoiee ~zq DATE OF ACTION BY MAYOR ______
Z Transfer From: Contribution from State FundiDepartmentiOivlsioniActivlty

Amount

------------------ ------------- Account Title Contribution from State

Project/Pro. Det.

AccountNo. SEEL1FC- 33491

Grant/Gr.Det. SEE001- 02

$1,005,000.00

Account Title - - - - - - - - - - - - - - - - - P r o j e c t / P r o . Det.__________________

-------------------- Account No.

Grant/Gr. Det..

AccountTitle --------------------Project/Pro. DeL-----------------

---------------------- Account No.

Grant/Gr. DeL

Transfer To:
Account Tide Account No.

FundiDepartment/DivlsloniActlvlty General Fund Supervisor of Elections
tiJ~m~
Section State Funding - Votin ProjectJPro. Det.___________________

Amount

SEEL1FC - 06508

------------------- Grant/Gr. Del SEE001/02

$1,005,000.00

Account Title - - - - - - - - - - - - - - P r o j e c t / P r o . Del_______________

-------------------- Account No.

Grant/Gr. Det.

Account Title ------------------Pr~eeUPro.Det._ _ _ _ _ _ _ _ ___

------------------- Account No.

Grant/Gr. Det.

PURPOSE:

Appropriate funding for optical scan voting system.

To be effective October 1, 2001

Cost will be reimbursed by State over a two year period.

APPROVED BY1

-'

...
-

'.'

MAYOR'S BUDGET

REVIEW COMMITTEE

OATE:_A_uG_27_2_ 001 __
~~S~NCHEF~~~~-~~~--~-~---------------- ~ DATEINITIA"TED

Case 3:01-cv-01275-HLA-HTS Document 6 Filed 12/21/01 Page 23 of 23 PageiD 56
.

ORDINANCE 2001-874-E

CERTIFICATE OF AUTHENTICATION
ENACTED BY THE COUNCIL
OCTOBER 9, 2001
~J-,L•·
-'SUZANNEs.~. COUNCIL VICE-PRESIDENT

A'ITEST:. ·
~-~
CHERYL L. BROWN · COUNCIL SECRETARY

APPROVED: _O_C_T_1_5_._200_1_

'·

 
 Case 3:01-cv-01275-HLA-HTS Document 5 Filed 12/26/01 Page 1 of 10 PageiD 57

UNITED STATES DISTRICT COURT

FILED
OOJ

MIDDLE DISTRICT OF FLORIDA 01 DEC 26 A:l 9:30 JACKSONVILLE DIVISION

AMERICAN ASSOCIATION OF PEOPLE WITH DISABILITIES et al.

Plaintiff, vs.

CASE NO. 3:C4CV-1275-J-21TJC

KATHERINE HARRIS, et al.

Defendant. I

MOTION TO DISMISS OF DEFENDANTS HARRIS AND ROBERTS

Defendants, Katherine Harris, Florida Secretary ofState, and L. Clayton Roberts,

Director ofthe Division ofElections within the Florida Department of State, move to

dismiss Plaintiffs Complaint pursuant to Fed.R.Civ.P. 12(b) for failure to state a claim

upon which relief can be granted. Plaintiff fails to allege a "case or controversy" for

purposes ofArticle III, Plaintiffthus lacks standing.

The essence ofthe complaint against defendants Harris and Roberts is that they

have certified voting systems that are not accessible to voters with visual or manual

impairments contrary to plaintiffs' request that they only certify voting systems that are

accessible to persons with those impairments. Plaintiffs allege that by allowing

counties to continue to purchase inaccessible voting systems, Harris and Roberts have

denied plaintiffs their right to a direct and secret ballot and, thus, are discriminating

Case 3:01-cv-01275-HLA-HTS Document 5 Filed 12/26/01 Page 2 of 10 PageiD 58
against the plaintiffs and others similarly situated based on their disabilities. This issue has already been decided against similarly situated plaintiffs in Lightbourn v. County ofEI Paso, Tex., 118 F. 3d 421, (5th Cir. 1997).
In Lightbourn the plaintiffs alleged that the defendants discriminated against them by failing to ensure that persons with visual and mobility impairments have access to voting equipment that permitted them to vote without the assistance of an election worker or other person, thus, failing to ensure that they could vote with complete secrecy. Claims against El Paso and the local Democratic Party were settled, leaving the Secretary of State as the sole defendant in the lawsuit. After a bench trial and the subsequent remedies phase of the trial, the district court found that the Secretary had a duty to ensure that local election authorities comply with Title II ofthe ADA and that "[the] Secretary has joint responsibility with the state's local election authorities in assuring compliance with the ADA and Section 504 in conducting elections." The district court also determined that the Secretary had failed to take several possible actions to remedy discrimination against blind or mobility-impaired voters, such as encouraging the development of voting systems that enable blind voters to vote with complete secrecy.
The appellate court reversed holding that the Secretary has no duty under either Texas law, the ADA, or Section 504 ofthe Rehabilitation Act of 1973 to take steps to
2

Case 3:01-cv-01275-HLA-HTS Document 5 Filed 12/26/01 Page 3 of 10 PageiD 59
ensure that local election officials comply with the ADA. The court also held that while the Secretary has a duty to approve certain voting equipment, the plaintiffs have failed to allege facts suggesting a breach of that duty and have failed to state a claim under the ADA against the Secretary. The Section 504 claim was also dismissed because the plaintiff failed to allege that the Secretary received federal financial assistance for such a program.
Similarly, in the instant case, the plaintiffs have alleged that defendants Harris and Roberts oversee elections, prescribe rules and regulations, ensure that all aspects ofthe election process comply with Florida law, and approve-certify all voting systems used in any state or federal election. Plaintiffs allege that section I 0 I.5606( I), Fla. Stat. (200 I), requires defendants Harris and Roberts to decline to approve a voting system unless it permits and requires voters to cast a secret ballot, and that by certifying voting systems that are inaccessible, they have denied plaintiffs the benefit of voting by direct and secret ballot. That statute sets forth twelve requirements for approval of systems the first of which requires that the system "permits and requires voting in secrecy." However, there is no specific mandate that the system meet the various requirements ofdisabled voters. Instead, section 10I.051, Fla. Stat. (200 I), sets forth the requirements and guidelines for electors with disabilities who require assistance to vote. It allows for assistance by a third party, either one chosen by the voter or two
3

Case 3:01-cv-01275-HLA-HTS Document 5 Filed 12/26/01 Page 4 of 10 PageiD 60
election officers at the polling place. Although plaintiffs allege that pursuant to 28 C.F.R. §35.130 they are being denied the benefit ofthe services, programs, or activities of a public entity, it is not one for which the Secretary is responsible.
To establish a violation of Title II ofthe ADA, the plaintiffs must demonstrate: (1) that they are qualified individuals within the meaning of the act; (2) that they are being excluded from participation in, or being denied benefits of services, programs, or activities for which the Secretary is responsible, or are otherwise being discriminated against by the Secretary; and (3) that such exclusion, denial of benefits, or discrimination is by reason of their disability. Lightbourn at pg. 428. Pursuant to Florida's Electronic Voting Systems Act, the counties adopt and purchase their own voting system subject to the approval ofthe Department ofState. §101.5604 Fla. Stat. (200 1). Therefore, until such time that a particular county decides to purchase a system meeting the requirements suggested in the complaint herein, neither Harris nor Roberts would have an opportunity to approve or deny the use of such a system. Since the complaint has not alleged that the plaintiffs herein have presented any such voting machine to the defendants and that the defendants have failed to approve such a machine, the plaintiffs have not been denied the benefits of services, programs or activities for which the defendants are responsible, which renders this action premature. Plaintiffs have failed to allege or demonstrate the existence of a case or controversy
4

Case 3:01-cv-01275-HLA-HTS Document 5 Filed 12/26/01 Page 5 of 10 PageiD 61
against defendants Harris and Roberts. Therefore, Counts One and Four should be dismissed.
Article III ofthe United States Constitution requires parties seeking to invoke the powerofthe federal courts to allege an actual case or controversy. O'Shea v. Littleton, 414 U.S. 488, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974). In order for a case to be ripe, the injury or threat of injury must be "real and immediate" and not "conjectural or hypothetical." Id. at 493-94. The ripeness doctrine does not require a litigant to have already suffered harm; however, it is sufficient if there is a reasonable probability of harm. In short, "[r]ipeness is a question oftiming." City Communications. Inc. v. City of Detroit, 888 F.2d 1081, 1089 (6th Cir. 1989) (quoting Blanchette v. Connecticut Gen. Ins. Corps., 419 U.S. 102 (1974). "The central concern is whether the case involves uncertain or contingent future events that may not occur as anticipated, or indeed may not occur at all." 13A C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure §3532.1 (1984). According to the court in City Communications,
The [ripeness] doctrine dictates that courts should decide only existing, substantial controversies, not hypothetical questions or possibilities. [Citation omitted.] Ripeness becomes an issue when a case is anchored in future events that may not occur as anticipated, or at all. City Communications, 888 F.2d at 1089
5

Case 3:01-cv-01275-HLA-HTS Document 5 Filed 12/26/01 Page 6 of 10 PageiD 62
Furthermore, even if a claim does present a case or controversy within the meaning of Article III, there may be prudential reasons to declare a case unripe. According to the Court in Brown v. Ferro Corp., 763 F.2d 798, 801 (6th Cir. 1985), cert. denied, 474 U.S. 947 (1985), the ripeness doctrine depends not only on the finding of a case or controversy, but also requires that the court exercise its discretion to determine whetherjudicial resolution would be desirable under all ofthe circumstances. See also O'Shea, 414 U.S. at 493-94. The rationale for the ripeness doctrine is evident.
Defendants . . . may find themselves unable to litigate intelligently if they are forced to grapple with hypothetical possibilities rather than immediate facts. [Furthermore,] unnecessary lawmaking should be avoided, both as a matter of defining the proper role ofthe judiciary in society and as a matter of reducing the risk that premature litigation will lead to ill-advised adjudication. C. Wright, A. Miller & E. Cooper, supra at §3532.1. With respect to standing, this requirement is an aspect ofthe Article III "case or controversy" requirement. To have Article III standing, plaintiff, in seeking declaratory or injunctive relief, must demonstrate a likelihood of suffering future injuries, the likelihood of suffering such injury at the hands of the defendants; and that the relief sought will likely prevent such injury from occurring. In establishing the likelihood of suffering future injury, a plaintiffmust present specific and concrete facts showing that the challenged action will result in a demonstrable, particularized injury to plaintiff so
6

Case 3:01-cv-01275-HLA-HTS Document 5 Filed 12/26/01 Page 7 of 10 PageiD 63
that plaintiff personally will benefit in a tangible way from court action. Warth v. Seldin, 422 U.S. 490, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). Moreover, the injury must be real and immediate and not conjectural or hypothetical. City of Los Angeles v. Lyons, 461 U.S. 95, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983). Plaintiff must also establish a fairly traceable nexus between the threatened deprivation of the constitutional rights and the action of the defendant. Allen v. Wright, 468 U.S. 737, 104 S.Ct. 3315,82 L.Ed.2d 556 (1984). The injury must be caused by defendant and be remediable by defendant. Wehunt v. Ledbetter, 875 F.2d 1558 (11th Cir. 1989), cert. denied, 494 U.S. 1027 (1990). Until such time as plaintiffs are able to allege and demonstrate that the Secretary and Division Director have considered any voting equipment that satisfies the various applicable requirements and then failed to permit its use, plaintiff's claims are insufficient to demonstrate standing for Article III purposes.
Instead, plaintiffs have alleged that by certifying voting systems that are inaccessible, or not designed and constructed to be readily accessible to and usable by voters with visual and manual impairments, defendants Harris and Roberts have denied plaintiffs the benefit of voting by direct and secret ballot and have not afforded the plaintiffs the opportunity to participate in the voting process as non-disabled voters. (para. 82, 88, 92 and 99). Section 15.13, Fla. Stat. (2001), provides:
7

Case 3:01-cv-01275-HLA-HTS Document 5 Filed 12/26/01 Page 8 of 10 PageiD 64
The Department of State shall have general supervision and administration ofthe election laws, corporation laws and such other laws as are placed under it by the Legislature and shall keep records of the same. The ADA is not an election law. Therefore, the Secretary and the Division Director do not have the duty ofensuring that local election officials interpret and apply the ADA uniformly. Lightboum, supra, at pg. 430. While these defendants have the discretion to adopt rules which establish minimum standards for electronic and electro mechanical voting systems, which would include plaintiffs' concerns, in the absence ofsuch a duty, they cannot be held responsible for failure to exercise that discretion. Lightbourn at pg. 429. Therefore, plaintiffs' claims against these defendants do not demonstrate the existence of a case or controversy. Plaintiffs have also alleged that by certifying machines that do not enable voters with visual and manual impairments to mark their own ballots without third party assistance, defendants Harris and Roberts violate the Rehabilitation Act of 1973, Section 504, 29 U.S.C. §794. (par. 115). They allege that "Defendants are an instrumentality ofa local government that is a recipient offederal financial assistance." (par. 112). However, plaintiffs failed to allege that defendants Harris and Roberts (who are state officers and not local officials) receive federal financial assistance for election programs. Plaintiffs must allege that the specific program or activity with which they
8

Case 3:01-cv-01275-HLA-HTS Document 5 Filed 12/26/01 Page 9 of 10 PageiD 65
are involved receives or directly benefits from federal financial assistance in order to state a §504 claim. Lightbourn at pg. 427. Therefore, Count Three should be dismissed.
Count Two alleges that sections 101.051, 101.5606, and 101.28, Fla. Stat., (200 1), violate Article VI, §1 of the Florida Constitution, and seeks to have them declared unconstitutional under the Florida Constitution. Due to the fact that the constitutionality of these statutes have not been ruled upon by the Florida court, this court should abstain from deciding this issue under the Pullman Abstention Doctrine, whereby the federal courts, 'exercising a wise discretion', should restrain their authority because of 'scrupulous regard for the rightful independence ofthe state governments' and for the smooth working ofthe federal judiciary. Railroad Commission ofTexas v. Pullman Co., 312 U.S. 496 (U.S. Tex. 1941). Assuming, as stated above, that the plaintiffs have failed to allege a case or controversy under the ADA or §504 of the Rehabilitation Act, there would be no reason for this court to assume jurisdiction of these defendants for the sole purpose of deciding issues governed by state law.
CONCLUSION For the reasons set forth above defendants Harris and Roberts should be dismissed from this action.
9

Case 3:01-cv-01275-HLA-HTS Document 5 Filed 12/26/01 Page 10 of 10 PageiD 66

Respectfully submitted,
(t:a,L//) ROBERT A. BUTTERWORTH
A.~ CHARLES
Assistant Attorney General Florida Bar No. 099390 Office of the Attorney General PL-01, The Capitol Tallahassee, Florida 32399-1050 (850)414-3300

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true copy of the foregoing has been furnished by facsimile and U.S. Mail to:

J. Douglas Baldridge Howrey Simon Arnold & White 1299 Pennsylvania Avenue, N.W. Washington, D.C. 20004

Scott D. Maker Office of General Counsel 117 West Duval Street, Suite 480 Jacksonville, FL 32202

Lois G. Williams Washington Lawyer's Committee for Civil Rights and Urban Affairs 11 Dupont Circle NW, Suite 400 Washington, D.C. 20036

a lh~ on this Q.,Jday of

Wv

F \USERSISTATE\Chuck\Cooes\AAPWD\Mot.dismiu Horris wpd
10

 
 , Case 3:01-cv-01275-HLA-HTS Document 8 Filed 01/18/02 Page 1 of 41 PageiD 71

FILED

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION

~ . lDD1

'1: 23

)

American Association of People with

)

,,ylf.Rf-~.y? ~!STRICT COURT

... :JQLr: [-I.}TidCT OF fl CRJOA

J1'. C'

::

:

i; '.f

11 1
' "-

r
'-

•

r
'

1
-

-J':): II I

0 A

Disabilities, et al.,

)

) Civil Action No. 3:01-CV-1275-J-21TJC

Plaintiff,

)

)

v.

)

)

Katherine Harris, et al.,

)

)

______________D_e_fe_n_d_an_ts_. _________))

OPPOSITION TO THE MOTION TO DISMISS OF DEFENDANTS HARRIS AND ROBERTS

Plaintiffs respectfully submit this opposition to the Motion to Dismiss ofDefendants

Harris and Roberts ("Motion").

I. OVERVIEW

The Motion does not attack the facial sufficiency of the Complaint, and does not

suggest that plaintiffs can prove no set of facts in support of their claims. Instead, it argues

that this case is not ripe for adjudication because plaintiffs have not presented, and

Defendants Harris and Roberts have not declined to approve, any voting system meeting the

requirements of the ADA and Rehabilitation Act. (Motion, p. 4.) It further argues that

Defendants Harris and Roberts owe no duty to voters with visual or manual impairments to ensure that they receive the benefits of and are not discriminated again~t in the process of

voting. (!d.) Standing on this erroneous factual and legal predicate, Defendants Harris and

Roberts argue that the denial of benefits and discrimination alleged in the Complaint "is not one for which the Secretary is responsible." (!d.)

The purported legal basis for this position is the Fifth Circuit's decision in Lightbourn

v.

County ofEl Paso,

118 F.3d 421

(5

1
h

Cir.

1997).

For the following reasons, Lightbourn

Case 3:01-cv-01275-HLA-HTS Document 8 Filed 01/18/02 Page 2 of 41 PageiD 72
actually requires denial of the Motion when applied to the materially different facts and statutory framework of this case. Moreover, the Fifth Circuit's analysis reveals that the issues raised by the Motion are rife with factual content that cannot be resolved under Rule 12(b)(6) as the Complaint's allegations must be taken as true. Finally, Defendant Harris is in fact an indispensable party to this action, as the Pennsylvania Secretary of the Commonwealth (under facts identical to those at issue here) has been held to be an indispensable party. For these reasons, the Motion must be denied.
First, in Lightbourn, the Fifth Circuit addressed the factual finding that the Texas Secretary of State had not been presented with and had not failed to approve accessible voting equipment. (!d. at 431.) Contrary to the statements in the Motion, the Complaint unambiguously makes the allegation that Defendants Harris and Roberts were presented with and declined to approve accessible voting systems. (Complaint,~~ 64, 65, 82, 98 and 99.) In fact, Defendants Harris and Roberts have been directly involved in public meetings and official hearings where such requests were made. (See infra§ III2(a).) Still, none of the voting systems to be purchased by Duval County is accessible to voters with visual or manual impairments. (Complaint,~~ 48-49, 53, 63-66.) Under Rule 12(b)(6), these allegations of the Complaint must be accepted as true.
Second, the Fifth Circuit relied heavily on the lack of mandatory statutory requirements incumbent upon the Texas Secretary of State under Texas voting laws. Lightbourn, 118 F.3d at 428-29. Because the Texas Secretary of State's duties were all discretionary- he was not required to do anything relevant to the claims alleged - the court reasoned that his failure to ensure compliance with the ADA and Rehabilitation Act was of no moment. By contrast, Defendants Harris and Roberts are subject to mandatory statutory duties to act in ways directly related to plaintiffs' claims. For example, they are required to "adopt rules to achieve and maintain the maximum degree of correctness" and to ensure secrecy in the voting process, and have in fact adopted rules establishing uniform standards
2

Case 3:01-cv-01275-HLA-HTS Document 8 Filed 01/18/02 Page 3 of 41 PageiD 73
for the purchase of voting equipment by local election officials. Fla. Stat. §§ 101.015(3), 101.5606(1) and 101.294(2); Fla. Admin. Code, Rules IS-2.0004 and 2.0007 (2001). These mandatory responsibilities of Defendants Harris and Roberts remove this case from the ambit of Lightbourn, and demonstrate that this dispute is present and "ripe" for adjudication.
Third, the Fifth Circuit's decision in Lightbourn is further tainted by what plaintiffs respectfully suggest is a flawed and incomplete analysis of the ADA's applicability to voting. The Fifth Circuit concluded that the ADA is not an "election law" and, therefore, the Texas Secretary of State had no duty to ensure compliance with its requirements. The Fifth Circuit's analysis acknowledged but failed to apply the ADA itself, which expresses a clear intent to remedy "discrimination against individuals with disabilities [that] persists in such critical areas as ... voting." Lightbourn, 118 F.3d at 430; 42 U.S.C. § 12101(a)(3). The Fifth Circuit's analysis also omitted any consideration ofthe applicable legislative history which is legion with pronouncements that the ADA is in fact a law intended to specifically target the voting process. The Fifth Circuit's failure to give appropriate consideration to the express language of the ADA and its legislative history renders highly suspect its conclusion that the ADA is not an election law.
Fourth, unlike the Secretary of State in Lightbourn, Defendants Harris and Roberts have unambiguously assumed the responsibility to ensure compliance with the ADA and Rehabilitation Act in the process of voting. Their public announcements, and self-avowed purposes, include the responsibility "to ascertain the obstacles persons with disabilities face in voting in Florida's elections ... [and] to develop and implement solutions for overcoming these obstacles." (Exhibit A, Minutes ofSept. 10, 2001 meeting of Secretary's Select Task Force on Voting Accessibility). In addressing this responsibility, Defendants Harris and Roberts analyzed the ADA and Rehabilitation Act and reached no conclusions inconsistent with the full applicability of these laws to their official duties. (Id.) Thus, assuming
3

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arguendo they had no responsibility in the first place to ensure ADA and Rehabilitation Act compliance, they assumed such a responsibility as a matter of public policy.
Fifth, in further reliance on Lightbourn, the Motion attacks Plaintiffs' Rehabilitation Act claim asserting that the Complaint does not allege that Defendants Harris and Roberts have received the requisite federal financial assistance. (Motion, p. 8.) To the contrary, the Complaint makes this specific allegation (Complaint,~ 112), which must be accepted as true. The specific nature ofhow, when, and through what means that assistance is provided has been repeatedly held to raise factual matters not appropriate for Rule 12(b)(6). Even in Lightbourn, this issue was resolved through the trial testimony of the Texas Assistant Secretary of State. Lightbourn, 118 F.3d at 427.
Sixth, the issues raised in the Motion are fact specific and are therefore not appropriate for resolution under Rule 12(b)(6). For example, consistent with the allegations ofthe Complaint (which must be taken as true), publicly available information indicates that Secretary Harris and Roberts have ignored requests that they certify accessible voting systems, have become closely involved with ensuring compliance with the ADA and Rehabilitation Act, and likely have received federal financial assistance sufficient to sustain the Rehabilitation Act claim. Resolution of these and other issues requires full discovery and a trial on the merits. Even in Lightbourn, the Fifth Circuit reviewed "extensive evidence" compiled through a two-phase trial. (!d. at 424 and 428 n.7.)1
Seventh, in National Organization on Disability v. Tartaglione, No. 01-1923, 2001 U.S. Dist. LEXIS 16731 (E.D. Pa. Oct. 11, 2001) the Pennsylvania Secretary of Commonwealth was held to be an indispensable party because he, like Defendant Harris in Florida, is the only Pennsylvania official authorized to approve voting systems. The court
1Plaintiffs are under no obligation to address the facts at this stage of the proceedings, but do so on a limited basis herein to show that preliminary factual investigation has revealed substantial support for the express allegations of the Complaint. At this juncture, the allegations of the Complaint must be taken as true.
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reached this conclusion on facts identical to those at issue here, concluding that any relief it might ultimately grant the plaintiffs (in the form of new or modified voting systems) would have to be approved by the Pennsylvania Secretary.
For these and the following more specific reasons, the Motion must be denied. II. APPLICABLE LEGAL STANDARDS
Rule 12(b)(6) motions are "viewed with disfavor and [are] rarely granted." Brooks v. Blue Cross & Blue Shield., Inc., 116 F.3d 1364, 1369 (11th Cir. 1997) (citations omitted). The scrutiny under Rule 12(b)(6) is heightened where, as here, "fundamental rights" and "important questions of public policy" are at issue. DeMallory v. Cullen, 855 F.2d 442, 445 (7th Cir. 1988); Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir. 1994). "The purpose of a Rule 12(b)(6) motion is to test the facial sufficiency of the statement of claim for relief ... and the analysis of a 12(b)(6) motion is limited primarily to the face of the complaint and attachments thereto." Brooks, 116 F.3d at 1368 (citation omitted). The "complaint must be construed in a light most favorable to the plaintiff and the factual allegations taken as true." Id. at 1369 (citation omitted). "[A] complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Id. (quoting Conley v. Gibson, 355 U.S. 41, 4546 (1957)); Tiftarea Shopper, Inc. v. Georgia Shopper, Inc., 786 F.2d 1115, 1117-18 (11th Cir. 1986 (quoting Conley)). These stringent standards explain why "[d]ismissal of a claim on the basis ofbarebone pleadings is a precarious disposition with a high mortality rate." Id. (quoting International Erectors, Inc. v. Wilhoit Steel Erectors & Rental Serv., 400 F.2d 465, 471 (5th Cir. 1968)). III. ARGUMENT
The Motion must be denied because the Complaint makes all of the requisite allegations upon which relief is sought and the bases upon which it rests involve numerous issues of fact that are inappropriate for resolution under Rule 12(b)(6).
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1. The Complaint Alleges the Necessary Elements of ADA and Rehabilitation Act Claims
The relevant question before this Court is whether the Complaint makes the necessary allegations to state a claim and not, as the Motion suggests, whether plaintiffs can prove every aspect of their case at this early stage of the proceedings. (See Motion, p. 6, improperly suggesting that plaintiffs must "present specific and concrete facts.") There is no dispute that the Complaint alleges all of the required elements of the claims upon which relief is sought. Those allegations must be "taken as true." Brooks, 116 F.3d at 1369. Accordingly, the Complaint is facially sufficient and it cannot be said that plaintiffs can prove no set of facts supporting their claims.
a. The Requisite Elements of an ADA Claim Are Pled Count One of the Complaint alleges a claim under Title II of the Americans With Disabilities Act. "To state a claim under Title II of the ADA, a plaintiff must allege: (1) that he is a 'qualified individual with a disability'; (2) that he was 'excluded from participation in or ... denied the benefits of the services, programs, or activities of a public entity' or otherwise 'discriminated [against] by such entity'; (3) 'by reason of such disability."' (Shotz v. Cates, 256 F.3d 1077, 1079 (11th Cir. 2001) (quoting 42 U.S.C. § 12132)). Each of these requisite elements -- which must be taken as true -- is alleged in the Complaint, and Defendants Harris and Roberts make no arguments to the contrary. (Complaint,~~ 41-44, 57-58, 69, 72, 75, 79, 85, 92-93.) For Rule 12(b)(6) purposes, the Court's analysis need go no further.
b. The Requisite Elements of a Rehabilitation Act Claim Are Pled
Count Three of the Complaint alleges a violation of Section 504 of the Rehabilitation Act. Defendants Harris and Roberts do not suggest that the Complaint fails to allege the necessary elements of a Rehabilitation Act claim. Nor could they, as each predicate allegation is clearly set forth in the Complaint. Indeed, the Complaint alleges that plaintiffs
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are "qualified handicapped individual[s]" who have been "excluded from the participation in, ... denied the benefits of, or [have been] subjected to discrimination under a program or activity receiving Federal financial assistance." (29 U.S.C. § 794(a); Complaint,,, 110-17.) These allegations are true for purposes of Rule 12(b)(6) (Brooks, 116 F .3d at 1369), and the Motion therefore must be denied.
The only specific attack lodged by Defendants Harris and Roberts against plaintiffs' Rehabilitation Act claim is that "plaintiffs failed to allege that defendants Harris and Roberts ... receive federal assistance for election programs." (Motion, p. 8 (emphasis added).) They contend that a "specific program or activity" with which Harris and Roberts are involved must "receive or directly benefit[] from federal financial assistance in order to state a § 504 claim." (!d. at 8-9.) Neither the Eleventh Circuit nor any Florida federal or state court has addressed whether federal financial assistance must be "direct" to state a Rehabilitation Act claim, much less whether a complaint must allege that it is "direct" to survive Rule 12(b)(6). There is ample authority that it need not be "as direct"- i.e., "for election purposes"- as the Motion suggests,2 and, certainly, a Rule 12(b)(6) motion is inappropriate to resolve this issue of fact.
Whether or not Defendants Harris and Roberts directly receive federal financial assistance is replete with factual issues, making a Rule 12(b)(6) motion inappropriate. Indeed, the issue of whether a state entity "receives federal financial assistance within the meaning ofthe civil rights laws ... requires inquiry into factual matters outside the
2 Jim C. v. United States, 235 F.3d 1079, 1082 (8th Cir. 2000) (holding that the Arkansas Department of Education is subject to a Rehabilitation Act§ 504 claim for any of its activities not merely those activities or programs that actually receive federal funds, cert. denied, 121 S. Ct. 2519 (2001)); Shepherd v. United States Olympic Comm., 94 F. Supp. 2d 1136, 1146 (D. Colo. 2000) (holding that the U.S. Olympic Committee is subject to a Rehabilitation Act claim where the federal funding went to the committee for other activities not the athlete training program in question); Sharrow v. Bailey, 910 F. Supp. 187, 193 (M.D. Pa. 1995) (holding that a doctor is subject to a Rehabilitation Act claim where hospital at which he worked received federal financial assistance).
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complaint and, accordingly, is a matter better suited for resolution after both sides have conducted discovery on the issue." Sims v. United Gov 't 120 F. Supp. 2d 938, 955 (D. Kan. 2000); see also Shepard v. United States Olympic Comm., 94 F. Supp. 2d 1136, 1146-47 (D. Colo. 2000); Communities for Equity v. Michigan High Sch. Athletic Ass 'n, 26 F. Supp. 2d 1001, 1008 (W.D. Mich. 1998); Bowers v. NCAA, 9 F. Supp. 2d 460, 492 (D.N.J. 1998); Gazouski v. City ofBelvidere, No. 93-C-20157, 1993 U.S. Dist. LEXIS 17675, (N.D. Ill. Dec. 13, 1993); Gonzales Dev. Assistance Corp., No. 88-0191-LFO, 1989 U.S. Dist. LEXIS 6921 (D.D.C. June 21, 1989); Bellamy v. Roadway Express, Inc., 668 F. Supp. 615, 618 (N.D. Ohio 1987).
Moreover, Defendants Harris and Roberts do not deny that they have received direct financial assistance, and it is doubtful that they could. Preliminary factual investigation reveals that Ms. Harris' Select Task Force On Voting Accessibility received "written and oral presentation" regarding the applicability of the Rehabilitation Act to the voting process in Florida. (Exhibit A.) The written presentation concludes:
The Rehabilitation Act of 1973 - requires that all federal grants and programs or entities that receive federal funding, comply with physical, program and service accessability. It is currently an estimated 20% of people with disabilities who are LESS LIKELY to vote, when compared to the general population, and another 10% who are LESS LIKELY to register to vote due to lack of accessability. There are presently 33.7 million Americans with disabilities of voting age, and if all polling sites were accessible, an additional 5-l 0 million of these disabled would vote. (!d.) Ms. Harris' Task Force reached no express conclusions as to whether federal financial assistance must be direct at all, much less directly benefit "election programs," to make the Rehabilitation Act applicable. More importantly, why would Ms. Harris' Select Task Force solicit specific advice about the Rehabilitation Act if it did not apply? What was said in the "oral presentation" about the Rehabilitation Act, the nature of the federal financial
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assistance received by the State, and the alleged "directness" requirement? Moreover, Mr. Roberts' website reveals that he is involved in federally sponsored voting pilot programs. (Exhibit B, Director's Office- Division ofElections- Florida Dep 't ofState). Is the Florida Department of State being federally funded for its participation in these federal election programs? As the caselaw unanimously provides, these are some of the critical questions that can be answered only through discovery and a trial on the merits. Even in Lightbourn, it took full discovery and a two-phase trial to resolve this issue. See Lightbourn, 118 F.3d at 427 (trial testimony regarding whether the Texas Secretary of State received federal financial assistance.)
2. This Case is Ripe for Adjudication Because Defendants Harris and Roberts Owe Direct and Present Responsibilities to Voters With Disabilities in Duval County, Florida
The thrust of the Motion is that both the ADA and Rehabilitation Act claims fail because Defendants Harris and Roberts have no present responsibility to plaintiffs and, therefore, this case is not ripe for adjudication. Specifically, Defendants Harris and Roberts argue that:
Since the complaint has not alleged that the plaintiffs herein have presented any such voting machine to the defendants and that the defendants have failed to approve such a machine, the plaintiffs have not been denied the benefits of services, programs or activities for which the defendants are responsible, which renders this action premature. (Motion, p. 4.) Based upon this erroneous factual predicate, the Motion concludes that the denial of benefits and discrimination admittedly alleged in the Complaint "is not one for which the Secretary is responsible." (ld.). This argument is based exclusively upon the Fifth Circuit's decision in Lightbourn. Application of Lightbourn to the allegations of the Complaint, however, summarily refutes this position. Indeed, the Complaint unambiguously makes the
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very allegations claimed to be missing (which must be taken as true), and the law otherwise imposes direct and present responsibilities upon Defendants Harris and Roberts for the denial ofbenefits and discrimination alleged herein.
a. Defendants Harris and Roberts Have a Clear Responsibility to Plaintiffs Under Lightbourn
Defendants Harris and Roberts concede that if the Complaint "alleged that the plaintiffs herein have presented any such [accessible] voting machine to the defendants and that the defendants have failed to approve such a machine," a denial of benefits or discrimination for which they are responsible has been alleged sufficient to survive Rule 12(b)(6). (Motion, p. 4.) They had to make this concession because the Fifth Circuit in Lightbourn concluded "[p]erhaps the plaintiffs could state a claim under the ADA ifthey demonstrated that the Secretary wrongfully refused to approve such equipment after it was presented to him for approval." Lightbourn, 118 F.3d at 431.
Contrary to the statement in the Motion (Motion, p. 4), however, the Complaint specifically alleges that accessible voting systems were presented to and rejected by Defendants Harris and Roberts:
· "Plaintiffs have made specific requests of Defendants to certify and purchase only accessible voting systems that ensure Plaintiffs' right and others similarly situated to cast a direct and secret ballot under the same conditions as non-disabled persons." (Id., ~ 98.) · "Defendants Harris and Roberts have certified voting systems that are not accessible to voters with visual or manual impairments...." (Id., ~ 65.) · "By certifying voting systems that are inaccessible, Defendants Harris and Roberts have denied Plaintiffs and others similarly situated the benefit of voting by direct and secret ballot and, therefore, have not afforded Plaintiffs and others similarly situated the same opportunity to participate in the voting process as non-disabled voters." (Id., ~ 82.)
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· "By ignoring Plaintiffs' request to certify only accessible voting systems, Defendants Harris and Roberts have failed to give primary consideration to the requests of voters with disabilities in determining the auxiliary aids and services to provide." (/d.,~ 99.) These allegations must be "taken as true." Brooks, 116 F.3d at 1369. Therefore, the requisite responsibility of Defendants Harris and Roberts is sufficiently alleged to meet the requirements ofRule 12(b)(6). Preliminary investigation reveals that these allegations of the Complaint are supported by facts that can be explored only through discovery and trial. On February 1, 2001, at the Fort Lauderdale public hearing of the Governor's Select Task Force on Election Reform a specific request was made for accessible equipment and State officials viewed a variety of accessible voting systems. (Exhibit C, Testimony of James K. Kracht before the Governor's Select Task Force on Election Procedures, Standards, and Technology, Feb. 1, 2001, and Exhibit D, Letter from James K. Kracht to James C. Smith & Edward T. Foote, Feb. 2, 2001.) Again, on February 13, 2001, that Task Force (together with the Duval County Election Reform Task Force) received specific testimony asking for accessible voting systems. On June 4, 2001, a meeting took place directly with Defendant Roberts where accessible voting systems were presented to Mr. Roberts. Finally, on June 13, 2001, the disabled community met directly with Defendant Harris where specific voting systems were presented. Almost a year has passed, yet none of the voting systems to be purchased by Duval County are accessible to disabled voters. (Complaint,~~ 48-49, 53, 63-66.) These critical facts can be fully divined only through discovery and trial.3
3 Even if Defendants Harris and Roberts certify, and Duval County purchases, voting systems defendants contend are accessible, an issue of fact exists. Staron v. McDonald's Corp., 51 F.3d 353, 356 (2d Cir. 1995) ("the determination of whether a particular modification is 'reasonable' involves a fact-specific, case-by-case inquiry"); Crowder v. Kitagawa, 81 F.3d 1480, 1486 (9th Cir. 1996) ("the determination ofwhat constitutes reasonable modification is highly fact-specific, requiring case-by-case inquiry"); McCray v. City ofDothan, 169 F. Supp. 2d 1260, 1275 (M.D. Ala. 2001) ("[w]hether an accommodation is reasonable 'involves a fact-specific, case-by-case inquiry that considers, among other factors, the
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b. Defendants Harris and Roberts Have Express Statutory Responsibilities under Florida Law
Defendants Harris and Roberts argue that they "do not have the duty of ensuring that local election officials interpret and apply the ADA uniformly." (Motion, p. 8.) This argument is lifted from the text of the Lightbourn decision. However, the holding in Lightbourn is based upon analysis ofthe Texas voting statutes which imposed no mandatory duties upon the Texas Secretary of State to take any action relevant to the claims alleged, and otherwise materially differ from the Florida statutory framework. Under Florida law, Defendants Harris and Roberts are under express and mandatory statutory requirements that did not exist in Lightbourn.4
Specifically, Florida law provides that Defendants Harris and Roberts "shall adopt rules to achieve and maintain the maximum degree ofcorrectness, impartiality, and efficiency of the procedures of voting, including write-in voting, and of counting, tabulating, and recording votes by voting systems used in the state." Fla. Stat. 101.015(3) (emphasis added).5 This duty is mandatory. The practical harm caused by the use of inaccessible voting systems is the loss of accuracy. It cannot be disputed that where, as in Florida, visually and manually impaired voters vote through third party assistance "the maximum degree of correctness" cannot be achieved. Mistakes in transmission of the voter's intent can, will, and have been made, not to mention the fact that this process is not "direct" as required by the Florida Constitution. It is Defendants Harris and Roberts statutory mandate
effectiveness of the modification in light of the nature ofthe disability in question"') (citation omitted). 4 The Fifth Circuit in Lightbourn placed significant weight on the fact that the applicable Texas statutes were not mandatory but instead provided that the Texas Secretary 'may' take certain action. Lightbourn, 118 F.3d at 429. 5 It should be noted that "counting, tabulating, and recording votes" are functions of local election officials for which Defendants Harris and Roberts have direct responsibility. Id. Each function is directly impacted by accessible voting systems.
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- and, hence, direct, present and "ripe" responsibility- to achieve and maintain a "maximum degree of correctness." Fla. Stat. § 101.015(3). By ignoring the ADA and Rehabilitation Act, they are not meeting this responsibility.
Again, this argument is not merely theoretical, but is supported by material facts rendering Rule 12(b)(6) inapplicable. Defendants Harris and Roberts are acutely aware that numerous irregularities and inaccuracies have occurred in Florida elections as a direct result ofthe failure to certify and implement accessible voting systems. On February 1, 2001, they received testimony regarding pollworkers' refusal to read ballots to disabled voters, refusal to properly witness assisted voting, deputization of strangers to shepherd disabled voters through the voting procedures, and refusal to allow visually impaired voters to be assisted by family members. (Exhibit C.) Whether and to what extent Defendants Harris and Roberts are not achieving the "maximum degree of correctness" are matters for discovery and trial.
Further, Defendants Harris and Roberts are statutorily and constitutionally mandated to certify only voting systems that "permit[] and require[] voting in secrecy." Fla. Stat. 101.5606(1); Florida Constitution, Art. VI,§ 1.6 Secrecy is not ensured where, as here, the voting systems certified in Florida and to be purchased by Duval County are not accessible to disabled voters. (Complaint,~~ 48-49, 52-53, 63-66.) In Florida, disabled voters must cast their votes through the assistance of third parties. This is not a secret much less direct process, and is inherent with all of the problems against which the "direct and secret" entitlement of the Florida Constitution intends to protect. Again, this allegation is not without significant factual support. On February 1, 2001, Defendants Harris and Roberts received testimony about pollworkers openly announcing and negatively commenting on the choices of voters with manual and visual impairments. (Exhibit C.)
6 The Florida Constitution requires more than secrecy- it mandates that voting be both "direct and secret."
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Moreover, as Duval County admits in its motion to dismiss, "[t]he Division [of Elections, Department of State] has 'adopted uniform rules for the purchase, use, and sale of voting equipment' in Florida, such rules relating to the technical and bid specifications for the procurement of such equipment." (Duval County Motion, p. 4.) (citing Rules IS-2.0004 and 2.007, Fla. Admin. Code (2001)). Thus, unlike the Texas Secretary of State in Lightbourn, Defendants Harris and Roberts have the express duty to ensure uniformity at the local level with respect to the purchase of voting systems. Therefore, the argument that Defendants Harris and Roberts have no duty to ensure that local officials uniformly comply with the ADA and Rehabilitation Act is without merit.?
For these reasons, Lightbourn is inapposite as Defendants Harris and Roberts, unlike the Texas Secretary of State, are under mandatory duties to address the issues alleged in the Complaint.
c. Defendants Harris and Roberts Have Statutory Responsibility Under Federal Law
Parroting Lightbourn, Defendants Harris and Roberts further argue that they have no responsibility for the denial of benefits or discrimination alleged here, because "[t]he ADA is not an election law." (Motion, p. 8.) Plaintiffs respectfully suggest that the Fifth Circuit's conclusion in Lightbourn is plainly wrong.
The Fifth Circuit's acknowledgement of the express reference to "voting" in the ADA regulations, and dismissal of that reference as "tangential allusion," is unsupportable. Lightbourn, 118 F.3d at 430. As the Fifth Circuit noted in Lightbourn, 42 U.S.C. § 12101(a)(3) provides "discrimination against individuals with disabilities persists in [the]
7 Defendants Harris and Roberts also have the responsibility to approve "hardware and software for innovative use of electronic and electromechanical voting systems" including standards for "physical and design characteristics." Fla. Stat. 101.015(5)(a)(3). The "physical and design characteristics" of the voting systems currently in use pose a significant barrier to disabled voters and, thus, this responsibility necessarily includes a requirement that ADA accessible voting systems be implemented.
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... critical area[] [of] voting . ..." !d. (emphasis added). Armed with this clear authority that the ADA governs discrimination in the process of voting, the Fifth Circuit wrongfully concluded that "[t]he mere mention of the word 'voting' here does not transform the ADA into an 'election law."' !d. Plaintiffs respectfully disagree.
The fact that the ADA is indeed an "election law" is unambiguously supported by the applicable legislative history, which was not analyzed by the Fifth Circuit in Lightbourn. The Senate Report accompanying the ADA quoted the testimony that "focused on the need to ensure access to polling places: 'You cannot exercise one of your most basic rights as an American if the polling places are not accessible."' S. Rep. No. 101-116, 12 (1989). The House hearings described how some jurisdictions had implemented the Voting Accessibility Act in a manner that was "demeaning to the disabled person" and that "create[d] a loss of dignity and independence for the disabled voter." Americans with Disabilities Act of 1989: Hearing Before the Subcomm. on Select Education ofthe House Comm. on Education & Labor, lOlst Cong., 1st Sess. 41 (1989). Former-Vice President (then Senator) Gore stated: "As a practical matter, many Americans with disabilities find it impossible to vote. Obviously, such a situation is completely unacceptable and unconscionable. We must take strong action to end the tradition ofblatant and subtle discrimination that has made people with disability second-class citizens." (See 135 Cong. Rec. S10753 (1989).); accord 135 Cong. Rec. S10793 (1989) (remarks ofSenatorBiden).
The "strong action" intended to address discrimination in voting was enactment of the ADA. The laws then in place did not meet the particular needs of voters with disabilities and the ADA expressly intended to fill the gap.s What is apparent from 42 U.S.C. § 12101(a)(3)
8 In addition to the ADA's general bar against discrimination, the Act instructs the Attorney General to develop regulations that implement the prohibition contained therein. Kinney v. Yerusalim, 9 F.3d 1067, 1071 (3d Cir. 1993). Those regulations prohibit discrimination in public programs, services, or activities, and require that such activities be readily accessible to and usable by individuals with disabilities. 28 C.F.R. § 35.150. They also require, inter alia, that priority be given to services offered in the most integrated setting
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and other ADA regulations is crystallized by this legislative history- contrary to the Fifth Circuit's position, the ADA is an "election law" that added accessibility requirements applicable directly to voting, and its reach is not limited to the narrow protections afforded by prior laws enacted long before today's technological advances.
d. Defendants Harris and Roberts Assumed Responsibility
Defendants Harris and Roberts argue that they have not yet exercised their admitted discretionary duties over "voting systems, which would include plaintiffs' concerns." (Motion, p. 8 (emphasis added).) To the contrary, Defendants Harris and Roberts have repeatedly exercised that alleged discretion, and have assumed the responsibility to ensure compliance with the ADA and Rehabilitation Act in the process of voting. When a governmental body makes a policy decision to assume responsibility for an issue not expressly imposed upon that body, it also assumes the legal duty to fulfill that responsibility. Indian Towing Co. v. United States, 350 U.S. 61, 69 (1955); Magno v. Corros, 630 F.2d 224, 227 (4th Cir. 1980); Commercial Union Ins. Co. v. United States, 928 F.2d 176, 178 (5th Cir. 1991); Sheridan Transp. Co. v. United States, 897 F.2d 795, 800 (5th Cir. 1990); Eklof Marine Corp. v. United States, 762 F.2d 200,202 (2dCir. 1985); Thigpen v. United States, 800 F.2d 393, 401 (4th Cir. 1986); Sheridan Transp. Co. v. United States, 834 F.2d 467, 475 (5th Cir. 1987); Campbell v. United States, No. 00-11942-NMG, 2001 U.S. Dist. LEXIS 21646, at *12 (D. Mass., Sept. 28, 2001).
Defendant Harris generally describes her mandate as creation of election systems which guarantee that no voter ever doubts whether his or her vote counts. To achieve this
appropriate (35.150(b)), that persons with disabilities be assured means of communication that are as effective as communications with others (35.160), and that appropriate auxiliary aids be offered where necessary to afford equal opportunity to participate in public programs. (35.160).
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mandate, Defendants Harris and Roberts set up the Secretary's Select Task Force on Voting Accessibility. The express purposes of the Task Force include:
1. To ascertain the obstacles persons with disabilities face in voting in Florida's elections.
2. To develop and implement solutions for overcoming these obstacles.
3. To devise a mandatory training program for all election officials and poll workers, which includes instruction from persons with disabilities.
4. To propose a funding mechanism for the estimated costs association with implementation and training.
(Exhibit A, emphasis added.) Accordingly, Defendants Harris and Roberts assumed the responsibility to "ascertain
the obstacles persons with disabilities face in voting in Florida's elections [and] ... [t]o develop and implement solutions for overcoming those obstacles." (Id. emphasis added). In the context of addressing this duty, Defendants Harris and Roberts have evaluated, analyzed, and solicited expert advice regarding the need to comply with the ADA, Rehabilitation Act, and other federal laws. (Jd.) None ofthis analysis concludes that they lack the responsibility to ensure compliance with the ADA and Rehabilitation Act. All of it, in fact, suggests such a responsibility. Putting aside that the allegations of the Complaint must be taken as true, and that this raises numerous issues of fact, it is clear that Defendants Harris and Roberts have assumed the responsibility they attempt to evade through their Motion.
For the foregoing reasons, it is clear that Defendants Harris and Roberts have mandatory, present, and thus "ripe" responsibilities to ensure compliance with the ADA and Rehabilitation Act.
3. Defendant Harris Is An Indispensable Party Defendant Harris is not only a necessary party to this action, she is indispensable. This Court cannot grant full and complete relief in her absence.
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In National Organization On Disability v. Tartaglione, No. 01-1923, 2001 U.S. Dist. LEXIS 16731 (E.D. Pa. Oct. 11, 2001 ), the court denied the defendants' motion to dismiss in a case involving identical facts to those alleged in the Complaint. The Court did so because the complaint alleged that voters with disabilities "cannot participate in the program or benefit of voting in the same manner as other voters but, instead, must participate in a more burdensome process."9
In so doing, the Eastern District ofPennsylvania in Tartaglione also concluded that the Pennsylvania Secretary of the Commonwealth was an indispensable party. The court reached this conclusion because:
The Pennsylvania Election Code prohibits the use of voting machines which have not been pre-approved by the Secretary of the Commonwealth . . . . Defendants aver, and Plaintiffs concede, that the Secretary of the Commonwealth has not approved any electronic voting machines with the audio output technology required by the visually impaired Plaintiffs. Consequently, if Plaintiffs were to succeed in this proceeding, the Court could not order Defendants to use the accessible voting machines sought by the visually impaired Plaintiffs. 2001 U.S. Dist. LEXIS 16731, at *25-*26. It is undisputed that this is the identical factual and statutory situation existing here. Tartaglione compels the conclusion that Defendant Harris is an indispensable party to this action.
9 Unlike Lightbourn, the holding reached in Tartaglione is mandated here by Eleventh Circuit precedent which provides that "[a] violation of Title IT [of the ADA], however, does not occur only when a disabled person is completely prevented from enjoying a service, program or activity. The regulations specifically require that services, programs, and activities be 'readily accessible."' Shatz, 256 F.3d at 1080. Indeed, the Eleventh Circuit recognizes that a burdensome process violates that ADA in the same manner that an absolutely inaccessible process does. Paraphrasing Shatz and Tartaglione, if the voting system is so burdensome that it is "unfit for the use of a disabled person, then it cannot be said that [it] is 'readily accessible,' regardless [of] whether the disabled person manages in some fashion to [vote]." !d.
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4. The Pullman Abstention Doctrine Is Inapplicable Defendants Harris and Roberts concede that the requisite elements of a violation of the Florida Constitution have been pled in the Complaint. They suggest, however, that this Court should abstain from considering plaintiffs' Florida Constitution claim (Count III) under the Pullman Abstention Doctrine. (Motion, p. 9.) This argument is predicated upon the Court first dismissing Plaintiffs' ADA and Rehabilitation Act claims because, in such event, Defendants Harris and Robert contend that "there would be no reason for this court to assume jurisdiction of these defendants for the sole purpose of deciding issues governed by state law." (Id.) Because, as the foregoing demonstrates, plaintiffs' ADA and Rehabilitation Act claims should not be dismissed, this argument fails. Moreover, the Court need not abstain under Pullman where, as here, the state law at issue is clear. Baggett v. Bullitt, 377 U.S. 360, 378 n.ll (1964) (even absent precedent from the state judiciary, court need not abstain where the state law is clear); see also Pittman v. Cole, 267 F.3d 1269, 1286 (11th Cir. 2001). The plain meaning of the Florida Constitution's provision granting the right to a "direct and secret vote" is clear- Florida voters have a right to vote both directly and secretly. (See Opposition to Duval County Motion to Dismiss at Section III(A)(2).) Further, courts exercise substantial restraint in invoking the Pullman Doctrine. Baggett, 377 U.S. at 375. That restraint is all the more necessary in "voting cases." Indeed, the Eleventh Circuit has made it clear that "voting rights cases are particularly inappropriate for abstention." Siegel v. LePore, 234 F.3d 1163, 1174 (11th Cir. 2000); Pittman, 267 F.3d at 1287. Even in both Nelson and Lightbourn- the principal authority upon which defendants
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rely- federal courts decided issues under state voting laws without application of the Pullman Abstention Doctrine.
Finally, even if the applicable state law was not clear, and restraint was not required, rather than abstain under Pullman, federal courts prefer certification ofnovel state-law questions to the State's highest court, reducing the delay, cutting the cost, and increasing the assurance of gaining an authoritative response. !d.
For the foregoing reasons, the Pullman Abstention Doctrine has no bearing on Plaintiffs' claims under the Florida Constitution. IV. CONCLUSION
For the foregoing reasons, the Motion must be denied. Respectfully submitted,

Dated: January 17, 2002

~ouglas Baldridge
Trial Counsel Florida Bar No. 0708070 HOWREY SIMON ARNOLD & WHITE, L.L.P. 1299 Pennsylvania Ave., N.W. Washington, D.C. 20004 (202) 783-0800
Lois G. Williams Co-Counsel Washington Lawyers' Committee for Civil
Rights and Urban Affairs 11 Dupont Circle NW, Suite 400 Washington, D.C. 20036 (202) 319-1000
Attorneys for Plaintiffs

20

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Of Counsel: Alan M. Wiseman Danielle R. Oddo Courtney 0. Taylor Vincent E. Verrocchio HOWREY SIMON ARNOLD & WHITE, L.L.P. 1299 Pennsylvania Ave., N.W. Washington, D.C. 20004 (202) 783-0800
CERTIFICATE OF SERVICE
I hereby certify that copies of the foregoing Opposition to the Motion to Dismiss of Defendants Harris and Roberts were served by regular United States mail, postage prepaid, this 171h day of January, 2002, upon each of the parties listed below:
Scott D. Makar, Esq. Office of General Counsel 11 7 West Duval Street Suite 480 Jacksonville, FL 32202 Charles A. Finkel, Esq. Assistant Attorney General Office ofthe Attorney General PL-01, The Capitol Tallahassee, FL 32399-1050
21

""""' Case 3:01-cv-01275-HLA-HTS Document 8 Filed 01/18/02 Page 22 of 41 PageiD 92
,.,...,

Apuaosuet U3s:0- 1F1-ocnv.d-a01D2IV7I5S-iHonLAof-HEJI1Sec1I.oDnoscument 8 Filed 01/18/02 Page 23 of 41 Pagelif~ 1 of 9

Secretary's Select Task Force on Voting Accessibility
Minutes of September 10, 2001 meeting Tallahassee, Florida
The Organizational meeting of the Secretary of State's Select Task Force on Voting Accessibility was held in Room 412, Knott Building, Tallahassee, Florida, on September 10, 2001.
All members were present, except: Lyn Bodiford, representing AARPFlorida, who sent Jeff Johnson in her place, Senator Manny Dawson, and Gloria Mills.
Following a self-introduction of the members, many of whom thanked Secretary Harris for the creation of this Task Force, Assistant Secretary of State, David Mann, welcomed the members and thanked them on behalf of the Secretary for their willingness to serve. The Co-Chairmen, Senator Richard Mitchell and Representative Larry Crow, introduced the staff director, Fred Dudley and staff secretary, Ginger Simmons.
The staff director then made presentations to the members regarding the Ethics laws, and the requirements for both public records and public meetings. Also, members were given copies of the reimbursement vouchers, with a written explanation of allowable charges, and a request to complete, sign and turn in to Ms. Simmons at the end of each meeting.
The members reviewed and approved the "purposes" of the Task Force, as follows:
1. To ascertain the obstacles persons with disabilities face in voting in Florida's elections.
2. To develop and implement solutions for overcoming these obstacles.
3. To devise a mandatory training program for all election ottlctals and poll workers, which includes instruction from persons with disabilities.
4. To propose a funding mechanism for the estimated costs association with implementation and training.
Julie Shaw made a written and oral presentation regarding the various legal requirements applicable to disabled Americans, as follows:
The Rehabilitation Act _()f 1973 - requires that all federal grants and programs or entities that receive federal funding, comply with physical, program and service accessability. It is currently an estimated 20% of people with disabilities who are LESS LIKELY to vote, when compared to the general population, and another 10% who are LESS LIKELY to register to vote due to lack of accessability. There are presently 33.7 million Americans with disabilities of voting age, and if all polling sites were accessible, an additiona15-10 million of these disabled would vote.
1984 Voter Accessibilities For the Elderly and Handicapped Act - for the first time required that all polling places be physically accessible, or moved to another location if not made temporarily accessible. Alternative voting,

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~ase 3:01-C\ld-01275-HLA-HTS . Document 8 Aoout Us - Flon a Division of EJections

Filed 01/18/02 Page 24 of 41 Pagelipa~i 1 of 9

Secretary's Select Task Force on Voting Accessibility
Minutes of September 10, 2001 meeting Tallahassee, Florida
The Organizational meeting of the Secretary of State's Select Task Force on Voting Accessibility was held in Room 412, Knott Building, Tallahassee, Florida, on September 10, 2001.
All members were present, except: Lyn Bodiford, representing AARPFlorida, who sent Jeff Johnson in her place, Senator Manny Dawson, and Gloria Mills.
Following a self-introduction of the members, many of whom thanked Secretary Harris for the creation of this Task Force, Assistant Secretary of State, David Mann, welcomed the members and thanked them on behalf of the Secretary for their willingness to serve. The Co-Chairmen, Senator Richard Mitchell and Representative Larry Crow, introduced the staff director, Fred Dudley and staff secretary, Ginger Simmons.
The staff director then made presentations to the members regarding the Ethics laws, and the requirements for both public records and public meetings. Also, members were given copies of the reimbursement vouchers, with a written explanation of allowable charges, and a request to complete, sign and tum in to Ms. Simmons at the end of each meeting.
The members reviewed and approved the "purposes" of the Task Force, as follows:
1. To ascertain the obstacles persons with disabilities face in voting in Florida's elections.
2. To develop and implement solutions for overcoming these obstacles.
3. To devise a mandatory training program tor all election otilctais and poll workers, which includes instruction from persons with disabilities.
4. To propose a funding mechanism for the estimated costs association with implementation and training.
Julie Shaw made a written and oral presentation regarding the various legal requirements applicable to disabled Americans, as follows:
The Rehabilitation Act of 1973 - requires that all federal grants and programs or entities that receive federal funding, comply with physical, program and service accessability. It is currently an estimated 20% of people with disabilities who are LESS LIKELY to vote, when compared to the general population, and another 10% who are LESS LIKELY to register to vote due to lack of accessability. There are presently 33.7 million Americans witll disabilities of voting age, and if all polling sites were accessible, an additional 5-10 million of tllese disabled would vote.
1984 Voter Accessibilities For the Elderly and Handicap_ped Act - for tile first time required tllat all polling places be physically accessible, or moved to another location if not made temporarily accessible. Alternative voting,

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to increase state funding for the e'ltisting transportation program, such as that being sought by Senator Mitchell in Senate Bill 100 during the past legislative session.
Mr. Evans also sought clarification that a disabled voter, such as an elderly blind citizen who didn't want to use the latest technology could continue to have the right to request assistance at the polls, as in the past. The general consensus was that this right to assistance would be continued, regardless of other alternatives later employed to allow more secret and confidential voting controls.
Chris Wagner agreed that the transportation problem is a major obstacle for those with disabilities, as well as the need to have someone at each polling place to assist with questions regarding the equipment and the process. Mr. Miller stated that training of both poll workers and disabled persons is essential. Pam Dorwarth inquired about any present requirements for "sensitivity" training, and the consensus seemed to be that there are no such requirements at the present time.
Valerie Breen about the present job descriptions of poll workers. Teresa LaPore pointed out that Palm Beach County hires and trains approximately 4,000 poll workers in each election, and that such training there does include sensitivity training on the needs of disabled voters; she also referred to several accessibility and sensitivity training videos prepared by the state of North Carolina, which she has obtained permission to use them, and to share them with other Florida Supervisors of Elections.
Mr. Kracht questioned the likelihood that several days of sensitivity training will be given for a one-day job. Ms. Breen agreed, and suggested that we should review any existing training and sensitivity requirements before we propose additional ones. Ms. LaPore pointed out that the recent election law changes require six (6) hours of training spread throughout the year prior to the general election.
Michael Phillips pointed out that no one particular type of voting is going to meet the needs of every disabled voter, but that he thought Internet voting would allow more disabled citizens to vote.
Chairman Mitchell directed Mr. Dudley to survey Florida television stations regarding their willingness and ability to being closed captioning even prior to the 2006 deadline. Ms. Shaw pointed out how critical this capability would have been during a disaster like Hurricane Andrew when many disabled persons were unable to obtain safety and health information from their televisions. David Evans pointed out that, for the blind and visually impaired, failure of stations to read aloud the "number at the bottom of the screen" should be avoided, especially in disaster situations. Mr. Hardy pointed out that the current FCC requirements for closed captioning are merely voluntary prior to 2006, and not mandatory until that date.
Kristi Reid Bronson, a staff attorney with the State Division of Elections, made a presentation on state and federal election laws, a written copy of which is located in each member's Handbook under Tab 8. To Ms. Shaw's description of federal laws, she added the "Motor Voter" Act of 1993 (effective in 1995). Among other things, this act requires state funded programs, such as for welfare assistance, that are primarily engaged in providing services to persons with disabilities to also provide these same persons with the opportunity to register to vote. These program offices are required to provide not only the registration forms, but assistance in filling them out and forwarding them to the appropriate Supervisor of Elections.

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AbCouats.ues3-:QFj-lcovn.a-a01D?7T.v5:1-sH1LoAn..o.lt:t::Ile,eT~t1.0tnrso-cument 8 Filed 01/18/02 Page 26 of 41 Page:lla~ of9

However, this law applied only to registration for federal elections only.
In 1994, Florida passed similar legislation for registration in state elections as well; the state law also contains a complaint process for anyone who believes that they have been aggrieved by any violation of the federal or state requirements. Such complaints are processed and monitored by the state Division of Elections, who act as mediators to resolve problems (as does the Office of Governor if the complaint is against the Elections Division). Requests for assistance is a part of both federal and state registration requirements.
Ms. Bronson also described section 101.715, Florida Statutes, regarding the accessibility of polling places, which includes minimum widths for doors, entrance and exists, handrails on stairs and ramps, and location of any barriers between the door and the voting booth itself. These requirements have been in the law since 1976, according to Ms. Bronson, and some of them (such as minimum door width of "29 inches" conflicts with the Florida Accessibility Code according to Ms. Shaw. Richard Labelle cited Article VI, Section 1 of the state constitution, and Ms. Bronson acknowledged that she was unaware of any cases or statutes that modifies or qualifies the right secured therein to a "direct and secret vote."
Jeff Johnson inquired if the defmition of "disability" in the state elections code would include difficulty speaking or reading the English language, and Ms. Bronson said that it would not. Further, Mr. Dudley pointed out the technical difficulty of section 101.051, Florida Statues, regarding the need for an actual sworn statement from someone who needed assistance. Mr. Miller commented on the lack of uniform requirements for information regarding one's disabilities.
Next, Mr. Paul Craft, Chief of the Elections Division's Bureau of Voting Systems, described some his work over the past ten (10) years. He pointed out that, pursuant to section 101.5, Florida Statutes, no voting system may be used in the state, unless his office has first certified it. He described the certification program as an engineering evaluation which he claims is being used widely as one of the best in the country, with the following standards required for certification:
1. it has to tell what races are gomg to be voted on;
2. It has to tell how many candidates are in each race.
3. It has to explain the rules for voting (for example: vote for one, etc.).
4. It has to identify what candidates are in each race.
5. It has to allow the voter to select a candidate.
6. It has to allow the voter to review their choices, and modify their selections until the ballot is cast.
7. It has to allow for a write-in candidate, and for the edit of a write-in candidate;
8. It must have a definitive moment when the ballot is cast without further changes.
With the application of these standards, Mr. Craft claims that his bureau has

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Case_3:0t-cv.-Ot275-HLA-HIS .Document 8 About Us-F1onda DIVISion of El1ectiOns

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already certified several new machines, one of which is actually certified with an audio ballot interface. HOWEVER, Mr. Craft DOES NOT HAVE ANY STANDARDS FOR ACCESSIBILITY. On the other hand, he agreed that he needs such standards, and asked our Task Force to develop same for use by his bureau.
Mr. Craft reported that there are currently two (2) MARSYMS systems used throughout the state at the present time: the Optechs Eagle (used in Clay, St. Johns, Escambia, and several other counties), whose manufacturer is currently working on a touch screen, and Global Elections (as is used in Leon County). Tech Company is also working on a touch screen certification. As a result, there should be at least three (3) units from major manufacturers to choose. In addition, he reported that a telecommunications company has already done a lot of work with voice recognition systems.
Mr. Labelle sympathized with Mr. Craft's evaluation tasks, and thanked him for this work, which also pointing out his agreement with Mr. Phillips' concern that there is not a "one-size-fits-all" solution, as has been the case in the past with punch card ballots.
Mr. Miller pointed out that, as with the transportation problems faced by many disabled voters which greatly varies from place to place, it is important to maximize the choices we have among different certified voting systems.
Mr. Kracht was also appreciative of Mr. Craft's difficult responsibilities, and likewise expressed his appreciation for the job being done. However, he expressed frustration about the failure or refusal of companies to bring new products forward for certification, and grave concern about the on-going acquisition of new voting equipment without first dealing with certification. Mr. Craft responded that he thought the market place was going to adapted rapidly now that the first touch screen technology has been certified, and that the real question is whether or not to place mandatory requirements on the market.
Ms. Grubb differed with Mr. Craft on her perception of the market place by claiming that many manufacturers have been intentionally withholding their "access" packages until their main products were first certified. She claims that these companies are "treatmg theu access packages as step ctulctren." 1n this vain, Chairman Mitchell inquired of Mr. Craft about the adoption of a rule requiring an "access package" as part of the certification process. Mr. Craft was not opposed to that idea, but argued that a statutory mandate would be stronger, especially in light of the on-going certification process and the likelihood of legal challenges to such a rule. Chairman Mitchell countered that the statutory mandate would take longer, and that perhaps both a statute and a rule would be appropriate (to which Mr. Craft seemed to agree). Ms. Shaw pointed out the year-old Texas full accessibility statute, mandating the use of new voting equipment in every county.
Mr. Clay Roberts, Director of the Division of Elections, indicated to the Task Force that he was concerned about any mandates by rule alone, and urged the Task Force to also consider recommendation of a statutory change as well. At the same time, he indicated to the members that the department will proceed with a rule in this area.
Senator Sanderson pointed out that she and fellow Task Force member, Representative Dudley Goodlette, serve as the chairs of the respective legislative Elections committees, and might be able to fast-track such legislation. After further discussion in which several members expressed

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0 orE1 ,,pas.e 3:01-cy-01275~HLA.:1::1J~t. Document 8

Auout Us - Flon a DlVlSlOll

eCi Ions-

Filed 01/18/02 Page 28 of 41 Pagei_q~ of9

concern that all Supervisors of Elections need to be aware of this problem and the possible solution, it was agreed that Mr. Dudley would work with the respective committee staff directors and the chairs to formulate such a letter to be signed by both Senator Sanderson and Representative Goodlette.
(Editor's Note: Before this day was over, Mr. Dudley had scheduled such a meeting with Richard Hixon, Representative Goodlette's staff director of the House Rules Committee, for the following date at 2:00 p.m. The tragic circumstances of the following morning, Tuesday, September 11th, caused the meeting to be canceled when Governor Bush ordered an evacuation of the Capitol complex. However, in discussing this matter with Mr. Roberts later in the week, Mr. Dudley drafted and submitted a Memorandum for Secretary Harris' consideration and signature, a fmal mailed copy of which is found under Tab 11).
Mr. Evans expressed his belief that there is not something in all of these systems for every contingency, and that counties may well have to use several different types of voting equipment in order to meet all the needs. Mr. Dudley pointed out that some changes in current laws will be needed in order to "tally" all votes at each precinct unless different equipment can be interfaced in order to communicate with other equipment being used at the same location.
Chairman Mitchell directed the staff to arrange for a presentation by the various vendors of their products. Mr. Phillips asked Mr. Craft about the use of the Internet for voting. Mr. Craft responded that work on such a system has been underway since 1997, including a Department of Defense Internet voting project in the 2000 elections; however, he reported that the welldocumented findings are that there is no good way to secure the voter's choice once it leaves their computer; it may pick up a virus or script that would change the vote either before or after it left the computer.
At approximately 12:40 p.m., the members took a lunch break, reconvening at 1:50 p.m.
Mr. Doug Towne was recognized to make a presentation regarding the barriers to voting by those who are disabled. He first explained that, while he had been involved in the creation of this Task Force he was not serving as a member, because he had smce been retamed by one ot the product vendors as a consultant. He identified some of the following "barriers" to voting accessibility:
1. To overcome attitudes by enforcing current laws and finding new laws and rules to assure accessibility.
2. Elimination of non-accessible polling places (perhaps with the use, in some cases, of absentee ballots).
3. Flexibility to substitute technology.
4. Inadequate transportation.
5. Systematic and social barriers based on perceptions about disabilities.
Chairman Mitchell lead the members in a discussion of "problems and solutions," with the following results:
Ms. Grubb: Expressed her pleasure at seeing the Task Force moving to

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accomplish its mandate to assure accessibility in voting for all citizens, not as a "favor," but because it is the right thing to do. She pointed out that every single person will be touched by our successful efforts, whether due to their own disability brought on by accident, disease or aging, or due to the disability of someone they love.
Mr. Miller: Hope all of us have learned from today's discussions that there are many reasons for the lack of voting accessibility, such as inadequate transportation and insufficient use of close captioning.
Mr. Evans: He will propose to his local Transportation Disadvantaged Coordinating Council in Palm Beach County that they include voting access as part of its top priority on the same level as serious medical care.
Ms. LePore: Expressed her belief that all Supervisors of Elections are supportive ofmaximizing voting accessibility.
Ms. Dorwarth: Posed the question about the existence of any statutory mandate to survey the accessibility of each polling place (to which Ms. LePore indicated that these was no such requirement, and that such determination is done on a county-by-county basis).
Ms. Shaw: Creating such a survey should be one of the duties of this Task force.
Mr. Phillips: Also encouraged the use of an accessibility survey, including the use of the Internet as a viable option (referencing materials he has given to Mr. Dudley).
Mr. Miller: Recommended that we look strongly at some of the telephone technologies for convenience.
Mr. Evans: Also encouraged the use of telephone technology, especially in rural areas where transportation is also a major accessibility problem. In addition, he would like the Task Force to prepare a list of all the available technologies.
Mr. Labelle: Encouraged the proposed legislation and rule changes as having the greatest long-term impact, but is still concerned about the ongoing process around the state of counties continuing with the purchase of new voting equipment (citing to his own observation in Tampa). Also urged that the Task Force put Boards of County Commissioners "on notice" to use great caution in committing to purchase voting equipment which may later be determined NOT to be accessible. He recommended that we maximize input from manufacturers, including those out of the country, with "accessibility" and "security" being the two considerations (including the Internet). Finally, he suggested the use of a subcommittee to begin drafting legislation.
Mr. Kracht: Stressed his sense of urgency and immediacy to the issue of voting accessibility, especially as it relates to delivering a strong message to both Commissioners and Supervisors.
Ms. Dorwarth: Sought, and obtain, clarification of the current law, which prohibits the expenditure of funds to purchase voting equipment not yet certified. Also expressed concern about the apparent discrepancies in the various state laws dealing with accessibility standards (and recommending a subcommittee to look into that issue as well).

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Mr. Hardy: Expressed his concern about people with language problems, including speakers of languages other than English, and suggested pictures of the candidates be used on the ballots.
Mr. Miller: Pointed out that at least one voting system has been certified that is "accessible." being the touch screen product described by Mr. Craft.
Senator Sanderson: Offer to work with her House counterpart, Representative Goodlette, and Mr. Dudley, to draft a strong letter to Supervisors and Commissioners.
Ms. Shaw: It might also be instructive for the Task Force to review the work on accessibility recently completed in Texas.
Representative Goodlette: Expressed his hope that all new purchase contracts would contain an "accessibility component." He also mentioned the possibility that some federal funds may become available for new purchases.
Mr. Evans: Discussed pending federal funding bills, and the required stipulation of "accessibility."
Ms. Shaw: We should look not only at the pending federal legislation, but the actions of other states, such as Washington, Missouri, Michigan and Texas, to "steal" their best ideas.
Chairman Mitchell: Inquired of Senator Sanderson and Representative Goodlette if their committee staffs might be able to obtain such information for us. (Off record indication was "yes.")
Ms. Sumlin: Agreed that taking ideas from the federal and other states' efforts was good, and encouraged us to prepare a list of accessibility standards as soon as possible.
Ms. Grubbs: She has talked with people in Texas, California and Georgia, who have already certified accessible equipment which has not yet been certified in Florida.
Chairman Mitchell then summarized a number of issues on which the Task Force has appeared to have reached consensus, as follows:
1. Transportation is a main problem or barrier for voting access.
2. Accessibility technology should include the use of Internet and telephones.
3. A determination of accessibility as to specific polling places may involve use of a survey.
4. Development of accessibility standards for certification of new voting equipment.
5. Require voting equipment of include an accessibility component.
The chairman concluded his remarks by observing the difficulty of the overriding factor of "funding."

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A discussion next ensued about the use of a web site for Task Force information, such as the minutes. The Chairs agreed to work something out with the Department of State for use of their website for all this information.
Representative Crow: Reviewed Mr. Labelle's suggestion for a subcommittee to begin drafting legislation, but agreed, in light of the sunshine law requirements for notice of all meetings, that any member with ideas along these lines should send them to Mr. Dudley. He also brought back up the idea of studying the accessibility work of the federal government and other states, and agreed that we could use the resources of the Senate and House committees for this purpose as well.
Ms. Dorwarth: Again raised the subject of possible discrepencies in state laws governing accessibility, and suggested that they be reviewed. Mr. Dudley agreed to do so.
Mr. Dudley then reviewed the other meeting dates and locations, including the switching of the Tampa meeting from October 29th to October 4th, and moving the West Palm meeting from October 4th to October 29th to facilitate the use of Ms. LaPore's new office complex. Several members expressed concerns about the upcoming meeting dates, but they are very firm in light of the efforts to get some legislation filed for consideration as soon as possible in advance of the next regular session which is due to commence on January 22, 2002.
A change in the time for starting the Orlando meeting to 9:00 a.m. was approved.
Finally, Mr. Dudley reviewed the proposed time frames for drafting and fmalizing the Task Force's Report to Secretary Harris (November 12th), so that legislation could be filed shortly thereafter. Both chairs, Senate Mitchell and Representative Crow, have agreed to serve as the prime sponsors of each chamber's bill, and both Senator Sanderson and Representative Goodlette have indicated prompt action from their respective committees.
Ms. Shaw suggested that a better effort be made to advertise our meetings to the disabled community. Mr. Miller offered to do that for the upcoming meeting in Orlando.
Mr. Phillips requested that all e-mail from the staff be in Word format, and Mr. Dudley agreed to do so in the future (as his fum is now switching over from Word Perfect to Word).
No further business appearing, the meeting as adjourned at approximately 3:45p.m.
Respectfully submitted, Fred R. Dudley

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B

•

Division of Elections - Florida Department of State !Total Site Index

Administration/Legal
• Oversees the interpretation and enforcement of election laws. • Provides advisory opinions to supervisors of elections,
candidates, local officers having election related duties, political parties, political committees, committees of continuous existence or other persons or organizations engaged in political activity, relating to any provisions or possible violations of Florida laws. • Prescribes rules and regulations to carry out the provisions of the election laws. • Acts as the Secretary of State's designee with respect to:
o Interpretation of the election laws. o Providing uniform standards for the proper and equitable
implementation of the voter registration laws.
o Actively seeking out and collecting data and statistics necessary to knowledgeably scrutinize the effectiveness of the election laws.
o Providing technical assistance to the supervisors of elections on voter education and election personnel training services.
o Providing technical assistance to the supervisors of elections on voting systems.
o Coordinating with the United States Department of Defense so that the armed forces recruitment offices can administer voter registration in a manner consistent with the procedures set forth in the election laws for voter registration agencies.
o Providing voter education assistance to the public. o Coordinating the state's responsibilities under the National
Voter Registration Act of 1993. o Providing training to all affected state agencies on the
necessary procedures for proper implementation of the Florida Voter Registration Act. o Ensuring that all registration applications and forms prescribed, or approved, are in compliance with the Voting Rights Act of 1965. • Oversees the process by which citizens propose constitutional amendments by initiative. • Publishes notices of general election stating what offices are to be filled at the general election in the state, and in each county and district. • Publishes full text of the proposed constitutional amendments in one newspaper of general circulation in each county, once in the tenth week, and once in the sixth week immediately preceding the week in which the election is held. (Article XI, Section 5(b), Fla. Con st.) Note: Section 101.171, F.S., provides that the Division of Elections have printed, and furnish to each supervisor

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of elections, a sufficient number of copies of the full text of the proposed constitutional amendments to be posted at each precinct on election day. • Publishes notice of voter registration book closing dates, election dates, assistance for the elderly and handicapped, and instructions for obtaining absentee ballots prior to the first primary and general election pursuant to federal law. • Prescribes forms for statements and other information required by Chapter 106, Florida Statutes. • Prepares and publishes manuals or brochures setting forth recommended uniform methods of bookkeeping and reporting, including appropriate portions of the election code, for use by persons required by Chapter 106, Florida Statutes, to file reports. • Oversees and approves training courses for continuing education for supervisors of elections. • Serves as depository for official orders and acts of the Governor, such as proclamations, executive orders of reassignment, executive orders of clemency, applications for issuance of extraditions, suspensions and reinstatements of elected and appointed officials, and appointments and commissions of elected and appointed officials. • Coordinates, on an annual basis, two statewide workshops for the supervisors of elections by reviewing and providing updates on the election laws to ensure uniformity statewide in the interpretation of the election laws. • Conducts regional workshops around the state for supervisors of elections, candidates, political committees, committees of continuous existence, political parties and groups having election-related interest. • Oversees the entire budget process for the Division of Elections and pays all bills. • Provides fiscal analyses to the legislature on all proposed election-related bills and all other proposed bills for the bureaus under the division. • Makes recommendations to the legislature for changes in the statutes relating to the duties and responsibilities of the division.
Speaker of the House of Representatives concerning activities of the division. • Oversees and coordinates personnel matters for the division. • Maintains voter fraud hotline and provides election-fraud education to the public
Voting_Systems Section
• Certification of new systems, testing and evaluation. • Approval and review of modifications, updates, or revisions to
the security procedure documents on file with the division. • Works with the Department of Defense's office of the Federal
Voter Assistance Program on the development of a pilot program to enable overseas service personnel to cast absentee ballots over the Internet. • Worked with the National Association of State Election Directors, and its Independent Testing Authority laboratories to develop a mature national testing program for voting systems. • Correspondence and meetings with Federal Elections

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Commission staff and consultants, on the revision of the National Standards for Voting Systems. • Provided technical assistance in many areas.
top
Copyright©. 1999. State of Florida, Department of State. All Rights Reserved and other copyrights apply.

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C~se 3:01-cv-01275-HLA-HTS Document 8 Filed 01/18/02 Page 37 of 41 PageiD 107
James K. Kracht ·9901 SW 138th Street
Miami, Florida 33176
(0)305-375-3720 (H)JOS-251-6983 jkk@co.miami-dade. flus
February 1, 2001
TESTIMONY BEFORE THE GOVERNOR'S SELECT TASK FORCE ON ELECTION PROCEDURES, STANDARDS, AND TECHNOLOGY
Co-Chairs, and distinguished members of the Governor's Select Task Force on Election Procedures,
My name is James Kracht and I am here representing the American Council of the Blind, the Florida Council of the Blind and as a private citizen. We are here today because for each and every one of us, voting is fundamentally important. In fact, in this country it is a 225 year-old right.
Last November, each and every one of you were able to walk into your precinct and in the true American spirit independently cast a secret ballot. I, on the other hand, could not.
I graduated from a prestigious college and law school. I have become an accomplished it.uU wclj , c:,pc;..:,Led JifVf~s5ivua.! iu Svuth f!urida' 3 gvv~rnmcu:41! ~ud leg~! ccr:-::n!.!nitiez. I have fathered and raised 2 children. I have been a meaningful contributor to my community by giving time, energy, and leadership to several charities, civic groups, and organizations. I am a significant taxpayer. I am an accomplished computer user, a web surfer, and an avid reader -- all of this I do, striving for independence and success.
But last November, unlike each of you, I could not and did not cast my ballot either independently or secretly. In fact, the more than 250,000 Floridians who are visually impaired have never had that right.
Florida law says that when I go to a precinct I can request a sighted assistant to read and mark my ballot, and further that a witness shaH be provided. Last November, to see how it worked, I went to the precinct and I asked for assistance. By the time I reached the voting machine, I thought that I couldn't be further humiliated, but I was wrong. When I asked for the legally required witness, it was shouted across the crowded precinct of at least a hundred people, that "'this gentleman doesn't trust me and wants a witness, get over here." And I didn't even crawl under the table when on four more occasions after I

C~se 3:01-cv-01275-HLA-HTS Document 8 Filed 01/18/02 Page 38 of 41 PageiD 108
2
requested the witness to return to the voting machine, similar shouting occurred. I should mention the comments from the assistant on my voting choices; that I was informed I really didn't have to have the ballot questions read but rather my helper would be glad just to summarize them; and that "the witness" wasn't even within hearing or seeing range of the machine more than 80% of the time that I was voting, according to a sighted observer Watching from the sidelines. And I should also tell you about my colleague, another blind voter who, like myself, cannot exercise the right to independently cast a secret ballot, who took his own sighted assistant to the precinct, only to be told that he had to use poll workers, and only after being unable to understand three of them, was his father permitted to read and mark his ballot. Conversations with visually impaired voters around the state make it clear that these experiences are not uncommon for our state's visually impaired voters.
The point is that in a system of precincts manned by volunteer part time poll workers with unreadable ballots and unusable voting machines, we have a problem, a huge problem.
I, like all of you, want the right, the ability, and the means to independently and secretly vote. When you examine technology and make your recommendations, I urge you to reflect, to consider, to remember, and to help to finally fully enfranchise Florida's visually impaired voters. Today, with the federal government promoting accessible websites and the government's purchase of only that computer hardware and software which is accessible to the visually impaired population, and today when technology makes it possible to provide absentee ballots, voting machines, and other voting systems which are fully accessible to blind voters, we can finally make a difference.
PLEASE! Do all that you can do, to enable our 250,000 visually impaired Floridians to cast their ballots with the same independence and secrecy as Florida's other voters.
Respectfully submitted,
James K. Kracht

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,•. · ·case 3:01-cv-01275-HLA-HTS Document 8 Filed 01/18/02 Page 40 of 41 PageiD 110
JAMES K. KRACHT 9901 S.W. 138th Street . Miami, FL 33176
(0)(305) 375-3720 (H) (305) 251-6983 JKK@co.miami-dade.fl.us
February 2, 200 l
VIA TELEFACSIMILE (850) 219-0491
The Honorable James C. Smith Mr. Edward T. Foote Governor's Select Task Force on Election Procedures, Standars & Technology c/o Dr. Mark S. Pritchett Executive Vice President The Collins Center for Public Policy, Inc. P.O. Box 1658 Tallahassee, FL 32302-1658
Dear Honorable James C. Smith and Mr. Edward T. Foote, Co-Chairs, and Members of the Governor's Select Task Force:
On behalfofthe American Council ofthe Blind, the Florida Council ofthe Blind, and as a private citizen I wish to extend my sincere thanks for the opportunity which you afforded us yesterday afternoon to briefly discuss with you the need for acting now, in order to allow Florida's visually impaired voters the right to independently cast secret ballots - a right which until now has been unavailable. Because voting is such a fundamental right in our system of democratic government, and because "now" is the time for Florida to purchase equipment for a new and improved uniform voting system, I again urge you to hear from the vendor/vendors of the optical scanning equipment you are proposing to recommend, regarding the issue ofthe system's accessibility to blind voters.
Yesterday afternoon, prior to delivering my testimony, I was pleased to meet and talk with four different exhibiting vendors of touch screen systems who have built into their systems design features that are supposed to enable blind voters, like Florida's other voters, the ability to cast an independent and secret ballot. While only one of the products was actually available to look at. it is clear that at last, voting equipment vendors are responding to the established need to finally fully enfranchise visually impaired voters.
I again strongly urge the Select Task Force Members only recommend acquisition of new voting equipment in Florida counties that extends to our visually impaired voters the fundamental right to independently cast a secret ballot. The American Council of the Blind and the Florida Council of the Blind remain available for any assistance you need in further discussing, evaluating, and investigating accessible voting equipment.
Sincerely,
James Kracht

• • Case 3:01-cv-01275-HLA-HTS Document 8 Filed 01/18/02 Page 41 of 41 PageiD 111
cc: Mr. Mark Pritchett the Collins Center Mr. Paul Edwards, President, American Council ofthe Blind, edwpaul@concentric.net Mr. Charles Crawford. Executive Director, American Council ofthe Blind, ccrawford@acb.org Mr. Robert Miller, President, Florida Council of the Blind, easytalk@concentric.net Mr. Stephen Podley, President, Greater Miami Chapter Florida Council of the Blind, srpodley@yahoo.com Ms. Gayle Krause, Miami-Dade County Office OfADA Coordination, gmk@co.miami-dade.fl.us

 
 Case 3:01-cv-01275-HLA+\TS Document 9 Filed 01/18/02 Page 1 of 131 PageiD 112

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IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DNISION

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American Association of People with

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Disabilities, et al.,

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Plaintiff

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V.

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Katherine Harris, et al.,

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______D_e_fe_n_da_n_ts_. ___________________))

CLERI\, US DISTRICT COURT t:!'JO!_F. Cl:il WCT OF FLORIDA
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Civil Action No. 3:01-CV-1275-J-21TJC

OPPOSITION TO THE MOTION TO DISMISS OF DEFENDANTS STAFFORD AND CITY COUNCIL
Plaintiffs respectfully submit this opposition to the Motion to Dismiss of Defendants
John Stafford, Supervisor of Elections, and the members of the City Council ("Motion").
I. OVERVIEW
The County contends that because [the plaintiffs] were able to attend the trial, they have not alleged a violation of Title II [of the ADA]. A violation of Title II, however, does not occur only when a disabled person is completely prevented from enjoying a service, program, or activity. The regulations specifically require that services, programs, and activities be "readily accessible." If the Courthouse's wheelchair ramps are so steep that they impede a disabled person or if its bathrooms are unfit for the use of a disabled person, then it cannot be said that the trial is "readily accessible," regardless whether the disabled person manages in some fashion to attend the trial. We therefore conclude that the plaintiffs have alleged a set of facts that, if true, would constitute a violation of Title II.
Shotz v. Cates, 256 F.3d 1077, 1080 (11th Cir. 2001) (emphasis added, citation omitted).
Thus, the Eleventh Circuit precedent has made it clear that the ADA prohibits
discrimination on the basis of disability in public programs and activities, and that
individuals with disabilities must be able to participate in such programs and activities as
fully as non-disabled persons. In the Eleventh Circuit, burdensome programs or activities are

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-...._.,

'__-

as reprehensible under the ADA as programs or activities that are completely inaccessible to individuals with disabilities. Defendants ignore this law and the express allegations of the Complaint. Instead, they mischaracterize the Complaint as merely a plea for absolute secrecy in voting for visually and manually impaired voters. They do so apparently to avail themselves of non-binding Sixth Circuit precedent. That precedent, however, involved facts, a statutory framework, and allegations that are entirely different from those in this case.
Indeed, the essence of this case - as alleged in the Complaint - is that plaintiffs have been denied the services, programs, and benefits of Duval County with respect to voting and have been discriminated against in the process of voting. (Complaint, TJ[ 42-44, 48-50, 5153,57-58,69-70,72-74,79, 85, 93, 114, 116.) Plaintiffs do not allege that they have been denied the right to vote, as defendants suggest in their Motion. Instead, the Complaint alleges that plaintiffs have been discriminated against because they must cast their votes through a burdensome and unnecessary process by reason of their disabilities. (Complaint, TJ[ 42-44.) That discrimination could be remedied through readily available technology as Duval County purchases its new voting systems.
Paraphrasing the Eleventh Circuit's ruling in Shotz, just because a "disabled person manages in some fashion to [vote]" does not mean that the ADA and Rehabilitation Act have not been violated. The burdens imposed by the current voting system are such that the "services, programs, and activities" applicable to voting in Duval County are not "readily accessible" to voters with visual or manual impairments. (Complaint, 1142-43, 48-49, 5253, 57-58, 67-74, 85, 89.) As in Shotz, the court cannot conclude "that the plaintiffs have alleged [no] set of facts that, if true, would [not] constitute a violation" of the ADA and Rehabilitation Act. Shotz, 256 F.3d at 1080.
The allegations of the Complaint are not merely theoretical, but are rooted in the admissions and findings of the defendants themselves. It was the defendants who concluded
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"[i]t is currently an estimated 20% of people with disabilities who are LESS LIKELY to vote, when compared to the general population, and another 10% who are LESS LIKELY to
register to vote due to lack of accessability [sic]." (Exhibit A. Minutes of Sept. 10, 2001
Meeting of the Secretary's Select Task Force On Voting Accessibility (emphasis in original.) It was the defendants who concluded that "only about 60% of all U.S. polling places do not pose significant accessibility problems." (ld.) It was Duval County that concluded that new voting technologies are "available, affordable and manageable" and have not been purchased to replace "outmoded equipment" because the County has "conducted our electoral process on the cheap." (Exhibit B, Duval County Election Reform Task Force, Final Report at 6-7.)
And, it is clear why disabled voters have been less likely to vote with this "outmoded equipment" - as the defendants know from their own public investigations of the Florida and Duval County election processes. The defendants solicited testimony from voters with disabilities about how, if at all, the third-party assistance approach in Florida was working as an accommodation for them. That testimony was distressing, although hardly surprising given the intrusive nature of third-party assistance. Voters with disabilities testified that: pollworkers announce and comment on visually and manually impaired voters' election choices; pollworkers refuse to read ballots to such voters, but instead summarize them for the sake of convenience; pollworkers deputize strangers to shepherd visually and manually impaired voters through the process; pollworkers refuse to allow such voters' family members to assist with the process; and pollworkers have actually shouted at visually impaired voters out of apparent frustration with the delays caused by third-party assistance voting. This is precisely the type of humiliating and demeaning treatment against which the ADA and Rehabilitation Act protect - and treatment that would vanish through the purchase of, as Duval County puts it, "available, affordable, and manageable" voting technology. (/d.)
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These admissions of the defendants barely scratch the surface of what will be revealed through discovery and trial regarding the impact of, and relative ease to remedy, the discrimination against disabled voters in Duval County. The Complaint makes all of the requisite allegations under Eleventh Circuit precedent to state claims for violations of the ADA, Rehabilitation Act, and Florida Constitution. Therefore, the Motion must be denied. 1 II. APPLICABLE LEGAL STANDARDS
"Dismissal of a claim on the basis of barebone pleadings is a precarious disposition with a high mortality rate." Brooks v. Blue Cross & Blue Shield, Inc., 116 F.3d 1364, 1369 (11th Cir. 1997) (quoting International Erectors, Inc. v. Wilhoit Steel Erectors & Rental Serv., 400 F.2d 465,471 (51h Cir. 1968)). In considering a Rule 12(b)(6) motion, the court must "accept the facts in the complaint as true" and construe all allegations of the complaint "in the light most favorable to the nonmoving party." Hawthorne v. Mac Adjustment, Inc., 140 F.3d 1367, 1370 (11th Cir. 1998) (citations omitted); Brooks at 1369 (citations omitted). The court confines its analysis to the "facial sufficiency of the statement of claim ... [and] the face of the complaint and attachments thereto." Brooks, at 1368 (citations omitted). Dismissal is appropriate only if the defendants demonstrate "beyond doubt that the plaintiff can prove no set offacts in support of his claim which would entitle him to relief." Id. at 1369 (quoting Conley v. Gibson, 355 U.S. 41,45-46 (1957)) (emphasis added)). Where, as here, the plaintiffs allege civil rights violations, the scrutiny under Rule 12(b)(6) is even higher. Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir. 1994). Indeed, "in complex cases involving both fundamental rights and important questions of public policy, such peremptory
1 Plaintiffs are under no obligation to address the facts at this stage of the proceedings, but do so on a limited basis herein to show that preliminary factual investigation has revealed substantial support for the express allegations of the Complaint. At this juncture, the allegations of the Complaint must be taken as true.
4

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treatment [as dismissal] is rarely appropriate." DeMallory v. Cullan, 855 F.2d 442, 445 (ih Cir. 1988) (citations omitted). Defendants' Motion cannot survive such scrutiny. III. ARGUMENT
A. The Complaint States A Claim Under Title II Of The ADA Title IT of the ADA prohibits discrimination by public entities. The statute mandates 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." 42 U.S.C. § 12132. To state a claim under Title IT, the plaintiff must allege: (1) that she is a "qualified individual with a disability;" (2) that she was "excluded from participation in or... denied the benefits of the services, programs, or activities of a public entity" or otherwise "discriminat[ed] [against] by such entity;" (3) "by reason of such disability." Shotz v. Cates, 256 F.3d at 1079. Defendants do not dispute that they are a "public entity" as defined by the statute. (See Complaint, 110-30.) Nor do they challenge that plaintiffs have properly alleged that they are "qualified individuals with a disability." (See /d., 'I[ 4-7.) However, because plaintiffs can vote - regardless of how burdensome the process may be - defendants contend that plaintiffs have not been denied participation in or the benefits of the County's services, programs, or activities and have not otherwise been subjected to discrimination. (Motion, p. 5-6, 15-16.) This argument ignores binding Eleventh Circuit precedent and the clear allegations of the Complaint.
1. The County's Services, Programs, And Activities Are Not Readily Accessible To Plaintiffs Because Plaintiffs Have Been Discriminated Against By Being Subjected To A Burdensome And Intrusive Voting Process
In the Eleventh Circuit, "[a] violation of Title IT ... [ofthe ADA] does not occur only when a disabled person is completely prevented from enjoying a service, program or
5

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activity." Shatz v. Cates, 256 F.3d at 1080. Rather, a public entity must operate each service, program, or activity so that the service, program, or activity, is "readily accessible to and usable by individuals with disabilities." 28 C.F.R. § 35.150(a).2
In Shatz, plaintiffs with physical impairments brought suit against the chief judge of a state court and the county sheriff for failing to remove barriers that would make the courthouse accessible and usable by individuals with disabilities. 256 F.3d at 1079. The Eleventh Circuit held that the County must ensure that its services, programs, or activities are "readily accessible" to individuals with disabilities. /d. at 1080. The court explained that if wheelchair ramps leading to the courthouse are steep or the bathrooms are not usable, then the trial is not "'readily accessible,' regardless whether the disabled person manages in some fashion to attend 'the trial." /d. 3 Plaintiffs here, like the plaintiffs in Shatz, have properly alleged that the County's services, programs, or activities are not readily accessible to voters with visual and manual impairments. (Complaint'l['f42-44, 48-49,52-53, 57-58,69,72-74,
85; Complaint 1 89: "By deciding to purchase voting equipment that is not accessible to
voters with visual and manual impairments, Defendants Stafford and Commissioners have
2 In addition to the ADA's general bar against discrimination, the Act instructs the Attorney General to develop regulations that implement the prohibition contained therein. Kinney v. Yerusalim, 9 F.3d 1067, 1071 (3d Cir. 1993). Those regulations, as they interpret Title II of the ADA, are found at 28 C.F.R. §§ 35.101 et seq. They broadly prohibit discrimination in public programs, services, or activities, and require that such activities be readily accessible to and usable by individuals with disabilities. /d. at 35.150. They also require, inter alia, that priority be given to services offered in the most integrated setting appropriate (35.150(b)), that persons with disabilities be assured means of communication that are as effective as communications with others (35.160), and that appropriate auxiliary aids be offered where necessary to afford equal opportunity to participate in public programs (35.160). 3 Even though courthouse in Shatz was an existing facility, the Eleventh Circuit's analysis of what constitutes "readily accessible" is equally applicable to altered or newly constructed facilities because under the ADA regulations altered or newly constructed facilities also must be "readily accessible." 28 C.F.R. § 35.151(a) and (b).
6

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failed to ensure that Florida's new voting equipment will be designed and constructed to be readily accessible to and usable by people with disabilities.") These allegations must be "taken as true." Brooks, 116 F.3d at 1369.
Defendants respond in their Motion by asserting that because voters can vote, regardless of the burdens incident thereto, there can be no violation of the ADA or Rehabilitation Act. (Motion, p. 5-6, 15-16). Defendants' position is not only at odds with Title II and its implementing regulations, it has been squarely rejected by the Eleventh Circuit in Shatz. In the Eleventh Circuit, it is irrelevant that the plaintiffs somehow manage to vote. The ADA is violated because the process of voting is not readily accessible to plaintiffs as they cannot cast a direct and secret ballot or vote in a manner free from burdens not placed on non-disabled persons. (Complaint, «J 57,69-74,79, 85-86, 87,89-90,91,93-94, 96).
This is precisely the conclusion reached by the Eastern District of Pennsylvania under identical circumstances in National Organization on Disability v. Tartaglione, No. 01-1923, 2001 U.S. Dist. LEXIS 16731 (E.D. Pa. Oct. 11, 2001). In Tartaglione, visually and manually impaired plaintiffs alleged that the Pennsylvania third-party assistance statute violated the ADA and Rehabilitation Act because it imposed burdens upon them not placed upon non-disabled voters. The defendants filed a Rule 12(b)(6) motion arguing that no violation could occur because the plaintiffs had not been prevented from voting. The Court denied the defendants' motion and held:
Defendants' argument that Plaintiffs cannot state claims for relief [under the ADA and Rehabilitation Act] because Plaintiffs have not been prevented from voting mischaracterizes the Complaint . . . . Plaintiffs claim to have been discriminated against in the process of voting because they are not afforded the same opportunity to participate in the voting process as non-disabled voters. The complaint alleges that assisted voting ... is substantially different from, more burdensome than, and more intrusive than the voting process utilized by non-disabled voters . . . . The Complaint alleges that the . . . Plaintiffs ... cannot participate in the program or benefit of voting in the same manner as other voters but, instead, must participate in a more burdensome process ...
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[T]he Court concludes that the Complaint states a claim for discrimination in the process of voting. 2000 U.S. Dist. LEXIS 16731, at *11-*13. Consistent with Shotz and Tartaglione, plaintiffs' claim is also properly stated under Title IT's anti-discrimination clause, which is a "catch-all phrase that prohibits all discrimination by a public entity, regardless of the context." Innovative Health Sys., Inc. v. City of White Plains, 117 F.3d 37, 45 (2d Cir. 1997). A public entity cannot discriminate against individuals with disabilities "by placing additional burdens on them" for participation in its services, programs, or activities. EllenS. v. Florida Bd. ofBar Examiners, 859 F. Supp. 1489, 1494 (S.D. Fla. 1994). Where plaintiffs allege that they cannot participate in the voting process "in the same manner as other voters but, instead, must participate in a more burdensome process," a violation of Title II is properly alleged. Tartaglione, 2001 U.S. Dist. LEXIS 16731, at* 13. Tartaglione is directly on point and consistent with the Eleventh Circuit's ruling in Shotz. In defendants' 20 page Motion, they devote a single footnote to Tartaglione suggesting it is "unpersuasive" because the court did not analyze Nelson v. Miller. (Motion, p. 13, n.8.) However, Nelson represents a peculiarly state-oriented analysis with entirely different facts and legal standards from those at issue here, whereas Tartaglione is not only better reasoned, but precisely on point.4
4 Tartaglione addressed directly the issues presented here. Plaintiffs allege that to cast a ballot with the County's current equipment or newly purchased equipment, they require third party assistance to read the ballot. (Complaint, Tf42, 43, 44). Then, they must reveal their choice to the third party and rely on the third party to cast their vote as directed. (/d. 1142, 43, 44). Plaintiffs claim that this voting process does not allow them to "cast a direct and secret ballot or otherwise vote under the same conditions as non-disabled persons." (/d. , 57).
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2. Defendants' Reliance On Nelson v. Miller Is Misplaced Defendants' assertion that "[t]he decision in Nelson v. Miller is dispositive of this action" ignores the fact that applicable Florida precedent and constitutional language are far different from that at issue in Nelson. While defendants spend most of their brief discussing Nelson, they ignore that the central question in Nelson was "whether the Michigan Constitution requires more secrecy than the Michigan legislature has provided for in MICH. COMP. LAWS ANN. § 168.751." Nelson v. Miller, 170 F.3d 641, 650 {6th Cir. 1999) (emphasis added). The court did not hold that third-party voting assistance to the blind is constitutional in all states or under all circumstances, but rather limited its holding to whether the Michigan third-party voting assistance statute met secrecy requirements consistent with the Michigan Constitution. /d. at 651. Nelson is inapposite for the following reasons. First, at its most basic level, the plain language of the Florida Constitution is different from that used in the Michigan Constitution. The Florida Constitution states that "[a]ll elections by the people shall be by direct and secret vote." FLA. CONST. ART. VI,§ 1 (1968). By contrast, the Michigan constitution provides that the Michigan legislature "shall enact laws to ... preserve the secrecy of the ballot." MICH. CONST. ART. 2, § 4. There is no requirement under the Michigan Constitution that a vote be "direct." Therefore, the "absolute secrecy" that Nelson held was not required in Michigan is precisely what is required under the Florida Constitution. Second, Nelson is also distinguishable because the court relied on prior interpretations of the Michigan Constitution and the third-party voter assistance statute by the Michigan courts and legislature. Nelson is grounded in Michigan court rulings finding no absolute right to secrecy under the Michigan Constitution, and thus finding the third-party voter assistance statute to be constitutional. 170 F.3d at 651 (discussing prior decisions of the Michigan courts). Neither the Eleventh Circuit nor any Florida court has ruled on the constitutionality
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of the Florida third-party voter assistance statute. (Harris' & Roberts' Motion, at 10) Nor can any precedent be relied on when it does not take account of the fact that fully accessible equipment is now available that can assure a secret ballot to all.
Third, the Nelson court deferred to the Michigan legislature's alleged interpretation of the constitutional language as not requiring "absolute secrecy." 170 F.3d at 652. It did so because the Michigan Constitution confers on the Michigan legislature an "affirmative duty to do something" (Nelson, 170 F.3d at 652)- specifically, to "enact laws to preserve secrecy of the ballot." MICH. CONST. ART. 2, § 4. As a prior Michigan court explained, "[w]hen power is conferred upon the legislature to provide instrumentalities by which certain objects are to be accomplished, the sole right to choose the means accompanies the power, in the absence of any constitutional provisions prescribing the means." Nelson, 170 F.3d at 653 (quoting Common Council v. Rush, 46 N.W. 951, 952-53 (Mich. 1890)). By contrast, the plain language of the Florida Constitution is self-executing, and there is no authority for the Florida legislature to intervene or any need for it to do so to trigger this provision. See Florida Dep't ofEduc. v. Glasser, 622 So. 2d 944, 947 (Fla. 1993) (distinguishing between self-executing provisions and those that need legislative enactment). Therefore, although third-party assistance for voters with disabilities is still provided for in Florida, that fact cannot supersede the rights protected by the Florida Constitution and by federal law now that technology makes unassisted voting possible. It is for the courts, utilizing general rules of constitutional construction, to interpret the Florida Constitution.5 5 These distinctions between the Florida Constitution and the Michigan Constitution are important because, as even the Nelson court acknowledged, the ADA does not limit the rights provided by state law if the state law provides greater or equal protection for the rights of individuals with disabilities than are afforded by the ADA. Nelson, 170 F.3d at 644 n.4. The Nelson court's determination of the rights of voters under the Michigan Constitution cannot be seen as a limit on the accommodation defendants must provide to voters which visual or manual impairments in Florida if the Florida Constitution grants each voter greater or equal rights and benefits than provided by the Michigan Constitution.
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"-'
In construing the Florida Constitution, the Florida Supreme Court has stated that the interpretation must begin with an examination of that provision's explicit language. Florida Soc 'y of Ophthalmology v. Florida Optometric Ass 'n, 489 So. 2d 1118, 1119 (Fla. 1986). Where the constitutional language is "clear, unambiguous, and addresses the matter in issue, then it must be enforced as written." /d. In addition, the constitutional provision must be read so that no language is rendered superfluous. Department ofEnvtl. Prot. v. Millender, 666 So. 2d 882, 886 (Fla. 1996); see also Plante v. Smathers, 372 So. 2d 933, 936 (Fla. 1979) ("[a] constitutional provision is to be construed in such a manner as to make it meaningful''). The plain language of the Florida Constitution states: "All elections by the people shall be by direct and secret vote." FLA. CONST. ART. VI, § 1 (1968) (emphasis added). The plain meaning of this provision must be read as guaranteeing each voter not only the right to secretly cast his or her vote, but also to directly cast this secret vote with nothing intervening between the voter and his or her ballot. See, e.g., Black's Law Dictionary (6th Ed.) ("Direct" defined as "without any intervening medium, agency or influence; unconditional"); United States ex rel. Springfield Terminal Ry. v. Quinn, 14 F.3d 645, 656 (D.C. Cir. 1994) ("'Direct' signifies 'marked by absence of an intervening agency"' (citation omitted)).6
Further, the legislative history of Article VI, § 1 of the Florida Constitution confirms that the Florida constitutional committee intended to provide voters in Florida with a greater set of rights than those provided by the Michigan Constitution. The minutes of the constitutional committee show that the committee considered, and rejected, the following language:
6 Early drafts of the constitutional amendment provided separately for a "direct vote and ... a secret ballot." See, e.g., Exhibit C, Suffrage and Elections Committee Second Draft. Any argument that Article VI, § 1, as enacted, still provides separately for a direct vote and a secret ballot must fail as the drafters clearly knew how to express but rejected such an intention.
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Unless otherwise provided herein, all elections by the people shall be by direct vote and shall be determined by a plurality of votes cast. The Legislature shall enact laws to preserve the purity of elections, to preserve the secrecy of the ballot, to guard against abuses of the elective franchise, and to provide by law for the conduct of elections, requirements for absentee voting, methods of voting, determination of election returns and procedure in election contests. (Exhibit D, Minutes of the Suffrage and Elections Committee of the Florida Constitution Revision Committee, Feb. 2 & 3, 1966, at 13 (emphasis added).) As the Committee rejected language delegating action to the Florida Legislature in favor of the clear and self-executing pronouncement that "[a]ll elections by the people shall be by direct and secret vote," the Florida Constitution must be read as providing a greater right to the Florida voter than the Michigan language provides to the Michigan voter. The holding in Nelson cannot, therefore, be applied to the present case.
3. Defendants' Reliance On A Non-Binding 1993 DOJ Opinion Letter Is Misplaced
Defendants' reliance on a Department of Justice 1993 Letter of Findings is similarly misplaced. First and foremost, the world has changed since 1993. It is no longer necessary to find alternatives that permit voting, but not secrecy. The Department's letter cannot be considered persuasive authority, because it was written at a time when accessible electronic voting systems did not exist. In any event, such opinion letters are not binding or controlling authority. Christensen v. Harris County, 529 U.S. 576, 587 (2000); Gonzalez v. Reno, 215 F.3d 1243, 1245 (11th Cir. 2000).
The 1993 DOJ letter, in reviewing Pinellas County's election practices, concluded that, because no alternative for a blind voter to cast a ballot existed, third-party assisted voting allowed blind voters to participate in and enjoy the benefits of a service, program, or activity conducted by a public entity. (Letter from Steward B. Oneglia, Chief Coordination and Review Section, Civil Rights Division, to Complainant, Aug. 25, 1993, at 2, Exhibit E). Indeed, the DOJ found, as footnote 9 of the Motion admits, that "electronic systems of voting
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by telephone that meet the security requirements necessary for casting ballots are not currently available." /d.
The DOJ has more recently taken another view. When accessible electronic voting is available, as it is now, the ADA requires states to utilize that technology. See Exhibit F, Brief of Amicus Curiae Department of Justice, at 11-12, Nelson v. Miller, 170 F.3d 641 (61h Cir. 1999). In its amicus curiae brief, the DOJ stated, "If reasonable modifications were available that would allow blind or visually impaired voters to cast their ballots without assistance and that would assure ballot secrecy, the plain import of the ADA and its implementing regulations would require the state to adopt those modifications." (/d.) The facts alleged in this case take into account the changed electronic world. Electronic voting systems do exist and are readily available. (Complaint, '11 ). These allegations must be taken as true, and, accordingly, the Motion must be denied. Moreover, whether defendants must provide electronic voting systems in order to afford plaintiffs an "equal opportunity to obtain the same benefit" as that provided to non-disabled voters is the ultimate issue to be decided after full factual development and trial. 28 C.F.R. § 35.130(b)(l); see also Crowder v. Kitagaw, 81 F.3d 1480, 1486 (91h Cir. 1996) ("the determination of what constitutes reasonable modification is highly fact-specific, requiring case-by-case inquiry"); Staron v. McDonald's Corp., 51 F.3d 353, 356 (2d Cir. 1995) ("the determination of whether a particular modification is 'reasonable' involves a fact-specific, case-by-case inquiry"); McCray v. City of Dothan, 169 F. Supp. 2d 1260, 1275 (S.D. Ala. 2001) ("[w]hether an accommodation is reasonable 'involves a fact-specific, case-by-case inquiry that considers, among other factors, the effectiveness of the modification in light of the nature of the disability in question").
Plaintiffs also allege that they asked defendants to certify only voting systems that are accessible to persons with visual and manual impairments. (Complaint, l)[ 64.) Plaintiffs
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further allege that defendants Harris and Roberts certified voting systems that are not accessible to voters with visual or manual impairments, and defendants Stafford and Council purchased optical scan and touchscreen systems that are not accessible to voters with visual or manual impairments. (Complaint, TJ[ 65, 69.) Taking these allegations as true, the trier of fact must still determine whether these actions violate the requirement that public entities provide auxiliary aids and services that would provide plaintiffs "an equal opportunity to participate in, and enjoy the benefits of' the state's voting process, and whether defendants' refusal constitutes a failure to "give primary consideration" to the requests of the disabled. 28 C.F.R. § 35.160(b)(2). These, too, are issues of fact. Hahn v. Linn County, 130 F. Supp. 2d 1036, 1047 (N.D. Iowa 2001); McCray, 169 F. Supp. 2d at 1276. As such, they are not appropriate for a Rule 12(b)(6) determination.
4. Defendants' Reliance On The Voter Assistance Statute As Satisfying The ADA Ignores Their Obligation To Make Altered Or New Facilities Readily Accessible
Defendants' argument that the Florida voter assistance statute satisfies their ADA obligation reveals their misunderstanding of how the ADA's regulations apply to the voting process and voting machines. The fact that the voter assistance statute satisfied the ADA in the past is irrelevant, because once defendants decided to purchase new voting systems, their action triggered a heightened accessibility standard.7 A voting machine is equipment, and equipment is included in the definition of "facility" in the regulations. National Org. on
7 The ADA's implementing regulations, as stated above, require a public entity to conduct its services, program, or activities so that they are "readily accessible to and usable by individuals with disabilities." 28 C.F.R. § 35.150(a). The regulations, however, do not require that a public entity make each existing facility accessible and usable. 28 C.F.R. § 35.150(a)(l). A public entity may comply with the "readily accessible" and "usable" requirements through various methods including "alteration of existing facilities and construction new facilities ... or any other methods" that accomplish accessibility. 28 C.F.R. § 35.150(b)(l). Alterations are governed by 28 C.F.R. § 35.151 and must be made readily accessible to the "maximum extent feasible."
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'-.,..-
Disability v. Tartaglione, 2001 U.S. Dist. LEXIS 16731 (E.D. Pa. Oct. 11, 2001). A change in voting machines that affects their usability is an alteration. Kinney v. Yerusalim, 9 F.3d 1067, 1071 (3d Cir. 1993). When defendants upgrade the voting machines, they must comply with "substantially more stringent" regulations than those that apply to existing machines. /d. Those stricter regulations require that alterations be completed in a nondiscriminatory manner that provides full access to all qualified voters. /d. at 1073.
Indeed, Congress recognized that altered or new facilities presented ''an immediate opportunity to provide full accessibility." /d. at 1074. Accordingly, it required such changes to be made free of discrimination and to be usable by all. /d. at 1073. Congress also appreciated the importance of implementing advances in technology. The House Committee made it clear that "technological advances can be expected to further advance options for making meaningful and effective opportunities available." H.R. Rep. No. 101-485, pt. 2, at 108 (1990), reprinted in, 1990 U.S.C.C.A.N. 303, 391. That Committee intended accommodations and services to "keep pace with the rapidly changing technology of the times." /d.
In Molloy v. Metropolitan Transportation Authority, the Second Circuit considered whether installation of such a technological advance, a ticket vending machine (TVM), was an alteration under the ADA. 94 F.3d 808,812 (2d Cir. 1996). In Molloy, plaintiffs with visual impairments brought suit against the Metro Transit Authority and the Long Island Railroad (LIRR) for installing TVMs that were not accessible to plaintiffs. !d. at 810. The court held that plaintiffs were likely to establish that the installed TVMs were an alteration and that TVMs were not usable by plaintiffs because they lacked an audio component. /d. at 812.
Following the Molloy decision, the court in Civic Association of the Deafv. Guiliani allowed hearing-impaired individuals to sue New York City for an alteration that violated
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'-"

_./

Title II of the ADA. 970 F. Supp. 352, 360 (S.D.N.Y. 1997). Plaintiffs there alleged that converting the current street alarm boxes to new boxes that are not accessible and usable by hearing-impaired people violated Title II. /d. First, the court held that the replacement of the
current system with a new system was an alteration to equipment covered by the ADA. /d. Next, the court addressed whether the new system is accessible and usable to the maximum extent feasible. /d. That inquiry, the court explained, is "fact-specific inquiry based on a fully-developed record." /d. After considering the evidence, the court held that the new system was unusable by hearing-impaired people and therefore violated Title II. /d.
Molloy and Guiliani have compelling applicability to this case. Plaintiffs here allege that the County has "failed to ensure that [its] new voting equipment will be designed and constructed to be readily accessible to and usable by people with disabilities." (Complaint, '189, emphasis added.) The purchase by Duval County of that "new voting equipment" requires compliance with the "substantially more stringent" regulations applicable to new facilities. Kinney, 9 F.3d at 1071. These "stringent" regulations require that the new voting equipment provide full access to all voters, including those with visual or manual impairments.8 Thus, plaintiffs have alleged a set of facts that, if true, would constitute a violation of Title II of the ADA.9
8 Defendants assert that they "have gone beyond [ADA] requirements" by providing three or four touchscreen systems (out of 300) at the Supervisor's of Elections office. Plaintiffs allege specifically, however, that those touchscreen systems are accessible only with an audio and puff stick option. (Complaint, '152, 53). Those few touchscreen systems are not equipped with the necessary accessible components. (/d.) Even if they included the audio and puff stick options, installing three or four touchscreens at only one location in the "largest land area city in the United States" imposes significant burdens, does not meet "readily accessible" requirements, and does not provide access to all voters as required by strict alterations standards. (Complaint, '156). 9 While these allegations must be taken as true, the court must still decide whether the new equipment will be usable to the maximum extent feasible. This is an issue of fact not appropriately decided on a Rule 12(b)(6) motion. Guiliani, 910 F. Supp. at 360.
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B. Plaintiff Have Stated A Claim Under The Rehabilitation Act Defendants urge the Court to dismiss Count Three of the Complaint for failure to state a claim. Count Three alleges violations of Section 504 of the Rehabilitation Act. To state a claim under the Rehabilitation Act, Plaintiffs need only allege that they are ( 1) qualified (2) handicapped individuals (3) who have been "excluded from the participation in, ... denied the benefits of, or [have been] subjected to discrimination" (4) "under a program or activity receiving federal financial assistance." 29 U.S.C. § 794(a). 10 Defendants contend that the Complaint fails "to adequately plead the jurisdictional requirement that the Defendants receive federal funds." (Motion, n.l2.). To the contrary, Plaintiff pled exactly what is required by the Rehabilitation Act-that each defendant is a local government instrumentality and "is a recipient of federal financial assistance." (Complaint, 1112). This allegation must be "taken as true" (Brooks, 116 F.3d at 1369), therefore ending the Court's inquiry under Rule 12(b)(6). Interestingly, Defendants do not deny that they have received federal financial assistance. In any event, the issue of whether a state entity "receives federal financial assistance within the meaning of the civil rights laws ... requires inquiry into factual matters outside the complaint and, accordingly, is a matter better suited for resolution after both sides have conducted discovery on the issue." Sims v. United Government, 120 F. Supp. 2d 938, 954 (D. Kan. 2000); see also Shepard v. United States Olympic Comm., 94 F. Supp. 2d 1136, 1146-47 (D. Colo. 2000); Communities for Equity v. Michigan High Sch. Athletic Ass 'n, 26 F. Supp. 2d 1001, 1008 (W.D. Mich. 1998); Bowers v. NCAA, 9 F. Supp. 2d 460,492 (D.N.J.
10 The elements required to establish a Rehabilitation Act claim are nearly identical to those required to establish an ADA claim. Cash v. Smith, 231 F. 3d 1301, 1305 ( lllh Cir. 2000). Having discussed the elements common to both Rehabilitation Act and ADA claims, supra at § III(A)( 1), Plaintiffs need only address the sufficiency of the Complaint as to the element of federal financial assistance.
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1998); Gazouski v. City ofBelvidere, No. 93-C-20157, 1993 U.S. Dist. LEXIS 17675, (N.D. lll. Dec. 13, 1993); Gonzales Development Assistance Corp., No. 88-0191-LFO, 1989 U.S. Dist. LEXIS 6921 (D. D.C., June 21, 1989); Bellamy Roadway Express, Inc., 668 F. Supp. 615, 618 (N.D. Oh. 1987). As in Lightboum, resolution ofthe federal financial assistance issue is possible only after full discovery and trial. Lightbum v. County ofEl Paso, 118 F.3d 421 (5th Cir. 1997).
C. Plaintiffs Allege A Claim Under The Florida Constitution Defendants admit that the Florida Constitution grants a right to its citizens to cast "a direct and secret vote." (Motion, p. 17). J:lowever, for the following reasons, Defendants miss the mark in claiming that the third-party assistance statute is constitutional because it allegedly constitutes a reasonable regulation of this right. II /d. First, by its plain language, the Florida Constitution guarantees the right to cast a vote both secretly and directly, with nothing intervening between the voter and the ballot. (See, Section ill(A)(2)). The legislative history confirms that the Florida Constitutional Committee intended to grant voters a right of absolute secrecy. (/d.) Second, contrary to defendants' position that a reasonableness standard applies, the voter-assistance statutes must be strictly scrutinized. That is because voting is a fundamental right. Burson v. Freeman, 504 U.S. 191, 199 (1992); Dunn v. Blumstein, 405 U.S. 330, 336
II The caselaw relied upon by defendants is inapposite. In Smith v. Dunn, the plaintiffs challenged the voter assistance statute under the Fourteenth and Fifteenth Amendments of the U.S. Constitution and not under an express right to a secret ballot granted by the Tennessee Constitution. 381 F. Supp. 822 (M.D. Tenn. 1974). In contrast, plaintiffs, here, challenge three statutes that improperly limit the right to a direct and secret vote granted by the Florida Constitution. Because a state constitution can grant greater protections than the Federal Constitution, Florida voters have a right to absolute secrecy in voting protected by the Florida Constitution. Further, in Bodner (the other case relied upon by defendants), the determination that a statute was a "reasonable regulation" was made only after extensive discovery and trial. Bodner v. Gray, 129 So. 2d 419,421 (Fla. 1961).
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(1972); Reynolds v. Sims, 377 U.S. 533 (1964). Under a strict scrutiny analysis, the least restrictive means must be used to achieve the State's interest intended to be protected by the limitation. Burson at 199. Clearly, the Florida voter-assistance statutes do not use the least restrictive means. Florida's purported compelling interest under these statutes is to enable citizens with disabilities to vote. There are less restrictive means to protect that interest technological advances in voting machines have made it possible for each voter, including voters with visual and manual impairments, to cast a direct and secret ballot.
Third, even if the court determines that the rational basis test applies, the challenged statutes are not rationally related to the State's goals. With the availability of affordable technology that would allow voters with visual and manual impairments to vote independently and without the potential for fraud, it is not reasonable to impose additional burdens only on a particular population. This inquiry, however, is fact specific and not appropriate for resolution under Rule 12(b)(6). Bodner v. Gray, 129 So. 2d 419,421 (Fla. 1961 ). Thus, dismissal of the Florida constitutional claims is inappropriate.
D. Defendant City Council Members Are Not Entitled To The Protection Of Legislative Immunity
In their Motion, the City Council members attempt to invoke the shield of Eleventh Amendment immunity. This argument ignores the "long standing and well-recognized exception to [legislative immunity] for suits against state officers seeking prospective equitable relief to end continuing violations of federal law." Florida Ass'n of Rehabilitation Facilities, Inc. v. Florida Dep't ofHealth & Rehab. Servs., 225 F.3d 1208, 1219 (11 1h Cir. 2000); Seminole Tribe v. Florida., 517 U.S. 44 (1996); Luckey v. Miller, 929 F.2d 618,620 n.2 (11th Cir. 1991); see also Ex Parte Young, 209 U.S. 123 (1908). The facts ofthis case warrant application of this time-honored exception.
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First, the Plaintiffs brought suit against City Council members in their "official capacity only". (Complaint, Tfll-29.) Second, the plaintiffs unambiguously allege injuries arising from the continuing violations of the ADA, the Rehabilitation Act, and the corresponding implementing regulations. (ld., '1'178-79, 83-87, 89-91, 93-94, 96-98, 100101, 110-114, 116-117.) Third, the Complaint does not seek money damages, but instead seeks only declaratory and injunctive relief.I2 (Complaint, <j[ C & F.) Therefore, the City Council members are not entitled to invoke legislative immunity. Florida Ass'n of Rehabilitation Facilities v. Florida Dep't ofHealth & Rehabilitative Servs. 225 F.3d 1208, 1220 (11th Cir. 2000); Doe by & Through Doe v. Chiles, 136 F.3d 709,720-21 (11th Cir. 1998). IV. CONCLUSION
For the foregoing reasons, the Motion must be denied. The Complaint is facially sufficient and the facts alleged support its claims and entitle plaintiffs to relief.
Respectfully submitted,
J. Doug as Baldridge Trial Counsel Florida Bar No. 0708070 HOWREY SJMON ARNOLD & WHITE, L.L.P. 1299 Pennsylvania Ave., N.W. Washington, D.C. 20004 (202) 783-0800
12 Defendants' reliance on Woods v. Gamel, 132 F.3d 1417 (11th Cir. 1998) and Ellis v. Coffee County Bd. ofRegistrars, 981 F.2d 1185 (11th Cir. 1993) is misplaced. The facts in Woods and Ellis did not warrant application of the Ex parte Young exception, as both involve claims brought against officials in their individual capacities, seeking money damages as redress for past injuries.
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Dated: January 17,2002 Of Counsel:

Lois G. Williams Co-Counsel Washington Lawyers' Committee for Civil
Rights and Urban Affairs 11 Dupont Circle NW, Suite 400 Washington, D.C. 20036 (202) 319-1000
Attorneys for Plaintiffs

Alan M. Wiseman Danielle R. Oddo Courtney 0. Taylor Vincent E. Verrocchio HOWREY SIMON ARNOLD & WHITE, L.L.P. 1299 Pennsylvania Ave., N.W. Washington, D.C. 20004 (202) 783-0800

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CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing Opposition To The Motion To Dismiss Of Defendants Stafford And City Council were served by regular United States mail, postage prepaid, this 17th day of January, 2002, upon each of the parties listed below:
Scott D. Makar, Esq. Office of General Counsel 117 West Duval Street Suite 480 Jacksonville, FL. 32202 Charles A. Finkel, Esq. Assistant Attorney General Office of the Attorney General PL-01, The Capitol Tallahassee, FL. 32399-1050
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Secretary's Select Task Force on Voting Accessibility
Minutes of September 10, 2001 meeting Tallahassee, Florida
The Organizational meeting of the Secretary of State's Select Task Force on Voting Accessibility was held in Room 412, Knott Building, Tallahassee, Florida, on September 10,2001.
All members were present, except: Lyn Bodiford, representing AARPFlorida, who sent Jeff Johnson in her place, Senator Manny Dawson, and Gloria Mills.
Following a self-introduction of the members, many of whom thanked Secretary Harris for the creation of this Task Force, Assistant Secretary of State, David Mann, welcomed the members and thanked them on behalf of the Secretary for their willingness to serve. The Co-Chairmen, Senator Richard Mitchell and Representative Larry Crow, introduced the staff director, Fred Dudley and staff secretary, Ginger Simmons.
The staff director then made presentations to the members regarding the Ethics laws, and the requirements for both public records and public meetings. Also, members were given copies of the reimbursement vouchers, with a written explanation of allowable charges, and a request to complete, sign and tum in to Ms. Simmons at the end of each meeting.
The members reviewed and approved the "purposes" of the Task Force, as follows:
I. To ascertain the obstacles persons with disabilities face in voting in Florida's elections.
2. To develop and implement solutions for overcoming these obstacles.
3. To devise a mandatory training program for all election officials and poll workers, which includes instruction from persons with disabilities.
4. To propose a funding mechanism for the estimated costs association with implementation and training.
Julie Shaw made a written and oral presentation regarding the various legal requirements applicable to disabled Americans, as follows:
The _Rehabilitation Act_ oLJ273 - requires that all federal grants and
programs or entities that receive federal funding, comply with physical, program and service accessability. It is currently an estimated 20% of people with disabilities who are LESS LIKELY to vote, when compared to the general population, and another 10% who are LESS LIKELY to register to vote due to lack ofaccessability. There are presently 33.7 million Americans with disabilities of voting age, and if all polling sites were accessible, an additional 5-10 million of these disabled would vote.
1_284 _Vot~cA~~:e~sibilitie~_fQr _the_Eldt~d~ and H_andicapped_bct - for the first time required that all polling places be physically accessible, or moved to another location if not made temporarily accessible. Alternative voting,

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such as by absentee ballot or by curb-side voting, were authorized.
19~2- fin~l ReiNI1 on _{:ompljanc_e - indicated that only 86% of polling places were physically accessible to voters with disabilities. However, the accuracy of this report has been seriously questioned, with independent surveys and court cases suggesting that only about 60% of all U.S. polling places do not pose significant accessibility problems.
1990 Americans with Disabilities Act ("ADA':)- requires accessibility of all facilities, programs and services in all state and local governmental entities ("Title II"). It should be noted that "program" accessibility may be permitted in lieu of actual "facility" accessibility, so that accessibility to the entire building would not be required if accessibility were available to the to the areas were voting is conducted, and to the exit. Churches are exempt from the ADA, and the Florida Accessibility Code or buildings constructed since 1997, EXCEPT were they are used as polling places. Initial compliance lies with the local supervisors ofelections.
Finally, Julie pointed out the need for accessibility at pre-elections activities, such as candidate forums, and public broadcasts, such as debates and interviews, all to better inform every voter, including those who have disabilities. In addition, she stressed that "we must not provide unequal opportunities," by which she explained that we should not create "different" or "separate" facilities or services for those with disabilities, nor discriminate in the procurement process.
Ms. Shaw concluded her presentation with some key recommendations, as follows:
1. Consider "alternative" methods of permitting voting to occur, such as large type ballots, use of TTY machines, audio ballots;
2. Trained volunteers to assist the disabled,
3. Distribution of "disability etiquette guidelines;"
4. Help to close the severe digital divide by increasing access of computer technology by those with disabilities.
5. Set up a minimum state standard for all polling places;
6. Define an accessible piece of voting equipment and environment;
7. Identify and hold a single state elections official responsible for compliance with these new standards;
8. Design and implement poll worker education on disabled voters.
Steve Hardy questioned Julie on the current status of federal requirements for closed captioned television broadcast. Staff was directed to undertake a survey of Florida television stations to determine how each of them were progressing on upcoming compliance requirements for closed captioning. The federal deadline is 2006, with all televisions now having the capability.
Robert Miller pointed out that transportation to and from the polls in a timely fashion is another barrier to effective participation by disabled citizens in the voting process. David Evans agreed, and pointed out the need

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"'-"'
to increase state funding for the existing transportation program, such as that being sought by Senator Mitchell in Senate Bill 100 during the past legislative session.
Mr. Evans also sought clarification that a disabled voter, such as an elderly blind citizen who didn't want to use the latest technology could continue to have the right to request assistance at the polls, as in the past. The general consensus was that this right to assistance would be continued, regardless of other alternatives later employed to allow more secret and confidential voting controls.
Chris Wagner agreed that the transportation problem is a major obstacle for those with disabilities, as well as the need to have someone at each polling place to assist with questions regarding the equipment and the process. Mr. Miller stated that training of both poll workers and disabled persons is essential. Pam Dorwarth inquired about any present requirements for "sensitivity" training, and the consensus seemed to be that there are no such requirements at the present time.
Valerie Breen about the present job descriptions of poll workers. Teresa LaPore pointed out that Palm Beach County hires and trains approximately 4,000 poll workers in each election, and that such training there does include sensitivity training on the needs of disabled voters; she also referred to several accessibility and sensitivity training videos prepared by the state of North Carolina, which she has obtained permission to use them. and to share them with other Florida Supervisors of Elections.
Mr. Kracht questioned the likelihood that several days of sensitivity training will be given for a one-day job. Ms. Breen agreed, and suggested that we should review any existing training and sensitivity requirements before we propose additional ones. Ms. LaPore pointed out that the recent election law changes require six (6) hours of training spread throughout the year prior to the general election.
Michael Phillips pointed out that no one particular type of voting is going to meet the needs of every disabled voter, but that he thought Internet voting would allow more disabled citizens to vote.
Chairman Mitchell directed Mr. Dudley to survey Florida television stations regarding their willingness and ability to being closed captioning even prior to the 2006 deadline. Ms. Shaw pointed out how critical this capability would have been during a disaster like Hurricane Andrew when many disabled persons were unable to obtain safety and health information from their televisions. David Evans pointed out that, for the blind and visually impaired, failure of stations to read aloud the "number at the bottom of the screen" should be avoided, especially in disaster situations. Mr. Hardy pointed out that the current FCC requirements for closed captioning are merely voluntary prior to 2006, and not mandatory until that date.
Kristi Reid Bronson, a staff attorney with the State Division of Elections, made a presentation on state and federal election laws, a written copy of which is located in each member's Handbook under Tab 8. To Ms. Shaw's description of federal laws, she added the "Motor Voter" Act of 1993 (effective in 1995). Among other things, this act requires state funded programs, such as for welfare assistance, that are primarily engaged in providing services to persons with disabilities to also provide these same persons with the opportunity to register to vote. These program offices are required to provide not only the registration forms, but assistance in filling them out and forwarding them to the appropriate Supervisor of Elections.

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However, this law applied only to registration for federal elections only.
In 1994, Florida passed similar legislation for registration in state elections as well; the state law also contains a complaint process for anyone who believes that they have been aggrieved by any violation of the federal or state requirements. Such complaints are processed and monitored by the state Division of Elections, who act as mediators to resolve problems (as does the Office of Governor if the complaint is against the Elections Division). Requests for assistance is a part of both federal and state registration requirements.
Ms. Bronson also described section 101.715, Florida Statutes, regarding the accessibility of polling places, which includes minimum widths for doors, entrance and exists, handrails on stairs and ramps, and location of any barriers between the door and the voting booth itself. These requirements have been in the law since 1976, according to Ms. Bronson, and some of them (such as minimum door width of "29 inches" conflicts with the Florida Accessibility Code according to Ms. Shaw. Richard Labelle cited Article VI, Section l of the state constitution, and Ms. Bronson acknowledged that she was unaware of any cases or statutes that modifies or qualifies the right secured therein to a "direct and secret vote."
Jeff Johnson inquired if the definition of "disability" in the state elections code would include difficulty speaking or reading the English language, and Ms. Bronson said that it would not. Further, Mr. Dudley pointed out the technical difficulty of section 101.051, Florida Statues, regarding the need for an actual sworn statement from someone who needed assistance. Mr. Miller commented on the lack of uniform requirements for information regarding one's disabilities.
Next, Mr. Paul Craft, Chief of the Elections Division's Bureau of Voting Systems, described some his work over the past ten (10) years. He pointed out that, pursuant to section 101.5, Florida Statutes, no voting system may be used in the state, unless his office has first certified it. He described the certification program as an engineering evaluation which he claims is being used widely as one of the best in the country, with the following standards required for certification:
I. It has to tell what races are going to be voted on;
2. It has to tell how many candidates are in each race.
3. It has to explain the rules for voting (for example: vote for one, etc.).
4. It has to identify what candidates are in each race.
5. It has to allow the voter to select a candidate.
6. It has to allow the voter to review their choices, and modify their selections until the ballot is cast.
7. It has to allow for a write-in candidate, and for the edit of a write-in candidate;
8. It must have a defmitive moment when the ballot is cast without further changes.
With the application of these standards, Mr. Craft claims that his bureau has

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already certified several new machines, one of which is actually certified with an audio ballot interface. HOWEVER, Mr. Craft DOES NOT HAVE ANY STANDARDS FOR ACCESSIBILITY. On the other hand, he agreed that he needs such standards, and asked our Task Force to develop same for use by his bureau.
Mr. Craft reported that there are currently two (2) MARSYMS systems used throughout the state at the present time: the Optechs Eagle (used in Clay, St. Johns, Escambia, and several other counties), whose manufacturer is currently working on a touch screen, and Global Elections (as is used in Leon County). Tech Company is also working on a touch screen certification. As a result, there should be at least three (3) units from major manufacturers to choose. In addition, he reported that a telecommunications company has already done a lot of work with voice recognition systems.
Mr. Labelle sympathized with Mr. Craft's evaluation tasks, and thanked him for this work, which also pointing out his agreement with Mr. Phillips' concern that there is not a "one-size-fits-all" solution, as has been the case in the past with punch card ballots.
Mr. Miller pointed out that, as with the transportation problems faced by many disabled voters which greatly varies from place to place, it is important to maximize the choices we have among different certified voting systems.
Mr. Kracht was also appreciative of Mr. Craft's difficult responsibilities, and likewise expressed his appreciation for the job being done. However, he expressed frustration about the failure or refusal of companies to bring new products forward for certification, and grave concern about the on-going acquisition of new voting equipment without first dealing with certification. Mr. Craft responded that he thought the market place was going to adapted rapidly now that the first touch screen technology has been certified, and that the real question is whether or not to place mandatory requirements on the market.
Ms. Grubb differed with Mr. Craft on her perception of the market place by claiming that many manufacturers have been intentionally withholding their "access" packages until their main products were first certified. She claims that these companies are "treating their access packages as step children." In this vain, Chairman Mitchell inquired of Mr. Craft about the adoption of a rule requiring an "access package" as part of the certification process. Mr. Craft was not opposed to that idea, but argued that a statutory mandate would be stronger, especially in light of the on-going certification process and the likelihood of legal challenges to such a rule. Chairman Mitchell countered that the statutory mandate would take longer, and that perhaps both a statute and a rule would be appropriate (to which Mr. Craft seemed to agree). Ms. Shaw pointed out the year-old Texas full accessibility statute, mandating the use of new voting equipment in every county.
Mr. Clay Roberts, Director of the Division of Elections, indicated to the Task Force that he was concerned about any mandates by rule alone, and urged the Task Force to also consider recommendation of a statutory change as well. At the same time, he indicated to the members that the department will proceed with a rule in this area.
Senator Sanderson pointed out that she and fellow Task Force member, Representative Dudley Goodlette, serve as the chairs of the respective legislative Elections committees, and might be able to fast-track such legislation. After further discussion in which several members expressed

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concern that all Supervisors of Elections need to be aware of this problem and the possible solution, it was agreed that Mr. Dudley would work with the respective committee staff directors and the chairs to formulate such a letter to be signed by both Senator Sanderson and Representative Goodlette.
(EditoxlNote: Before this day was over, Mr. Dudley had scheduled such a meeting with Richard Hixon, Representative Goodlette's staff director of the House Rules Committee, for the following date at 2:00 p.m. The tragic circumstances of the following morning, Tuesday, September 11th, caused the meeting to be canceled when Governor Bush ordered an evacuation of the Capitol complex. However, in discussing this matter with Mr. Roberts later in the week, Mr. Dudley drafted and submitted a Memorandum for Secretary Harris' consideration and signature, a final mailed copy of which is found under Tab 11).
Mr. Evans expressed his belief that there is not something in all of these systems for every contingency, and that counties may well have to use several different types of voting equipment in order to meet all the needs. Mr. Dudley pointed out that some changes in current laws will be needed in order to "tally" all votes at each precinct unless different equipment can be interfaced in order to communicate with other equipment being used at the same location.
Chairman Mitchell directed the staff to arrange for a presentation by the various vendors of their products. Mr. Phillips asked Mr. Craft about the use of the Internet for voting. Mr. Craft responded that work on such a system has been underway since 1997, including a Department of Defense Internet voting project in the 2000 elections; however, he reported that the welldocumented findings are that there is no good way to secure the voter's choice once it leaves their computer; it may pick up a virus or script that would change the vote either before or after it left the computer.
At approximately 12:40 p.m., the members took a lunch break, reconvening at 1:50 p.m.
Mr. Doug Towne was recognized to make a presentation regarding the barriers to voting by those who are disabled. He first explained that, while he had been involved in the creation of this Task Force he was not serving as a member, because he had since been retained by one of the product vendors as a consultant. He identified some of the following "barriers" to voting accessibility:
1. To overcome attitudes by enforcing current laws and finding new laws and rules to assure accessibility.
2. Elimination of non-accessible polling places (perhaps with the use, in some cases, of absentee ballots).
3. Flexibility to substitute technology.
4. Inadequate transportation.
5. Systematic and social barriers based on perceptions about disabilities.
Chairman Mitchell lead the members in a discussion of "problems and solutions," with the following results:
Ms. Grubb: Expressed her pleasure at seeing the Task Force moving to

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accomplish its mandate to assure accessibility in voting for all citizens, not as a "favor," but because it is the right thing to do. She pointed out that every single person will be touched by our successful efforts, whether due to their own disability brought on by accident, disease or aging, or due to the disability of someone they love.
Mr. Miller: Hope all of us have learned from today's discussions that there are many reasons for the lack of voting accessibility, such as inadequate transportation and insufficient use of close captioning.
Mr. Evans: He will propose to his local Transportation Disadvantaged Coordinating Council in Palm Beach County that they include voting access as part of its top priority on the same level as serious medical care.
Ms. LePore: Expressed her belief that all Supervisors of Elections are supportive of maximizing voting accessibility.
Ms. Dorwarth: Posed the question about the existence of any statutory mandate to survey the accessibility of each polling place (to which Ms. LePore indicated that these was no such requirement, and that such determination is done on a county-by-county basis).
Ms. Shaw: Creating such a survey should be one of the duties of this Task force.
Mr. Phillips: Also encouraged the use of an accessibility survey, including the use of the Internet as a viable option (referencing materials he has given to Mr. Dudley).
Mr. Miller: Recommended that we look strongly at some of the telephone technologies for convenience.
Mr. Evans: Also encouraged the use of telephone technology, especially in rural areas where transportation is also a major accessibility problem. In addition, he would like the Task Force to prepare a list of all the available technologies.
Mr. Labelle: Encouraged the proposed legislation and rule changes as having the greatest long-term impact, but is still concerned about the ongoing process around the state of counties continuing with the purchase of new voting equipment (citing to his own observation in Tampa). Also urged that the Task Force put Boards of County Commissioners "on notice" to use great caution in committing to purchase voting equipment which may later be determined NOT to be accessible. He recommended that we maximize input from manufacturers, including those out of the country, with "accessibility" and "security" being the two considerations (including the Internet). Finally, he suggested the use of a subcommittee to begin drafting legislation.
Mr. Kracht: Stressed his sense of urgency and immediacy to the issue of voting accessibility, especially as it relates to delivering a strong message to both Commissioners and Supervisors.
Ms. Dorwarth: Sought, and obtain, clarification of the current law, which prohibits the expenditure of funds to purchase voting equipment not yet certified. Also expressed concern about the apparent discrepancies in the various state laws dealing with accessibility standards (and recommending a subcommittee to look into that issue as well).

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Mr. Hardy: Expressed his concern about people with language problems, including speakers of languages other than English, and suggested pictures of the candidates be used on the ballots.
Mr. Miller: Pointed out that at least one voting system has been certified that is "accessible." being the touch screen product described by Mr. Craft.
Senator Sanderson: Offer to work with her House counterpart, Representative Goodlette, and Mr. Dudley, to draft a strong letter to Supervisors and Commissioners.
Ms. Shaw: It might also be instructive for the Task Force to review the work on accessibility recently completed in Texas.
Representative Goodlette: Expressed his hope that all new purchase contracts would contain an "accessibility component." He also mentioned the possibility that some federal funds may become available for new purchases.
Mr. Evans: Discussed pending federal funding bills, and the required stipulation of "accessibility."
Ms. Shaw: We should look not only at the pending federal legislation, but the actions of other states, such as Washington, Missouri, Michigan and Texas, to "steal" their best ideas.
Chairman Mitchell: Inquired of Senator Sanderson and Representative Goodlette if their committee staffs might be able to obtain such information for us. (Off record indication was "yes.")
Ms. Sumlin: Agreed that taking ideas from the federal and other states' efforts was good, and encouraged us to prepare a list of accessibility standards as soon as possible.
Ms. Grubbs: She has talked with people in Texas, California and Georgia, who have already certified accessible equipment which has not yet been certified in Florida.
Chairman Mitchell then summarized a number of issues on which the Task Force has appeared to have reached consensus, as follows:
I. Transportation is a main problem or barrier for voting access.
2. Accessibility technology should include the use of Internet and telephones.
3. A determination of accessibility as to specific polling places may involve use of a survey.
4. Development of accessibility standards for certification of new voting equipment.
5. Require voting equipment of include an accessibility component.
The chairman concluded his remarks by observing the difficulty of the overriding factor of "funding."

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A discussion next ensued about the use of a web site for Task Force infonnation, such as the minutes. The Chairs agreed to work something out with the Department of State for use of their website for all this information.
Representative Crow: Reviewed Mr. Labelle's suggestion for a subcommittee to begin drafting legislation, but agreed, in light of the sunshine law requirements for notice of all meetings, that any member with ideas along these lines should send them to Mr. Dudley. He also brought back up the idea of studying the accessibility work of the federal government and other states, and agreed that we could use the resources of the Senate and House committees for this purpose as well.
Ms. Dorwarth: Again raised the subject of possible discrepencies in state laws governing accessibility, and suggested that they be reviewed. Mr. Dudley agreed to do so.
Mr. Dudley then reviewed the other meeting dates and locations, including the switching of the Tampa meeting from October 29th to October 4th, and moving the West Palm meeting from October 4th to October 29th to facilitate the use of Ms. LaPore's new office complex. Several members expressed concerns about the upcoming meeting dates, but they are very firm in light of the efforts to get some legislation filed for consideration as soon as possible in advance of the next regular session which is due to commence on January 22,2002.
A change in the time for starting the Orlando meeting to 9:00 a.m. was approved.
Finally, Mr. Dudley reviewed the proposed time frames for drafting and finalizing the Task Force's Report to Secretary Harris (November 12th), so that legislation could be filed shortly thereafter. Both chairs, Senate Mitchell and Representative Crow, have agreed to serve as the prime sponsors of each chamber's bill, and both Senator Sanderson and Representative Goodlette have indicated prompt action from their respective committees.
Ms. Shaw suggested that a better effort be made to advertise our meetings to the disabled community. Mr. Miller offered to do that for the upcoming meeting in Orlando.
Mr. Phillips requested that all e-mail from the staff be in Word format, and Mr. Dudley agreed to do so in the future (as his firm is now switching over from Word Perfect to Word).
No further business appearing, the meeting as adjourned at approximately 3:45p.m.
Respectfully submitted, Fred R. Dudley

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Case 3:01-cv-01275-HLA-HTS Document 9 Filed 01/18/02 Page 32 of 131 PageiD 143
Duval County Election Reform Task Force
FINAL REPORT
Jacksonville, Florida June 12, 2001

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Table of Contents

Members of the Task Force

Charge, Approach and Methodology

2

A Message to our Community

6

Summary of Recommendations

9

I. FACILITATING AND INCREASING REGISTRATION

Motor Voter Procedures

12

Encouraging Registration

13

Felon List

14

II. IMPROVING VOTER EDUCATION

Educational Methodologies

15

Educational Content

17

2002 Election Cycle

19

Finance and Funding

19

III. ENHANCING THE ELECTION DAY EXPERIENCE

Registrant Identification

20

Mislocated Registrants

21

Spoiled Ballots

21

Disabled Voters

22

Access to Polls

22

Polling Locations

23

Demeanor ofPollworkers

24

Poll Watchers

24

Absentee Balloting

25

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IV. INCREASING PROCESS EFFICIENCY

Balloting Technology

27

Election Day Communications

28

Pollworker Development

28

Fraud Prevention

32

Evaluation and Improvement

32

Supervisor of Elections Office

34

Canvassing Board

37

APPENDICES

A. Initial Plan ofWork

38

B. Schedule of Meetings

39

C. Presenters and Witnesses

41

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Members of the Task Force

Preston H. Haskell, Chairman Chairman The Haskell Company
Judith A. Albertelli Vice Chairman Republican Party of Duval County
Bruce E. Barcelo Principal Barcelo & Company
Terrie Brady President Duval Teachers United
Barbara A. Darby, Ed. D. President FCCJ North Campus
Michael R. Hightower Vice President, Governmental & Legislative Relations Blue Cross/Blue Shield of Florida, Inc.

Berrylin M. Houston Community Volunteer
Michael E. Langton President Langton Associates, Inc.
Francis L. (Len) Loving Director, Northeast Florida Region Office of State Comptroller
Reverend Rudolph W. McKissick, Jr. Pastor Bethel Baptist Institutional Church
Isaiah Rumlin President Jacksonville Branch, NAACP
Mark Tippins Attorney-at-Law

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Charge, Approach and Methodology
The Election Reform Task Force was created on February 7, 2001 by Mayor John A. Delaney and City Council President Alberta Hipps, to address the widespread concerns throughout the Jacksonville community arising from the flawed and discredited presidential election ofNovember 2000.
At its initial meeting of March 5, 2001, the Task Force adopted the following statement of Mission, Goals and Vision:
• To provide an open forum for the full and impartial hearing of grievances and reports ofi"egularities as to the November 2000 election, and
• To investigate i"egularities which occu"ed and make recommendations to co"ect such problems, and to provide other improvements as appropriate.
The central goals ofthe Task Force, deriving from this mission, are (1) to create a voting process which is fair, inclusive and effective, and (2) to restore public confidence in the election process. Our collective vision is that Duval County have the best election process in the state ofFlorida, and among the best in the nation.
At this time, the Task Force also adopted a tentative program of work and schedule of meetings. The Task Force determined to meet weekly for approximately two months in an information-gathering phase, to be followed by several weekly meetings to synthesize the information which it received and draft a fmal report. These planned steps indeed became the course which the Task Force eventually followed, and its work was done essentially in accordance with the March 5 plan. A copy of the initial plan of work, and of the actual schedule of meetings, appear as Appendices A and B.
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The Task Force held thirteen meetings, the first eight of which were devoted entirely to information gathering. During six of these meetings, the Task Force received information and unsworn testimony from authorities and experts on electoral procedures, voting systems, and other subjects related to its work. The other two meetings were public hearings at which any citizen could appear and provide testimony. In all, the Task Force heard from over 60 witnesses and benefited immensely from the input received.
Following the information gathering meetings, the Task Force held three meetings, in a workshop format, in which it discussed the information it had received, made certain tentative judgements and decisions, and organized its material for placement in its final report. In its last two meetings, the Task Force reviewed, considered and refined the draft report, and adopted the fmal report. All meetings were open to the public.
Early, the Task Force considered whether it should investigate fmdings of wrongdoing in a prosecutorial manner or restrict itself to determining trends and patterns which were subject to improvement and remediation and render its fmdings and recommendations without attempting to identify wrongdoers. After discussion of this issue, it was determined that the Task Force would follow the latter course of action. Thus its findings are based upon broad observation rather than detailed investigation, and are oriented toward improvement versus the discovery of malfeasance.
Many aspects of the electoral process were considered by the Governor's Select Task Force on Election Procedures, Standards and Technology and the Florida Legislature, both of which took positive action during the same time that the Task Force was active. However, under Florida's highly decentralized election system, county governments and Supervisors of Elections have considerable local discretion as to budget and finance, ballot design, balloting technology, pollworker training and development, voter education and outreach, and many other topics not addressed at the state level. Rather than fmding itself preempted by the state task force or Legislature, the Task Force found an extensive array of improvements and reforms which could be effected at the local level.
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Although the Task Force was, by design, evenly divided between Democrats and Republicans, partisan or party line debate was rare. Rather, the members sought to reach conclusions based upon quality of ideas, benefits to the community, reasonableness of implementation, consistency with sound public policy, and enhancement of confidence in the voting process.
********
The Task Force acknowledges and expresses its appreciation to the many individuals and organizations who contributed to its work and its success. Mayor Delaney and President Hipps, in addition to providing the initial inspiration for the Task Force, made capable staff resources available. These were led by Jason R. Teal ofthe Office of General Counsel, who was ably assisted by Cheryl L. Brown, Chief of Research of the City Council and Michael Miller of the Office of the Mayor.
Supervisor ofElections John L. Stafford and his Director of Operations, Robert Phillips, were helpful and cooperative in making information available to the Task Force and responding to specific requests for research and information. For expert advice in specific fields, the Task Force heard from Pam Iorio, Hillsborough County Supervisor of Elections and President of the Florida Association of Supervisors of Elections; Helen Howard, Special Program Coordinator, Division of Drivers Licenses ofthe Florida Department of Motor Vehicles and Highway Safety; and representatives of three national manufacturers of advanced voting technology; all of whom traveled from other cities to make their presentations. Invaluable research and recommendations were provided by five members of the Political Science faculties of the University ofNorth Florida and Jacksonville University under the leadership of Dr. Matt Corrigan and Dr. Stephen Baker. The League of Women Voters and the National Council of Jewish Women provided several recommendations in the areas of citizen participation and voter effectiveness which were adopted by the Task Force. Raymond Reid of the Office of General Counsel was a constant source of technical and legal information and advice.
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There were scores of other individuals, too numerous to mention in this brief acknowledgement, who provided excellent advice and information to the Task Force. The Task Force expresses its deep appreciation to each of them for their interest and support, and the contributions which they made to its work. A complete list of individuals appearing before the Task Force is found in Appendix C.
5

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A Message to our Community
The November 2000 election had a divisive and disillusioning effect upon our community. The integrity and effectiveness of our electoral process was questioned as never before, threatening the very fabric of our community at a time when Jacksonville was making significant strides in economic development, race relations, public education, and governmental effectiveness.
Two groups were affected most adversely by the November 2000 elections: those whose votes did not count, and those who attempted to vote but were turned away. The number of spoiled ballots due to overvote was devastatingly high - over 22,000 - greater by far than any election in our history and the most of any county in Florida. Lesser but still significant numbers of voters were told that they were not registered, were sent elsewhere to vote, or gave up entirely. The cumulative effect of these failures fell disproportionately upon our African-American population, leading to a concentrated loss of confidence in the system within this important segment of our community.
These occurrences were not isolated, random or unrelated. They resulted from widespread error, multilevel mismanagement, obsolete systems and flawed practices. The Task Force found, however, no evidence of conspiracy or intentional wrongdoing. While the latter is comforting, it should in no way lessen our resolve to dramatically and permanently rectify the failure of our electoral processes, and to once again insure every citizen's right to vote and to have his or her vote counted.
How did we get into this situation? For too long, we have conducted our electoral processes on the cheap. We tolerated outmoded equipment, inadequate personnel, insufficient voter education, and low funding across the board. We tolerated these things because margins of victory tended to exceed the known margin of error in our election system. The closeness of the 2000 election, however, was a wakeup call showing us
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__./

how imperative it is that systemic errors be reduced to the absolute minimum. The right to vote is too precious and too fundamental to our democratic society to permit error, neglect and underfunding to continue.
These shortcomings are highly correctable. Available voting technology is decades ahead of that which we have been using. Methodologies for voter education and outreach, for enhancement and facilitation of registration, for improved pollworker training and development, for qualitv management and performance improvement, and many similar enhancements are available, affordable and manageable.
The office of the Supervisor of Elections, though not perfect, is capable of managing these reforms. The Supervisor himself has expressed commitment to these reforms and indeed had initiated certain of them before the Task Force began its work.
It is also encouraging to note that the improvements recently enacted by the Florida Legislature have thrust our state into the forefront of electoral reform nationally. Correspondingly, Duval County can seize the top spot among all Florida counties making Jacksonville's electoral process the best in the state, which in turn is arguably the best in the nation.
The Task Force believes that the recommendations of this report, if adopted, can indeed put Jacksonville in such a premier position statewide and nationally. Their adoption will lead to dramatic technical improvements throughout the election process. These in tum will restore confidence in the system, create a more informed electorate and increase participation in the voting process. These are among the hallmarks of a first tier city.
We must never again permit our election processes and systems to fall into the chronic disrepair found in November 2000. Rather, we must continually commit the attention and resources necessary to insure that these processes are kept at the highest level of effectiveness, that there is unquestioned quality and transparency in our electoral system, and that elections are a source of confidence and cohesion across all segments of our

7

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community. This report provides a clear blueprint for achieving these aspirations. The people of Jacksonville deserve nothing less.
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Summary Of Recommendations
This Summai)' is taken from the four chapters which immediately follow it. The number in parentheses following each recommendation refers to the page upon which rationale and detail for it may be found. These recommendations are in no order of rank or priority; indeed, the Task Force believes them all to be of compelling importance and equally worthy of adoption and implementation.
• The process of transmitting registration applications from the Division of Drivers Licenses to the Supervisor of Elections should be strengthened beyond measures recently taken. Each applicant for registration should be furnished with a personalized "receipt" at the time of application, to permit the applicant to follow up if the registration card is not received within a certain time. (12)
• A community-wide voter registration drive should be conducted biannually, under the direction of the Supervisor of Elections, but involving a broad cross-section of community organizations. ( 13)
• Voter education and outreach should receive enhanced resources and emphasis. Particularly, a personalized sample ballot should be mailed to all registrants proceeding each election cycle. Greater use should be made of mailings, demonstration sites and mock elections, videotape presentations, print and broadcast media, coordinated efforts of civic groups, and schools and colleges. These channels should cover the basics of voting, registration, turnout, knowledge of precinct locations, voting technology, and the voting process. (15)
• The Voter Bill of Rights adopted by the 2001 Florida Legislature should be broadly disseminated to all voters, appear at all registration sites and polling locations, and be published widely. (18)
9

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• The 2002 election cycle should be given high priority in voter education and outreach efforts, educating voters as to the many systems and processes that will be new in that cycle. (19)
• Voter identification and access at the polls should be made easier and more accurate through the use of improved election day communications, appropriate use of affidavits and provisional ballots, and more diligence on the part of pollworkers. (20)
• Measures should be taken to improve the electorate's knowledge of proper polling locations through sophisticated change of address techniques, voter education as to address currency, and improved notification of changes in polling locations. (21)
• Duval County should adopt precinct-based optical scanning technology for the next two to four years, followed by the acquisition of direct recording electronic (touch screen) technology. Continuous attention must be given to maintaining current, state-of-the-art technology thereafter. (27)
• Election day communications should be strengthened by equipping all precincts with laptop computers continuously connected to the central registration data bank. (28)
• The recruitment, compensation, training, development and evaluation of pollworkers should be significantly upgraded to include more extensive education, greater diversity, better compensation, and an emphasis upon customer service. (29)
• Businesses and other organizations should be encouraged to volunteer their employees - particularly those proficient in systems and technology - to work at polling locations on election day. (31)
• Cases of fraud or double-voting discerned by the Supervisor of Elections should be turned over to the State Attorney. An interagency anti-fraud task ·force should be
10

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created. These measures will send a strong message that fraudulent voting will not be tolerated. (32)
• Formal measures should be instituted for evaluation of performance and quality improvement throughout the electoral process, including evaluation and feedback from voters themselves. (32)
• An Elections Advisory Panel should be created by ordinance to advise on ballot design and voting instructions, recommend polling sites, advise on voter and pollworker education, act as ombudsman for voting complaints, and oversee quality improvement measures. (33)
• The office of the Supervisor of Elections should be strengthened by the addition of key senior managers for voter education and registration, pollworker training and development, quality assurance, and technology, plus appropriate subordinate support. The budget for this office should be increased by $600,000 to $1 ,000,000 annually to cover the cost of new positions, increased compensation for pollworkers, enhancements in voter education and outreach, and improved pollworker training and development. (35)
• The Canvassing Board should be reduced from four members to three by eliminating the General Counsel as a member. Appointments to the Canvassing Board should consider racial, gender and political party diversity. (3 7)
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....._.,
I. FACILITATING AND INCREASING REGISTRATION
Since enactment ofthe National Voter Registration Act of 1993 ("motor voter" law), voter registration has accelerated sharply, and Florida and Duval County are no exceptions. Currently, approximately one-half of all new registrations come through the motor voter procedure, a proportion which will increase. Accordingly, in considering measures to facilitate and increase registration, the Task Force placed greatest emphasis upon motor voter registration.
Motor Voter Procedures
Prior to and following the November 2000 elections, chronic system failures were found with regard to transmittal of completed motor voter registration applications from the Division of Drivers Licenses (DDL) offices to the Supervisor ofElections office. The system provided little or no followup when applicants failed to receive a registration card. No duplicate of the list of applicants sent to the Supervisor was maintained by the DDL office which created the list. Additionally, the Task Force found that registration book closing dates were not well communicated to voters, resulting in many registrants erroneously believing they had registered for the next election. One witness testified, not entirely facetiously, "If you think you're registered to vote, think again."
Beginning in early 200 I, the Division has made strides in correcting these problems. A statewide office has been established with the sole responsibility of liaison between the Division and the 67 Supervisors of Elections, and for providing better training ofDDL employees with respect to voter registration. Also, each DDL office now maintains a duplicate copy of the applicant list for reference in resolving applications which do not result in registration.
In addition to these state level measures, the Task Force found improvements which can be made locally. These include:
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1. The applicant list should be transmitted electronically by DDL to the Duval Supervisor of Elections, on a daily basis. Both agencies testified as to having this electronic capability in place, but not yet in use.
2. Public notices as to closing dates should be prominently posted at all DDL offices.
3. Each applicant should be furnished with a personalized "receipt" at the DDL office, acknowledging his or her application and providing a telephone number to call if a registration card is not received within a certain time.
There are other remote registration sites, such as libraries, public assistance offices, and armed forces recruitment centers, at which voters may be registered. The foregoing recommendations, particularly number 3, should apply to these locations also.
Encouraging Registration
The Task Force found that although voter registration continues to increase generally, registration efforts are uneven and often provided by private special interest groups and political parties. The Task Force recommends that community-wide biannual registration drives be an important responsibility ofthe Supervisor of Elections.
Such a community-wide registration drive might be modeled after the United Way campaign with attendant publicity, milestone events and recognitions. Specifically, the Task Force recommends the extensive use of public service announcements, signs and billboards containing United Way-style thermometers or charts, campaign kickoff events, completion celebrations, and the involvement of corporations, political action committees, labor unions and other associations. Efforts to increase registration should be a regular and ongoing part of voter education, discussed further in Chapter II, and the Supervisor of Elections must commit financial and staff resources to it accordingly.
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The biannual campaign should not be the only, or even most important, registration activity. Registration must be a continuous, consistent effort. In particular, continuous registration activity should be aimed toward potential registrants as they reach age 18.
A senior manager in the Supervisor of Elections office should have ongoing responsibility for registration efforts. This perhaps could be the same person recommended in Chapter ll to head voter education.
Felon List
In the fall 2000 elections, extensive inaccuracies were found in the so-called felon list, which is promulgated by the Division of Elections to prevent convicted felons from casting a vote. Among other shortcomings, it was determined that many of the names on the list were not those of convicted felons, or were felons whose rights had been restored.
In Duval County, the Supervisor of Elections sends a letter to all names which appeared on the list, giving the voter an opportunity to correct the record if his or her name had appeared on the list erroneously, and otherwise accorded the voter the benefit of the doubt if his or her name was on the list.
In the future, compilation of the felon list will be contracted to a different vendor, and there are indications that a far more competent list will be provided for future elections. However, the Task Force recommends that the Supervisor continue his practice of sending verification letters to every Duval County name on the list. In addition, the Task Force recommends that any apparently convicted felon, who disputes his felon status and wishes to vote on election day, be given a provisional ballot and permitted to vote pending confirmation of his registration status.
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D. IMPROVING VOTER EDUCATION
The Task Force found that past voter education and outreach efforts have been inconsistent, unorganized and underfunded. This has resulted in unacceptably high levels of voter confusion, overvotes, and voter error. It has also adversely affected registration and turnout.
While the Supervisor of Elections should take the overall lead in improving voter education, there are also many community resources which can be effectively utilized in this improvement effort.
Educational Methodologies
The Supervisor of Elections should assume a much-enlarged role in voter education and outreach. The office should include a full-time position responsible for voter education, and greater funding must be provided for educational resources and programs. However, there are many other institutions and resources which can be used for disseminating information to the public. The Task Force particularly recommends the following initiatives and methodologies:
1. The reverse side of the voter registration card should provide key information about voting, change of address, and the number for a telephone "hot line".
2. A district- or precinct-specific sample ballot should be mailed to each registrant at the onset of each election cycle, perhaps using Hillsborough County's model. This mailing should also provide key information about that cycle, including election dates, the scope of each election, and frequently asked questions and answers.
3. Demonstration sites should be set up around the city to demonstrate new voting technology, provide for mock voting, and provide other information to
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the public. This could be integrated with the existing "City Hall at the Mall" initiative.
4. The Supervisor should give consideration to creating a mobile demonstration unit ("votemobile") which could travel to office buildings, shopping centers, college campuses, civic clubs, and similar locations.
5. The Supervisor should create a videotape presentation covering registration, balloting and election issues. Copies of the video should be made widely available to clubs, churches, schools, and other organizations.
6. Local print and broadcast media should be encouraged to provide more free advertising regarding voter education issues.
7. A pamphlet or packet of voter education materials should be made available to newcomers to Jacksonville through realtors, relocation firms, and other entities dealing with new arrivals to the city.
8. The Supervisor should establish a coalition of community groups to work collaboratively with the Supervisor's office to ensure that new information is disseminated to voters in an accurate, consistent, and understandable way. Such a coalition might include the League ofWomen Voters, the National Council of Jewish Women, the NAACP, church networks, political parties, the Lutheran Social Services' citizen program, local colleges and universities, and other associations.
9. The Supervisor of Election's web site should be strengthened and expanded to include precinct locations and all of information recommended in the section on Educational Content below. The Supervisor's web site should be separate from, while remaining also linked to, the City's web site, www.coj.net
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10. Division of Drivers Licenses offices should be used to disseminate printed materials regarding registration and voting.
11. Utility bill stuffers should be considered as a means of communicating important and time-critical messages to voters. Other Florida coWlties have foWld this to be particularly effective.
12. Particular efforts should be made to reach potential voters as they arrive at age 18. The civics instruction being offered in the Duval County School District should complement these efforts with particular focus on voting prior to each election cycle.
13. Particular emphasis should be placed upon voter education and outreach to populations most in need of such efforts.
14. Public recognition and reward should be given to those print and broadcast media entities, associations, and individuals who voluntarily contribute to voter education programs.
Educational Content
Educational content is equally as important as educational methodologies. The Task Force recommends that the following subject matter areas be emphasized in an expanded program of voter education.
Drill the Basics. Certain fundamental tenets ofthe electoral process should be made basic, standard components of all voter education. These include possessing valid registration, keeping address current, knowing precinct location, and basic familiarity with the balloting process.
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Registration. Public education efforts should also extend to those not necessarily registered to vote, teaching the importance of voting and how to become registered.
Turnout. Voter outreach should emphasize the importance of election day turnout. Percentage goals should be set and publicized, and prominently reported afterwards. The community should be congratulated if it reaches or exceeds its goal, which in tum should be set higher in the future.
Precinct Locations. Because precinct locations may shift from time to time, and will particularly do so with the upcoming redistricting, an important part of voter education is disseminating the location of polling places.
Voting Technology. With the introduction of new voting machines in the 2002 election cycle, particular attention much be given to educating voters as to the use of such new machines.
Sample Ballots. As has always been the case, the publication of sample ballots in advance of each election is an important aspect of voter education. With the advent of new voting technology, and thus new ballot design, publication of sample ballots is again highly important. In particular, great care must be given to ensure that the published sample ballots are identical to the actual ballots.
Voting Process. Voters should be made familiar with the provisional ballot, various affidavits that are available, the ability to revote if ballots are spoiled, and the right of a voter to bring an assistant to help with voting.
Voter Bill of Rights. The Voter Bill of Rights adopted by the 2001 Florida Legislature should be widely disseminated to all voters. Duval County should go beyond the state statutory requirements, causing it to appear at all registration sites and be printed in educational materials and public media.·
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2002 Election Cycle
In 2002, essentially "evezy voter will become a first time voter" due to new voting technology, new district boundaries, new polling locations and new ballot design. This condition makes voter education an even higher priority during the next 17 months, and special efforts must be directed toward educating voters as to those systems and processes that are new in the cycle. In particular, consideration should be given to a special community awareness-building campaign for this purpose.
Finance and Funding
The Task Force found that, together with so much of the electoral process, voter education has suffered from egregious underfunding in recent years. This condition must change.
The 2001 Florida Legislature made significant state funding available to those counties demonstrating well-developed voter education programs. Duval County should be at the forefront of such program development and secure the maximum funding available from the state.
Because the state grants will be one year only, local funding should be significantly increased on a recurring basis. A senior management position within the Supervisor's office should be established solely for voter education, and adequate funding provided for print materials, videotape production, media advertising, web site enhancement, and similar resources.
In-kind funding and resources should be provided by print and broadcast media, the Duval school district, area colleges and universities, and civic clubs and organizations. These efforts should be particularly intensive in preparation for the many new and different aspects of the 2002 election cycle.
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ill. ENHANCING THE ELECTION DAY EXPERIENCE
The Task Force heard testimony that nwnerous voters in the November 2000 election encountered difficulty in verifying registration, arrived at polling places which had moved, experienced unsatisfactory pollworker demeanor, and were not provided affidavits when needed. The recommendations of this chapter seek to address these issues, among others.
Registrant Identification
The Task Force believes that measures can and should be taken which will greatly improve the process of voter identification and verification of registration. Among these are the following:
1. Having laptop computers at all precincts to inunediately verify current registration will greatly improve the current process. This is discussed in greater detail in Chapter IV of this report.
2. If the voter is unable to produce photo identification at the poll, the voter should be provided with an affidavit verifying the voter's identity and be allowed to cast a ballot.
3. If a voter's registration or criminal record is in doubt, the voter should be permitted to cast a provisional ballot and have the voter's eligibility verified subsequently.
4. Pollworkers should be trained to exercise diligence in seeking a voter's name on the registration list, providing a provisional ballot if necessary, and otherwise giving the voter the benefit of the doubt.
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Mislocated Registrants
A chronic, recurring problem in the electoral process is that of voters appearing at the wrong polling location. While this sometimes is occasioned by the relocation of a polling place, it is most often caused by the voter having moved and not having notified the Supervisor of Elections. The voter then appears at the polling location closest to his or her residence seeking to vote.
The importance of maintaining address accuracy with the Supervisor's office should be emphasized consistently and at every opportunity. The channels for doing this should include all of those discussed under Education Methodologies in Chapter II.
In addition, the Supervisor should explore the development of a joint initiative with JEA to use the utility's change of address process to trigger updates of a voter's change of address. Similarly, the National Change of Address process of the U.S. Postal Service, and the public registration of homestead purchases, also might be utilized for triggering an electoral change of address. In all cases, the Supervisor's office, when notified of a possible change of address, would send a letter asking the registrant to verify his or her change of address.
In addition, the Supervisor should establish a telephone line dedicated to disseminating polling location information. Again, perhaps modeled after JEA, such a telephone system would enable the voter to punch in his or her address, and be automatically told the precinct number and location.
Spoiled Ballots
The Task Force found that the right to recast a ballot in the event of a mistake on one's first ballot is not widely known to the voting public. This process, which permits a voter to cancel up to two ballots and revote up to a third time, should be emphasized in voter education efforts and made a part of pollworker training and knowledge.
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With the implementation of new voting technology (discussed in Chapter IV), an overvote will be called to the voter's attention immediately, and the voter given the opportunity to correct his or her ballot. This will reduce overvoting to negligible, perhaps even zero, levels.
By the same token, an undervote will also be called to the voter's attention. However, it should be understood that an undervote does not constitute a spoiled ballot, and the voter may well wish to not vote in a particular race.
Disabled Voters
Testimony received by the Task Force generally indicated that physically and mentally disabled voters were appropriately accommodated. Most locations properly provide for wheelchairs, and sight-impaired voters are permitted to bring someone to assist them. In some instances, pollworkers bring the ballots out to a disabled voter's automobile. The Task Force commends the Supervisor of Elections on all of these accommodations.
However, the Supervisor should be vigilant in maintaining such access and relentless in expanding it. The Task Force further recommends that consideration be given to the establishment of a centralized voting facility for extraordinary access. This would not only include wheelchair accessibility, but headphone and Braille voting for the sight impaired.
Finally, the Task Force strongly recommends that the pollworker training curriculum include a component dealing with accessibility and accommodation issues.
Access to Polls
The Task Force received no testimony to the effect that there was intentional blocking of access to polls by police roadblocks or other means. The only report which came close
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to being one of restricted access was a driver's license check that was conducted the night before the November 7 election. There appeared to be no connection between this event and the subsequent day's voting.
Further, the Task Force received no testimony as to voters who were present and in line at 7:00p.m. being prevented from voting.
There were, however, reports of voter intimidation by other voters waiting in line and occasionally by pollworkers themselves. To prevent recurrences of this, pollworker training should emphasize proper behavior by the pollworkers and their authority to curtail inappropriate or intimidating language by anyone in the polling place. Importantly, prominent posting of the Voter's Bill of Rights, and proper enforcement of it by pollworkers, should be emphasized.
Polling Locations
Maintenance of appropriate, convenient, and stable polling locations has long been a challenge to the Supervisor of Elections. The Task Force found that the Supervisor has done a commendable job of providing appropriate polling locations. To further improve these efforts, however, the Task Force recommends the following measures:
1. Any change in polling locations should be widely publicized, using the appropriate measures from those recommended in Chapter II of this report.
2. New registration cards should be sent to all affected voters whenever a polling location is changed. A message accompanying the new card should call attention to the fact that the voter's polling location has changed.
3. On election day, large signs should be posted at any changed polling location directing voters to the new location.
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4. Positive and favorable recognition should be given to the providers of free polling locations, thanking them for their civic generosity in making their space available.
Demeanor of Pollworkers
The Task Force heard testimony indicating unacceptable departures from appropriate demeanor and conduct of pollworkers at some locations. While not uniform or widespread, such irregularities demand that appropriate improvement measures be taken.
Many aspects of the election day experience can be enhanced simply by greater sensitivity and knowledge on the part ofpollworkers. Many ofthe recommendations regarding pollworker development in Chapter IV ofthis report are concerned with providing better assistance to voters in the balloting process, being more sensitive to voters with impairments, and maintaining strict neutrality of atmosphere at the polling locations.
The role of the Clerk'" in assuring proper pollworker demeanor is critical. The Clerk should be held accountable for maintenance of proper standards within his or her precinct. As recommended elsewhere in this report, measurement of results and feedback to senior officials in the Supervisor's office should be instituted.
PoD Watchers
The Task Force found that the role and scope of Poll Watchers is widely misunderstood, often leading to animosity between pollworkers and Poll Watchers, and somewhat undermining the effectiveness of both.
• The Clerk is the pollworker in overall charge of a polling site. He or she is assisted by several Inspectors, and a Deputy, who has responsibility for the exterior of the site. ·
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It should be more clearly understood that Poll Watchers are designated representatives of a political party whose sole purpose is to determine whether registrants at a particular precinct have voted so that they may be contacted by the party organization and encouraged to vote. Poll Watchers should not endeavor to act beyond this very narrow scope of responsibility, and particularly should refrain from influencing the behavior of pollworkers or voters. To ensure these objectives, the Task Force makes the following recommendations:

1. Pollworker training should include instruction as to the role and scope of the Poll Watchers.

2. Upon arrival at the polling location, Poll Watchers should introduce themselves to the Clerk and a cordial line of communication should be established.

3. Poll Watchers should continue to be validated and certified through the Supervisor of Elections office and the political parties or candidates. As part of this certification Poll Watchers should be educated as to their roles and the roles of the pollworkers.

Absentee Balloting

Procedures and measures regarding absentee voting are almost entirely the province of state law, and the ability to make changes at the local level is limited. However, the Task Force found certain areas in which local process and procedure could be strengthened.

First, the Task Force fmds the Supervisor's system of designating "absentee ballot coordinators11 in nursing homes and similar institutions a commendable one and recommends that this process be expanded.

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Second, the importance of signature match should receive greater emphasis. As one measure, a reminder notice should accompany the absentee ballot, pointing out to the voter that his or her signature on the absentee ballot must match the signature on file with the Supervisor. Finally, absentee voters should be informed that, if a signature match is in doubt, witnessing ofthe signature by a Notary Public will guarantee its authenticity.
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IV. INCREASING PROCESS EFFICIENCY
The Task Force found numerous processes, systems and technology which were obsolete, inefficient, and had remained unchanged for decades. The Task Force believes that new paradigms must replace our old and discredited technology, personnel standards, and institutional structures. Importantly, the concept of continuous quality improvement should be introduced across all aspects of the electoral process.
Balloting Technology
The 2001 session of the Florida Legislature outlawed the use ofpunch card, paper and lever machine balloting, leaving counties the option of adopting precinct-level optical scanning or direct recording electronic (ORE) technology, also known as touch-screen. Either of these technologies will provide, among many other improvements, for the automatic identification of ballots cast for more than one candidate in a race, permitting the voter to recast the ballot, thus greatly reducing or even eliminating overvoting. The Legislature also provided one-time funding to counties for upgrading technologies, which in the case of Duval County will amount to approximately $1 million.
The Task Force carefully considered both technology options, hearing presentations from vendors, the Supervisor of Elections, and other authorities. It recommends that Duval County adopt precinct-based optical scanning technology for no more than two to four years, accompanied by a firm commitment to acquiring DRE technology thereafter. In reaching this conclusion, the Task Force considered the current state of technological reliability, state certification, and cost. It was also influenced by the possibility of recovering a substantial portion ofthe cost ofthe interim technology through leasing or otherwise recovering the residual value of the optical scan equipment.
Upgrading our voting technology should not be thought of, however, as simply executing this two-step process. Rather, there should be a commitment to continuous technology upgrades to accommodate the inexorable trends of higher number of voters, the increased
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mobility of our population, the growing linguistic diversity of the electorate, and the nottoo-distant prospect of "non geographic" voting where a voter may vote from any location in the county rather than his or her home precinct. Thus we must make a firm civic commitment to an ongoing investment in improved technology and effecting arrangements with vendors which will facilitate automatic upgrades of balloting equipment.
Election Day Communications
Among the most prevalent grievances which the Task Force heard regarding the November 2000 election was the inability of precinct workers to communicate with the central office of the Supervisor of Elections, particularly to verify registration. Accordingly, a number of registrants were denied the right to vote, and others voted who were not registered.
The Task Force endorses the Supervisor's plan to equip all precinct locations with laptop computers continuously connected to the central registration data bank. In addition to this modem connection, each laptop will have disk containing the entire voter registration roll, updated one week prior to the election.
In addition to the laptop computer initiative, the telephone bank at the central office should be strengthened on both election day and the days immediately prior thereto. This telephone bank should include operators trained and skilled in dealing with inquiries regarding polling locations, registration, and other voter information. The number of phone lines, and systems and procedures, should be adequate to deal with the potential demands upon it, ensuring that every citizen needing to get through does so.
Pollworker Development
Perhaps in no other area did the Task Force fmd greater potential for improvement than in the recruitment, compensation, training and development ofpollwotkers. Our
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standards for pollworkers have remained unchanged while technology, election complexity, and expectations as to customer service have advanced rapidly. The Task Force recommends that increased levels of performance be achieved in the following specific areas:
Standards and Expectations. For many years, there has been no change in the pollworker positions and our expectations of them. Compensation is low, training is insufficient, turnover is minimal, and diversity is lacking. A new vision is needed as to how our pollworkers should perform, how they are recruited and selected, and how they are trained and compensated.
Recruitment. While the Task Force recognizes and commends our many longserving pollworkers for their loyalty and effective service, it believes that an
active mix of new and old pollworkers is needed for the elections of the future.
Efforts must be made to recruit younger and more technologically savvy pollworkers, particularly given the recommendations as to communications and technology made elsewhere in this report.
Training. Existing training programs are insufficient even for current needs, much less to support the greater polJworker responsibilities envisioned by this report. The Task Force recommends that the existing video-based training session be replaced by a minimum of four hours of interactive instruction separately for Clerks, Inspectors and Deputies. Testing should be done to certify each class ofpollworkers. Continuing education oflesser intensity and duration should be required every two years.
Consideration should be given to contracting with a local training or educational institution to develop standards, curriculum, educational content, and testing and evaluation, and even provide instruction.

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Compensation. To attract and retain the higher level ofpollworker recommended, substantial increases in compensation must be offered. Additionally, a premium or bonus should be offered to pollworkers working outside of their precincts.
Diversity. Because of the low turnover among pollworkers, and the custom of pollworkers working only in their home precincts, there is little diversity as to age, gender, race and political party in many precincts. Deliberate, affmnative efforts must be made to bring fresh faces into each precinct and to provide greater diversity in the profile of pollworkers.
Role ofthe Clerk. Particular emphasis must be placed upon the importance of the Clerk position, and additional training given in management, supervision and customer service. In addition, the Clerk should be responsible for counseling and evaluating his or her Inspectors and Deputy. The Clerk should be held accountable for performance of his or her polling location in terms of quality improvement, feedback, and evaluation processes recommended elsewhere in this report.
Appearance. Consideration should be given to providing pollworkers with jackets, vests or other attire which identifies them as pollworkers, with a distinctive color for the Clerk. Name badges should be provided, perhaps containing a motto reflecting the customer service orientation of the pollworker position. A sign in each precinct should give the name of the Clerk.
Additional Management Level. Currently the 268 clerks report, in effect, to a single person, the Director of Operations. This is clearly an unmanageable span of control and provides no level of supervision between the central office and hundreds of precinct locations.
The Task Force recommends the creation of a new level of management between the director of operations and the clerks. Specifically, it endorses the Supervisor
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of Elections' proposal for 28 "Superclerks" in this position. Each ofthese managers would be responsible for approximately ten precincts (or one half of a council district). On election day, they would be responsible for general oversight, problem solving and adjusting manpower. They would have ongoing responsibility for performance evaluation and quality improvement in the precincts under their management.
Volunteer Pollworkers. As part of his efforts to upgrade polling location processes, and obtain greater volunteer support for the election process, the Supervisor of Elections has made two proposals, known as Adopt-a-Poll and Partners in Democracy. In the Adopt-a-Poll proposal, an entity such as a service club, corporation, or labor union would, on a volunteer basis, take responsibility for staffmg and operating an entire precinct location. Under Partners in Democracy, businesses would volunteer their employees- particularly those proficient in systems and technology - to work at a polling location on election day.
The Task Force does not support the Adopt-a-Poll proposal, believing that it would create the perception, if not the reality, of a special interest organization having control of the electoral process in a precinct, and perhaps influencing its outcome.
On the other hand, the Task Force strongly supports the Partners in Democracy concept and encourages the Supervisor of Elections to develop a program modeled after United Way's Loaned Executive program to recruit skilled volunteers as pollworkers. Notably, these pollworkers should undergo the same training and evaluation as their paid counterparts. Additionally, favorable public recognition should be given to the corporations loaning pollworkers.
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Fraud Prevention
The Task Force received testimony from the Supervisor of Elections that 34 cases of double voting occurred in the November 2000 election. Fifteen of these were found to be, by all reasonable evidence, instances of an elderly or forgetful individual inadvertently casting an absentee ballot weeks in advance ofNovember 7 and then voting in person on that date.
The remaining 19 cases were judged to be deliberate by the Supervisor. One of these was a voter who voted at two precincts on election day. The remaining 18 either voted absentee and then in person deliberately, or voted in person at the Supervisor of Elections office less than seven days before the election and again at the precinct. These 19 names were turned over to the Office of General Counsel which has held them in abeyance awaiting recommendations of the Task Force.
The Task Force fmds that 19 cases of double voting out of291,626 votes cast to be quantitatively insignificant, but qualitatively troubling, and strongly recommends that the Office of General Counsel tum the 19 names over to the State Attorney for prosecution, and that the Supervisor do so directly in all future elections, sending a strong signal to the public that fraudulent voting will not be tolerated.
Additionally, the Task Force endorses the Supervisor's plan to create an interagency antifraud task force to develop measures to detect and preclude attempts at double voting, ballot stuffmg, pollworker intimidation, votes for compensation and other illegal conduct.
Evaluation and Improvement
As has been mentioned throughout this report, the Task Force strongly recommends that formal measures be instituted for continuing evaluation of performance and improvement of quality throughout the electoral process.
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Clerks should be given responsibility for quality improvement and evaluating pollworkers for quality performance. Comment cards should be made available at each precinct for voter feedback.
A senior manager in the Supervisor's office should have responsibility for continuous quality improvement. This might logically be the same person who has responsibility for pollworker training and development.
In addition, the Task Force recommends the creation by ordinance of an Elections Advisory Panel whose members would be appointed by the Mayor and confirmed by the City Council. Its responsibilities would include review of ballot design, examination of the sample ballot to assure agreement with the actual ballot, review of voting instructions for clarity and accuracy, recommendations for polling sites, advice on voter and pollworker education, and acting as ombudsman for voting complaints.
The Advisory Panel would also have responsibility for measuring election effectiveness and reporting to the public after each major election cycle. This should be done using defined and measurable benchmarks, such as proportion of registrants who voted compared to previous cycles, number of provisional ballots issued and the number accepted and counted, number of ballots disqualified by category and by precinct, error rates found in motor voter registration requests by site compared to previous year's rates, and numbers of address change requests received from registered voters who have moved within Duval County.
Finally the Advisory Panel should measure and report on voter or community satisfaction with the election process, using voter comment cards, "secret voters," voter exit polls and community-based surveys, perhaps in conjunction with other poll- and survey-conducting organizations.
The panel should be given staff and professional resources to assist in carrying out its duties, and publishing its report following every major election cycle.·
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Supervisor of Elections Office
The Task Force found the Supervisor of Elections office to be capable of managing the
refonns envisioned in this report. The Supervisor has expressed commitment to the
goals and objectives ofthe Task Force and support for nearly all of its recommendations. Indeed, the Supervisor had begun a number of these proposed initiatives prior to the formation of the Task Force.
However, the Supervisor's office has been historically underfunded and understaffed, and will never be able to implement any of his or the Task Force's proposed initiatives without significantly increased budgetary support. In a comparison of the five largest Florida counties, Duval ranked fourth in per registrant spending for elections purposes and fifth in the ratio of elections personnel to number of registrants (see table below).

COMPARATIVE BUDGET DATA Supervisors of Elections- Major Florida Counties (FY- 2000)

County

Number of Registrants

Annual Budget

Per Amount
Registrant

Duval

424,630 $2,601,754 $6.13

Broward 887,764 4,937,360 5.56

Dade

902,464 6,593,111 7.31

Hillsborough 496,722 3,102,296 6.25

Orange

408,277 4,091,988 10.02

Office Staff

Number
19 59 68 24 42

Registrants per Staffer
22,349 15,047 13,271 20,697 9,721

Bringing Duval County's spending and personnel to the average of the other four counties would require additional spending of $400,000 per year and seven new positions. However, the other counties undoubtedly will increase their spending ·significantly to
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correct deficiencies, implement new technology, and prepare for the 2002 cycle. Thus, these figures should be viewed only as amounts needed to establish parity with our peer counties, above which funding for strategic improvements must be added.
Accordingly, the Task Force makes the following recommendations for organizational and budgetary improvement of the Supervisor ofElections office:
1. A minimum of three full time senior management positions should be established, one each for voter education, pollworker training and development, and technology enhancements. Subordinate positions should be established to support these new initiatives and to reinforce existing functions such as the telephone bank, election day operations, and voter registration efforts.
2. A new level of management should be introduced immediately above the level of precinct Clerk, and filled with twenty-eight part time workers.
3. The compensation of pollworkers should be increased, including greater differential for the position of Clerk, premiums for working out of the home precinct, and compensation for time spent in training classes.
4. Financial resources for enhancing voter education should be budgeted, including print materials, personalized sample ballots, demonstration units, media advertising and web site enhancements. (As one point of reference, Leon County spends $1.75 per registrant per cycle on voter education, compared to approximately $0.18 per registered voter in Duval County.)
5. Financial resources should be committed to upgrading the pollworker training and development process, including funding for recruitment, curriculum design, instruction, instructional materials, testing and evaluation, and possibly contracting with an educational institution for these services.
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6. These additional personnel and functions, as well as improvements and enhancements of existing operations, will require additional and reconfigured space, and additional equipment, for the Supervisor of Elections staff and operations.
7. Particular budgetary attention should be paid to the challenges of the 2002 election cycle in terms of voter education, redistricting issues, new precinct locations, and increased number of precincts.
8. Funding for new optical scan voting technology should be viewed as only the first step in a continuous process of technological enhancement. When Duval County is ready for ORE technology two to four years from the date of this report, a one-time expenditure in the range of five to ten million dollars will be required. Our elected leaders should not retreat from this requirement at that point, but should address it boldly and comprehensively.
The Task Force believes that, exclusive of item 8 and one-time funding for laptop computers, these recommendations will require additional funding in the range of $600,000 to $1 ,000,000 per year. Again, this amount is greater than that required to bring Duval to the average of the other four largest counties; however, we should not simply seek to be average, but must rectify the shortcomings of the past, seize upon the opportunities for improved technology, make our pollworkers the best in the state, and have voter education programs and results that are highly effective.
Historical forces - notably inattention and indifference toward election processes, lowcost punch card technology, and an unduly high tolerance for voting error- have kept costs low. This can no longer continue. Jacksonville's government, with a general fund approaching $700 million, can well afford the additional expenditures recommended herein; indeed, it cannot afford to do less.

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Canvassing Board
Like all Florida counties, Duval County has a Canvassing Board which is responsible for certifying election results, conducting recounts when required, and transmitting results to the Secretary of State. The Task Force found no evidence of incompetent or improper conduct by the Canvassing Board.
Under Jacksonville's charter government powers, the composition of the Duval County Canvassing Board was curiously altered in 1978 from the statewide norm which provides that the Board shall consist of three officials: the Chairman ofthe County Commission (in Jacksonville, the President of the City Council) or his/her designee, the Chief Judge of the County Court or his/her designee, and the Supervisor of Elections. In Jacksonville, these three elected officials plus the General Counsel constitute the Canvassing Board.
The Task Force believes that this anomaly is not justified and adds no value compared to the statewide model. Indeed, the opportunity for a deadlocked Board is presented by the even number of members, and the presence of one non-elected officer as a member seems inherently inconsistent. The Task Force recommends that local law be changed to make Duval County's Canvassing Board consistent with the statewide norm.
Perhaps more importantly, the absence of racial, gender or political diversity in the Canvassing Board is a matter of concern to the Task Force. The membership of the 2000 Board reflected no such diversity.
The Task Force believes that the City Council President and Chief County Judge can and should provide for racial, gender and party diversity through the exercise of discretion in making their appointments. The Task Force recommends that the City Council pass a resolution to this effect.
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Appendix A
INITIAL PLAN OF WORK
1. Registration Procedures. Enhance the accuracy of registration records, improve coordination with the Driver's Licenses Division, and examine the need for registration cards; the goal being to maximize the number of registrants, remove barriers to voting, minimize disenfranchisement, and avoid fraud.
2. Voter Education and Communications. Educate the public as to registration procedures, increase the publication and distribution of sample ballots, and improve education, outreach and communication with voters; again, the goal being to maximize registration and participation, and minimize faulty ballots.
3. Election Day Communications. Enhance communication between the Supervisor's Office and poll locations, to verify registrations, avoid turnaways, and prevent double voting.
4. Absentee and Provisional Ballots. Improve the availability of absentee ballots, particularly to overseas voters, (including possible electronic voting) insure accurate and prompt counting of absentee ballots. Provide provisional ballots for voters whose registration is in doubt.
5. Fraud Prevention Develop measures to prevent double voting, ballet stuffing or votes for compensation; insure free and unintimidated access to polls and voting.
6. Balloting Technology. Make recommendations for improved technology to replace punch card system, with emphasis on easy, accurate voting and avoidance of undervoting and overvoting.
7. Pollworker Recruitment and Training. Measures for recruiting and training high quality pollworkers, with emphasis upon the human as well as technical sides of poll administration.
8. Supervisor's Office. Consider making the position non-partisan, making the office civil service exempt, and enhancing the technological sophistication of the office and its personnel
9. Canvassing Board. Examine makeup of the Canvassing Board, and consider recommendations for improvement
Adopted by the Task Force on March 5, 2001, with the stipulation that this program of work may change, expand or otherwise evolve during the course of the Task Force's work.
38

Case 3:01-cv-01275-HLA-HTS Document 9 Filed 01/18/02 Page 73 of 131 PageiD 184

Appendix B SCHEDULE OF MEETINGS

Date & Location

Content

March 5, 2001 City Hall

Organizational matters, consideration of program of work and invited witnesses, establish meeting date schedule.

March 22, 2001 City Hall

Presentations by Raymond Reid, Esq., Office of General Counsel; Helen Howard and John Bolton, Division of Drivers Licenses; panel discussion on election process from party and campaign perspective by Republican and Democratic representatives.

March 29, 2001

Public Hearing

Bethel Baptist Church

April 5, 2001 City Hall

Presentations by John Stafford, Supervisor of Elections; Raymond Reid, Esq., Office of General Counsel; Tracey Arpen, Jr., Office of General Counsel; Eileen Wadding, Regional Voting Assistance Officer, U.S. Navy; Jack Gillrup, Division Chief, Disabled Services; Bobbie Probst, Jacksonville Council ofthe Blind; Jim Whittaker, The Arc Jacksonville; Legal Comments by Jason Teal, Assistant General Counsel

April 12, 200 I

Remarks by U. S. Congresswoman Corrine Brown

Edward Waters College Public Hearing

Aprill9, 2001 City Hall

Presentations by Pam Iorio, Hillsborough County Supervisor of
Elections; Lois Chepenick and Carla Marlier, JCCI; Dr. Matthew
Corrigan and Dr. Steven Baker, UNF-JU Political Science group.

April26, 2001 City Hall

Presentations by Allen Rushing, Duval County Schools; presentations regarding technology by representatives of Global Election Systems, Election Systems and Software, Inc., and Sequoia Voting Systems.

May 3, 2001 City Hall

Followup report from Helen Howard and John Bolton, Division of Drivers Licenses; report from Mary Ann Rosenthal and Gloria Einstein, League of Women Voters/National Council of Jewish Women; information from John Stafford, Supervisor of Elections; briefmgs from Jason Teal, Staff Director. ·

39

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,._.....

May 16, 2001 City Hall
May 23,2001 City Hall
May 31,2001 City Hall
June 7, 2001 City Hall
June 12, 2001 City Hall

Workshop to consider and synthesize testimony and fmdings, begin formulating recommendations. Continuation ofMay 16 workshop.
Continuation ofMay 23 workshop.
Review, consideration and revision of draft Final Report.
Review of revised draft Final Report, adoption of Final Report.

40

Case 3:01-cv-01275-HLA-HTS Document 9 Filed 01/18/02 Page 75 of 131 PageiD 186
AppendixC
PRESENTERS AND WITNESSES
Invited Witnesses
Tracey Arpen, Jr., Office of General Counsel Judy Arranz, Volunteer Coordinator, George Bush Campaign
Dr. Steven Baker, JU!UNF Political Science group
John Bolton, Division of Drivers Licenses Honorable Corrine Brown, U.S. Congresswoman Lois Chepenick, JCCI Clyde Collins, Esq., Chairman, Democratic Executive Committee ofDuval County
Dr. Matthew Corrigan, JU!UNF Political Science group
Gloria Einstein, League ofWomen Voters/National Council of Jewish Women Jack Gillrup, Division Chief, Disabled Services, City of Jacksonville Paul Griego, Election Systems and Software, Inc. Wayne Hogan, Esq., Attorney, AI Gore Campaign Reynolds Hoover, Esq., Attorney, Republican Party ofDuval County Helen Howard, Division of Drivers Licenses Pam Iorio, Hillsborough County Supervisor of Elections Lawrence Jefferson, Poll Watcher Coordinator, Republican Party of Duval County John Krizka, Sequoia Voting Systems Carla Marlier, JCCI John McLaurin, Global Election Systems Robert Phillips, Director of Operations, Duval County Supervisor of Elections Office Bobbie Probst, Jacksonville Council of the Blind Raymond Reid, Esq., Office of General Counsel Mary Ann Rosenthal, League of Women Voters/National Council of Jewish Women Allen Rushing, Duval County Schools John L. Stafford, Duval County Supervisor of Elections Eileen Wadding, Regional Voting Assistance Officer, U.S. Navy Jim Whittaker, The ARC Jacksonville
Public Hearing Witnesses
James R. Austin Marsha Berdit Richard L. Berry Helen C. Boyle Denise Buda Marsha Burdit .Leo Frank Bush
41

Case 3:01-cv-01275-HLA-HTS Document 9 Filed 01/18/02 Page 76 of 131 PageiD 187
'--""
Julie Ann Cumming Estrelita Davis Lannie Ross Davis Anne Davison Farrah Anne Farrah reading letter from Ann Horton Estelle Garner Althan Gibbs, Sr. Moses A. Henry, Jr. Tony Hill Wendy Hinton Patricia James Rahman Johnson Rev. Oscar Jones, Jr. Hon. Pat Lockett-Felder Mary Ellen Ludeking Barbara Mauney Shirley Myers Merrill Robertson Portia Scott Rhonda Silver Kimberly Stanford Larry Thompson Sandra Valdes Marcella Washington
42

Case 3:01-cv-01275-HLA-HTS Document 9 Filed 01/18/02 Page 77 of 131 PageiD 188
SUFFRAGE AND ELECTIONS CO~TTEE SECOND DRAFT

ARTICLE VI
SUFFRAGE AND ELECTIONS

1

Section 1. Secret vote -- direct vote -- choice by plu-

2

rality -- regulation of elections. -- All elections by the

3

people shall be by direct vote and by secret ballot. Elections

4

shall be determined by a plurality of votes cast unless a

5

majority vote shall be required by law. The legislature shall

6

enact laws to preserve the purity of elections, to preserve the

7

secrecy of the ballot, to guard against abuses of the elective

8

franchise and shall by law prescribe the conduct of elections,

9

requirements for write-in and absentee voting, methods of

10

voting, determination of election returns and procedure in

11

election contests. Recognition, regulation and nominating pro-

12

cedure of political parties may be provided by law. If the

13

Legislature shall provide for political party nominations, such

14

elections shall be by secret vote and direct ballot.

Case 3:01-cv-01275-HLA-HTS Document 9 Filed 01/18/02 Page 78 of 131 PageiD 189

1

Section 2. Voters -- qualifications registration.

2

Every citizen of the United States who is twenty-one years of

3

age, and who immediately preceding registration has been a

4

permanent resident for one year in the state and for such time

5

as provided by law within the county in which he applies to

6

register, shall upon registering be a qualified voter of such

7

county at all elections under this constitution, provided, how-

8

ever, the legislature may provide for voting in national

9

elections for president and vice president of the Unit~d States

10

by persons who have become residents of the State of Florida

11

but who have not yet fulfilled the residency requirements of

12

voters as to length or residency. The legislature shall provide

13

for registration of all voters, and may provide for registration

14

of voters outs'ide the territorial limits of the state, and no

15

person may vote unless registered according to law.

16

Section 3. Municipal Elections. -- All elections held by

17

municipal corporations or other governmental entities created

18

by law shall be by secret and direct vote and shall be determined

-2-

Case 3:01-cv-01275-HLA-HTS Document 9 Filed 01/18/02 Page 79 of 131 PageiD 190

""-"'

_/

1

by plurality of the votes cast unless a majority vote shall be

2

required by law. Qualifications for voters therein shall be

3

the same as otherwise provided in this constitution, provided

4

that requirements for residence within such corporation or voting

5

unit shall be the same as generally required by law for residence

6

within a county to be a qualified voter of that county.

7

Section 4. Oath of voters. -- Each voter shall subscribe

8

the following oath upon registering: "I do solemnly swear {or

9

affirm] that I will protect and defend the Constitution of the

10

United States and the Constitution of the State of Florida,

I

11

and that I am qualified to vote under the Constitution and

12

laws of the State of Florida."

13

Section 5. Disqualifications. -- No person convicted of a

14

felony or persons adjudicated mentally incompetent in this or

15

any other state and who have not had their competency judicially

16

restored, shall be qualified to vote or hold public office until

17

his civil rights are restored or his disability removed.

18

Section 6. General and special elections. -- A general

19

election shall be held in each county on the first TUesday

-3-

Case 3:01-cv-01275-HLA-HTS Document 9 Filed 01/18/02 Page 80 of 131 PageiD 191

1

after the first Monday in November of each even numbered year

2

to choose a successor to each elective state or county officer

3

whose term will expire before the next general election and,

4

except as provided herein, to fill each vacancy in elective office

5

for the unexpired portion of the term.

6

Special elections and referenda shall be held at the time

7

and in the manner provided by law.

8

Section 7. Reserved for the treatment of bond elections

9

and requirements for qualifying as a freeholder to vote in

10

bond elections.

)
ARTICLE XIX If horne rule be adopted, this article to be deleted7 otherwise, this article to be redrafted.
-4-

Case 3:01-pv-01\275-HLA-HTS Document 9 Filed 01/18/02 Page 81 of 131 PageiD 192

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MINUTES

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Suffrage and Elections Committee of the

Florida Constitution Revision Commission

February 2 & 3, 1966

T.he meeting of the Suffrage and Elections Committee of the Florida Constitution Revision Commission was called to order at 9:40 A. M. in the International Room of the International Znn, Tampa, Florida, on February 2, 1966.
The roll was called, and the following member; were present a
George B. Stallings, Jr., Chair.man Richard T. Earle, Jr. Warren M. Goodrich Richard A. Pettigrew
c. W. Bill ~ung
Chai~an Stallings welcomed the Commission Chairman, Hono' rable Chesterfield H. Smith, to the Co~ittee meeting and invited him to speak to the members. Mr. Smith clarified the Procedures which he desired the various committees to follow in the certification of philosophical issues to the full Commdasion. Be asked that the Committee study thoroughly their assigned
section• of the Constitution and to make changes which were nee-
. ,· essary,_ but at the same time not to eliminate provisions whic:h
::needed to be retained.

Case 3:01-cv-01275-HLA-HTS Document 9 Filed 01/18/02 Page 82 of 131 PageiD 193
Suffrage and E~tions Committee Meeting
February 2 and 3, 1966 Page TWo - Minutes
After a lengthy discussion of the procedure to follow in campletinq the Committee's overall objective, it was agreed that the questions to be certified for discussion to the full Commission should be drawn up first and then the group could begin work on .an initial dra£t of its proposal which is to be submitted to the Chairman of the full Commission by June 1, 1966.
Mr. Young moved that the Committee take up page la of Chair.man Smith's letter to Chair.man Stallings in the order as outlined and then go through the articles and sections one by one to determine if there are any provisions therein which should · be further discussed or certified to the full Commission for actual debate. ~e motion was seconded and carried.
~e following tentative list was selected for further examination in connection with the certification of philosophical questions to the full Commission:
Article VI, Sections 1, 2 and 5 Article XVII, All Sections Article XVIII, Section 10 Article XIX, All Sections Proposed Amendments
Senate Joint Resolution No. 115 House Joint Resolution No. 344 Article III, Section 7 Article XII Initiative and related matters
Mr. Goodrich moved that the Committee consider Article ~I, Amendments, as top priority in the certification of discussion questions to the full Commission. Mr. Earle seconded the motion, and it was adopted.

Case 3:01-cv-01275-HLA-HTS Document 9 Filed 01/18/02
Suffrage and ~tions Committee Meeting February 2 and 3, 1966 Page Three - Minutes

Page 83 of 131 PageiD 194

Mr. Goodrich moved that the Committee on Suffrage and Elections certify to the full Commission the following question: "Shall this Committee further consider, draft and propose a provision of the :ponstitution to provide for amendment of the Constitution by direct initiative of the electorate?" Mr. Young seconded the motion.
After discussion, the following substitute motion was
offered by Mr. Young: "Shall the Suffrage and Elections Committee
of the Florida Constitution Revision Commission consider a method whereby the electors of Florida will be able to initiate revisions, changes or amendments to their State Constitution?" This- substitute motion was seconded and adopted.
Mr. Goodrich moved that the Committee on Suffrage and Elections do certify the following question to the fulL Commission, to-wit: "Should the Committee on-Suffrage and Elections consider a provision of the Florida Constitution which would lower the voting age of electors in Florida?" The motion was seconded
by Mr. Earle, discussed by the Committee and was adopted.
After discussion on the Local opion provision, Article XIX, Mr. Young moved that this Committee request the Chairman of the full Commission to transmit this Article, for study only, to the Local Government Committee. He explained further it was his intention that this Committee would retain jurisdiction of the Article insofar as the committee assignments were concerned, and ~at the Chair.man of the Local Government Committee be sent a C?OPY. of this .. letter. The motion was seconded by Mr. Earle and was adopted.

Case 3:01-cv-01275-HLA-HTS Document 9 Filed 01/18/02 Page 84 of 131 PageiD 195
Suffrage and~ections Committee Meeting February 2 and 3, 1966 Page Four - Minutes
Mr. Goodrich moved that this Committee certify the follcwinq question to the full Conunission: "Should references to the levying of taxes for school purposes by virtue of special school elections be removed from the Constitution?" Mr. Younq seconded the motion, and it was adopted.
A copy of the questions to be certified to the full Commission is attached to these Minutes.
Mr. Young moved that the Suffrage and Elections Chair.man request the Commission Chairman to assign to this Committee, in addition to its present assignments, Article 3, Section 7. After discussion, the motion failed for lack of a second.
The other articles contained in the tentative list on page two hereof and not specifically endorsed were withdrawn from consideration for certification to the full Commission.
The meeting adjourned for lunch at 1:10 P. M., and reconvened at 2:30 P. M.
After consideration and discussion of a procedure to · follow in drafting the Committee•s proposal to submit to the full Commission by June 1st, Mr. Earle moved that the Committee recommend Article VI, Section 1 as prepared by the Legislature on Page 23 of the "Revised Florida Constitution Proposed by the Legislature and Explanation of Changes." Mr. Young seconded the motion.
Mr. Goodrich moved to amend by deleting the word "shall• in line 9 of section 1 and inserting 11may... The motion failed for lack of a second.

Case 3:01-cv-01275-HLA-HTS Document 9 Filed 01/18/02 Page 85 of 131 PageiD 196
Suffrage and b:z:.c:fctions Committee Meeting -February 2 and 3, 1966 Page Five - Minutes
Section 1 of Article VI was «dopted. Mr. Earle moved that Article VI, Section 2 be adopted by tbe Committee. The motion was seconded by Mr. Pettigrew. Mr. Goodrich moved that the last line in Section 2 be stricken. This motion was seconded and adopted. Mr. Earle moved that after the word "constitution" in lin& 9 of Section 2, the following sentence be added: "The Legislature shall by law define residence for voting purposes.• Mr. Pettigrew seconded the motion, and it was adopted. Mr. Pettigrew moved that the one year residency requirement.be stricken from the Constitution and that the Legislature be authorized to set the period, provided that the Legislature would not be able to set more than one year as a residence requirement. !here was no second, and the motion failed. Mr. Goodrich moved that Section 2 be amended by the addition of the following: "The Legislature may by law provide for special registration for voting for state and federal officers only for a registered elector who changes his residence from one county within the state to another and who at the time of registration has lived in the county less than six months.• After consideration and discussion by the Committee, Mr. Goodrich withdrew his motion.
Mr. Goodrich moved to amend Section 2 by striking the
words beginning on line 6 "and £or six months in the county in which he applies to register.. and insert "and for such time as provided by law within the county in which he applies to register.• ~e motion was seconded and adopted.

··Case 3:01-cv-01275-HLA-HTS Document 9 Filed 01/18/02 Page 86 of 131 PageiD 197
Suffrage and ~ctions Cornrni ttee Meeting / February 2 and 3, 1966 Page Six - Minutes
Mr. Pettigrew moved that in line 9 of Section 2 following the word "c::onstitution" the following be added: "provided, however, the Legislature may provide for voting in national elections for president and vice president of the United States by persons who have become residents of the State of Florida but who have not yet fulfilled the residency requirements of electors • " The motion was seconded.
Mr. Goodrich moved to amend Mr. Pettigr~·s motion by adding after "electors" the words "as to length of residency.• Mr. Goodric::h •s amendment was accepted by Mr.. Pettigrew, following which Mr. Pettigrew's motion was adopted.
Section 2, as amended by the Committee, was then adopted. Mr. Earle moved that Section 3 of Article VI be adopted by the Committee. The motion was seconded. After discussion, Mr. Young moved that beginning on line 8 of Section 3 the words "one year and of the county for six months" be deleted and the following inserted: "the time presc::ribed by this Constitution and law." Mr. Earle seconded the motion, and it was carried. Mr. Earle moved that in line 2 of Section 3 the word "take" be changed to "subscribe." This amendment was seconded and carried. Section 3 was adopted by the Committee without further amendments. Mr. Earle moved that Article VI, Section 4 be adopted by the Committee on Suffrage and Elections. The motion was seconded.

Case 3:01-cv-01275-HLA-HTS Document 9 Filed 01/18/02 Page 87 of 131 PageiD 198
Suffrage and~ections Committee Meeting / February 2 and 3, 1966 Page Seven - Minutes
Mr. Pettigrew moved to amend Mr. Earle's motion by striking "judicially determined to be of unsound mind, or under judicial guarpianship because of mental disability" and to substitute therefor "persons adjudicated mentally incompetent." This motion was seconded and passed.
Mr. Pettigrew moved to further amend Section 4 by adding to his previous amendment: "in this or any other state and who have not had their competency judicially restored." This amendment was seconded and also passed.
After considerable discussion, Mr. Pettigrew moved that Section 4 be deleted and the following inserted: "The Legislature may by law establish disqualifications for voting for mental incornpetency or convication of felony." The motion was seconded.
Mr. Goodrich offered the following substitute motion to Mr. Pettigrew's motion: Delete Section 4 and insert: "The Legislature may by law exclude persons from voting because of mental incompetence or commitment to a jail or penal institution." After discussion, Mr. Goorich's motion failed for lack of a second.
The vote was then taken on Mr. Pettigrew's motion, but it failed of adoption.
Mr. Goodrich moved that the word "felony" in line 2 of Section 4 be changed to "crime." The motion failed for lack of a second.
The Committee adopted Section 4 of Article VI with no further amendments.
Mr. Earle moved the adoption of Section 5 as the Cammittee's proposal.

Case 3:01-cv-01275-HLA-HTS Document 9 Filed 01/18/02 Page 88 of 131 PageiD 199
Suffrage and,~ctions Committee Meeting
February 2 and 3, 1966 Page Eight - Minutes
Mr. Goodrich moved that the last sentence in the first paragraph of Section 5 be stricken. The motion was seconded and carried.
Section 5, as amended, was adopted by the Committee. Mr. Goodrich moved that the Committee strike from further consideration Section 6 of Article VI, which motion was seconded and carried. By mutual agreement the Committee accepted Sections 1, 2, 3, 4 and 5 of Article VI as amended as its first draft of the proposal to be sUbmitted to the Commission by the June 1st deadline. The Committee proceeded to check the various sections of the present Constitution to. insure that no sections were omitted. Mr. Pettigrew moved that in Section 2 of the Legislature's proposal after "shall upon registering be a qualified elector of such county" that "and shall have the right to vote" be inserted. There was discussion on the subject, but the motion was left pending. The meeting was adjourned at 5:30 P. M. to reconvene at 9:00 A. M. the following morning.
Chair.man Stallings called the Committee to order at 9:15 A. M., February 3, 1966. All members were present.
The Committee decided upon March 30 and 31 as the tentative dates for its next meeting, subject to the approval of the Commission Chair.man. Mr. Young offered. to make arrangements for accommodations in St. Petersbu~g, and it was agreed that the

Case 3:01-cv-01275-HLA-HTS Document 9 Filed 01/18/02 Page 89 of 131 PageiD 200
Suffrage and E~tions Committee Meeting February 2 and 3, 1966 Page Nine - Minutes
Committee would prefer the meeting held there. Members will be notified of specific details at a later date.
Mr. Anthony A. Maisano, Administrative Assistant to the Repu~ican State Executive Committee of Florida was recognized and expressed the desire of the R~publican Party to submit a proposal and suggestions in writing for the Suffrage and Elections Committee to consider. Mr. Stallings replied that the general Chairman, Mr. Chesterfield Smith, has planned a schedule of public hearin~s for such presentations as the public would care to make, but that the Commission would be happy to accept suggestions at any time.
Representative Bob Mann of Hillsborough County, present in the audience, welcomed the Committee to Tampa.
Discussion was resumed on Mr. Pettigrew's motion concerning the right of a person to vote being specified in the Constitution.
Mr. Goodrich offered the following substitute motion: "That the Commit~ee on Suffrage and Elections request the Chair.man of the full Commission to ask the Committee on Human Rights to deter.mine how this freedom can be used in the Declaration of Rights. Mr. Earle Seconded the motion.
Mr. Goodrich then moved that all pending motions be laid on'the table. This motion was seconded and adopted.
Mr. Pettigrew introduced Mr. William Garcia, President of the Young Democratic Clubs of Florida, who was present in the audience.

Case 3:01-cv-01275-HLA-HTS Document 9 Filed 01/18/02 Page 90 of 131 PageiD 201
Suffrage and ~ctions Committee Meeting ~February 2 and 3, 1966 Page Ten - Minutes
An extensive discussion then followed concerning municipal elections. It was suggested than an invitation be issued to municipal clerks and county supervisors of registration to attend the next Committee meeting to discuss the problems connected with municipal elections.
Mr. Pettigrew moved that following the last section of the Suffrage and Elections provision, the Committee reserve at this time a section tentatively for purposes of providing uniform residency requirements and qualification provisions for electors within municipalities and all other political subdivisions of the State other than county and state. The motion was seconded, and Mr. Goodrich moved to amend the same by including "and that the unifor.mity conform with whatever residence requirements are required by the Legislature for an elector in a county." The amendment was acceptable to Mr. Pettigrew.•
Mr. Young moved to amend as follows: "''hat this subject contained in the main motion be a continuing. order of business . of this Committee to be placed on the agenda for our next committee meeting and that notice of the Committee's intention be given to supervisors of registration .and city officials with an invitation for them to appear or suggest in writing their thoughts on this general subject.• Mr. Pettigrew accepted the amendment to ·his motion.
Mr. Pettigrew agreed to temporary passage of his motion in order for some drafting to be done.
Mr. Pettigrew moved that a section following the municipal provision be reserved to treatment of bond elections and

Case 3:01-cv-01275-HLA-HTS Document 9 Filed 01/18/02
Suffrage and ~tions Committee Meeting February 2 and 3, 1966 Page Eleven - Minutes

Page 91 of 131 PageiD 202

requirements for qualifying as a freeholder to vote in bond elections. ~e motion was seconded and adopted.
Mr• Goodrich proposed the following substitute motion: "~at a new section be created between existing Sections 2 and 3 of the proposed revision of Article VI which was passed yesterday and renumbered to read as follows and that thereafter the procedure outlined in Mr. Young's motion be followed: 'All elections be~d by municipal corporations or other governmental entities created by 1~ shall be by secret and direct vote and shall be · dete~ined by plurality of the votes cast unless a majority vote shall be required by 1~. Qualifications for electors therein shall be the same as othe·rwise provided in this Constitution, pr9vided that requirements for residence within such corporation or voting unit shall be the same as generally required by law for residence within a county to be a qualified elector of that county. • "
Mr. Stallings explained that the substance of the main motion had, in effect, been combined with Mr. Goodrich's motion, which was then seconded and passed.
It was agreed that an invita~n to appear at the next me~ting of the Committee to discuss this subject be issued to the following groups:
League of Municipalities Clerks of Circuit Court Supervisors of Registration Boards of County Commissioners Representative of the Attorney General Representative of the Secretary of State Mr. Goodrich requested that the representatives of the Attorney General and the Secretary of State be asked to speci-
fically research the following question: 11What woul.d be the

Case 3:01-cv-01275-HLA-HTS Document 9 Filed 01/18/02
Suffrage and ~ctions Committee Meeting February 2 and 3, 1966 Page Twelve - Minutes

Page 92 of 131 PageiD 203

effect upon existing municipal charters which would be in conflict with this new constitutional provision in view of the fact that it is an antecedent grant of power by· a governmental body then not under such prohibition as this?"
It was agreed that Mr. Stallings would, upon approval of the Conunission Chairman, notify the Chainnan of the Local Government Committee, Senator Gautier, by copy of the ·letter requesting_ research from the Attorney General ana the Secretary of State that the Suffrage and Elections Committee is studying t.pis area.
Mr. Pettigrew requested Mr. Duden of the Secretary of State's of~ice to research by the next Committee meeting the subject of write-in provisions in the Constitution; the specific court decisions; and any opinion of the Attorney General in this area. He further asked Mr. Duden to bring. any'" materials or proposals studied in this regard by the previous Interim Elections Committee.
Mr. Earle suggested that the Committee go back to the committee assignment section by section to insure that no section has been omitted inadvertently•.
Mr. Joe Fuller of the Democratic Committee, who was in the audience, was.recognized by the Chair.man.
A£ter a general discussion, Mr. Stallings assured the Committee that any items this Committee felt were of concurrent jurisdiction would be brought to the attention of the Steering Committee· at its March 4th meeting.

Case 3:01-cv-01275-HLA-HTS Document 9 Filed 01/18/02 Page 93 of 131 PageiD 204
Suffrage and ·~~tions Committee l-1eeting February 2 and 3, 1966 Page ~irteen - Minutes
Mr. Pettigrew suggested that the following be added after the first sentence in Section 1 of Article VI of the Committee's proposal: "The Legislature shall enact laws to preserve the purity of elections, to preserve the secrecy of the ballot, to guard against abuses of the elective franchise and shall provide by law for the conduct of elections, requirements for absentee voting, methods of voting, deter.mination of election returns and proce-· dure in election contests."
Mr. Earle moved that the Committee defer action on this Section 26 of Article III, which was the same general subject matter as Mr. Pettigrew's motion, until the next meeting. The motion was seconded by Mr. Goodrich, but it failed of adoption.
Mr. Pettigrew moved that Section 26, Article III be
deleted and ~nd the proposed Article vx, Section 1 to read:
"Unless otherwise provided herein, all elections by the people shall be by direct~te and shall be detexmined by a plurality of votes cast. The Legislature shall enact laws to preserve the purity of elections, to preserve the secrecy .of the ballot, to guard against the abuses of the elective franChise and shall prescribe by law for the conduct of .elections, requirements for absentee voting, methods of voting, detel:lll~ation of election returns and procedure in election contests. Recognition. regulation and nominating procedure of political parties shall be provided by law. n
Mr. Young seconded the motion. Mr. Goodrich raised a point or order that Mr. Pettigrew's motion would have to be a motion to reconsider, which would require

Case 3:01-cv-01275-HLA-HTS Document 9 Filed 01/18/02 Page 94 of 131 PageiD 205

Suffrage and "--'ctions Committee Z.ieeting

February 2 ana-j, 1966

,j

' Page Fourteen - Minutes

a twp-thirds vote. Mr. Stallings ruled the point not well taken.
There was no further discussion on the motion, ana it was
adopted.~
It was noted that Section 27, Article III was deleted intentionally.
Mr. Earle brought to the attention of the Conunittee that Section 6 of Article VI had been eliminated, which was agreeable to the Committee.
It was the consensus of the group that the remainder of Article v.% had either been covered or eliminated purposely.
It was agreed that Article XVI, Section 8 bad been covered, and Section 20 omitted.
Article XVII has been certified to the Commission. In Article XVIII, Section 7 has been omitted: Section 9 covered: ·section 10 omitted: Section 14 omitted. Mr. Pettigrew suggested that Article XIX should be redrafted upon further study. The proposed amendments have been covered. Mr. Young requested Mr. Duden to prepare a resumt! comparing the previous provisions in the Constitution which were assigned to this Committee and the revisions proposed by the Committee during this work session -- something similar to the manner in which he indicated the changes in the proposal of the Interim Elections Committee. Mr. Duden agreed to prepare this to be transmitted to the members. Pursuant to Mr. Earle•s request for research infor.mation prior to the next meeting concerning all aspects of initiative

Case 3:01-cv-01275-HLA-HTS Document 9 Filed 01/18/02 Page 95 of 131 PageiD 206
Suffrage and ~ctions Committee Meeting _/ February 2 and 3, 1966 Paqe Fifteen - Minutes
and referendum, Mr. Stallings stated he would request Dave ICerna, Director of the Legislative Reference Bureau, to submit to the Committee a study report of this issue •
.Mr. Goodrich b~ught to the attention of the Committee that •secret• in line 4 of Article VI, Section 1 had been omitted. It was decided that this particular quest.ion,:"could be brought up a the· next meetillg when all members had their typewritten proposals
before them.
T.bere b$ing no further discussion, the meeting was adjourned. ·at 11:30 A. M.
APPROVED:

Case·3:01-cv-01275-HLA-HTS Document 9 Filed 01/18/02 Page 96 of 131 PageiD 207
Qr UESTIONS TO BE CERTIFIED TO THE FULL COMMISSION BY THE SUFFRAGE AND ELECTIONS COMMITTEE

1. Shall the Suffrage and Elections Committee

consider a method whereby the electorate of Florida will be

able to initiate revisions, changes or amendments to their

State Constitution? TOP PRIORITY

(Article XVII)

2. Should the Suffrag~ and Elections Committee consider a p~vision of the Florida Constitution which would lower the voting age of electors in Florida? (Article V7, Section 1)

3. Should references to the levying of taxes for school. purposes by virtue of special school elections be removed from the Constitution? (Article XII)

Case 3:01-cv-01275-HLA-HTS Document 9 Filed 01/18/02 Page 97 of 131 PageiD 208 Page 1 of3

# 99 II-7 .1000

August 25, 1993

xxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxx
XXXXXXXXXX, Florida XXXXX
RE: Complaint Number XXXXXXXXXX {formerly XXXXXXXXXXXXX
Dear Ms. XXXXXX:
This constitutes our Letter of Findings with regard to your complaint against the Supervisor of Elections, Pinellas County, Florida, under title II of the Americans with Disabilities Act {ADA), which prohibits discrimination against qualified individuals with disabilities on the basis of disability by State and local governments. Specifically, you allege that the Supervisor of Elections of Pinellas County does not provide Braille ballots or an electronic system of voting, such as voting by telephone, to blind voters. You further allege that the present system of providing assistance at the polling place does not allow a blind voter to cast a secret ballot.
The Civil Rights Division has completed its investigation of your complaint. Our investigation revealed that the Supervisor of Elections of Pinellas County follows the Florida statute {Chapter 97.061, F.S.), which requires the following provisions for voters with visual impairments: 1) the assistance of any two election officials at the polling place; or 2) the assistance of any one person of the individual's choice. Pinellas County also provides a magnifying lens at polling places. In a telephone conversation with our office, Ms. Dorothy Ruggles, Supervisor of Elections, stated that when a blind person comes to the polling place to vote, the poll workers offer a choice of allowing someone the person knows or two poll officials to assist in casting the ballot.
Legal Requirements
The Department of Justice's regulation implementing title II provides that a public entity must ensure that its communications with individuals with disabilities are as effective as communications with others and must furnish appropriate auxiliary aids and services where necessary to afford an individual with a disability an equal opportunity to participate in, and enjoy the benefits of, a service, program, or activity conducted by a public entity. 28 C.F.R. 35.160. A public entity is not required to take any steps that would result in a fundamental
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alteration in the service, program, or activity or in undue financial and administrative burdens. 28 C.F.R. 35.164

In determining what type of auxiliary aid or service is

necessary, a public entity must give primary consideration to the

requests of the individual with a disability, that is, the public

entity must provide an opportunity for individuals with

disabilities to request the auxiliary aids and services of their

choice and must honor that choice unless it can demonstrate that

another effective means of communication exists or that provision

of the aid or service requested would result in a fundamental

alteration or in undue financial and administrative burdens. 28

C.F.R.

35.160(b) (2); 35.164.

Discussion

The Pinellas County Supervisor of Elections provides magnifying lenses and readers for individuals with vision impairments seeking to vote. The election procedures specify that an individual who requests assistance will be assisted by two poll workers, or by one person selected by the voter. Your complaint alleged that the provision of assistance to an individual who is unable to fill out a printed ballot is inadequate because it does not allow a blind voter to cast a secret ballot. A Braille ballot, however, would not meet your objective of keeping your vote secret, because it would have to be counted separately and would be readily identifiable. Also, electronic systems of voting by telephone that meet the security requirements necessary for casting ballots are not currently available.

Although providing assistance to blind voters does not allow the individual to vote without assistance, it is an effective means of enabling an individual with a vision impairment to cast a ballot. Title II requires a public entity to provide equally effective communications to individuals with disabilities, but "equally effective" encompasses the concept of equivalent, as opposed to identical, services. Poll workers who provide assistance to voters are required to respect the confidentiality of the voter's ballot, and the voter has the option of selecting an individual of his or her choice to provide assistance in place of poll workers. The Supervisor of Elections is not, therefore, required to provide Braille ballots or electronic voting in order to enable individuals with vision impairments to vote without assistance.

Based upon the facts and legal requirements discussed above, we have determined that the Pinellas County Supervisor of Elections is not in violation of title II with respect to the issues you have raised. If you are dissatisfied with our determination, you may file a private complaint in the appropriate United States District Court under title II of the ADA.

You should be aware that no one may intimidate, threaten, coerce, or engage in other discriminatory conduct against anyone who has either taken action or participated in an action to secure rights protected by the ADA. Any individual alleging such harassment or intimidation may file a complaint with the Department of Justice. We would investigate such a complaint if

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Case 3:01-cv-01275-HLA-HTS Document 9 Filed 01/18/02 Page 99 of 131 PageiD 210
Page 3 of3
the situation warrants.
Under the Freedom of Information Act, 5 U.S.C. 522, we may be required to release this letter and other correspondence and records related to this complaint in response to a request from a third party. Should we.receive such a request, we will safeguard, to the extent permitted by the Freedom of Information Act and the Privacy Act, the release of information which could constitute an unwarranted invasion of privacy.
If you have any questions, please contact Linda King at (202) 307-2231.
Sincerely,
Stewart B. Oneglia Chief
Coordination and Review Section Civil Rights Division
1 This interpretation is consistent with long-standing interpretation of section 504 of the Rehabilitation Act of 1973, which prohibits discrimination on the basis of disability in federally assisted programs and activities. See the discussion of the general prohibitions of discrimination in the preamble to the Department's title II regulation at 56 FR 35,703 and the analysis of the Department of Health, Education, and Welfare's original regulation implementing section 504 (later transferred to the Department of Health and Human Services) at 45 C.F.R. pt. 84, Appendix A.

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Case 3:01-cv-01275-HLA-HTS Document 9 Filed 01/18/02 Page 100 of 131 PageiD 211
APR-25-2001

·' Nc. 97•ll.S5

IN nm 'CNITEC S'rATES ComtT OF APPEALS

· FOR TBE SIX'I'R CIRctTIT .

. · . . -~·

.....:··

. •..
~-.·

.·

·.:. ·:.·

.....

...
- . i• •..: •• ·: :. :
•- ·'-+

. ....

.. : :· . :
...·· '··

·~ • • I o '. '. ·:. ,; ·,,
·J.:. ·.· :· .. ·.· .··. t.

..

.. : ~· .,

'·

••

~ 10 \• • ,,' \ •

I ,·

.. •.

·. .-...:.;.··.:_.:. . .

·. .

.•

. ..

·:;:....

. . 1 ·::-- •

··..'···..-..· _;:

.....:

....
. ..

- ·.:··..:...

' :

Case 3:01-cv-01275-HLA-HTS Document 9 Filed 01/18/02 Page 101 of 131 PageiD 212

TABLE OF COH'l'EHTS

INTEUST OF THE ONITEO STATES

'AGE

. .

. .1

STA'l'BMDT OF TBE ISSiJE STA'l"SMBHT OF THE CASE • . SOMMAR.Y OF AltGUM!N'l' • • .

- • •2

• • •2

..

. .s

AllGOMSNT:

. . . . . . . . . . THE DIS'l'R.ICT CO't;lR.T ElUttD BY
DISMISSING PLAIN'l'IFFS I COMPLAIN"l'

• - •7

A. Plaintiffs Have Stated A Claim That Miehigan•s Voting Assis~ance Procedures niscriminatorily Deny Blind Voters Ballot Secrecy In Violation Of The ADA • •. • . • . . • . . . 8

B. The ADA's Requiremen~s Of Voting

Accessibility Are Not Limited Sy·

The Less Protect:ive .aequiremenes Of

Pre-ADA Statutes

. . •. .•.

12

c. Discriminatory Denial Of Ballot Secrecy

Violates The ADA Even If It Does Not

Result In Complete Denial Of The Franchise

17

CONCLUSION

. . . . . . . . . . . . . . . .. .

20

TABLE 01' Atrrl!OltiTUS

CASES:

Belcher v. Maygr of Ann Arbo~, 262 N.W:2d l

(Mic:ll. 1978) • • • . • • • • •

1S·

Bnckl~-~·--.YaJeo, 424.tT.S. __ l .(197') • • • _ •..• _. -·-·---...;..----20 - - · -

. . . . . . . Jlnrson v. Freoman, 504 U.S. 191 (1.9.92)

. .- .

l..9

columbia Natpral Resoprc·es Inc v. Tatum, sa F.Jd 1101 (6th Cir. 1995), cert. denied,
s. 116 Ct. 1041 (1996) • . • • . • • • • - • • • • • • 7 I 12

-i -

Case 3:01-cv-01275-HLA-HTS Document 9 Filed 01/18/02 Page 102 of 131 PageiD 213

FIPR-25-201211 14: 56

_j202 312159775 p .1214/33

C1SZS (continued):

PAGE

crgwde~ v. Kitagawa, B~F.3d 1480 (9th Cir. 1996)

18, l.9

Ellenwood v. Exxon Sbi~1ng Co , 984 P.2d 1270

(lst Cir.}, cere. denied, SOB u.s. 981 (1993)

15

Innovative Health sys Inc v. City gf White
Plains, 931 F. Supp. 222 (S..D.N.Y. 1996)
Llghthourn v. QQpnt¥ Qf El Paso, 904 F. Supp.
1429 (W.D. Tex. 1995) . • . . • . .

13, 19
.·
8, 10, 16, l.9

Mcintyre v. Ohio llecricns Cqmm•n, llS s. ce.

l.Sl1 (1995) . • • . •

l.9

Morton v. Mancari. 417 u.s. 535 (1974)

14

. . . . - . Oak E;dg~ care Ctr . Inc v. F. Supp. 867 (E.D. Wis.

Racine Crn1nry,
1995).

896.

. .

·19

. . . . . Staron v. McPona,d•s COrp , 51 F.3d 353 (2d Cir. 1995) . . . •

. . . .

. .

15

Ccnstitu~ion of th~ Onited States:

Equal Pro~ection Clause

l.9

Mi~. const., Art. J. § 4 . .

• 2, 19

Americans with Disabilities Act of 1990, Title II (ADA) • • •

pessjm

42 U.S.C. l.2l.Ol(b} (1) ·• • • • • • . • • •
42 u.s.c. 12l.3l. ~ ~ •••• 42 u.s.c. l.2l.3l(l' 42 o.s.c. 12132 ••

~5
. l, 3 • • . 8 • _9, 14, ~a

42 tT.S .'C. 12133 • • • • • •
42 u.s.c. 12134 •••••••.
-·-------4.2 U.S.C.·1220l(a)- .--.-.-.·-.-- ••.
42 u.s.c. 12201Ca) (3) •• 42 u.s.c. 12201(b)

. a

.. • .•

. 9

-------~---.-a----·

l.6 15

. . . . Rehabilicaeion Act cf ~~73, Se~tion 504,
29 u.s.c. 794 ••••••••••••• . .

. . passim

- ii ..

Case 3:01-cv-01275-HLA-HTS Document 9 Filed 01/18/02 Page 103 of 131 PageiD 214
~ 3059775 P.0S/33

STAm"rBS (cc=.ti=.uec!) s

PAGE

Voting Accessibility foe the Elderly and
Handicapped Ace, 42 u.s.c. 1973ee ~ ~ 42 u.s.c. 1973ee-6(1) •.••.••.••

passim
• • •4

. . Vo~ing Rights as amended,

Ae 42

tu.o.sf.c1.96159, 7S3aeac-t6io

n

208, ..•

. . . . M.C.L.A. § 168.751 (Wes~ 1989}

. . . . .

. •

passim
• • •4

UGM.A.'l'IOH'S :

. . .. .. . 29 C.P.R. Pt. 35, App. A 5 35.102
28 C.F.IL Pt. 35, App. A § 35.130

. .

28 C.F.R. 35 .130 (b) (l)
. . . 28 C.F .JL :u .13 0 (b) (1)
. . . . 28 C.F.R. 35.l60(a)

. .

28 C.F.R.. ~5 .160 (b) (l)

. . . 28
29

C.!".R. C.P.R.

35 .160 35.164

. (lJ)

(2)

.. .. .. .. . .

. . . .

.

-;

.

. .139
9, 10

. . .

9., .109

10, l.l

l.O, ll.

10

Fed. R. Civ. P. l.2(b) (6)

• . • • • • . • 4, 6, 7, l.2

LEG:tSU1'IVE EISTOltY:

H.R. Rep. No. 485, Part 2, 10l.s~ Cong.,

2d Sess. (1990) • • •

13

. . . . . . . H.R. Rep. No. 485, Part. 3, 101st Ccng., 2d Sess. (~990) . • • . • . • • • •

. . . 15

E R

Ac:t gf 1 9&9 • Hetring Before the SpJ:u;gmm

... gn Select Edycarjgn of tbe Hgyse Camm gn
£dllcation & I.ahgr, l.Ol.st C:cng., 1st sess. (1.989}

l.6

.. .

l.6

135 Ccng. Ree. 510753 (1989}

. . .

~6

135 Ccng. Rec. S~0793 (lgag)

l.7

- iii ...

Case 3:01-cv-01275-HLA-HTS Document 9 Filed 01/18/02 Page 104 of 131 PageiD 215
~ 3059775 P.06/33

laSCET*\REOUS :

ADA Title II Teehnical~ssistance Manual, 19~4

SUpp. I 5 II-'7 .1100 • • • . . • . • .

11

.·

iv

Case 3:01-cv-01275-HLA-HTS Document 9 Filed 01/18/02 Page 105 of 131 PageiD 216

Ht-'~-zs-•=~~H. .1.4; ::>b

~..:w 1J1<:,

~ ..lli:l::>'::f('(:J
---./

1-'.~'(/~

IN TBE ONITED STATES COtmT OF APPEALS
P.QR THE SIX'l'B CI:R.CUIT

No. 9"7·1155
KING NELSON, ee al.,
Plaintiffs~Appellanes,
.·
v.
CANDICE s. MILLER, in her official capaciey as
Secretary ~f Seaee for the Sta~e of Michigan,
Defendan~·Appellee.

ON APPEAL FR.OM THE ONITED STATES DISTRICT COORT FOR THE WESTERN DISTRICT OF MICHIGAN

BRIEF FOR THE CNITm STATES AS AMICUS COR.IAE

!N'l'ElU:ST OF THE tlNITEO STATES

This case involves ehe relationships amcng feu: staeutes

enforced by the United Staees: section 504 of ehe Rehabilitation

Act of 1973, 29 U.S.C. 194 (Section 504); Sec~ion 208 of the
Vocing Rights Act of 1965, as amended, 42 u.s.c. 1973aa-6 (Sec·

tion 208); the Voting Accessibiliey fer the Elderly and Handicap-
ped Act, 42. u.s.c. 1973ee ~ ~ CVc~ing Accessibility Act); and

Title II ~f the Americans with Disabilities Act of 1990; 42

------·- tT .s .c.

1-2-1·3-1- ~ ·- ...~

..(ADA- T...i.tle

_;Il!.

..~e-~s~r;c1;.scurt .effec..;..·-.

tively held that the ADA and Section 504 do net impose any

requirements regarding veting accessibiliey beyond those imposed

by the Vo~ing Accessibility Act and .Section 208. That holding,

if affirmed, could signifieant~y affect the government's enforce-

ment responsibilities unaer these statutes.

Case 3:01-cv-01275-HLA-HTS Document 9 Filed 01/18/02 Page 106 of 131 PageiD 217
----.......-202 3059775 p. 08/33

·.

- 2-

STATEMEN'r OF THE ISSU'E

Wheeher ehe district court properly dismissed plaintiffs'

ecmplaine alleging that the failure to provide a means for blind

voeers to cast seeret ballots violated the Americans with Disabi-
.•
lities Act (ADA) and section 504 of ehe Rehabilitation Ace

(Section 504) •

STATEMENT OF THS CASE

1. This ease arises en the pleadings. Plaintiffs are six

blind Michigan voters. They are suing on behalf of all legal

voters in the state •who are blind or visually impaired and are

in need of appropriate modifications to the voting procedures ~

order eo exercise their fundamental constitutional right to vote
and to do so tly secret ballCit" (R. 1: Complaint at 7 (1 3s) ) .l'

Tbey challenge Miehiganrs procedures for assisting blin~ or

visually impaired voters. Onder those procedures, voters who are blind or visually impaired may receive the assistance of either

two poll officials or an individual of their choice in marking

their ballots CR. l a~ 4 {, 19)). The state does not, however,

•provide them with a ~allot or voting system which would a~low

them to read.ana mark the vcte in private• {R. 1 at 4 (1 2l)).

-state·, s ··---- -· Pl.aineiffs ·ccntena tl1a£· ihe

prccedure;-imp~~-.-s-s_ib_l_y_

deprive tllind or visually impaired people of the right to vote by

secret ballot -- a right guaranteed to all other Michigan citi-
%ens (R. l at S-6 C1, 29-34)). See Mich. Const., ~. 3, § 4.
on In addition to the intrusion secrecy inherent in having a

,;,.-.R. • refers to entries on the district court •s docket sheet.

Case 3:01-cv-01275-HLA-HTS Document 9 Filed 01/18/02 Page 107 of 131 PageiD 218

APR-25-2001 14: 57

- _/.202 305'3775 p. 0'3/33

- 3-
third party presenc in fhe voting booth, one plaintiff alleges ehat an election worker •shouted out her voting ~oice in front
of ocher voters present at the polling placeR (R. l at s ,, 23)).
Plaintiffs seek ,allots in a format which woUld allow them ebe
right to voce by secret ballot" (R.. l at 6 C1 34) )-·. They allege
that •inex:pensive technologies that are currently in commercial
useR such as ~raille~ ~allot overlays or templates, taped text or phone-in voting systemsR would •permit persons who are ~lind
to read and mark ballots without involving a third party• CR. l at 6 (, 34) ) .
2. on September 26, 1596, plaintiffs brought this suit in
the Ois~rict Court for the Western District of Michigan. The Michigan secretary of State, sued in her cf:icial capacity, was
the sole defendant (R. 1 at 3 (1 10)). Plaintiffs claim that the
state's failure to prcvi4e ballots in an accessible format vi_olates Title II of. the Americans with Disal:Jilities Act of 1990,
42 u.s.c. 12131 ~ ~- see R. 1 at 8-9 (,, 41-48).
Specifically, they contend that the state's current procedures •deny vo~ers who are blind an equal opportuni~y to vote by secret ballot• and that the provision of ballets in alternative· formats .. would _co~titu~e. a ;reasona..ble. modific:ation that would .~atoic:l--­
discrimination on the basis of disabilit~ CR. 1 at 9 <f, 47-
48)). For essentially the same reasons, plaintiffs also claim
that 4efendants have violated Section 504 of the Rehabilitation
Act of 1973, 29 U.S.C. 794. S~e R. 1 at 9-10 ~,, 49-54).
On December 20, ~996r the district court granted the seate's

Case 3:01-cv-01275-HLA-HTS Document 9 Filed 01/18/02 Page 108 of 131 PageiD 219

.. 4 -

motion to dismiss pursuant to Fed. 1. Civ. P. ll(~) {6) (R. 17:

Opinion) . The court observed. that the Voting Accessibility Act

and section 20S of the Voting Rights Act explicitly addressed

issues of accessibility in vcein~ (R. 17 at 2·4). ~ecause •con-

.

~

gress did not intend that the ADA displace the Federal Voting

Rights Aces• (R. 17 at 2}, the district court first addressed

whether Michigan's cUrrent procedures violated eieher of .these

two statutes CR. 17 at 3-4). The court concluded that the

state's procedures ~o not violate Section 208 or the Voting

Accessibility Act. Indeed, Section 208 specifically requires

states to allow blind or visually impaired vocers to be assisted by a person of their choice. 42 U.S.C. l973aa-6.11 In fact, the

Voting Accessibi~ity Act allows the states to set their own
and accessibil"ity standards -- and it does not apply to state
local elections. 42 u.s.c. 1973ee-6(1).

1'Section 208 entitles •[a]ny voter'who requires assistance to

voce by reason of blindness, disability, or inability to read or

write• to receive assistance •by a person of the voter's choice.•
42 u.s.c. l973aa·6. By its terms, the Michigan voter assistance

statu~e (M.C.L.A. S 168.751 (West 1989)) does not fully comply

with Sec::t~on 208. The Michigan law allows people wieh -

disabilities to receive assistance by a person of their Choice

only if they are •disabled on account of blindness"; W?-like ---·Section ·2os,·-it does not extencS this right to-persons' with._o_t_,h,__e__r _

disabilities or persons who are illiterate. See M.C.L.A. §

168.751 (West 1989). Ev~ as to blind voters, the Michigan law

allows the vot:er to obtal.n assistance only from •a member of his

or her immediate family" or a person ot his or her choice ever 18

years of age; the federal statute contains ·no age or familial

limitation. In correspondence initiated by the Onited States in

1984, however, Michigan assured us that it fully c~lies wieh

Section 208 in practice. notwithstanding the limitat1ons

incorporateQ in che state statute. See letter from Gary P.

Gordon, Assistant Attorney General, to Gerald W. Jones, Chief

Voting Secticn (Aug. 31, 1984) (attached as·addendum).

'

Case 3:01-cv-01275-HLA-HTS Document 9 Filed 01/18/02 Page 109 of 131 PageiD 220
~~02 3059775 P.ll/33
- -s-
The cou~ next disposed of plaintiffs' ADA and Seceion 504 claims (R. 17 at s-6) (footnotes omitted):
Clearly, if the Plaintiffs were excluded frcm being able to cast a ~allot, the Defendant would be in violation of the Voting Rights Acts, 512132 of the ADA, and 5504 of the RA. However, ehe Plaintiffs do not: contend that they are being denied the right to c:ast their baliot:s . Instead, they want this Cou%1: eo go even furt:her and find that Congress intended to elevate a blind voter' s privac:y in casting a ballot to a protected right under the ADA or RA. There is no indication from t.he wording of the ADA and RA or_ the legislative history of either Act that Congress intended such a broad reading. This ccnclusion is further strengthened when the ADA and RA are read in harmony with the Voting Rights Aces, which also de not mandate the result proposed by the Plaineiffs. Without citing any language in the ADA or its legisla~ive history, to support its conclusion, the court announced ebat -rslimilar eo the Voeing Rights Aces, Coni:ess intended that blinc! voters have access to the voting booth and freedom :from coercion within the voting booth, net complete secrecy in casting a ballot. This C~ will nee rewrite the ADA or RA to require such a privacy right• CR. 17 at 7).
SOMMARY OF ARGUMENT
Michigan generally guara!ltees voters the right to cast secret ca~lots, but it does not enable blind or visually impairea
--·-·-v.o-ee-r-s·- t··o-· ·v·-o-t·e··i-n...s..e..c-re-t. ---tt-n·d··e-r" .e..h-e·- .s.-t-at_e.'. s- pro. _c_e..d-U-re--s.--f-o:!r....-------'
assisting voters with disabilities, blind or visually impaired voters must a.I:mounce their choice's to one or more assistants, who
then cast their ballots. Plaintiffs have alleged, however, that
inexpensive alternative technoloiies exist that would guarantee bal1ot secreey to blind or visually impaired voters. Taking this allegation as true, as this Court must at the pleading stage,

Case 3:01-cv-01275-HLA-HTS Document 9 Filed 01/18/02 Page 110 of 131 PageiD 221

- 6-

plain~!ffs have seated a claim for a violation of the Americans with o~sabilities Ac~. The ACA prohibits states from providing services in a manner that denies persons with disabilities an equal cppo~unity to gain the same benefits as those provided to

\\ \

oehers, and it requires states to adopt reasonabl.·e·modifications
to eheir existing practices where those modifications would avoid

such d!scrimination and would not result in a fundamental altera-

tion of the nature of.their program. Plaintiffs' complaint

alleges that Michigan has refused to adopt reasonable modifica-

tions t~ its voting practices that would afford blind or visually

impaired voters the same ballot secrecy the s~ate provides to

voters in general. Should plaintiffs establish that such modifi·

cations exist, defendants will be liable for violating the ADA.

~he dis~rict court therefore erred by dismissing plaintiffs'

compla!~t.under Rule ~2(b) (6).

I~ ruling for the defendants, 'the district court appeared to

concluce that the ADA imposes no requirements for accessible

voting procedures beyo~ those set foreh in two pre-ADA statutes:

~he Vo~ing Accessibiliey Ace and Section 208 of the Voting Rights

Ac:t. '!"'.:l.at conclusion is incorrect.· By its plain terms! the ADA

__________ ____ __ ____ applies

w.. ith

f

u

l·-l-··f-o-·r·c--e--·t

o -

-d·-is·c-r

i-m--i·n·a·-t

o··r

y--·

e-l·e-c·t-i-o·n-

-p·r·a-

c·

e

i

e

e

s, ...:..,._

whether or not ehose practices comply with pre-ADA federal

accessibiliey standards.· Indeed, Congress specifically identi-

fied voting as an area in which disabili~y·based discrimination

pers~sted at the time it enacted the ADA. The Act's legislative

history confirms that Congress believed the existing voting

Case 3:01-cv-01275-HLA-HTS Document 9 Filed 01/18/02 Page 111 of 131 PageiD 222

- 7-

accessibility laws to be inadequate.

The ais~ric~ court also appeared to conclude that only the

outright denial cf the tranehise -- and not ehe discriminatory

. denial of ballot secrecy -- could make out a violation of the
Ar)A. ~at conclusion, t.oo, was inc:orrec~. While.· the ADA prohi}:)-

its the campleee exclusion of persons with disabilities from

gcver.cment services ~r benefits, ic indepena~ntly prohibits

discrimination in the manner in which services or benefits are

provided. Michigan's current procedures deprive clind cr visu-

ally impaired vceers of an important benefit -- ballot secrecy

generally afforded to voters in the state. Plaintiffs have

stated a claim that those procedures violate the ADA.

AR.GUM!NT

Tm: DIS'l"lUCT C::OORT ElUt!D l!Y DISMISSING PI..AINTIFFS' COMPLAINT

This case arose on the pleadings. Accordingly, the district

cour~ was required to •construe the complaint in a light most

favorable eo the plaintiff, accepe all of the faceual allegations

as true, and deeermine whether the plaintiff undoubtedly can

prove no set of facts in support of his claims ehae would entitle

him to re~ief. When an allegation is eapal:lle af more than one

--···-·i-n·f·er-enc.e,

_i.t_,

m·-n··s-t·-b-a-c-o·n-str..ued

--in·-

·c··h- e..

.. p

l

.a.

i

n

t

iff'
.. . ..

s

favor.-• - - - - -

Cglymbift Natural Besgun:gs tne v. Tptym, sa F.3d 1.101, 1.1.09

(6th Cir. 1995) (citations emitted) (citing cases), cert. ~enied,

116 S. Ct. 1041 (1.996). Applying this standard to plaintiffs'

complaint, Rule 12Cb) (&) dismi~sal was inappropriate here.

Under Michigan's eleceicn system, blind or visually impaired

Case 3:01-cv-01275-HLA-HTS Document 9 Filed 01/18/02 Page 112 of 131 PageiD 223
J. ... • J O

- 8 ..

vocers lack an impo~ant benefic generally guaranteed to vocers

in the state ·- e~e ability to cast their ~allots in secret.

Plaintiffs have allesed that inexpensive technolosies exist tc

assure blind cr visually impaired voters ballot ~eerecy. Taking

that allegation as true~ as the court must at this scage of the

litigation, plaintiffs' complaint clearly states a claim that
Michigan has violated the ADA.~ Those allegations, if p-roven at

erial, would establish that the state has failed to adopt reason-

able modifieaeions of its existing procedures that would elimi-
of nate discrimination. The only other federal ccurt ease which

we are aware that has addressed these issues found a violation of
the ADA. See Lightb~wrn v. Cpynry gf E, Paso,· 904 F. Supp. 1429

(W.D. Tex. 1995). The district court accordinsly erred in

granting defendants' moticn to dismiss.

A. Plaintiffs Have Stated A Claim ·That Miehigao's Voting Assiseanee Procedures Discriminaeorily Oeny Blind Voters Ballot
sec~ehY In Viglatiop Of Tbo ADA

l. Title II of ehe ADA covers Mpublic enti~ies• -- that is,
unics of state and local government. 42 u.s.c. l213l(l). The

operaeive section of Title II provides that •no qualified indi-

-- -- -- vidual

wieh
. -

a
. .

.c.1. .i.

sa ..

b

ility
--· .

s

ha
·-

l-l·,-·-b- y--

re -·

a

s

o-n...o..f-s·u-c·h--d-is

a.l.

:lility
:·

,

be

excluded from participation in or be denied the benefits of the

services, programs, or activities of a pUblic entity, or be

.l'The remedies availa):)le to a plaintiff unc!er the ADA are

opr.se.cci.se1ly21t3h3e.

same as those available under Section 504. Because, on the· allegations of this case,

see 42

plaintiffs could not prevail on their Section 504 claim without .

also prevailins on their ADA claim, this brief focuses on the
ADA. Cf. 42 o.s.c. l220l(a} (setting forth relationship between

ADA and the Rehabilitation Act) .

·

Case 3:01-cv-01275-HLA-HTS Document 9 Filed 01/18/02 Page 113 of 131 PageiD 224
- 9•
5ya;ected to discrimina~ian by any such entity.• 42 u.s.c. ~2132
(emphasis added) . The Ace veses ehe Attorney General with authority to promulgate legislative rules to implement this
provision. 42 u.s.c. 12~34.
PUrsuant to that ~uthority, the Attorney General has issued
regulations that •establish the general principles for analyzing whether any particular action of the public entity viola.tes [Title II's general non~iscrimination] mandaee.· 28 C.F.R. P~ 35, App. A 5 35.130. These regulations state, inte~ alia, that a public entity may net •[p]rovide a qualified individual with a disability with an aid, ~enefit, or service that is not as e~fective in afforcing equal opporeunity to obtain the same result. to gain the same benefit, or to reach the same level of achievement as that provided to others." 28 C.P'.R. 35.~30(:b} Cl). They also require public entities to •make reasonable mociific:ations in policies, practices, cr ~rocedures when the mo~fica­ tions are necessary to avoid discrimination on the basis of disability, unless the ~lie entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activir:y.• 2& C.F.R.. J5.~30 Cb) (7):
· The regulaticll.S also apply these principles to the ·specific context of communic:ati~~ with the public:. They require public entities to •take appropriate steps to ensurew that communications with people with disabilities •are as effective as communicar:ions with others.~ 28 C.P.R. JS.160(a). Ln particular, such entities must: •!urnish appropriate auxiliary aids and services

Case 3:01-cv-01275-HLA-HTS Document 9 Filed 01/18/02 Page 114 of 131 PageiD 225
~ .:SI(I597?5 p. 16/33

- 10 -

where necessary to afford an individual with a disability an

equal oppo~uniey to pareicipaee in, and enjoy the benefits of, a

service, program, or ac~ivicy• they conduct. 28 C.P.R.

35.160(b) (~). Public entities must •give primary consideration
.•
to the re~ests of the. individuals wi~ disabilities• in determi-

ning whac auxiliary aid or service to use. 28 C.P.R.

35.160 (b) (2). An exception occ:urs only when the pul:llic entity

can prove that providing the requested aid or service would

result in a fundamental alteration or an undue financial or

aaminis~racive burden. See 28 C.F.R. 35.164.

2. Plaintiffs have clearly pleaded a violation of these

requ.irements. "'l'be ~tate of Michigan has guaranteed the right to
voce by secret ballot to all Michigan citizens• (~. l at s C1

29)). But the state's current voter assistance procedures do not

provide blind or visually impaired voters with ballot secrecy.

'Thus, ehe state provides blind or visually impairea voters •with

an aid or service that is not as effective in affording equal

opportur~ty to obtain the same benefit, eo gain the same benefit,

1

or to reach ~e same level of achievement as that provided eo

others.w 28 C.F.R. 35.130(~) (1); see Li;htbrn,rn. 904 P. Supp. at
----· ·-1433·.- -And alt:hinlgh ·plai.Ueif.ts -l:lave-··ai-lege"d that •reasonaJ.,le

modifications• of che s~ate's current procedures ·- such as the

adoption of alternative ballot formats ·- would avoid this

diseriminacion, ehe state has refused to adopt those modifica-

tions, in violation of 2B C.F.a. 35.130(b} (7). As alleged in the

complaint, the state's refusal also violates the effective

Case 3:01-cv-01275-HLA-HTS Document 9 Filed 01/18/02 Page 115 of 131 PageiD 226
.. 11 communicaeions regulations, for the state has failed to furnish auxiliary aids and services (alternative ballots) tha~ would afford blina or visually impaired voters ·an equal oppor~unity to pareicipate in, and enjoy the benefits of,• the sea;e•s vot~g
c. activities, 28 F.a. 3.5.160 (:b) (1), and the state ·has failed to
-give primary consideration to the requests• of these blind or visually impairea voters who aesire ballot secreey. 28 C.F.R.
35.160 (b) (2) •
The United States has previously addressed these issues in our Ti:le II Technical Assistance Manual. The 1994 Supplement to that publication discussed a hypothetical ease in which a county allowed blind voters to vote with the assistance of Mtwo poll worke=s, or one person selected by the voter,• but rejected a blind voter's request to complete a ballot that had been printed in Braille. ADA Title II Technical Assistance Manual, 1994 Supp., § I!-7.1100 at S-6. We stated that the denial of the vocer•s request would noe violate Title II, because a Srailled ballot •would have to be counted separaeely and would be readily iaenti!iable, and thus would not resolve the problem of ballot secrecy. • · ADA Title II Tecbnic:al Assistance Manual, l.994 Supp.,
-- --·-· § II-7.1.100 at 5-o.··-·-···-·-·----·-··- - · · - ·--· ·--.- ·--- ·---'-.
Tbe discussion in o.u. r technical assistance manual rested on
the factual premise that Brailled ballots would not assure balloc
secrecy ana that no other accommodations were available that
would assure ballet secreey. If ·reasonal:;)le modifications were available that would allow blind or visually impaired voters co

Case 3:01-cv-01275-HLA-HTS Document 9 Filed 01/18/02 Page 116 of 131 PageiD 227
- 12 east their ballots without assistance and that would assure ballot secrecy, che plain imporc of the AnA and its implemencing regulations would require the state to adopt those modifications. Here, plaintiffs have alleged that such reasonable modifications exist. Unlike the hypcehetical plaintiff in cur technical assistance manual, they have not sought Brailled ballets. Rather, they have requested that the seate employ such a~terna­ tives as ~railled balloc overlays cr templates~ (which would nee require eheir ballots to be counted separately or be readily identifiable once cast), as well as ~taped text or phone-in voting systems• (R. 1 at 6 (, 34)). Plaintiffs allege that these alcernaeive formats •would allow them the right to vote by secrec
ballot~ (R. l at 6 <1 34)).
In light of these allegations, Rule 12Cb) (6) dismissal was improper. The complaint, taken in ~he light most favoracle to the plaintiffs, see Cglymhia Natural· R•~ou.,..ces tpc • ss F.3a at 1109, alleges that inexpensive balloting formats are available ~hat would allow them to voee without compromising their secrecy. If chose allegations are proven, plaintiffs will have established a violation of ehe ADA. Pl~intiffs are entitled to an opportu-
----·- · niey to prove their a.llega~ions: -·· · --· ----·- -.----- -:--------
B. The ADA' s ~equirements Of Voting Accessibility Are Nee Limited ay T.he Less ProtectiYe Requirements Of Pre-ADA
Statutes
In granting the motion to dismiss, ehe district coure appeared eo conclude that the ADA did not impose any accessibil· iey requirements on the voting process ~eyond those already

Case 3:01-cv-01275-HLA-HTS Document 9 Filed 01/18/02 Page 117 of 131 PageiD 228

• 13 -

embodied in the Voting A:cessibility Act and Section 208 of the
Vceing Righes Act. See a. 17 at 2 ("Congress did not intend thae
the ADA displace the Federal Vceing Rights Aets.~); R. 17 ae 6

(s:ating that the coure•s conclusion that ehe ADA eannot afford plaint.iffs relie~ 11is funhe:r s~renst}lened when th~ ADA and ltA are read in harmcny with the Voting Rights Acts, whieh also ao net ma.nciate ehe result proposed by the Plaintiffs•); R. 17 at 7 (""rhj.s Court does not find any;hing in Che ACA to indieate that

Congress believed that the Voting Rights Acts were insuf-

fieient.-). That ruling is incorrect.~

Sy ies plain ee:ms, ADA Title. II'S general prohibition of

discriminacion applies co discriminatory election praceices.

Indeed, that prohibition "applies to anything a public entity

does.~ 28 C.F.R. Part 35, App. A § 35.102; see also rnpgypriYfl

sys Heal~h

I

x~c

v. CitY of !hite ~Jaip5, 931 F. Supp. 222, 232

(S.D.N.Y. 1996) (finding •nothing in. the texc or legislative

his~ory of the AOA to suggesc thac zoning or any oeher governmen-

tal a~tivity was exeluded from its mandate•); H.R. Rep. No. 485,

Part 2, l01st Cong., 2d Sess. 84 (1990) (Title II applies •to all

ac~ions of stace and ~ocal g~er.aments~).v Title II prcyiaes,

without qualification, that •no qualified individual with a

- · - - ·--•

-

o-

-

-~ - ·

0•••·0-

,_ o

--

·"-•• -· - · -oloo•••-•- -

•·I I ••••

:...-----

i'The district coun also erred in presuming that the Michigan statute complies with Seetion 208. As we have explained, see n.2. supra, the Michigan_seatute on its face violates Section 208, although state offieials have assured us that they comply with federal law in practice.
!·'sy conerast, the Voting Ac~essibility Act does not even apply to a state's administration of state and local elections. See 42 U.S.C. 1973ee ~ ~

Case 3:01-cv-01275-HLA-HTS Document 9 Filed 01/18/02 Page 118 of 131 PageiD 229

f=FR-25-2001 14:59

-~'202 3059775 P.20/33

- 14 -
disabilicy shall, by re~on of such disability, be excluded from

participation in or De denied the benefits of the services,

programs, or activicies of a public entity,. or ~e subjected to
discrimination by any ~ch entity.• 42 u.s.c. 12132. On its
face, this broad language would appear to reach ~·state action

that subjects people with c1isabilities to •aiscrimination" as

defined in the ADA r~gulatioas -- regarCless of whether that

action complies with the requirements of pre-ADA statuces such as

the Voting Accessibility Act and section 208.

In reaching a contrary· conclusion, the district court

purported to rely on the principle that •when two statutes are

capable of co-existence, ic is the duty of the courts, absent a

clearly expressed congressional intention to the contrary, to

regard each as effective.• Morton v. Menca~i, 417 U.S. 535, 551

(~974) (quoted in R. 17 at 2). Eut the district court's decision

directly contradiccs that princi~le. Under that ruling, tne ADA

has ~ independent effect in the votin~ area, for the court read

Section 208 and the Voting Accessibility Act to occupy the field.

In short, the district court 'I.Uldenook •to pick and choose among

congressional enactments, • which • [t] he courts are not at liberty

·- t~?:_ do .... Morton, 4l.7 U.S. _at ..55~.

Congress itself made clear that earlier, less protective

the statutes cannot limit

application of the ADA. The ADA' s

savings provision specifically addresses this questio~. That

provision preserves ehe operat~o~ of other state and federal

disability rights laws, but only to the extent that those laws

Case 3:01-cv-01275-HLA-HTS
FFR-25-2001 1:::>: 00

Document 9 Filed 01/18/02 - lS • .

Page 119 of 131 PageiD 230
_____A.d .:SI::b'::I77S p. 21/33

•provide[] greater or e~al protection for the rights of indivi-

duals wi~ disabilieies than are afforded by this chapter.~ 42

u.s.c. 1220l(b). This provision underscores Congress's intent

•to provide a elear and comprehensive national mandate for the

elimination of discrimdnation against incividuals_~ith disabili-
ties,~ 42 o.s.c. 12101(b) (1), and not to limit people with dis-

abilities to the often ineffectual proteceions of prier laws.

While the ADA does not prohibit plaintiffs from invoking ·the

remedies available under laws such as Section 208 and.the Voting

Accessibility Act,!' those alternative remedies do not in any way

limit the application of the ADA it~elf. Cf. Staron v. Mcpon-

a1d'Q Cg:p , Sl F.Jd 353, 357 (2a Cir. 1995} (ADA savings clause

•aces no: state, and it does not follow, ehat violations of the

ADA should go unaddressed merely because a state has chosen to

provide some degree of proteceion to these with disabil~ties~) .

In rejecting this conclusion, the district court stated chat

it had found • [no] thing in the ADA to incllc:ate that Congress

believed that the Voting Rights Acts were insufficient~ (R. 17 at

7) . But the district court overlooked several portions of the

statute ~d its legislative history that bore directly OF this

-··-- -- -- -qu..e.s.~-i· o-n·.----In··-·t·h·-e·--AD·-·A-'s. sta·t-e..m-·e· n·t-.of-.f-i·n- d·-in. gs,

Congress
..

singled ~----

i'see Ellenwood v. Exxon Sbippins Ca , 984 F.2d 1210, 1277 (lst

Cir.) (ADA employment

savings c discrimin

lause ation•

•a11ow [sJ ), cere.

doenvieerdla, pspoinegur.esm. e9d8i1e

s

for
(1993)

;

R.R. Rep. No. 485, Part 3, 10lst Cong., 2d ·sess. 70 (1990) (ADA

savings clause allows a plaintiff ~to pursue claims under a state

law that does not ecnfer greater substantive rights, or even

confers fewer substantive ri~hus,· if the plaintiff's situation is

prcceeted under the alternat~ve law and the remedies are

greater").

Case 3:01-cv-01275-HLA-HTS Document 9 Filed 01/18/02 Page 120 of 131 PageiD 231
... 16 ...
cue '"voeing" as one of the •critical areas• in which •aisc:rimination agains~ individuals wi~h disabilities persist(ed] ," 42
o.s.c. 1220l(a) (3) ·- even though Section 208 and the Voting
Accessibility Ace had ~een en the books tor eight and six years,
respec~ively. See LighthQYrn, 904 P. Supp. at 143 2, {'"Evidently, congress did not feel that [the Voting Accessibility Ace] was sufficiene, as it revisited and specifically addressed the same
is&Ue six years later in ehe ADA. •>. The Senate R.eport accompa-
nying the Act quoted the testimony of Illinois's Attorney General, who '"focused on ehe need co ensure access to polling places: 'You cannot exercise one of your most basic rights as an
American i! the polling places are not accessible.'" s. Rep. No.
116, lOlst Cong., lst Sess. 12 (1989). In the House hear~gs on the bill, the limitations of the Voting Accessibility Act were specifically discussed. One witness described how some jurisdictions haci implemented that statute in a manner that was '"demeaning to the disabled person• and that •create[d] a loss of dignity and inciependence for ehe disabled voter." H R 2273 Arne,...; eans

Se1es:t Edpcation of tbe House Convn on Jdncatiop & t,ahor, lOlst
Cong., lst Sess. 41 (1989) (statement of Nanette Bowling, Staff
-- ... -·Liaison eo the Maycrrs "AC!Visor~,;-comic:il. for.Eani:1icapped ..Individu·
als, Kokomo, IN).:' (Th~ plainciffs in this case have alleged

1'The issue of voting accessibiliey also arose in the floor

debates over the of Senator Gore)

AcD·AAs.

See ~35 Cong. Rec. a practical matterI

Sl0753 (1989) many Americans

(remarks with

disabilities find it impossible e·o vote. ·Obviously, suc:h a

(continued ... )

Case 3:01-cv-01275-HLA-HTS Document 9 Filed 01/18/02 Page 121 of 131 PageiD 232
_/~ ~':1f'f::> P.23/33

- 17 -
~ha~ defendants' procedures have caused them a similar less of
dignity. see R. 1 at 5 <1 23). These sta~emen~s demonstrate

ehat Congress specifically tar~eted the prOblem ~f voting acces-

sibility when it enacted the AOA. They provide furt.her support

for the conclus~on that is apparent from ehe stat~tory text: Title II added add~tionaJ accessibiliey requirements; its reach

is not limited to th~ narrow protections afforded by existing

laws. The district e~ erred in reaching a contrary canclu·

sion.
c. Discriminatory Oenial Of Ballot secrecy Violates The ADA Even If It Ps•s NQt Resu,t In compl•,... cen.;al or The Franchise

In ruling for defendants, the dist~ic~ court also concluded

tha~ the de~ial to blind or visually impaired voters of Qallot

secrecy as opposed to the outright deprivation of the right to

vote -· is not sufficiently serious to constitute prohibited

discrimination under the ADA. SeeR. 17 at 5-6 c•[T]he'Plain-

tiffs do not contend that they are being denied the right to cast ~heir balloes. Instead, they want this Court to go even further and fine tha: Congress intended to elevate a blind voter's

privacy in easting a ballot to a protected right under the ADA or

RA.."); R.. '17 at 6 n.3 ("Neither the AilA [n]or the RA indicate
that. voting privacy for :blind ·voters was ·a· 'benefie,·- ccirigress

sought to protect or a 'd.. iscrimination• that Congress sought to

11 C••• continued)

situation is completely unacceptable and unconscionable. We muse

take strong action to end tbe tradition of blatant. and subtle

discrimination that has made people with disability second-class

citizens.·); 135 Cong. Rec. S1079J (1989) (remarks of sen.

Biden).

·

Case 3:01-cv-01275-HLA-HTS Document 9 Filed 01/18/02 Page 122 of 131 PageiD 233

-~
DOJ/CRD/DRS
:. lS ..

·-...--- 202 3059775 p. 24/33

- preven~... .., ; R. . 17 a~._ 7 ("S•;mil.ar to the Voting Rights Acts,
Congress ineended that tllind voters have access to the vocing

booth and freedom from coercion within the vccing booch, not complete secrecy in c~sting a ballot.•). That ruling is also

incorrect.

.·

The operative prcv~sion of Title II is phrased in ehe

disjunctive: "no qua~ified individual with a disability shall

• • • be excluded frgm participation in or be denied ehe benefits

of" a se::vic:e, program, or activity •,gx tle subjected to ciiscri·

mination· by a public entity. 42 u.s.c. 12132 (emphasis added).

This language plainly prohibits ~ the outright exclusion of

people with disabilities from gover-nment ac~ivities ~ discrimi-

nation in the manner in which these activities are aOministered.

See Crpwge~ v. KitaSJWI, 81 F.Jd 1480, 1483 (9th Cir. 1996).

While the Michigan system does not entirely deprive blind or

visually impaired voeers of the franchise, it clearly discrimi·

nates against them. As allege~ in t.he. complain~, all other

voters in the sta~e are entitled to ~allot secrecy, but blind or

visually impaired voeers are not, simply because the s~ate has

failed to adopt reasonable modifications to ies existing proce-

-· ------ ...__ dures.-

A·-s ..w. .e..

h·a-

v
.

e
.

·-e

xpl
.

a

ined.,

.

e.h··a··e-·- co.n. .d.. u·c·-e

·w- ould-. c··o- .n.s·e·-i-c·.'ute

"discrimination" wi~hin the meaning of the ADA and i~s implement:-

ing regulaeions.

The discrice court concluded that finding a violation here

would improperly •elevate a blind voter's privacy in casting a

ballot to a protected right" under the ADA CR. 17 at 5-6). The

Case 3:01-cv-01275-HLA-HTS Document 9 Filed 01/18/02 Page 123 of 131 PageiD 234
- 19 district court misccncei~ea the proper inquiry. Title II'S prohil:lit.ion on •ciiscrimination· is not limited to discriminacion that affects a "protected right." Rather, it encompasses all disability-=ased aiscrimina:icn committed by a public entity.
See Crowder, 81.F.3d at 1483; Innovative Health s¥s·. Ine , 931
F. Supp. at 232; oak Ridge Care Ct& . Inc v. Bacine County, 896 F. Supp. 867, 872-87~ (E.D. Wis. 1995). In this respect, the ADA functions like the Equal Protection Clause, which sUbjects to strict scrutiny All discriminations involving suspect classifications, whether or not those disc=iminations also involve ·fundamental rights." See Lic:""thrnrrn. 904 F. Supp. at 1433 ("The ADA is about equality; Plaintiffs seek to be affor~ed the same rights and privileges as their ncn-hanaicapped peers on elec:tion day.") .
In any event, Miehi~an·s voting assistance procedures deprive blind or visually impaired voeers of an exceptionally impcr~ant interest -- Dallot secrecy. The state•s constitution itself explicitly protects the •secrecy of the ballet.• Mich.
N.W.2d l, 2 (Mich. 1978) (balloc secrecy may net be compromised absent sh_owing that voter acted frauduleni:.ly). The Sup;-eme Court _._____!la~_~;~la;-~y _re_e_osn~zec3: that _;h~. ~.!!eret.. ballot .serves ~c~~~l_l_ing - · - .
s~ate interests. See ~arQon v. Fre•man, 504 tt.s. 191, 206
{1992); see also Mcintyre v .. Qhfo Jlections comm'n, 115 s. Ct.
~511, 1517 (1995) (observing that the •respected tradition of anonymity in the advocacy of polit.:.:al causes" is "perhaps best exemplified ~y the secret ballot, the hard-won right to vo~e

Case 3:01-cv-01275-HLA-HTS Document 9 Filed 01/18/02 Page 124 of 131 PageiD 235

one's conscienee without fear of retaliation"); Buckley v. vaJ~o,

424 u.s. 1, 237 (1976) tsurge:,.C.J., concurring in part and

dissen~ing in pare) (•[s]ecrecy and privacy as to political

.preferences and convictions are fundamental in a free society.

Per example, one of the great political reforms wa~ the advent of the secret bal~ot as a universal practice.~). Given their alle-

ga~ions that alternative, inexpensive ballot formats are avail-

able, plaintiffs have stated a claim that the failure to .. choose
or ~ose alternatives unl.awfully ·<ienie [s], ~lind visually im-

paired voters an important "benefit [J" -- the benefit of ballet

secrecy. Thus, even if the Michigan system did not violate the

•cuscriminaticn" prong of Title II, plaintiffs woul.d still have

adequately alleged a violatic~ c~ the •deny a cenefit" prong of

that Title. The district c:ou:t: accordingly erred in granting the

motion to dis-wiss.

CONCLUSION

The jud;-~t cf the district ccutt should be reversed.

Respectfully Submitted,

ISABELLE KATZ PINZLER

Acting Assistant Attorney

General

.

--

-----·---·---·-----~#-1'1-

.

MARIC L. GROSS

-4-~-~~ .J, I

SAMUEL R. 'SAGENSTOSJ

Attorneys

Dep~ment of Justiee

P.O. Box 66078

Washin~on, D.C. 20035-6078

(202) 514-.2174

Case 3:01-cv-01275-HLA-HTS Document 9 Filed 01/18/02 Page 125 of 131 PageiD 236

CERTIFICATE OF ·SERVICE

I hereby certify t~e ~April 23, 1997, two copies of the

foregoing Brief for the United States as Amicus CUriae were

served by firs~·class mail, po&t~ge prepaid, on the following

c:cnmsel:

Amy B. Maes, Bsq.

.·

Michisan Protection & Advocacy Services
10~ w. Allegan se.

Suite 300

Lana~, MI 48933-1706

Denise c. Barton, !sq.
Office of the Attorney General PUblic Empl~ent & Elections _Div. P.O. Box 302l.2 600 L4W Building Lansing, MI 48913

SAMUEL R. BAGENS'l'OS •

Attorney

vI '

-------------------------------------

Case 3:01-cv-01275-HLA-HTS Document 9 Filed 01/18/02 Page 126 of 131 PageiD 237
~~~ ~059775 P.28/33
.·

Case 3:01-cv-01275-HLA-HTS Document 9 Filed 01/18/02 Page 127 of 131 PageiD 238

STATE OF MICHIQII\N OUAl'TMD\'T OF ATTORNEY C!.~ER.LL

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• $TANLE"r D. STEl,.BORI\I
Oie/ Aui#UI A.aarw_, Gfrtff'.l

·FRANK J. :KELLEY

AnoaNZY GE~ Ea.4Z.

.·

August 31, 1984

Mr. Gerald w. Jones
Chief, Votinq Section United States nepartment of ~ustice Washinston, D.C. 20530
A'rTN: Mrs • Schwartz
Re: 1982 Amendments to the Voting
Rishts Act, Public Law 97-205
Dear Mr. Jones: Your letter inquiring as to what steps the State of
Michigan has taken or will take to comply with S 208 of t:he 1982 amendments to the Voting Rights Act, Public Law 97-205 has been referred to me £or reply. 1'he Mic:higan Election Law, 1954 PA 116, S 7517 MCLA 168.7511 MSA 6.1751 discusses what assistance JDaY be qiven to an elector who is unable to mark his or her ~allot and proviaes that this assistance shall be rendered by two inspeeeors cf election or, if the elector is bliuc!, he or she may be assisted by a member of his or her family or by any person ever 1B years cf age --·desiqna.ted by the blind person. - -· ·-------·--------·
s· This provision of Kichic;m Zlecticn Law appears to be
in conflict with 208 of Public Law 97•205 in that 'the handicapped individual must be assisted by inspectors of election only, unless the elector is blind. Hcwever, the Michigan secretary of State, through his authority as the chief election officer of the State of Michiqan with supervisory authority over local election officials, has specifically directed these officials to comply with the provisions of the 19S2 mnendments to the Votinq Rights Act. Copies of directions to the local election officials are

Case 3:01-cv-01275-HLA-HTS Document 9 Filed 01/18/02 Page 128 of 131 PageiD 239

Mr. Gerald w. Jones
Pa.t;e 'l'WO Auqust 30, 1984
attache4 to this letter inciicatin; that 5 208 of the Votinq Jtiqhts Act was to be c:cmplie4 with by the local clerks and precinct officials at Michiqan' s recent pri~a_ry election •.
'rhe:efcre, based upcn the attached i:lstruc:ticms of the Secre~ of State issue4 to local election cffieials directinq them to comply with the Voting Rights Act, no change in Michit;an law is required for compliance rith the Vot.in9 lliqhts Act &t the present time. However, it JllaY be a4visable for the Michigan Sec:etary of State, based upon his pcsit.ion as di%ec:tcr cf Mic:higCL.~ elee:ions, to re~st the Leqislature to amend Michi9'&n Election Law to specifically comport with the provisions of 5 208 of the Voting Rights Act. Bowever, in the interim, please be assu::ed that the Michiian Secretary of State and this offi~e will make every effort to insure that the Voti:19 ai;-hts Act provisions are complied ~th by all Michiqan ele~tior. officials.
If you have any additional questions or desire further information, please do not hesitate to ~ontact me.

-------Gl'G/jad

Attachments

..

!'RANK J • KZ:.LEY
Att~ey General
/l~ l~~·-;4f.1'{I~I"'~
;C~;s.i:qs1ta•nt~cA.ottnorney General
650 Law Building
525 West Ottawa Street
LanSini, MI 48913 (517) 373-6434

Case 3:01-cv-01275-HLA-HTS Document 9 Filed 01/18/02 Page 129 of 131 PageiD 240

1... $ ~~~~::~....... "ICHIGAN DEPARTMEtoiT OF STATE

RICHARD H. "•"USTIN

e

SECRETAfrf OF STATE

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MUTUAL BUILDING

208 N. CAPITQL AVENUE

August z. 1984

..
TO AU. COUNiY CLERKS:
-Please be advised that the Federal Vot1ng Rights Act of 1965 was amended by Public Law 97~205 of 1982 which added the following section:

Voting Assistance ••sec. 208. Any voter who requfres assistance to vote by reason of blindness, disability, or inability ta_read or w~ite may be given assistance by a person of the voter's choi,e, other than the voter's employer or agent of that
employer or officer or agent of that employer or officer
or agent of the voter's uni~n.M This amendment took effect in 1984 and differs from Michigan Law 168.751 which reads as fa11ows:
•sec. 751. When at an election an elector shall state ~~at the elector cannot mark his or her ballot, the elector sha11 be assisted in the marki_ng of his or her ballot by 2 inspec· tors of election. In an elector fs sa disabled an account of blindness, the elector may be assisted 1n the marking of his ar her ballet by a member of his or her immediate family or by a person over 18 years of age designated by the blind
person."
Both of these sections are in effect for all elections conducted in Michigan. Precinct inspecto~ are to be advised of the following procedures. .
If a person is tequesting assistance af two precinct inspectors,
-----·······the voter only needs to state that he or she ne~ assistance.-----
No reason for need of assistance is required. The precinct ;nspectors sha11 note the name of the assisted voter in the remarks section of the··poll book; that assistance was given; and the names cf the two inspectors assisting.

•I.
....

Case 3:01-cv-01275-HLA-HTS Document 9 Filed 01/18/02 Page 130 of 131 PageiD 241

rr~-,J-,uu~

·-·~~

August: Z, 1984

Page two

tf the person is requesting ta be assisted by a person of their

own choice the following question must be asked of the voter:

m •Are :ou reguestina assistan~e to vote~ reason cf blindness,

dfsab1lity, or-·1nabilitl to read or

?6 Only a 1yes" or "no''

answer 1s requ1rec1. Specific details are net necessary. If the

answer is yes to the question, the penon who w111 assist the

voter is ta be asked: •Are vou the voter's emploreP" or agent of

that employer or an officer or agent of an union to \ldiich the

voter belongs?" {f ~~ a~swer is NO. the person IIIV assist the

voter. In:such a case the prec1n~t inspectors shall note in the

remarks se~tian af the pall book the name of the voter being

assisted and the name of the person assfsdng the voter. Under

this provision there is no age requirement on who m~ 1ssist the

voter.

·

Please advise a11 city and township clerks in your county of the contents of this letter.

Sincere1y,
c1l)

Christopher M. Thanas
Director of Electians

OtT:jmf

-· ····· - - - - - · · - - - - - - - - · - - - - - · - - - - - - - -

..•

Case 3:01-cv-01275-HLA-HTS Document 9 Filed 01/18/02 Page 131 of 131 PageiD 242

..

·- -· ·- - -....._../-·

- Voter reauirinq assfstanee: a1 w111 require some help 1n voting my ballot.•• .
£lection Insaector: Are you requesting assistance from two election inspectors

or from a person of your choi c:e?

.

Answer 1 Assisted Voter: "I .would like two election inspectors to ~ssist me."

Note: No further.questions are required.
iiCU" the name of the assisted voter in the

Trehme aerklescstieoentioinnsoprectthoer

shall poll

book; that assistance was giveni and the names of the two inspectors

assisting.

Answer 2
Assisted Voter: qi wou1d like Hr. John Smith to assist me." Eleetion Inscector:. "Are you requesting assistance to vote by reason of biindness. disability, or inabiHty to read or write? ..
-Ncte: On1y a "yes" or "no" answer fs required. Specific details are not
necessary. Assisted Voter: "Yes.• E1 ection Insaector: Question to the person named to assist; 11Are you the voter's employer or agent of that employer or an officer or agent of a Ul'1ion ~ which the voter belongs?" Persor. Chosen to Assist the Voter: •No" - The pe~son may assist the voter. The elect1on inspector shall nate in the rema~ks section of the poll book the na~e of the voter being assisted and the name· of the person assisting the voter.

Perscn Chosen to Assist the Voter:

11

Yes

1 '

..

The

person

shall

not

be

allowed

to assist the voter 1f he or she 1s the employer or agent of that employer

of the voter or an officer or agent of a un1 on to which the voter belongs.

- ·-· .·~· -- -------

TOT~ P.33

 
 Case 3:01-cv-01275-HLA-HTS Document 42 Filed 10/16/02 Page 1 of 41 PageiD 399

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA JACKSONVILLE DIVISION

. ' ' .. ~ ,.. ... ... ....._
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AMERICAN ASSOCIATION OF = PEOPLE WITH DISABILITIES; DANIEL W. O'CONNER; KENT BELL; 'and BETH BOWEN,

- .. ,-' (

- -' r

, '.\

Plaintiffs, on behalfof themselves and others similarly situated,

V.

CASE NO. 3:01-cv-1275-J-21TJC

JIM SMITH, as Secretary of State for the State ofFlorida; EDWARD C. KAST, as Director, Division of Elections; JOHN STAFFORD, as Supervisor of Elections in Duval - County, Florida; WARREN ALVAREZ, ELAINE BROWN, MATT CARLUCCI, DOYLE D. CARTER, GWEN CHANDLER-THOMPSON, LAD DANIELS, REGGIE FULLWOOD, _ALBERTA HIPPS, JERRY HOLLAND, KING HOLZENDORF, SUZANNE JENKINS, PAT LOCKETT-FELDER, JIM OVERTON, LAKE RAY, III, · FAYE RUSTIN, LYNETTE SELF, GINGER SOUD, MARY A. , SOUTHWELL, and GWEN YATES, as Members ofthe"Jacksonville, Florida City Council,

Defendants.
----------------------~1
ORDER

A072A (Rev.8182)

Case 3:01-cv-01275-HLA-HTS Document 42 Filed 10/16/02 Page 2 of 41 PageiD 400
This is an action1 brought by an organization of people with disabilities, as well as by certain visually and manually impaired voters, against state and local election officials and members of the City Council of Jacksonville, claiming violation of the Americans with Disabilities Act, the Rehabilitation Act of 1973, and Article VI, Section 1, of the Florida Constitution.
Before the Court are the following motions: ( 1) Defendants Smith and Kast's Motion to Dismiss (Dkt. 5) and Plaintiffs' Response (Dkt. 8) in opposition thereto; and (2) Defendants Stafford, Alvarez, Brown, Carlucci, Carter, Chandler-Thompson, Daniels, Fullwood, Hipps, Holland, Holzendorf, Jenkins, Lockett-Felder, Overton, Ray, Rustin, Self, Soud, Southwell, and Yates' Motion to Dismiss (Dkt. 6) and Plaintiffs' Response (Dkt. 9) in opposition thereto.
I
The Court has considered the parties' written submissions, oral arguments and applicable authorities. I. The Parties and tbe Alleged Facts2
Plaintiff American Association of People with Disabilities (AAPD) is a nonprofit organization whose purpose is to advocate the interests ofpersons with disabilities. Some of AAPD's members are registered voters in Duval County with visual and manual impairments. Plaintiffs Bell and Bowen are visually impaired persons registered to vote in Duval County.
1 Plaintiffs seek class certification. The motion therefor is pending. 2 The facts stated in this section are necessarily as aUeged by Plaintiffs. See infrn, Section II. Motion to Dismiss Standard.
2
A072A (Rev.B/82)

Case 3:01-cv-01275-HLA-HTS Document 42 Filed 10/16/02 Page 3 of 41 PageiD 401
PlaintiffO'Conner is manually impaired such that he cannot manipulate a writing instrument or touchscreen, and is registered to vote in Duval County.
Defendants Alvarez, Brown, Carlucci, Carter, Chandler-Thompson,Daniels, Fullwood, Hipps, Holland, Holzendorf, Jenkins, Lockett-Felder, Overton, Ray, Rustin, Self, Soud, Southwell, and Yates are all members ofthe City Council ofthe City ofJacksonville (Council). Defendant Stafford is the Supervisor of Elections of Duval County. Defendant Smith is the Secretary of State ofthe State ofFlorida, and Defendant Kast is the Director ofthe Division ofElections, a division of the office of the Secretary ofState.3
Plaintiffs are unable to vote unassisted with the equipment currently used in Duval , County or the equipment the County has recently purchased. In order to vote, Plaintiffs Bell
and Bowen rely on the assistance ofthird parties to read the ballot to them and to mark their selection. For Plaintiff O'Conner to vote, he must rely on the assistance of a third party to mark his selection on the ballot.
The Secretary of State and the Director ofthe Division of Elections must approve any voting systems to be used in Florida. Thus, before a county may purchase a voting system, it must have been certified by the Secretary ofState and the Director ofthe Division ofElections. Six optical scan voting systems and one touchscreen voting system have been so certified by
3 When this suit was filed, Katherine Harris and L. Clayton Roberts held the offices, respectively, of Secretary of State of the State of Florida and Director of the Division of Elections within the Florida Department of State. They no longer occupy such offices and have been succeeded by Jim Smith and Edward C. Kast. respectively, the current occupants who, by this Court's August 21, 2002, Order, were substituted as party defendants in the place of Harris and Roberts pursuant to Rule 25(d){l), Federal Rules of Civil Procedure. Reference will be made, from time to time, in this Order to the "predecessors" ofJim Smith and Edward C. Kast. Such is intended to refer to Katherine Harris and L. Clayton Roberts.
3
A072A (Rev.S/82)

Case 3:01-cv-01275-HLA-HTS Document 42 Filed 10/16/02 Page 4 of 41 PageiD 402
the Secretary of State and the Director ofthe Division ofElections. While Plaintiffs had asked the former Secretary of State, Katherine Harris, and the former Director of the Division of Elections, L. Clayton Roberts, to certify voting systems that allow visually and manually impaired voters to vote unassisted, visually and manually impaired voters are unable to access any of the presently certified voting systems for purposes of unassisted voting. Only the certified touchscreen system could potentially be used by Plaintiffs to vote unassisted; to provide for unassisted voting, it would need to be modified with audio and so-called "puff stick" equipment.
Supervisor ofElections Stafford and the City Council are responsible for selecting and purchasing voting systems to be used in Duval County. Defendants Stafford and the Council decided to purchase optical scan voting equipment despite knowing that such systems did not allow visually and manually impaired voters to vote unassisted. In addition, Defendants Stafford and the Council decided to purchase up to four touchscreen voting systems for the County but failed to purchase the audio and puff stick equipment necessary for visually and manually impaired voters to vote unassisted. Also, these touchscreen systems were only to be located at voting headquarters.
Plaintiffs filed suit alleging that Defendants violated the Americanswith Disabilities Act (ADA), 42 U.S.C. § 12132, and Section 504 ofthe Rehabilitation Act of 1973 (Rehabilitation Act), 29 U.S.C. § 794, and that Sections 101.051,101.28, and 101.5606, Florida Statutes, violate Article VI, Section 1 of the Florida Constitution. Plaintiffs allege that Defendants
4
A072A (Rev.B/82)

Case 3:01-cv-01275-HLA-HTS Document 42 Filed 10/16/02 Page 5 of 41 PageiD 403
Smith's and Kast's predecessors violated the ADA, the Rehabilitation Act, and Article VI, Section 1 of the Florida Constitution by certifying voting systems that do not allow visually and manually impaired voters to vote unassisted. Plaintiffs allege that Defendants Stafford and 1 the Council violated the ADA, the Rehabilitation Act, and Article VI, Section 1 ofthe Florida Constitution by deciding to purchase voting equipment that would not allow visually and manually impaired voters to vote unassisted. In addition, Plaintiffs allege that Sections 10 l.05I, I01.5606, 101.28, Florida Statutes, violate Article VI, Section I of the Florida Constitution. II. Motion to Dismiss Standard
It is well established that a11 motion to dismiss for failure to state a claim should not be granted unless it appears to a certainty that the plaintiffwould not be entitled to recover under any state of facts which could be proved in support of his claim... Cook & Nichol. Inc. v. Plimsoll Club. 45I F.2d 505, 506 (5th Cir. 1971); accord Conley v. Gibson. 355 U.S. 4I, 4748, 78 S.Ct. 99, 2 L.Ed.2d 80, 84 (I957). In evaluating the sufficiency of a complaint for purposes of a motion to dismiss, the allegations of the complaint must be accepted as true, Hishon v. King & Spalding. 467 U.S. 69 (I984), and viewed in a light most favorable to the plaintiff. Scheuer v. Rhodes. 416 U.S. 232 (1974), abrogated on other grounds by Harlow v. Fitzgerald. 457 U.S. 800, I02 S.Ct. 2727, 73 L.Ed.2d 396 (1982). Nevertheless, when the · allegations in a complaint are wholly conclusory and fail to set forth facts which, if proved,
5
A072A (Rev.B/82)

Case 3:01-cv-01275-HLA-HTS Document 42 Filed 10/16/02 Page 6 of 41 PageiD 404
would warrant relief for the plaintiff, dismissal is appropriate. Davidson v. State ofGeorgia. 622 F.2d 895, 897 (5th Cir. 1980).4
With regard to dismissing a complaint with prejudice, the general rule in the Eleventh Circuit is that where a "more carefully drafted complaint might state a claim, a plaintiff must be given at least one chance to amend the complaint before the district court dismisses the action with prejudice." Bank v. Pitt 928 F.2d 1108, 1112 (1 ph Cir. 1991). Two exceptions exist: (1) where the plaintiff expresses a desire not to amend his or her complaint; and (2) where "a more carefully drafted complaint could not state a claim under the standard of Conley, 355 U.S. at 45-46, 78 S.Ct. at 102, [2 L.Ed.2d at 84], dismissal with prejudice is proper." Id. III. Discussion
A. Summary of Contentions Defendants Smith and Kast assert that Plaintiffs failed to allege that they or their predecessors were presented with a voting system that would allow visually and manually impaired voters to vote unassisted.5 Consequently, Defendants Smith and Kast argue the claim is not ripe and that Plaintiffs lack standing. In addition, Defendants Smith and Kast assert that they do not have a duty to ensure that local election officials apply the ADA uniformly. Instead, Defendants Smith and Kast contend that they have the discretion to adopt rules that
4Fifth Circuit decisions handed down prior to the close of business on September 30, 1981 are binding precedent in the lith Circuit. Bonner v. City of Prichard. 661 F.2d 1206, 1207 (lith Cir. 1981) (en bane).
5 No Eleventh Amendment state sovereign immunity issue is involved in this case because the Eleventh Amendment is no bar to suits for injunctive reliefagainst state officials. Ex Parte Young, 209 U.S. 123, 159-160 (1908); Reickenbacker v. Foster. 274 F.3d 974, 975 (5th Cir. 2001).
6
A072A (Rev.B/82)

Case 3:01-cv-01275-HLA-HTS Document 42 Filed 10/16/02 Page 7 of 41 PageiD 405
establish minimum standards for voting systems. Thus, while they have the discretion to adopt rules requiring voting systems that allow visually and manually impaired voters to vote unassisted, Defendants Smith and Kast assert that they have no duty to adopt such rules. Defendants Smith and Kast also assert that Plaintiffs failed to state a claim under the Rehabilitation Act because they did not adequately allege that their respective offices received federal financial assistance.
Defendants Stafford and Council assert that the ADA only requires that disabled voters not be excluded from voting. Therefore, Stafford and Council argue, the ADA does not create a federal right to absolute "direct or secret voting." Similarly, Defendants Stafford and Council assert that state law does not create a right to unassisted voting. Since neither the ADA nor Florida law creates a right to a completely direct and secret vote, Stafford and Council argue that the ADA is not violated. In addition, Defendants Stafford and Council assert that Plaintiffs fail to state a claim under the Rehabilitation Act because they do not adequately allege that they ' receive federal financial assistance. Defendants Stafford and Council also assert that Sections 101.051, 101.5606, and 101.28 do not violate Article VI, Section 1 ofthe Florida Constitution. Also, the members of the Jacksonville City Council assert that they are entitled to absolute legislative immunity.
B. Ripeness and Standing Defendants Smith and Kast assert that the action against them is not ripe and that Plaintiffs lack standing. They argue that the action is not ripe because, under Florida law,
7
A072A (Rev.S/82)

Case 3:01-cv-01275-HLA-HTS Document 42 Filed 10/16/02 Page 8 of 41 PageiD 406
counties select voting systems for possible purchase and submit them to the Department of State for approval. Since no county has presented voting equipment for approval that allows visually and manually impaired voters to vote unassisted, Defendants Smith and Kast assert that neither they nor their predecessors have done anything to deny Plaintiffs the benefits of services, programs, or activities, and that the suit, at least as to Smith and Kast, is therefore not ripe. Defendants Smith and Kast also argue Plaintiffs lack standing because they have failed to adequately establish a likelihood offuture injury. Defendants Smith and Kast contend that, because Plaintiffs failed to ailege that they or their predecessors were presented for certification , with voting equipment that permits visually and manually impaired voters to vote unassisted, Smith and Kast have not caused Plaintiffs to suffer an injury and Plaintiffs are not likely to suffer an injury in the future.
Plaintiffs respond, however, that the suit is ripe because Defendants Smith and Kast and their predecessors had a duty to certify voting systems that allowed visually and manually impaired voters to vote unassisted. Plaintiffs argue that this duty is predicated on Plaintiffs' having requested that Defendants Smith's and Kast's predecessors certify such voting equipment and on Defendants Smith's and Kast's Florida statutory duties. Plaintiffs contend that Defendants Smith and Kast have an independent duty under Florida law to only certify voting equipment allowing visually and manually impaired voters to vote unassisted. In addition, Plaintiffs assert that Defendants Smith's and Kast's predecessors were presented with
8
A072A (Rev.8/82)

Case 3:01-cv-01275-HLA-HTS Document 42 Filed 10/16/02 Page 9 of 41 PageiD 407
such a voting system for certification because Plaintiffs allege that they had asked Defendants Smith's and Kast's predecessors to certify such voting systems.
Standing and ripeness are justiciability issues that arise within the context ofthe Article III, United States Constitution, requirement that an actual case or controversy is a necessary predicate to federal courtjurisdiction. See Coalition for the Abolition ofMarijuana Prohibition v. City of Atlanta. 219 F.3d 1301, 1309 (lith Cir. 2000). To determine whether a claim is ripe, a court must consider the fitness of the issues for judicial determination and whether failing to decide the matter will cause hardship to the parties. See id.
A determination of whether a case is fit for judicial determination requires a court to consider whether there is sufficient injury to satisfy the Article III case or controversy requirement and whether the case is sufficiently defined to allow the court to effectively decide the case. See id. To determine whether a plaintiff has standing to bring a claim, the plaintiff must establish "(1) that the plaintiff has suffered an actual or threatened injury; (2) that the injury is fairly traceable to the challenged conduct ofthe defendant; and (3) that the injury is likely to be redressed by a favorable ruling." Nat'l Ass'n ofGov't Employees v. Barrett. 968 F. Supp. 1564, 1569 (N.D. Ga. 1997) (citing Valley Forge Christian College v. Ams. United for Separation of Church and State. Inc.. 454 U.S. 464,471-72 (1982)).
The ripeness and standing arguments are premised on the contention that Defendants Smith and Kast and their predecessors have not had the opportunity to certify equipment that would allow visually and manually impaired voters to vote without assistance. Thus,
9
A072A (Rev.B/82)

Case 3:01-cv-01275-HLA-HTS Document 42 Filed 10/16/02 Page 10 of 41 PageiD 408
Defendants Smith and Kast argue, the suit is not ripe because Defendants Smith and Kast and their predecessors have not yet denied certification ofsuch equipment and Smith and Kast may not do so. Until they deny certification, Defendants Smith and Kast contend, Plaintiffs have not been injured by them or their predecessors.
It is not clear to the Court, however, whether the Secretary of State and the Director of the Division of Elections have certified, or may certify, voting systems without the system having been presented by a county seeking to purchase the system. There was some discussion at the hearing on the Motions to Dismiss regarding a list of approved systems. It is not clear whether the voting systems on this list were previously approved when counties brought them before the Secretary ofState and the Director ofthe Division ofElections or whether they were sua sponte approved. If Defendants Smith and Kast have the power to sua sponte certify voting systems or to certify them based on Plaintiffs' alleged request therefor, then Plaintiffs have adequately alleged the existence of an actual or threatened injury caused by conduct of Defendants Smith and Kast or their predecessors that could be redressed by a favorable decision ofthis Court. In addition, the case would be sufficiently defined to allow the Court to effectively decide the case. Consequently, the Court cannot say that Plaintiffs would be unable to prove any state of facts that would satisfy the ripeness and standing requirements.6
6 The Court does not decide whether this case would be ripe for adjudication or whether Plaintiffs would have standing as to the claims against Defendants Smith and Kast if the Secretary of State and the Director of the Division of Elections only certify voting systems presented to them by counties.
10
A072A (Rev.8/82)

Case 3:01-cv-01275-HLA-HTS Document 42 Filed 10/16/02 Page 11 of 41 PageiD 409
C. Article VI, Section 1, Florida Constitution (Count Two) Plaintiffs assert that Article VI, Section 1 of the Florida Constitution, which provides for "direct and secret" voting, necessarily confers upon visually and manually impaired voters a Florida constitutional right to be provided a method of unassisted voting. Thus, Plaintiffs assert that Defendants Smith's and Kast's predecessors violated Article VI, Section 1 ofthe Florida Constitution by certifying a voting system that does not permit visually and manually impaired voters to vote without assistance and that Defendants Stafford and the Council violated Article VI, Section I of the Florida Constitution by purchasing a voting system that does not permit visually and manually impaired persons to vote without assistance. In addition, Plaintiffs assert that Sections 101.051, 101.5606, and I0 1.28, Florida Statutes, violate Article VI, Section 1 because they do not specifically provide for "direct and secret" voting such that visually and manually impaired voters are able to vote without assistance. Thus, it appears that there are two reasons why the Court is called upon to determine whether Article VI, Section 1 guarantees that visually and manually impaired voters be provided a means of voting without assistance: (1) first, because of Plaintiffs' claim that the above Florida statutory sections are violative ofArticle VI, Section 1's alleged requirement of unassisted voting for such voters; and (2) second, because, in determining Plaintiffs' federal claims under the ADA and the Rehabilitation Act, it is necessary to determine whether the "program or activity" from which the disabled voter/plaintiffs are allegedly being excluded or being denied the benefits thereof, is a program or activity requiring voting without assistance.
11
A072A (Rev.S/82)

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Defendants Smith and Kast assert that the Court, under the Pullman7 abstention doctrine, . should abstain from deciding upon the constitutionality (under the Florida Constitution) ofthe above referred Florida statutory sections. Pullman abstention is clearly not applicable here if
for no other reason than the fact that there are no federal constitutional issues before this Court to be avoided by such abstention. See Pittman v. Cole. 267 F.3d 1269 (11th Cir. 2001 ); Siegel v. Lepore, 234 F.3d 1163 (11th Cir. 2000); Rindley v. Gallagher. 929 F.2d 1552 (11th Cir. 1991). Secondly, Defendants Smith and Kast's assertion of the applicability of Pullman abstention is expressly based upon the assumption that the Court will find that Plaintiffs have failed to allege a case or controversy under the ADA or the Rehabilitation Act. See Motion to Dismiss of Smith and Kast (Dkt. 5 at p. 9).
Defendants do not assert any ofthe other abstention doctrines.8 The Court's own review of the applicable authorities indicates the inapplicability of such other abstention theories although Burford abstention would seem to come closer than abstention under Pullman. But the purpose of Burford appears to principally be directed to the protection of complex state administrative processes from undue federal interference. New Orleans Pub. Serv.. Inc. v. Council ofthe City ofNew Orleans. 491 U.S. 350,362 (1989); Boyes v. Shell Oil Products. 199 F.3d 1260, 1265 (11th Cir. 2000); Election 2000: The Law ofTied Presidential Elections, 26 Nova L. Rev. 647, 761 (Spring 2002).
7 Railroad Commission of Texas v. Pullman Co.. 312 U.S. 496 (1941). 8 E.g., Burford abstention under Burford v. Sun Oil Co.. 319 U.S. 315 ( 1943), and Colorado River abstention under Colorado River Water Conservation District. 42 U.S. 800 (1976).
12
A072A (Rev.S/82)

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Nor have Defendants Smith and Kast asserted that the Court should exercise its discretion in declining, under 28 U.S.C. § l367(c), supplemental jurisdiction over the Count II claim. Subsection (c)(l) of Section 1367 provides that the district court may decline to exercise supplemental jurisdiction over the state claim if"the claim raises a novel or complex issue of State law." However, the issue of whether the above Florida statutory sections are violative ofthe Florida Constitution are, as previously indicated above, so intertwined with the federal claims in Counts One (ADA) and Three (Rehabilitation Act) that to decline supplemental jurisdiction over Count Two would appear to be an abuse of the Court's discretion.
The Court also notes that it does not have the option of certifying a question to the Florida Supreme Court. While the Florida Supreme Court has jurisdiction to "review a question oflaw certified by the Supreme Court ofthe United States or a United States Court ofAppeals which is determinative ofthe cause and for which there is no controlling precedent ofthe supreme court ofFlorida," FLA. CONST. art. V, § 3(b)(6), it does not have jurisdiction to review a question oflaw certified by a federal district court. Thus, pursuant to Defendants' Motions to Dismiss, the Court must address whether Plaintiffs have stated a claim in Count Two. And that depends upon the answer to the question of whether the Florida Constitution guarantees visually and manually impaired voters the right to be provided a method of unassisted voting.
13
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Florida's Constitution provides that ""[a]ll elections by the people shall be by direct and secret vote." FLA. CONST. art. VI, § 1. This language became part ofthe Florida Constitution in 1968 when a joint resolution ofthe Florida House and Senate, see S.J.R. 4-2X, Spec. Sess. 1968, placed the change on the ballot and the language was adopted. When interpreting a constitutional provision, the fundamental goal is to give effect to the intent ofthe framers. See State ex rei. Dade County v. Dickinson. 230 So. 2d 130, 135, (Fla. 1969). ""Ambiguity is an absolute prerequisite to judicial construction." Florida League ofCities v. Smith. 607 So. 2d 397, 400 (Fla. 1992). Ifa provision is ambiguous, a court should ""focus primarily on factors that inhere in [the state's unique experience], such as the express language ofthe constitutional provision, its formative history, both preexisting and developing state law, evolving customs, traditions and attitudes within the state, [the] state's own general history, and finally any external influences that may have shaped state law."' Mozo v. State. 632 So. 2d 623,630 (4th DCA 1994), rev' g 640 So. 2d 1108, (Fla. 1994), remanded on other grounds 655 So. 2d 1115 (Fla. 1995), (quoting Taylor v. State. 596 So. 2d 957,962 (Fla. 1992)). If a constitutional provision could have more than one meaning and the Legislature has adopted one meaning by enacting a statute, the Legislature's interpretation is persuasive, ifnot controlling. See Greater Loretta Imp. Ass 'n v. State ex rei. Boone. 234 So. 2d 665, 669 (Fla. 1970).
A Florida Court could interpret the Florida Constitutional provision at issue as requiring the provision of a method by which visually and manually impaired voters may vote without assistance so as to avoid anyone but the voter knowing how the vote was cast. However, a
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Florida Court could also interpret the language at issue as being satisfied by the assistance provided by Section 101.051, Florida Statutes.9 Consequently,

A072A (Rev.8182)

9 Section 101.051 provides:
( 1) Any elector applying to vote in any election who requires assistance to vote by reason ofblindness, disability, or inability to read or write may request the assistance of two election officials or some other person of the elector's own choice, other than the elector's employer, an agent of the employer, or an officer or agent of his or her union, to assist the elector in casting his or her vote. Any such elector, before retiring to the voting booth, may have one of such persons read over to him or her, without suggestion or interference, the titles of the offices to be filled and the candidates therefor and the issues on the ballot. After the elector requests the aid of the two election officials or the person of the elector's choice, they shall retire to the voting booth for the purpose of casting the elector's vote according to the elector's choice.
(2) It is unlawful for any person to be in the voting booth with any elector except as provided in subsection ( 1).
(3) Any elector applying to cast an absentee ballot in the office of the supervisor, in any election, who requires assistance to vote by reason of blindness, disability, or inability to read or write may request the assistance of some person ofhis or her own choice, other than the elector's employer, an agent of the employer, or an officer or agent of his or her union, in casting his or her absentee ballot.
(4) If an elector needs assistance in voting pursuant to the provisions of this section, the clerk or one of the inspectors shall require the elector requesting assistance in voting to take the following oath:
DECLARATION TO SECURE ASSISTANCE
State of Florida County of _ _ Date Precinct
I, (Print name), swear or affl1111 that I am a registered elector and request assistance from (Print names) in voting at the (name of election) held on (date of election) for the following reason
(Signature of voter)
Sworn and subscribed to before me this _ _ day o f _ , (year) .
(Signature of Official Administering Oath)
(5) The supervisor ofelections shall deliver a sufficient number ofthese forms to each precinct, along with other election paraphernalia.
15

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Article VI, Section 1 of the Florida Constitution is ambiguous. According to Black's Law Dictionary, "direct" is defined as "straight; undeviating[;] .
. . straightforward[;] ... [:fjree from extraneous influence; immediate[;] ... [o]for relating to passing in a straight line ofdescent, as distinguished from a collateral line[;] ... effected by the public immediately, not through representatives." Black's Law Dictionary (7th ed. 1999). -"Secret" is defmed as "[s]omething that is kept from the knowledge of others or shared only with those concerned[;] ... [i]nformation that cannot be disclosed without a breach of trust; specif., information that is acquired in the attorney-client relationship." Blacks's Law Dictionary (7th ed. 1999). The definitions ofthese words do not clearly point to either ofthe meanings advanced by the respective parties, and thus are not dispositive ofthe issue.
While the term "direct" could be read to support Plaintiffs' interpretation (absolute directness), it also could be construed as contemplating a more flexible interpretation which gives emphasis to the element "free from extraneous influence." If a Florida court were to choose the latter defmition, the provisions of Section 101.051, which provides that the person(s) providing the assistance must read the ballot to the voter ''without suggestion or interference" and that "after the [voter] requests the aid ofthe [person(s) providing assistance], they shall retire to the voting booth for the purpose of casting the elector's vote according to the [voter's1choice." (emphasis added), would arguably satisfy this requirement ofdirectness.
Similarly, the term "secret" could be construed to support both Plaintiffs' and Defendants' positions. While the term may be read to mean absolute secrecy, it also may be
16
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construed less restrictively so as to contemplate information known only by a few or information not publicly known. The assistance provided by Section 101.051 would not appear to violate the latter meaning because only one or two people aside from the voter would know for whom the person voted, and Section 104.23, Florida Statutes, makes it a third degree felony for someone assisting a voter to disclose how the voter voted.
Few cases have dealt with the meaning ofthe current language ofArticle VI Section 1. In Boardman v. Esteva. 323 So. 2d 259, 269 (Fla. 1975), the Florida Supreme Court considered whether a procedure used to canvass absentee ballots violated the Florida Constitutional provision of secrecy. The canvassing procedure required "the Hillsborough County Canvassing Board to assign a number to each absentee elector for purposes ofmaintaining the integrity of the ballots and votes for purposes of judicial review." Id. The Court noted that traditionally under Florida law, when a voter opts to vote by absentee ballot, the voter waives secrecy ofthe ballot. See id. While the Court did not decide that there had been such a waiver, it observed that the plaintiff did not assert that the right of secrecy was violated when the absentee ballots were cast. See id. Instead, the canvassing procedure was used to maintain the integrity of the ballots for judicial review. See id. The Court emphasized that there was no contention that the voters were in any way influenced in their voting by the canvassing procedure or that a violation of secrecy actually occurred. See id. Thus, the Court held that the absentee ballots "were not invalidated by reason ofa violation ofthe right ofsecrecy ofthe ballot." Id.
17
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~
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While no actual violation of the right of secrecy was found in Boardman. the case illustrates that a Florida court interpreting the requirements of Article VI Section I places emphasis on whether the affected voters were influenced in their voting. The concern with a voter's decision being influenced by others also appears to have been a primary motivation behind the historic right to secrecy under the Florida Constitution. The current language of Article VI Section I replaced former Article VI Section 6, which provided that "in all elections by the people, the vote shall be by ballot," FLA CONST. Art. VI § 6 ( 1885). "The material guaranty ofthis constitutional mandate ofvote by ballot is inviolable secrecy as to the person for whom an elector shall vote." State ex rei. Smith v. Anderson. 8 So. I, 5 (Fla. 1890). This right to secrecy was intended to protect voters from the conduct of others, see Bowden v. Carter, 65 So. 2d 871, 874 (1953), and to ensure that no one was in a position to question a voter's decision, see State v. Tucker. 173 So. 754, 756 (Fla. 1932).
Thus, it appears that both the current Florida Constitutional right to secrecy and its predecessor are premised, at least in part, upon a concern that one's vote not be influenced by others. This premise supports the interpretation that Article VI, Section 1 is satisfied by the assistance provided in Section 101.051 because Sections I01.051 and 104.23 (making it a third degree felony for someone assisting a voter to disclose how the voter voted) go to significant lengths to prevent someone providing assistance to voters from influencing their voting.
Similarly, the Legislature has, at least tacitly, interpreted the "direct and secret" language as having been satisfied by the assistance provided by Section 101.051. As noted
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above, ifa constitutional provision is susceptible to more than one meaning and the Legislature
Ihas adopted one meaning by enacting legislation, the Legislature's interpretation is persuasive
if not controlling. See Greater Loretta Imp. Ass'n. 234 So. 2d at 669. At the time the , Legislature passed the joint resolution placing the "direct and secret" language on the ballot in
I968, a previous version of Section I0 I.051 provided assistance to illiterate and disabled voters. 10 Section I01.051 was subsequently amended by the Legislature in 1977, see 1977 Fla.

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10 This previous version of Section I01.051 provided:

( 1) Any elector applying to vote in any election who is unable to read or write or who, because of some physical disability, needs assistance in voting may request assistance of two election officials or some other person of his own choice, who has not previously so acted for more than one other person during the election, to assist him in casting his vote. Any such elector, before retiring to the voting booth, may have one ofthe election officials read over to him, without suggestion or interference, the titles of the offices to be filled and the candidates therefor and the issues on the ballot. After the elector requests the aid of the two election officials, or the person of his choice, they shall retire to the voting booth for the purpose of casting the elector's vote according to the elector's choice.
(2) It shall be unlawful for any person to be in the voting booth with any elector except as provided in subsection (1).
(3) Any elector applying to cast an absentee ballot in the office of the supervisor, in any election, who is unable to read or write or who, because of some physical disability, needs assistance in voting may request the assistance of some person ofhis own choice, who has not previously assisted more than one other person during the election, in casting his absentee ballot. However, no supervisor ofelections or his deputies or members of his staff shall act in such capacity.
(4) If an elector needs assistance in voting pursuant to the provisions of this section, the clerk or one ofthe inspectors shall require the elector requesting assistance in voting to take the following oath:

DECLARATION TO SECURE ASSISTANCE

State of Florida

County of ....

Date .....

Precinct .... . I, .....(Print name) ....., swear or affirm that I am a registered elector and
request assistance from .... (Print names) ..... in voting at the ..... (name of

(continued ... )

19

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Laws ch. 77-175 § 13; in 1979, see 1979 Fla. Laws ch. 79-366 § 2; in 1984, see 1984 Fla. Laws ch. 84-302 § 31; in 1985, see 1985 Fla. Laws ch. 85-226 § 12; in 1995, see 1995 Fla. Laws ch. 95-147 § 553; and in 1999, see 1999 Fla. Laws ch. 99-6 § 8. Under all versions of Section 101.051, assistance was provided to disabled and illiterate voters. Since legislators are sworn to uphold the constitution, see Williams v. Smith. 360 So. 2d 417, 421 n.9 (Fla. 1978), and when possible statutes are to be construed as constitutional, see In re T.W., 551 So. 2d 1186, 1201 (Fla. 1989), there is a presumption that, in allowing an earlier version ofSection 101.051 to remain in effect when the "direct and secret" language was added to the Constitution and in amending Section 101.051 over the years, the Legislature interpreted the "direct and secret" language as being satisfied by the assistance provided to disabled and illiterate voters.11
In light ofthe different potential interpretations of the "direct and secret" language in Article VI Section 1, the Florida courts' focus on the absence ofinfluence on a person's vote under the right ofsecrecy, the apparent interpretation ofthis language by the Legislature, and the presumption in favor of the validity of statutes, this Court holds that the Florida Supreme
10( •••continued) election) ..... held on ..... (date of election) ..... for the following reason .....
. . . . . (Signature of voter) ..... Sworn and subscribed to before me this ..... day of ....., 19.....
. . . . . (Signature of Official Administering Oath) ..... (5) The supervisor of elections shall deliver a sufficient number of these forms to each precinct, along with other election paraphernalia. Fla. Stat.§ 101.051 (1967). 11 See Section D.l., infra, (particularly at footnotes 23 and 24}, for discussion ofrecent legislation enacted by the 2002 Florida Legislature.
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. Court would interpret the "direct and secret" language of the Florida Constitution as being satisfied by the assistance provided in Section 101.051.
Thus, Defendants Smith and Kast and their predecessors did not violate Article VI, Section 1, Florida Constitution by certifying voting equipment that does not allow visually and manually impaired voters to vote without assistance. Similarly, Defendants Stafford and the
! Council did not violate Article VI , Section 1, Florida Constitution, by purchasing voting
equipment that does not permit visually and manually impaired voters to vote without assistance. In addition, Sections 101.560612 and 101.28,13 Florida Statutes, do not violate

A072A (Rev.S/82)

12 Section 101.5606 provides:

No electronic or electromechanical voting system shall be approved by the Department of State unless it is so constructed that:
(I) It permits and requires voting in secrecy. (2) It permits each elector to vote at any election for all persons and offices for whom and for which the elector is lawfully entitled to vote, and no others; to vote for as many persons for an office as the elector is entitled to vote for; and to vote for or against any question upon which the elector is entitled to vote. (3) The automatic tabulating equipment will be set to reject all votes for any office or measure when the number of votes therefor exceeds the number which the voter is entitled to cast or when the voter is not entitled to cast a vote for the office or measure. (4) It is capable of correctly counting votes. (5) It permits each voter at a primary election to vote only for the candidates seeking nomination by the political party in which such voter is registered, for any candidate for nonpartisan office, and for any question upon which the voter is entitled to vote. (6) At presidential elections it permits each elector, by one operation, to vote for all presidential electors of a party or for all presidential electors of candidates for President and Vice President with no party affiliation. (7) It provides a method for write-in voting. (8) It is capable of accumulating a count of the specific number of ballots tallied for a precinct, accumulating total votes by candidate for each office, and accumulating total votes for and against each question and issue of the ballots tallied for a precinct. (9) It is capable of tallying votes from ballots of different political parties from the same precinct, in the case of a primary election. (10) It is capable of automatically producing precinct totals in printed, marked, or punched form, or a combination thereof.

(continued ... )

21

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A072A (Rev.S/82)

12{ •••continued) (11) If it is of a type which registers votes electronically, it will permit each
voter to change his or her vote for any candidate or upon any question appearing on the official ballot up to the time that the voter takes the final step to register his or her vote and to have the vote computed.
{12) It is capable ofproviding records from which the operation ofthe voting system may be audited.

13 Section I01.28 provides:

All voting machines purchased for use in this state shall meet the following minimum requirements:
(I) Each voting machine shall: (a) Secure to the elector secrecy in the act of voting. (b) Provide facilities for voting for or against as many questions as may be submitted. (c) Permit the elector to vote for the candidates of one or more parties. (d) Permit the elector to vote for as many persons for an office as the elector is lawfully entitled to vote for, but no more. (e) Prevent the elector from voting for the same person more than once for the same office. (f) Permit the elector to vote for or against any question the elector may have the right to vote upon, but no other. (g) Be so equipped that, when used in primary elections, the election officials can, by a single adjustment on the outside of the machine, lock out all races and questions except those in which the elector is entitled to vote. (h) Correctly register or record, and accurately count, all votes cast for any and all persons and for or against any and all questions. (i) Be provided with a "protective counter" or "protective device" whereby any operation of the machine before or after the election will be detected.
G) Be provided with a counter which shall show at all times during any
election how many persons have voted.
(k) Be provided with one device per machine for each party for voting for all presidential electors of that party by one operation (in connection with which there shall be provided on the ballot the words "Electors for President and Vice President" followed by the name ofthe party and thereafter by the names ofthe candidates thereof for the offices of President and Vice President) and a registering device which shall register the votes cast for such electors thus voted for collectively, as contemplated by s. l03.011.
(2) Each voting machine shall be furnished with an electric light, or a proper substitute for one, which will give sufficient light to enable electors while voting to read the ballots.
(3) Each voting machine used in any election shall be provided with a screen, hood, or curtain which shall be so made and adjusted as to conceal the elector and the elector's action while voting.
(4) Voting machines may be provided with a device or devices which will print a copy or copies of the count shown on the candidate and question counters, as

(continued ... )

22

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1 Article VI, Section 1, Florida Constitution. Nothing provided for in these sections contravenes ·;Article VI, Section 1, Florida Constitution, as interpreted above.
D. ADA (Count One) and Rehabilitation Act (Count Three) As discussed above in Section C hereof, Article VI, Section 1ofthe Florida Constitution provides for a program, activity, or service of direct and secret voting that is properly •interpreted to permit the kind ofassistance provided in Section 101.051, Florida Statutes. The question still remains, however, whether the program, activity, or service provided violates the ADA or the Rehabilitation Act. Title II of the ADA provides:
Subject to the provisions ofthis subchapter, 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. 42 U.S.C. § 12132; see also 28 C.F.R. § 35.130(a). Thus, '"[t]o state a claim under Title II of the ADA, a plaintiffmust allege: (1) that he is a 'qualified individual with a disability;' (2) that he was 'excluded from participation in or ... denied the benefits ofthe services, programs, or activities ofa public entity' or otherwise 'discriminated [against] by such entity;' (3) 'by reason of such disability."' Shotz v. Cates. 256 F.3d 1077, 1079 (11th Cir. 2001) (alteration in , original). Section 504 of the Rehabilitation Act provides:

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13( •••continued) registered both before the polls open and after the polls close.
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No otherwise qualified individual with a disability in the United States, as defined in section 705(20) of this title, shall, solely by reason ofher or his 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. 29 U.S.C. § 794(a). Thus, to state a cause ofaction under both the ADA and the Rehabilitation Act, a plaintiff must allege that he or she is a qualified individual with a disability who was excluded from participation in a program or activity, denied the benefits of a program or activity, or subjected to discrimination because ofsaid disability. The Rehabilitation Act has an additional requirement that th~ program or activity receive federal financial assistance. In view ofthe basic similarities ofthe provisions ofTitle II ofthe ADA and Section 504 of the Rehabilitation Act, 14 the parties have addressed in their briefs Counts One and Three 1 together except, of course, as to the above mentioned additional federal funding requirement ofthe Rehabilitation Act. The Court will likewise do so. Defendants do not appear to contend that Plaintiffs have failed to allege that they are or represent qualified individuals with disabilities or that Defendants represent public entities. Instead, Defendants contend that Plaintiffs have failed to allege that they were excluded from participation in or denied the benefits of the services, programs, or activities provided by the Defendants. Defendants argue that since Plaintiffs are able to vote with assistance, they have
14 See McCrayv. CityofDothan. 169 F. Supp. 2d 1260, 1273 (M.D. Ala.200l); Harris v. Thigpen, 941 F.2d 1495 (lith Cir. 1991); Allison v. Dept. of Corrections. 94 F.3d 494,497 (8th Cir. 1996); Van Zande v. Wisconsin Dep't. of Admin., 44 F.3d 538,542 (7th Cir. 1995).
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not been excluded from participating in or denied the benefits of the service, program, or activity.
Section 35.149 ofthe Code ofFederal Regulations15 provides: Except as otherwise provided in § 35.150, no qualified individual with a disability shall, because a public entity's facilities are inaccessible to or unusable by individuals with disabilities, be excluded from participation in, or be denied the benefits of the services, programs, or activities ofa public entity, or be subjected to discrimination by any public entity.
28 C.F.R. § 35.149. A facility is defined as "all or any portion of buildings, structures, sites, complexes, equipment. rolling stock or other conveyances, roads, walks, passageways, parking lots, or other real or personal property, including the site where the building, property, structure, or equipment is located." 28 C.F.R. § 35.104 (emphasis added).
The regulations distinguish between the accessibility ofservices, programs, or activities in facilities constructed16 on or before January 26, 1992, and those in facilities constructed or altered after January 26, 1992. See Ass'n for Disabled Ams. v. City ofOrlando. 153 F. Supp. 2d 1310, 1317 (M.D. Fla. 2001). For facilities constructed on or before January 26, 1992, a public entity need not necessarily modify each facility so as to make it accessible for disabled
15 Title II is to be read in conjunction with the regulations promulgated by the Department of Justice pursuant to 42 U.S.C. § 12134 of the ADA. EllenS. v. Florida Board of Bar Examiners. 859 F. Supp. 1489 (S.D. Fla. 1994); see also Alexander v. Sandoval. 53 I U.S. 1049 (2001).
16 Since, as noted above, "facilities" are defined to include "equipment," the regulation's reference to construction of facilities (e.g., "facilities constructed or altered after" a certain date) apparently is intended to apply to alterations of equipment , such as voting machines.
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individuals, but must operate a service, program, or activity such that it is readily accessible ; and usable by such individuals when viewed in its entirety. See 28 C.F.R. § 35.150(a).17
For facilities altered or constructed after January 26, 1992, a "heightened standard is
applied.'' Ass'n for Disabled Ams.. 153 F. Supp. 2d at 1318. With respect to post January 26,
1992, alterations of facilities, the regulations require:
(b) Alteration. Each facility or part ofa facility altered by, on behalf of, or for the use of a public entity in a manner that affects or could affect the usability of the facility or part of the facility shall, to the maximum extent feasible, be altered in such manner that the altered portion ofthe facility is readily accessible to and usable by individuals with disabilities, ifthe alteration was commenced after January 26, 1992.
28 C.F.R. § 35.15l(b) (emphasis added).
In Shotz v. Cates. 256 F.3d 1077, 1079-81 (lith Cir. 2001), the Eleventh Circuit,
reviewing a district court's order of dismissal, considered whether facilities were readily accessible to individuals with disabilities. In Shotz, 18 the plaintiffs alleged that the county
courthouse was not readily accessible because of architectural barriers such as ramps with
excessive slopes and bathroom stalls with insufficient floor space. The court ruled that Title
17 Section 35.150(a) provides: (a) General. A public entity shall operate each service, program, or activity
so that the service, program, or activity, when viewed in its entirety, is readily accessible to and usable by individuals with disabilities. This paragraph does not ..
(subsections (a)(l )-(3) not included here).
18 Although accessibility to the facility in Shotz was considered under the more lenient standard of28 C.F.R. § 35.150(a), ~footnote 17, ~because it was not altered or constructed after January 26, 1992, the case is instructive on the meaning of the phrase "readily accessible."
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II of the ADA is not restricted to those situations in which "a disabled person is completely prevented from enjoying a service, program, or activity." ld. at 1080 (emphasis added). Rather, the court said that "if the ramps are so steep that they impede a disabled person or if the bathrooms are unfit for the use of a disabled person, then it cannot be said that the trial is 'readily accessible,' regardless whether the disabled person manages in some fashion to attend the trial." ld. (quoting 28 C.F.R. § 35.150) (emphasis added).
Similarly, the Rehabilitation Act requires that qualified individuals with a disability be provided meaningful access to programs or activities receivingfederal financial assistance. See Alexander v. Choate. 469 U.S. 287, 301 (1985). In Alexander. the State of Tennessee proposed to reduce from twenty to fourteen hospital days for which Tennessee Medicaid would pay. Undisputed statistical evidence indicated that 27.4% ofall disabled persons hospitalized required stays in excess of fourteen days while only 7.8% of nondisabled hospital patients required stays in excess offourteen days. The Court considered whether this change excluded disabled persons from or denied them the benefits ofthe coverage provided by the Tennessee Medicaid program. See id. at 302. The Court ruled that Section 504 requires that qualified individuals with disabilities be provided meaningful access to the benefits ofthe program. See id. at 30I. The Court held that the plaintiffs were provided meaningful access because there was no evidence that the fourteen-day limitation denied the plaintiffs meaningful coverage under the Tennessee Medicaid program. See id. at 302. The plaintiffs would be entitled to the same meaningful coverage as nondisabled persons. See id.
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In the instant case, Plaintiffs have alleged that voting equipment approved by Defendants Smith's and Kast's predecessors and purchased by Defendants Stafford and the
ICouncil is not "readily accessible" to visually and manually impaired voters. In light of the
!facts alleged in the Complaint, the Court cannot say with certainty that the Plaintiffs would not :be entitled to relief under any state of facts which could be proved in support of their claim under the ADA. Cook & Nichol. Inc. v. Plimsoll Club. 451 F.2d at 506. Similarly, Plaintiffs have alleged that Defendants have violated the Rehabilitation Act by excluding them from participating in and denying them the benefits of a program or activity. In light ofthe factual allegations in the complaint, Plaintiffs may be able to prove that visually and manually impaired voters are being denied meaningful access to the service, program, or activity. And so, the Court cannot say with certainty that the Plaintiffs would not be entitled to relief under any state offacts which could be proved in support oftheir claim under the Rehabilitation Act.
Plaintiffs may also be able to prove facts supporting a claim under the ADA pursuant to 28 C.F.R. § 35.160, of Subpart E ("Communications") of28 C.F.R. Pt 35. Section 35.160 provides:
(a) A public entity shall take appropriate steps to ensure that communications with applicants, participants, and members ofthe public with disabilities are as effective as communications with others.
(b)( 1) A public entity shall furnish appropriate auxiliary aids and services where necessary to afford an individual with a disability an equal opportunity to participate in, and enjoy the benefits of, a service, program, or activity conducted by a public entity.
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(2) In determining what type ofauxiliary aid and service is necessary, a public entity shall give primary consideration to the requests of the individual with disabilities. "The public entity shall honor the [disabled person's] choice unless it can demonstrate that another effective means of communication exists or that use of the means chosen would not be required under§ 35.164." 28 C.F.R. Pt. 35 App. A. In the instant case, Plaintiffs have alleged that Defendants have failed to furnish appropriate auxiliary aids. The Court cannot say that there is no set of facts which, ifproved, would support their claim that Defendants violated 28 C.F.R. § 35.160. 19 On a more general note, Defendants appear to characterize the Plaintiffs' Complaint as purporting to assert their ADA (Count One) and Rehabilitation Act (Count Three) claims on ·the basis of their exclusion from participation in or denial of the benefits of the services, program, or activities provided by the Defendants. That does, indeed, seem to be the emphasis •1 ofPlaintiffs' claims under the ADA and the Rehabilitation Act. However, as previously noted above, Title II ofthe ADA and Section 504 ofthe Rehabilitation Act proscribe more than such "exclusion" and "denial." They both, in addition, more generically proscribe disability "discrimination" by the pertinent public entities.2° Without further parsing the allegations of 1 Counts One and Three, suffice it to say that such counts appear to include allegations under the
19 It is not clear whether Plaintiffs are alleging that Defendants subjected Plaintiffs to discrimination pursuant to 28 C.F.R. § 35.130(b) and 28 C.F.R. § 42.503(b). Since Defendants did not specifically move to dismiss these potential claims, the Court will not address them in this Order.
°2 For example, the concluding phrase in Title II ofthe ADA is:"... or be subjected to discrimination by any such
entity."
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more generic proscription of the above statutes. Although this point has received very little treatment in the parties' submissions, the Court is of the view that such allegations may be significant. However, Counts One and Three, in their present form, are unclear insofar as Plaintiffs may seek to rely upon the more generic proscription ofthe above acts. Accordingly, since Plaintiffs will be afforded the opportunity offiling an amended complaint, as hereinafter provided, such amended complaint should allege more clearly in Counts One and Three the bases, if any, for their reliance upon the more generic proscription of the above acts (see footnote 20) in contradistinction to the acts' more specific proscriptions ("exclusion"/denial").
Defendants also assert that Plaintiffs have failed to adequately plead that Defendants received federal financial assistance as required by Section 504 of the Rehabilitation Act. Section 504(a), quoted previously herein, applies to, inter alia, programs or activities receiving federal financial assistance. See 29 U.S.C. § 794(a). Section 504(b) provides:
"For the purposes of [Section 504 of the Rehabilitation Act], the term 'program or activity' means all ofthe operations of-
(1)(A) a department, agency, special purpose district, or other instrumentality ofa State or ofa local government. 29 U.S.C. § 794(b). Section 794(b) was enacted as part ofthe Civil Rights Restoration Act of 1987, Pub. L. No. 100-259 (1988), to restore the "broad, institution wide application ofthe four civil rights statutes, including the Rehabilitation Act." Lussier v. Dugger. 904 F.2d 661, 665 (11th Cir. 1990) (internal quotation marks omitted). "[T]he purpose of the [Civil Rights Restoration Act of 1987] was 'to overturn the Supreme Court's 1984 decision in Grove City College v. Bell."' 465 U.S. 555, 571 (1984), in which the Court narrowly defined the phrase
30
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Case 3:01-cv-01275-HLA-HTS Document 42 Filed 10/16/02 Page 31 of 41 PageiD 429
"program or activity." Id. (quoting S.Rep. No. 64, IOOth Cong., 2d Sess. 2, reprinted inl988
·U.S. Code Cong. & Ad. News 3, 3-4).21
Plaintiffs allege that "Defendants are an instrumentality of a local government that is a
recipient of federal financial assistance." Since a program or activity includes all of the
operations ofan instrumentality oflocal government, the Rehabilitation Act is applicable ifan
!instrumentality of local government receives federal financial assistance. Consequently,
Plaintiffhas adequately alleged that the "program or activity" at issue received federal financial
assistance as to Defendants Stafford and the Councit.22
Plaintiffs have not, however, alleged that Defendants Smith and Kast or their
predecessors received federal financial assistance. Plaintiffs allege that Defendant Smith is the
21 In Grove Citv College. the Court, in considering the Title IX prerequisite that an educational program or activity receive federal fmancial assistance, stated that federally funded student loans, grants, scholarships, etc. received by students constituted federal financial assistance. See id. at 563, 569. However, the Court held that the whole institution did not receive federal financial assistance; rather, only the student fmancial aid program received such assistance. See id. at 571.
22 Defendants Stafford and the Council assert that Nelson v. Miller, 170 F.3d 641, 653 n.8 (6ht Cir. 1999), and Lightboum v. County ofEl Paso. Texas, 118 F.3d 421, 427 (5th Cir. 1997), support their argument that Plaintiffs have failed to adequately allege that they received federal fmancial assistance. In Nelson, the plaintiff alleged that the "'Defendant is an official ofthe state of Michigan which receives federal fmancial assistance."' ld. (quoting the complaint therein). The court stated that, by using the phrase "which receives federal fmancial assistance" instead of"who receives federal fmancial assistance," the plaintiff alleged that the state and not the defendant received federal financial assistance. Id. Since a state is not within the defmition of a "program or activity" set forth in Section 794(b), the court held that the plaintiff failed to allege that the defendant received federal fmancial assistance. Id.
Similarly, in Lightboum the court considered whether the receipt of federal funds by the State of Texas was sufficient to bring the Texas Secretary of State within the purview ofSection 794. Lightboum, 118 F.3d at 426. The court ruled ''that to state a § 504 claim against a state actor a plaintiffmust allege that the specific program or activity with which he or she was involved receives or directly benefits from federal fmancial assistance." Id. at 427. The court reasoned, after citing to the definition ofa "program or activity" in Section 794(b), that a § 794 claim cannot be predicated on the fact that a state receives federal fmancial assistance. See id. at 426-27.
In the instant case, however, Plaintiffs allege that Defendants are an instrumentality of a local government that received federal financial assistance. As discussed above, in light of the definition of a "program or activity" set forth in Section 794(b), Plaintiff has adequately alleged that Defendants Stafford and the Council received federal fmancial assistance.
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Florida Secretary of State and Defendant Kast is the Director for the Division of Elections within the Florida Department of State. Thus, Defendants Smith and Kast are not instrumentalities oflocal government. Since Plaintiffs made no other allegations regarding the receipt offederal financial assistance, Count Three is due to be dismissed with leave to amend
I
as to Defendants Smith and Kast. 1. Recent Amendment ofFiorida Election Code. Creatin& Section 101.56062
Notwithstanding the above discussion, the Court notes that, although not brought to the Court's attention by the parties, the 2002 Florida Legislature has recently enacted new legislation concerning voting and voting systems. See 2002 Fla. Sess. Laws Serv. ch. 2002-281 (West). It is not clear whether this new legislation, Florida Laws 2002-281, which, inter alia, created Section 101.56062,23 would satisfy or ameliorate the Plaintiffs' concerns which

A072A (Rev.S/82}

23 Section 101.56062 provides:

(1) Notwithstanding anything in this chapter to the contrary, each voting system certified by the Department ofState for use in local, state, and federal elections must include the capability to install accessible voter interface devices in the system configuration which will allow the system to meet the following minimum standards:

(a) The voting system must provide a tactile input or audio input device, or both.

(b) The voting system must provide a method by which voters can confirm any tactile or audio input by having the capability of audio output using synthetic or recorded human speech that is reasonably phonetically accurate.

(c) Any operable controls on the input device which are needed for voters who are visually impaired must be discemable tactilely without actuating the keys.

(d) Audio and visual access approaches must be able to work both separately and simultaneously.

(e) If a nonaudio access approach is provided, the system may not require color perception. The system must use black text or graphics, or both, on white

(continued ... )

32

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A072A (Rev.8/82)

23( •••continued) background or white text or graphics, or both, on black background, unless the office of the Secretary of State approves other high-contrast color combinations that do not require color perception.
(f) Any voting system that requires any visual perception must offer the election official who programs the system, prior to its being sent to the polling place, the capability to set the font size, as it appears to the voter, from a minimum of 14 points to a maximum of 24 points.
(g) The voting system must provide audio information, including any audio output using synthetic or recorded human speech or any auditory feedback tones that are important for the use ofthe audio approach, through at least one mode, by handset or headset, in enhanced auditory fashion (increased amplification), and must provide incremental volume control with output amplification up to a level of at least 97 dB SPL.
(h) For transmitted voice signals to the voter, the voting system must provide a gain adjustable up to a minimum of20 dB with at least one intermediate step of 12 dB of gain.
(i) For the safety of others, if the voting system has the possibility of exceeding 120 dB SPL, then a mechanism must be included to reset the volume automatically to the voting system's default volume level after every use, for example when the handset is replaced, but not before. Also, universal precautions in the use and sharing of headsets should be followed.
G) If sound cues and audible information such as "beeps" are used, there must be simultaneous corresponding visual cues and information.
(k) Controls and operable mechanisms must be operable with one hand, including operability with a closed fist, and operable without tight grasping, pinching, or twisting ofthe wrist.
(l) The force required to operate or activate the controls must be no greater than 5 pounds of force.
(m) Voting booths must have voting controls at a minimum height of 36 inches above the fmished floor with a minimum knee clearance of27 inches high, 30 inches wide, and 19 inches deep, or the accessible voter interface devices must be designed so as to allow their use on top ofa table to meet these requirements. Tabletop installations must include adequate privacy.
(n) Any audio ballotmustprovide the voter with the following functionalities:
1. After the initial instructions that the system requires election officials to provide to each voter, the voter should be able to independently operate the voter interface through the fmal step of casting a ballot without assistance.
(continued ... )
33

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prompted the assertion oftheir ADA and Rehabilitation Act claims. Assuming that Plaintiffs
23( •••continued) 2. The voter must be able to determine the races that he or she is allowed to
vote in and to determine which candidates are available in each race.
3. The voter must be able to determine how many candidates may be selected in each race.
4. The voter must be able to have confidence that the physical or vocal inputs given to the system have selected the candidates that he or she intended to select.
5. The voter must be able to review the candidate selections that he or she has made.
6. Prior to the act of casting the ballot, the voter must be able to change any selections previously made and confrrm a new selection.
7. The system must communicate to the voter the fact that the voter has failed to vote in a race or has failed to vote the number of allowable candidates in any race and require the voter to confirm his or her intent to undervote before casting the ballot.
8. The system must prevent the voter from overvoting any race.
9. The voter must be able to input a candidate's name in each race that allows a write-in candidate.
10. The voter must be able to review his or her write-in input to the interface, edit that input, and confirm that the edits meet the voter's intent.
11. There must be a clear, identifiable action that the voter takes to "cast" the ballot. The system must make clear to the voter how to take this action so that the voter has minimal risk of taking the action accidentally but, when the voter intends to cast the balJot, the action can be easily performed.
12. Once the ballot is cast, the system must confirm to the voter that the action has occurred and that the voter's process of voting is complete.
13. Once the ballot is cast, the system must preclude the voter from modifying the ballot cast or voting or casting another ballot.
(2) Such voting system must include at least one accessible voter interface device installed in each precinct which meets the requirements of this section, except for paragraph {I)(d).
(3) The Department of State may adopt rules in accordance with s. 120.54 which are necessary to administer this section.
2002 Fla. Sess. Laws Serv. ch. 2002-281 (West) (notations reflecting added and removed language omitted).
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have the right and desire to continue this litigation, it would seem that, particularly given the
injunctive underpinnings ofPlaintiffs' claims (essentially seeking affirmative mandatory relief
as contrasted with a damages suit based on past acts), a substantial repleader or amended
complaint, which would take into account the status ofthe Florida Election Code, post 2002
legislative session, would be in order.24
24 The Court notes that the new Florida legislation would not affect the Court's ruling as to Count Two (the Florida constitutional claim). Assuming that the standards for the interface devices set forth in Section 101.56062 will allow visually and manually impaired voters to vote without assistance, Section l01.56062 does not alter the presumption (previously referred to herein) that the Legislature has interpreted the "direct and secret" language as being satisfied by the assistance provided by Section l 0 I.05I. "A Constitution is not to be made to mean one thing at one time and another at some subsequent time, when the circumstances may have so changed as perhaps to make a different rule in the case seem desirable." State ex rei. West v. Butler. 69 So. 77I, 780 ( I9I5) (holding that Florida Constitutional provision did not allow for more than one circuit courtjudge perjudicial circuit; reasoning in part that a legislative construction ofthe constitutional provision passed contemporaneously with the adoption ofthe constitutional provision supported this interpretation and that the constitution should not later be interpreted to have a different meaning even if such new meaning was desirable at the time).
Where a particular construction has been generally accepted and acted upon, and especially when this has occurred contemporaneously with the adoption of the Constitution, and by those who had opportunity to understand the intention of the instrument, a strong presumption exists that the construction rightly interprets the intention.
For over thirty years, the Florida Legislature has at least tacitly interpreted the "direct and secret" requirement of the Florida Constitution as being satisfied by the assistance provided in Section I0 1.05 1. As noted above, at the time the language at issue was added to the Constitution, a previous version of Section 101.051 provided assistance to disabled voters. In addition, legislative enactments more contemporaneous with the adoption of the "direct and secret" language than Section 10 I.56062 provided assistance to disabled voters without also providing a method for disabled voters to vote without assistance. Consequently, the interpretation of Article VI, Section 1 indicated by these previous, more contemporaneous legislative enactments are presumed to be correct, and Section 10 I.56062 cannot reasonably be interpreted as changing the meaning of Article VI, Section 1.
This holding is supported by the absence of any reference in the staff analysis for Senate Biiii350, which was enacted as Florida Laws 2002-28I, to Article VI, Section I or to the requirement that elections be by "direct and secret" vote. See Senate Staff Analysis and Economic Impact Statement, S.B. 1350, 2002 Leg., Reg. Sess. (Fla. 2002).
It appears that Section l01.56062 simply provides broader rights than those required by Article VI, Section l. Such is certainly permissible as long, of course, as the legislation is not in contravention of the Florida or federal constitutions. See Pinellas Countv v. Laumer. 94 So. 2d 837, 840 (Fla. l957)(holding that the authority ofthe Legislature is limited only by the Constitution); State ex rei. Johnson v. Johns. 109 So. 228, 231 (Fla. 1926) (holding that legislative authority is only limited by the state and federal constitutions). This interpretation is supported by the fact that the Legislature has not required that all voting systems used meet the standards provided in Section 101.56062. Instead, the
(continued ... )
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E. Legislative Immunity Defendant Council members assert that they are entitled to absolute legislative immunity. The Council cites to Woods v. Gamel. 132 F.3d 1417, 1419 (II th Cir. 1998), and Ellis v. Coffee County Bd. of Registrars. 981 F.2d 1185, 1190 (lith Cir. 1993), for the proposition that local legislators are entitled to absolute legislative immunity for legislative acts. Defendant Council members argue that their vote to approve state funds for the purchase ofthe optical scan voting system was a legislative act entitling them to absolute immunity and requiring the action to be dismissed as to them. The Speech or Debate Clause, Article I, Section 6, United States Constitution, immunizes members of Congress from suits for damages or prospective relief when acting within the sphere oflegitimate legislative activity. See Supreme Court ofVa. v. Consumers Union of the U.S.. Inc.. 446 U.S. 719, 731 (1980); Eastland v. U.S. Servicemen's Fund. 421 U.S. 491, 502-03 (1975). The clause has been read broadly to ensure the independence of members of Congress, to reinforce the separation of powers, and to prevent suits from distracting or diverting "time, energy, and attention from legislative tasks." Eastland, 421 U.S. at 503.
24{ •••continued) standards are reserved to voting systems approved by the Department ofState. This necessarily is limited to voting systems certified after this section was enacted. If the Legislature had interpreted Article VI Section I as providing a right to unassisted voting, then the Legislature likely would have taken action to more fully provide for this right. If, however, the Legislature is merely providing a broader right by statute than is required by the Constitution, then only requiring newly certified voting systems to meet the requirements of Section 101.56062 would not be an inappropriate way to provide for this right.
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Similarly, "state legislators enjoy common-law immunity from liability for their legislative acts, an immunity that is similar in origin and rationale to that accorded Congressmen under the Speech or Debate Clause." Supreme Court ofVa.. 446 U.S. at 732. Such common-law immunity has also been extended to local legislators. See Woods. 132 F.3d at 1419. While the common-law legislative immunity available to state and local legislators is not always as broad as the immunity provided to members ofCongress under the Speech or Debate Clause, in civil cases, the immunities appear to be of similar breadth. See U.S. v. Gillock. 445 U.S. 360, 372-73 (1980) (holding that legislative privilege under the Speech or Debate Clause is broader in criminal actions than the common-law legislative privilege available to state and local legislators).
In the instant case, Plaintiffs' claims against Defendant Council members are premised _on the Council members' voting to approve an ordinance appropriating funds for the purchase ofvoting equipment. Voting by such officials is manifestly a legislative act. See Woods, 132 F.3d at 1420. Consequently, the Defendant Council members are entitled to absolute legislative immunity.
Upon consideration thereof, it is hereby ORDERED: 1. With respect to the Motion to Dismiss (Dkt. 5) filed by Defendants Smith and Kast, said Motion is GRANTED in part such that:
a. Count One and Count Three are DISMISSED with prejudice to the extent Plaintiffs assert that they have been excluded from or denied the
37
A072A (Rev.S/82)

Case 3:01-cv-01275-HLA-HTS Document 42 Filed 10/16/02 Page 38 of 41 PageiD 436
benefits of a program ofdirect and secret voting that does not permit the type of assistance provided for in Section 101.051. b. Count Two is DISMISSED with prejudice. c. Count Three is DISMISSED with leave to amend. Plaintiffs may file an amended complaint as set forth in paragraph 3. below. 2. With respect to the Motion to Dismiss (Dkt. 6) filed by Defendants Stafford, Alvarez, Brown, Carlucci, Carter, Chandler-Thompson,Daniels, Fullwood, Hipps, Holland, Holzendorf, Jenkins, Lockett-Felder, Overton, Ray, Rustin, Self, Soud, Southwell, and Yates, said Motion is GRANTED in part such that: a. All Counts are DISMISSED with prejudice as to Defendants Alvarez, Brown, Carlucci, Carter, Chandler-Thompson, Daniels, Fullwood, Hipps, Holland, Holzendorf,Jenkins,Lockett-Felder,Overton, Ray, Rustin, Self, Soud, Southwell, and Yates. b. Count One and Count Three are DISMISSED with prejudice as to Defendant Stafford to the extent Plaintiffs assert that they have been excluded from or denied the benefits of a program of direct and secret voting that does not permit the type of assistance provided for in Section 101.051. c. Count Two is DISMISSED with prejudice.
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Case 3:01-cv-01275-HLA-HTS Document 42 Filed 10/16/02 Page 39 of 41 PageiD 437

3. Plaintiffs may file an amended complaint on or before November 5, 2002, that includes allegations supporting the Rehabilitation Act claim of Count Three as to Defendants 1Smith and Kast. In addition, such amended complaint should take into consideration current Florida law, as amended by the 2002 Florida Legislature. (See text ofthis Order accompanying footnote 23). Such amended complaint should also include appropriate clarifying allegations as stated in the paragraph immediately following footnote 19 of this Or~
DONE AND ORDERED, at Jacksonville, Florida, this Ad;), ofOctober, 2002.

Copies to: Counsel of record

Prose party, if any

-,

Courtroom Deputy Clerk

Judicial Assistant

-

Law Clerk

PH . NIMMONS, UNITED STATES DISTRICT JUDGE
F IDOCS\JAX\CJVIL\Ol-127S disB wpd

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A072A (Rev.8182)

Case 3:01-cv-01275-HLA-HTS Do~urpe£t ~2 ~leS ~O/t6/02 Page 40 of 41 PageiD 438
Date Printed: 10/16/2002
Notice sent to:
James Douglas Baldridge, Esq. Howrey, Simon, Arnold & White, LLP 1299 Pennsylvania Ave., N.W. Washington, DC 20004-2402
Alan M. Wiseman, Esq. Howrey, Simon, Arnold & White, LLP 1299 Pennsylvania Ave., N.W. Washington, DC 20004-2402
Danielle R. Oddo, Esq.
Howrey, Simon, Arnold & White, LLP
1299 Pennsylvania Ave., N.W. Washington, DC 20004-2402
Courtney 0. Taylor, Esq. Howrey, Simon, Arnold & White, LLP 1299 Pennsylvania Ave., N.W. Washington, DC 20004-2402
Vincent E. Verrocchio, Esq. Howrey, Simon, Arnold & White, LLP 1299 Pennsylvania Ave., N.W. Washington, DC 20004-2402
Lois G. Williams, Esq. Washington Laywers Committee for Civil Rights & Urban Affairs 11 Dupont Circle, N.W. Suite 400 Washington, DC 20036
Tracey I. Arpen Jr., Esq. General Counsel's Office City of Jacksonville 117 W. Duval St. St. James Bldg., Suite 480 Jacksonville, FL 32202
Jason R. Teal, Esq. General Counsel's Office City of Jacksonville 117 W. Duval St. St. James Bldg., Suite 480 Jacksonville, FL 32202
Scott D. Makar, Esq. Office of General Counsel St. James Bldg, Suite 480 117 W. Duval St. Jacksonville, FL 32202

Case 3:01-cvC-0h1a2r7lSe-sHL·AA-. H1F~lnnRoeclu, m~esnqt .42 Filed 10/16/02 --- Attorney General's Office
Corrections Litigation Branch The Capitol, Suite PL-01 Tallahassee, FL 32399-1050

Page 41 of 41 PageiD 439

 
 Case 3:01-cv-01275-HLA-HTS Document 47 Filed 11/05/02 Page 1 of 25 PageiD 607

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION

FILED
~
ZCUZ NOV -5 A ~ 1.1

)

American Association of People with

)

Disabilities, Daniel W. O'Connor,

)

Kent Bell, and Beth Bowen

)

)

Plaintiffs, on behalf of themselves and )

others similarly situated

)

)

~

)

)

Jim Smith, as Secretary of State for the State of )

Florida; Edward Kast, as Director, Division of )

Elections; and John Stafford, as Supervisor of )

Elections in Duval County, Florida.

)

)

______D_ef_e_nd_a_nt_s.___________________))

CIVIL ACTION NO. 3:01-CV-1275J-21 TJC

AMENDED COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF
NATURE OF ACTION
"The Administration ... supports improving access to polling places and ballot secrecy for people with disabilities .... The story of America ... is the story of ever-widening circle of inclusion ... That circle was widened ten years ago, when Congress passed the Americans with Disabilities Act. Because of the ADA, discrimination against a person with a disability is not just unkind or cruel or wrong: It is an infringement of federal law, and a violation of civil rights." President George W Bush, February 1, 2001.
1. By this action, visually and manually impaired voters in Duval County, Florida
seek to ensure their basic right to cast independently a secret ballot in a manner the same or
similar to that of non-disabled voters. Through the action and inaction of the bodies that govern
the Duval County voting process, voters with visual disabilities and voters with manual

L/1

Case 3:01-cv-01275-HLA-HTS Document 47 Filed 11/05/02 Page 2 of 25 PageiD 608
disabilities have been denied their right to vote for the candidates of their choice in the free, unimpaired and independent manner enjoyed by non-disabled citizens. They have been denied that right because the voting equipment certified, used and recently obtained by Defendants is not accessible to voters with visual impairments and voters with manual impairments. The barriers imposed by that voting equipment vanish through the use of existing and readily available technology. Accessible voting equipment is the only method of ensuring that voters with visual disabilities and voters with manual disabilities can exercise their right to cast independently a secret ballot in a manner the same as or similar to that used by non-disabled voters. Plaintiffs seek the Court's assistance in assuring that such equipment becomes a standard part ofthe voting process.
JURISDICTION AND VENUE 2. This action arises under the Americans with Disabilities Act ("ADA"), 42 U.S.C. Section 12133 and Section 504 of the Rehabilitation Act of 1973 ("Rehabilitation Act"), 29 U.S.C. Section 794. Accordingly, subject matter jurisdiction is founded upon 28 U.S.C. Sections 1331 and 1343. 3. Venue is proper in this judicial district pursuant to 28 U.S.C. Sections 1391(b)(1) and (b)(2) because (a) some of the Defendants reside in this judicial district and all Defendants reside in Florida, and (b) a substantial part of the events or omissions giving rise to Plaintiffs' claims occurred and are occurring within this judicial district.
THE PARTIES A. Individual Plaintiffs 4. All individual Plaintiffs have physical impairments that substantially limit one or more oftheir major life activities.
2

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5. Plaintiff, Daniel W. O'Connor ("O'Connor") is legally blind. He is a citizen of and is registered to vote in Duval County, Florida. Because of his visual impairment, Mr. O'Connor has been unable in past elections to use without third-party assistance the voting systems utilized by Duval County. As a result, Mr. O'Connor has been unable in those elections to cast independently a secret ballot in a manner the same as or similar to that used by nondisabled Duval County voters. Mr. O'Connor has voted in past elections in Duval County and intends to vote in future elections in Duval County. He wishes to be able to cast independently a secret ballot in a manner the same as or similar to that used by Duval County voters who are not disabled, but he has been and will be unable to do so on the voting systems utilized by Duval County.
6. Plaintiff, Kent Bell ("Bell") has congenital quadrarhyteamelia, a condition that results in blood cells not going to one's arms and legs during fetal development. As a result, Mr. Bell cannot manipulate a writing instrument with his hands and can only write with his mouth. He is a citizen of and is registered to vote in Duval County, Florida. Because Mr. Bell cannot use his hands, he has been unable in past elections to vote without third-party assistance in Duval County. As a result, Mr. Bell has been unable in those elections to cast independently a secret ballot in a manner the same as or similar to that used by non-disabled Duval County voters. Mr. Bell has voted in past elections in Duval County and intends to vote in future elections in Duval County. Mr. Bell wishes to be able to cast independently a secret ballot in a manner the same as or similar to that used by Duval County voters who are not disabled, but has been and will be unable to do so on the voting system utilized by Duval County.
7. Plaintiff, Beth Bowen ("Bowen") is legally blind. She is a citizen of and is registered to vote in Duval County, Florida. Because of her visual impairment, Ms. Bowen has
3

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been unable in past elections to use the voting systems utilized by Duval County. As a result, Ms. Bowen has been unable in those elections to cast independently a secret ballot in the same or similar manner by which non-disabled Duval County voters cast their votes. Ms. Bowen has voted in past elections in Duval County and intends to vote in future elections in Duval County. Ms. Bowen wishes to be able to cast independently a secret ballot in a manner the same as or similar to that used by Duval County voters who are not disabled, but has been and will be unable to do so on the voting system utilized by Duval County.
B. Organizational Plaintiff 8. Plaintiff, American Association of People with Disabilities ("AAPD"), is a national nonprofit membership organization dedicated to promoting the economic and political empowerment of all people with disabilities; educating businesses and the general public about disability issues; and providing membership benefits, such as financial services and product discounts. A group of cross-disability leaders founded AAPD in 1995 to unite the diverse community of people with disabilities - including their families, friends and supporters - and to be a local and national voice for change in implementing the goals of the ADA, equality of opportunity, full participation, independent living, and economic self-sufficiency.
C. Defendants 9. Defendant, Jim Smith ("Smith"), is the Florida Secretary of State. Defendant Smith is sued in his official capacity only. 10. Defendant, Edward C. Kast ("Kast"), is the Director for the Division ofElections within the Florida Department of State. Defendant Kast is sued in his official capacity only. 11. Defendant, John Stafford ("Stafford"), is the Supervisor of Elections for Duval County, Florida. Defendant Stafford is sued in his official capacity only.
4

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D. Class Action Allegations 12. Plaintiffs bring this action on their own behalf and on behalf of all other persons similarly situated, pursuant to Federal Rule of Civil Procedure 23(a) and 23{b)(2). The class consists of all persons who are citizens of Duval County, Florida, who are registered to vote in that county, and who have either visual or manual impairments that have prevented them from casting independently a secret ballot in a manner the same as or similar to that used by nondisabled Duval County citizens in the past, and will do so in the future, should the county fail to procure accessible voting equipment.
1. Subclasses 13. The class consists of two subclasses.
a. Plaintiffs with visual impairments 14. The first subclass consists of citizens of Duval County, Florida who are registered to vote in that county and who have visual impairments that prevent them from casting independently a secret ballot in a manner the same as or similar to that used by non-disabled voters when voting on the voting system utilized by Duval County. 15. On information and belief, Plaintiffs believe the subclass to number no less than 30,000 persons.
2. Plaintiffs with manual impairments 16. The second subclass consists of citizens of Duval County, Florida who are registered to vote in that county and who have manual impairments that prevent them from manipulating a writing instrument, and, as a result, from casting independently a secret ballot in a manner the same as or similar to that used by non-disabled voters when voting on the voting system utilized by Duval County.
5

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17. On information and belief, Plaintiffs believe the subclass to number no less than 10,000 persons.
E. Class Action Prerequisites 18. The questions of law or fact common to the class include whether Defendants have violated the ADA and the Rehabilitation Act by discriminating against class members by, among other things, failing to provide voting machines that are accessible and independently useable by persons with visual impairments and persons with manual impairments so as to allow them to vote independently and secretly, as non-disabled voters do. 19. The claims of the named Plaintiffs- that Defendants violate their rights under the ADA and the Rehabilitation Act by failing to provide voting machines accessible to and independently useable by persons with visual impairments and persons with manual impairments- are typical of all putative class members' claims. 20. The named Plaintiffs will fairly and adequately protect the interests of the class. The named Plaintiffs wish to exercise their right to vote under the same conditions as nondisabled persons and seek to secure this right for themselves and all similarly situated persons. They have no interests that conflict with other class members. Plaintiffs' counsel is experienced in litigating class actions, including enforcement of the civil rights of people with disabilities. 21. Defendants have acted or refused to act on grounds generally applicable to the class, thereby making injunctive and declaratory relief appropriate.
FACTS COMMON TO ALL COUNTS A. Plaintiffs With Disabilities in Duval County, Florida 22. Individual Plaintiffs are all persons with either visual or manual disabilities who desire to participate fully and equally in the voting process in Duval County, Florida. They are
6

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legally entitled to vote without discrimination as non-disabled voters do - in person using voting systems that permit them to cast independent and secret ballots.
23. Plaintiffs O'Connor and Bowen are voters with visual impairments. Because of their disabilities, they cannot independently cast a secret ballot with the voting equipment utilized by Duval County. In order to cast their respective ballots, they must be assisted by a third party of their choosing or by a poll worker. The third party reads the ballot to the voter. Next, the voter chooses a candidate and tells the third party his or her choice. Finally, the third party must mark the voter's ballot with the voter's choice. Plaintiffs O'Connor and Bowen have no way of assuring that their ballots are correctly cast. Their votes are neither independent nor secret, and cannot be cast in a manner the same as or similar to that used by non-disabled voters in Duval County.
24. Plaintiff Bell is a voter with manual impairments. Because he cannot manipulate a writing instrument or touchscreen with his hands, he cannot independently cast a secret ballot with the voting equipment utilized by Duval County. In order to cast his ballot, he must be assisted by a third party ofhis choosing or a poll worker. Plaintiff Bell chooses a candidate and tells the third party his choice. The third party must then mark the ballot with his choice. His vote, therefore, is neither independent nor secret, and cannot be cast in a manner the same as or similar to that used by non-disabled voters in Duval County.
25. Plaintiff AAPD has members with visual impairments and members with manual impairments who are citizens of and are registered to vote in Duval County, Florida. These members are required to vote under the conditions described in Paragraphs 23 and 24 above and, therefore, their votes are neither independent nor secret, and cannot be cast in the same or similar manner as non-disabled voters cast their votes.
7

Case 3:01-cv-01275-HLA-HTS Document 47 Filed 11/05/02 Page 8 of 25 PageiD 614
26. Plaintiffs and others similarly situated who desire to vote in any election in Duval County must do so with third-party assistance under the conditions described in Paragraphs 23 and 24 above.
B. Voting Systems 27. In Florida, a county cannot purchase or use a voting system until it has been certified by the Florida Department of State. 28. The Florida Department of State only authorizes counties to purchase and use two types ofvoting systems. 29. The two types of voting systems currently authorized are optical scan and touchscreen.
Optical Scan Machines 30. With an optical scan voting system, the voter selects a candidate by using a pencil or pen to darken the oval, rectangle, or square on the ballot. The ballot is then fed into an optical reader, which detects and counts the vote. 31. Optical scan voting systems are not accessible to voters with visual or manual impairments as they do not enable such voters to cast independently a secret ballot. 32. If a county implemented the inaccessible optical scan system, voters with visual or manual disabilities could not complete, verify, and cast independently secret ballots or otherwise vote under the same or similar conditions as non-disabled voters, and would therefore be subjected to discrimination.
8

Case 3:01-cv-01275-HLA-HTS Document 47 Filed 11/05/02 Page 9 of 25 PageiD 615
Touchscreen Machines 33. With a touchscreen voting system, the voter uses a keyboard to select a candidate and then presses "vote." The ballot is registered and processed through the system much like a computer or Automated Teller Machine. 34. Touchscreen voting systems are not accessible to voters with visual impairments without using an audio option whereby the voter listens to the candidates' names on headphones and then selects a candidate using distinctively shaped keys. 35. Touchscreen systems may be accessible to voters with manual impairments who use a mouth or head stick, but are not accessible to other voters with manual impairments without a sip and puff device or other accessible switch technology, by which they can select a candidate. 36. If Duval County implemented the potentially accessible touchscreen system with the audio and puff device modifications or other accessible switch technology, Duval County voters with manual impairments and voters with visual impairments could complete, verify, and cast independently secret ballots in a manner the same as or similar to that used by non-disabled voters. 37. Technology exists, and is being used successfully by other locales, to make voting machines accessible and independently useable by other voters with visual or manual disabilities that are similar or identical to the disabilities of Plaintiffs and others similarly situated.
C. Denial of Rights
38. Defendants have discriminated and continue to discriminate against Plaintiffs and other similarly situated voters with visual or manual impairments on the basis of their
9

Case 3:01-cv-01275-HLA-HTS Document 47 Filed 11/05/02 Page 10 of 25 PageiD 616
disabilities by failing to ensure that such voters can vote under the same or similar conditions as non-disabled persons in Duval County. Generally, the discrimination includes: (a) that the voting equipment in use in Duval County, Florida is not readily accessible to Plaintiffs and others similarly situated; (b) the Defendants' failure to furnish appropriate auxiliary aids necessary to afford Plaintiffs and others similarly situated an equal opportunity to participate in and enjoy the benefits of the activity of voting; (c) the Defendants' failure to give primary consideration to or otherwise honor the requests of the Plaintiffs and others similarly situated with respect to the type of auxiliary aids and services necessary; and (d) the Defendants otherwise subjecting the Plaintiffs and others similarly situated to discrimination by requiring them to vote in a manner materially different from, and substantially more burdensome than, the manner by which non-disabled voters cast their votes in Duval County.
1. Defendants Smith and Kast 39. Defendants Smith and Kast oversee elections, prescribe rules and regulations to implement election laws, and ensure that all aspects of the election process comply with Florida law. 40. Defendant Smith is responsible for the supervision and administration of election laws. His duties include the interpretation and enforcement of election laws. 41. Under the direction and control ofthe Secretary of State, Defendant Kast is the Secretary of State's designee with respect to interpretation and enforcement of the election laws, providing technical assistance to the supervisors of elections on voting systems, and prescribing rules and regulations to carry out the election laws, among other responsibilities. 42. Defendants Smith and Kast must approve all voting systems used in any state or federal election in Florida. This approval is known as certification of voting systems.
10

Case 3:01-cv-01275-HLA-HTS Document 47 Filed 11/05/02 Page 11 of 25 PageiD 617
43. A county can only purchase a voting system that Defendants Smith and Kast have certified.
44. Defendants Smith and Kast can certify voting systems that are presented to them directly by third parties and do not have to wait for a county to request certification of a particular voting system.
45. Defendants Smith and Kast are required to review the voting systems certification standards and ensure that new technologies are available for selection by the counties, and are required to review the voting system certification standards to ensure that new technologies are appropriately certified for all elections in a timely manner.
46. Currently, approximately fifty optical scan systems and thirteen touchscreen systems are certified for purchase by the counties in Florida.
47. Of all of the voting systems currently certified in Florida, only two touchscreen systems are potentially accessible to voters with visual and manual impairments.
48. Plaintiffs have asked Defendants Smith and Kast to certify only voting systems that are accessible to persons with visual impairments and persons with manual impairments.
49. Defendants Smith and Kast have certified voting systems that are not accessible to voters with visual or manual impairments and, thus, have authorized counties to purchase inaccessible voting systems.
50. By certifying inaccessible voting systems, and thereby allowing counties to continue purchasing inaccessible voting systems, Defendants Smith and Kast have denied Plaintiffs and others similarly situated their right to vote in a manner the same as or similar to that used by non-disabled voters and have therefore discriminated against Plaintiffs and others similarly situated based on their disabilities.
11

Case 3:01-cv-01275-HLA-HTS Document 47 Filed 11/05/02 Page 12 of 25 PageiD 618
2. Defendant Stafford 51. Defendant Stafford is responsible for supervising all elections in Duval County, Florida, and for choosing and purchasing voting systems used in those elections. 52. Recently, Defendant Stafford decided to purchase approximately 300 optical scan voting systems for Duval County. These optical scan systems were used by Duval County during the September 2002 primary election. 53. Despite having knowledge that the optical scan voting system is not accessible and independently useable by voters with visual or manual impairments, Defendant Stafford decided to purchase optical scan systems and failed to ensure that Duval County voters with disabilities vote in a manner the same as or similar to that used by non-disabled voters in Duval County. 54. By deciding to purchase optical scan systems, Defendant Stafford has perpetuated a voting system that is inaccessible to Duval County voters with visual impairments and Duval County voters with manual impairments and has discriminated against such voters (including Plaintiffs and others similarly situated) based on their disabilities. 55. Recently, Defendant Stafford also placed three demonstration touchscreen systems with accessible components in the Office of Elections headquarters for Duval County for the September 2002 primary election. The machines were for demonstration purposes only and could not be used during the September 2002 primary election because they have not been certified by the Secretary of State. 56. There are 147,000 people with disabilities in Duval County, Florida. On information and belief, there are no less than 40,000 voters with visual or manual impairments. The three touchscreen machines with accessible components, even if purchased, will cover 268
12

Case 3:01-cv-01275-HLA-HTS Document 47 Filed 11/05/02 Page 13 of 25 PageiD 619
precincts (upon redistricting approximately 300 precincts), 268 polling places, and all of Jacksonville, Florida, which is the largest land area city in the United States.
57. Despite having knowledge that the touchscreen voting system is accessible and independently useable by voters with visual or manual impairments only with the audio and puff device options or other switch modifications, Defendant Stafford provided only three touchscreen systems for demonstration purposes only at the Office of Elections headquarters for all disabled voters in Duval County. This decision by Defendant Stafford would require, among other things, manually and visually impaired voters in Duval County who wish to vote on an accessible voting machine to leave their designated precinct and travel to the Office of Elections' headquarters. This burden and impediment is not, and will not be, placed on nondisabled voters in Duval County.
58. By failing to provide an accessible touchscreen machine in every polling place, Defendant Stafford has perpetuated a voting system that is inaccessible to Duval County voters with visual impairments and Duval County voters with manual impairments, has denied such voters (including Plaintiffs and others similarly situated) their right to vote secretly and independently, and has therefore discriminated against such voters (including Plaintiffs and others similarly situated) based on their disabilities.
59. Failure to implement a voting system that is compliant with the ADA and the Rehabilitation Act by the next election will cause irreparable injury to Duval County voters with visual impairments and Duval County voters with manual impairments (including Plaintiffs and others similarly situated) by preventing them from fully exercising their right to cast independently a secret ballot in a manner the same as or similar to that used by non-disabled voters in Duval County.
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D. Recent Legislation 1. Florida Legislation
60. In the Spring of 2002 the Florida legislature passed H.B. 1350, which amended certain aspects of the Florida Election laws. This legislation mandates that each precinct in Florida must provide one accessible voting machine and specifies the components and physical structure for such a machine.
61. H.B. 1350 does not become effective until one year after the Florida legislature has specifically appropriated funding for the legislation.
62. To date, the legislature has not appropriated the funding for H.B. 1350. Therefore, Duval County is not yet mandated by Florida law to provide one accessible voting machine in each precinct.
63. H.B. 1350 does not expressly declare or define the rights of Plaintiffs' (and others similarly situated) under the ADA or Rehabilitation Act. Defendants have already obtained new, inaccessible voting equipment that does not comport with the current requirements of the ADA and the Rehabilitation Act.
2. Federal Legislation 64. In October 2002, the U.S. Congress passed and President Bush signed into law H.R. 3295, which reforms many ofthe federal election laws. 65. This federal legislation mandates, among other things, that one accessible voting machine be installed in each voting precinct in the United States by the 2006 election. 66. The appropriations bill necessary to implement H.R. 3295 has not been passed by Congress.
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67. H.R. 3295 does not expressly declare or define the rights of Plaintiffs (and others similarly situated) under the ADA or Rehabilitation Act. Defendants have already obtained new, inaccessible voting equipment that does not comport with the current requirements of the ADA and the Rehabilitation Act.
COUNT ONE AMERICANS WITH DISABILITIES ACT 68. Plaintiffs reallege and incorporate herein the allegations set forth in Paragraphs 1 through 67 above. 69. Individual Plaintiffs are either visually or manually impaired. They are qualified individuals with a disability as defined in 42 U.S.C. § 12131(2) and 28 C.P.R.§ 35.104. 70. Defendant Jim Smith is Florida Secretary of State, Defendant Edward C. Kast is Director of the Division of Elections, and Defendant John Stafford is the Supervisor of Elections ofDuval County, Florida. They are public entities in their official capacities and are instrumentalities of a state or local government as defined in 42 U.S.C. § 12131(1) and 28 C.F.R. § 35.104. 1. Discrimination 71. The ADA, 42 U.S.C. § 12132, and its implementing regulations at 28 C.P.R. § 35.130, require that no qualified individual with a disability, on the basis ofthat disability, be excluded from participation in or be denied the benefit of the services, programs, or activities of a public entity or be subjected to discrimination by any public entity. 72. The ADA and its implementing regulations at 28 C.P.R. § 35.150 require a public entity to make its services, programs, or activities "readily accessible" to and useable by individuals with disabilities.
15

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73. Defendants have violated the ADA by discriminating against Plaintiffs and others similarly situated because of their disabilities by failing to provide voting machines that are readily accessible so that visually impaired voters and manually impaired voters can vote in the same or similar manner as non-disabled voters.
74. FLA. STAT. CH. 101.294 requires Defendants Smith and Kast to certify all voting systems that are available for purchase by Florida counties.
75. FLA. STAT. CH. 101.5606(1) requires Defendants Smith and Kast to decline to approve a voting system unless it permits and requires voters to cast a secret ballot.
76. By certifying voting systems that are inaccessible, Defendants Smith and Kast have denied Plaintiffs and others similarly situated the benefit of independently casting a secret ballot, and, therefore, have discriminated against Plaintiffs and others similarly situated by not affording them the opportunity to participate in the voting process in a manner the same as or similar to that used by non-disabled voters.
77. FLA. STAT. CH. 101.294 authorizes Defendant Stafford to purchase voting equipment that Defendants Smith and Kast have certified.
78. FLA. STAT. CH. 101.28(1)(a) requires Defendant Stafford to purchase voting equipment that allows voters to cast a secret ballot.
79. By deciding to purchase voting equipment that is not accessible to voters with visual or manual impairments, Defendant Stafford has denied Plaintiffs and others similarly ~ituated the benefit of independently casting a secret ballot and, therefore, has discriminated against them by not affording Plaintiffs and others similarly situated the opportunity to participate in the voting process in a manner the same as or similar to that used by non-disabled voters.
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80. The optical scan voting system currently in use in Duval County requires voters with visual impairments and voters with manual impairments to disclose their votes to a third party, and denies such voters (including Plaintiffs and others similarly situated) the ability to cast their ballots independently and secretly, and to verify that their votes have been cast correctly, as non-disabled voters in Duval County are able to do.
81. Duval County plans to provide no more than three accessible voting machines in the Office of Elections' headquarters. If ever purchased by Duval County, these three machines will be the only mechanism by which Plaintiffs and others similarly situated could independently and secretly cast their ballots. To vote on these machines, Plaintiffs and others similarly situated will need to leave their homes and designated voting precincts and travel to the Office of Elections' headquarters. Further, as alleged herein, these three machines would potentially have to accommodate 40,000 voters in Duval County who have visual or manual impairments. These burdens and impediments are not and will not be placed on non-disabled voters in Duval County. By not assuring that Plaintiffs and others similarly situated have the opportunity to vote under conditions the same as or similar to those enjoyed by non-disabled voters, Defendant Stafford has discriminated against Plaintiffs and others similarly situated on the basis of their disabilities and has denied them the right to vote in a manner the same as or similar to that used by non-disabled voters.
82. As alleged throughout this Amended Complaint, Defendants have discriminated against Plaintiffs and other similarly situated Duval County voters with visual or manual impairments. The particular discrimination against Plaintiffs and other similarly situated voters manifests itself as follows: (a) being forced to reveal their votes to a third-party; (b) risking having (and actually having) their votes revealed by the third-party to other people; (c) risking
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having (and actually having) the third-party attempt to influence their candidate choice~ (d) having to vote in a manner that singles them out in the polling place~ (e) having to wait long periods oftime until a third-party is available to assist the voter~ (f) having to incur the burden and impediment of traveling to the Office of Elections' headquarters to use the three accessible voting machines in the event Duval County ever purchases such machinery~ and (g) having to suffer embarrassment and distress during the voting process for each of the foregoing reasons and the fact that they are required to vote in a manner materially different from, and substantially more burdensome than, the manner in which non-disabled voters cast their votes in Duval County.
83. Through the actions and circumstances described above, Defendants have violated and, unless enjoined, will continue to violate the ADA, 42 U.S.C. § 12132 and 28 C.F.R. § 35.130.
2. Failure to Ensure Accessible Design and Construction 84. 28 C.F.R. § 35.151 (a) and (b) requires that new equipment like voting machines be readily accessible to and useable by people with disabilities. 85. By certifying voting systems that are not designed and constructed to be readily accessible to and useable by voters with visual impairments and voters with manual impairments, Defendants Smith and Kast have failed to ensure that Florida's new voting equipment will be readily accessible to Plaintiffs and others similarly situated in Duval County. 86. By deciding to purchase voting equipment that is not accessible to voters with visual impairments and voters with manual impairments, Defendant Stafford has failed to ensure that Florida's new voting equipment will be readily accessible to and useable by Plaintiffs and others similarly situated in Duval County.
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87. Through the actions and circumstances described above, Defendants have violated and, unless enjoined, will continue to violate the ADA, 42 U.S.C. § 12132 and 28 C.F.R. § 35.151 (a) and (b).
3. Failure To Provide Auxiliary Aids And Service 88. 28 C.F.R. § 35.160(a) requires Defendants to take appropriate steps to ensure that voters with visual impairments and voters with manual impairments can communicate their vote as effectively as non-disabled voters. 89. By certifying voting systems that are not accessible to voters with visual impairments and voters with manual impairments, Defendants Smith and Kast have failed to take appropriate steps to ensure that Plaintiffs and others similarly situated in Duval County are able to communicate their votes as effectively as non-disabled voters in Duval County. 90. By deciding to purchase voting systems that deprive Plaintiffs and others similarly situated in Duval County of their right to vote directly and secretly, Defendant Stafford has failed to take appropriate steps to ensure that such voters are able to communicate their votes as effectively as non-disabled voters in Duval County. 91. 28 C.F.R. § 35.160(b)(l) requires Defendants to furnish appropriate auxiliary aids so that voters with disabilities have an equal opportunity to participate in and enjoy the benefits of independently voting by secret ballot. 92. By certifying voting systems that do not have accessible components, Defendants Smith and Kast have failed to furnish appropriate auxiliary aids so that Plaintiffs and others similarly situated have an equal opportunity to participate in and enjoy the benefits of independently voting by secret ballot.
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Case 3:01-cv-01275-HLA-HTS Document 47 Filed 11/05/02 Page 20 of 25 PageiD 626
93. By deciding to purchase optical scan voting systems that do not have accessible components, Defendant Stafford has failed to furnish appropriate auxiliary aids so that Plaintiffs and others similarly situated in Duval County have an equal opportunity to participate in and enjoy the benefits of independently voting by secret ballot as do non-disabled voters.
94. 28 C.F.R. § 35.160(b)(2) requires Defendants to give primary consideration to requests of individuals with disabilities in determining the auxiliary aids and services to provide.
95. Plaintiffs have made specific requests ofDefendants to certify and purchase only accessible voting systems that ensure Plaintiffs' right and the right of others similarly situated to independently cast a secret ballot under the same conditions as non-disabled persons.
96. By ignoring Plaintiffs' request to certify only accessible voting systems, Defendants Smith and Kast have failed to give primary consideration to the requests of Plaintiffs and others similarly situated in Duval County in determining the auxiliary aids and services to provide.
97. By disregarding Plaintiffs' requests to ban optical scan and by deciding to purchase optical scan systems, Defendant Stafford has failed to give primary consideration to the requests of Plaintiffs and others similarly situated in Duval County in determining the auxiliary aids and services to provide.
98. Through the actions and circumstances described above, Defendants have violated and, unless enjoined, will continue to violate the ADA, 42 U.S.C. § 12132 and 28 C.F.R. § 35.160(a), (b).
COUNT TWO REHABILITATION ACT 99. Plaintiffs reallege and incorporate herein the allegations set forth in Paragraphs I through 67 and 69 through 98 above.
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100. Individual Plaintiffs have either visual or manual impairments. They are qualified individuals with disabilities according to 28 C.F.R. § 42.540(k) and 45 C.F.R. Section 84.3. They are registered to vote in Duval County, Florida.
101. Defendants Smith and Kast are instrumentalities of a department of the Florida state government and that department is a recipient of federal financial assistance.
102. Defendant Stafford is an instrumentality of a local government that is a recipient of federal financial assistance.
103. Section 504 of the Rehabilitation Act, 29 U.S.C. § 794, and its implementing regulation, 28 C.F.R. § 42.503, require that no qualified individual with a disability, on the basis of that disability, be excluded from participation in or be denied the benefit of the services, programs, or activities of a public entity.
104. Defendants have discriminated and will continue to discriminate against Plaintiffs and others similarly situated because of their disabilities by excluding them from participation in and denying them the benefits of the Defendants' services, programs or activities, specifically, the right to vote in the same manner as non-disabled persons.
105. By certifying machines that do not enable voters with visual impairments or voters with manual impairments to mark their own ballots without third party assistance, Defendants Smith and Kast have violated and continue to violate the Rehabilitation Act of 1973, Section 504, 29 U.S.C. § 794 and 28 C.F.R. § 42.503.
106. By deciding to purchase voting machines that prevent Duval County voters with visual impairments and Duval County voters with manual impairments from voting without third party assistance, Defendant Stafford has violated and continues to violate the Rehabilitation Act of 1973, Section 504, 29 U.S.C. § 794 and 28 C.F.R. § 42.503.
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107. Through the actions and circumstances described above, Defendants have violated and continue to violate and, unless enjoined, will continue to violate the Rehabilitation Act, Section 504, 29 U.S.C. § 794 and 28 C.F.R. § 42.503. (a).
COUNT THREE DECLARATORY RELIEF 108. Plaintiffs reallege and incorporate herein the allegations set forth in Paragraphs 1 through 67, 69 through 98, and 99 through 107 above. 109. Plaintiffs on behalfofthemselves and all others similarly situated seek a declaratory judgment pursuant to 28 U.S.C. § 2201 to resolve an actual and justiciable controversy as alleged above.
PRAYER FOR RELIEF WHEREFORE, Plaintiffs request that this Court enter judgment in their favor as follows: A. That this Court assume jurisdiction; B. That this Court certify the case as a class action; C. That this Court declare that Defendants' actions and inactions violate the ADA and the Rehabilitation Act; D. That this Court issue preliminary and permanent injunctions enjoining Defendants from continuing their illegal and discriminatory actions, including the purchase of new voting equipment that is inaccessible in violation of the Americans with Disabilities Act and Section 504 of the Rehabilitation Act;
22

Case 3:01-cv-01275-HLA-HTS Document 47 Filed 11/05/02 Page 23 of 25 PageiD 629 E. That this Court issue preliminary and permanent injunctions requiring Defendants
to provide, in each polling place in Duval County, at least one voting system that is accessible to voters with visual impairments and voters with manual impairments;
F. That this Court issue such other relief as may be just, equitable and appropriate, including an award of reasonable attorneys' fees, litigation expenses and costs pursuant to 42
u.s.c. § 12205.
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Respectfully submitted,
~ouglas ~dge
Trial Counsel Florida Bar No. 0708070 HOWREY SIMON ARNOLD & WHITE, L.L.P. 1299 Pennsylvania Ave., N.W. Washington, D.C. 20004 (202) 783-0800 Lois G. Williams Co-Counsel Washington Lawyers' Committee for Civil
Rights and Urban Affairs 11 Dupont Circle NW, Suite 400 Washington, D.C. 20036 (202) 319-1000 Attorneys for Plaintiffs
Dated: November 5, 2002 Of Counsel: Alan M. Wiseman Danielle R. Oddo Vincent E. Verrocchio HOWREY SIMON ARNOLD & WHITE, L.L.P. 1299 Pennsylvania Ave., N.W. Washington, D.C. 20004 (202) 783-0800
24

Case 3:01-cv-01275-HLA-HTS Document 47 Filed 11/05/02 Page 25 of 25 PageiD 631 CERTIFICATE OF SERVICE
I hereby certify that copies of the foregoing Amended Complaint were served by facsimile this 5th day ofNovember, 2002, upon each of the parties listed below:
Scott D. Makar, Esq. Office of General Counsel 117 West Duval Street Suite 480 Jacksonville, FL 32202 Charles A. Finkel, Esq. Assistant Attorney General Office of the Attorney General PL-01, The Capitol Tallahassee, FL 32399-1050
Danielle Oddo
25

 
 Case 3:01-cv-01275-HLA-HTS Document 53 Filed 11/21/02 Page 1 of 14 PageiD 708

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA JACKSONVILLE DIVISION

FILED
iJ
zonz rmv 21 · A ~ 33

American Association of People with Disabilities, Daniel W. O'Conner, Kent Bell, and Beth Bowen,
Plaintiffs,
v.
Jim Smith, as Secretary of State for the State of Florida; Edward Kast, as Director, Division of Elections; and John Stafford, as Supervisor of Elections, Duval County.

r!..':~ ~- r:- ;'':; !;-'!' T CO~::n
I' --. ·~ FL~.--i2.\
- . '~ L -
m Case No.: 3:01-CV-1275-J-21
DISPOSITIVE MOTION

Defendants.
------------------------------~'
MOTION TO DISMISS AMENDED COMPLAINT,
OR.ALTERNATlVELY.FORSU~RY
JUDGMENT AND MEMORANDUM OF LAW Pursuant to Rule 12(b), Federal Rules of Civil Procedure, Defendant, John Stafford, as
Supervisor of Elections, Duval County, moves to dismiss this action, or, alternatively, for summary judgment. Plaintiffs assert violations of the Americans With Disabilities Act (ADA) and the Rehabilitation Act (RA) based on an asserted right to "cast independently a
secret ballot" without third party assistance. This Court has previously dismissed such claims with prejudice thereby making dismissal of Plaintiffs' Amended Complaint as to such clams
proper, or, alternatively, summary judgment in Defendants' favor. BACKGROUND
In its Order dated October 16, 2002, this Court dismissed with prejudice the Plaintiffs' ADA and RA claims to the extent they were based on the theory that the challenged voting program under Florida law denies them the right to a "direct1 and secret" vote due to the

1 In their Amended Complaint, Plaintiffs are now using the phrase "independently cast" as a substitute for "direct" in describing the alleged ADA and RA violations, presumably to avoid dismissal due to the Court's dismissal of their state constitutional claim based on a "direct and secret" vote.

Case 3:01-cv-01275-HLA-HTS Document 53 Filed 11/21/02 Page 2 of 14 PageiD 709
provision of third party assistance under section 101.051, Florida Statutes. The Court specifically stated that the ADA and RA counts are dismissed with prejudice "to the extent Plaintiffs assert that they have been excluded from or denied the benefits of a program of direct and secret voting that does not permit the type of assistance provided in Section 10 1.051 [Florida Statutes]. "2 Order at 38. The Court made clear that Plaintiffs were to allege more clearly the bases, if any, for their reliance on the more generic provisions of the ADAIRA. Order at 29-30.
The Amended Complaint, however, is replete with allegations that Plaintiffs are unable to "cast independently a secret ballot" without the assistance of third parties thereby violating the ADA and RA. Am. Comp. ~~ 1, 5, 6, 7, 12, 14, 16, 18, 19, 22, 23, 24, 25, 26, 31, 32, 36, 37, 53, 57, 58, 59, 75, 78, 79, 80, 81, 82, 90, 91, 92, 93, 95, 105, & 106. Plaintiffs again have relied substantially, if not exclusively, on the claim that Defendants have violated the ADA and RA by (a) allowing third party assistance to disabled voters under Florida law and (b) failing to purchase voting machines that allow the casting of independent, secret votes without such assistance. Plaintiffs1 attempt to add language directed to the generic anti-
2 Under Florida law, disabled voters are entitled to assistance in casting their votes, either directly at the voting booth or via absentee ballot. Specifically, section I01. 05I (1 ), Florida Statutes, which provides for assistance at the polls to blind and other disabled voters, states that:
(I) Any elector applying to vote in any election who requires assistance to vote by reason of blindness, disability, or inability to read or write may request the assistance of two election officials or some other person of the elector1s own choice, other than the elector1S employer, an agent of the employer, or an officer or agent of his or her union, to assist the elector in casting his or her vote. Any such elector, before retiring to the voting booth, may have one of such persons read over to him or her, without suggestion or interference, the titles of the offices to be filled and the candidates therefor and the issues on the ballot. After the elector requests the aid of the two election officials or the person of the elector1s choice, they shall retire to the voting booth for the purpose of casting the elector1S vote according to the elector1S choice.
§ 101.051(1), Fla. Stat. (2001); see also§ 101.051(3) (providing for assistance in casting an absentee ballot).
2

C~se 3:01-cv-01275-HLA-HTS Document 53 Filed 11/21/02 Page 3 of 14 PageiD 710

discrimination provisions of the ADA (Comp. 'jj 38 & 82) are likewise based on the theory that third party assistance violates the ADA and RA. Because Plaintiffs' Amended Complaint is based on these previously rejected and dismissed theories, it should be dismissed or, alternatively, summary judgment granted in Defendants' favor.

MEMORANDUM OF LAW Counts I and Count II, which allege ADA and RA violations, respectively, should be

dismissed based on this Court's October 16, 2002 Order as well as the principles set forth in

Nelson v. Miller, 170 F.3d 641 (6th Cir. 1999), which held that neither the ADA nor the RA

create a cause of action under the facts alleged.

I.

THE AMENDED COMPLAINT VIOLATES TillS COURT'S DISMISSAL

ORDER. WHICH DISMISSED ADA/RA CLAIMS ON THE SAME GROUNDS

NOW ASSERTED.

In its October 16, 2002 Order, this Court made clear that Plaintiffs cannot state claims

under the ADA and RA based on the alleged denial of a voting system that provides for third

party assistance under section 101.051, Florida Statutes. A fair reading of the Court's Order

indicates that the Plaintiffs were not to reallege the same basis for their initial ADA and RA

claims, that being a right to unassisted, secret voting. Instead, the Court's Order indicates an

expectation that Plaintiffs were to make additional allegations, if any, that supported ADA

and RA claims on other grounds under the more general anti-discrimination provisions the

Court reviewed. Order at 29-30.

The Plaintiffs, however, have based their Amended Complaint on the very theory that

this Court rejected: a right to unassisted, secret voting without third party assistance. No less

than thirty-five paragraphs in the Amended Complaint contain allegations about the right to

"cast independently a secret ballot" without third party assistance as a basis for Plaintiffs'

3

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ADA and RA claims. These references are in the general allegations as well as the specific allegations of each of the two counts. Once again, the basis for the Plaintiffs' ADA and RA claims is the theory that a voting system that permits third party assistance denies the Plaintiffs the right to directly ("independently") cast a secret ballot. The Court has dismissed this theory with prejudice and should do so again as to Plaintiffs' Amended Complaint.
Notably, the Court's ruling on the ADA and RA counts must be read in conjunction with its dismissal with prejudice of the state constitutional claim. In holding that Plaintiffs failed to state a state constitutional claim, the Court specifically held that the "direct and secret" language of article VI, section 1 of the Florida Constitution was "satisfied by the assistance provided in Section 101.051." Order at 21. In other words, the constitutional requirement of a direct and secret vote is met by Florida's third party assistance statute. The point is that this Court's Order, properly read, cannot be construed to permit Plaintiffs to merely reassert as ADA/RA claims the same state constitutional law claims that this Court dismissed. In addition, as the next section discusses, it would be odd to permit ADA and RA claims based on allegedly wrongful conduct (i.e., third party assistance) that is required by and complies with state andfederal voting rights legislation.
4

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II. THE DECISION IN NELSON V. MILLER DISPOSES OF COUNTS I AND II. WHICH RELY ON AN ASSERTED RIGHT TO INDEPENDENT AND SECRET VOTING WITHOUT THIRD PARTY ASSISTANCE. 3 The decision in Nelson v. Miller disposes of Counts I and II, which rely on an
asserted right to independent, unassisted and secret voting. Based on the Nelson v. Miller district and circuit court decisions (discussed below), as well as the Court's Order herein, the Plaintiffs fail to state claims under the ADA and RA based on a claimed right to a secret vote without third party assistance. The emphasis in the Plaintiffs' Amended Complaint is again that disabled voters have a right to vote without third party assistance to avoid possible impingement on the secrecy of their votes. As the district and circuit courts in Nelson v. Miller recognized (and this Court tacitly recognized), claims based on the alleged denial of an independent and secret vote are not actionable under the ADA and RA.
As in Nelson v. Miller, Plaintiffs claim a potential deprivation of a claimed right to absolute secrecy in their votes if third party assistance is provided. They again claim a right to cast their votes free from third party assistance, a right no court has recognized under federal or state law. In this regard, the disabled voter assistance statute upheld in Nelson v. Miller is substantially the same as Florida's statute. Both provide for the assistance of two inspectors if an elector needs assistance in casting his or her vote. Both also provide blind
3 In its dismissal Order, this Court did not address the application of Nelson v. Miller to the substantive issue of whether compliance with state/federal elections laws requiring third party assistance forecloses ADA and RA claims based on the facts alleged. See American Ass'n of People With Disabilities v. Smith, 2002 WL 31375631, *15 (M.D. Fla. 2002) (limiting analysis of Nelson to whether Plaintiffs adequately allege that Defendants received federal financial assistance under RA). Because that issue is now before the Court, portions of this section reiterate Defendant's earlier arguments that Nelson v. Miller is applicable and that an alleged refusal "to provide [Plaintiffs] with voting assistance other than that already extended to them under [third party assistance laws], does not discriminate against them in violation of the ADA and/or the RA." Nelson, 170 F.3d at 653.
5

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voters with the ability to designate a person (e.g., a family member) to assist in the casting of their votes. Additionally, Florida law specifically protects secrecy rights by penalizing any person who wrongfully discloses an elector's vote. § 104.23, Fla. Stat. (2001). As such, the analysis in Nelson v. Miller that such statutes provide legally adequate assistance, and do not discriminate in violation of the ADA or RA, is equally applicable here thereby justifying dismissal ofPlaintiffs' claims based on an alleged right to unassisted, secret voting.
A. The Nelson v. Miller Decision Forecloses Plaintiffs' Amended Claims In Counts I and II (ADA and RA Claims)
In Nelson, a statewide class of blind voters brought an action under the ADA claiming violations arising from the failure of the State of Michigan to implement methods by which the "Plaintiffs could cast their votes unassisted by another person." 170 F. 3d 641, 644 (6th Cir. 1999) (citing Nelson v. Miller, 950 F. Supp. 201 (W.D. Mich. 1996)). Specifically, the plaintiffs alleged the existence of "inexpensive technologies that are currently in commercial use which [sic] permit persons who are blind to read and mark ballots without involving a third party, including braille ballot overlays or templates, taped text or phone-in voting systems." Id. at 644 n.l. Plaintiffs sought a permanent injunction to require that the State implement such methods in the future. Id. at 644.
The defendants moved to dismiss the entire action for two reasons. First, the defendants argued that the Michigan statute4 allowing blind voters to designate any person over the age of eighteen or a family member to assist in casting a ballot was in compliance with the Federal Voting Rights Act of 1965 and the Voting Accessibility for the Elderly and
4 The Michigan Statute at issue,§ 168.751, states: When at an election an elector shall state that the elector cannot mark his or her ballot, the elector shall be assisted in the marking of his or her ballot by 2 inspectors of election. If an elector is so disabled on account of blindness, the elector may be assisted in the marking of his or her ballot by a member of his or her immediate family or by a person over 18 years of age designated by the blind person.
6

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Handicapped Act of 1984, both of which specifically address the issues of assistance with and accessibility to voting by handicapped individuals. 950 F. Supp. at 202. Second, the defendants argued that the ADA and RA do not establish a right to privately cast a ballot without the assistance of a third party. Id.
The district court granted the defendant's motion, holding that "Michigan's current voting law, which permits blind voters to have third-party assistance of their choosing in marking their ballots, complies with the ADA and RA and thus that the Plaintiffs had failed to allege facts upon which relief could be granted under either act" ld. at 644 (emphasis added). The district court made two rulings.
First, the court found that the ADA and RA, statutes that apply generally to disability-based discrimination, needed to be read in conjunction with older, specific congressional acts dealing with voting rights for the disabled, namely the Voting Rights Act of 1965 (as amended in 1982), 42 U.S.C.A. § 1973aa-6 (West 1994) ("VRA"), and the Voting Accessibility for the Elderly & Handicapped Act of 1984, 42 U.S.C.A. § 1973ee-l (West 1994) ("VAEH"), insofar as they involved the elections of federal officers.
liL at 644. In doing so, the district "court stated that Congress did not intendfor the ADA to
displace the Federal Voting Rights Acts" and noted that "the VRA specifically required that a blind voter be provided assistance by a person of his or her choice when voting" (with certain immaterial exceptions). Id. (emphasis added). Also, the Senate Report accompanying the VAEH (which requires polling places to be "accessible" to handicapped voters), specifically noted '"that any minimal effect [from third party assistance] on the privacy of those who are elderly or handicapped is more than offset by the expanded opportunities for participation in the political process."' Id. at 644-45 (citation omitted). Thus, to the extent these enactments were applicable, the district court "concluded that the Defendant could not be said to have violated them by providing the Plaintiffs with the same type of meaningful assistance prescribed by them." Id. at 645. Likewise, here the Defendants cannot be violating federal voting rights laws by providing Plaintiffs "with the same type of meaningful
7

Case 3:01-cv-01275-HLA-HTS Document 53 Filed 11/21/02 Page 8 of 14 PageiD 715
assistance prescribed by them [i.e., third party assistance]." Plaintiffs' ADA/RA claims are due to be dismissed.
Second, the district court addressed whether, as to state and local elections that the VRA and VAEH did not cover, the ADA or RA created a private right of blind or visually impaired voters to cast a secret ballot. In rejecting this claim, the district court:
reasoned that nothing in the language of the ADA or RA indicated that voting privacy was a benefit Congress sought to protect under them . .. and that Congress did not intend the ADA and RA to extend to blind voters in state and local elections anything more than it had already extended to them in federal elections through the VRA and VAEH. ld. (emphasis added). Stated differently, the ADA and RA were intended to ensure that disabled voters are not excluded from a state's voting program; they were not intended to create a federal right of secrecy of the ballot independent of that established under state law. For these reasons, the district court dismissed the plaintiffs' ADA and RA claims. For these same reasons, dismissal is proper here.
The Sixth Circuit affirmed dismissal of the ADA and RA claims. At the outset, the court noted the similarities between the ADA and RA which both generally prohibit a disabled person's exclusion from participation in or denial ofbenefits for services, programs and other activities by reason of disability. The court also addressed the Michigan blind voter statute, section 168.751, supra, and the Michigan Constitution, which provides that:
The legislature shall enact laws to regulate the time, place and manner of all nominations and elections, except as otherwise provided in this constitution or in the constitution and laws of the United States. The legislature shall enact laws to preserve the purity of elections, to preserve the secrecy of the ballot, to guard against abuses of the elective franchise, and to provide for a system of voter registration and absentee voting.
Id. at 649 (citinK Mich. Canst. art. 2, § 4 (emphasis added)). The plaintiffs claimed that this
provision created "a constitutional right to secrecy of the ballot, or a 'secret voting program:
for all of Michigan's voters." Id. The plaintiffs alleged that the Secretary of State "denied
Michigan's blind voters the benefit of complete secrecy of the ballot enjoyed by Michigan's
8

C~se 3:01-cv-01275-HLA-HTS Document 53 Filed 11/21/02 Page 9 of 14 PageiD 716
sighted voters" due to her refusal "to implement a system by which blind voters could vote without third-party assistance of their choosing." Id. In other words, the plaintiffs claimed "that the State has violated the ADA and RA by 'exclud[ing them] from participation in or ... den[ying them] the benefits of the State's constitutionally mandated 'secret voting program.'" Id. at 650 (quoting district court).
The Sixth Circuit phrased the issue as whether Michigan constitutional and statutory law mandated absolute secrecy in voting where blind or visually impaired voters are at issue.
For such a claim to be true, Appellants essentially must show that the Michigan legislature, by providing blind voters with third-party voting aid, rather than unassisted voting aid, has violated the Michigan Constitution's mandate that it "enact laws to ... preserve the secrecy of the ballot," Mich. Const. art. 2, § 4. The question, then, is whether the Michigan Constitution requires more secrecy than the Michigan legislature has provided for in Mich. Comp. Laws Ann. § 168.751. Id. at 650. In determining how the Michigan Supreme Court, if faced with this issue, would decide the matter, the Sixth Circuit concluded that it would find that the statute fulfilled the requirements of the state constitution. Based on similar analysis, this Court likewise concluded that the Florida Supreme Court, if deciding the issue, would conclude that Florida's third party assistance statute fulfilled the requirements of the "direct and secret" clause in article VI, section 1 ofthe Florida Constitution.
Thus, based upon the substantial assistance the Michigan statute provides for blind electors to cast their votes, the Sixth Circuit concluded that the refusal "to provide [plaintiffs] with voting assistance other than that already extended to them under ... § 168.751, does not discriminate against them in violation of the ADA and/or the RA." Id. at 653. 5 The parallels
5 See also NAACP v. Philadelphia Bd. ofEiections, 1998 WL 321253 at *4 (E.D. Pa. 1998) ("Defendants are not required to provide the specific procedures authorized under the VAEH, but the decision to do so is a reasonable modification to comply with the ADA.... The (Continued ... )
9

Case 3:01-cv-01275-HLA-HTS Document 53 Filed 11/21/02 Page 10 of 14 PageiD 717
to the instant case are evident. Given the substantial assistance and protections that Florida's elections statutes provide for disabled voters to cast their votes in secret, the alleged refusal to provide the Plaintiffs with voting assistance (other than that already extended to them under section 101.051) does not discriminate against them in violation of the ADA or RA. For this reason, the reasoning of Nelson v. Miller -- as buttressed by this Court's dismissal Order -- justifies dismissal (again) of the Plaintiffs' ADA and RA claims, which assert a federal statutory violation for the failure to purchase equipment that does not provide for an independent (i.e., unassisted) secret vote.
B. The Office of Civil Rights Has Upheld Florida's Third Party Assistance Program Under The ADA
Further buttressing dismissal of Plaintiffs' ADA claim is that the Office of Civil Rights, Department of Justice, has specifically held that Florida's statutory program of assistance for blind voters meets ADA standards. In a Letter of Findings dated August 25, 1993, the Department addressed whether the failure to provide blind voters in Pinellas County, Florida with an electronic method of voting violated the ADA. 6 The complainant specifically asserted that blind voters were not provided a method of voting that allowed a secret ballot. The Department stated that the supervisor of elections, who followed section 97.061 by providing third party assistance to blind voters, was in compliance with the Act. The Department stated:
Although providing assistance to blind voters does not allow the individual to vote without assistance, it is an effective means ofenabling an individual with a
defendants' provision of the alternative ballot procedures [authorized by the VAEH] to qualified individuals with disabilities fulfills their obligation under the ADA. ... ").
6 The Division noted that electronic systems for voting by telephone that meet security
requirements were not currently available. ld.
10

Case 3:01-cv-01275-HLA-HTS Document 53 Filed 11/21/02 Page 11 of 14 PageiD 718
vision impairment to cast a ballot Title II requires a public entity to provide equally effective communications to individuals with disabilities, but "equally effective" encompasses the concept of equivalent, as opposed to identical, services. Poll workers who provide assistance to voters are required to respect the confidentiality of the voter's ballot, and the voter has the option of selecting an individual of his or her choice to provide assistance in place of poll workers. The Supervisor of Elections is not, therefore, required to provide Braille ballots or electronic voting in order to enable individuals with vision impairments to vote without assistance.
Letter of Findings, Dep't of Justice (August 25, 1993) (to Supervisor of Elections, Pinellas
County, Florida) http://www.usdoi.gov/crt/foia/cltr099.txt (emphasis added) (footnote
omitted). The highlighted language reflects the Division's view that Florida's voter assistance
statute is an "effective" method of enabling the visually impaired to vote while preserving the
secrecy of their votes. Further, the Division recognized that, under both the ADA and RA, a
public entity is not required to provide "identical services" in order to meet legal
requirements. Instead, the longstanding interpretation ofthese acts is that a public entity must
provide "equally effective communications to individuals with disabilities" that includes "equivalent, as opposed to identical, services." Id. 7
Again, the point is that Plaintiffs' Amended Complaint alleges ADA and RA violations
based on a claimed federal right to independent, secret voting that other federal courts, as
well as the Department of Justice, have rejected. This Court, having rejected the claim that
assisted voting under Florida law violates a right to "direct and secret" vote, should likewise
reject Plaintiffs' ADA and RA claims, which are based on the numerous, repeated allegations
7 Consistent with this equivalency concept, the Division has stated that certain "curbside voting policies" -- which permit disabled voters to vote curbside where existing polling places are inaccessible-- are "effective" "alternative methods" that enable disabled voters "to cast a ballot on the day of the election." See, e.g., Letter of Findings, Dep't of Justice, Civil Rights Division (August 19, 1993) (to County Elections Department, Las Vegas, Nevada) http://www.usdoi.gov/crt/foia/lofc017.txt; Letter to Senator Thurmond, Dep't ofJustice, Civil Rights Division (Aug. 11, 1995) http://www.usdoj.gov/crt/foiallofcl73.txt (same).
II

--------- - - -
Case 3:01-cv-01275-HLA-HTS Document 53 Filed 11/21/02 Page 12 of 14 PageiD 719
in the Amended Complaint of a federal right to an independent and secret vote without third party assistance.
C. Plaintiffs' New Allegations Fail To State ADNRA Claims Because They Assume Third Party Assistance Is Unlawful.
The more general allegations in the Amended Complaint fail to state a claim for relief under the ADA or RA because they are contrary to state and federal elections laws that require third party assistance to disabled voters. Specifically, the allegations in paragraph 82 that disabled voters are required to "reveal their votes to a third-party" and that they "risk" having to wait for third parties who may reveal their votes to others or influence their votes thereby "having to vote in a manner the singles them out in the polling place" fail to state ADNRA claims because the third party assistance upon which they are based is a lawful and appropriate accommodation under state law, particularly with the safeguards provided in Florida.8 In addition, the alleged burden of travelling to the Supervisor of Elections office "in the event Duval County ever purchases" "accessible" voting machines is entirely speculative and premature for judicial review. As in Nelson v. Miller, the refusal to provide Plaintiffs with voting assistance other than that already extended to them under Florida law does not discriminate against them in violation of the ADA or the RA. 170 F.3d at 653.
Likewise, the generic allegations of discrimination in paragraph 38 do not state a claim for relief As the Sixth Circuit held in Nelson v. Miller, the provision of third party assistance
8 Florida law protects the right of secrecy by providing that no person may be "in the voting booth with any elector except as provided in subsection (1)." § 101.051(2), Fla. Stat (2001). As a specific deterrent against violation of voting secrecy, Florida law further provides that "[a]ny election official or person assisting any elector who willfully discloses how any elector voted, except upon trial in court, is guilty of a felony of the third degree" punishable under Florida law. Id. § 104.23. In addition, poll inspectors and clerks are sworn to an oath requiring that they "perform [their] duties ... according to law and will endeavor to prevent all fraud, deceit, or abuse in conducting the election." Id. § 102.012.
12

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does not discriminate against disabled voters in violation of the ADA or RA. ld. Given that the

provision of third party assistance satisfies the ADA and RA, a claim for auxiliary aids under

the ADA is non-actionable. The alleged discrimination -- i.e., the failure to give primacy to

Plaintiffs' request for auxiliary aids -- is based on the theory that third party assistance is

inadequate and discriminatory. Both the Sixth Circuit and this Court, however, have rejected

this theory thereby foreclosing Plaintiffs' claims. For all of these reasons, dismissal of

Plaintiffs' Amended Complaint is proper.

III. DEFENDANT STAFFORD ADOPTS THE MOTION OF DEFENDANTS SMITH AND KAST SEEKING DISMISSAL OR SUMMARY JUDGMENT.

Defendants Smith and Kast have concurrently filed a dispositive motion for dismissal

or alternatively for summary judgment in which Defendant Stafford joins to the extent the

grounds asserted therein are applicable to him.

CONCLUSION Based upon the foregoing, Defendant Stafford requests that this Court dismiss each of the claims in the Plaintiffs' Complaint with prejudice because they are predicated on allegations of a right to "cast independently a secret ballot" without third party assistance. Alternatively, summary judgment in Defendant's favor is requested.

RICHARD A. MULLANEY GENERAL COUNSEL

.dt,ffifi.·'?Jtl·:JR. CEY I. ARP

(FBN 154493)

Deputy General Counsel

SCOTT D. MAKAR (FBN 709697)

JASON R.TEAL (FBN 157198)

117 West Duval Street, Suite 480

Jacksonville, FL 32202

(904) 630-1847

(904) 630-1316 (fax)

13

Case 3:01-cv-01275-HLA-HTS Document 53 Filed 11/21/02 Page 14 of 14 PageiD 721 CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing was furnished by U.S. Mail and facsimile to J. Douglas Baldridge, Esq., Howrey, Simon, Arnold & White, LLP, 1299 Pennsylvania Avenue, N.W., Washington, D.C. 20036; Lois G. Williams, Esq., Washington Lawyers' Committee for Civil Rights and Urban Affairs, 11 DuPont Circle, NW, Suite 400, Washington, D.C., 20036, and Charles A. Finkel, Assistant Attorney General, Office of the Attorney General, PL-01, The Capitol, Tallahassee, Florida 32399-1050, on this ~llday of November, 2002.
14

 
 • Case 3:01-cv-01275-HLA-HTS Document 55 Filed 11/26/02 Page 1 of 37 PageiD 725

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA JACKSONVILLE DIVISION
AMERICAN ASSOCIATION OF PEOPLE WITH DISABILITIES et al.

FILED
f)

p {t: 28

f'l :~ ._, ~~-. l...,,,,; ~''T .f"'lr"ij';T

. '

,, I

Plaintiff, vs.

HI

+ft:r

CASE NO. 3:0~V-1275-J-21~

JIM SMITH, EDWARD C. KAST, et al.

_____D__e_fe_n_d_a_n_t_. _________________ /

DEFENDANTS SMITH AND KAST'S DISPOSITIVE MOTION TO DISMISS PLAINTIFFS' SECOND AMENDED COMPLAINT OR IN THE ALTERNATIVE
MOTION FOR SUMMARY JUDGMENT AND MEMORANDUM OF LAW Defendants, Jim Smith in his official capacity as Secretary of State for the State of Florida, and Edward C. Kast in his official capacity as Director for the Division of Elections, pursuant to Fed. R. Civ. P. 12(b) (6), move to dismiss the amended complaint for failure to state a claim upon which relief can be granted or in the alternative for summary judgment on the grounds that there are no significant facts in dispute and defendants are entitled to judgment as a matter of law.
I. INTRODUCTION Now that this Court has ruled that the defendants did not violate Article VI, Section 1, Florida Constitution by certifying voting equipment that does not allow visually and manually impaired voters to vote without assistance, the thrust of plaintiffs' claim appears to focus on allegations that they are being subjected to discrimination by having to vote with assistance. The three

, Case 3:01-cv-01275-HLA-HTS Document 55 Filed 11/26/02 Page 2 of 37 PageiD 726
individual plaintiffs allege that because of their visual and manual impairments, they have been unable to use the voting systems utilized by Duval County without third-party assistance and that they have been unable "to cast independently a secret ballot in a manner the same as or similar to that used by non-disabled Duval County voters." These three plaintiffs desire to be able to cast independently a secret ballot in a manner the same as or similar to that used by Duval County voters who are not disabled. (Am. Complaint ~~ 5, 6, and
7) .
Plaintiffs allege that they are legally entitled to vote without discrimination as non-disabled voters do - in person using voting systems that permit them to cast independent and secret ballots. They further allege that they cannot independently cast a secret ballot with the voting equipment utilized by Duval County, that they must be assisted by a third party, and that as a result their votes are neither independent nor secret, and cannot be cast in a manner the same as or similar to that used by non-disabled voters in Duval County. (Am. Complaint ~~ 22, 23, 24, 25, and 26).
Plaintiffs further allege that the defendants have discriminated and continue to discriminate against them on the basis of their disabilities by failing to ensure that such voters can vote under the same or similar conditions as non-disabled persons in Duval County. They allege that the discrimination includes: (a) that the voting equipment in use in Duval County is not readily accessible to plaintiff and others similarly situatedi (b) that defendants have
2

• Case 3:01-cv-01275-HLA-HTS Document 55 Filed 11/26/02 Page 3 of 37 PageiD 727
failed to furnish appropriate auxiliary aids necessary to afford plaintiffs an equal opportunity to participate in and enjoy the benefits of the activity of voting; (c) that defendants have failed to give primary consideration to or otherwise honor the requests of the plaintiffs with respect to the type of auxiliary aids and services necessary; and (d) that defendants are subjecting the plaintiffs to discrimination by requiring them to vote in a manner materially different from, and substantially more burdensome than, the manner by which non-disabled voters cast their votes in Duval County. (Am. Complaint ~ 38).
With respect to defendants Smith and Kast, plaintiffs allege that they have asked Smith and Kast to certify only voting systems that are accessible to persons with visual impairments and manual impairments. Plaintiffs also allege that Smith and Kast have certified voting systems that are not accessible to voters with visual or manual impairments and, thus, have authorized counties to purchase inaccessible voting systems. Plaintiffs then conclude that by certifying inaccessible voting systems, Smith and Kast have denied plaintiffs their right to vote in a manner the same as or similar to that used by non-disabled voters and have therefore discriminated against plaintiffs based on their disabilities. (Am. Complaint ~~ 48, 49, and 50}.
II. PLAINTIFFS DO NOT HAVE A CAUSE OF ACTION UNDER THE ADA In Count One, plaintiffs allege that defendants have violated
the ADA by discriminating against plaintiffs by failing to provide 3

, Case 3:01-cv-01275-HLA-HTS Document 55 Filed 11/26/02 Page 4 of 37 PageiD 728

voting machines that are readily accessible so that visually impaired

and manually impaired voters can vote in the same or similar manner

as non-disabled voters. The ADA, 42 U.S.C. §12132, and its

implementing regulations at 28 C.F.R. §35.130, contain no such

requirement. These defendants have not discriminated against the

plaintiffs under the ADA or any other law by having certified voting

systems that do not enable plaintiffs to vote without assistance.

Nelson v. Miller, 170 F.3d 641 (6th Cir. 1999).

The issues addressed in Nelson were substantially the same as

those raised in this case. In Nelson, plaintiffs alleged that the

Secretary of State for the State of Michigan refused to implement

methods by which the plaintiffs could cast their votes unassisted by

another person.

They alleged the existence of "inexpensive

technologies that are currently in commercial use which permit

persons who are blind to read and mark ballots without involving a

third party, ... " id. footnote 1, at pg. 654. They also claimed that

the Michigan Constitution provides all Michigan voters with a right

to secrecy of the ballot. In affirming the decision of the district

court, the appellate court concluded that the plaintiffs were not

being denied their state constitutional right to "secrecy of the

ballot". The appellate court further concluded that the Secretary

of State, by refusing to provide plaintiffs with voting assistance

other than that already extended to them under the Michigan statutes,

does not discriminate against them in violation of the ADA and/or the

Rehabilitation Act (29 U.S.C. §794).

4

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Similarly, this Court, in its Order dated October 16, 2002, held that the Florida Supreme Court would interpret the "direct and secret" language of the Florida Constitution as being satisfied by the assistance provided in Section 101.051, Florida Statutes, and that defendants Smith and Kast and their predecessors did not violate Article VI, Section 1, Florida Constitution by certifying voting equipment that does not allow visually and manually impaired voters to vote without assistance. However, the Order did not determine whether the program, activity, or service provided violates the ADA or the Rehabilitation Act. This point is now addressed below, and supports entry of a summary judgment of dismissal.
Section 101.051(1), Fla. Stat. (2002) provides that any elector who requires assistance to vote by reason of blindness, disability, or inability to read or write may request the assistance of two election officials or some other person of the elector's own choice, other than the elector's employer, an agent of the employer, or an officer or agent of his or her union, to assist the elector in casting his or her vote. The Federal Voting Rights Act of 1965, as amended in 1982, provides substantially the same assistance. 42 U.S.C. §1973aa-6.
The Voting Accessibility for the Elderly and Handicapped Act (VAEH), 42 U.S.C. §1973ee-1(a), requires that, with certain exceptions provided in subsection (b) , each political subdivision responsible for conducting elections shall assure that all polling places for Federal elections are accessible to handicapped and
5

•Case 3:01-cv-01275-HLA-HTS Document 55 Filed 11/26/02 Page 6 of 37 PageiD 730
elderly voters. Subsection (b) provides that subsection (a) shall not apply to a polling place if the chief election officer of the State assures that any handicapped or elderly voter assigned to an inaccessible polling place, upon advance request, will be assigned to an accessible polling place, or will be provided with an alternative means for casting a ballot on the day of the election. §1973ee-5 provides that this subchapter shall not be construed to impair any rights guaranteed by the Voting Rights Act of 1965 and §1973ee-6 (1) provides that the term "accessible" as used in this subchapter means accessible to handicapped and elderly individuals for the purpose of voting or registration, as determined under guidelines established by the chief election officer of the State involved. It is without question that Florida provides the assistance required by the Voting Rights Act of 1965 and the VAEH. That assistance cannot subject the plaintiffs to discrimination under the ADA unless Congress intended that the ADA displace the Federal Voting Rights Acts.
Congress did not intend that the ADA displace the Voting Rights Act of 1965 and the VAEH. 42 U.S.C. §1220l(b) provides:
Nothing in this chapter shall be construed to invalidate or limit the remedies, rights, and procedures of any Federal law or law of any State or political subdivision of any State or jurisdiction that provides greater or equal protection for the rights of individuals with disabilities than are afforded by this chapter. The ADA is not an election law. It does not include a single provision specifically governing elections. Lightbourn v. County of
6

, Case 3:01-cv-01275-HLA-HTS Document 55 Filed 11/26/02 Page 7 of 37 PageiD 731
El Paso, Tex., 118 F.3d 421, 430 (5th Cir. 1997). Therefore, any rights that plaintiffs may have to enhance their participation in the voting process, arise from the Voting Rights Act, not the ADA. "[W]hen two statutes are capable of co-existence, it is the duty of the courts, absent a clearly expressed congressional intention to the contrary, to regard each as effective." Morton v. Mancari, 417 U.S. 535,551, 94 S.Ct. 2474,2483, 41 L.Ed.2d 290 (1974) (a provision aimed at furthering Indian self-government by according an employment preference within the Bureau of Indian Affairs for qualified members of the governed group can readily co-exist with a general rule prohibiting employment discrimination on the basis of race) . As a result, the defendants herein, by providing the plaintiffs with assistance, are not discriminating against the plaintiffs merely because the statutory type of assistance provided by §101.051, Fla. Stat., does not necessarily allow plaintiffs to independently case their ballot. A contrary interpretation would cause the specific Federal statute (Voting Rights Act) to be controlled or nullified by the general one (ADA). id. at 550, 2483.
Plaintiffs allege that the particular discrimination against them manifests itself as follows: (a) being forced to reveal their votes to a third-party; (b) risking having (and actually having) their votes revealed by the third party to other people; (c) risking having (and actually having) the third-party attempt to influence their candidate choice; (d) having to vote in a manner that singles them out in the polling place; (e) having to wait long periods of
7

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time until a third-party is available to assist the voter; (f) having to incur the burden and impediment of traveling to the Office of Elections' headquarters to use the three accessible voting machines, if purchased; and (g) having to suffer embarrassment and distress during the voting process for each of the foregoing reasons. (Am. Complaint ~82). None of these, as interpreted by the courts, the Department of Justice1 , and the Federal Election Commission2 , violate 42 U.S.C. §12132 or 28 C.F.R. §35.130.
Plaintiffs allege that 28 C.F.R. §35.151(a) and(b) require that new equipment like voting machines be readily accessible to and useable by people with disabilities. Plaintiffs then claim that defendants Smith and Kast have failed to ensure that Florida's new voting equipment will be readily accessible to plaintiffs because the defendants have certified voting systems that are not designed and constructed to be usable by voters with visual or manual impairments. (Am. Complaint ~,84 and 85). Plaintiffs further allege defendants Smith and Kast have failed to only certify voting systems
1 Exhibit 1 attached hereto is Department of Justice Letter of Finding #99,August 25, 1993,indicating that providing assistance is an effective means of enabling an individual with a vision impairment to cast a ballot. The attached copy was obtained from <http://www.usdoj.gov/crt/foia/cltr0999.txt>. The original has been ordered from the DOJ and will be substituted when received.
2 Exhibit 2 attached hereto is a copy of page 51, Federal Election Commission, 1996, report that indicates providing someone to assist in the completion of a ballot is an effective means of providing access under the ADA. The entire report is being obtained and will be subsequently filed herein.
8

,Case 3:01-cv-01275-HLA-HTS Document 55 Filed 11/26/02 Page 9 of 37 PageiD 733
that furnish appropriate auxiliary aids so that plaintiffs can vote independently, in violation of 28 C.F.R. §35.160(a)and{b).
The specific issue for purposes of this motion to dismiss is whether the ADA and its various regulations require defendants Smith and Kast to only certify voting systems that will permit plaintiffs to vote independently without assistance. The answer is no.
The term "vote" as used in 42 U.S. C. §1971 (a) includes all action necessary to make a vote effective including, but not limited to registration or other action required by State law prerequisite to voting, casting a ballot, and having such ballot counted and included in the appropriate totals of votes cast with respect to candidates for public office and propositions for which votes are received in an election. See 42 U.S.C.§1971(e). "The right to vote freely for the candidate of one's choice is of the essence of a democratic society, and any restrictions on that right strike at the heart of representative government." Reynolds v. Sims, 377 U.S. 533,555, 84 S.Ct. 1362,1378, 12 L.Ed.2d 506(1964). The Voting Rights Act of 1965 was originally aimed at state regulations which had the effect of denying citizens their right to vote because of their race. Moreover, the act gives a broad interpretation of the right to vote, recognizing that voting includes "all action necessary to make a vote effective". Allen v. State Ed. of Elections 1 393 U.S. 544,565, 89
s . Ct . 817 I 831, 2 2 L . Ed . 2d 1 (196 9) .
Then the Voting Rights Act of 1965, as amended in 1982 specifically required that a blind or otherwise disabled person be
9

Qase 3:01-cv-01275-HLA-HTS Document 55 Filed 11/26/02 Page 10 of 37 PageiD 734

provided assistance when voting.

Senate Report No. 97-417

accompanying the Act concluded that the right to vote is made

meaningful if a blind voter is assisted by someone they can trust.

That report demonstrates that Congress believed that voting privacy

concerns were met when a voter is allowed to choose an individual to

assist them in voting. See, Nelson v. Miller, 950 F.Supp 201, 203

(W.D. Mich. 1996) at FN1.

Viewed in this context, plaintiffs allegations that they are

unable to communicate their votes as effectively as non-disabled

voters is directed to the fact that they need to vote with

assistance, not that the outcome of their vote is any less effective.

While they speculate that they might have their vote revealed by the

third-party or that the third-party might attempt to influence their

candidate choice, nowhere do they allege that they have not been able

to vote for the candidate of their choice or that their ballot was

not counted. Therefore, the proper focus is on the concept of

~program accessibility" rather ~facilities accessibility".

Under the ~program accessibility" standard, the Court must

determine whether the Duval County Voting System, when viewed in its

entirety, is readily accessible to the plaintiffs. In doing so, the

Court is required to look at the accessibility of the system as a

whole, not at individual elements. See, Association for Disabled

Americans v. City of Orlando, 153 F.Supp.2d 1310,1320 (M.D. Fla.

2001) (both the Orlando Arena and the Bob Carr Performing Arts Centre,

when viewed in their entirety, are accessible to and usable by

10

Case 3:01-cv-01275-HLA-HTS Document 55 Filed 11/26/02 Page 11 of 37 PageiD 735
disabled individuals) . When determining whether or not the law requires that the facilities be made more accessible, the Court is required to view the programs presented at the facilities in their entirety, rather than focusing on specific inaccessible aspects of the facilities. id at 1321.
The fact that the United States Congress and the Florida Legislature have recognized the existence of the problem and have chosen to solve it by mandating assistance in the voting process when requested, distinguishes this case from Sholtz v. Cates, 256 F.3d 1077 (11th Cir. 2001) ("If the Courthouse's wheelchair ramps are so steep that they impede a disabled person or if its bathrooms are unfit for the use of a disabled person, then it cannot be said that the trial is 'readily accessible,' regardless whether the disabled person manages in some fashion to attend the trial) . (emphasis added) . There is nothing in plaintiffs' complaint to indicate any systematic or continuing impediment to having their vote properly recorded and tabulated. At best, the complaint contains veiled references to either speculation(risking) or isolated (and presumably unreported) incidents of having their votes revealed by the third-party to others or having the third-party attempt to influence their candidate choice. (Am. Complaint ~82). Any such isolated incidents are addressed by §104. 23, Fla. Stat. (2002) , which provides that any such disclosure constitutes a 3rd degree felony. The issues that plaintiffs raise were considered by the various lawmakers during the
11

Case 3:01-cv-01275-HLA-HTS Document 55 Filed 11/26/02 Page 12 of 37 PageiD 736
legislative process when assistance was mandated. Therefore, even though the plaintiffs require assistance to cast their vote, the voting process is accessible to them.
Congress again considered this issue when adopting the Help America Vote Act of 2002. It conditioned the receipt of federal funds upon a State developing and implementing a plan that includes a voting system that is 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, through the use of at least one (1} direct recording electronic voting system or other voting system equipped for individuals with disabilities at each polling place. (§§253, 254, 3 01) . However, consistent with the Voting Rights Act of 1965, actions for enforcement by declaratory and injunctive relief are granted to the Attorney General. The Help America Vote Act of 2002, does not provide for a private right of action. See, Love v. Delta Air Lines, ___ F.3d ___ ,2002 WL 31431583 (11th Cir. October 31, 2002) (NO. 02-10223) (the courts cannot create by implication a private right of action, no matter how socially desirable or otherwise warranted the result may be) .
Similarly, the Florida Legislature passed the Electronic Voting Systems Act. Section 101.56062, Fla. Stat. (2002) , Standards for accessible voting systems, requires the installation of accessible voter interface devices that allow the voter to operate independently
12

Case 3:01-cv-01275-HLA-HTS Document 55 Filed 11/26/02 Page 13 of 37 PageiD 737
to cast a ballot without assistance. However, that section only becomes effective "one year after the legislature adopts the general appropriations act specifically appropriating to the Department of State, for distribution to the counties, $8.7 million or such other amounts as it determines and appropriate for the specific purpose of funding this act." The appropriation has not been adopted.
Plaintiffs, in their Motion for Reconsideration, attached numerous exhibits which demonstrate that the issues raised herein were fully raised and addressed by the Secretary of State's Select Task Force on Voting Accessibility. (See exhibits C, E, F, and H attached to plaintiff's motion). The Final Report containing the findings, recommendations, suggestions for implementation, and funding considerations, was forwarded to the Secretary of State by Representative Crow and Senator Mitchell, the House and Senate sponsors of the companion legislation necessary to implement the recommended statutory changes. (exhibit F to plaintiff's motion). Therefore, it must be presumed that the Florida Legislature was fully apprised of the issues when it enacted the Electronic Voting Systems Act, contingent upon future appropriations.
While both Congress and the Florida Legislature have 1 in effect, acknowledged that voting systems should be more accessible 1 the legislation stops short of requiring the State of Florida to make the facilities more accessible. Furthermore, by addressing the existing difficulties for voters with visual or manual disabilities without creating an unfunded entitlement, Congress and the Florida
13

Case 3:01-cv-01275-HLA-HTS Document 55 Filed 11/26/02 Page 14 of 37 PageiD 738
Legislature have reaffirmed that no such right had been created in previous legislation. III. PLAINTIFFS HAVE FAILED TO DEMONSTRATE A CASE OR CONTROVERSY.
Article III of the United States Constitution requires parties seeking to invoke the power of the federal courts to allege an actual case or controversy. O'Shea v. Littleton, 414 U.S. 488, 94 S.Ct. 669 I 38 L . Ed . 2d 674 (1974 ) . In order for a case to be ripe, the injury or threat of injury must be "real and immediate" and not "conjectural or hypothetical." Id. at 4 93-94. The ripeness doctrine does not require a litigant to have already suffered harm; however, it is sufficient if there is a reasonable probability of harm. In short, "[r] ipeness is a question of timing." City Communications, Inc. v. City of Detroit, 888 F.2d 1081, 1089 (6th Cir. 1989) (quoting Blanchette v. Connecticut Gen. Ins. Corps., 419 U.S. 102 (1974). "The central concern is whether the case involves uncertain or contingent future events that may not occur as anticipated, or indeed may not occur at all." 13A C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure §3532.1 (1984). According to the court in City Communications,
The [ripeness] doctrine dictates that courts should decide only existing, substantial controversies, not hypothetical questions or possibilities. [Citation omitted.] Ripeness becomes an issue when a case is anchored in future events that may not occur as anticipated, or at all. City Communications, 888 F.2d at 1089 Furthermore, even if a claim does present a case or controversy
14

Case 3:01-cv-01275-HLA-HTS Document 55 Filed 11/26/02 Page 15 of 37 PageiD 739

within the meaning of Article III, there may be prudential reasons

to declare a case unripe. According to the Court in Brown v. Ferro

Corp., 763 F.2d 798, 801 (6th Cir. 1985), cert. denied, 474 U.S. 947

(1985), the ripeness doctrine depends not only on the finding of a

case or controversy, but also requires that the court exercise its

discretion to determine whether judicial resolution would be

desirable under all of the circumstances. See also O'Shea, 414 U.S.

at 493-94. The rationale for the ripeness doctrine is evident.

Defendants . . may find themselves unable to

litigate intelligently if they are forced to

grapple with hypothetical possibilities rather

than immediate facts.

[Furthermore,]

unnecessary lawmaking should be avoided, both as

a matter of defining the proper role of the

judiciary in society and as a matter of reducing

the risk that premature litigation will lead to

ill-advised adjudication.

C. Wright, A. Miller & E. Cooper, supra at §3532.1.

With respect to standing, this requirement is an aspect of the

Article III "case or controversy" requirement. To have Article III

standing, plaintiff, in seeking declaratory or injunctive relief,

must demonstrate a likelihood of suffering future injuries, the

likelihood of suffering such injury at the hands of the defendants;

and that the relief sought will likely prevent such injury from

occurring. In establishing the likelihood of suffering future

injury, a plaintiff must present specific and concrete facts showing

that the challenged action will result in a demonstrable,

particularized injury to plaintiff so that plaintiff personally will

15

Case 3:01-cv-01275-HLA-HTS Document 55 Filed 11/26/02 Page 16 of 37 PageiD 740
benefit in a tangible way from court action. Warth v. Seldin, 422 U.S. 490, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). Moreover, the injury must be real and immediate and not conjectural or hypothetical. City of Los Angeles v. Lyons, 461 U.S. 95, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983). Plaintiff must also establish a fairly traceable nexus between the threatened deprivation of the constitutional rights and the action of the defendant. Allen v. Wright, 468 U.S. 737, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984). The injury must be caused by defendant and be remediable by defendant. Wehunt v. Ledbetter, 875 F.2d 1558 (11th Cir. 1989), cert. denied, 494 U.S. 1027 (1990).
The particular discrimination alleged by plaintiffs does not meet that standard. (Am. Complaint ,82). Being forced to reveal their votes to a third-party, risking having (and actually having) their votes revealed by the third-party to other people, and risking having (and actually having) the third-party attempt to influence their candidate choice is mere speculation. To the extent that isolated incidents occur (or have occurred), they cannot be attributed to defendants, Smith and Kast. Additionally, to the extent that plaintiffs may be singled out in the polling place, may have to wait long periods of time for assistance, or may have to travel to the Office of Elections headquarters, plaintiffs cannot hold defendants Smith and Kast liable. Until such time as plaintiffs are able to demonstrate that the Secretary and Division Director, by following the Federal Voting Rights Acts and the Florida Statutes
16

Case 3:01-cv-01275-HLA-HTS Document 55 Filed 11/26/02 Page 17 of 37 PageiD 741
have threatened to deprive plaintiffs of their constitutional rights, plaintiff's claims are insufficient to demonstrate standing for Article III purposes.
Instead, plaintiffs have alleged that by certifying voting systems that are inaccessible, or not designed and constructed to be readily accessible to and usable by persons with visual impairments and persons with manual impairments, defendants Smith and Kast have not afforded the plaintiffs the opportunity to participate in the voting process in a manner the same as or similar to non-disabled voters. (,, 48, 49, and 50.). Section 15.13, Fla. Stat. (2002), provides:
The Department of State shall have general supervision and administration of the election laws, corporation laws and such other laws as are placed under it by the Legislature and shall keep records of the same. The ADA is not an election law. Therefore, the Secretary and the Division Director do not have the duty to comply with plaintiff's request to only certify voting systems that allow them to vote without assistance, nor do they have a duty to "give primary consideration" to the accommodation requested by the plaintiffs pursuant to 28 C.F.R. §35.160(b) (2). Both Congress and the Florida Legislature have, in effect, decreed that voting with assistance is a reasonable accommodation that does not violate any of plaintiffs' Constitutional or statutory rights. To prevail under the ADA, plaintiffs must show that the accommodations offered by the Florida Legislature are not reasonable,
17

Case 3:01-cv-01275-HLA-HTS Document 55 Filed 11/26/02 Page 18 of 37 PageiD 742
and that they are unable to participate equally in the voting process. See, Duvall v. County of Kitsap, 260 F.3d 1124,1137 (9th Cir. 2001) . While these defendants have the discretion to adopt rules which establish minimum standards for electronic and electro mechanical voting systems, which would include plaintiffs' concerns, in the absence of such a duty, they cannot be held responsible for failure to exercise that discretion. Lightbourn, supra at pg. 429. Therefore, plaintiffs' claims against these defendants do not demonstrate the existence of a case or controversy.
IV. PLAINTIFFS CANNOT DEMONSTRATE A CLAIM UNDER SECTION 504 OF THE REHABILITATION ACT.
Due to the similarities of the provisions of Title II of the ADA and Section 504 of the Rehabilitation Act, defendants Smith and Kast rely upon the above arguments for dismissal of plaintiffs Rehabilitation Act claims in Count Two of the Amended Complaint, with one addition. The Department of State has not received federal funding for use by the Division of Elections, or use in elections related functions during the various fiscal years dating back to 1997. As of the date of the affidavit of Hal Lench, attached hereto as Exhibit 3, the Division of Elections has not received nor has it benefitted directly from federal financial assistance. Plaintiffs cannot predicate a §504 claim against a state actor on the mere fact that the defendants are instrumentalities of a department of the Florida state government and that department is a recipient of federal financial assistance. To state a §504 claim and to avoid
18

Case 3:01-cv-01275-HLA-HTS Document 55 Filed 11/26/02 Page 19 of 37 PageiD 743
summary judgment, plaintiffs must allege and demonstrate that the specific program or activity with which they are involved receives or directly benefits from federal financial assistance. See, Lightbourn, supra at pg. 427.
CONCLUSION For the reasons set forth above defendants Smith and Kast's Motion to Dismiss/Motion for Summary Judgment should be granted and the plaintiffs' Amended Complaint should be dismissed with prejudice.
Respectfully submitted,
RIC~~~yE;~~~RAN
d.{)
HARLES A. FI EL Assistant Attorney General Florida Bar No. 099390 Office of the Attorney General PL-01, The Capitol Tallahassee, Florida 32399-1050 (850)414-3300
19

Case 3:01-cv-01275-HLA-HTS Document 55 Filed 11/26/02 Page 20 of 37 PageiD 744

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true copy of the foregoing has been

furnished by facsimile and U.S. Mail to:

J. Douglas Baldridge Howrey Simon Arnold & White 1299 Pennsylvania Avenue, N.W. Washington, D.C. 20004
Scott D. Maker Office of General Counsel 117 West Duval Street Suite 480 Jacksonville, FL 32202

Lois G. Williams Washington Lawyer's Committee for Civil Rights and Urban Affairs 11 Dupont Circle NW, Suite 400 Washington, D.C. 20036

J.j

<')....,

on this2_fJ day of Ul/'l&""'tcA.., , 2002.

20

·Case 3:01-cv-01275-H~TS Document 55 Filed 11/26/0~age 21 of 37 PageiD 745

,:-...... .Case 3:01-cv-01275-HLA-HTS Document 55 Filed 11/26/02 Page 22 of 37 PageiD 746

# 99 II-7.1000

August 25, 1993

xxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxx
XXXXXXXXXX, Florida XXXXX
RE: Complaint Number XXXXXXXXXX (formerly XXXXXXXXXXXXX
Dear Ms. XXXXXX:
This constitutes our Letter of Findings with regard to your complaint against the Supervisor of Elections, Pinellas County, Florida, under title II of the Anericans with Disabilities Act (ADA), which prohibits discrimination against qualified individuals with disabilities on the basis of disability by State and local governments. Specifically, you allege that the supervisor of Elections of Pinellas County does not provide Braille ballots or an electronic system of voting, such as voting by telephone, to blind voters. You further allege that the present system of providing assistance at the polling place does not allow a blind voter to cast a secret ballot.
The Civil Rights Division has completed its investigation of your complaint. Our investigation revealed that the Supervisor of Elections of Pinellas County follows the Florida statute (Chapter 97.061, F.S.), which requires the following provisions for voters with visual impairments: 1) the assistance of any two election officials at the polling place; or 2) the assistance of any one person of the individual's choice. Pinellas County also provides a magnifying lens at polling places. In a telephone conversation with our office, Ms. Dorothy Ruggles, Supervisor of Elections, stated that when a blind person comes to the polling place to vote, the poll workers offer a choice of allowing someone the person knows or two poll officials to assist in casting the ballot.
Legal Requirements
The Department of Justice's regulation implementing title II provides that a public entity must ensure that its communications with individuals with disabilities are as effective as communications with others and must furnish appropriate auxiliary aids and services where necessary to afford an individual with a disability an equal opportunity to participate in, and enjoy the benefits of, a service, program, or activity conducted by a public entity. 28 C.F.R. D 35.160. A public entity is not required to take any steps that would result in a fundamental

EXHIBIT

Case 3:01-cv-01275-HLA-HTS Document 55 Filed 11/26/02 Page 23 of 37 PageiD 747
alteration in the service, program, or activity or in undue financial and administrative burdens. 28 C.F.R. 0 35.164
In determining what type of auxiliary aid or service is necessary, a public entity must give primary consideration to the requests of the individual with a disability, that is, the public entity must provide an opportunity for individuals with disabilities to request the auxiliary aids and services of their choice and must honor that choice unless it can demonstrate that another effective means of communication exists or that provision of the aid or service requested would result in a fundamental alteration or in undue financial and administrative burdens. 28 C.F.R. 00 35.160(b) (2); 35.164.
Discussion
The Pinellas County Supervisor of Elections provides magnifying lenses and readers for individuals with vision impairments seeking to vote. The election procedures specify that an individual who requests assistance will be assisted by two poll workers, or by one person selected by the voter. Your complaint alleged that the provision of assistance to an individual who is unable to fill out a printed ballot is inadequate because it does not allow a blind voter to cast a secret ballot. A Braille ballot, however, would not meet your objective of keeping your vote secret, because it would have to be counted separately and would be readily identifiable. Also, electronic systems of voting by telephone that meet the security requirements necessary for casting ballots are not currently available.
Although providing assistance to blind voters does not allow the individual to vote without assistance, it is an effective means of enabling an individual with a vision impairment to cast a ballot. Title II requires a public entity to provide equally effective communications to individuals with disabilities, but "equally effective" encompasses the concept of equivalent, as opposed to identical, services. Poll workers who provide assistance to voters are required to respect the confidentiality of the voter's ballot, and the voter has the option of selecting an individual of his or her choice to provide assistance in place of poll workers. The Supervisor of Elections is not, therefore, required to provide Braille ballots or electronic voting in order to enable individuals with vision impairments to vote without assistance.
Based upon the facts and legal requirements discussed above, we have determined that the Pinellas County Supervisor of Elections is not in violation of title II with respect to the issues you have raised. If you are dissatisfied with our determination, you may file a private complaint in the appropriate United States District Court under title II of the ADA.
You should be aware that no one may intimidate, threaten, coerce, or engage in other discriminatory conduct against anyone who has either taken action or participated in an action to secure rights protected by the ADA. Any individual alleging such harassment or intimidation may file a complaint with the Department of Justice. We would investigate such a complaint if

.-- Case 3:01-cv-01275-HLA-HTS Document 55 Filed 11/26/02 Page 24 of 37 PageiD 748
the situation warrants.
Under the Freedom of Information Act, 5 U.S.C. 0 522, we may be required to release this letter and other correspondence and records related to this complaint in response to a request from a third party. Should we receive such a request, we will safeguard, to the extent permitted by the Freedom of Information Act and the Privacy Act, the release of information which could constitute an unwarranted invasion of privacy.
If you have any questions, please contact Linda King at (202) 307-2231.
Sincerely,
Stewart B. Oneglia Chief
Coordination and Review Section Civil Rights Division
1 This interpretation is consistent with long-standing interpretation of section 504 of the Rehabilitation Act of 1973, which prohibits discrimination on the basis of disability in federally assisted programs and activities. See the discussion of the general prohibitions of discrimination in the preamble to the Department's title II regulation at 56 FR 35,703 and the analysis of the Department of Health, Education, and Welfare's original regulation implementing section 504 (later transferred to the Department of Health and Human Services) at 45 C.F.R. pt. 84, Appendix A.

• Case 3:01-cv-01275-H~TS Document 55 Filed 11/26/~age 25 of 37 PageiD 749

EXHIBIT
I 2

Section 35.164 further provides th•t the he~d of the public entity (or a desi;nee} carries tbe responsiDility of proving any such burden in a w~i~ten atateaent. An4 even so, 1t provides
that:

If au aQt1on required to co•ply with this sutpart would

re•~lt in such en alteratio~ or sucn burdens, a public

entity aball take any other action tbat would not result in

sueh an al~era~ion or such ourdens but would nevertheless

on8ure that, to tbe aaximua ex~ent poasible, individuals

wi~b diaabilitiea receive the benefits or services provided

by the public eatity.

·

These things taken together, it is this Commission's

understanding that •l•t}pq tbe ttSpirements of the V!A. of the

pq~li;g place gccessibi~ity eritJriJ rtcgmmepded by this
Co. .ittion. ap4 of Sestign aoa gl 'bf YQiinq Bights Act lyRA)
woijl4 aati•fy the re9»iteaenta of tbe Ap~ with ~eqJrd to the

o iV: ~·t•a~dJ~ithi~eotnatoaitl=aa8l~lUy.4~isblti=l&jdip£~iYde o. afherqt~Vty~\ja~~ry~1io~!r~,.r~e~1lqeisit 1t~i•=onftpt•c~or:~yff~Cl~sfaos~nlimetnheudeda.tvQniQoW stwy~ipl1r;ogvafar•d
Uldll!trily inqlgf• provid nq taped, re;gEdJd· gr braille ballot•· ttai•tr•tion fox.. er ptb•r publis re~ord, or 4ospmlntg it tht b••d of thl eltelian q!fiee bJ• detsraintd in writing tb•t

IVoh st£Yiges would eapstituse !D DDdQe ·~inittratiye cr

a a

Jt •

t

·

•t e

at a ll'l.ini

of v· i a

t

lee icn rocess su

!I Pfpvi4iD9 sqmegge qu•li!ied to read end ~o help in the

coiRlption gf the reqistrasion fprm. to read apd to hele in the

coMpletion of tbe ~allot (should tbt blind indixid»il not requaat

tbl ••~i•t•UQI of fDQ~I' und•r Segtioa 201 of the y&A). and to

retd gther »Y~lis dos;,ents 1

on o ttaa,j: Tb• app1iaatioP o! ~· ••1!-•valuatian ~e~i~eaeAtt
impo•ed public •ntities b~ the ADA.
SUbaection l(c)(l) of the VAA (42 u.s.c. 1973ee-l) provides
that: each State shall report to ·~the federal Blection Commission, in a aanner ~o be dater•ined by the Comaia•ion, thG nuab•r
of accessible and inaacassible pollinv'»laces in sueh State
on the date of the preceding ;eneral Padaral ele~tion, and
the reasons tor any inatance of inaccessibility. ·

EXHIBIT
I --~----

( /JAGE 51}
lOTAL P.03

· · ·Case 3:01-cv-01275-H~TS Document 55 Filed 11126/0~age 28 of 37 PageiD 752

• · Case 3:01-cv-01275-HLA-HTS Document 55 Filed 11/26/02 Page 29 of 37 PageiD 753

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA JACKSONVILLE DNISION

AMERICAN ASSOCIATION OF PEOPLE WITH DISABILITIES et al.

Plaintiff, vs.

CASE NO. 3:0-CV-1275-J-21TJC

JIM SMITH, EDWARD C. KAST, et al.

Defendants.
--------''

STATE OF FLORIDA) COUNTY OF LEON )

AFFIDAVIT OF HAL LENCH

BEFORE ME the undersigned authority personally appeared Hal Lench, who having been duly sworn, deposes and says:
1. My name is Hal Lench, and I am Director ofthe Florida Department ofState's Division of Administrative Services.
2. I have been informed that the Plaintiffs in this case have filed suit claiming that Defendants Jim Smith and Edward Kast, in their respective official capacities, have violated Section 504 ofthe Rehabilitation Act of 1973 (hereinafter "Rehabilitation Act" or the "Act").
3. I have also been informed that the Plaintiffs specifically alleged that "Defendants Smith and Kast are instrumentalities of a department ofthe State ofFlorida state government

EXHIBIT 1
3

• ·Case 3:01-cv-01275-HLA-HTS Document 55 Filed 11/26/02 Page 30 of 37 PageiD 754
and that department is a recipient of federal financial assistance". (See allegation number 101 ofPlaintiffs Amended Complaint for Injunctive and Declaratory Relief). 4. After reviewing the pertinent financial documents for the Department ofState, I hereby declare that the Department of State for the State ofFlorida has received federal awards monies for purposes other than election related divisions or programs as ofthe date of this affidavit. 5. As reflected in the attached Schedules of Expenditures of Federal Awards for the Florida Department of State, the Department has received federal awards to be used in other projects such as the National Park Service, Arts in Education, Historic Preservation Fund Grants-in-Aid, and the Museum of Florida History. 6. I further declare that the Department of State has not received federal funding for use by the Division ofElections, or use in elections related functions or services, during the 1997-1998, 1998-1999, 1999-2000,2000-2001 and 2001-2002 State fiscal years. As of the date ofthis affidavit, the Division of Elections has not received nor has it benefited directly from federal financial assistance.
2

' ·• Case 3:01-cv-01275-HLA-HTS Document 55 Filed 11/26/02 Page 31 of 37 PageiD 755 I HEREBY AFFIRM AND VERIFY THAT THE FOREGOING STATEMENTS ARE TRUE AND CORRECT. FURTHER AFFIANT SAYETH NAUGHT. HALLENCH
SWORN TO AND SUBSCRIBED BEFORE ME this ./i.#day ofNove.mher 2002_,_~Lench ofthe Florida
Department ofState's Division ofAdministrative Services, who is~nally known to roe or whose identity I
proved based upon his Florida's Driver's License.
(SIGNATURE OF PERSON MINISTERING 0ATH]
(PRINT, TYPEORSTAMPNAMEOFNOTARYPUBLICORNAME AND TITLE OF OTHER OFFICER ADMINISTERING OATH
PURSUANT TO§ 117.10, FLA. STAT.]
3

Schedule of Expenditures of Federal Awards For the Fiscal Year Ended June 30, 1998

Granting Agency/Project Name
U. S. Department of the Interior National Park Service
Historic Preservation Grants-ln-Aid-F7000 Historic Preservation Grants-ln-Aid-F5000 Historic Preservation Grants-ln-Aid-F6000 Historic Preservation Grants-ln-Aid-F0098
Sub-Total
National Foundation on the Arts and the Humanities National Endowment for the Arts
Promotion of the Arts-Grants to Orgamzations and Individuals 1995-96 Grant AIE96 1997-98 Grant AIE98 1994-95 Grant FFPOR
Promotion of the Arts- Partnership Agreements 1997-98 Grant BSG98 1996-97 Grant BSG97
Sub-Total
U. S. Department of Education Office of Educational Research and Improvement
library Services (LSCA Title I)(GROOI) Library Services (LSCA T1tle I)(GROOI)

CFDA

Federal

Number Grant Number

15 904

12-97-12011 12-95-10043 12-96-11071

45.024

95-5154-0011

94-5551-0181

45.025

96-6141-0042

45.301

ER034A60018 ER034A70018

DOE Grant Number

Less: Portion Less: Portion Less: Portion

of Expenditure of Expenditures of Expenditures

Total

subgranted subgranted subgranted

Expenditures to Other State

to State

to Community

Federal Share of Fla Agencies Universities

Colleges

7/1/97-6/30/98 7/1/97-6/30/98 7/1/97-6/30/98 7/1/97-6/30/98 (

\

N/A

$145,807.14

N/A

0 00

N/A

23,576.12

N/A

16,425 00

$185,808.26

$0.00 0 00 000 000 $0.00

$7,875.00 0 00 0 00 0 00
$7,875 00

$0 00 000 0 00 0 00 $0 00

N/A

1,149.63

N/A

41,586.18

N/A

1,436 00

N/A

321,337 68

N/A

16,825 60

$382,335 09

000

0 00

0 00

0 00

000

0 00

0.00 0 00 $0 00

0 00 7,875 00 $7,875 00

0 00 0 00 0.00
0 00 0 00 $0.00

95E000500

169,705 44

16,817.00

98,203 85

0 00

95E000500 3,714,461 66

0 00

0 00

0 00

Adjusted

Amount of

Federal Share

Expenditures in

0

column 8 that represent 0)

amounts subgranted

(/)
CD

to subrecipients

w

0__._

$137,932 14 $0 00
$23,576.12 $16,425 00 $177,933 26

I

0 < I

0__._
$137,932.14 1\)

$0.00 -.....~

U1 $23,576.12 I

$16,425.00

I r

$177,933.26 )>

I

I

--l

(f)

$1,149.63 $41,586.18
$1,436.00
$321,337 68 $8,950 60
$374,460 09
$54,684 59 $3,714,461 66

0

0

3 $0.00
$35,000 00

c 0

$0 00 CD

:::::l

..-+

U1 U1 $0 00

$10,625 00 :::!1
$45,625 00 CD
Q_
__._ __._

i\5
0 $0 00 (J)
$2,880,509 79 1\)

Interlibrary Cooperation (LSCA Title III)(GRIII) Interlibrary Cooperation (LSCA Title III)(GRIII) Interlibrary Cooperation (LSCA Title III)(GRIII)
Public Library Construction (Title II)(GROII)
Library Literacy (LSCA Title IV)(GROIV) Sub-Tolal

45 301

ER035A50018 ER035A60018 ER035A70018

94E000501 95E000501 95E000501

1,142,381 00 812,169 21 0.00

121,454.00 0 00 0.00

42,992 72 0 00 0.00

45.301 ER 154A50025 93E000580

308,000 00

000

0 00

84.167

R167A50130

94E00537

0 00 $6,146,717.31

0.00 $138,271 00

0 00 $141,196.57

0.00 0.00 000

$977,934 28 $812,169 21
$0.00

000 $308,000.00

000

$0 00

$0 00 $5,867,249.74

-u $673,419 57 Ol
$812,169.21 (.Q CD
w $0 00 1\)

$308,000.00

0
--h

w

-.....~
$0 00 -u

$4,674,098 57 Ol
(.Q

CD

0

-.....~
U1
(J)

Page 1 of 2

1119/98

Schedule of Expenditures of Federal Awards For the Fiscal Year Ended June 30, 1998

Granting Agency/Project Name U. S. Institute of Museum and Library Services
Public Ltbrary Construction (GROll) Public Ltbrary Construction (GROll) Public Ltbrary Construction (GROll) Public Ltbrary Construc!lon (GROll) Public Library Construction (GROll) Public Library Services (LSTA)
Sub-Total

CFDA

Federal

DOE Grant

45.301

LC5002598 LC6001098 LC7002598 LC9000598 860120998 LS8002498

Total Expenditures

I hereby certify that the Information included herein ts accurate and complete to the best of my knowledge.

This includes the Htstonc Preservatton Boards and Ringling Museum of Art

~.~;;~"'!}:t!;~~ R•oo"~'

j/~ 9-f;{
Date

Less: Portion Less: Portion Less: Portion

of Expenditure of Expenditures of Expenditures

Total

subgranted subgranted subgranted

Expenditures to Other State

to State

to Community

120,839.70 0.00 0 00 0 00 0.00 0.00
$120,839 70

0.00 0 00 0 00 0 00 0 00 0 00 $0 00

0.00 0.00 0.00 0 00 0 00 000 $0 00

0 00 0 00 0.00 0 00 0 00 0 00 $0 00

$6,594,020 96 $138,271 00 $156,946 57

$0 00

Adjusted

Amount of

Federal

Expenditures in

0

column 8 that represent Ol

amounts subgranted ~

$120,839 70 $0 00

w $120,839 70 0......
0 $0.00

$0.00 $0.00

s $0 00 -;:
$000

$0.00 $0 00 $120,839 70
$6,298,803 39

$0 00 1\) -.....!
$0 00 U1
$120,839.70 II r
)>
I
$4,776,817.13 I--l
(f)

0
0
c 0
3
CD :::::l
..-+
U1 U1

::!1
CD 0..
............ i\5
(J)
0
1\)
-u
Ol
(.Q
CD
w w 0...... w
-.....!
-u
Ol
(.Q
CD
0
-.....! U1 -.....!

Page 2 of 2

1119/98

Department of State Schedule of Expenditures of Federal Awards
For the Fiscal Year Ended June 30, 1999

Revised 12/3/99

Less: Portion Less: Portion Less: Portion Adjusted

Amount of

of Expenditures of Expenditures of Expenditures Federal

Expenditures In

0

Granting Agency/

Total

Subgranted

Subgranted

Subgranted

Share

column 8 that represent

!ll
(/)

CFDA

Federal

Expenditures to Other State

to State

to Community

amounts subgranted

CD

Project Name

Number Grant Number Federal Share of Fla Agencies Universities

Colleges

to other subreclpients

w

0

U. S. Department of the Interior National Park Serv1ce - F7000 National Park Service - F0098

--1.

I

15.904

12-97-12011

(32,831.04)

0.00

000

0.00

(32,831.04)

(32,831.04)

0 <

I

12-98-13111

39,850.00

0.00

0 00

0.00

39,850 00

39,850.00

0

--1.

National Park Serv1ce - F0099

12-99-14241

18,000 02

0 00

000

000

18,000 02

16,000.02

1\)

Sub-Total

25,018 98

0.00

0.00

000

25,018 98

25,016 98

-....J U1

I

U.S. Department of Transportation

I

Federal H1ghway Administration- Subgranted from Florida DOT 20.205

99090-1511

168,342 52

0.00

0.00

0 00

166,342 52

0.00

r
)>

I

I

National Foundation on the Arts and the Humanities

--l

Ni!tiOnal En!lowment for the Arts !Historical Resources)

(f)

NEA Apprenticeship Resources - AP096 National Endowment Arts - NA099 NEA Folklife Apprenticeship - NEAOO
Promotion of thEl.Arts P<~rtnership Agreements !Cultur<~l Affairs) Arts in Education - AIE98 Basic Slate & Unserved Arts Community - BSG96

45.026 Sub-Total 45.025

98-5500-6013 96-5500-3117 99-5500-6019
97-6118-2055 97-6118-2055

3,135.28 37,94917
1,170.37 42,254.82
413.82 11,546.24

0.00 0.00 000 0.00
0.00 0 00

000 000 000 0.00
0.00 000

000 0.00 000 0.00
0.00 0.00

3,13528 37,949.17
1,170.37 42,254.82
413.82 11,546.24

000

0

000

0

0.00

c 0

0.00

3

CD

:::::l

..-+

000

U1

000

U1

Unserved Arts Community Assistance Program - UAC98

97-6118-2055

8,836 00

0.00

000

000

8,836.00

8,836.00

Arts in Education - AIE99

98-6100-2045

57,109 04

0.00

0.00

0.00

57,109.04

44,450 00

:I)

Basic State & Unserved Arts Community - BSG99

98-6100-2045

389,610.03

0.00

0.00

0.00

389,610.03

000

co:
Q_

Unserved Arts Community Assistance Program - UAC99

98-6100-2045

51,100.00

0.00

0 00

0.00

51,100.00

51,100 00

_.

___;.

Sub-Total

518,615 13

0.00

000

000

518,615.13

104,386.00

.........

U.S. Department of Education

~

Public Library Construction - IMLS - GROll

84.154

ER154A50025

406,139.60

0.00

0.00

0.00

406,139.60

406,139.60

0

~

J
U.S. lnstitue of Museum and Library Services

Service and Technology- LSTA1

45.310

LS-80024-98 4,506,199.46

167,146.50

0.00

0.00 4,321,052.96

3,839,849.89

Service and Technology- GROOI

LS-80024-98 1,263,502.91

0.00

231,275.64

0.00 1,032,227.27

199,880.57

Service and Technology- GRill

LS-80024-98

586,922.72

0.00

230,000.00

0.00

356,922.72

228,026.89

National Historic Publication and Records Commission

Sub-Total

6,358,625.09

167,146.50

461,275 64

0.00 5,710,202.95

4,267,757.35

Nal1onal Archives- GR010

69.003

96-060/96-006

34,337 88

0 00

0 00

000

34,337.66

20,100 00

I hereby certify that the informatiOn included herein is accurate and complete to the best of my knowledge istoric Preservation Boards and Ringling Museum of Art.

Bureau of Budget, Planning, and Financial Serv1ces

/71191
Date

Page 1 of 1

12/3/99

Department of State Schedule of Expenditures of Federal Awards
For the Fiscal Year Ended June 30, 2000

Granting Agency/ Project Name

CFDA Federal Number Grant Number

less: Portion less: Portion less: Portion

of Expenditures of Expenditures of Expenditures

Total

Subgranted -Subgranted

Subgranted

Expenditures to Other State

to State

to Community

Federal Share of Fla Agencies Universities

Colleges

U.S. Department of the Interior

National Park Service - F0098

15.904

National Park Service - F0099

Sub-Total

U.S. Department of Transportation

Federal Highway Administration - Subgranted from Flonda DOT 20.205

12-98-13111 12-99-14241
99090-1511

19,425 00 54,082.75 73,507.75
166,503.56

0.00 0 00 0.00
000

0.00 000 000
000

0.00 0.00 0 00
0.00

National Foundation on the Arts and the Humanities National Endowment for the Arts {Historical Resources}
NEA Folklife Apprenticeship - AP098 NEA Folklife Apprenticeship - AOOOO NEA Folklife Apprenticeship - NEAOO NEA Folklife Infrastructure - NA099 NEA Folklife Infrastructure- NOOOO
Promotion of the Arts Partnership Aqreements {Cultural Affairs} Arts in Education - AIE99 Basic State & Unserved Arts Community - BSG99 Arts in Education - AIE2K Basic State & Unserved Arts Community - BSG2K Unserved Arts Community Assistance Program - UAC2K
U.S. Department of Education Public Library Construction - IMLS - GROll

45.026
Sub-Total 45.025
Sub-Total 84.154

98-5500-6013 99-5500-6019 99-5500-6019 98-5500-3117 99-5500-3084
98-6100-2045 98-6100-2045 99-6100-2028 99-6100-2028 99-61 00-2028
ER 154A50025

1,722.00 6,900 02 19,143.78 11,739.26 23,305.68 62,810 74
6,510.00 97,177.37 66,207 64 355,400.75 51,300.00 576,595.76
370,623.00

000 0.00 000 0.00 0.00 0.00
0.00 0.00 0.00 0.00 0.00 0.00
0.00

000 000 0.00 0.00 0.00 0.00
000 0.00 000 000 0.00 0.00
0.00

0.00 0.00 0.00 0.00 0.00 - 0.00
0.00 000 0.00 000 0 00 0.00
0.00

U.S. Institute of Museum and library Services Service and Technology - LSTA1

45.310

LS800249~LS9000999

7,145,057.39

3,627.00

224,552.85

000

National Historic Publication and Records Commission National Archives- GR010

89.003 98-Q80/98-Q08

3,090.64

0.00

0.00

0.00

I hereby certify that the information included herein is accurate and complete to the best of my knowledge.

~ ttJ at&[lAAJ

1~5?~(')

Lynda V({(!son, Chief

Date

Bureau of Budget, Planning, and Financial Services

Adjusted Federal Share

Amount of Expenditures in column 8 that represent amounts subgranted to other subrecipients

19,425 00 54,082 75 73,507.75
166,503.56

19,425 00 54,082.75 73,507 75
0.00

1,722.00 6,900.02 19,143.78 11,739.26 23,305 68 62,810.74
6,510.00 97,177.37 66,207.64 355,400 75 51,300.00 576,595.76
370,623.00
6,916,877.54
3,090.64

0.00 000 0.00 0 00 0.00 000
6,510 00 0.00
47,000.00 000
51,300 00 104,810 00
370,623 00
5,421,967 50
000

.
0
!ll
(/)
CD
w 0......
I
0 < I
0......
1\)
-.....! U1
I
I r
)>
I
I --l
(f)
0
0
0 c
3
CD :::::l
..-+
U1 U1
:::!1
CD 0..
............ i\5
(J)
0
1\)
-u
!ll
(.Q
CD
w
U1
0...... w
-.....!
-u
!ll
(.Q
CD
0
-.....! U1 <.0

Page 1 of 1

9/25/00

Department of State Schedule of Expenditures of Federal Awards
For the Fiscal Year Ended June 30, 2001

Granting Agency/ Project Name
U.S. Department of the Interior National Park Service • F0099 National Park Service · F2000 National Park Service - F2001

CFDA Federal Number Grant Number

15.904 Sub-Total

12-99-14241 12-00-15311 12-01-16409

National Foundation on the Arts and the Humanities N'"tion<tl Endowment for the Arts (Hi~loric<ll Re:>ourc;es)
NEA Folklife Apprenticeship - APOOO NEA Foiklife Apprenticeship - AP001 NEA Folkhfe Infrastructure· NAOOO NEA Folklife Infrastructure - NA001
fuLI'IlQliQnJ)f the Art*Rrtnf;lrship Agrflements (Cultural Affairs) Arts in Education ·AlE Arts in Education- AlE Basic State & Unserved Arts Community - BSG2K Unserved Ar1s Community Assistance Program - UAC
U.S. Department of Education Public Library Construction - IMLS • GROll

45.026
Sub-Total 45.025
Sub-Total 84.154

99-5500-6019 00-5500-6075 99-5500-3034 00-5500-3034
99-6100-2028 00-6100-2051 00-6100-2051 00-6100-2051
ER154A50025

U.s. Institute of Museum and Library Services Servrce and Technology- LSTA1

45.310

LS8002498/LS9000999

Less: Portion Less: Portion Less: Portion of Expenditures of Expenditures of Expenditures

Adjusted Federal

Amount of Expenditures In

0
!ll

Total

Subgranted

Expenditures to Other State

Federal Share of Fla Agencies

Subgranted to State
Universities

Subgranted to Community
Colleges

Share

column 8 that represent

(/)
CD

amounts subgranted

w

to other subrecipients

0......

56,100.52

0.00

0.00

0.00

56,100.52

52,000.00

0.00

0.00

0.00

52,000.00

10,150.00

0.00

0.00

0.00

10,150.00

108,100.52

0.00

0.00

0.00

108,100.52

I

0 <

56,100.52 52,000.00

I
0......
1\)

10,150.00

""'-~

U1

108,100.52

I

I

r

)>

1,311.86

0.00

0.00

0.00

1,311.86

21,042.08

0.00

0.00

0.00

21,042.08

I

I

--l

0.00

(f)

0.00

16,749.06

0.00

0.00

0.00

16,749.06

26,781.43

0.00

0.00

0.00

26,781.43

65,884.43

0.00

0.00

0.00

65,884.43

0.00

0
0

0.00

c 0

0.00

3

21,079.00

0.00

0.00

0.00

21,079.00

CD

:::::l

21,079.00

.-+

46,900.00

0.00

0.00

0.00

46,900.00

371,126.16

0.00

0.00

0.00

371,126.16

46,900.00

U1 U1

0.00

62,300.00

0.00

0.00

0.00

62,300.00

501,405.16

0.00

0.00

0.00

501,405.16

750,000.00

0.00

0.00

0.00

750,000.00

62,300.00

::!1

130,279.00

CD

0..

750,000.00 ............

i\5

(J)

7,126,708.24

3,977.76

292,826.95

0.00 6,829,903.53

0

5,433,390 95

1\)

"U

I hereby certify t!Jat the information included herein is accurate and complete to the best of my knowledge.

!ll

a. }ft { ~·/,\/~y'':(:!.:?:;.J...·.I·/"?}tf~

fI/.)It/r~Y.-1)/VJ

Lynda Vllil;k>n, Chief

(.}/1/I_,-~/I{J/
Date I

(.Q
CD
w
(J)
0...... w

Bureau of Budget, Planning, and Financial Services

""'-~

"U !ll
(.Q
CD

0

""'-~ (J)
0

Page 1 of 1

9/13/01

Department of State Schedule of Expenditures of Federal Awards
For the Fiscal Year Ended June 30, 2002

Granting Agency/ Program Title

CFDA Federal Number Grant Number

Less: Portion Less: Portion Less: Portion

of Expenditures of Expenditures of Expenditures

Total

Subgranted Subgranted Subgranted

Expenditures to Other State

to State

to Community

Federal Share of Fla Agencies Universities

Colleges

National Park Service, Department of the Interior

Historic Preservation Fund Grants-in-Aid (Historical Resources) 15.904 12-00-15311/12-01-16409

352,503.25

0.00

90,115.00

0.00

National Endowment for the Arts, National Foundation on the Arts and the Humanities

Promotion of the Arts - Partnership Agreements (Cultural Affairs) 45.025

00-6100-2051/01-6100-2051

619,339.33

0.00

0.00

0.00

Promotion of the Arts- Leadership lnitatives (Historical Resources) 45.026 01-5500-6032/01-5500-3102

42,016.25

0.00

0.00

0.00

Adjusted Federal Share

Amount of

Expenditures in

0

column 8 that represent ~

amounts subgranted CD
w to other subrecipients

0......

352,503.25

I
60<
262,388.25 ......

1\)

619,339.33 42,016.25'

U""""1"" I
I r
150,180.32 )>
I
I 0.00 --l
(f)

Institute of Museum and Library Services, National Foundation on the Arts and the Humanities

Museum of Florida History- General Operating Support (Historical Resources)

45.301

IG-10690-01

Library Services and Technology Act - (Library and Info. Svcs.) 45.310 LS0000900/LS1001001

42,000.00 7, 798,544.22

0.00

0.00

0.00

300,859.03

0.00

42,000.00

0.00 7,497,685.19

0
0
c 0
0.00 3 CD :::::l ..-+

5,739,135 94

U1 U1

National Historical Publications and Records Commission Historical Publication and Records Grant-(Library and Info. Svcs.) 89.003

2001-017

I hereby certify that the Information included herein IS accurate and complete to the best of my knowledge.

c~tU.!-tL~

f~S~~

Lynd~ilson, Chief

Dati'

Bureau of Planning, Budget and Financ1al Services

102,322.10

0.00

13,699.00

0.00

88,623.10

:::!1
CD 0..
86,301 00 ............ i\5
(J)
0
1\)
-u
!ll
(.Q
CD
w
0."."".".".". w
-u""""""
!ll
(.Q
CD
0
("."."J.".".)".

Page 1 of 1

 
 Case 3:01-cv-01275-HLA-HTS Document 58 Filed 12/05/02 Page 1 of 133 PageiD 768

""-

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF FLORIDA

egg,FILED

JACKSONVILLE DNISION

ZCUZ uEC -5 P IJ: OJ

)

American Association of People with

)

Disabilities, et al.,

)

C! ,--". :·r; ~"'!,'':~T SO'.'KT
- ~fJ~l;;,
'. ·~; ;,.,_

)

Plaintiffs

)

) Civil Action No. 3:01-CV-1275-J-21TJC

v.

)

)

Jim Smith, et al.,

)

)

Defendants.

)

----------~-------------------

CONSOLIDATED OPPOSITION TO DEFENDANTS' MOTIONS TO DISMISS ORFORSUMMARYJUDGMENT

Plaintiffs respectfully submit this consolidated opposition to Defendants' motions to

dismiss or for summary judgment. This consolidated opposition addresses arguments made in

both ofthe Motions. I Plaintiffs have also filed a supplemental opposition memorandum to

Defendant Stafford's Motion requesting relief under Rule 56(f) because summary judgment is

neither appropriate nor has there been sufficient factual development to consider such a request. 2

INTRODUCTION Despite this Court's refusal to dismiss Plaintiffs' ADA and Rehabilitation Act ("RA") claims, Defendants again move to dismiss. In doing so, they mischaracterize or ignore this Court's October 16 Order, making many of the same arguments already rejected. And despite this Court's explicit permission to file an amended complaint clarifying Plaintiffs' reliance on the statutes' "generic discrimination" provisions, Defendant Stafford argues that Plaintiffs have

1 In determining the specific arguments made in both Motions, Plaintiffs note that Defendant Stafford's attempt to 'join (the State's Motion] to the extent the grounds asserted are applicable to him" (Stafford Motion at 13) does not satisfy his obligations under Rule 56 or Rule 12.
2 Plaintiffs will timely file a supplemental opposition under Rule 56(f) to the State's Motion on or before December 11, 2002.

-~

Case 3:01-cv-01275-HLA-HTS Document 58 Filed 12/05/02 Page 2 of 133 PageiD 769

"violated" the Court's order in doing so. (Stafford Motion at 3.) The State implicitly makes the same argument. (State Motion at 5.) Their Motions must fail.

I.

THE COURT'S OCTOBER 16 ORDER SUSTAINED THE ADA

AND RA CLAIMS

In its October 16 Order, the Court made it clear that Plaintiffs' ADA and RA claims

survive:

• "... Section 1 of the Florida Constitution provides for a program, activity, or service of direct and secret voting that is properly interpreted to permit the kind of assistance provided in Section 101.051, Florida Statues. The question still remains, however, whether the program, activity, or service provided violates the ADA or the Rehabilitation Act." (Order at 23, emphasis added.)

• "... Plaintiffs have alleged that voting equipment approved by Defendants Smith and Kast's predecessors and purchased by Defendant Stafford and the Counsel is not 'readily accessible' to visually and manually impaired voters. In light of the facts alleged in the Complaint, the Court cannot say with certainty that the Plaintiffs would not be entitled to relief under any state of facts which would be proved in support oftheir claim under the ADA." (!d. at 28, emphasis added.)
• "In light of the factual allegations of the Complaint, Plaintiffs may be able to prove that visually and manually impaired voters are being denied meaningful access to the service, program, or activity. And so, the Court cannot say with certainty that the Plaintiffs would not be entitled to relief under any state of facts that could be proved in support of their claim under the Rehabilitation Act. (!d., emphasis added.)
• "Plaintiffs may also be able to prove facts supporting a claim under the ADA pursuant to 28 C.F.R. §35.160, of Subpart E ("Communications") of28 C.F.R. PT 35 ... In the instance case, Plaintiffs have alleged that Defendants have failed to furnish appropriate auxiliary aids, the Court cannot say that there is no set of facts which, if proved, would support their claim that Defendants violated 28 C.F.R. §35.160." (!d. at 28-29, emphasis added.)
The allegations of the Amended Complaint are materially identical to those allegations
already held by the Court to state claims under the ADA and RA. With various degrees of vigor,

2

Case 3:01-cv-01275-HLA-HTS Document 58 Filed 12/05/02 Page 3 of 133 PageiD 770
both Defendants -one by silence, the other by affirmative argument- ignore this fact. For this reason alone, the Motions must be denied.
Moreover, Defendants seem to believe that Plaintiffs are no longer free to argue that Defendants violate the ADA and RA by denying disabled voters a secret ballot, when the means to grant equal treatment is readily available. (Stafford Motion at 2; see also State Motion at 4-8.) But this Court has clearly recognized that the ADA and RA contemplate both discriminatory treatment and denial of government benefits or exclusion from government programs:
... Title II of the ADA and Section 504 of the Rehabilitation Act proscribe more than such 'exclusion' and 'denial.' They both, in addition, more generically proscribe disability 'discrimination' by the pertinent public entities. (!d. at 29-30, emphasis added.) Despite the Court's ruling, Defendants suggest that the Order precludes any allegations that the "generic discrimination" faced by Plaintiffs occurs because disabled voters have no other option than to use third party assistance. However, Plaintiffs do not argue that it is illegal to provide assistance to disabled voters-only that it is discriminatory to require them to, among other things, tell their vote to a third party, when it is entirely possible to vote independently. Plaintiffs' "generic discrimination" allegations are different from their "program exclusion" allegations; the "generic discrimination" allegations are that Plaintiffs have been discriminated against by, among other things, the burdens flowing from being "forced" to use third party assistance. (Amended Complaint at~ 82.) The Court has held that third party assistance is constitutional, not that its discriminatory impact is permissible under the ADA and RA when it is the only option for Plaintiffs to cast their votes. (Order at 23.)3
3 The Amended Complaint is not based only on discrimination flowing from third party assistance as the sole option for disabled voters. There are numerous allegations of discrimination related to the additional burdens and impediments to voting faced by Plaintiffs that are not faced by non-disabled voters caused by the voting equipment used by Duval County. (See, e.g., Amended Complaint at~ 82.)
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Further, implying that the Court dismissed Plaintiffs' "generic discrimination" claim,
Defendant Stafford argues that Plaintiffs were ordered by the Court "to make additional
allegations ... under the more general anti-discrimination provisions ...." (Stafford Motion at
3, emphasis in original.) The State implies the same. This was not the Court's ruling. The
Court expressly ruled: " ... suffice it to say that such counts [ADA and RA counts) appear to
include allegations under the more generic proscription ...." (Order at 29-30.) The Court then
indicated that "since Plaintiffs will be afforded the opportunity of filing an amended complaint ..
. such amended complaint should allege more clearly in Counts One and Three the bases, if any,
for their reliance upon the more generic proscription ...." (/d. at 30.) The Court's express
Order did not dismiss Plaintiffs' claim for "generic discrimination;" it requested "appropriate
clarifying allegations." (!d. at 39.) That is precisely what the Amended Complaint includes:
• "Defendants have discriminated and continue to discriminate against Plaintiffs and other similarly situated voters with visual or manual impairments on the basis of their disabilities by failing to ensure that such voters can vote under the same or similar conditions as non-disabled persons in Duval County. Generally, the discrimination includes: (a) that the voting equipment in use in Duval County, Florida is not readily accessible to Plaintiffs and others similarly situated; (b) the Defendants' failure to furnish appropriate auxiliary aids necessary to afford Plaintiffs and others similarly situated an equal opportunity to participate in and enjoy the benefits of the activity of voting; (c) the Defendants' failure to give primary consideration to or otherwise honor the requests of the Plaintiffs and others similarly situated with respect to the type of auxiliary aids and services necessary; and (d) the Defendants otherwise subjecting the Plaintiffs and others similarly situated to discrimination by requiring them to vote in a manner materially different from, and substantially more burdensome than, the manner by which non-disabled voters cast their votes in Duval County." (Amended Complaint 'lf38, emphasis added.)
• Defendants have violated the ADA by discriminating against Plaintiffs and others similarly situated because of their disabilities by failing to provide voting machines that are readily accessible so that visually impaired voters and manually impaired voters can vote in the same or similar manner as nondisabled voters. (/d. 'lf73, emphasis added.)
• "As alleged throughout this Amended Complaint, Defendants have discriminated against Plaintiffs and other similarly situated Duval County voters with visual or
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manual impairments. The particular discrimination against Plaintiffs and other similarly situated voters manifests itself as follows: (a) being forced to reveal their votes to a third-party; (b) risking having (and actually having) their votes revealed by the third-party to other people; (c) risking having (and actually having) the thirdparty attempt to influence their candidate choice; {d) having to vote in a manner that singles them out in the polling place; (e) having to wait long periods of time until a third-party is available to assist the voter; (f) having to incur the burden and impediment oftraveling to the Office of Elections' headquarters to use the three accessible voting machines in the event Duval County ever purchases such machinery; and (g) having to suffer embarrassment and distress during the voting process for each of the foregoing reasons and the fact that they are required to vote in a manner materially different from, and substantially more burdensome than, the manner in which non-disabled voters cast their votes in Duval County.
(!d.~ 82, emphasis added.)4
It is clear that the Amended Complaint adequately alleges "generic discrimination," just
as the initial complaint did. It is even more apparent that both Defendants have ignored this fact
in an attempt to avail themselves of perceived- but nonexistent-- protection under the Court's
Order.

II.

THE AMENDED COMPLAINT SATISFIES RULE 12(B)(6)

STANDARDS

Dismissal of a complaint is proper only ifthe defendants can demonstrate "beyond [a

reasonable] doubt that the plaintiff can prove no set offacts in support of his claim which would

entitle him to relief." Brooks v. Blue Cross & Blue Shield, Inc., 116 F.3d 1364, 1369 (11th Cir.

1997) (quoting Conley v. Gibson, 355 U.S. 41, 45-46) (emphasis added). The Court must "accept

the facts in the complaint as true" and construe those facts "in the light most favorable to the

nonmoving party." Hawthorne v. Mac Adjustment, Inc., 140 F.3d 1367, 1370 (11th Cir. 1998)

(citations omitted). These standards are rarely met in discrimination cases, as the Supreme Court

has held that the complaint must only "'give the defendantfair notice of what the plaintiffs

claim is and the grounds upon which it rests."' Swierkiewicz v. Sorema, N.A., 534 U.S. 506, 512

4 See also, Amended Complaint ~~ 50, 76. 5

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(2002) (quoting Conley v. Gibson, 355 U.S. 41, 47) (emphasis added).5 There is no doubt that the Amended Complaint satisfies these standards.
Specifically, the Motions themselves demonstrate that Defendants have "fair notice" of Plaintiffs' claims and "the grounds upon which [they] rest[]." Swierkiewicz, 534 U.S. at 512.. Further, in the hearing on the initial motions to dismiss, Defendants conceded that they have fair notice ofthe Plaintiffs' claims:
Mr. Makar: ... [T]he plaintiffs have spelled out their case. This isn't a case in which there's a bare bones pleading under the Gibson versus Conley type of issue. They've laid it out already .... (2/28/02 Hearing at 22-23) (emphasis added). This concession applies with equal force to the allegations ofthe Amended Complaint. This should be the end of the Court's inquiry for purposes ofRule 12(b)(6).6

III.

PLAINTIFFS HAVE VALID CLAIMS UNDER THE ADA AND

THERA

There is no dispute that Plaintiffs are a "public entity" as defined by the statutes. (See

Amended Complaint~~ 10-30, 70.) Nor is it disputed that the individual Plaintiffs are ••qualified

individuals with a disability." (See !d. ~~ 4-8, 69.) Defendants' sole challenge to the Amended

Complaint is that Plaintiffs have not been excluded from participation in a program or activity,

denied the benefits of a program or activity, or subjected to discrimination on the basis of their

disabilities. The Amended Complaint alleges that Defendants have violated the ADA in three

5 The courts heighten the scrutiny of Rule 12(b)(6) motions where, as here, the Plaintiffs have alleged civil rights violations. See Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir. 1994); De Mallory v. Cullen, 855 F.2d 442, 445 (7th Cir. 1988) ("[I]n 'complex cases involving both fundamental rights and important questions of public policy, such peremptory treatment [as dismissal] is rarely appropriate'") (citation omitted). 6 Defendants never discuss applicable summary judgment standards, much less state the specific bases for their random references to summary judgment. It is not clear what arguments are made to support summary judgment versus dismissal. In any event, both this Consolidated Opposition and Plaintiffs' supplemental Rule 56(f) opposition indicate that genuine issues of material fact exist, and that Defendants misapprehend applicable law.
6

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ways: (I) by discriminating against Plaintiffs on the basis of their disabilities; (2) by failing to ensure accessible design and construction of the new voting equipment; and (3) by failing to provide auxiliary aids and services to Plaintiffs. (See generally Amended Complaint~~ 68-98.) Plaintiffs' allegations with respect to each of these ways have already been sustained by the Court. (See, Section I, supra.) Therefore, the only possible issue before the Court is limited to whether Plaintiffs' "clarifying allegations" under the "generic discrimination" clause of the ADA and the RA sufficiently state claims.
A. The Amended Complaint States A Claim For "Generic Discrimination"
Both the ADA and the RA provide that "no qualified individual with a disability shall, by reason of such disability ... be subjected to discrimination ...." 42 U.S.C. § 12132; 29 U.S.C. § 794(a). The anti-discrimination clause is a "catch-all phrase that prohibits all discrimination by a public entity, regardless ofthe context." Innovative Health Sys., Inc. v. City of White Plains, II 7 F.3d 37, 45 (2d Cir. 1997). A public entity cannot discriminate against individuals with disabilities "by placing additional burdens on them" for participation in its services, programs, or activities. EllenS. v. Florida Bd. ofBar Examiners, 859 F. Supp. 1489, 1494 (S.D. Fla. 1994); see also Shatz v. Cates, 256 F.3d 1077, 1080 (11th Cir. 2001).
Defendants argue that because the Court upheld the constitutionality of third party voting under the Florida Constitution, regardless of the burdens incident thereto, there can be no violation of the ADA or RA. (See, e.g., Stafford Motion, at 3-4.) Contrary to Defendants' assertion, the ADA and the RA are violated because Plaintiffs cannot vote in the same or similar manner as non-disabled voters can, but instead, vote in a manner fraught with burdens and discrimination. (See e.g., Amended Complaint,~~ 38, 76, 79,80, 81, 82). On these grounds, the Amended Complaint adequately states claims for relief under the ADA and RA. National Org. on Disability v. Tartaglione, No. 01-1923,2001 U.S. Dist. LEXIS 16731 at *13 (E.D. Pa. Oct. 11, 2001).
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Courts that have considered the application of the "generic discrimination" clause to the voting process confirm the sufficiency of the Amended Complaint. In Tartaglione, visually and manually impaired voters alleged that the Pennsylvania third-party assistance statute violated the ADA and RA because it imposed burdens upon them not placed upon non-disabled voters. !d. In Tartaglione, just as Defendants do here, the defendants argued that no violation could occur because the plaintiffs had not been prevented from voting. The Court rejected this argument:
Defendants' argument that Plaintiffs cannot state claims for relief[under the ADA and Rehabilitation Act] because Plaintiffs have not been prevented from voting mischaracterizes the Complaint. . . . Plaintiffs claim to have been discriminated against in the process of voting because they are not afforded the same opportunity to participate in the voting process as non-disabled voters. The complaint alleges that assisted voting ... is substantially different from, more burdensome than, and more intrusive than the voting process utilized by non-disabled voters .... The Complaint alleges that the . . . Plaintiffs ... cannot participate in the program or benefit of voting in the same manner as other voters but, instead, must participate in a more burdensome process .... [T]he Court concludes that the Complaint states a claim for discrimination in the process of voting.... !d. at *11-*13. The allegations of the Amended Complaint are materially identical to those sustained by the Court in Tartaglione (see Amended Complaint at~~ 38, 81-82 and Section I supra). See also, Shatz v. Cates, 256 F.3d 1077, 1079 (11th Cir. 2001).7 Therefore, Defendants' Motions must be denied.
B. JV.elson v. Miller Is Inapposite The thrust ofboth Motions is a re-hash of the Defendants' arguments in their initial motions to dismiss that Nelson v. Miller is dispositive of this case. (Stafford Motion, at 5; State
7 Similarly, in Lightbourn v. County ofEl Paso, the district court concluded, after a trial on the merits, that a violation of the ADA and the RA had occurred where the "statutory methods of assisting blind persons to vote both abridge the right to a secret ballot and "cause 'embarrassment and sometimes humiliation."' 118 F.3d 421, 424 (51h Cir. 1997). On appeal, the Secretary of State did not challenge this ruling. !d. at 425. Thus, the district court's ruling with respect to the anti-discrimination clause of the ADA and the RA stands.
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Motion, at 4.) This argument ignores that Nelson raises different legal issues than those presented in the Amended Complaint. Based on these differences, Nelson is inapposite.8

1. Nelson Did Not Involve A Claim Under the Generic Proscription Against Discrimination

Defendants concede that the central question before the court in Nelson is distinct from

the central questions raised by the Amended Complaint. Nelson involved whether Michigan's

third-party voter assistance statute excluded disabled voters from participating in Michigan's

voting system. Nelson v. Miller, 170 F.3d 641, 650 (6th Cir. 1999) ("[a]ppellants readily admit

that their ADA and RA claims depend entirely upon their being denied access, because of their

disability, to this 'secret voting program' that they claim the Michigan Constitution mandates");

Stafford Motion at 9, quoting Nelson, 170 F.3d at 649-50 (the Nelson "plaintiffs claimed 'that the

State has violated the ADA and RA by exclud[ing them] from participation in or ... den[ying

them] the benefits ofthe State's constitutionally mandated secret voting program'"). The issue

of whether the additional burdens placed on disabled voters under Michigan's voting system

violated the "generic discrimination" clauses ofthe ADA and RA was not before the court. For

this reason, Nelson simply does not apply. By contrast, Tartaglione is directly on point, and

requires denial of the Defendants' Motions. See Section lilA, supra; see also Shatz, 256 F.3d at

1079.

2. Nelson Did Not Involve the Purchase of New Voting Equipment

Because Nelson did not involve the purchase of new equipment, it was based on entirely

different legal standards than those applicable here. Plaintiffs allege that Duval County

8 Defendants admit that this argument is a second bite at the apple. (Stafford Motion at 5 and n.3.) If the argument was meritorious at this stage ofthe case, the Court could have dismissed this case in its entirety under the October 161h Order. By this reference, Plaintiffs re-assert all arguments regarding Nelson made in their January 17, 2002 Opposition Memoranda to the initial Motions to Dismiss. Additionally, Plaintiffs have filed a motion for reconsideration of the Court's October 16th Order and preserve all rights for later appeal pending the Court's ruling on the motion for reconsideration.

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"purchased approximately 300 optical scan voting systems...." (Amended Complaint at~ 52.) The fact that the Florida voter assistance statute may have satisfied the ADA in the past is irrelevant, because once Defendants purchased new voting systems a heightened accessibility standard was triggered.9 Indeed, when a public entity purchases a new "facility," it must make the new facility readily accessible to the "maximum extent feasible." 28 C.F.R. § 35.15l(b); Order at 25-26 (emphasis added); see also Kinney v. Yerusalim, 9 F.3d 1067, 1071 (3d Cir. 1993). This standard required Defendants to make the new voting equipmentfu/ly accessible to all voters, including those with visual or manual impairments. Kinney, 9 F.3d at 1071 & 1073.1 o
By contrast, Nelson was decided under the less stringent "readily accessible" standard. In Nelson, the State had not purchased new voting equipment. Rather, the Nelson plaintiffs sought an affirmative injunction forcing the State to purchase new voting equipment. 170 F.3d at 644. This alone makes Nelson inapplicable to this case.
Importantly, under the correct legal standard, Defendants admit that Duval County's newly purchased voting equipment is not readily accessible to the "maximum extent feasible." 28 C.F.R. § 35.15l(b). Indeed, the State's Motion concedes that "both Congress and the Florida Legislature have, in effect, acknowledged that voting systems should be more accessible .. ." (State Motion at 13) (emphasis added.) If, as the parties agree, Duval County's voting equipment "should be more accessible," it cannot possibly be readily accessible to the "maximum extent feasible." This admission requires denial of Defendants' Motions.tl
9 As the Court recognized in its October 161h Order, voting machines constitute "facilities" under the ADA. (Order, n.l6.) 10 Indeed, Congress recognized that altered or new facilities presented "an immediate opportunity to provide full accessibility." Kinney, 9 F.3d at 1074. Accordingly, it required such changes to be made free of discrimination and to be usable by all. !d. at 1073. 11 For these reasons, the State's arguments regarding reasonable accommodations (State Motion at I 7-18) completely miss the mark as well.
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C. Defendants' Reliance On Other Extraneous Federal Laws and Materials Is Misplaced
Defendants assert that non-binding and antiquated opinions of the Department of Justice and the Federal Elections Commission, as well as other federal laws, exonerate them from liability under the ADA and RA. The State goes as far as to allege that none of the burdens and discrimination the Plaintiffs allege, "as interpreted by the courts, the Department of Justice, and the Federal Elections Commission, violate [the ADA]." (State Motion at 8.) These authorities do not shield Defendants' admittedly discriminatory acts from liability.
1. The 1993 DOJ Opinion The 1993 Department of Justice Letter of Findings (State Motion, at 8 n.1; Stafford Motion, at 10-12) has no bearing on the sufficiency of the Amended Complaint. This opinion letter is neither binding nor controlling authority. Christensen v. Harris County, 529 U.S. 576, 587 (2000); Gonzalez v. Reno, 215 F.3d 1243, 1245 (11th Cir. 2000). Moreover, the Department's letter was written at a time when accessible electronic voting systems did not exist. The 1993 DOJ letter, in reviewing Pinellas County's election practices, concluded that, because no alternative for a blind voter to cast a ballot existed, third-party assisted voting allowed blind voters to participate in and enjoy the benefits of a service, program, or activity conducted by a public entity. (Exhibit 1.) The DOJ found that "electronic systems of voting by telephone that meet the security requirements necessary for casting ballots are not currently available." (!d., emphasis added.) Consistent with this acknowledgement, as technology has changed so have the views of the DOJ. In its amicus curiae brief in Nelson, the DOJ stated its current view: "If reasonable modifications were available that would allow blind or visually impaired voters to cast their ballots without assistance and that would assure ballot secrecy, the plain import of the ADA and its implementing regulations would require the state to adopt those modifications." (Exhibit 2.) In 2002, electronic voting systems do exist and are readily available. (Amended
11

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Complaint~~ 1, 37.) As such, this outdated 1993 DOJ Letter of Findings does not excuse Defendants discriminatory practices.t2
Moreover, whether Defendants must provide electronic voting systems in order to afford Plaintiffs an "equal opportunity to obtain the same benefit" as that provided to non-disabled voters can be decided only after full factual development and trial. 28 C.F.R. § 35.130(b)(1 ); see also Crowder v. Kitagawa, 81 F.3d 1480, 1486 (9th Cir. 1996) ("the determination of what constitutes reasonable modification is highly fact-specific .. .");accord Staron v. McDonald's Corp., 51 F.3d 353,356 (2d Cir. 1995); McCray v. City ofDothan, 169 F. Supp. 2d 1260, 1275 (S.D. Ala. 2001) ("[w]hether an accommodation is reasonable 'involves a fact-specific ... inquiry that considers ... the effectiveness of the modification in light of the nature of the disability .. .");see also Hahn v. Linn County, 130 F. Supp. 2d 1036, 1047 (N.D. Iowa 2001).
2. 1996 FEC Report and 1991 FEC Letter Defendants' reliance on an isolated reference to page 51 ofthe 1996 Federal Election Commission's ("FEC's") "Innovations in Election Administration 15: Ensuring Accessibility Of the Election Process" report is misleading. (State Motion at n.8.) Considered in its entirety, the report requires denial of the Motions. First, the isolated reference upon which the State relies is from a 1991 opinion letter. Christensen, 529 U.S. at 587 (opinion letters are neither binding nor controlling). This 1991
12 Congress also appreciated the importance of implementing advances in technology. The House Committee made it clear that "technological advances can be expected to further enhance options for making meaningful and effective opportunities available...." H.R. Rep. No. 101485 (II), at 108 (1990), reprinted in, 1990 U.S.C.C.A.N. 303, 391. That Committee intended accommodations and services to "keep pace with the rapidly changing technology of the times." !d.; Molloy v. Metropolitan Transp. Auth., 94 F.3d 808, 812 (2d Cir. 1996) (holding the installation of a new, technologically advanced, ticket vending machine {TVM), was an alteration under the ADA, and was not readily accessible to the maximum extent feasible because it lacked an audio component); Civic Ass 'n ofthe Deafv. Guiliani, 970 F. Supp. 352, 360 (S.D.N.Y. 1997) (converting the current street alarm boxes to new boxes that are not accessible and usable by hearing-impaired people violated the heightened standard requiring new facilities to be readily accessible to the maximum extent feasible).
12

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opinion letter was drafted at time when there were no accessible voting systems that could enable disabled voters to vote in the same or similar manner as non-disabled voters do. Indeed, the State ignores the FEC's recognition in the report that voting technology that enabled disabled voters to vote in the same or similar manner as non-disabled voters did not yet exist at the time. See, Exhibit 3 at 3-4 (emphasis added) ("it is reasonable to expect that, at the current rate of technology, voting devices that facilitate independent voting by the blind may soon appear on the market").
Second, the State ignores that the 1991 opinion letter analyzed whether the provision of voter-assistance was sufficient under an existing voting system. Similar to the inquiry in Nelson, the FEC letter has no bearing on a public entities' duties under the ADA and RA when a new voting system has been purchased- new facilities must be readily accessible to the "maximum extent feasible." (See Section V.B.2, supra.) For these reasons, the FEC report does not relieve Defendants from liability for discrimination under the ADA and RA.
3. Other Federal Laws Defendants assert that because the third-party voter assistance statute is sanctioned by the Voting Rights Act of 1965 ("VRA") and the Voting Accessibility Act ("VAEH"), they cannot violate the ADA by providing this third-party voting system. (State Motion, at 5-7; Stafford Motion, at 12-13.) According to Defendants, there can be no ADA claim where the Defendants have complied with these two laws. This is faulty logic. First, as Defendants acknowledge, the ADA provides: Nothing in this Act shall be construed to invalidate or limit the remedies, rights, and procedures of any Federal law or law of any State or political subdivision of any State or jurisdiction that provides greater or equal protection for the rights of individuals with disabilities that are afforded by this Act. 42 U.S.C. § 1220l(b) (emphasis added), quoted at State Motion at 6. Contrary to Defendants' contention, the ADA does not limit or displace any rights under the VRA or VAEH; it expands
13

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those rights. This fact is acknowledged by the FEC in a portion of its 1996 report not disclosed
by the Defendants:
The Voting Accessibility for the Elderly and Handicapped Act (VAA) of 1984 was the first to bring federal focus directly on the need for accessible voting facilities and procedures. The Americans with Disabilities Act (ADA) of 1990 further expanded and clarified the responsibilities of State and local election officials in ensuring the accessibility of the election process.
(Ex. 3 at 1.) (emphasis added.) The ADA provides expanded rights to disabled voters wholly
consistent with the VAEH and the VRA.l3
Moreover, the FEC considers the ADA, together with the VRA and the VAEH, to be one
of"[f]ive federal statutes pertain[ing[] to the accessibility of the election process to persons with
disabilities. These laws work together to ensure that all persons with disabilities, young and
old, can enter a facility, cast their vote, and exit the polling place along with their fellow
citizens." /d. at 5-7. (emphasis added.) To argue that Defendants can implement a new voting
system that imposes disparate burdens on disabled voters without violating the anti-
discrimination clause of the ADA ignores the FEC's pronouncement and would, in essence,
obviate this clause ofthe ADA. Taken to its logical end, Defendants' contention would take the
13 To the extent Defendants argue that the ADA is not an election law, Plaintiffs respectfully suggest that the Fifth's Circuit's conclusion in Lightbourn is plainly wrong. The Senate Report accompanying the ADA provides that "focused on the need to ensure access to polling places: 'You cannot exercise one of your most basic rights as an American if the polling places are not accessible."' S. Rep. No. 101-116, at 12 (1989). The House hearings described how some jurisdictions had implemented the Voting Accessibility Act in a manner that was "demeaning to the disabled person" and that "create[d] a loss of dignity and independence for the disabled voter." Americans with Disabilities Act of1989: Hearing Before the Subcomm. on Select Education ofthe House Comm. on Education & Labor, 10181 Cong., 181 Sess. 41 (1989). FormerVice President (then Senator) Gore stated: "As a practical matter, many Americans with disabilities find it impossible to vote. Obviously, such a situation is completely unacceptable and unconscionable. We must take strong action to end the tradition ofblatant and subtle discrimination that has made people with disability second-class citizens." (See 135 Cong. Rec. S10753 (1989).); accord 135 Cong. Rec. S10793 (1989) (remarks of Senator Biden). The ADA is an "election law" that added accessibility requirements applicable directly to voting, and its reach is not limited to the narrow protections afforded by prior laws enacted long before today's technological advances.
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teeth out of any federal law enacted subsequent to the VRA and the VAEH that provides accessible and non-discriminatory voting systems to disabled voters - including the Help America Vote Act of2002. There is no authority supporting Defendants' extraordinary position. Tartaglione, 2001 U.S. Dist. LEXIS 16731, at *10-*11 (additional steps beyond alternative ballot procedures ofVAEH were necessary to avoid discrimination under ADA).
D. Defendants Smith and Kast Have A Duty to Ensure Local Officials Comply With The ADA And Are Indispensable Parties To This Litigation
Defendants Smith and Kast further argue, without explanation, that the ADA does not require them to certify only voting systems that will permit Plaintiffs to vote independently. (State Motion at 9.) This argument ignores their broader duty to ensure that local election officials comply with the ADA.
Specifically, Defendants Smith and Kast have the express statutory duty to "adopt uniform rules for the purchase, use, and sale of voting equipment" in Florida. Fla. Stat. 101.294(1). This duty necessarily requires them to ensure uniformity at the local level with respect to the purchase of voting systems. Further, Defendants Smith and Kast "shall adopt rules to achieve and maintain the maximum degree ofcorrectness, impartiality, and efficiency of the procedures of voting, including write-in voting, and of counting, tabulating, and recording votes by voting systems used in this state." Fla. Stat. 101.015(3) (emphasis added). These duties too require Defendants Smith and Kast to ensure compliance at the local level. Indeed, "counting, tabulating, and recording votes" are uniquely local functions. Whether Defendants Smith and Kast are complying with their statutory duties are matters for discovery and trial.
Further, the January 2002 hearing, the State explicitly conceded that Defendants Smith and Kast are indispensable parties. The Court specifically asked the State:
"Well, how do you envision that would play out? Another suit be brought if [the Secretary of State] took the position that she wasn't going to certify them? Or abide by the judgment of the court that she was not a party to?" Mr. Finkel, counsel for the State, responded:
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It theoretically could be necessary, and it is also theoretical that she won't abide by it. ... And yes, I agree that if the court were to enforce the- wanted to enforce the judgment against her, against the department, that she would have to be rejoined or brought in.
The Court then asked, "Would she have the right to relitigate these same issues ifjoined
later?" Mr. Finkel responded, "She might. ..."(Feb. 28, 2002 tr. at 8-9.) In light of these concessions, Smith and Kast are indispensable.14
Under identical circumstances, the Court in Tartaglione concluded that the Pennsylvania Secretary of the Commonwealth was an indispensable party because:
The Pennsylvania Election Code prohibits the use of voting machines which have not been pre-approved by the Secretary of the Commonwealth .... Defendants aver, and Plaintiffs concede, that the Secretary of the Commonwealth has not approved any electronic voting machines with the audio output technology required by the visually impaired Plaintiffs. Consequently, if Plaintiffs were to succeed in this proceeding, the Court could not order Defendants to use the accessible voting machines sought by the visually impaired Plaintiffs. 2001 U.S. Dist. LEXIS 16731, at *25-*26. Tartaglione compels the conclusion that Defendants Smith and Kast are indispensable parties to this action.
E. The Complaint Properly Alleges The Receipt Of Federal Financial Assistance By The State Defendants
The only specific attack lodged by any of the Defendants against Plaintiffs' RA claim is that "to state a claim and avoid summary judgment, plaintiffs must allege and demonstrate that
the specific program or activity with which [Smith and Kast] are involved receives or directly benefits from federal financial assistance."IS (State Motion at 18-19.) Neither the Eleventh
Circuit nor any Florida federal or state court has addressed whether federal financial assistance must be "receiv[ed by] or directly benefit[]" a "specific program or activity" to state a
14 This is particularly true here, where the three touch screen voting machines Duval County has decided to place in the Office of Election's headquarters are not yet certified by the State. (Amended Complaint at~ 55.) 15 Defendant Stafford's Motion does not expressly address federal financial assistance, neither admitting nor denying receipt of such funds.
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Rehabilitation Act claim, much less whether a complaint must allege that it is "received[ed by] or directly benefits" a "specific program or activity" to survive Rule 12(b)(6). There is ample authority that "the specific program or activity with which [the defendants] are involved" need not "receive[] or directly benefit[] from federal financial assistance"- i.e., "for use by the Division of Elections, or use in elections related functions"- as the State's Motion suggests.16 In any event, a Rule 12(b)(6) motion is inappropriate to resolve this issue, and consideration of summary judgment is premature.
First, the issue of whether a state entity "receives federal financial assistance within the meaning of the civil rights laws ... requires inquiry into factual matters outside the complaint and, accordingly, is a matter better suited for resolution after both sides have conducted discovery on the issue." Sims v. Unified Gov 't, 120 F. Supp. 2d 938, 955 (D. Kan. 2000); see also Shepard v. United States Olympic Comm., 94 F. Supp. 2d 1136, 1146-47 (D. Colo. 2000); Communities for Equity v. Michigan High Sch. Athletic Ass 'n, 26 F. Supp. 2d 1001, 1008 (W.D. Mich. 1998); Bowers v. NCAA, 9 F. Supp. 2d 460, 492 (D.N.J. 1998); Gazouski v. City of Belvidere, No. 93-C-20157, 1993 U.S. Dist. LEXIS 17675, (N.D. Ill. Dec. 13, 1993); Gonzalez v. Dev. Assistance Corp., No. 88-0191-LFO, 1989 U.S. Dist. LEXIS 6921 (D.D.C. June 21, 1989); Bellamy v. Roadway Express, Inc., 668 F. Supp. 615,618 (N.D. Ohio 1987). Discovery does not close until April 3, 2003, and Plaintiffs have not had the opportunity to conduct discovery on this issue. (See Rule 56(/) Motion.) For example, despite serving discovery requests regarding federal financial assistance in July, Plaintiffs received the attachments to Hal Lench's declaration
16 Jim C. v. United States, 235 F.3d 1079, 1082 (8th Cir. 2000) (holding that the Arkansas Department of Education is subject to a Rehabilitation Act § 504 claim for any of its activities not merely those activities or programs that actually receive federal funds), cert. denied, 533 U.S. 949 (2001); Shepherd v. United States Olympic Comm., 94 F. Supp. 2d 1136, 1146 (D. Colo. 2000) (holding that the U.S. Olympic Committee is subject to a Rehabilitation Act claim where the federal funding went to the committee for other activities not the athlete training program in question); Sharrow v. Bailey, 910 F. Supp. 187, 193 (M.D. Pa. 1995) (holding that a doctor who did not receive federal funding was subject to a Rehabilitation Act claim where hospital at which he worked did receive federal financial assistance).
17

Case 3:01-cv-01275-HLA-HTS Document 58 Filed 12/05/02 Page 18 of 133 PageiD 785
for the first time when the State served its Motion. Plaintiffs have the right to depose Mr. Lench and others regarding the untested conclusions set forth in his declaration.
Second, preliminary factual investigation also reveals that the Secretary of State's Select Task Force On Voting Accessibility received ''written and oral presentation" regarding the applicability of the RA to the voting process in Florida. (Exhibit 4.) The written presentation concludes:
The Rehabilitation Act of 1973 - requires that all federal grants and programs or entities that receive federal funding, comply with physical, program and service accessibility. It is currently an estimated 20% of people with disabilities who are LESS LIKELY to vote, when compared to the general population, and another 10% who are LESS LIKELY to register to vote due to lack of accessibility. There are presently 33.7 million Americans with disabilities of voting age, and if all polling sites were accessible, an additional5-10 million ofthese disabled would vote. (!d.) Why would the Select Task Force solicit specific advice about the RA if it did not apply? What was said in the "oral presentation" about the RA, the nature of the federal financial assistance received by the State, and the alleged "directness" requirement? These issues can be resolved only through full discovery and trial. See Lightbourn, 118 F.3d at 427 (full trial conducted regarding, among other things, whether the Texas Secretary of State received federal financial assistance.)
F. The Complaint Properly Alleges an Existing Case or Controversy
The State Defendants contend that this case is not ripe for adjudication because the alleged injuries are "hypothetical," or "speculative" and are not "fairly traceable" to the State.17 (State Motion at 14, 16). This argument fails for the following reasons.
17 State Defendants also suggest that the Court should exercise its discretion and declare this case "unripe" for "prudential reasons". This position is unpersuasive and untenable. First, the State Defendants fail to identify any "prudential reason" to justify the exercise of such "discretion" in the case at hand. Second, the State Defendants do not provide any binding
18

Case 3:01-cv-01275-HLA-HTS Document 58 Filed 12/05/02 Page 19 of 133 PageiD 786
First, this Court has already ruled that a case or controversy exists which is ripe for
adjudication.
...Plaintiffs have adequately alleged the existence of an actual or threatened injury caused by the conduct of Defendants Smith and Kast or their predecessors that could be redressed by a favorable decision of this Court.... [T]he Court cannot say that Plaintiffs would be unable to prove any state of facts that would satisfy the ripeness and standing requirements." (Order at 10.) In so ruling, the Court left only one issue unresolved regarding ripeness and standing-whether the State Defendants can certify only machines presented to them by the counties. (Order at 10, n.6.) The Amended Complaint explicitly alleges that Smith and Kast
"can certify voting systems that are presented to them directly by third parties and do not have to wait for a county to request certification of a particular voting system." (Amended Complaint,
44.) As such, State Defendants' renewed case or controversy argument fails. Second, the Amended Complaint alleges "actual" injury, not "speculative" or
"conjectural" injury. For example, Plaintiffs' claim that "Defendants have discriminated and will discriminate against the Plaintiffs ...." (Amended Complaint ,104.) Plaintiffs further allege that they are:
(a) being forced to reveal their votes to a third-party; (b) risking having (and actually having) their votes revealed by a third-party to other people; (c) risking having (and actually having) the thirdparty attempt to influence their candidate of choice; (d) having to vote in a manner that singles them out in the polling place; (e) having to wait long periods of time until a third-party is available to assist the voter; (f) having to incur the burden and impediment of traveling to the Office of Elections' headquarters to use the three accessible voting machines in the event Duval County ever purchases such machinery; and (g) having to suffer embarrassment
precedent for their contention that the Court can exercise such discretion when, as here, the alleged injuries are not speculative. Reliance on 0 'Shea is misleading. 0 'Shea does address the exercise of discretionary power for "prudential reasons". Brown, a Sixth Circuit business judgment case in which the Court exercised its discretion to declare a case unripe, involved alleged injuries already classified as speculative in nature.
19

Case 3:01-cv-01275-HLA-HTS Document 58 Filed 12/05/02 Page 20 of 133 PageiD 787

and distress during the voting process for each of the foregoing reasons and the fact that they are required to vote in a manner materially different from, and substantially more burdensome than, the manner in which non-disabled voters cast their votes in Duval County. (Amended Complaint ~82, emphasis added.) Third, Defendants provide no authority supporting their argument that the frequency of the discrimination is legally relevant. (See State Motion at 11, 16-17.) Assuming arguendo that the frequency of the discrimination has some legal relevance, Plaintiffs have alleged that these manifestations of discrimination are not isolated incidences. (Amended Complaint~ 82.) Further, whether the discrimination is "isolated" clearly raises issues of fact. Indeed, issues of fact likely resolved by the Secretary Task Force's finding that "significant, severe, and pervasive obstacles[] have been placed in the path of Florida's voters with disabilities." (Task Force Report at i; emphasis added.) Fourth, the Plaintiffs allege that the State Defendants' failure to fulfill their statutory duties caused the alleged injury. (Amended Complaint~~ 39-50; 74-76; 82) These allegations must be taken as true for purposes of the Defendants' Motions. Brooks at 1369. Further, the State Defendants' contention that the alleged injury cannot be traced to them is rife with factual issues and assumes the Court will rule in their favor on the substantive issues of their Motion. Plaintiffs have addressed those substantive issues supra, Section III. For these reasons, the Motions fail.

IV.

CONCLUSION

For the foregoing reasons, Plaintiffs respectfully request that the Court deny Defendants'

Motions.

Respectfully submitted,

20

Case 3:01-cv-01275-HLA-HTS Document 58 Filed 12/05/02 Page 21 of 133 PageiD 788

Trial Counsel Florida Bar No. 0708070 HOWREY SIMON ARNOLD & WHITE, L.L.P. 1299 Pennsylvania Ave., N.W. Washington, D.C. 20004 (202) 783-0800

Dated: December 4, 2002 Of Counsel:

Lois G. Williams Co-Counsel Washington Lawyers' Committee for Civil Rights and Urban Affairs 11 Dupont Circle NW, Suite 400 Washington, D.C. 20036 (202) 319-1000
Attorneys for Plaintiffs

Alan M. Wiseman Danielle R. Oddo Vincent E. Verrocchio Ari Rothman HOWREY SIMON ARNOLD & WHITE, L.L.P. 1299 Pennsylvania Ave., N.W. Washington, D.C. 20004 (202) 783-0800

21

Case 3:01-cv-01275-HLA-HTS Document 58 Filed 12/05/02 Page 22 of 133 PageiD 789 CERTIFICATE OF SERVICE
I hereby certify that copies of the foregoing Opposition to the Defendants' Motions to Dismiss were served by Federal Express this 4th day of December, 2002, upon each of the parties listed below:
Scott D. Makar, Esq. Office of General Counsel 117 West Duval Street Suite 480 Jacksonville, FL 32202 Charles A. Finkel, Esq. Assistant Attorney General Office of the Attorney General PL-01, The Capitol Tallahassee, FL 32399-1050
22

---~~---
Case 3:01-cv-01275-HLA-HTS Document 58 Filed 12/05/02 Page 23 of 133 PageiD 790
1

Case 3:01-cv-01275-HLA-HTS Document 58 Filed 12/05/02 Page 24 of 133 PageiD 791

# 99 II-7 .1000

August 25, 1993

xxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxx
XXXXXXXXXX, Florida XXXXX
RE: Complaint Number XXXXXXXXXX (formerly XXXXXXXXXXXXX
Dear Ms. XXXXXX:
This constitutes our Letter of Findings with regard to your complaint against the Supervisor of Elections, Pinellas County, Florida, under title II of the Ar·.\ericans with Disabilities Act (ADA), which prohibits discrimination against qualified individuals with disabilities on the basis of disability by State and local governments. Specifically, you allege that the supervisor of Elections of Pinellas County does not provide Braille ballots or an electronic system of voting, such as voting by telephone, to blind voters. You further allege that the present system of providing assistance at the polling place does not allow a blind voter to cast a secret ballot.
The Civil Rights Division has completed its investigation of your complaint. Our investigation revealed that the Supervisor of Elections of Pinellas County follows the Florida statute (Chapter 97.061, F.S.), which requires the following provisions for voters with visual impairments: 1) the assistance of any two election officials at the polling place; or 2) the assistance of any one person of the individual's choice. Pinellas County also provides a magnifying lens at polling places. In a telephone conversation with our office, Ms. Dorothy Ruggles, Supervisor of Elections, stated that when a blind person comes to the polling place to vote, the poll workers offer a choice of allowing someone the person knows or two poll officials to assist in casting the ballot.
Legal Requirements
The Department of Justice's regulation implementing title II provides that a public entity must ensure that its communications with individuals with disabilities are as effective as communications with others and must furnish appropriate auxiliary aids and services where necessary to afford an individual with a disability an equal opportunity to participate in, and enjoy the benefits of, a service, program, or activity conducted by a public entity. 28 C.F.R. 0 35.160. A public entity is not required to take any steps that would result in a fundamental

EXHIBIT
1

Case 3:01-cv-01275-HLA-HTS Document 58 Filed 12/05/02 Page 25 of 133 PageiD 792
alteration in the service, program, or activity or in undue financial and administrative burdens. 28 C.F.R. 0 35.164
In determining what type of auxiliary aid or service is necessary, a public entity must give primary consideration to the requests of the individual with a disability, that is, the public entity must provide an opportunity for individuals with disabilities to request the auxiliary aids and services of their choice and must honor that choice unless it can demonstrate that another effective means of communication exists or that provision of the aid or service requested would result in a fundamental alteration or in undue financial and administrative burdens. 28 C.F.R. DO 35.160(b) (2); 35.164.
Discussion
The Pinellas County Supervisor of Elections provides magnifying lenses and readers for individuals with vision impairments seeking to vote. The election procedures specify that an individual who requests assistance will be assisted by two poll workers, or by one person selected by the voter. Your complaint alleged that the provision of assistance to an individual who is unable to fill out a printed ballot is inadequate because it does not allow a blind voter to cast a secret ballot. A Braille ballot, however, would not meet your objective of keeping your vote secret, because it would have to be counted separately and would be readily identifiable. Also, electronic systems of voting by telephone that meet the security requirements necessary for casting ballots are not currently available.
Although providing assistance to blind voters does not allow the individual to vote without assistance, it is an effective means of enabling an individual with a vision impairment to cast a ballot. Title II requires a public entity to provide equally effective communications to individuals with disabilities, but "equally effective" encompasses the concept of equivalent, as opposed to identical, services. Poll workers who provide assistance to voters are required to respect the confidentiality of the voter's ballot, and the voter has the option of selecting an individual of his or her choice to provide assistance in place of poll workers. The Supervisor of Elections is not, therefore,
required to provide Braille ballots or electronic voting in order
to enable individuals with vision impairments to vote without assistance.
Based upon the facts and legal requirements discussed above, we have determined that the Pinellas County Supervisor of Elections is not in violation of title II with respect to the issues you have raised. If you are dissatisfied with our determination, you may file a private complaint in the appropriate United States District Court under title II of the ADA.
You should be aware that no one may intimidate, threaten, coerce, or engage in other discriminatory conduct against anyone who has either taken action or participated in an action to secure rights protected by the ADA. Any individual alleging such harassment or intimidation may file a complaint with the Department of Justice. We would investigate such a complaint if

Case 3:01-cv-01275-HLA-HTS Document 58 Filed 12/05/02 Page 26 of 133 PageiD 793
the situation warrants.
Under the Freedom of Information Act, 5 U.S.C. D 522, we may be required to release this letter and other correspondence and records related to this complaint in response to a request from a third party. Should we receive such a request, we will safeguard, to the extent permitted by the Freedom of Information Act and the Privacy Act, the release of information which could constitute an unwarranted invasion of privacy.
If you have any questions, please contact Linda King at (202) 307-2231.
Sincerely,
Stewart B. Oneglia Chief
Coordination and Review Section Civil Rights Division
1 This interpretation is consistent with long-standing interpretation of section 504 of the Rehabilitation Act of 1973, which prohibits discrimination on the basis of disability in federally assisted programs and activities. See the discussion of the general prohibitions of discrimination in the preamble to the Department's title II regulation at 56 FR 35,703 and the analysis of the Department of Health, Education, and Welfare's original regulation implementing section 504 (later transferred to the Department of Health and Human Services) at 45 C.F.R. pt. 84, Appendix A.

Case 3:01-cv-01275-HLA-HTS Document 58 Filed 12/05/02 Page 27 of 133 PageiD 794
2

Case 3:01-cv-01275-HLA-HTS Document 58 Filed 12/05/02 Page 28 of 133 PageiD 795

APR-25-2001

DO.J/CRD/URS

~02 3059775 P.02/33

No • .97·l.l.S5

Dr 'I'D tJNITED S'l'ATES CotJP..T OF APPEALS

. ~

....

·-

·

F. OR.
.

T.E. E

SIX'I'R

CIRCUIT

-~· •

...... ••

..... 0

•
-·

. ·

-· . ~ ., ... ·.·

.....·

; ...,....... ·...-. . •lo

., ,J • • : . . . . . .. : ': . : .•·,.'··

....... . . ....

·:: .. · • I • •

~ •o

.··.·· ·-:~·-

·

.. \· ·.;, : ~. -·:
.. -·- ·.·.·

.. ·.. .• . .. . -~--
. · : ...
.......... : .....;. :;
...
' :

Case 3:01-cv-01275-HLA-HTS Document 58 Filed 12/05/02 Page 29 of 133 PageiD 796

TABLE OF COli :tESTS

. IN'I'Elt£ST OF THE ONITEO STATES :
STATS-mN'l' OF THE ISSTJE

I'AGE

. . . • e •

I

. .1

...... . • •2

STATEMENT OF THE CASE SUMMARY OF ARGUMEN'l' •

- • •2
..
• 5

ARGUMENT:

. . . . . . . . TBE DISTRICT COtlR.T DUD BY
DISMISSING PLAINTIFFS• COMPLAINT

.

.

• - •7

A. Plaintiffs Have Stated A Claim That Michigan's Voting Assiseance Procedures Discriminatorily Deny !lind Voters Ballot
Secrecy In Violation Of The ADA • . · . • • . . . . . . e

B. The ADA's Requiremenes Of Voting

Accessibility Are Not Limited By·

The Less Protective Requirements Of

Pre-ADA Statutes • • . . • . . . .

12

c. Discriminatory Denial Of Ballot Secrecy

Violates The ADA Even If It Does Not Resule In Complete Denial Of The Franchise

CONCLUSION

.... ...............

20

CASES:

Eelcher v. Maypr gf ann Arho~, 262 N.W;2d 1

(Mic:l:l. 19'78) • • • . • • • • •

• •••..

19

BuGkley .Y•._.Yalep, 424 _t1.S. __ 1 _(1976) • • ·-· --· -· _.. _·----~-- ...-20 - - · -

. . . . . . . Bprson v. F~eoman, 504 tJ'.S. 191 {1992) .

.

. .

Cplymbj a Natural Rt$Ol1TCPS IpG v. Tatum, sa F.Jd 1101 (6th Cir. 1995), cert. ~enied,
116 s. c~. 1041 (1996) • . • • • • • • • • • • • • • • 7, 12

-i -

Case 3:01-cv-01275-HLA-HTS Document 58 Filed 12/05/02 Page 30 of 133 PageiD 797

APR-25-2001 14: S6

202 3059775 P.04/33

CASZS (eontinued> :

PAGi:

Crowde.,.. v. Kitagawa, 81-F.3d 1480 (.9th Cir. ·1!96) .

18, 19

Ellenwood v. Exxon Sbi;ping Co , 984 P.2d 1270
(1st Cir.}, cere. denied, SOB u.s. 9Bl (1993)

Innovative Health sys Ips v. CitY gf !bite
plains, 931 F. Supp. 222 (S.D.N.Y. 1996)
L~ghthourn v. County pf El Paso, 904 F. Supp.
1429 (W.D. Tex. 1995) . • . • • . •

13, 19
.·
S, 10, 16, 19

Mcintyre v. Ohig JlectiQD5 Cqmm'n, llS S. Ct.
1511 (1995) . • • • .

MQrton v. Mapca&i, 417 u.s. 535 (1974)

14

. . . . . Oak

B;dgc Ca&e.Ctr. Inc v.
F. Supp. 867 (E.~. Wis.

Recine 1995).

CrnlDtY,

896.

. . . ·19

Sta.,..pp v. McPona1d•s Corp , 51 P' .3d 353

(2d Cir. 1995) . . . •

15

C:O!fS'I'I'l"C"riOli Ami STA'l"CTZS:

Constitution of the ~nited States:

Equal Protection Clause

Mich. const., Art. 3, § 4 ••

• 21 1~

Americans with Disabilities Act of 1990,

l'iele II (ADA) . • •

•• • .

passim

42 u.s.c. 1210l(b) (1) ~

42 o.s.c. 12131 ~ ~
42 u.s.c. 12131(1)

1, 3
••••.••••. . . . . . . . . s

42 ~.S.C. 12132 • • • • • •

u.s.c. 42 u.s.~. 12133 . • • •

• ••

42

12134 ••.••••.••••

-·---· ---42 u.s.c. ·1220l.(a) - .--.~·-.---.-.- -

42 u.s. c. l.220l Ca) (3) . • • • • • •

42 o.s.c. 12201(b)

••••••••••.

•- 9 1

141 .18a
• 9 • • 8 --·-·.-
16 15

. . . . . . . . Rehabili~a~ion Act of lS73, Section 504, 29 o.s.c. 794 •..•••••••.••

. ii -

Case 3:01-cv-01275-HLA-HTS Document 58
RPR-25-2001 14: 56
STA1'D'T&S Cc:c:mtizluec:!) a

Filed 12/05/02 Page 31 of 133 PageiD 798
202 3059775 p. 05/33
PAGE

Vocing Accessibility foe the Elderly and
. . . . Ban~icapped Ace, 42 u.s.c. 1973ee At~
42 u.s.c. l973ee-6(l) •.••••.•

passim
• • •4

Vc~ing Rights Act.of 1965, Section 208, as amended, 42 U.S.C. 1973aa-6 • . • • •

passim

M.C.L.A. § 168.751 CWesc 1989)

• • •4
.•

UGOLATIOHS:

. . . . . . . 2S C.F.R. Pt. 35, App. AS 35.102

28 C.F.R. Pt. 35, App. A§ 35.130
. . . . 2S C.F.R. 35.130 (b) (l)

.

. . .

. . 28 C.P.R. 3S .130 (b) (7)

. . 28 C.F.R. 35.l60(al

. . 28 C.F.R.. ~5 .160 (b) (l}

. . . . . . 28 C.F.R. 35.160 (b) (2)
2S C.F.R. 35.164

.

.. . . .. .

.. .
. . .

13
. g

9, 10

9. ,

. 1

0 9

10, 11

10, 11

10

RtrU:S:
Fed. R. Civ. P. l2(b) (6)

. • . • • • • . • 4, 6' 7, 12

H.R. Rep. No. 485, Pare 2, 101sc Cong., . 2d Sess. (1950)

. . . . . . . H.R. Rep. No. 485, Part. 3, 101st Cong., 2d Sess. (1990) • • • . • . • • • •

. . . 15

B R
Act of 1989 · Rearing 'Before the Suhconvn QD Select Education gf the Bouse Cgmm on
J;ducarion & t,ahor, 101se C:cng., 1st Sess. (1.989)

- ·-- ---s. Rep.·· No. -J.1S,·-10J.st ·cong:-;-lst-sess;-"(1989)

16

. . . . . . 135 Cong. Rec. Sl0753 (1989)

16

l3S Cong. Rec. Sl0793 (1989)

17

- i i i ..

Case 3:01-cv-01275-HLA-HTS Document 58 Filed 12/05/02 Page 32 of 133 PageiD 799

APR-25-2001 14:~

~ 3059775 P.06/33

ADA Title II Teehnical~sistance Manual, 19~4

Supp., S II-7.1100 . . . . . • . . .

11

.·

- iv -

Case 3:01-cv-01275-HLA-HTS Document 58 Filed 12/05/02 Page 33 of 133 PageiD 800

IN TBE tlNITED STATES COtm.T OF APPEALS PQR THE SIXTH CIRCUIT

No. 97·1155 KING NELSON, et al.,
Plaineiffs~Appellanes,
.·
v.
CANDICE s. MILLER, in her official capaciey as Secretary of State for the seaee of Miehigan,
Pefendane-Appellee.

ON APPEAL FROM THE ONil'ED STATES DISTRICT COtlRT FOR THE WES'I'EJ.N DISTRICT OF MICHIGAN

BRIEF FOR THE ONITEO STATES AS AMICOS etmiAE

!N'I'EUST OF THE tJNITED STATES

This case involves ehe relationships among four sta~utes

enforced by the United States: section 504 of the Rehabilitation

Act of 1973, 29 U.S.C. 794 (Section 504); Section 208 of the
Voting Rights Act cf 1965, as amended, 42 u.s.c. 1973aa-6 (Sec·

tion 208); the Voting Accessibility fer the Elderly and Handicap-
ped Act, 42. u.s.c. 1973ee ~ ~ (Vo~ing Accessibility Act); and

Title II ~f the Americans with Disabilities Act of 1~90; 42

- - · -T-1-.S-.C·.- 1-2-1-3-1-

~ ·- ...~

..CADA-

T... .i.tle

-II)-.-

..•T.he

-·d··i·s..t

r

i-c

t--·c

o

ur

t ef ..

f

e

c

_-_

_

ti~ely held that the ADA and Section 504 do not impose any

requirements regarding veting accessibility beyond those imposed

by the Vo~ing Accessibility Act and $ection 208. That holding,

if affirmed, could significane~y affect the government's enforce-

ment responsibilities under these statutes.

Case 3:01-cv-01275-HLA-HTS Document 58 Filed 12/05/02 Page 34 of 133 PageiD 801

OOJ /O<.D/DRS

202 3059775 P.08/33

.. 2 -

STAT!MEN'I' OF THE ISSOE

Whether the district court properly dismissed plaintiffs'

complaint alleging that the failure to provide a means for blind

voters to cast secret ballets violaeed the Americans wi~ Disabi-
.•
lities Act (ADA) and Section 504 of the Rehabilitation Act

(Section 504) •

STATZMENT OF 11m CASE

l. This case arises en the pleadings. Plaintiffs are six

blind Michigan voters. They are suing on ~ehalf of all legal

voters in the state •who are blind or visually impaired and are

in need cf appropriate modifications to ehe voting procedures ~

order eo exercise their fundamental ecnstitutianal right to vote
and to do so by secret ballot" (:R.. l.: Complaint: at 7 <1 35)) .11

They challenge Miehisan•s procedures for assisting blin~ cr

visually impaired voters. Under those procedures, voters who are

blind or visually impaired may receive the assistance of either

two poll officials or an individual of their choice in marking

their ballots (R. l a~ 4 (, 19)). The state does no~, however,

•provide them with a ballot or voting system which would allow

them to read.and mazk the vcte in private~ (R. 1 at 4 (, 21)).

-state·· s ·---- -· Pl.aintiffs ·contend tl1a£· t.he

proce<i,i'"re;-imp~~-.-s-s_ib_l_y_

deprive blind or visually impaired people of the right to vote by

secret ballot -· a right guaranteed to all other Michigan citi-
%ens (R. 1 at 5-6 ,,, 29-34)). See Mich. Const., ~- 3, § 4.
on In addieion to the intrusion secrecy inherene in having a

.;_.-.R. • refers to entries on ehe district court's docket sheet.

Case 3:01-cv-01275-HLA-HTS Document 58 Filed 12/05/02 Page 35 of 133 PageiD 802

APR-25-2001 14: 57

DOJ/cRD/U6

202 3059775 P.09/33

-3
third party present in fhe voting bocth, one plaintiff alleges chat an election worker •shouted cut her vcting choice in front
of other voters present at the polling place• (R. 1 at s (, 23)}.
Plaintiffs seek ~allots in a format which wo~d allow them the right to vote :by secret ballet" (R. l at 6 (, 34) >-·. They allege
that: •inexpensive technologies that are currently in commercial use• such as ~raille~ ballot overlays or templates, taped text or phone-in voting systems• would •pel:tllit persons who are l::llind to read and mark ballots without involving a ehird party• CR. ~ at 6 (, 34} ) •

2. on September 26, 1996, plaintiffs ~rought this suit in the District Court for the Western District of Michigan. The Michig~~ secretary of State, sued in her of~icial capacity, was
the sole defendant: (R. 1 at 3 C1 10)). Plaintiffs claim that the
state's failure co provide ballots in an accessible format vi.olates Title II of. the Americans with t)isabilities Act of 1.9.90,
42 u.s.c. 12131 £t ~- SeeR. 1 at 8-9 <11 41-48).
Specifically, they contend that the staters eurre~t procedures •deny vo~ers who are blind an equal opportuni~y to vote by secret ballot• ana that the provision of ballots in alternative· formats · __ _ .. would _constitu~e _a ~easonable. moctifieation that woulc! :'atoid ______
discrimination on the :basis of disability- (R. l at 9 <1, 47-
48}). For essentially the same reasons, plaint:iffs also claim
that defendants have violated Section 504 of the Rehabilitation
Ace of 1973, 29 u.s.c. 794. S~e R. 1 at 9-10 ~1, 49-54).
On December 20, 1996r the district court granted the state's

Case 3:01-cv-01275-HLA-HTS Document 58 Filed 12/05/02 Page 36 of 133 PageiD 803 r 202 ~'=" r::;, P. HI/ 33
.. 4 -
motion to dismiss pursuant to Fed. a. Civ. P. l2(b) (6) CR. 17:
Opinion) . The court observed that the Voting Accessibility Act and Section 209 of the Voting Rights Act explicitly addressed issues of accessibility in voting CR. 17 at 2·4). ~ecause •con-
.•
gress did not intena that the ADA displace the Federal Voting Rights Acts• (R. 17 at 2), the aistrict court first addressed whe~er Michigan's ctirrent procedures violated either of .these two stacutes (R. 17 at 3-4). The court concluded that the state's procedures do not violate Section 208 or the Voting Accessibility Act. Indeed, Section 208 specifically requires states to allow blind or visually impaired voters to ~e assisted by a person of their choice. 42 U.S.C. 1973aa-s.L' In fact, the Vocing Accessibility Act allows the states to set their own
and acc:essibil'ity standards -- anci it does not apply to state
local elections. 42 u.s.c. l973ee-6(1).
Vsection 208 entitles •[a]ny vcter'who requires assistance to vcte by reason of blindness, disability, or inability to reaa or writew to receive assistance •by a person of the voter's ehoice.~
42 u.s.c. lS73aa-6. By its ~erms, the Michi~an voter assistance
statute (M.C.L.A. § 168.751 (West 1989)) does not fully comply with Section 208. The Michigan law allows people wit:h · disabilities to receive assistance by a persan of their choice only if they are •disabled on account_~f bl~e~.s111 1_up,.like_....,.-_ __ -·--Section 20a,·-it does not ~end this n.ght to persons with other disabilities or persons who are illiteraee. See M.C.L.A. § 168.751 (West 1989). Even as to blind voters, ehe Michigan law
allows the voter to obta!n assistance only from •a member of his
or her immediate family'" or a person cf his or her choice ever 18 years of age; the federal statute contains 'no age or familial limieation. In correspondence initiated by the United States in 1984, however, Mic:bi~an assured us that it fully c~lies with Section 208 in practice, notwithstanding the limitat1ons inccrporatea in the state staeute. See letter from Gary P. Gordon, Assistant Attorney General, to Gerald W. Jones, Chief, Voting Section (Aug. 31, 1984) (attached as·addendum).

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The cour~ next disposed of plaintiffs' ADA and Section 504 claims (R. 17 at 5·6) (footnoees omitted):
Clearly, if the Plaintiffs were excluded frcm being able tc case a ~allot, the Defendant would be in violation of the voeing Rights Acts, §12132 of the ADA, and §504 of the RA. However, the Plaintiffs clo not cone~d that they are being aenied the right to cast their ballots. Ins~ead, they want this Coure to go even further and find ehat Congress intenc!ed to elevate a ]:)lind vcter• s privacy in cas~ing a ballot to a protected right under the ADA or RA. There is no indieation from the wording of the ADA and RA or the legislative history of either Aet that Congress intended such a bread reading. This conclusion is further strengthened when the ADA and RA are read in harmony with the Voting Rights Aces, which also do not mandate the result proposed by the Plaintiffs. Without citing any languaie in the ADA or its legisla~ive history, to support its conclusion, the court announced ehat -rslimilar to the Vo~ing Rights Ae~s, Cong:ess intended that blind voters have aeeess to the voting booth and freedom from coercion within the voting booth, nee complete secreey in casting a ballot. This C~ will not rewrite the AOA or RA to require such a privacy right• (R. 17 a~ 7).
SUMMARY OF ARGtlMENT
MiChigan generally guar~~ees voters the right to cast secret ba~lots, but it does not enable blind or visually impaired
--·-··v.o-ce·r-s·- t..o.. -v·o-t·e··i-n·-·s·e·c·r-e-t. -··tt-o·d··e-·r· .t.h..e·- -s-t-at-e·'·s- pr.o-c-·e·d-U-re-s--fo-=r -----
assisting voters with disabilities, blind or visually impaired voters must aimounce their choic:e·s to one or more assistants, who then cast their ballots. Plaintiffs have alleged, however, that inexpensive alternative technologies exist that would guarantee ballot secrecy to blind or visually impaired voters. Taking this allegation as true, as this Court must a~ the pleading stage,

Case 3:01-cv-01275-HLA-HTS Document 58 Filed 12/05/02 Page 38 of 133 PageiD 805

-. 6 -

plain~~ffs have stated a claim for a violation of the Americans with o~sabilities Act. The ADA prohibits states from providing services in a manner that denies persons with disabilities an equal cppor~unity to gain the same benefits as those provided to

\\
\ "\ \

oChers, and it requires states eo adopt reasonabl.·e·mcdifications
to their existing practices where chose modifications wo~d avoid

such aiscrimination and would not result in a fundamental altera-

tion of the nature of.their progr~. Plaintiffs' complaint

alleges ~at Michigan has refused to adopt reasonable modifica-

tions to its voting practices that would afford blind or visually

impaired voters the same ballot secrecy the state provides to

voters in general. Should plaintiffs establish that such modifi·

cations exist, defendants will be liable for violating the ADA.

The dis~rict court therefore erred by dismissing plaintiffs'

compla!~t under Rule l2(b) (6).

I::. :ruling for the defendants, 'the district court appeared to

concluce that the ADA imposes no requirements for accessible

voeing procedures ~eyona those set forth in two pre-ADA seatuees:

~he Voting Accessibility Act ana Section 208 of the Voting Rights

Ace. '!".:~.at conclusion is incorrect.· By its plain terms! che ADA

__ ____ -

-

-

-

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l-i-e-s

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-l

-

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c··e-

-

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i-m--in·

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-e-le-c·t-i-o·n-

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s,
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whether or not those practices comply with pre-ADA federal

accessibility standards.· Indeed, Congress specifically identi-

fied vo:ing as an area in which disability·based discrimination

persisted at the time it enacted the ADA. The Act's legislative

histor)· confirms that Congress believed the existing voting

Case 3:01-cv-01275-HLA-HTS Document 58 Filed 12/05/02 Page 39 of 133 PageiD 806
21:::1:0:::: ~·:{((::;, p. 13/33
• 7 -
accessibility laws to be inadequate. The distric~ court also appeared to conclude that only the
outrigh~ denial of the franehise -- and not ehe discri~atory
. denial of ballot secrecy -· could make out a violation of the
A!JA. ~at conclusion, too, was incorrect. While-· the ADA prohibits the campleee exclusion of persons with disabilities from go~er.ament services ~r benefits, ic independ~tly prohibits discrimination in the manner in which services or benefits are provided. Michigan's current procedures deprive blind or visually impaired vo~ers of an important benefit -- ~allot secrecy generally a~forded to voters in the state. Plaintiffs have stated a claim that those procedures viola~e che ADA.
AR.GOM!NT THE: O!S'l'R.ICI' C:O'O"RT ElUtED BY DISMISSING PIAIN'I'IFFS' COMPLAINT
This case arose on the pleadings. Accordingly, the district cour~ was required to •construe the complaint in a light most favorable eo the plaintiff. accep~ all of che factual allegations as true, and determine whether the plaintiff undoubtedly can prove no set of facts in supper~ of his claims ehat woula entitle him to re~ief. When an allegation is capable of more than one
----- ·- -- ·... -·i-n·f·er-~~ce... , -i·-t .... m·-·U·s-t·-b-e constr..ued ...in ·~·--e.. pl.a.i.n..t.if.f.'.s favor._·__________
Col\JDlhie Na!;ural Besours;•s Ins; V. Tatum. SS F.3d l.lOl, J.l09
CGtb Cir. 1995) (citations omittea) (citing cases>. cert. denied, 1lG S. c~. 1041 (1996). Applying this standard to plaintiffs' complaint, Rule 12(b} (6) dismissal was inappropriate here.
Under Michigan's election system, blind or visually impaired

----~-----
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.l. .... _.~o

.- a -

vocers lack an impo~ant benefic generally guaranteed to vocers

in the state -- the ability to cast their ballots in secret.

Plaintiffs have allesed that inexpensive teehnolo~ies exist to

assure blind or visually impaired voters ballot ~eerecy. Taking

that allegation as erue~ as the ccurt must at this stage of the

litigation, plaintiffs' complaint clearly states a claim that Michigan has violated the ADA.~ Those allegations, if proven at

trial, would establish that the state has failed to adopt reason-

able modifications of its existing procedures that would eli~­

nate dis~rimination. The only other federal ccurt ease cf whi~h

we are aware that bas addressed these issues found a violation of
the ADA. See Lightb~u:n v. Coypty gf I, Paeo,· 904 F. Supp. 1429

(W.O. Tex. 1995). The district court accordingly erred in

gr~~ting defendants' motion eo dismiss.

A. Pla.int.iff·s Have Stated A Claim That: Mic:higan• s Voting Assistance Procedures Discriminatorily Deny Blind Voters Ballot
sec~esv In yjolatian Qf Tho APA

1. Title II of ehe ADA covers ~public entities~ -- that is,

units of state and local government. 42 U.S.C. 12131(1). The

operative section of Ti~le II provides that: •no qualifi~d indi-

vidual

wi~h
-

a
..

.

d -

isab
.....

ili
---

t

y
·

sha
-- ·-

l-l·, -

·b-y--r-e-a--so-n··

o.•.f-s·u-c·h--d- i-s-a··b:i-lity,

be

excluded from par~icipation in or be denied the benefits of the

services, programs, or aetivities of a public entity, cr be

1'The remedies available to a J;Slaineiff unc!er · the ADA are

precisely the same as those available under Section 504. See 42

o.s.c. 12133. Because, on the- allegations of this case,

plaintiffs could not prevail on their Sec~icn 504 claim without .

also prevailing on ~eir ADA claim, this crief focuses on the
ADA. Cf. 42 u.s.c. l220l(a) (setting forth relationship between

ADA and the Rehabilita~ion Ac:t) •

·

Case 3:01-cv-01275-HLA-HTS Document 58 Filed 12/05/02 Page 41 of 133 PageiD 808
-9 -
subjected to discrimina~ion ~y any such entity.• 42 u.s.c. 12132
(emphasis added) . The Ace vest.s t.he Attorney General with authority to promulsate legislative rules to implement this
provision. 42 u.s.c. 12~34.
Pursuant to that ~uthority, the Attor.ney General has issued
regulations that. •eseablisb the general principles fer analyz~g whether any particular action of the public entity viola.ees [Title II's general nondiscrimination] mandate.• 2S C.F.R. Pare 35, App. A § 35.130. These regulations state, jnte~ alia, that a publie entity may net •tplrovide a qualified individual with a disability with an aid, benefit, or service that is net as e!fe~~ive in afforcing equal opportunity to obtain the same result, to gain the same Denefit, cr to reach the same level of a~hievement as that provided to others.• 28 C.F.R. 35.l30(b} (1). They also require public entities to •make reasonable modifi~a­ tions in policies, prac~ices, or ~rocedures when the modificaeicns are necessary to avaid discriminaeion on ehe basis of disability, unless the ~lie eneiey can demonstrate that making the moaifi~ations would fundamentally alter the naeure of the ser.rice, program, or activity.• 28 C.F.R.. 35.1.30 Cb) (7):
· The regulaticms also apply ehese principles to the ·specific context of communicati~~ with the public. They require public entities to •take appropriate steps to ensure" that communications wieh people with disabilities •are as effective as communications with others.• 28 C.P.R. JS.160(a). ~particular, such encities muse •turnish appropriate auxiliary aids and services

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where necessary eo afford an individual with a disability an

equal oppo~uni~y to pa~icipa~e in, and enjoy the benefits of, a

service, program, or aceivity• they conduct. 28 C.P.R.

35.160(b) C~). Public entities muse •give primary consideration
.•
to the re~ests of the. individuals wi~ 4isabilities• in determi-

ning what auxiliary aid or service to use. 28 C.P.R.. 3S .160 (b) (2) . An exception occurs only when the public en~it:y

can prove that providing the requested aid or service would

result in a fundamental alteration or an undue financial or

adminis~rative burden. See 28 C.F.R. 35.164.

2. Plaintiffs have clearly pleaded a violation of ehese

requirements. "'l'he ~tate of Michigan has guaranteed ehe right to
voce by secret ballot to all Michigan citizens• (~. ~ at s <1

29)). Eut the state's current voter assistance procedures do not

provide blind or visually impaired voeers with ballot secrecy.

Thus, the sta~e provides blind or visually impaired voters Mwith

an aid or serviee that is not as effective in affording equal

opportur~ty to obtain the same benefit, to gain che same benefit,

1

or to reaeh the same level of achievement as tha~ provided eo

others." 28 C.F.R. 35.130 (D)(~); see LiaJ'tbgnrn, .904 F. Supp. at
---· --14.33·.- -.And alr:heugh "plaili"eiffs -have-·"aiiegedthat ·reaso~le

modifications- of the state's current procedures ·- such as the

adoption of alternative ballot formats -- would avoid this

diserimination, ehe state has refused to adopt those modifica-

tions, in violation of 28 C.l.i. JS.130(b) (7). As alleged in the

complaint, the stace's refusal also ~elates the effeccive

Case 3:01-cv-01275-HLA-HTS Document 58 Filed 12/05/02 Page 43 of 133 PageiD 810
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communications regulations, for the state has failed to furnish auxiliary aids and services (alternative ballots) that would afford blind or visually impaired voters •an equal opporeunity to pa~icipate in, and enjoy the bene!its of,• the sta;e•s ~oting
activities, 28 C. F .R. 3_5 .160 (b) (1}, and the state ·has failed to
"give primary consideration to the requests• of those blind or visually impaired ~oters who desire ballot secrecy. 28 C.F.R.
35 .160 (b) (2 ) •
The United States has previously addressed these issues in our Ti:le II Te~cal Assistance Manual. The 1994 Supplement to tha~ publica~ion diseussed a hypothetical ease in which a county allowed blind voters to vote with the assistance of •two poll wcrke:s, or one person selected by the voter,• but rejected a blind voter's request to complete a ballot that had been printed in Braille. ADA Title II TeChnical Assistance Manual, ~994 Supp., § I!-7.1100 at 5-6. We stated that the denial of the voter's request would not violate Title II, because a Brailled ballo~ •would have to be counted separately and would be readily i~enti!iable, and thus would not resolve ehe problem of ballot secrecy."· ADA Title II Technical Assistance Manual, 15194 Supp., ---·-·§ II·7.l.l00 at 5-G.··-·····-·--· --·-·· ·- - · · - · - - · --·---- .......:..
The discussion in o.u. r technical assistance manual rested on
the factual premise that Brailled ballots would noc assure ballot secrecy and that no other accommodations were available thac would assure l:la.llct: secrec:y. If -reasona]:)le modificat·icns were available tha~ would allow blind or visually impaired voters to

Case 3:01-cv-01275-HLA-HTS Document 58 Filed 12/05/02 Page 44 of 133 PageiD 811
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- 1.2 •
east their ballots without assistance and that would assure ballot secre~. che plain impor~ of the AnA and its implemencing regulations would require the seaee to adopt those modifications.
. Here, plaintiffs have alleged that such reasonable modifications
exist:. Unlike the hypothetical plaintiff in our technical assistance m' anual, they have not sought Brailled ballots. Rather, they have requeseed tha~ the state employ such a~cerna­ tives as WOrailled ballot overlays or templates~ (which would not require cheir ballots to be counted separately or be readily identifiable once cast), as well as ~taped text or phone-in voting systems~ (R. 1 at 6 (, 34)). Plaintiffs allege that these alternative formats •would allow them the right: to vote by secrec ballot~ (R. l. a~ 6 (, 34)).
In light of these allegacions, Rule 12(b) (6) dismissal was imprope:r. The complaint, taken in ~he light most fa"'fora.ble to the plaintiffs, see Colymhja, Natural· R•~oy.,..ces Inc , SS F.3a at ll09, alleges that inexpensive balloeing formats are available that would al.low them eo vote withoue compromising their secrecy. !f those allegations are proven, plaintiffs will have established a violation of the ADA. Pl~intiffs are entitled to an opportu-
----- · nity to prove their allegations:--·- --· ----·- -.----- -:--------
B. The ADA • s Requirements Of Voting Accessibility Are Noe Limited Sy The Less Proteceive Requirements Of Pre-ADA
Statutes
In granticg ehe motion to dismiss, the districe court appeared to conclude that the AOA did not i~ose any accessibil· ity requirements on the voting process beyon~ those already

Case 3:01-cv-01275-HLA-HTS Document 58 Filed 12/05/02 Page 45 of 133 PageiD 812
~ ,jld::>'::f ('(5 p. 19/33

- 13 embodied in the Voting AJcess~ility Act and Section 208 of the

Vo~ing Rights Act. See R. 17 at 2 c•congress did not intend that

the AOA displace the Federal Voting Rights Aets.~); R. 17 at 6

(sta~ing that the ecure•s conclusion that the ADA eannot afford

plaintiffs relie~ •is fu:reher strengthened when th~ ADA and R.A

are read in harmcny with the Voting Rights Aets, whieh also ao

not man~ate ehe result proposed by the Plaintiffs•); R. 17 at 7

("This Court does not find anything in ehe ADA to indieate that

Congress believed that the Voting Rights Acts were insufficient.•). ~~t ruling is incorrect.~

Ey its plain terms, ADA Title. II's general prohibition of

dis~rimination applies co discriminatory election practices.

Indeed, that prohibition •applies to anything a public entity

does.~ 2S C.F.R. Pa~ 35, App. A § 35.102; see also Inpgyatjyg
H~a1~b ~1$ I I~c v. City of Wbite ~Jains, 931 F. Supp. 222, 232
(S.D.N.Y. 1996) (finding •nothing in. the tex~ or legislative

his~ory of the ADA to suggest that zoning or any ocher governmen-

tal a~tivity was excluded from its mandate•); R.R. Rep. No. 485,

Part 2, 101st Cong., 2d Sess. 84 (1990) (Title II applies •to all

actions of state and local governments•).v Title II proyiaes,

w

it

hout qu
--~-----

a-l

i

f

ica
·-

t

i-o-n· ,

-·t··h··a··t-

•n·o-

-qu--ali·f·-i·e·-a·-·in-d-i·v··i·d·-u·-a-l

with ····--·

a
~----

1'The district court also erred in presuming that the Michigan statute complies with Seetion 208. As we have explained, see n.2, supra, the Michigan statute on its face violates Section
2oa, although staee officia~s have assured us that they comply
with federal law in praceice. ~-'Ey contrast, the Voting Accessibility Act aces nee even apply to a state's administration of state and local elections. See 42 U.S.C. 1973ee ~ ~

Case 3:01-cv-01275-HLA-HTS Document 58 Filed 12/05/02 Page 46 of 133 PageiD 813

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- 14 disabilicy shall, by re..cn of such disability, be excluaed from

participation in or be denied the benefits of the services,

programs, cr activities of a public entity,. or be subjected to

discrimination by any such enti~y.• 42 tr.S.C:. 12132. On its face, this bread language would appear to reach ~·s~ate accion

that subjects people with disabilities to •discrimination~ as

defined in the ADA r~gulations -- regaraless of whecher that

action complies with the requirements of pre-ADA statutes such as

the Voting Accessibility Act and Section 208.

In reaching a contrary· conclusion, the dist=ice court

purpo~ed to rely en the principle that •when two statutes are

capable of co-existence, it is the duty of the courts, absent a

clearly expressed congressional intention to the contrary, to

regard each as effective.• Merten v. Manca~i, 417 U.S. 535, 551

(1974) (quoted in R. 17 at 2). Eut the district cou~'s decision

direccly concradiets that princi~le. Under that ruling, che ADA

has~ independent effect in the_voting area, for the court read

Section 208 and the Voting Access~ility Act to occupy the field.

In short, the district court undenook •to pick and choose among

congressional enacttaents,• which •tt]he courts are net at liberty
·- t~:_ do. __ . Mqrtpp, 417 t1. S. _at ..551.

Congress itself made clear ehat earlier, less protective
the statutes cannot limit application of the ADA. The ADA's

savings provision specifically addresses this question. That

provision preserves ehe operati.on. cf other state and federal
disability rights laws, but only co the extent that those laws

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•provide[] greater or e~al protection for the rights of indivi-

duals wich disabilieies than are afforded by this chapeer.~ 42

u.s.c. 12201.(~}. ~is provision underscores Congress's intent

•to provide a elear and comprehensive national mandate fer the

elimination of discrimination against individuals .·with disabilieies,~ 42 u.s.c. l.2101{b) (1), and not to limit people with dis-

abili~ies eo the often ineffectual protec~ions of prior laws.

While the ADA does not prohibit plaintiffs from invoking ·the

remedies available under laws such as Section 208 and.the Voting

Accessibility Act,!' those alte:native remedies do not in any way

limit the application of the ADA it~elf. Cf. Staron v. Mcpop-

a,d·~ Cg:p , Sl F.Jd 353, 357 (2d Cir. l.9~5) {ADA savings clause

•aoes no: seate, and it does not follow, that violations of the

ADA should go unaddressed merely ~ecause a state has chosen to

pro~ide some degree of protec~ion to those with disabi1~ties~) .

In rejecting this conclusion, the district court stated chat

it had found • (no] thing in the ADA to indicate that Congress

believed that the Voting Rights Acts were insufficiene~ (R. 17 at

7) . Sut the district court overlooked severa1 portions cf the

statute and its legislative history that bore directly c~ this

----- ···-- -qu..e.s.~..io-n·.----In·--·t-h·-e·--AD·-·A-'s. s-ta·-te-·m-·-en·t-.of-.f-i·n- d·-in. gs,

Congress
-~ ..

singled

!'See E1lpnwopd v. Exxon Shippina Co , 984 F.2d 1270, l.277 (lst
Cir.) (ADA savings clause •allow [sl overlapping remedies fer employment discrim;nation•), cert. denied, 508 U.S. 98~ (1993); B.R. Rep. No. 485, Part 3, 10l.st Cong., 2d ·sess. 70 (1990) (ADA savings clause allows a plaintiff •to pursue claims under a state law Chat does not eonfer greater substantive rights, or even confers fewer substantive righ~s,· if the plaintiff's situation is proteeted under the alternative law and the remedies are greater..).

Case 3:01-cv-01275-HLA-HTS Document 58 Filed 12/05/02 Page 48 of 133 PageiD 815
... lS • ou~ "vot:ing" as one of the •critical areas• in which •aiscrimination against: incividuals wi~h disabilities persist[edJ ," 42
o.s.c. l220l(a) (3) ·- even though Section 208 and the Voting
Accessibility Ac~ bad been on the books for eight and six years, respeetively. See LishtbQY;-n, 904 P. Supp. at 1432, c•Eviden1!ly, congress did not feel that [the Voting Accessibility Ac:~] was sufficient, as it revisite~ and specifically addressed the same
issue six years later in ehe ADA. •>. The Senac.e R.eport accompa-
nying the Act quoted the testimony of Illinois's Attorney General, who •focused on the need t:o ensu~e access to polling places: ~ou cannot exercise one of your most basic rights as an American i! the polling places are not accessible.'- S. Rep. No. 116, lOlst: Cong., lst Sess. 12 (1989). In the House hearings on the bill, the limitations of ~he Vot:ing Accessibility Ace were specifically discussed. One wi~ness described how some jurisdictions had implemented that st:atute in a manner that was •demeaning to the disabled person• and ~hat •create [ell a loss of dignity and inaependence for tne disabled voter.• H R 2273 Ame~icans
Se1ec:t Education of the Royse Comm gn Educatign & Labor, lOlst
Cong., ~st Sess. 41 (1989) (staeement of Nanette Bowling, Staff
- .. - -· Liaison to the Mayor r s "A.i:lVisoey. CoU.ticil. for. Handicapped.":rndi.vidu-
.. ,
als, Kokomo, !N) .- (Th~ plaint:iffs in this case have alleged
2'Tbe issue of voting accessibili~y also arcse in the floor debates ever the ADA. See 135 Cong. ~ec. S10753 (1989) (remarks of Senator Gore) (•AS a practical matter, many Americans with disabilities find it impdssible c:·o vote. ·Ol:lviously, such a
(continued ... )

Case 3:01-cv-01275-HLA-HTS Document 58 Filed 12/05/02 Page 49 of 133 PageiD 816
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- 17 -
- ~hat defendants' procedures have caused them a similar less of
dignity. see R. 1 at 5 (, 23). These sta~emen~s demonstrate

that congress specifically targeted the problem ~f voting acces-

sibility when it enacted the AOA. They provide fu:Uler support.

for the conc:lus~on that is apparent from the stac~tory text: Title II added add~tigpaJ accessibilit.y requirements; its reach is not limited to the narrow protections afforded by existing laws . The district ecurt erred in reaching a contra:y cenclu•

sion.
c. Diseri~atory Denial Of Ballot Secrecy Violates The ADA Even If It pec:as Net Resu,r rn Complctf'"A Cen~al Of The Franchise

In ruling tor defendants, the dist~ic~ court also concluded that the de;.ial to blind or visually impaired voters of ballot

secrecy as opposed to the outright deprivation of the right to vo~e -· is not sufficiently serious to constitute prohibited
discrimination under the ADA. Seek. 17 at 5-a c•[T]he'Plain-
tiffs do not contend that they are being denied ehe right to cast ~heir ballo~s. Instead, they want this Court to go even further and find tha: Congress intended to elevate a ~lind voter's privacy in casting a ballot to a protected right under ehe ADA or RA.'"); R.. '17 at 6 n.3 ("Neieher the ADA [n]or the R.A indicate that voting privacy for =lind ·voters was ·a· 'benefie ,·- ccngress
sought to protect or a '.d. iscrimination' that Congress sough~ to

2' C••• continued)

situation is completely unacceptable and unconscionable. We must

take strong action to end the tradition of blatant and subtle

discrimination that has made people with disability second-class

citizens.·); 135 Cong. Rec. S10793 (1989) (remarks of Sen.

Biden) •

·

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._ 18 ..

202 3059775 P.24/33

- preven~.·); a. l7 at 7 (•similar to the Voting Rights Acts,
congress incended that blind voters have access to the voting

boo~h and freedom from coercion within the voting booth, net

complete secrecy in c~sting a ballet.•). That ruling is also

incorrect.

.·

The operative prov~sion of Title II is phrased in the

disjunctive: •no qua.lified individual with a disability shall

• • • be excluded from participation in or be denied the benefics

of" a service, program, or ac~ivity •.Ql: be subjected to discri·

mination· by a public entity. 42 U.S.C. 12132 (emphasis added).

This language plainly prohibits ~ the outright exclusion of

people wich disabilities from government activities ~ discrimi-

nacion in the manner in which those activities are aaministered.
See Crpwde~ v. Kitnsewa, Sl F.ld 1480, l4SJ (9th Cir. l996).

While the Michigan system does not entirely deprive blind or

visually impaired voters of the franchise, it clearly discrimi·

nates asainst them. As alleged in the. complaint, all other

voters in the state are entitled to ballot secrecy, but blind or visually impaired voters are not, simply because the s~ate has

failed to aaopt reasonable modifications to its existing proce-

__ - -- -· dures.

As

we

have

e

x

pl
.

a...i

n

e

d. ,

.

th··a·--t·- co,n. .d.. uce

.. -·. w

o

u

l

d-.

c··o- .n.

se ··~

i

e

ute --~---

•discrimina~ion• wiehin the meaning of the AD~ and its implement-

ing regulations.

The district court concluded that finding a violation here

would improperly •elevate a blina voter's privacy in casting a

ballot to a protected right• under the ADA CR. 17 at 5-6). The

Case 3:01-cv-01275-HLA-HTS Document 58 Filed 12/05/02 Page 51 of 133 PageiD 818

- 19 -

_._ - - J t I -

I • 1:,.-J' """"-J

districe court misccncei!e~ the proper inquiry. Title II's

prohi~it.ion on •ciiscriminat.icn· is noe limited to discrimination

tha~ affec~s a "protected right." Rather, it encompasses all

aisabiliey-~ased discrimination committed by a public entity.

See crowder, 81.F.3d at 1483; Innovative Health S¥s' I Inc , 931

F. Supp. at 232; oak Ridge Care Ctr , Inc v. £peine Coypty, 896

F. Supp. 867, 872-87~ (E.~. Wis. 1995). In this respect, the ACA

functions like the Equal Protection Clause, which sUbjects to

strict scrutiny all discriminations involvins suspect cla$sifi-

caeions, whether or net those disc=iminaticns also involve ·fun-

damental rights." See Lia""thon:n, 904 F. Supp. at 1433 ("The ADA

is about equality; Plaintiffs seek tc be afforded the same rights

and privileges as their ncn-hanaicapped peers on eleeti.on day.") .

In any event, Michigan's voting assistance procedures

deprive blind or visually impaired vocers of an exceptionally

impcr~ant interest -- ballot secreey. The state•s constitution

itself explicitly protects the •secrecy of the ballot.~ Mich.

const .• Art. 3, § 4; see B•leb~r v. Maypr of ann !~hor, 262

N.W.2d l, 2 (Mich. 197S) (balloc secrecy may not be compromised

absent sh_owing that voter ac~ed fraudulently). The Sup;-eme Court

___ _!la~_~;~1a;-~y _re.c_csm:ze~ chat _;h~. s~cret.. ballot.•serves ~cc~~l_l_ing _._ .
state interests. See ~:r~on v. Fre•man, 504 u.s. 191, 206 (1992); see also Mcrnrxte v .. ohio Jlectiops comm'n, l1S s. Ct.

1511, 1511 (1995) (c~serving that the •respected tradition of

anonymity in the advocacy of polit:.:al causes" is •perhaps best

exemplified by the seeret ballot, ehe hard-won right co voee

Case 3:01-cv-01275-HLA-HTS Document 58 Filed 12/05/02 Page 52 of 133 PageiD 819

APR-25-2Wl 1::,: ~1

-~ .M::>':f(' (:;, ,... • ~/..S.3

one•s conscience without fear of retaliacion·); ~1ckley v. yaJ~o.
424 u.s. 1, 23i (1976) r.Burge~•. C.J., coneurring in pare and
aissencing in part) c·[s]ecrecy and privacy as tc political -preferences an4 convictions are fundamental in a free society.

Per example, one of the great political reforms wa~ the advent of

Given ehe secret bal~ot as a universal practice.•).

their alle-

ga~ions that alternative, inexpensive ballot formats are avail-

able, plaintiffs have stated a claim that the failure to .. choose
or these alternatives unl.awfully •cienie Csl • blind visually im-

paired voters an important •cenefit[]~ -- the benefit of ballot

sec:rec:y. Thus, even if ehe Mic:higa.n system did not violate the

•discrimination" prong of Title II, plaintiffs would still have

adequately alleged a violatic:c. of the •deny a benefit" prong of

that Title. The c!istric:t c:ou:-1: accordingly erred in granting the

mcticn to dis:iss.
CONCLt!S!ON The jud;-~t of the aiseric:t coutt should be reversed.
Respectfully Submitted,

ISAEELLS KATZ PINZLER

Acting Assistant Attorney

General

.

-·- ---------·-··-.--·---MS-AAMzRXC:EvLL.?R..G. R/'OlSSAS.GfENtS.T~O~~·I ~41.__ _ Attorneys Dep~ment of JUstiee P.O. Box 66078
Washington, D.C. 20035-6078
(202) 514-2174

Case 3:01-cv-01275-HLA-HTS Document 58 Filed 12/05/02 Page 53 of 133 PageiD 820

CERTII'ICA'I'i: OF ·SERVICE

I hereby certify t~t c~ April 23, 1997, twc copies of the

foregoing Brief for the United States as Amicus CUriae were

served by first-class mail, pcstCllge prepaia, en the following

counsel:

Amy :s. Maes, Bsq.

.·

Michigan Prctecticn K Advocacy Services

106· w. Allegan St.

Suite 300

Lana~, HZ 48933·1706

nenise c. Barton, Esq.
Offiee of the A~torney Qeneral Public Employment & Elections .Div.
P.O. Box 30:ZU
600 L4w Building
Lansing, MI <&B9l.3

SAMUEL :R. BAGENSTOS ,

Attorney

vI '

------------------------------------
..

Case 3:01-cv-01275-HLA-HTS Document 58 Filed 12/05/02 Page 54 of 133 PageiD 821
~ ~9775 P.28/33
..
ADDBNDTJM

Case 3:01-cv-01275-HLA-HTS Document 58 Filed 12/05/02
STArE OF MIOIIC.\N OEPAJt.'niDI'T Of' ATTORNEY CESEIU.L

Page 55 of 133 PageiD 822

-U4 ...AJ-.JJ I I J

r .. &:.;:1,- ...,)..)
£-~c,:;;;

'l'9'o/

- $TANJ.I'r D. STEUtBORN
Ole/ A..., A.aarwq ~

• FR.ANIC J. KELLEY

ATTORNEY GEHU.U.

.·

L.UWNa

... lJ

August 31, 1984

Mr. Gerald w. Jones
Chief, Voting Section United States Department of 3ustice
Washington, D.C. 20530
A'fm: Mrs • Schwartz

Re: 1982 Amenaments to the Voting Ric;h~s Ac:i:, Public Law 97-205

Dear Mr. Jones:

Your letter inquiring as to what steps the State of Michigan has taken or will take to ccmply with S 208 of the 1982 amenaments to the Vo-ting Rights Act, Public Law 97-205 has been referred to me :for reply. "l'he Michigan !:leetion Law, 1954 PA 116, S 7517 MCLA 168.7517 MSA 6.1751 discusses what assistance may be given to an elector who is unahle to mark his or her ballot and provides that this assistance shall be rendered by two inspectors of election or, if the elector is blind 1 he or she may be assisted by a member of his or her family or by any person over 1B years of age -----·designated by the blind person. - -· ·------·---------

in

This provisi conflict with

os·n2o08f

Michigan !:lecticn t.aw appears to of Public Law 97•205 in that the

be

handicapped individual must be assisted by inspectors of

election. only 1 unless ~e elector is blind. However, the

Michigan Secretary of State, th:ough his authority as the

chief electicn officer of the State of Michigan with super-

visory authority over local election officials, has speci-

fically directed these officials to eomply with the provi-

sions of the l9S2 mnenaments to the Voting Rights Act.

Copies of directions ~o the local election officials are

Case 3:01-cv-01275-HLA-HTS Document 58 Filed 12/05/02 Page 56 of 133 PageiD 823

Mr. Gerald w. Jones
Pac;e 'l'Wo
August 3D , 19 84

attached to ·this letter inc!ic:atinc; that S 208 of the Votinc;
Riqhts Act was to be ccmpliea vith by the local clerks and precinct: official.s at Michigan 1 s recent prima_-ry el.ec:ticn .
. •
Therefore, based upon the &ttache<! i:lstructions of the
Secre~ary of State issuea to local electien officials 4irecidDcg ~em to comply with the Voting- Riqhts Act, no change in Michigan law is required for compliance wi.th the Voting ltiCJhts Act at the pl:'esent time. However, it may be advisable fer the Mic:hi11an Sec:etuy of State, based upon his position as c!hec:tcr of Mic:h.ig-a.-,. ele~ions, to request the Le9islature ~o amen4 Michii&n Election ~aw to specifically comport with the provisions of 5 20B of the Vat:inc;
R.ic;ht.s Act. However, in the interim, please be assured that the Michiian Secretary of State and this office will make every effort to insure that the Vcti."19 aic;hts Act provisions
are complied with ~y all Michigan electio~ official.s.

If you have any additional questions or desire further
in.fol:mation, please do not hesitate to contact me.

Ve-~ truly yo~=s,

F:RANX J • xz:.LEY

· Att~ey General

MI
;C,.~

#tf/j'
''{~".---
c.on

.J$slstant Attcrney Genera.~

650 Law Building

525 West Ottawa Street

Lansing-, MI 48913

(517) 373-6434

-------GPG/jad

Attachments

..

Case 3:01-cv-01275-HLA-HTS Document 58 Filed 12/05/02 Page 57 of 133 PageiD 824

tCHIGAN DEPAitTM!t-IT OF STATE

RICHARD H. AUSTIN

•

SECRETAtrf OF $TATE

MUTUAL BUILDING

208 H. CAPITOL AVENUe

August 2. 1984

.·
TO ALL COUNiY CLERKS:

·Please be advised that the Federal Voting Rfghts Act of 1955 was amended by

Public Law 97..205 of 1982 which added the following section:

.

Voting Assistance
11Sec. 208. 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 'hoi,e, other than the voter's employer or agent af that
employer or officer or agent of that employer or officer
cr agent of the voter's uni~n.• This amendment took effect ;n 1984 and differs from Michigan Law 168.751 which reads as follows:
•sec. 751. When at an election an elector shall state ~~at the elector cannot mark his or her ballot, the elector sha11 be assisted in the mark1ng of his or her ballot by 2 inspec-
tors of election. In an elector is so disabled on account
of blindness, the elector may be assisted in the marking of his cr her ballot by a member of his or her immediate family or by a person over 18 years of age designated by the blind
person."
Bath of these sections are in effect fer all elections conducted in Mi~igan. Precinct inspectors are to be advised of the following procedures. _
If a person is requesting assistance af two precinct inspectors, ~--....... the voter only needs to state that he or she needs assfstance.------
No reason for need of assistance is required. The precinct inspectors shall note the name of the assisted voter in the remarks section of the··poll book; that assistance was given; and the names of the twa inspectors assisting •

••

Case 3:01-cv-01275-HLA-HTS Document 58 Filed 12/05/02 Page 58 of 133 PageiD 825

August z. Mr~-,~-,uu~

•J~~~

1984

Page two

If the person is requesting ta be assisted by a person of their

own choice the following question ~ust be asked of the voter:

•Are ¥ou reguestina assistance to vote by reason cf blindness,

disab1litr, or·inabilit~ to read or WTite?1 only a *yes" or •no•

answer is requ1re<1. SpeCific details are nat necessary. If the

answer is yes to the question, the person who will assist the

voter 1s ta be asked: •Are vou the vater•s employe,.. or agent of

that employer or an officer or agent of an union to Which the

voter belanqs1" {f ~e attswer is NO. the penon ~~~ assist the

voter.
remarks

In :suCh
section

oa fctahsee

the precinct 1nspectors shall note in poll book the name of the voter being

the

assisted and the name of the person assisting the voter. Under

this provision there is no age requirement on who may assist the

voter.

·

Please advise all city and township clerks in your county of the contents of this letter.

Christopher H. Thanas
Director of Elections
OtT:jmf

-· ..... - - - - - · · , - - - - - - - - - · - - - - - - - - - - - - - -

...

Case 3:01-cv-01275-HLA-HTS Document 58 Filed 12/05/02 Page 59 of 133 PageiD 826
.. . .. .. .... ...__, ._..........,

- Voter reauiring assfstanee: n1 will requi~e some help in voting my ballot.H .
Election Inscector: Are you requesting assistance fram two election inspeetors

or from a person of your choice?

.

Answer 1
Assisted Voter: •r .would like two election inspectors to ~ssist me."

Note: Me further-questions are required. The election inspector shall
ru;U" the name of the assisted voter in the remarks section of the poll book; that assistance was g1veni and the names of the two inspectors assisting.

Answer 2 Assisted Voter: •1 wou1d 1ike Hr. John Smith to assist me.•• Eleetion Inscector:. 11Are you requesting assistance to vote by reason of blindness, disability, or inab111ty to read or write?" ~: Only a 11yes" or ..no" answer fs required. Specific details are not necessary. Assist~ Voter: "Yes."

E1 ection Inscector: Question to the person named to assist: 11Are you the voter's employer or agent of that employer or an officer or agent of a union b which the voter belongs? .. Person Chosen tc Assist the Voter: •No• - The pe~son may assist the voter. The ele:tian inspector shall nate in the rema~ks section of the poll book the na~e of the voter being assisted and the name· of the person assisting the voter.

Person Chosen to Assist the Voter:

'"Yes

1 '

-

The

person

shall

nat

be

allowed

to assist the voter 1f he or she is the employer or agent of that emp1cyer

of the voter or an officer or agent of a union to which the voter belongs.

TOT~ P.33

Case 3:01-cv-01275-HLA-HTS Document 58 Filed 12/05/02 Page 60 of 133 PageiD 827
3

~-.... ~.a::r~

--

-

_ •..,_ ·-~~------------=-

Case 3:01-cv-01275-HLA-HTS Document 58 Filed 12705702 Page 61 of 133 PageiD 828

•

[1©

\Jr------J

c: •octn:oc:·.~ 0~.-. ·1-6 ·..-..t_n

Ensuring the Accessibility of the Election Process

Q)·-
Ow

·-

EXHIBIT
I 2.

Case 3:01-cv-01275-HLA-HTS Document 58 Filed 12/05/02 Page 62 of 133 PageiD 829

•

Ensuring the

Accessibility

of the Election

Process

Produced by: Paradigm Design Group/ Paralyzed Veterans of America
Managed and Edited by: William C. Kimberling • Office of Election Administration
Published by: Office of Election Administration Federal Election Commission Washington, D.C. 20463
August1996

• i

-
- ----- --

. ~
.......

--- --

-- -- ---- .....

- .,

.

• Introduction by the
Office of Election
Administration

This report is another in the series on Innovations in Election Administration being published by the FEC's Office of Election Administration.
The purpose of this series is to acquaint State and local election officials with innovative election procedures and technologies that have been successfully implemented by their colleagues around the country.
Our reports on these innovations do not necessarily constitute an endorsement by the Federal Election Commission either of any specific procedures described or ofany vendors or suppliers that might be listed within the report. Moreover, the views and opinions expressed in these reports are those of the authors and are not necessarily shared by the Federal Election Commission or any division thereof.

We welcome your comments on these reports as well as any suggestions you may have for additional topics. You may mail these to us at:

The Office of Election Administration Federal Election Commission 999 E. Street, N.W. Washington, D.C. 20463
or else contact us
Direct on 202/219-3670 Toll free on 800/424-9530 By FAX on 202/219-8500 e-mail on bkimberling@fec.gov

•

•
ii

Case 3:01-cv-01275-HLA-HTS Document 58 Filed 12/05/02 Page 64 of 133 PageiD 831
Introduction
The purpose of this publication is to provide information and guidance in order to help election officials ensure access to the election process for persons with disabilities.
The Voting Accessibility for the Elderly and Handicapped Act (VAA) of 1984 was the first to bring federal focus directly on the need for accessible voting facilities and procedures. TheAmeri• cans with Disabilities Act (ADA) of 1990 further expanded and clarified the responsibilities of State and local election officials in ensuring the accessibility of the election process. And today, many States also mandate accessible polling places.
But voting accessibility is not just about complying with the law. It is also about the willingness of State and local election officials to serve persons with disabilities by routinely considering their particular needs in all aspects of the election process - in voter registration and in providing public information as well as in the voting process itself.
Many State and local election officials have developed creative and innovative ways to accommodate disabled voters, many of which are not costly but involve simple forethought and common sense. Some of these ideas are outlined in the following pages along with other guidelines and suggestions that you may find helpful.
• 1

• e&se 3.6 1-cv-6 12; 3-1 ILA-i!Jl2 Bucurrrern §§ ~,le8 I216ft !!'age gg ol 133 Pagelb §JQ
•
•
•

Case 3:01-cv-01275-HLA-HTS Document 58 Filed 12/05/02 Page 66 of 133 PageiD 833
• The Scope of the Problem

There are an estimated 49 million persons with disabilities throughout the United States. And although most people, when they hear the word "disability'\ think ofwheelchairs, there are actually four broad categories of disability to which election officials will want to be sensitive:
• impaired vision

difficulty reading small type instructions or the ballots themselves. Many of their needs can be accommodated by providing such items as:
0 good illumination both in the polling places and in the registration facilities themselves as well as in indoor passageways (and especially staircases) leading to such facilities

• • impaired mobility • impaired communication, and • impaired dexterity.

o large type (12 point bold or larger) instructions - such as large, reusable, laminated posters that can be affixed to tables, voting devices or booths, or on the walls of the polling place

It is important to note, however, that there is a o magnifying glasses or devices that can be made

range of impairment within each of these catego- available on request from the chiefpoll workers

ries. And in improving the accessibility ofyour election facilities, you will want to bear in mind not just the extremes of these impairments but also those less severely impaired. who may nevertheless require some measures to ensure functional accessibility to voting and registration facilities.

0 assis~ance in voting provided under the requirements of State law (remembering that Section 208 of the federal Voting Rights Act permits virtually any person of the voter's choice to provide them assistance)

It should also be said that disabilities may come in combinations. But many ofthe measures suggested in this volume (such as large type instructions or ramped stairs) may also accommodate

0 assistance (using either a staffreader or, preferably, an audio recording) in reading materials that you have made available to the general public.

more than one disability.

Federal law does not require that braile mate-

rials of any type be provided (since braile mate-

Impaired Vision

rials would in any even serve fewer than 20% of the blind population). There are at this writing,

Although total blindness is the extreme form of however, a few lawsuits that seek some means

visual impairment, there is also a substantial for the blind to vote unassisted and in privacy.

number ofpeople who are sighted but whose sight But whatever the final outcome ofthese cases, it

• is seriously impaired. Such persons may have is reasonable to expect that, at the current rate

3

•

,.:. • .:..,:. _ _ _~_..:.._ _ _ _ :_..:~ _ _ _ _ _ _ ..:. _ _ _ _: _ :______ .:.------~--- - - · - - ~~~_..:.._ ~ ~ • - -

•

<

of technology, voting devices that facilitate independent voting by the blind may soon appear on the market.
Impaired Mobility
The most noted form of impaired mobility is the wheelchair. And later sections of this report contain a number o( specific measures that you can take to ensure the accessibility of your election facilities to wheelchair users. Yet it is crucial to recognize that measures to ensure access for wheelchair users may not be sufficient to serve the needs of others who are ambulatory but nevertheless impaired. Those who use walkers, canes, prosthetic devices or who suffer from dystrophy, sclerosis, heart ailmE:nts, obesity, infirmity of old age, or any number of other impairments frequently have limitations on the distances they can traverse or on performing essential transactions while standing.
In addition to the other measures described later in this volume, then, election officials will want to consider:
o avoiding long distances to be traversed either
within the facility or from parking areas to the facility
o ensuring that doors are not unduly heavy or difficult to open
o ensuring that any internal steps or stairs are either ramped or have elevator alternatives
o ensuring that walking surfaces are non-skid and unencumbered with items over which one might trip or stumble
o providing seating areas within the facility (es-
pecially along unavoidably long corridors and in places with waiting lines)

Impaired Communication

•

Impaired communication refers both to impaired hearing and to impaired speech. Many of the practical problems of those with impaired hearing can be overcome by the same large type instructions suggested above for the visually impaired. And although impaired speech presents fewer practical problems, election officials may want to include some sensitivity training as a component to their standard poll worker and employee training curricul.a (See Appendix A).

Impaired Dexterity

Impaired dexterity refers primarily to prob-

lems in grasping items in the hand. Its extreme

form is, of course, complete paralysis. But less

severe forms, such as muscular disorders or even

arthritis, are not uncommon. Accordingly, elec-

tion officials will want to make sure that:

•

o any doorknobs are fitted with devices that con-
vert them to levers, and that

o any stylus or other ballot marking instrument has a knob that can be readily grasped.

Endnote
Many of the remedies to inaccessible polling places that are suggested in this volume are relatively simple and easy to apply. Others may require some equipment, construction, or expert guidance. For this reason, we have provided in Appendix D a listing of sources you might turn to for the more challenging problems you encounter.

o providing seats at tables or in voting devices.

•
4

Case 3:01-cv-01275-HLA-HTS Document 58 Filed 12/05/02 Page 68 of 133 PageiD 835
• Relevant Federal Laws and Applicable Guidelines/Standards

Five federal statutes pertain to the accessibility The Rehabilitation Act of 1973

of the election process to persons with disabilities. (29 U.S.C 791 et seq)

These laws work together to ensure that all persons with disabilities, young and old, can enter a facility, cast their vote, and exit the polling place along with their fellow citizens. The following federallaws apply to all State and localjurisdictions:

Section 504 of the Rehabilitation Act of 1973 requires recipients offederal funds to make their programs and activities accessible to persons with disabilities. Included are both private and public entities. State and local governments that receive

• The Voting Rights Act of 1965 . (42 U.S.C. 1973aa-6)

some type of federal funding, such as Community Development Block Grants, are considered to be covered by Section 504.

The Voting Rights Act of 1965 was originally The accepted standards for newly constructed

designed to protect and facilitate the voting rights or altered facilities under Section 504 are the

of racial minority groups. Subsequent amend- Uniform FederalAccessibility Standards (UFOS)

ments have, however, expanded it to include other issued jointly by the General Services Adminis-

minority groups as well as more general matters · tration, Department of Housing and Urban De-

regarding voting qualifications and procedures. velopment Department ofDefense and the U.S.

Section 208 of that Act applies to all elections in Postal Serrlce.

'

all jurisdictions and reads in its entirety:

"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 ofthat employer or agent ofthe voter's union."

The Voting Accessibility for the Elderly and Handicapped Act of
1984 (42 U.S.C.1973ee Through 1973ee-6)

This provision supersedes any incompatible State The Voting Accessibility for the Elderly and

law that may restrict the number ofvoters a person Handicapped Act (VAA) of 1984 contains provi-

may assist or that may place restrictions, such as sions expressly intended to "promote the funda-

on children, on who may enter a polling booth with mental right to vote by improving access for

a voter requiring assistance. It does not, however, handicapped and elderly individuals to registra-

preclude obtaining a signed and sworn affidavit from tion facilities and polling places for Federal elec-

• any person providing voter assistance.

tions." Key provisions require:

5

Case 3:01-cv-01275-HLA-HTS Document 58 Filed 12/05/02 Page 69 of 133 PageiD 836

• that each political subdivision responsible for conducting elections within each State assure that all polling places for federal elections are accessible to elderly and handicapped voters except in the case of an emergency as determined by the State's chief election officer or unless the State's chief election officer
- determines, by surveying all potential polling places, that no such place in the area is accessible nor can be made temporarily accessible, and
- assures that any handicapped voter assigned to an inaccessible polling place will, upon advanced request under established State procedures, either be assigned to an accessible polling place or be provided an alternative means of casting a ballot on election day.
• that each State or political subdivision responsible for voter registration for federal elections provide a reasonable number ofaccessible permanent registration facilities unless the State has in effect a system which provides potential voters an opportunity to register by mail or at their residence.
• that each State make available to handicapped and elderly individuals registration and voting aids for federal elections including largetype instructions conspicuously displayed in every permanent registratiQn facility and polling place and information by telecommunication devices for the deaf (TDD's).
• the elimination of any notarization or medical certification requirement for handicapped voters to obtain (or apply for) an absentee ballot except for medical certifications required to establish eligibility, under State law, for automatically receiving such an application or bal-
lot on a continuing basis or for applying for an
absentee ballot after the deadline has passed.
• that each State's chief election officer provide public notice, calculated to reach elderly and handicapped voters, ofthe availability

• - ofthe registration and voting aids required above
- ofthe voter assistance provisions under Section 208 of the Voting Rights Act of 1965, and
- ofthe procedures for voting by absentee ballot not later than general public notice of registration and voting is provided.
Although it was not the intent of this Act to impose any national standard ofaccessibility, the chairman of the House Subcommittee on Elections (in Hearings conducted in 1987) asked the Federal Election Commission to explore ways of achieving a greater commonality of approach in the various States. Accordingly, the FEC's National Clearinghouse on Election Administration joined with the National Association ofSecretaries of State and the Coalition for Voter Accessibility in an effort to devise a polling place evaluation and reporting form which might be adopted • voluntarily by the States. This form was designed to be comprehensive, flexible enough to accommodate variations in individual States specifications, yet fairly easy to complete. It appears in Appendix B ofthis report.

The Americans with Disabilities Act of 1990 (42 U.S.C.)

Title II of the Americans with Disabilities Act (ADA) prohibits discrimination by State or local entities in any of its services, programs, or activities - including the election process. State and local election entities are thereby obliged to ensure the accessibility ofthe election process by qualified persons with disabilities.

The applicable standards for assessing public

facilities under this Act are either the Uniform

Federal Accessibility Standards (UFAS) or the

Americans with Disability Accessibility Guide-

lines/ADA Standards for Accessible Design

(ADAAG).

•

6

6 @JI!mCE.O I I!IIPG IE! b I ill I I II6 BbbdiilDIII 50 I lidS ll!SS:SE I BJE 1%31 iSS I 3£313 331

• A Note on The Relationship of the Voting Accessibility for the Elderly and Handicapped Act to the Americans with Disabilities Act
Anumber ofState and local election officials were concerned in 1993 about the impact of the Americans with Disabilities Act on their efforts to comply with the VotingAccessibility for the Elderly and Handicapped Act of 1984. For although there are no direct statutory linkages between the Acts, they both address the same subject.
Indeed, the House Subcommittee on Elections, in their 1991 Hearings on the VAA requested the Federal Election Commission's understanding of the relationship between the two Act. Their response, which you will want to review, is provided in Appendix C.
The National Voter Registration • Act of 1993 (42 U.S.C. 1973gg)

- at any office in the State that provides public assistance including, but not limited to, the Food Stamp program; the Medicaid program; the Special Supplemental Food Program for Women, Infants, and Children (WIC) program; and the Aid to Families with Dependant Children (AFDC) program;
- at other offices designated by the State;
- at Armed Forces recruitment offices;
and, most important for the purposes ofthis volume
- at or through any office in the State that provides State funded programs primarily engaged in providing services to persons with disabilities.
Local election officials should consult their chief State election official to learn which agencies within their State have been designated as voter registration facilities.

This Act applies to all federal elections in all States except Idaho, Minnesota, New Hampshire, North Dakota, Wisconsin, and Wyoming which are exempted by 42 U.S.C. 1973gg-2 as amended. In all other States, this Act, among many other things:

• requires that individuals be given an opportunity to register by mail using either a State mail voter registration form or the national mail voter registration form

• requires that individuals be given an opportunity to register to vote (or to update their voter registration data) when applying for or renewing a driver's license or other personal identification document issued by a State motor vehicle authority

• requires that individuals be given the oppor-

tunity to v/iiister to vote (or to change their

•

voter registration address) when applying for services or assistance

7

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•
•

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•

Ensuring Access

to the Polling Place

Only those features of a site which are a necessary part of the process of getting to the polling place, and which facilitate accessibility for voters with disabilities are included in this section. Notwithstanding efforts already undertaken by facility owners to provide for accessibility, election officials are charged by the Voting Accessibility for Elderly and Handicapped Act with insuring the .•. accessibility ofthe polling place. The use ofall or a portion ofboth a site and buildingfor a polling place may be quite different from its normal use. Special temporary measures may be required to convert the existing facility to a polling place to providing accessibility for voters with disabilities. For instance, the polling place may be only a small part ofa larger building remote from the building's main entry. The existing secondary entrance may be used for the primary entry to the polling place but may not be accessible, and far from designated accessible parking spaces. In this case, some accommodations will have to be made by election officials to address the barriers created by the polling place setup and operation.
Accessible Site for Polling Place
An accessible site for a polling place will provide· an accessible route or routes to an accessible building entry to the polling place. Typically, there
• should be an accessible route from public streets or sidewalks. If on-site parking is afforded voters, then accessible parking with an accessible

rout~ to the polling place should be provided. If there is a nearby public transportation stop, there should be an accessible route from the public transportation stop to the polling place site. An accessible passenger loading zone should also be provided.
Accessible On-Site Car and Van Parking
The Americans with Disabilities Accessibility Guidelines (ADAAG) for new construction requires that when on-site parking is provided for selfparking by employees (and volunteers) or visitors (voters), then accessible parking spaces shall be provided:
Ifon-site parking is available at the voting/registration area, the parking area should comply on at least a temporary basis with ADAAG requirements for new construction for both van accessible and overall total number of accessible parking spaces. The required parking spaces may be provided in the particular lot, or could be provided in another location ifequivalent or greater accessibility in terms of distance from an accessible entrance, cost and convenience is ensured. Accessible parking spaces should be located on the closest accessible route of travel from adjacent parking to the accessible entrance of the voting/registration facility. Ifthe parking area is curbed, a curb ramp will be needed on the accessible route to the facility entry.

9

Case 3:01-cv-01275-HLA-HTS Document 58 Filed 12/05/02 Page 73 of 133 PageiD 840

Total Parking Spaces

Accessible Spaces

1 to25 26 to 50 51 to 75 76 to 100 101 to 150 151 to 200 201 plus

1 (van accessible) 2 (1 van accessible) 3 (1 van accessible) 4 (1 van accessible) 5 (1 van accessible) 6 (1 van accessible) refer to ADAAG 4.1.2(5)(a&b)

Note that for parking areas constructed prior toADAAG, ifthe parking area provides for accessible (handicapped) parking spaces, it may not have provided for van accessible parking or provided an adequate number of accessible parking spaces.

•

10

Case 3:01-cv-01275-HLA-HTS Document 58 Filed 12/05/02 Page 74 of 133 PageiD 841

Figure 1 Accessible Parking Bay Without Curb

•

~Van

~

:~

Accessible

S.igns

'

=
• 11

Case 3:01-cv-01275-HLA-HTS Document 58 Filed 12/05/02 Page 75 of 133 PageiD 842
•
Figure 2 Accessible Parking Bay with Curb
No Parking signs
I
=
12

Case 3:01-cv-01275-HLA-HTS Document 58 Filed 12/05/02 Page 76 of 133 PageiD 843

• Accessible Passenger Loading Zones
If adequate on-site or on-street parking close to the voting or registration site is not available, then a passenger loading zone with an access aisle close to an accessible entrance should be provided on at least a temporary basis. ffthis loading zone includes a curb, a curb ramp will be required.

Many voters with disabilities will arrive at the voting/registration site via a pool vehicle which requires a passenger loading zone for drop off. While some of these voters can disembark/ embark a high floor vehicle such as a van or a lift equipped vehicle at curb level, many others with mobility impairments and wheelchair users must get in and out at pavement level, especially from low floor vehicles such as most passenger cars.

Figure 3 Accessible Passenger Loading Zone

•
If'
5' Min.

13

Cd§~trl-t%-o 121~-f!it:l!:-R 1s ommfiieht ;~ Plied 12msm~- ~age li of 122 Pagelb §44

•

••

Figure 4
Temporary Accessible Loading Zone ('1\vo parking spaces required)

Traffic lane blocked short term

---

---

--
~-~--

~-

Temporary Striping

Temporary curb ramp ·

14

• ·-

Case 3:01-cv-01275-HLA-HTS Document 58 Filed 12/05/02 Page 78 of 133 PageiD 845 - - - -

• Public Transportation Stops Voters _with disabilities may elect to arrive via public transportation ifavailable. Ifa bus or subway stop is close to the voting/registration site, an accessible route from the transit stop should be verified. An accessible route might require the installation of new curb ramps or cross walks. These offsite modifications should be permanent improvements if possible.
Accessible Route
• Curb ramps: Acurb on an otherwise accessible route is an insurmountable barrier for many voters with disabilities using wheelchairs or walking aids. A curb ramp with a maximum slope of1:12 and a minimum width of36" is re-

quired to overcome the curb barrier. Curb ramps work best if they are cut out of the curb back into the sidewalk, and hence are a permanent site or off-site improvement. A temporary curb ramp which does not cut the curb must project 6' from a 6" curb line without extending into vehicular traffic. In many instances, space limitations on existing sidewalk's will not permit the installation of this ramp. As an alternative, a temporary projecting built up curb ramp can be made with asphalt paving patch material which can be rolled with smooth feather edges. Temporary projecting curb ramps can be made out of wood with 2" high curbs on both sides ofa 3' wide ramp, but should be securely fastened to pavement, and tapered to a maximum 1/4" vertical lower threshold, with a minimal gap at curb line.

Figure 5
• Example of Permanent Curb Ramp

• 15

Case 3:01-cv-01275-HLA-HTS Document 58 Filed 12/05/02 Page 79 of 133 PageiD 846
•

Figure 6 Example of Temporary Built-up Curb Ramp

••

..~

....

...·. .

.... ·...-...

.... . . . ~ ..... ·. ..

- .. . .... . . . ...

•

16

Case 3:01-cv-01275-HLA-HTS Document 58 Filed 12/05/02 Page 80 of 133 PageiD 847
• Walkways: The minimum clear width of a walkway should be 3Sn. lfless than son wide passing spaces 60n by SO" should be provided at reasonable intervals not to exceed 200'.ATshaped walkway intersection is an acceptable passing space. The walkway surface should be stable, firm and slip-resistant. Typically, the walkway will be asphalt or concrete pavement, but compacted crushed rock and gravel, or tamped earth which is passable to wheelchairs in inclement weather is also acceptable. The walkway should have a cross slope not to exceed 1:50 so that wheelchair users can maintain a straight path. The running slope should not exceed 1:20; slopes over 1:20 are considered a ramp and will require handrails and intermittent landings son long at 30" height gain intervals.
• Entry: Voters with disabilities should be able to enter the polling place by the same entry as other voters. Steps at the entry to a polling place are an insurmountable barrier for voters using a wheelchair or walking aid. Separately routing these voters to a back service or loading entry is strongly discouraged. A low stepped entry barrier can be overcome by either a permanent or temporary ramp. Stepped entry's with a total height gain of 30" can be overcome by a single ramp run with a maximum slope of 1:12 (1' horizontal ramp run for each inch of height gain). Note a slope of 1:1S is easier for persons with disabilities to use and thus preferable if space permits. A stepped entry with between 30" and SO" oftotal height gain will require two ramp runs with an intermittent son landing. It may not be spatially feasible to overcome a stepped entry over 60" high with ramps and the effort required may be too taxing for many disabled voters; a portable or permanent platform lift may be analternative solution.
• 17

Case 3:01-cv-01275-HLA-HTS Document 58 Filed 12/05/02 Page 81 of 133 PageiD 848
•

Figure 7 Temporary Ramp to Overcome Steps at Entry

"E

1:;::u

•

E

I

Length Qf Ramp

Step Height

1:16 Slope

I :12 Slope

Recommended

Maximum

6"

8'

6'

12"

16'

12'

18"

24'

18'

24"

30'

24'

30"

40'

30'

over 30" to 60"

2 ramps with 60" intennediate landing

•

18

Case 3:01-cv-01275-HLA-HTS Document 58 Filed 12/05/02 Page 82 of 133 PageiD 849
Ensuring Access Inside the Polling Place

Only those features of a building which are a necessary part ofthe process ofgetting to the voting booth to cast a ballot, and which facilitate accessibility for voters with disabilities are included in this section. Support features such as water fountains and toilet rooms are not included because they are not essential to casting a vote. Nevertheless, these and other accessible support features are necessary for persons with disabilities to participate as poll workers and election officials.

Doors

Doors at the building entry and interior doors encountered en route to the voting booth may pose a barrier to access by voters with disabilities.

• Revolving doors: Revolving doors at an entry are a barrier to passage ofvoters in wheelchairs and elderly voters using walkers or crutches. An alternate accessible door should be available.

•

• Double doors: Double doors, including those without a central fixed post (astrigal), are not accessible unless one of the doors fully open meets the minimum clear passage width. However, double doors linked to act in concert so that opening one door opens the other are accessible ifthey provide the minimum clear passage width between door faces when fully open 90 degrees.

• Doors in series: Two doors in series such as an airlock at building entry are not accessible unless there is a minimum of 48" between the doors plus the width of any door opening into intervening space. Doors in series should either both open in the same direction or in opposite directions away from the intervening space.
• Clear passage width: To permit passage of voters in wheelchairs and elderly voters with walkers or crutches, the doorway clear opening should be a minimum of 32" wide with the door open 90 degrees, measured from the door face to opposite stop (latch side). Given a typical door thickness of 1 112" to 2" the minimum actual width of a door permitting this accessible passage is nominally 36".
Doorways not permitting this 32" clear passage for accessibility, but measuring 32" or more between stops, may be made accessible by temporarily removing the door or remounting the door on special offset hinges. Note that removing a door may not be permitted by weather considerations or frre code. If the doorway is too narrow, providing a wider door can be a relatively expensive permanent solution, typically involving new structural reframing and refinishing of the wall, and a new door frame and threshold as well as a new wider door.

19

!!13!5 ! .! I lllfi'-IIM Tl " I I

iSiil Q! FIICJ PISGSIGE P&~!!i QH d 188 F g II#I!IU

1

• Door hardware: Accessible doors should be operable with one hand, without having to tightly grasp, tightly pinch or twist the wrist to open. Lever handles, push bar mechanisms, and U-shaped pull handles are acceptable, but door knobs are not.

• Door closers: Automatic door closers can constitute a barrier for voters with disabilities if doors close too quickly to permit passage. Door closers should be adjusted to allow at least 3 seconds from the fully open to nearly closed position.

Figure 8 Doorway Clear Width and Maneuvering Clearances

1----~ . -

•

20

Case 3:01-cv-01275-HLA-HTS Document 58 Filed 12/05/02 Page 84 of 133 PageiD 851

• Thresholds: Doorway thresholds can constitute a barrier that impedes voters who use wheelchairs and elderly voters with walkers or crutches if the threshold is too high or abrupt. Thresholds should not exceed 112" in height and should be beveled at a slope no greater than 1:2. If a threshold is not accessible, a temporary accommodation may be necessary. A poll worker may also have to be positioned to hold the door open for voters using wheelchairs, walkers, or crutches.
Accessible Route
There should be an accessible route of travel for voters with disabilities extending from the accessible building entry to the voting machine or voting booth. Exit after voting may be by the same or another accessible route may be used.

• Minimum width: To permit the one way passage of voters with disabilities using wheelchairs, walkers, crutches or service animals, a 36" minimum wide route is required. Note that this minimum width pertains to the furniture placement in rooms, including tables, chairs and voting booths as well as fixed architectural components such as halls and corridors. This minimum width can be reduced at points down to 32" for up to 24" of travel such as past the narrow end of a table ~r an architectural pilaster. This minimum width only permits one way passage of persons using a wheelchair, walking aid or service animal - no person, whether ambulatory or not, could pass by a wheelchair, walking aid or service animal user in either direction. Therefore, an accessible route less than 60" wide will require passing spaces 60" by 60" at regular intervals.

21

Case 3:01-cv-01275-HLA-HTS Document 58 F1led 1~/05/02 Page 85 of 133 PageiD 852

• Recommended minimum width: Many polling places are likely to be crowded on Election Day and a 36" minimum accessible route could aggravate the congestion. The minimum width for a voter with a disability using a wheelchair, walking aid or service animal to bypass an ambulatory person is 48". The minimum width for two wheelchairs or walking aid users to pass each other or for an ambulatory·person to pass by a wheelchair, walking aid or service animal user

without turning sideways is 60". 'lb ease congestion and to permit the flexibility and courtesy of allowing voters with disabilities in wheelchairs, or with walking aids and service animals to go to the front of the line a minimum continuous width for an accessible route of 60" is recommended, with a minimum of 48" at furniture passage points such as registration verification tables and voting booths.

Figure 9 Minimum Width for Accessible Passage

a "'V'\.J'--""'V"'\J
Voting Booths

...

4
48" min. 60" pref. )I

(
22

Case 3:01-cv-01275-HLA-HTS Document 58 Filed 12/05/02 Page 86 of 133 PageiD 853

• Protruding objects: Objects which extend from the wall along an accessible route such as a fire extinguisher, drinking fountain or public telephone stand reduce the effective width ofthe accessible route at that point and may present a hazard for voters with disabilities who are visually impaired. A visually impaired voter using a

cane cannot detect a protruding object mounted with its lower edge over 27" above the floor and may walk into it. Similarly, free-standing objects such as temporary directional signs on posts or temporary sawhorse barrierswill not be detected by visually above the floor.

Figure 10 Protruding Objects and Overhead Clearances

•.' 23

Ca.se ~:~1-cv-ch275-RLP\-R I!;. L>ocumeni 59 Fdea 1~/0!>/02 Pa~@ 87 01 133 Pagell5 e~4

Overhead clearance: A minimum overhead clearance of 6' 8" should be maintained. Signs, including fire exit signs, old door closers which hang below the door head, light flxtures, and especially the open underside of staircases are examples ofoverhead hazards not detected by blind or visually impaired persons using a cane without a warning barrier.
Accessible Voter Registration Verification
Verification of voter registration is typically done at tables. Tables should be no higher than 34" with 29" clear under them to both allow for wheelchair users to be poll workers, and voters in wheelchairs to approach the table. Elderly voters may not be comfortable having to stand to answer registration questions, and having chairs available for their use will help put them at ease. If there are long lines for either verification of voter registration or to use the voting booths, then chairs should be available where elderly voters can await their tum. Elderly voters should not have to shuttle from chair to chair to maintain their place in line, but, instead, should be called when their tum is near, allowing them some extra time for transit. Chairs intended for elderly use should be equipped with arms, which will assist the elderly in both sitting and arising. In arranging the furniture at the polling place, it is important to maintain adequate clearances to permit the passage and maneuver ofpersons with disabilities and the elderly.
Voting
• Accessible voting machine booths: An accessible voting machine should provide suffi-

• cient room for a voter with a disability such as
a wheelchair user to vote in complete privacy behind a curtain or screen to insure a secret ballot. Any levers, buttons or other voting means should be within an easy reach range of a wheelchair user. For a frontal approach, this booth space should be a minimum of 36" wide by 48" deep; this depth can be reduced to 36" if the voting machine is set up on a table or otherwise provides 29" high knee space 19" deep for wheelchair users. The reach range of a wheelchair user for a frontal approach is limited to 48" high. If a wheelchair user can position themselves parallel to the machine, the reach range is increased to 54" high, but minimum space is increased to 48" wide by 36" deep.
• Accessible voting booths in lieu of machines: Some voters with disabilities may not be able to use a voting machine. And some
polling places may not have a sufficient num- 66'-.
ber of registered voters to warrant the use of ~­ voting machines, and may instead use a voting booth and hand-marked ballots. An accessible voting booth for handmarked ballots should have a screened table with a maximum height of 34" and 29" clear height to permit wheelchair voters. A curtained or screened booth a minimum of36" wide and 36.. deep will accommodate a wheelchair user.
• Accompanied voters with disabilities: Federal law allows voters with disabilities to be accompanied and to receive assistance by another person in the voting booth. 'lb ensure a secret ballot, the curtained or screened voting booth of at least one machine or manual ballot should be 48" wide by 48" deep to accommodate accompanied voters with disabilities.

(
24

Oase S.B1 co ®H95 1r2f: llif8 l!leee::lel :t 96 I 1166 9~JB'! 'f &~0 at S: lEO f BQSIS 333
Figure 11 Accessible Voting Machine Booth (No Kneespace)
1
.!
- Voting Machine
! !
......_.I _____ -1
25

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f1 I II ;;] I I j i -- I ' f : :;, t -

I

1 §iii ; ;; • E f1 A 1 ' ' F j eli ' t1 ';

• -

Figure 12 Accessible Voting Machine Booth with Kneespace

I

-· . Voting Machine ~
-----...-. - ." ,..
.... '""'"

1

-J

I

•

..::IlL-- I_ - - - - - .J

26

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Sws a ·o1 ?If QKtiiii 116' liTO EJOCSII l@!l'Ft 56 I 11@8 I!JGSIG~ PJQ~16 61 I§§ PMO@ib §§)

Figure 13 Accessible Voting Machine Booth (No Kneespace)
" ''·
)
-
' J
27

Case 3:01-cv-01275-HLA-HTS Document 58 Filed 12/05/02 Page 91 of 133 PageiD 858
Figure 14 Accessible Voting Booth with Table

Oo
I ""'

I

I

I

I

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(

28

Case 3:01-cv-01275-HLA-HTS Document 58 Filed 12/05/02 Page 92 of 133 Pagelb 859

Funding Accommodations for People with Disabilities

Frequently, making accommodations to achieve accessibility to polling places for people with disabilities requires the expenditure offunds for items such as portable ramps, special hardware or special adaptive equipment. Most states do not budget for these accommodations, so imaginative and innovative funding methods have to be devised.
In most cases, fundraising is a one-time effort and not an annual necessity. Once the items needed to provide accessibility are acquired, they can be used for each subsequent elections. Most local organizations take on annual fundraising for the charities and causes they adopt and are not able to add to those efforts on an annual basis. However, as a one-time effort, they are more open to helping.
Here are some of the ways in which election districts across the nation have met the funding challenge:
Service clubs: Service clubs such as the Junior Chamber ofCommerce, the Lions, Kiwanis or Rotary clubs have "adopted" a polling place and used a variety of fundraising approaches to raise money to help make polling places accessible. If approached and given the nature ofthe problem, these community organizations will take on the one-time job of raising funds to provide the necessary accommodations as a part of their community action programs.

Political parties: Local political parties can be called upon to help raise funds for accessible accommodations at election polling places. If approached in an effective manner, political leaders can see a public relations benefit in helping out. It also tends to increase their awareness of people with disabilities in the community and their desire to be a part of the political process by exercising their franchise.
Civic clubs: Organizations such as the League of Women Voters and other civic organizations can be a resource for raising funds. These groups often have a very direct interest in seeing that voter turnout is maximized and therefore are quick to realize the benefit of providing accessible polling facilities for people with disabilities in their communities.
Veterans organizations: TheAmerican Legion, the Paralyzed Veterans of America and other veteran's groups have local chapters across the country and can be called upon to help raise funds, which help their members who have dis- . abilities get out to vote.
Local disability groups: Local disability groups, such as the chapters ofthe Easter Seal Society, can often be called upon to assist in raising funds to provide accessible accommodations which provide a direct benefit to their members and enhance their reputations as community organizations.

29

Case 3:01-cv-01275-HLA-HTS Document 58 Filed 12/05/02 Page 93 of 133 PageiD 860

Schools: Local high schools and colleges can be approached to help raise funds. In most cases, students show considerable energy and creativity in raising money from such events as car
washes, dances, and other special events. Civics
and social studies classes are especially easy to approach and challenge to help raise funds.

•

•

30

4# ease 3:01-cv-01275-HLA-HTS Document 58 Filed 12/05/02 Page 94 of 133 PageiD 861
)
Appendices
31

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•
•
32

Case 3:01-cv-01275-HLA-HTS Document 58 Filed 12/05/02 Page 96 of 133 PageiD 863
Appendix A
Common Courtesies and Guidelines
• Be considerate of the extra time it might take for a person who is disabled or elderly to get things done, and give unhurried attention to a person who has difficulty speaking.
• Speak directly to the person who has a disability rather than to a companion who may be along.
• Speak calmly, slowly and directly to a person with a hearing problem. Your facial expressions, gestures and body movements help in understanding. Don't shout or speak in the person's ear. If full understanding is doubtful, write a note to the person with a hearing problem.
• Before pushing someone in a wheelchair, ask if you may do so and how you should proceed.
• Greet a person who is visually impaired by letting the person know who and where you are. Provide a guiding device such as a ruler or card for signing forms. When offering walking assistance, allow the person to take your arm and tell him or her if you are approaching steps or inclines.
• Be aware that dogs who assist people with disabilities should be admitted into all build- · ings. Such dogs are highly trained and need no special care other than that provided by the owner.
• Be aware that federal law allows voters with disabilities to be accompanied and to receive assistance by another person in the voting booth.
• Remember that all voters deserve courteous attention in exercising their right as citizens to vote.
• Ifspace allows, provide seating outside the polling place for voters to sit while they wait for rides or for their companions to vote.
• In advance of election day, offer to make available a voting booth to demonstrate to people with disabilities how it works so they can become familiar with its operation and be ready to cast their vote on election day.
33

' '

--

--

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- 6 IQJJJ!b!" I ggg ,; 61 I53 I ggg:s 664
APPENDIX B-
a....

Polling Place Accessibility Survey Form

-

COUNTY/CITYffOWN: POLLING PLACE NAME/NUMBER: POLLING PLACE ADDRESS/LOCATION:

Case 3:01-cv-01275-HLA-HTS Document 58 Filed 12/05/02 Page 98 of 133 PageiD 865
INSTRUCTIONS The purpose of this form is to evaluaate the practical accessibility of polling places to the disabled pursuant to the requirements of the Voting Accessibility for the Elderly and Handicapped Act of 1984. This fonn is designed to facilitate a walk-through inspection of each polling place from the parking area to the voting area. Completing the form should require no more than a yardstick, a tape measure, and approximately 30 minutes. Please ·respond to all questions in each category by marking either 'YES", "NO", or "NOT APPLICABLE", as appropriate. Items with clear boxes are required while items with shaded boxes are recommended. Thus, a "NO" response in any clear box renders the polling place INACCESSIBLE whereas a "NO" response in any shaded box renders it ACCESSIBLE BUT INCONVENIENT provided that all other responses are "YES" or "NOT APPLICABLE." We recognize that a polling place may be inaccessible for more than one reason. It is therefore especially important to respond to every item and to summarize the responses by category on the back page.
1. Name, addres~. and telephone number of person completing this form:
2. Date on which inspection was 'conducted: A. Was the inspection conducted on site?

Case 3:01-cv-01275-HLA-HTS Document 58 F=iled 12/05/02 Page 99 of 133 PageiD 866

CATEGORY 1:
PARKING
1. Are there off-street parking spaces either permanently or temporarily designated for the handicapped?

YES NO N/A

2. With regard to off-street parking:

a. Are such parking spaces at least __ feet wide?

b. Are such parking spaces on level ground (with a slope no greater than a rise of _ foot in_ feet)?

c. Is the parking area paved (concrete, asphalt, macadam, etc.)?

-------------------------w~~~~~~~~~~

d. Are the parking spaces within a reasonable z~

~ ~

travel distance (__ feet) of the building? ~

~

------------------------3~~~~~&~~~~~

e. Is there a curb cut to connect these parking spaces to an accessible walk or to the building entrance?

f. Are these parking spaces designated by post-mounted signs bearing the symbol of accessibility?

3. Is there a relatively level passenger drop-off zone at least feet wide with a curb-cut connecting it to an accessible walk or to the building entrance?

END OF CATEGORY I. PLEASE PROCEED TO NEXT CATEGORY.-

(

Page 100 of 133 PageiD 867

-

cATEGORY II:
WALKWAYS OR PATHWAYS TO THE BUILDING YES NO N/A
1. Is the walkway or pathway to the building paved (concrete, asphalt, macadam, etc.)?

2. Is the walkway or pathway to the building at least inches wide?

3. Are all curbs along the pathway to the building

cut or ramped with at least a

clear

width and with slopes of no more than a _ _

inch rise in

inches?

4. Are all stairs or steps along the walkway or pathway to the building either ramped (with a slope of no more than a __ foot rise in __ feet) or else provided with a suitable alternative means of access?

5. Do stairsteps along the walkway or pathway to the building have non-slip surfaces and handrails?

6. Is the walkway or pathway to the building entrance:

a. free of protrusions (such as fire hydrants, tree trunks, or other obstacles) which narrow the passage to less than __ inches?

--,- . -b- . -fre-e-of-an-y-ab~ ru- pt - ed- ge- s - or - bre-ak-s 7 in - the--~ ~~ ~m~~~~~. m~~~~

surface where the difference is over

~

~

inches in height (such as where it crosses ~

a driveway, parking lot, or another walk- ~

way, etc.)?

~

~
I ~

-i}

~ j ~~///H/H/ffl9///UH/H!(W////U//A

...

ease 3.0 1-cv-o 1275-HLA-H I 8 Document 58 hieo 1270S7~~ ~age 101 of 133 Pagelb 868

i

WALKWAYS OR PATHWAYS TO THE BUILDING (cont'd)

c. free of any overhanging objects (such as

tree branches, signs, etc.) which hang

lower than

inches?

YES NO N/A

•

d. free of any slopes or inclines greater than

a

foot rise in

feet?

~ ~ ------------------------~~~~~~~~~~~
e. free of any grating with openings of over

inches wide?

~

~

~ ~ ~~

7. Are walkways always well lighted?

8. Are provisions made to ensure that walkways are free of such hazards as ice, snow, leaves, or other debris on the day of election?
9. Are there signs which identify the accessible route of travel if that route is different from the primary route of travel to the building?

•

END OF CATEGORY II. PLEASE PROCEED TO NEXT CATEGORY.

•

Case 3:01-cv-01275-HLA-HTS Document 58 Filed 12/05/02 Page 102 of 133 PageiD 869

CATEGORY Ill:
RAMPS AND ELEVATORS ENTERING OR INSIDE THE BUILDING YES NO N/A
1. Are building stairs or steps which are over __ inches high (either at the entrance or between the entrance and the voting area) provided either with a ramp, with an elevator, or with an alternative means of unassisted pas. sage (such as a chairlift or an alternative route
. of travel)?

2. With regard to ramps:

a. Do all ramps have a slope no greater than

a rise of

foot in

feet?

b. Are ramps provided with non-slip surfaces?

----c- . -F- or-an-y - ra- mp-r- isin- g - m- ore-t- han-_-_ -----~~w~~~~~~~~~~ ~~·

inches or longer than __. inches or

~

~

longer than _ inches, is a handrail pro- ~

~

------v-ide-d?----------------~i~W~$AW~~rW~~~

d. Are handrails at least __ inches above

~ ~

~ ~

ramp surface?

~

~

------------------------~~iW~r~~~AW~lWiW~~~~~

e. Can handrails be gripped?

~

~

------------------------~~&~~~~~&~~~~-~

f. Are ramps and landing areas with drop-offs provided with at least a _ inch curb at the side to prevent slipping off the ramps?

•

g. If there is a door at the top of the ramp, is

there a level space of at least

feet

by

feet where a wheelchair can rest

while the door is opened?

Case 3:01-cv-01275-HLA-HTS Document 58 Filed 12/05/02 Page 103 of 133 PageiD 870

RAMPS AND ELEVATORS ENTERING OR INSIDE THE BUILDING (cont'd)

3. With regard to elevators (if elevators are the only accessible route):

YES NO N/A

•

a. Is the elevator cab at least __ feet by _ _ feet wide?

b. Do elevator doors provide at least __ inches clear width?

----c- . -A- re-el- ev- ato-r - co- ntr- ols-le- ss-th-an-_-_ -- in- che-s-~~w~~~~~~~~~a~~

high (i.e. can a person in a chair operate ~

~

the controls)?

~

~

----d-. -A-re -co-ntr-ol-pa-ne-ls-m-ark-ed-w-ith-ra-ise-d-le-t- -Y~~ ~~~~~~~AW~~~

------te-rin-g?----------------J~z~~;'//~. $~~~~5$$~~~~

e. Is the elevator in close proximity to the en- ~

~

trance of the building?

~

~

ZoupUD///QWH/H/U///@'//'/U/!//4=

.Av\

Case 3:01-cv-01275-HLA-HTS Document 58 Filed 12/05/02 Page 104 of 133 PageiD 8l1

.--~ CATEGORY IV:
/ .\Y OTHER ARCHITECTURAL FEATURES
1. With regard to doors along the route of travel:

YES NO N/A

a. Do all doors have an opening which clears at least inches wide?

b. Are all door thresholds less than

inch

high?

-------------------------~~~~~~m~~~~

c. Are all doors equiped with either arch or

~ ~

~ ~

lever-type handles, pushplates, or auto-

~

~

matic openers (so that twisting a doorknob ~

~

is not required}?

~

~

------------------------~~~$$~~~~~$~~z

d. Where automatic doors are used, does the ~~

~ ~

door remain open at least _ seconds? ~

~

------------------------~~$~$$~$$~

e. Are glass doors marked with safety seals? ~~

~ ~

2. With regard to stairs along the route:

~z ~

~

~ ~

~

----ab.-. -DDoo-ss-ttaaii-rrss -hhaa-vvee-nhoa-nn-d-srlaip-ilss-uart-falec-aes?-t -----~~~~~~~~~~~~$~~$~z~~z~~z

_

inches above step level?

~

,

~

------------------------J~~,,.$~AI P~$~~~~~

:z . c. Can handrails be gripped?

~

.

~

------------------------~&4W~~I ~~~~~~~3~

d. Do all steps have risers (the little vertical

walls at the back of each step)?

'

.

----------------------------~-------

e. Do all steps have tread areas at least

__ inches deep?

C::tS§ 3.0 1-CV-0 1275-ALA-A IS Document 58 Hied 12705702 Page 105 off33 PageiD 872

OTHER ARCHITECTURAL FEATURES (cont'd)

YES NO N/A

•

f. Are all steps less than __ inches in height?

g. Are stairs well lit?

h. Are stairs free of obstacles?

3. With regard to corridors along the route:

a. Is the corridor at least inches wide?

------------------------~~~~~~~~~~~

b. Is the corridor free of obstacles or protru- ~~

~ ~

sions (such as boxes, water fountains,

~

~

etc.) which extend more than __ inches ~

~

from the wall?

~

~

------------------------~~ &~~~~~~~~~~~

c. Is there sufficient lighting at all points along the route?

------------------------~~~~~~~~~~~

d. Is there a seating or rest area in any corri- ~

~

dor longer than

feet?

~

~

------------------------~ ~~~~~~~~%~'"~

e. Does the corridor have a non-slip surface? ~~

~ ~

------------------------~~~$~$~$$$~~.~ ..~

f. Are all rugs and mats securely fastened?
.

~ ~

~ ~

~~HH//.(//H/r//U/#////A"~'///H//H)~a

.'.!

END OF CATEGORY IV.
PLEASE PROCEED TO NEXT CATEGORY.

Case 3:01-cv-01275-HLA-HTS Document 58 Filed 12/05/02 Page 106 of 133 PageiD 873

CATEGORY V:
FEATURES WITHIN THE VOTING AREA

YES NO N/A

""!

1. · Are instructions for voting printed in _ _

point or larger type in simple language, ·and

pl_ainly displayed?

-
=

2. Is there sufficient unobstructed space for the

reasonable movement of voters in wheelchairs?

3. Can all necessary parts of the voting equipment be reached by a person seated in a chair or, at least, is an alternative means of casting a ballot provided?

4. Are magnifying devices available for those who request them?

5. Is there adequate lighting in the voting area?

6. Is seating available for elderly or handicapped . voters awaiting their turn to vote?

END OF CATEGORY V:

Case 3:01-cv-01275-HLA-HTS Document 58 Filed 12/05/02 Page 107 of 133 PageiD 874

OTHER REASONS FOR INACCESSIBILITY (Describe):

•

PLEASE COMPLETE THE SUMMARY OF ACCESSIBILITY ON BACK

3:01-cv-01275-HLA-HTS Document 58 Filed 12/05/02 Page 108 of 133 PageiD 875

SUMMARY OF ACCESSIBILITY BY CATEGORIES

Please review the responses within each category on the previous pages and indicate below whether each category is:
• INACCESSIBLE {if there is a "NO" response in any unshaded box in the category)
• ACCESSIBILE BUT INCONVENIENT.(if all "NO" responses in the category are only in shaded boxes and all the responses in the unshaded boxes are either "YES" or "N/A".)
• FULLY ACCESSIBSLE (if all responses in the category are either "YES" or "N/A")

Category

Inaccessible Accessible

Fully

But

Accessible

Inconvenient

I. Parking

l

~

II. Walkways or pathways to building

Ill. Ramps and elevators entering or inside of the building

IV. Other architectural features

V. Voting area

VI. Other

OVERALL DETERMINATION OF POLLING PLACE ACCESSIBILITY (mark one box only)
If one or more of the categories above is marked
"INACCESSIBLE", then the polling place is ............................ INACCESSIBLE 0
If no category is marked "INACCESSIBLE" but one or more is marked "ACCESSIBLE BUT INCONVENIENT
then the polling plac.~ is ....................... ACCESSIBLE BUT INCONVENIENT 0
If all categories above are marked "FULLY ACCESSIBLE", then the polling place is ....................... FULLY AtCESSIBLE 0

DISPOSITION OF INACCESSIBLE POLLING PLACE
I
If the polling place is INACCESSIBLE a. Has an alternative accessible facility been sought? b. Are permanent or temporary alteration~ planned to render the
polling place accessible in the coming general election?

Yes No
0 0
0 0

Case 3:01-cv-01275-HLA-HTS Document 58 Filed 12/05/02 Page 109 of 133 PageiD 876

Appendix C

•

OFFIC£ OF lH£ CHAIRMAN

FEDERAL ELECTION COMMISSION
WASHINGTON, D.C. 1046)
October 7, 1991

The Bonora~le lob Livingston United States House of Representatives Washington, D.C. 20515
Dear Representative Livingston:
The purpose of this letter is to advise you of this Comaission'a understanding of the relationship between the Voting Acceaaibilit7 for the Blderly and Handicapped Act (VAA) of 198C and the Americana with Disabilities Act (ADA) of 1990.
Aa 7ou know, the Pedera~ E~ection Commission IFEC) has certain duties and responsibilities both under the Federal
Blection Caapaign Act (2 u.s.c. Cll(a) (10)) and under the VAA (42 u.s.c. 1973ee-1). rursuant to these obligations, we have
received over the past few weeks a number of questions from State and local election officials regarding the impact of Title II of the ADA on the requirements of the VAA. Moreover, 7ou will recall that in the May lC, 1991 hearing on the VAA held before the House Subco. .ittee on Blectiona, you requested of this Coaaiaaion. •Bither nov or for the record. would you state your understanding of bow these two Acta interrelate?" This letter, then, responds to that request.
The questions coaing to us address four general issues:
o the appropriate standards to use in deteraining the accessibility of existing physical facilities (with special reference to polling places)
o the extent to which individual instances of inaccessible polling places or registration sites •ight be actionable under the ADA
o the uature of the auxili&r7 aida required for the c!b&blec!, and
o the application of the-self-evaluation requirements iapoae4 on public entitiea b7 the ADA.
In exaaining these iaaues, tbia Coaaiaaion has read with inter•at the Depart•ent of Juatice CDOJ) regulations (28 CFR Part 35) aDd has reached the followiDg conclusions.

46

•

Case 3:01-cv-01275-HLA-HTS Document 58 Filed 12/05/02 Page 110 of 133 PageiD 877
o Xtea 1: The appropriate atandar4a to use in determining the accessibility of existing physical facilities.
Subsection J(a) of the VAA (42 u.s.c 1973ee-1) requires, essentially, that all polling places for Federal elections be accessible to elderly and handicapped voters. Section 8 of the VAA (42 u.s.c. 1973ee-6) further defines •accessible• to mean •accessible to handicapped and elderly individuals for the purpose of v·oting or registration, as 4eterained under guidelines established by the chief election officer of the State involved.·
At the specific request of the House Subcommittee on Blectiona in its October 6, 1917 hearing on the VAA, this co. .ission (in consultation with the Coalition for Voter Accessibility and the National Association of Secretaries of State) recoMmended a set of polling place accessibility criteria in order to assist the chief election officers of the States in developing their accessibility guidelines. These criteria have subsequently been adopted by approxiaately 40 of the States.
Subsection 35.151(c) of the DOJ regulations offers at least two alternative seta of accessibility criteria for New Construction and Alterations -- eitber tbe Uniform Federal Accessibility Standards (UFASI or elae the Americans with Disabilities Act Accessibility ~uidelines for Buildings and Facilities (ADAAG). Iaportantly, however, this section further states tbat •Departures from particular requirements of either standard by the use of other aethoda shall be permitted when it is clearly evident that equivalent ·access to the facility or part of the facility is thereby provided.•
Section 35.150 of those regulations provides no parallel guidance with respect to physical accessibility criteria for Bxistiug Facilities.
Yet,even if tbe standards tor new constructions suggested in SUbsection 35.151(c) apply equally to existing facilities, it is tbis Coaaission's understanding tbat any polling place accessibility guidelines established by the chief election officer of a State would satisfy tbt rtquireaents of tbe APA if $bty elearly provide •equiyalen~ aesc•• t9 the faeility.•
further, it is our understanding-that tb• polling place
agcessibility criteria recomaen4td by tbis Copaitsion, because it ia clearly evident that they would proyide equiyalent access to
47

---
Case 3:01-cv-01275-HLA-HTS Document 58 Filed 12/05/02 Page 111 of 133 PageiD 878
•

the facility. therefore aatisfy the requirements of the ADA Rroyided that the particular aeatures left blapk on the form are not leas than the standards set forth in the UFAS or APAAG ttlndardt
o Xtaa 2: The extent to whish individual instances of inaccettible polling places or regittratlon titea might be actionable under the ADA.
Subaection J(b) of the VAA (42 u.s.c. l973ee-l) provides for
certain exceptions to the general requirement of ensuring that
All polling places for Federal elections be accessible. These
exceptions are: (1) in the cate of an emergency, 11 determined by the chief election officer of the State: or (2) if the chief election officer of the State-tAl determine• that all potential polling places have been turveyed and no tush accessible place is available, nor is the political subdivision able to make one temporarily acce•tible, in the area involved: and (B) aaaures that any handicapped or elderly voter a11igned to an inaccessible polling place, upon advance request of 1uch voter (pursuant to procedure• establithtd by the chief election officer of the State)-(i) will be astigned to an accessible polling place. or (iil will be provided with an alternative means for catting a ballot on the day of the election.
At the same time, Section 4 of the VAA (42 u.s.c. 1973ee-2)
r~ir•• that: (a) Bach State or political tubdivition reeponaible for regi1tration for Federal elections shall provide a reasonable number of acceatible permanent registration facilities. (b) Subsection (a) does not apply to any State that bas in effect a system that provides an opportunity for each potential voter to register by aail or at the residence of such voter.
48

• •

Case 3:01-cv-01275-HLA-HTS Document 58 Filed 12/05/02 Page 112 of 133 PageiD 879
In reviewing the DOJ regulations, we note that the exceptions and procedures provided for in the VAA conform nicely to the concept of •program accessibility• enunciated in the preamble to Section 35.150. Moreover, we note that Subsection 35.150(a) of the regulations provides that:
A public entity shall operate each service, program, or activity so that the service. progr.., or activity, vben viewed in its entirety (emphasis added], is readily accessible to and usable by individuals with disabilities. This paragraph does not--
(1) Necessarily require e public entity to make each of itt exi1ting facilities [emphasis added) accessible to and usable by individuals with disabilities.
Accordingly, it is this Coaaission's understanding that ~ 1D1 baa the effect of expanding the requirements of the VAA to epcoppasa pollipq Places and registration sites in all. rather than 1uwt Federal. electiont.
Further, it iw our understanding that individual instances of ipaccetsibla polling place• or reqiwtration sites are not in and of themselves actionable under the ADA proyided that: <a> tbwy rtwult from tht exception• encompawted by Subsection Jlbl
and Section i of the YAA· (b) they are accompanied by the
alternative procedures provi4td for by Subsection J(bl and
Stction j of the YAA· and lcl they are not part of an overall
pattern pr practice of diacrimipation against disabled persons in tbe registration or voting process.
In a ralated aatter involviDg liability, we note that Suhaection l5.150(d)(2) of the regulations aaaigna responwibility for •providing curb reaps or other aloped areas where pedestriaD walks eros• curbs• to that public eDtitr which •baa respoDs~ilitr or authority over atreets, roads, or walkways."
It is this Coamiwsion'a understanding, than, that although
surb ramp• lrl '" ••••ntial eriteriqn in determining tht
aeetasibility of a polling or registration facilitY· election official• !Jbo do not baye authority ovar •treets. roads. or
waltwaywl cannot. under the ADA· -be held legally accountable Cor
failipq to prgyide tbe• (and that any legal action under the ADA inyglyipq surb r••p• sbgul4 ip•\•14 be direeted to the pyblic entity that hat au~bqrity qytr tbtal.
49

Case 3:01-cv-01275-HLA-HTS Document 58 Filed 12/05/02 Page 113 of 133 PageiD 880
•

o Xtea 3: The natura of the auxiliarr aida required for the diaabled.
Subsection 5(a) of the VAA (42 U.S.C 1973ee-3) requires that:
Each State shall aaka available registration and voting aids for Federal elections for handicapped and elderly individuals, including --
(1) instructions, printed in large type, conspicuously displayed at each peraanent registration facility and each polling place; and
(2) information by telecommunications devices for the deaf.
Section 208 of the Voting Rights Act (C2 u.s.c 197laa-6)
requires that: Any voter who requires assistance to vote by reason of blindness, disability, or inabilitr to read or write may be given assistance by a person of the voter's choice, other than the voter's eaployer or agent of that employer or officer or agent of the voter's union. Section 35.161 of the DOJ regulations requires
telecommunication devices (TDD'a) for the hearing or speech iapaired while Subsection 35.160(b) states that:
(1) A public entity shall furnish appropriate auxiliary aids and services where neceaaarr to afford an individual with a disabilitr an equal opportunity to participate in, and enjor the benefits of, a service, prograa, or activity conducted b7 a public entity.
(2) In deteraining what type of auxiliary aid and service ia necessary, a public entity shall give priaary
.1 consideration to the requests of the individual. Subsection l5.160(b) is conditioned, however, by Section 35.135, which excludes purelr personal devices and services, and by Section 35.164, which excludes an7 action that a public entity can demonstrate •wou14 re•ult in a fundaaental alteration in the nature of a service, prograa, or•ctivity or in undue financial and adainistrative burdens.•
50

• •

Case 3:01-cv-01275-HLA-HTS Document 58 Filed 12/05/02 Page 114 of 133 PageiD 881

Section 35.164 further provides that the head of the public
entity (or a designee) carries the responsibility of proving any such burden in a written stateaent. And even so, it provides that:

If an action required to coaply with this subpart would result in aucb an alteration or such burdens. a public
entity shall take any other action that would not result in aucb an alteration or such burdens but would nevertheless ensure that, to the aaxiaua extent possible, individuals with disabilities receive the benefits or services provided
by the public entity.

These things taken together. it is this Commission's
understanding that meeting the requirement• of the YAh· of the

pplling place acceasibilitr criteria recommended by this

Cowaission. apd of Section 208 of the Voting Rlqbts Act IYRAJ

would satisfy the requireaents of tht ApA with regard tq the

cowaunieation needs of the bearing iapairtd. of the visually

iwpairad. and. tq sqae txtent. of the totally blind. With regard

Th••• to the totally blind. however. eltction offices must now prqvide

additional auxiliary aervice1.

seryi~es need not

necessarily inglude proyidinq taped. reeorded. or braille

ballqta. registratipn fo;ms. or D\htr public records or documents

it th• head oC the election office has determined in writing that

tueh seryices would constitute an undue ad•inistratiye or

finapcial burden. But seryiees pyst include. at a ainiaum.

effectiye meant of providing acceas tp the election process sueb

as proyi4inq someone qualified to read and to help in the

epaplptiqn of the registration fprm. to rpad and to help in the

cpmpletiop of the ballot (should the blipd in4iyidual not rtguest

the attistanee of anpther yoder Seqtion 201 of the y&Al and to

read qtbtr publiq doeyaenta.

o Xt...~: The application of tbe self-evaluation requirements iapofe4 ·on public entities b7 the ADA.
Subsection 3(c)(1) of tbe VAA (&2 u.s.c. 1973ee-1l provides
that:
eaeh State shall report to-the Ftderal !leetion Commission. in a aancer to be deterained b7 the Commi•aion, the number of acet11iblt and inacetlsible polling places in sueh State on the date of the precading gentral Ptdtral ele~tion, and the reaaons for any inatance of inaccessibility.

51

Case 3:01-cv-01275-HLA-HTS Document 58 Filed 12/05/02 Page 115 of 133 PageiD 882
•

In practice, this requireaent is aet by local election officials surveying their polling places on the basis of accessibility criteria recom.ended either by this Comaission or by the chief election officer of the State.
Subsection 35.105(&) of the DOJ regulations states that:
A public entity shall, within one year of the effective date of this part, evaluate ita current services, policies, and practices, and the effect thereof, that do not or may not aeet the requirements of this part and, to the extent aodification of any such services, policies, and practices is required, the public entity shall proceed to make the necessary modifications.
It is tbia co. .iasion'a understanding that (11 such a self-
eya1uatlqn go tba part qf lgsel •l•stian gffises extend• tq an
evaluation of polling plaqes. but that (2) a survey of pollipq pl•s•• pur1uapt tq the rtquir•••nt• qf the YAA and basad on the criteria resomaepded by tbit coamittion would satisfy at least that atpect of the AQA requirement. Thp ADA simply expands sych stlf-pyaluation to ipclude the septral offiqe and any other outlying or satellite offlcta or reqittration facilities.

o %tta 5: Miscellaneous Issues

(A) With regard to providing public notice, Subsection Sic) of the VAA <•2 u.s.c. 1913ee-31 requires that:

~e Chief election officer of each State shall provide

public notice, calculated to rtach tlderly and handicapped

Yoters, of the avallabilit~ of aids under this section,

aaaistanc 1965 (42

eu.usn.cd.er1S9e7clatiao-n6)2, 0a1nodf

the Voting Rights the procedures for

Act of voting

by

ab~tntee ballot, not later than general public notice of

reoi•tration and voting is provided.

Concoaltantly, Section 35.106 of the DOJ regulations states that:

A public entity shall aaka available to applicents, participant!, beneficiarie~ and other interested pertons inforaation regarding the provisions of this part and its applicability to the services, programs, or activities of the pUblic entity, and aake •ucb inforaation availablt to

52

Case 3:01-cv-01275-HLA-HTS Document 58 Filed 12/05/02 Page 116 of 133 PageiD 883

... '
i
, I

thea ~ such aanner as tha head of tba entity finds necessary to apprise such persona of the protections against diacriaination assured thea by the Act and this part. Subsection 3S.163(a) states that: A public entity shall ensure that interested persons, including persona with impaired vision or bearing, can obtain inforaation as to the existence and location of accessible services, activities, and facilities. It is this Commission's understanding that the public notice requirements of the ADA would be satisfied by the incorporation of sucb information into the public notices required by the V6A •
(I) With regard to signaga, we note tbat Subsection 35.163(b) of the D03 requlations states that:
A public entity shall provide sigaage at all inaccessible entrances to each of ita facilities, directing users to an accaaeibla entrance or to a location at which they can obtain inforaation about accessible facilities. The interDational srabol for accessibility shall be used at each accessible entrance of a facility. ly the saae token, itea 9 in category II of tbe polling place accessibility criteria reco. .ended by tbis co. .ission requires tbat there be •aion- which identify tbe accessible route of travel if that route of travel is different from the primary route of travel to the building.• It is tbis co. .iasion'a understanding tbat, with the addition of the interpationel symbol of accessibility at
IPSIIIihlt tptrlpGtl, t4htt!DSI tp lbt fiC ISRIIIibilftT eriteril
wgu14 lati1fy th• eiqnage rtqplr•••nt• gf ~be 'PA·
(C) With regard to special require. .nta iapoaec! br the ADJ. OD pul>lic entities that -ploy !50 or aore SH~r•ons, wa note that Subsection 35.10!5(c) of tbe DOJ regulations states that:
A public entity that eaplors 50 or aore persons shall, for at least three years following coapletion of the selfevaluation, aaintain on fila and aaka available for publie inspection:
53

?iss lQJ cu_m ji§-H' A-HI§ PRG!!T@gt 5§ Eiixd 1~765/6~ Page 11' of I33 Hi§@lb 884
•

(1) A list of the interested persons consulted; (2) A description of areas examined and any problems
identified; and (3) A description of any aodificstions made.
Section 35.107 of the regulations further requires that pUblic entities employing 50 or aore persons shall "designate at least one employee to coordinate it efforts to comply with and carry out it responsibilities under this part•, "shall aake available to all interested individuals the naae, office address, and telephone nuaber• of such designated employee, and "shall adopt and publish grievance procedures providing for prompt and equitable resolution of complaints alleging any action that would ba prohibited by this part.•
And finally, Subsection 35.150(d) (1) requires, in part, that:
In the event that structural changes to facilities will be undertaken to achieve program accessibility, a public entity that eaploys 50 or aore persona shall develop, within aix months of January 26, 1992, a transition plan setting forth the steps necessary to complete such changes.
and that such a plan must involve the participation of interested persons and be aade available to the public.
It is this co. .ission's understanding that while these
rtquiremtnts apply tO lpsal eltetiqn pffistp eaploylpq SO or more
ptrtgnw. •ueb taplpyeet dq po~. fgr ;h••• pgrpottl, inqlude parttiwt tepporary, pr ••••opal ••plpy••• IU£h as elestion day
wprktrt gr deputy rtgi•tr•xt.

o ltea .p: SWIIl&ry

Ia auaaary, it is this Co.aiasioa•s understanding that ~ ADA imposes th• follgrinq additional requirement! on eleetion offieitlt; 'l'bat.

(1) pqllinq pltetl and reqiatratiqn tittl now be ••a.

aee•••iblt ip all. ratbtr than 1uat federal. elestions

' " nott4 ip Item a>;

.

«•• (2) eleet\qp gfficet pqw prqyiOt ser~ain a44itipnal

auxlltarr ttryistt \Q ~h• hlin4

ppttd in Item 3>;

54

1ft\ ~
•

of Case 3:01-cv-01275-HLA-HTS Document 58 Filed 12/05/02 Page 118 133 Pagelb 885
CJ) loc1l eltction offices now extend their self-evaluation
tq inelu4e segtral offiet 11 vell as satellite fteilitita Cat ppted in Item 4);
f41 the inttrgatignal tyahql fqr accessibility be used at t1eb aqetstible entrance of a facility (as noted in
Itew !1; tad
(51 eltqtiog offices that eaplqy 50 or more persons now meet eertaip special requireaentw las noted in Item 5).
Vitb the addition pf these fiye wtaaurea. full compliance by State and local tltctiqn officials with the proyisions of the voting Acqessibility fqr the llderly apd BaD4iqapped Ast along with striqt adherenge to the acstltibility criteria recommended by the Federal llectign Commission would qonstitute their full egmplianqe with Title XI pf tht Altrigans with pisabilities Act. rprtber. any failure by Stat• pr local eleqtion qffieials to spaply fully with th• pro•isipnl of the YAA or with the FEC ascestibilitr criteria might bt tctionable under the AQA.
Ve hope this inforattion fully responds to your request. Should you have any other queationa re9ardin9 these aatters, please do not hesitate to contact us.
"rlf......
J~~en McGarry
Chairwan Federal llestion Coaaission
cc: Repre•entative Al Swift, Cbairaaft Rouse Subsoaaittee on llections John Vodatcb, Director Office on tbe Aaericans with Disabilities Act Departaent of Justice
55

Case 3:01-cv-01275-HLA-HTS Document 58 Filed 12/05/02 Page 119 of 133 PageiD 886

APPENDIX D

National Disability Organizations The Paralyzed Veterans ofAmerica 80118th Street, NW Washington, DC 20006 (202) 872-1300
United Cerebral PalsyAssociations 1660 L Street, Suite 700 Washington, D C 20036 (202) 776-0406
The National Easter Seal Society 70 East Lake Street Chicago,IL 60601 (312) 726-6200
The National Organization of Disability 910 16th Street, NW Suite 600 Washington, DC 20006 (202) 293-1960
National Institute for Disability and Rehabilitative Research U.S. Department of Education 400 Maryland Avenue, SW Washington, DC 20202 (202) 732-1134
American Foundation for the Blind 15 West 16th Street New York, NY 10011 (212) 620-2000
National Rehabilitation Association 633 South Washington Street Alexandria, VA 22314 (703) 386--0850
National Multiple Sclerosis Society 205 East 42nd Street New York, NY 10017 (212) 986-3240

Muscular DystrophyAssociation 810 Seventh Avenue New York, NY 10019 (212) 586-0808
National Head Injury Foundation P.O. Box 567 Framingham, MA 01701 (617) 879-7473

56

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0
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Case 3:01-cv-0127~-~LA-~ i!:l i:locumeni gg ~11e8 r~~mg;~ ~age 1Qd of 1§§ Pagelb §§/

APPENDIX E

Terms and Descriptions
ADA: These initials refer to the Americans with DisabilitiesAct, a Federal civil rights law enacted in 1990. The law extends civil rights protections

Congenital disability: A disability that has existed since birth. Do not use the term "birth defect;" the word "defect" is not a synonym of "disability."

to persons with disabilities in employment, transportation, public accommodations, state and local services, and telecommunications.

Deafness/Hard of hearing: "Deafness" refers to a total loss of hearing. "Hard of hearing" refers to partial hearing loss and a range of hear-

. ing disabilities from slight to severe. People with Accessibility: This term refers to aspects or el- hearing impairments sometimes use American ements of the design, construetion, or operation Sign Language (ASL), a visual gestural language. ofa facility that are intended to make the perfor-

mance of basic activities easier and safer for as many people as possible, including those with disabilities. Accessible elements can be special provisions for wheelchair users such as a ramp or different provisions for a spectator who is deaf
such as a TDD telephone.

Developmental disability: Any mental or physical disability manifested before the age of 22 that may continue indefinitely and result in substantial limitation in three or more ofthe following life activities:
- selfcare

Amputation: Surgery resulting in a missing body part such as an arm, leg, or hand.
(fAAutism: Autism is a developmental disability
\Y that significantly affects the way in which a per-

- receptive and expressive language learning
- mobility - self-direction - independent living

son learns to communicate and develop social - economic sufficiency

relationships.

Auxiliary aids and services: This ADA phrase refers to technologies or operational procedures that facilitate effective communication. Examples of auxiliary aids and services are assistive listening devices for individuals who are hard-ofhearing, sign language interpreters for individuals who are deaf, and descriptive services for individuals who are blind.

Disability: A condition caused by accident, trauma, genetics or disease which may limit a person's mobility, hearing, vision, speech or men. tal function. Some people have one or more disabilities
Epilepsy: Umbrella term for various disorders marked by disturbed electrical rhythms of the central nervous system and typically manifested by seizures-involuntary muscular contractions.

Blindness/VISion impairment: "Blindness" refers to a total loss ofvision. "Vision impairment" refers to partial vision, which may also be correctly called partial sight.

Handicap: A physical or attitudinal constraint that is imposed upon a person, regardless of whether or not that person has a disability. Webster's Ninth New Collegiate Dictionary de-

Cerebral palsy: Umbrella term for a group of fines handicap as "to put to a disadvantage."

disabling conditions resulting from central nervous system damage. Do not assume that a person with cerebral palsy also a mental retarda-

Learning disability: A disorder in one or more of the basic psychological processes involved in understanding or in using spoken or written lan-

tion; the two disabilities do not necessarily or guage, which may affect one's ability to listen,

~ • typically occur together.

think, speak, read, write, spell, or do mathemati-

57

~!::-

boco1 1ie1 il 58 hied I2105/02 Page 121 of 1M+agelb 888

cal calculations. The term includes such conditions as perceptual handicaps, brain injury, minimal brain disfunction, dyslexia, and developmental aphasia.
Mental Illness/Mental disorder: Disturbances of thinking, feeling and behaving that may be due to physical or psychological factors. Do not use terms such as "mentally deranged," "deviant" or "crazy." "Mental disorder" is a more comprehensive term that describes any of the recognizable forms of mental illness or severe mental disorders. These specific forms include "schizophrenia," "psychosis," "mania," or "depression." Such terms have well-defined clinical meaning and should not be used casually. Also, people are not "schizophrenics," but should be described as persons with "schizophrenia."

pairment does not mean that there is a problem in hearing or in mental ability.
TDD: These initials refer to a Telecommunication Device for the Deaf (also called text telephones). These devices allow the transmission of written text over telephone lines through use of a special relay system. TDD units can be either portable equipment that are used in conjunction with conventional telephones or ·special keyboards that are built-in to a public pay telephone. Most venues will have TDD's available.

Paraplegia/Hemiplegia/Quadriplegia: "Paraplegia" refers to paralysis ofthe lower half of the body involving the partial or total loss of function of both legs. "Hemiplegia" refers to full or partial paralysis ofone side ofthe body caused by brain damage most often due to disease, trauma, or stroke. "Quadriplegia" refers to paralysis ofthe body involving partial or total loss of function in both arms and both legs.

•

Personal attendants: Attendants help people with some types of disabilities in a wide range of difficult activities including eating, mobility, and toileting. An attendant may be a paid professional employee or a friend or relative. Attendants should be allowed to accompany people with disabilities in order to provide necessary assistance in the polling booth.

Service animals: Seeing eye dogs and other animals that are used to assist individuals with disabilities are called service animals. These animals are permitted to accompany their owner into any polling place.

Speech impairment: Limited or difficult speech patterns. The presence of a speech im-

Case 3:01-cv-01275-HLA-HTS Document 58 Filed 12/05/02 Page 122 of -- 133 PageiD 889 =-~=-::~---

()
Other titles in our Innovations series in include:

• Voll: The Voting Authority Card

• Vol 2: Optical Scanning Technology for Purposes other than Ballot Counting

• Vol3:
• Vo14:
• Vo15: • Vol6: • Vol7:
()• Vol8: • Vol9:

Election Signature Retrieval Systems Using NCOA Files for Verifying Voter Registration Lists Agency Voter Registration Programs Motor Voter Registration Programs Mail Registration Programs Election Document Retention in an Age of High Technology Early Voting

• VollO: Ballot Security and Accountability

• Volll: All-Mail-Ballot Elections

• Vol12: The Electronic Transmission of Election Materials

• Vol13: Simplifying Election Forms and Materials

• Vo114: Recruiting Poll Workers

'IItle !J.Sl Jt 5 it! J 1121\ II Is DOUJilibiitSH I 11@[1 12Jd§IU2 Pbige IQ§ of)j§ Pagelb s§o

For information about other

•

Innovations in Election Administration

contact

Office of Election Administration Federal Election Commission 999 E. Street, N.W. Washington, D.C. 20463

Toll Free 800/424-9530 Direct 202/219-3670

•

FAX

202/219-8500

e-mail bkimberling@fec.gov

----------------------------------------

FEDERAL ELECTION COMMISSION WASHINGTON, DC 20463

Bulk Rate Mail Postage and Fees Paid

Official Business Penalty for Private

Federal Election Commission Permit Number G·31

Use,$300

•

Case 3:01-cv-01275-HLA-HTS Document 58 Filed 12/05/02 Page 124 of 133 PageiD 891
4

CA§th.a:m-.cvt~aliDN~fi"l~f'El~OO!flent 58 Filed 12/05/02 Page 125 of 133 PagetQ~of9

Secretary's Select Task Force on Voting Accessibility
Minutes of September 10,2001 meeting Tallahassee, Florida
The Organizational meeting of the Secretary of State's Select Task Force on Voting Accessibility was held in Room 412, Knott Building, Tallahassee, Florida, on September 10, 2001.
All members were present, except: Lyn Bodiford, representing AARPFlorida, who sent Jeff Johnson in her place, Senator Manny Dawson, and Gloria Mills.
Following a self-introduction of the members, many of whom thanked Secretary Harris for the creation of this Task Force, Assistant Secretary of State, David Mann, welcomed the members and thanked them on behalf of the Secretary for their willingness to serve. The Co-Chairmen, Senator Richard Mitchell and Representative Larry Crow, introduced the staff director, Fred Dudley and staff secretary, Ginger Simmons.
The staff director then made presentations to the members regarding the Ethics laws, and the requirements for both public records and public meetings. Also, members were given copies of the reimbursement vouchers, with a written explanation of allowable charges, and a request to complete, sign and turn in to Ms. Simmons at the end of each meeting.
The members reviewed and approved the "purposes" of the Task Force, as follows:
1. To ascertain the obstacles persons with disabilities face in voting in Florida's elections.
2. To develop and implement solutions for overcoming these obstacles.
3. To devise a mandatory training program for all election officials and poll workers, which includes instruction froin persons with disabilities.
4. To propose a funding mechanism for the estimated costs association with implementation and training.
Julie Shaw made a written and oral presentation regarding the various legal requirements applicable to disabled Americans, as follows:
The Rehabilitation Act of 1973 - requires that all federal grants and programs or entities that receive federal funding, comply with physical, program and service accessability. It is currently an estimated 20% of people with disabilities who are LESS LIKELY to vote, when compared to the general population, and another 10% who are LESS LIKELY to register to vote due to lack of accessability. There are presently 33.7 million Americans with disabilities of voting age, and if all polling sites were accessible, an additional5-10 million of these disabled would vote.
1984 Voter Acces~ibilities For_ the ElderlY. and HandicaP-P-ed Act - for the
first time required that all polling places be physically accessible, or moved to another location if not made temporanly accessible. Alternative voting,

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such as by absentee ballot or by curb-side voting, were authorized.
1992 Final Re.port on Compliance - indicated that only 86% of polling places were physically accessible to voters with disabilities. However, the accuracy of this report has been seriously questioned, with independent surveys and court cases suggesting that only about 60% of all U.S. polling places do not pose significant accessibility problems.
1990 Americans with Disabilities Act ("ADA")- requires accessibility of all facilities, programs and services in all state and local governmental entities ("Title II"). It should be noted that "program" accessibility may be permitted in lieu of actual "facility" accessibility, so that accessibility to the entire building would not be required if accessibility were available to the to the areas were voting is conducted, and to the exit. Churches are exempt from the ADA, and the Florida Accessibility Code or buildings constructed since 1997, EXCEPT were they are used as polling places. Initial compliance lies with the local supervisors of elections.
Finally, Julie pointed out the need for accessibility at pre-elections activities, such as candidate forums, and public broadcasts, such as debates and interviews, all to better inform every voter, including those who have disabilities. In addition, she stressed that "we must not provide unequal opportunities," by which she explained that we should not create "different" or "separate" facilities or services for those with disabilities, nor discriminate in the procurement process.
Ms. Shaw concluded her presentation with some key recommendations, as follows:
1. Consider "alternative" methods of permitting voting to occur, such as large type ballots, use of TTY machines, audio ballots;
2. Trained volunteers to assist the disabled,
3. Distribution of "disability etiquette guidelines;"
4. Help to close the severe digital divide by increasing access of computer technology by those with disabilities.
5. Set up a minimum state standard for all polling places;
6. Defme an accessible piece of voting equipment and environment;
7. Identify and hold a single state elections official responsible for compliance with these new standards;
8. Design and implement poll worker education on disabled voters.
Steve Hardy questioned Julie on the current status of federal requirements for closed captioned television broadcast. Staff was directed to undertake a survey of Florida television stations to determine how each of them were progressing on upcoming compliance requirements for closed captioning. The federal deadline is 2006, with all televisions now having the capability.
Robert Miller pointed out that transportation to and from the polls in a timely fashion is another barrier to effective participation by disabled citizens in the voting process. David Evans agreed, and pointed out the need

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to increase state funding for the existing transportation program, such as that being sought by Senator Mitchell in Senate Bill 100 during the past legislative session.
Mr. Evans also sought clarification that a disabled voter, such as an elderly blind citizen who didn't want to use the latest technology could continue to have the right to request assistance at the polls, as in the past. The general consensus was that this right to assistance would be continued, regardless of other alternatives later employed to allow more secret and confidential voting controls.
Chris Wagner agreed that the transportation problem is a major obstacle for those with disabilities, as well as the need to have someone at each polling place to assist with questions regarding the equipment and the process. Mr. Miller stated that training of both poll workers and disabled persons is essential. Pam Dorwarth inquired about any present requirements for "sensitivity" training, and the consensus seemed to be that there are no such requirements at the present time.
Valerie Breen about the present job descriptions of poll workers. Teresa LaPore pointed out that Palm Beach County hires and trains approximately 4,000 poll workers in each election, and that such training there does include sensitivity training on the needs of disabled voters; she also referred to several accessibility and sensitivity training videos prepared by the state of North Carolina, which she has obtained permission to use them, and to share them with other Florida Supervisors of Elections.
Mr. Kracht questioned the likelihood that several days of sensitivity training will be given for a one-day job. Ms. Breen agreed, and suggested that we should review any existing training and sensitivity requirements before we propose additional ones. Ms. LaPore pointed out that the recent election law changes require six (6) hours of training spread throughout the year prior to the general election.
Michael Phillips pointed out that no one particular type of voting is going to meet the needs of every disabled voter, but that he thought Internet voting would allow more disabled citizens to vote.
Chairman Mitchell directed Mr. Dudley to survey Florida television stations regarding their willingness and ability to being closed captioning even prior to the 2006 deadline. Ms. Shaw pointed out how critical this capability would have been during a disaster like Hurricane Andrew when many disabled persons were unable to obtain safety and health information from their televisions. David Evans pointed out that, for the blind and visually impaired. failure of stations to read aloud the "number at the bottom of the screen" should be avoided, especially in disaster situations. Mr. Hardy pointed out that the current FCC requirements for closed captioning are merely voluntary prior to 2006, and not mandatory until that date.
Kristi Reid Bronson, a staff attorney with the State Division of Elections, made a presentation on state and federal election laws, a written copy of which is located in each member's Handbook under Tab 8. To Ms. Shaw's description of federal laws, she added the "Motor Voter" Act of 1993 (effective in 1995). Among other things, this act requires state funded programs, such as for welfare assistance, that are primarily engaged in providing services to persons with disabilities to also provide these same persons with the opportunity to register to vote. These program offices are required to provide not only the registration forms, but assistance in filling them out and forwarding them to the appropriate Supervisor of Elections.

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However, this law applied only to registration for federal elections only.
In 1994, Florida passed similar legislation for registration in state elections as well; the state law also contains a complaint process for anyone who believes that they have been aggrieved by any violation of the federal or state requirements. Such complaints are processed and monitored by the state Division of Elections, who act as mediators to resolve problems (as does the Office of Governor if the complaint is against the Elections Division). Requests for assistance is a part of both federal and state registration requirements.
Ms. Bronson also described section 101.715, Florida Statutes, regarding the accessibility of polling places, which includes minimum widths for doors, entrance and exists, handrails on stairs and ramps, and location of any barriers between the door and the voting booth itself. These requirements have been in the law since 1976, according to Ms. Bronson, and some of them (such as minimum door width of "29 inches" conflicts with the Florida Accessibility Code according to Ms. Shaw. Richard Labelle cited Article VI, Section 1 of the state constitution, and Ms. Bronson acknowledged that she was unaware of any cases or statutes that modifies or qualifies the right secured therein to a "direct and secret vote."
Jeff Johnson inquired if the definition of "disability" in the state elections code would include difficulty speaking or reading the English language, and Ms. Bronson said that it would not. Further, Mr. Dudley pointed out the technical difficulty of section 101.051, Florida Statues, regarding the need for an actual sworn statement from someone who needed assistance. Mr. Miller commented on the lack of uniform requirements for information regarding one's disabilities.
Next, Mr. Paul Craft, Chief of the Elections Division's Bureau of Voting Systems, described some his work over the past ten (10) years. He pointed out that, pursuant to section 101.5, Florida Statutes, no voting system may be used in the state, unless his office has first certified it. He described the certification program as an engineering evaluation which he claims is being used widely as one of the best in the country, with the following standards required for certification:
1. It has to tell what races are going to be voted on;
2. It has to tell how many candidates are in each race.
3. It has to explain the rules for voting (for example: vote for one, etc.).
4. It has to identify what candidates are in each race.
5. It has to allow the voter to select a candidate.
6. It has to allow the voter to review their choices, and modify their selections until the ballot is cast.
7. It has to allow for a write-in candidate, and for the edit of a write-in candidate;
8. It must have a definitive moment when the ballot is cast without further changes.
With the application of these standards, Mr. Craft claims that his bureau has

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already certified several new machines, one of which is actually certified with an audio ballot interface. HOWEVER, Mr. Craft DOES NOT HAVE ANY STANDARDS FOR ACCESSIDILITY. On the other hand, he agreed that he needs such standards, and asked our Task Force to develop same for use by his bureau.
Mr. Craft reported that there are currently two (2) MARSYMS systems used throughout the state at the present time: the Optechs Eagle (used in Clay, St. Johns, Escambia, and several other counties), whose manufacturer is currently working on a touch screen, and Global Elections (as is used in Leon County). Tech Company is also working on a touch screen certification. As a result, there should be at least three (3) units from major manufacturers to choose. In addition, he reported that a telecommunications company has already done a lot of work with voice recognition systems.
Mr. Labelle sympathized with Mr. Craft's evaluation tasks, and thanked him for this work, which also pointing out his agreement with Mr. Phillips' concern that there is not a "one-size-fits-all" solution, as has been the case in the past with punch card ballots.
Mr. Miller pointed out that, as with the transportation problems faced by many disabled voters which greatly varies from place to place, it is important to maximize the choices we have among different certified voting systems.
Mr. Kracht was also appreciative of Mr. Craft's difficult responsibilities, and likewise expressed his appreciation for the job being done. However, he expressed frustration about the failure or refusal of companies to bring new products forward for certification, and grave concern about the on-going acquisition of new voting equipment without first dealing with certification. Mr. Craft responded that he thought the market place was going to adapted rapidly now that the first touch screen technology has been certified, and that the real question is whether or not to place mandatory requirements on the market.
Ms. Grubb differed with Mr. Craft on her perception of the market place by claiming that many manufacturers have been intentionally withholding their "access" packages until their main products were first certified. She claims that these companies are "treating their access packages as step children." In this vain, Chairman Mitchell inquired of Mr. Craft about the adoption of a rule requiring an "access package" as part of the certification process. Mr. Craft was not opposed to that idea, but argued that a statutory mandate would be stronger, especially in light of the on-going certification process and the likelihood of legal challenges to such a rule. Chairman Mitchell countered that the statutory mandate would take longer, and that perhaps both a statute and a rule would be appropriate (to which Mr. Craft seemed to agree). Ms. Shaw p_ointed out the year-old Texas full accessibility statute, mandating the use of new voting equipment in every county.
Mr. Clay Roberts, Director of the Division of Elections, indicated to the Task Force that he was concerned about any mandates by rule alone, and urged the Task Force to also consider recommendation of a statutory change as well. At the same time, he indicated to the members that the department will proceed with a rule in this area.
Senator Sanderson pointed out that she and fellow Task Force member, Representative Dudley Goodlette, serve as the chairs of the respective legislative Elections committees, and might be able to fast-track such legislation. After further discussion m which several members expressed

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concern that all Supervisors of Elections need to be aware of this problem and the possible solution, it was agreed that Mr. Dudley would work with the respective committee staff directors and the chairs to formulate such a letter to be signed by both Senator Sanderson and Representative Goodlette.
(Editor's Note: Before this day was over, Mr. Dudley had scheduled such a meeting with Richard Hixon, Representative Goodlette's staff director of the House Rules Committee, for the following date at 2:00 p.m. The tragic circumstances of the following morning, Tuesday, September 11th, caused the meeting to be canceled when Governor Bush ordered an evacuation of the Capitol complex. However, in discussing this matter with Mr. Roberts later in the week, Mr. Dudley drafted and submitted a Memorandum for Secretary Harris' consideration and signature, a fmal mailed copy of which is found under Tab 11).
Mr. Evans expressed his belief that there is not something in all of these systems for every contingency, and that counties may well have to use several different types of voting equipment in order to meet all the needs. Mr. Dudley pointed out that some changes in current laws will be needed in order to "tally" all votes at each precinct unless different equipment can be interfaced in order to communicate with other equipment being used at the same location.
Chairman Mitchell directed the staff to arrange for a presentation by the various vendors of their products. Mr. Phillips asked Mr. Craft about the use of the Internet for voting. Mr. Craft responded that work on such a system has been underway since 1997, including a Department of Defense Internet voting project in the 2000 elections; however, he reported that the welldocumented fmdings are that there is no good way to secure the voter's choice once it leaves their computer; it may pick up a virus or script that would change the vote either before or after it left the computer.
At approximately 12:40 p.m., the members took a lunch break, reconvening at 1:50 p.m.
Mr. Doug Towne was recognized to make a presentation regarding the barriers to voting by those who are disabled. He frrst explained that, while he had been involved in the creation of this Task Force he was not serving as a member, because he had since been retained by one of the product vendors as a consultant. He identified some of the following "barriers" to voting accessibility:
1. To overcome attitudes by enforcing current laws and finding new laws and rules to assure accessibility.
2. Elimination of non-accessible polling places (perhaps with the use, in some cases, of absentee ballots).
3. Flexibility to substitute technology.
4. Inadequate transportation.
5. Systematic and social barriers based on perceptions about disabilities.
Chairman Mitchell lead the members in a discussion of "problems and solutions," with the following results:
Ms. Grubb: Expressed her pleasure at seeing the Task Force movmg to

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accomplish its mandate to assure accessibility in voting for all citizens, not as a "favor," but because it is the right thing to do. She pointed out that every single person will be touched by our successful efforts, whether due to their own disability brought on by accident, disease or aging, or due to the disability of someone they love.
Mr. Miller: Hope all of us have learned from today's discussions that there are many reasons for the lack of voting accessibility, such as inadequate transportation and insufficient use of close captioning.
Mr. Evans: He will propose to his local Transportation Disadvantaged Coordinating Council in Palm Beach County that they include voting access as part of its top priority on the same level as serious medical care.
Ms. LePore: Expressed her belief that all Supervisors of Elections are supportive of maximizing voting accessibility.
Ms. Dorwarth: Posed the question about the existence of any statutory mandate to survey the accessibility of each polling place (to which Ms. LePore indicated that these was no such requirement, and that such determination is done on a county-by-county basis).
Ms. Shaw: Creating such a survey should be one of the duties of this Task force.
Mr. Phillips: Also encouraged the use of an accessibility survey, including the use of the Internet as a viable option (referencing materials he has given to Mr. Dudley).
Mr. Miller: Recommended that we look strongly at some of the telephone technologies for convenience.
Mr. Evans: Also encouraged the use of telephone technology, especially in rural areas where transportation is also a major accessibility problem. In addition, he would like the Task Force to prepare a list of all the available technologies.
Mr. Labelle: Encouraged the proposed legislation and rule changes as having the greatest long-term impact, but is still concerned about the ongoing process around the state of counties continuing with the purchase of new voting equipment (citing to his own observation in Tampa). Also urged that the Task Force put Boards of County Commissioners "on notice" to use great caution in committing to purchase voting equipment which may later be determined NOT to be accessible. He recommended that we maximize input from manufacturers, including those out of the country, with "accessibility" and "security" being the two considerations (including the Internet). Finally, he suggested the use of a subcommittee to begin drafting legislation.
Mr. Kracht: Stressed his sense of urgency and immediacy to the issue of voting accessibility, especially as it relates to delivering a strong message to both Commissioners and Supervisors.
Ms. Dorwarth: Sought, and obtain, clarification of the current law, which prohibits the expenditure of funds to purchase voting equipment not yet certified. Also expressed concern about the apparent discrepancies in the various state laws dealing with accessibility standards (and recommending a subcommittee to look into that issue as well).

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Mr. Hardy: Expressed his concern about people with language problems, including speakers of languages other than English, and suggested pictures of the candidates be used on the ballots.
Mr. Miller: Pointed out that at least one voting system has been certified that is "accessible." being the touch screen product described by Mr. Craft.
Senator Sanderson: Offer to work with her House counterpart, Representative Goodlette, and Mr. Dudley, to draft a strong letter to Supervisors and Commissioners.
-Ms. Shaw: It might also be instructive for the Task Force to review the work on accessibility recently completed in Texas.
Representative Goodlette: Expressed his hope that all new purchase contracts would contain an "accessibility component." He also mentioned the possibility that some federal funds may become available for new purchases.
Mr. Evans: Discussed pending federal funding bills, and the required stipulation of "accessibility."
Ms. Shaw: We should look not only at the pending federal legislation, but the actions of other states, such as Washington, Missouri, Michigan and Texas, to "steal" their best ideas.
Chairman Mitchell: Inquired of Senator Sanderson and Representative Goodlette if their committee staffs might be able to obtain such information for us. (Off record indication was "yes.")
Ms. Sumlin: Agreed that taking ideas from the federal and other states' efforts was good, and encouraged us to prepare a list of accessibility standards as soon as possible.
Ms. Grubbs: She has talked with people in Texas, California and Georgia, who have already certified accessible equipment which has not yet been certified in Florida.
Chairman Mitchell then summarized a number of issues on which the Task Force has appeared to have reached consensus, as follows:
1. Transportation is a main problem or barrier for voting access.
2. Accessibility technology should include the use of Internet and telephones.
3. A determination of accessibility as to specific polling places may involve use of a survey.
4. Development of accessibility standards for certification of new voting equipment.
5. Require voting equipment of include an accessibility component.
The chairman concluded his remarks by observing the difficulty of the overriding factor of "funding."

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A discussion next ensued about the use of a web site for Task Force information, such as the minutes. The Chairs agreed to work something out with the Department of State for use of their website for all this information.
Representative Crow: Reviewed Mr. Labelle's suggestion for a subcommittee to begin drafting legislation, but agreed, in light of the sunshine law requirements for notice of all meetings, that any member with ideas along these lines should send them to Mr. Dudley. He also brought back up the idea of studying the accessibility work of the federal government and other states, and agreed that we could use the resources of the Senate and House committees for this purpose as well.
Ms. Dorwarth: Again raised the subject of possible discrepencies in state laws governing accessibility, and suggested that they be reviewed. Mr. Dudley agreed to do so.
Mr. Dudley then reviewed the other meeting dates and locations, including the switching of the Tampa meeting from October 29th to October 4th, and moving the West Palm meeting from October 4th to October 29th to facilitate the use of Ms. LaPore's new office complex. Several members expressed concerns about the upcoming meeting dates, but they are very finn in light of the efforts to get some legislation filed for consideration as soon as possible in advance of the next regular session which is due to commence on January 22, 2002.
A change in the time for starting the Orlando meeting to 9:00 a.m. was approved.
Finally, Mr. Dudley reviewed the proposed time frames for drafting and finalizing the Task Force's Report to Secretary Harris (November 12th), so that legislation could be flied shortly thereafter. Both chairs, Senate Mitchell and Representative Crow, have agreed to serve as the prime sponsors of each chamber's bill, and both Senator Sanderson and Representative Goodlette have indicated prompt action from their respective committees.
Ms. Shaw suggested that a better effort be made to advertise our meetings to the disabled community. Mr. Miller offered to do that for the upcoming meeting in Orlando.
Mr. Phillips requested that all e-mail from the staff be in Word format, and Mr. Dudley agreed to do so in the future (as his fmn is now switching over from Word Perfect to Word).
No further business appearing, the meeting as adjourned at approximately 3:45p.m.
Respectfully submitted, Fred R. Dudley

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 Case 3:01-cv-01275-HLA-HTS Document 96 Filed 04/14/03 Page 1 of 20 PageiD 1633
."'·-·· --;:uy

IN THE UNITED STATES DISTRICT COURT 1[11 ~~L'1 \ ll' A <f. 51
FOR THE MIDDLE DISTRICT OF FLORIDA JACKSONVILLE DNISION

)

American Association of People with

)

Disabilities, et al.,

)

)

Plaintiff

)

)

v.

)

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Glenda Hood, et al.,

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Civil Action No. 3:01-CV-1275-J-21TJC Dispositive Motion

MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT AGAINST DEFENDANT JOHN STAFFORD ON COUNT I
(ADA) OF THE AMENDED COMPLAINT

Plaintiffs respectfully submit this memorandum of law in support of their Motion for Summary Judgment Against Defendant John Stafford on Count I (ADA) of the Amended Complaint. As no genuine issue of material fact exists regarding whether Defendant Stafford has violated the ADA, Plaintiffs are entitled to judgment as a matter of law against Defendant Stafford on Count I.

I.

INTRODUCTION

Defendant Stafford acknowledges his duty to make Duval County's election system

readily accessible to all voters to the "maximum extent feasible." He does not dispute that he

has failed to do so. Indeed, he concedes that visually impaired voters and manually impaired

voters in Duval County do not vote in the same or similar manner as non-disabled voters and

face significant burdens based upon their disabilities. Mr. Stafford agrees that touch screen

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voting machinery is the "superior" way to address the needs of visually impaired and manually impaired voters. He acknowledges that such technology has a proven "track record" and has been successfully used in numerous other jurisdictions, including jurisdictions within Florida. To his credit, he offers no excuse for Duval County's failure to purchase this technology, and he agrees that disabled voters have a "legitimate complaint" about its failure to do so.
As "chief election officer" in the State of Florida (Fla. Stat § 97.012), former Secretary of State Katherine Harris summarized the problem in a single sentence:
When we relegate persons with disabilities to voting only with assistance or to voting by absentee ballot, we stigmatize their disability while causing them to doubt whether their vote was properly cast. (Harris Dep. at 80:25-82:1 and Exhibit 6 thereto as DOE 6792) (emphasis added). As Secretary Harris determined, it is the "ADA's mission [to] forcefully address[] the exclusion of scores of persons with disabilities from full and equal participation in elections." (/d. at 84:10-85:12 and Exhibit 7 thereto at DOE 0807) (emphasis added). Mr. Stafford concedes that the "ADA's mission" is failing in Duval County, and no genuine issue of material fact exists regarding whether the Duval County Voting System violates the ADA. Accordingly, Plaintiffs are entitled to judgment as a matter of law against Defendant Stafford on Count I of the Amended Complaint.
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U.

STATEMENT OF UNDISPUTED FACTS

A. Plaintiffs Are Qualified Individuals Under the ADA Plaintiffs each have physical impairments that substantially limit one or more of their major life activities so as to be qualified individuals with disabilities under the ADA. (See, e.g., Bowen Dep. at 12:9-12; O'Connor Dep. at 14:24-15:14; Bell Dep. at 12:9-21, 19:1-12.)1 PlaintiffBowen has been blind since birth due to glaucoma. (Bowen Dep. at 12:17-19, 19:14.) Plaintiff O'Connor lost his sight in 1991 due to Leber's hereditary optic neuropathy and is legally blind. (O'Connor Dep. at 14: 16-23.) Plaintiff Bell was born without arms or legs due to congenital quadrarhyteamelia. (Bell Dep. at 12:9-21.) Plaintiff, the Association of People With Disabilities, is comprised of individuals with visual impairments or manual impairments, and has members that are visually impaired voters and manually impaired voters in Duval County. (See, e.g. Dickson Dep. at 70:6-12, 70:17-71:8; Bowen Dep. at 6:26; Bell Dep. at 5: 19-6:5; O'Connor Dep. at 7:21-8:8.)2

1 All depositions and exhibits thereto cited herein have already been filed with the Court. (See, e.g., Plaintiffs' Notice of Filing Of Deposition Transcript Of John Lawton Stafford, Jr., In Further Support Of Their Opposition To Defendant Stafford's Motion to Dismiss Amended Complaint Or Alternatively For Summary Judgment; Plaintiffs' Notice Of Filing of Deposition Transcripts In Further Support Of Plaintiffs' Opposition To Defendant Stafford's' Motion To Dismiss Amended Complaint Or Alternatively For Summary Judgment And Plaintiffs' Opposition To Defendants Smith And Kast's Motion To Dismiss Amended Complaint Or Alternatively For Summary Judgment.)
2 The Court has previously acknowledged that there appears to be no dispute as to whether Plaintiffs are qualified individuals under the ADA. Am. Ass 'n. ofPeople with Disabilities v. Smith, 227 F. Supp. 2d 1276, 1290 (M.D. Fla. 2002). In this memorandum, the Court's decision will be cited as AAPD.
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B. Duval County Purchased a New Optical Scan Voting System on October 3, 2002
On October 3, 2002, Duval County entered into a contract with Diebold Election Systems, Inc. ("Diebold") to replace its punch card voting system with an optical scan voting system. (Stafford Dep. Ex. 19.) The optical scan system purchased by Duval County is a "completely new system," which involves no retrofitting or other modifications to the preexisting punch card voting equipment. (Stafford Dep. at 44:24- 45:18.)
Duval County voters with visual impairments or manual impairments cannot vote on optical scan voting systems in the same or similar manner as non-disabled voters vote. (See, e.g. Stafford Dep. at 54:10-55:12; Bell Dep. at 20:24-23:20; O'Connor Dep. at 13:25-14:15, 28:13-29:8; Bowen Dep. at 13:13-19; Dickson Dep. at 21:5-15.) To vote on the optical scan voting system, a voter fills in a bubble or otherwise marks a paper ballot with a pen or pencil, which is then fed through an optical scan ballot reader. (See, e.g., Cox Dep. at 33:5-17.) This requires sight and manual capability. (See, e.g., Bell Dep. at 20:24-23:20; O'Connor Dep. at 13:25-14:15, 28:13-29:8; Bowen Dep. at 13:13-19; Dickson Dep. at 21:5-15.) No auxiliary aids exist that would permit a visually or manually impaired voter to vote in the same or similar manner as non-disabled voters using an optical scan voting system. (Stafford Dep. at 79:25-80:6; Craft Dep. at 135:3-22.) Instead, such voters are "forced to rely on a third party to cast their votes." (Stafford Dep. at 42:22-43:2 (emphasis added).)
By purchasing an optical scan voting system, Duval County has imposed upon voters with visual impairments and manual impairments a voting process that is fundamentally different than the process by which non-disabled voters vote. As John Stafford, Duval County's Supervisor of Elections, and its Rule 30(b)(6) designee, admitted:
• "[T]he current optical scan system in place in Duval County requires visually or manually impaired voters to vote in a different manner than the way non-disabled voters vote in Duval County." In fact, he admitted that voters with visual
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impairments and voters with manual impairments vote in a "materially different" way than non-disabled voters vote in Duval County. (Stafford Dep. at 49: 15-22.)
• "[T]he current optical scan system in place in Duval County requires visually or manually impaired voters to vote in a more intrusive and less secret manner...than a non-disabled voter in Duval County." (Stafford Dep. at 50:11-16.)
• Visually impaired voters and manually impaired voters in Duval County must reveal their vote to a third party, and "a third party would see what [a voter with visual impairments or a voter with manual impairments is] voting. They have to tell them what they want them to vote for." (Stafford Dep. at 51:6-10.) In contrast, "a non-disabled voter in Duval County would not have to reveal his or her vote to a third party." (Stafford Dep. at 51: 16-20.)
• The risk exists for third parties to attempt to influence the votes of visually or manually impaired voters in Duval County. This "risk is not a risk generally faced by non-disabled voters in Duval County." (Stafford Dep. at 51:21-52:10.)3
• Attention is drawn to visually or manually impaired voters in Duval County when casting their votes that is not drawn to non-disabled voters. (Stafford Dep. at 52: 11-53:3.)
• Visually or manually impaired voters are delayed in placing their votes at polling places in Duval County, particularly if "they didn't bring someone with them" to assist them in voting. (Stafford Dep. at 53:4-20.)
• Visually impaired voters in Duval County are not able to confirm that their choices are properly reflected on an optical scan ballot - they must "put their trust in whoever is assisting them." Non-disabled voters in Duval County are able to confirm independently the accuracy of their ballots. (Stafford Dep. at 54:1756:7.)
3 The named Plaintiffs in this action have in fact experienced the material burdens to voting in Duval County as a result of their disabilities. (See, e.g., Bell Dep. at 13:11-14:12, 22:1124:9,25:9-27:19, 33:24-34:7; Bowen Dep. at 39:14-40:11; Bowen Decl. ~13; O'Connor Dep. at 20:4-21:17, 37:24-41:4. See also Harris Dep. at 41:3-44:20,46:1-47:3 ("my concern as raised by persons, for example, who are visually impaired, what they had told me was that they felt their civil rights violated or constitutional right in that they didn't have the ability to vote in secret. Because when they went to the polling location, if they didn't take a friend or relative, and they didn't get to vote in secret and couldn't even be certain that the vote cast was what they requested").)
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• Poll workers in Duval County have challenged the right of legally registered disabled voters to vote because the poll workers "didn't think [the disabled voters] were mentally competent, by their appearance." Similar situations have not occurred with respect to non-disabled voters in Duval County. (Stafford Dep. at 75: 13-79:6.)4
Because of these material differences, Mr. Stafford admitted that visually impaired voters and manually impaired voters in Duval County have a "legitimate complaint" about not being able to vote in the same or similar manner as non-disabled voters. (Stafford Dep. at 67:10-19.)
C. Duval County Could Have Purchased a Different Voting System That Is Accessible to Voters with Manual Impairments and Voters with Visual Impairments
Duval County did not have to purchase the Diebold optical scan voting system. The County could have purchased a voting system that uses touch screen voting equipment, which enables visually impaired voters and manually impaired voters to vote independently and secretly. Indeed, Mr. Stafford admitted that touch screen technology is the superior way to address the needs of visually impaired voters and manually impaired voters. (Stafford Dep. at 38:25-39:10.)5
A touch screen system is similar to an ATM machine, and enables a voter to select a candidate by pressing on the candidate's name on the screen. Auxiliary aids can be used with
4 Additional differences and related discrimination are imposed upon voters with manual impairments and voters with visual impairments as a result of Defendant Stafford's desire to place only three touch screen voting machines, if ever certified, in the Supervisor of Elections' office in downtown Jacksonville. See infra §II(E).
5 Mr. Stafford also admitted that "voting machinery technology is night-and-day different over the last ten years from roughly [1993] to present," such that "what was not feasible in terms of voting machinery in 1993 ... might be feasible today." (Stafford Dep. at 47: 15-18, 48:2-4.) This necessarily means that the 1993 DOJ informal opinion upon which the defendants rely is inapplicable today. See Plaintiffs' Consolidated Opposition to Defendants' Motions to Dismiss Or For Summary Judgment, at 13-14.
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these touch screen machines to make them accessible to visually impaired or manually impaired voters. An auxiliary audio component, which is often referred to as an audio ballot, assists visually impaired voters navigate through the ballot screens with pre-recorded instructions played through headphones. (Stafford Dep. at 56:20-25; Browning Dep. at 27:13, 43:11-44:11, 89:12-90:10.) Manually impaired voters can use a mouth stick or other device to press the screen.6 (Stafford Dep. at 57:9-16; Browning Dep. at 90:11-25.)
Touch screen voting systems with audio ballots have been certified in Florida since August 2001 -over a year before Duval County signed its contract with Diebold for the inaccessible optical scan voting system.7 For example, an Election Systems & Software ("ES&S") touch screen voting system equipped with an audio ballot was certified by the State of Florida on August 16, 2001. (Browning Ex. 7 (Craft email identifying certification ofES&S with audio); Stafford Dep. Ex. 18 (Aug. 20, 2001 ES&S press release received by Stafford).) Other touch screen systems with audio ballots, such as those manufactured by Sequoia, were certified by the State of Florida on June 17, 2002, August 7, 2002, August 21, 2002,and0ctober31,2002. (CraftDep.Exs.13, 14, 15, 16, 17,and 19.) Nolessthanseven touch screen voting systems with audio components have been certified by the State of Florida for use by Florida counties. (Craft Dep. Exs. 13, 14, 15, 16, 17, 19; Browning Dep.
6 "Sip and puff' devices and "jelly switches" can also accommodate voters with severe disabilities. (Kaufman Dep. at 45: 15-50:11). 7 Defendant Stafford's suggestion that the terms of the contract with Diebold were reached in principal in February 2002 is irrelevant as Duval County is legally obligated to make its new voting system accessible to the "maximum extent feasible." Moreover, February 2002 is six months after the State had certified a touch screen voting system with audio component. (See, e.g., Browning Ex. 7; Stafford Ex. 19.) Further, Mr. Stafford admitted that he continued to negotiate the terms of the contract until it was signed in October 2002, and that there are no legal barriers preventing Duval County from purchasing and using touch screen systems immediately. (Stafford Dep. at 95:4-19, 138:1-11.)
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Ex. 7.) Mr. Stafford admitted that he knew that these other touch screen machines with auxiliary components had already been certified at the time Duval County signed the contract with Diebold in October 2002. (Stafford Dep. at 88:24-89:2 (admitting "there were certified touch screen machines with auxiliary components prior to October 1, 2002"); 103:6-9 (admitting that "as of October 2002, Duval County had the option of purchasing, in Florida, either the ES&S or the [Sequoia] AVC Edge with the auxiliary components").)
Up until the contract was signed by Duval County with Diebold on October 3, 2002, Duval County could have negotiated its terms and procured accessible voting systems. (Stafford Dep. at 95:4-19.) Moreover, Mr. Stafford admitted that even after the contract was signed, Duval County could have purchased "the AVC Edge with the auxiliary component, the ES&S with auxiliary component, [gotten] Diebold certified, or [gotten] somebody else certified that has the accessibility component." (Stafford Dep. at 103:6-104:3.) There are no legal barriers preventing Duval County from purchasing and using touch screen systems immediately. (Stafford Dep. at 138: 1-11.) Yet, to date, Duval County has not purchased any voting technology that would enable manually or visually impaired voters in Duval County to vote in the same or similar manner as non-disabled voters in any certified election in Florida. (See, e.g., Stafford Dep. at 46:16-23,49:15-22, 54:10-55:12.)8
D. Touch Screen Technology Has A Proven Track Record Mr. Stafford admitted that touch screen voting systems have a proven track record in Florida. (Stafford Dep. at 83:10-12.) For example, Pasco County entered into a contract with ES&S for the purchase of touch screens with an auxiliary audio component in October 2001. (Browning Dep. 75:6-12, 77:22-78:3.) Pasco County purchased these ES&S touch screens,
8 Although Duval County has contracted for three touch screen machines, the County cannot use these machines in any election because they have not been certified by the Secretary of State. Fla. Stat. § 101.294 (2002).
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in part, because they "accommodate[] the sight impaired with audio assisted voting." (Browning Dep. at 72:22-73:21; Browning Dep. Ex. 9.) Pasco County purchased one ES&S touch screen with audio component for each polling place in Pasco County, and has used these accessible touch screens in three elections, including the September 2002 primary and November 2002 general election. (Browning Dep. at 78:6-22, 81:24-83: 11.) According to Kurt Browning, Supervisor of Elections in Pasco County, Pasco County's use of these ES&S voting machines has been a "huge success." (Browning Dep. at 83:12-84:3, 85:4-14, 86:187: 13; see also Browning Dep. Exs. 11 & 12.) In all, at least 29 counties have purchased and used touch screen voting systems since August 2001. (See "County Voting System Information," available at http://election.dos.state.fl.us/votemeth/systems/countysys.shtml.)
Touch screen technology has also been used successfully outside of Florida. The ES&S and Sequoia systems, which are certified in Florida, have been used in California and Texas. (Browning Dep. at 34:2-36: 14; see also Teal Dep. Ex. 6.) In 2002, Georgia installed touch screen voting equipment statewide. (Cox Dep. at 85:8-87: 14.) Georgia purchased touch screens with the auxiliary audio components, in part, "so that a disabled voter, a visually disabled voter could read the ballot and vote in secrecy." (Cox Dep. at 75: 17-23.) Cathy Cox, Secretary of State of Georgia, testified in her deposition that she could not "say enough good things about how well the election went and how pleased voters were with [touch screen] machines...." (Cox Dep. at 85:8-87:14.)
E. Duval County's Acquisition of Three Uncertified Touch Screen Machines Does Not Make Its Voting System Accessible to Voters with Manual Impairments or Voters with Visual Impairments
Duval County's contract provides the County with three Diebold touch screen voting machines that include an auxiliary audio component. (Stafford Dep. at 20:3-10 and Ex. 19 attached thereto.) However, Duval County cannot use these Diebold touch screen voting
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machines in a valid election because they have not been certified by the State of Florida. (Stafford Dep. at 20:3-10; Craft Dep. at 151:16-19.)9 Diebold withdrew its touch screen voting system from consideration for certification in the fall of 2002, and Paul Craft, Chief of the Bureau ofVoting System Certification, testified that, currently, no Diebold touch screen voting system is being reviewed by his office for possible certification. (Craft Dep. at 150:20-153:2; Craft Dep. Ex. 21.)
Even if these three Diebold touch screen machines were certified and used in Duval County, visually impaired voters and manually impaired voters still would not be able to vote in a manner that is the same or similar as the manner in which non-disabled voters vote in Duval County. Mr. Stafford testified that Duval County will place these three (3) machines at Election Headquarters in downtown Jacksonville. (Stafford Dep. at 60: 13-21.) To use these three (3) machines, visually impaired voters and manually impaired voters in Duval County- an estimated 40,000 voters -would be required to travel to Election Headquarters. (!d. at 60:22-61:1 0; see also Amended Cmplt. ~ 56.) Mr. Stafford himself does not know how long it takes to get around on disabled transit in Duval County, the largest land-area city in America, how reliable disabled transit is, nor "what the time commitment a visually or manually impaired voter has to make to travel from the outer regions of the county to the [Supervisor of Elections'] headquarters." (Stafford Dep. at 61:11-16, 65:21-66: 10.) Plaintiff Beth Bowen, who voted at the Office of Elections for the September 2002 primary, knows- it would take her, using disabled transit, a half a day (five hours) to go to the Office of Elections. (Declaration ofHarriet Elizabeth Bowen In Opposition to Defendant's Motion For Summary Judgment, submitted as Ex. 4 to Plaintiffs' Supplemental 56(f) Opposition To
9 It is a violation of Florida law for a County to purchase, lease, rent, or otherwise acquire any voting system not certified by the Florida State Division of Elections. Fla. Stat. §§101.292, 101.294, 101.295 (2002).
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Defendant Stafford's Motion To Dismiss Amended Complaint Or Alternatively For Summary Judgment (herein "Bowen Decl.") ~ 13; see also Bowen Dep. at 22:7-9.) By contrast, Mr. Stafford admitted that "a non-disabled voter in Duval County would not have to travel away from their neighborhood polling place to cast their vote." (Stafford Dep. at 61:710.)
F. Duval County Received Specific Requests to Provide Voting Equipment with Auxiliary Aids for Voters with Visual Impairments and Voters with Manual Impairments
Prior to October 3, 2002, Duval County received specific requests from disabled voters to provide touch screen voting machines with audio ballot components. (Stafford Dep. at 39:24-41 :22.) For example, several voters spoke with Mr. Stafford in his office and asked him to purchase touch screen voting machines. (/d.) Plaintiff Bowen and her husband, who is also blind, provided Mr. Stafford's office with information about accessible touch screen voting systems in January 2001. (/d.; Bowen Dep. at 60:4-61 :15.) Ms. Bowen presented this information "before he purchased the equipment. ..to make his office aware that when purchasing the equipment he should consider whether or not it could be made accessible." (Bowen Dep. at 61 :7-1 0; See also Bowen DecI. ~ 14.) The Duval County Election Reform Task Force, which held public hearings in the spring of2001, received similar requests. (See, e.g., Teal Dep. Ex. 16 (transcript of Election Reform Task Force Meeting held on AprilS, 2001); see also Teal Dep. Ex. 11 ("[s]ome of the issues the Task Force discovered which confronted voters on November 7, 2000 included the .. .inability for impaired voters to access the pools or accurately record their vote...").)
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III.

ARGUMENT

A. Applicable Law To be entitled to summary judgment on their ADA claim (Count I), Plaintiffs must demonstrate that there is no genuine issue of material fact regarding the following elements:
That [plaintiffs are] ... qualified individual[s] with a disability; (2) that [plaintiffs were] excluded from participation in or ... denied the benefits of the services, programs, or activities of a public entity or otherwise discriminated [against] by such entity; (3) by reason of such disability. AAPD v. Smith, 227 F. Supp. 2d at 1289 (quoting Shotz v. Cates, 256 F.3d 1077, 1079 (11th Cir. 2001)) (emphasis added; internal quotations omitted); see also 42 U.S.C. § 12132; 28 C.F.R. §35.130(a). Thus, there are two distinct ways in which a defendant can violate the ADA. First, a defendant violates the ADA by excluding a qualified individual with a disability from participation in a service, program, or activity of a public entity by reason of the disability. Second, a defendant violates the ADA by otherwise discriminating against a qualified individual with a disability by reason of the disability. There is no genuine issue of material fact that Defendant Stafford has violated the ADA in both respects. tO

B. Defendant Stafford Has Excluded Plaintiffs From Participation In The Program Of Voting

1. Program Exclusion Section 35.149 of the Code of Federal Regulations provides:

10 It is undisputed that Plaintiffs are qualified individuals with disabilities (see, e.g., Bowen Dep. at 12:9-12; O'Connor Dep. at 14:24-15:14; Bell Dep. at 12:9-21, 19:1-12), and that the defendants are public entities. (See, e.g., Stafford Dep. Ex. 19, at DUVAL 2235 and 2264; Kast Dep. at 18:13-15.) The Court has previously acknowledged that these issues do not appear to be in dispute. AAPD, 227 F. Supp. 2d at 1290. Nor could they be in dispute. See §II(A), supra.

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Except as otherwise provided in§ 35.150, no qualified individual with a disability shall, because a public entity's facilities are inaccessible to or unusable by individuals with disabilities, 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 public entity. (28 C.F.R. § 35.149 (2002) (emphasis added).) A "facility'' is defined as "all or any portion of ... equipment . ..." AAPD, 227 F. Supp. 2d at 1290 (quoting 28 C.F.R. § 35.1 04). As this Court has already held, voting machines are "equipment" within the meaning of the ADA. ld. at n.16. Therefore, if the voting machines used by Duval County are "inaccessible or unusable by individuals with disabilities," Defendant Stafford has violated the ADA. In evaluating Defendant Stafford's actions (or inaction), it is highly material that Duval County's optical scan voting system was an entirely new acquisition, made to replace the old punchcard voting system. (Stafford Dep. at 44:24-45: 18.) For this reason, its "accessibility'' is subject to a heightened legal standard: Alteration. Each facility or part of a facility altered by, on behalf of, or for the use of a public entity in a manner that affects or could affect the usability of the facility or part of the facility shall, to the maximum extent feasible, be altered in such manner that the altered portion of the facility is readily accessible to and usable by individuals with disabilities, if the alteration was commenced after January 26, 1992. AAPD, 227 F. Supp. 2d at 1290 (quoting 28 C.F.R. § 35.15l(b)) (emphasis added). To pass muster under the ADA, the new optical scan voting system acquired by Duval County in 2002 must be readily accessible to visually impaired or manually impaired voters to the "maximum extent feasible." Id. Indeed, Mr. Stafford admits that Duval County is "legally obligated to provide an accessible voting environment for every Duval County voter" that is
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accessible "to the maximum extent required by law." (Stafford Dep. at 31:5-11.) II There is no dispute that it is not.
As a Rule 30(b)(6) representative, Mr. Stafford admitted that the new optical scan voting system purchased and used by Duval County in 2002 is not readily accessible to visually impaired or manually impaired voters to the maximum extent feasible. Specifically, Duval County's new optical scan system requires visually impaired voters and manually impaired voters to vote in a materially different manner than the way non-disabled voters vote in Duval County. (Stafford Dep. at 49:15-22.) This is the current state of affairs in Duval County despite the undisputed fact that technology exists that would enable visually impaired or manually impaired voters in Duval County to vote in the same or similar manner as non-disabled voters. (Stafford Dep. at 56:20-25, 57:9-16; Craft Dep. at 128:8-130:4; Browning Dep. at 26:16-27:3,43:11-44:11, 89:12-90:25.) Mr. Stafford further conceded that there simply are no legal barriers preventing Duval County from purchasing and using fully accessible voting systems immediately. (Stafford Dep. at 95:4-19.) In light of these admissions, there is no genuine issue of material fact that the new voting "facilities" used by Duval County violate the ADA.I2
11 As Duval County has purchased an entirely new voting system, the concept of "reasonable accommodation" is not applicable to this case. Indeed, Nelson v. Miller, on which Defendant Stafford relied in filing its Motion to Dismiss the Amended Complaint, is inapplicable as it dealt with an existing voting system, and did not involve a situation where an entity procured an entirely new voting system. 170 F.3d 641, 644 (6th Cir. 1999). 12 Mr. Stafford also admitted that touch screen voting machines have a proven track record in Florida counties other than Duval County. (Stafford Dep. at 83:1 0-12; see also §II(D), supra.)
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2. Effective Communications It is also undisputed that Duval County has failed to provide "effective communications" to visually impaired voters and manually impaired voters. 28 C.F.R. § 35.160 provides:
(a) A public entity shall take appropriate steps to ensure that communications with applicants, participants, and members of the public with disabilities are as effective as communications with others. (b)(1) A public entity shall furnish appropriate auxiliary aids and services where necessary to afford an individual with a disability an equal opportunity to participate in, and enjoy the benefits of, a service, program, or activity conducted by a public entity. (2) In determining what type of auxiliary aid and service is necessary, a public entity shall give primary consideration to the requests of the individual[s] with disabilities. 28 C.P.R.§ 35.160 (2002)(emphasis added); see also AAPD, 227 F. Supp. 2d at 1292. It is undisputed that visually impaired voters and manually impaired voters in Duval County are not able to communicate in voting activities as effectively as non-disabled voters, and have not been provided available auxiliary aids that would afford them an equal opportunity to do so. (Stafford Dep. at 79:25-80:6 (admitting that there are no auxiliary aids that can be used to make Duval County's optical scan voting equipment accessible to voters with manual impairments or visual impairments).) It is further undisputed that the requests of visually impaired voters and manually impaired voters for accessible voting systems have not been given primary consideration by the Defendant Stafford. Auxiliary aids, such as audio features, exist that would enable visually impaired or manually impaired voters to participate in voting on an equal basis with non-disabled voters. (Stafford Dep. at 56:20-25, 57:9-I6; Craft Dep. at I28:8-130:9; Browning Dep. at 27: I-3, 43: II-44: II, and 89: I2-90:25.) It is equally undisputed that voters in Duval County have
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made specific requests of Defendant Stafford to purchase and implement such auxiliary aids. (Stafford Dep. at 39:24-41:22.) Finally, it is undisputed that Duval County has not purchased and implemented such auxiliary aids despite the requests of visually impaired or manually impaired voters. (Stafford Dep. at 49:15-22 (admitting that Duval County's optical scan system requires visually impaired voters and manually impaired voters to vote in a materially different manner than non-disabled voters vote in Duval County); Stafford Dep. at 20:3-10 (explaining that Duval County has not been successful in making sure all Duval County voters vote in the same or similar manner because they cannot use the three uncertified Diebold touch screen machines).) Accordingly, there are no genuine issues of material fact that Defendant Stafford has violated 28 C.F.R. § 35.160 by failing to ensure "effective communications," "furnish appropriate auxiliary aids," and give primary consideration to the requests of visually impaired voters and manually impaired voters for such auxiliary aids.
C. Defendant Stafford Has Violated The "Generic Discrimination" Prohibition Of The ADA
The ADA "proscribe[s] more than such 'exclusion' and 'denial' ... [it] in addition, more generically proscribe[s] disability 'discrimination' by the pertinent public entities." AAPD, 227 F. Supp. 2d at 1292. There is no genuine issue of material fact that Defendant Stafford has violated the "generic discrimination" proscription of the ADA.I3
Specifically, Defendant Stafford admitted in his deposition that visually impaired voters and manually impaired voters do not vote in the same or similar manner as nondisabled voters in Duval County. (Stafford Dep. at 49:15-22.) He conceded that visually impaired voters and manually impaired voters in Duval County are forced to rely on third-
13 Again, it is important to note that Nelson v. Miller did not involve a claim under the
generic discrimination prohibition under the ADA. 170 F.3d at 650.
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party assistance to cast their votes. (Stafford Dep. at 42:22-43:2.) 14 The newly-acquired optical scan system used by Duval County is inaccessible to visually impaired or manually impaired voters and requires them to vote in a materially different manner than the way nondisabled voters vote in Duval County. (!d.) This is precisely the type of "generic discrimination" prohibited by the ADA.
This discrimination imposes significant burdens on visually impaired voters and manually impaired voters in Duval County that are not imposed on non-disabled voters. Indeed, the optical scan system used by Duval County requires visually impaired voters and manually impaired voters to vote in a more intrusive and less secret manner than the way non-disabled voters vote in Duval County. (Stafford Dep. at 50: 11-15.) Visually impaired voters and manually impaired voters in Duval County are forced to reveal their votes to a third party, whereas non-disabled voters do not have to reveal their votes to a third party. (!d. at 49: 15-22.) The potential exists for third parties to influence the votes of visually impaired or manually impaired voters in Duval County - non-disabled voters in Duval County do not face this risk. (!d. at 51 :21-52: I0.) Attention is drawn to visually impaired or manually impaired voters in Duval County when casting their votes that is not drawn to non-disabled voters. (!d. at 52: 11-53:3.) Visually impaired voters and manually impaired voters are delayed in placing their votes at polling places in Duval County, whereas non-disabled voters do not experience such delays. (!d. at 53:4-20.) Visually impaired voters cannot confirm that there candidate choices are properly reflected on an optical scan ballot - they must "put their trust in whoever is assisting them." (!d. at 54: 17-56:7.) Non-disabled voters are able to independently confirm the accuracy of their ballots. (!d. at 54: 17-55:8.) This discrimination
14 The defendants consistently ignore the material difference between the availability of third-party assistance as an option for disabled voters and its existence as the only means for disabled voters to cast their votes. (See Amended Compl. ~~ 38, 82, Prayer For Relief.) This distinction was not lost on Secretary of State Katherine Harris. See Section IV, infra.
17

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is significant, material, and inexcusable in light of the existence of technology that would enable visually impaired voters and manually impaired voters to vote in the same or similar manner as non-disabled voters in Duval County.
Duval County's purchase of three touch screen machines, which it intends to place in election headquarters, only exacerbates the discrimination imposed on visually impaired voters and manually impaired voters in Duval County. First, these three machines have not been certified by the Secretary of State of Florida, and therefore cannot be used in an election in Florida. (Stafford Dep. at 20:3-10; Craft Dep. at 151:16-19.) Second, if ever certified by the State of Florida, Duval County intends to place these three machines at election headquarters in downtown Jacksonville. (Stafford Dep. at 60:13-16.) The estimated 40,000 visually impaired voters and manually impaired voters in Duval County (Am. Cmpl. ~56) would be required to travel to election headquarters to use these three machines. (Stafford Dep. at 60:22-61:10.) This is no small burden as not only are three accessible machines insufficient to meet the needs of approximately 40,000 disabled voters, but Jacksonville is also the largest land-area city in the United States. (Am. Cmpl. ~ 56; Stafford Dep. at 61:1116.) In the September 2000 election, plaintiff Beth Bowen traveled to Duval County election headquarters to vote on these touch screen machines. IS On available transit provided to the visually impaired, it would take her five hours to travel from her home to Duval County Election Headquarters to vote. (Bowen Dep. at 22:7-9; Bowen Decl. ~ 13.) A non-disabled voter simply travels to his or her neighborhood polling place. (Stafford Dep. at 61 :7-10.) Moreover, it is beyond belief(as well being a violation of the ADA) that Duval County would create a situation were potentially 40,000 disabled voters will be required to travel to election headquarters just to cast their votes.
15 The Plaintiffs understood that the machines would be available to use, or at least demonstrate, during the September 2002 election. (Bell Dep. at 25:5-28:7, Bowen Decl. ~ 13.)
18

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As the Eleventh Circuit made clear in Shotz v. Cates, 256 F.3d 1077, 1079-81 (11th Cir. 2001):
[T]he ADA is not restricted to those situations in which "a disabled person is completely prevented from enjoying a service, program, or activity." Rather the court said that "if the ramps are so steep that they impede a disabled person or if the bathrooms are unfit for the use of a disabled person, then it cannot be said that the trial is "readily accessible" regardless whether the disabled person manages in some fashion to attend the trial. AAPD, 227 F. Supp. 2d at 1291 (quoting Shotz, 256 F.3d at 1080). The "ramp is steep" for disabled voters in Duval County as significant and humiliating burdens are imposed upon
them as they attempt to exercise their fundamental right to cast their votes.
19

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IV.

CONCLUSION

For the foregoing reasons, Plaintiffs respectfully request that their Motion be granted.

Dated: April 11, 2003

Respectfully submitted,

-~ohug;lassBOa~-·~~~~
Trial Counsel Florida Bar No. 0708070 HOWREY SIMON ARNOLD & WHITE, L.L.P. 1299 Pennsylvania Ave., N.W. Washington, D.C. 20004 (202) 783-0800

Lois G. Williams Co-Counsel Washington Lawyers' Committee for Civil Rights and Urban Affairs 11 Dupont Circle NW, Suite 400 Washington, D.C. 20036 (202) 319-1 000

Attorneys for Plaintiffs

Of Counsel:

Alan M. Wiseman Danielle R. Oddo Vincent E. Verrocchio Ari N. Rothman HOWREY SIMON ARNOLD & WHITE, L.L.P. 1299 Pennsylvania Ave., N.W. Washington, D.C. 20004 (202) 783-0800

20

 
 , Case 3:01-cv-01275-HLA-HTS Document 100 Filed 04/28/03 Page 1 of 20 PageiD 1664

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA JACKSONVILLE DIVISION

FILV
ZUOJ APR 28 I p 3: I 8

American Association ofPeople with Disabilities, Daniel W. O'Conner, Kent Bell, and Beth Bowen,

Plaintiffs,
V.
Glenda Hood, as Secretary of State for the State of Florida; Edward C. Kast, as Director, Division of Elections; and John Stafford, as Supervisor of Elections, Duval County.
Defendants. __________________________________.!

Case No.: 3:01-CV-1275-J-21 TJC

RESPONSE IN OPPOSITION TO PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT
Pursuant to Local Rule 3.01(b), Defendant, John Stafford, as Supervisor of Elections,

Duval County, provides this response in opposition to the "Plaintiffs' Motion for Summary

Judgment Against Defendant John Stafford On Count I (ADA) ofthe Amended Complaint."

Plaintiffs' motion should be denied because it fails to meet the standards of Rule 56. In

addition, the absence of any disputed material factual issues renders the Defendants' pending motions to dismiss/summary judgment due to be granted. I. PLAINTIFFS' REQUEST FOR SUMMARY JUDGMENT IS MERITLESS.
The most notable aspect of Plaintiffs' submission is the degree to which they have

misstated the record in this case. Plaintiffs have patched together snippets, half-statements and outright inaccuracies in order to make it appear that Defendant Stafford has run

roughshod over the ADA, and that he has even admitted doing so. They tell this Court that

Supervisor Stafford "does not dispute" that "he has failed" to comply with the ADA,

"concedes" that Plaintiffs have been mistreated, and "offers no excuse" for his purported

Case 3,:01-cv-01275-HLA-HTS Document 100 Filed 04/28/03 Page 2 of 20 PageiD 1665

failures. [Ps' Memo. 1-2]1 Indeed, almost every significant statement Plaintiffs attribute to

Supervisor Stafford is incomplete or fails to mention important qualifications or facts

necessary to put it in context or make it accurate. Plaintiffs' "fast and loose" rendition of the

record is enough for this Court to summarily deny their motion.

Plaintiffs' counsel has also asserted a generic ADA claim with no factual basis for

doing so. Given the prior dismissal of their state constitutional claim, as well as their ADA

and RA claims attacking third-party assistance, one would expect that they would not further

advance this lawsuit without some factual basis other than their unhappiness with the Court's

ruling. Instead, consider the following emphatic responses of Plaintiff O'Connor:

Q: . . . other than your complaint that you require third-party assistance at the

polls, other than that, is there any other basis you have for asserting that Duval County,

through the Supervisor of Elections Office, has discriminated against you?

A:

There is no other basis. ...

Q:

... other than your complaint about having to use third-party assistance

at the polls -

A:

Un-huh.

Q:

-- do you have any other basis for contending that Duval County,

through the Supervisor of Elections Office, has discriminated against you?

A:

No other basis. ...

[O'Connor at 48-49] (emphasis added). As the highlighted language indicates, the sole basis for the Plaintiffs2 continuing this litigation is their generalized complaint that third-party

assistance violates that ADA by forcing them to vote in a "materially different" or "less

1 Citations to Plaintiffs' Memorandum will be [Ps' Memo *] where * denotes page number(s). Plaintiffs have filed all depositions including exhibits. Citations to depositions will be by last name (e.g., [Stafford*]), where* denotes page number(s).
2 As discussed below, Plaintiffs Bowen and Bell testified similarly as to third-party assistance being the basis of this lawsuit.

2

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secret" manner that 11reveal[s] their vote to a third party. 11 [Ps' Memo 4-6] This Court, having already dismissed Plaintiffs' ADA claim on this theory, should dismiss this action based on Plaintiffs' failure to produce factual grounds for their ADA discrimination claims. II. PLAINTIFFS' 11STATEMENT OF UNDISPUTED FACTSn IS INACCURATE.
Because of the numerous gross inaccuracies in Plaintiffs' submission, sections II(A)(E)3 below set the factual record straight. In section III, a response to Plaintiffs' legal arguments is provided, which demonstrates that dismissal or final summary judgment should be entered in Supervisor Stafford's favor, not the Plaintiffs.
A. Duval County Purchased Its Voting System In February 2002. Plaintiffs' assertion that "Duval County purchased a new optical scan voting system on October 3, 200211 is false. In making this assertion, Plaintiffs attempt to make it appear that Supervisor Stafford waited until a month before the November 2002 general election (and a month after the primary election had been already held) before purchasing the new voting system and intentionally ignored other options available up to that time. As Plaintiffs surely know, Supervisor Stafford "closed the deal" in "February 2002." [Stafford 95, 130 (emphasis added)]. In the fall of 2001, Supervisor Stafford began reviewing all voting systems available and certified by the Florida Secretary of State. [Stafford 134] Following a thorough review in December 2001 of available and certified systems, in
3 For purposes of this response, Supervisor Stafford does not contest that each of the individual Plaintiffs has a disability that is recognized under the ADA.
3

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January 2002 he formally requested that the City of Jacksonville procure the Global4 optical scan system along with three touchscreens with audio components for visually disabled voters. [Stafford 130] His procurement request was approved by the City of Jacksonville Awards Committee in February 2002, effectively becoming a legally enforceable contract at that point. [Stafford 130-32; Gibbs Ex. 2] The financing of the equipment, via a lease rather than a sale, delayed the formal signing of the agreement until October 3, 2002 -the date upon which Plaintiffs fixate. [Gibbs 50-51 (changes to agreements due solely to financing and name change and not the actual purchase of the voting machines)] By then, the vendor had long ago delivered the voting system, which had already been used in the September 2002 primary in Jacksonville.
Specifically, the vendor began delivery of the equipment in April 2002 with additional deliveries in May and June 2002 totaling 315 machines. [Stafford 132-33] Supervisor Stafford had to have in his possession all voting equipment no later than late July or early August 2002 in order to have sufficient time to prepare for the September 2002 primary. [Stafford 133] It would have been impractical for him to make a purchasing decision later than he did, or revisited it, to include systems certified in 2002. [Stafford 134] As Supervisor Stafford noted, the actual decision to purchase in January 2002 "might have been a couple of months later than we should have been because we did, you know, look at all the machines available." [Stafford 134 (emphasis added)]
4 The original vendor was named Global Elections System. Subsequent to the purchase, Global was purchased by Diebold Elections Systems. Consequently, the voting system at issue in Duval County will be termed the Diebold/Global system for purposes of this memorandum.
4

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Rather than a hasty, last minute decision to contract for voting equipment on October 3, 2002 without consideration of touchscreens or accessibility issues, Supervisor Stafford (a) made a thorough review of existing certified systems almost a year earlier in Fall 2001, (b) requested in January 2002 the procurement of the Diebold/Global system, which was approved in February 2002, (c) received shipment of the system in April, May and June 2002, and (d) held the primary election on the Global system in September 2002. Plaintiffs' representation that Supervisor Stafford could have purchased any voting system up until October 3, 2002 is insupportable.5
B. The Diebold Contract Provides For Accessible Touchscreens. The Plaintiffs wrongfully make it appear that Supervisor Stafford ignored touchscreen technology as well as accessibility issues generally. They assert that Supervisor Stafford had an array of options for obtaining an "accessible" voting system rather than the Diebold/Global system. [Ps' Memo 6-8] They point to various systems that were certified in Florida after the procurement of the Diebold/Global system. [Ps' Memo 7] They overlook that the Diebold/Global System had already been formally approved for purchase and use in Duval County prior to the various vendors (e.g., Sequoia) subsequently receiving certification for their touchscreens with audio components later in 2002. [Stafford 134-35; Ex. 12 & 13; Craft Ex. 13-17] As discussed above, the City had already procured the Diebold/Global System in February 2002, with deliveries beginning in April 2002. At that
5 In this section, Plaintiffs claim that "poll workers in Duval County" have challenged disabled voters right to vote based on their appearance. [Ps' Memo 6] They severely distort a single isolated episode in which a single poll worker mistakenly challenged some disabled voters. [Stafford 76-78] The matter was immediately remedied and the poll worker discharged. [Stafford 76-78]
5

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time, only an ESS touchscreen with audio ballot had been certified for use in Florida [Craft 130-31] with only small counties choosing it. [Stafford Ex. 16 & 17 (Sumter and Pasco Counties)]. Supervisor Stafford had evaluated the ESS system and found it lacking because it did not have the lowest error rate, had an undesirable override feature that allowed voters to overvote, and was slow in uploading. [Stafford 96-97] He felt the Diebold/Global system's touchscreen was superior and had contractual assurances that it would be available for Fall 2002 elections. [Stafford 97]
Months later, after the Diebold/Global system was approved and purchased after a thorough review of all systems including ESS, a few more vendors obtained certification for audio components. [Craft Ex. 13-17] Even if the Diebold/Global systems could be jettisoned at that point, and an entirely new system procured at such a late date, it would have been speculative whether any of those systems could be implemented and put in place in time for the upcoming primary and general elections. [Stafford 135]
Plaintiffs also fail to mention that the contract with Diebold/Global includes the option to trade in the optical scan system for accessible touchscreens, which is consistent with the Duval County Task Force's report recommending the purchase of optical scan with a transition period to touchscreen. [Teal Ex. 13, p. 22]6 The Report stated:
The Task Force carefully considered both technology options, hearing presentations from vendors, the Supervisor of Elections, and other authorities. It recommends that Duval County adopt precinct-based optical scanning technology for no more than two to four years, accompanied by a firm commitment to acquiring DRE [direct recording electronic} technology
6 The Report found that disabled voters "were appropriately accommodated" and "commend[ed] the Supervisor of Elections on all of these accommodations." [Teal Ex. 13, p. 22] The Report recommended consideration "be given to the establishment of a centralized voting facility for extraordinary access." Id.
6

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thereafter. In reaching this conclusion, the Task Force considered the current state of technological reliability, state certification and cost. It was also influenced by the possibility of recovering a substantial portion of the cost of interim technology through leasing or otherwise recovering the residual value of the optical scan equipment. Id. (emphasis in original). Consistent with the Task Force's recommendations, the contract gives the City full credit for monies paid for the optical scan system thereby making the transition to touchscreen more economically feasible. [Stafford Ex. 19 p. 4] Thus, rather than Supervisor Stafford being hostile to touchscreen systems and compatible components for the disabled, he ensured that the City would be able to convert to compatible touchscreen technology as it became more available and proven as a voting system without adverse financial consequence to the City. [Stafford 91] ("We decided that back in- I want to say December 2001 -that when we bought a system, we wanted that capability, for touchscreen with audio."). He testified the more touchscreens are planned to be purchased and made available in every precinct pursuant to pending laws and funding. [Stafford 22] C. Touchscreen Technology With Audio-Components Is A Recent Development. Plaintiffs' claim that "touchscreen" voting technology has a "proven" track record, inferring that it has been available/affordable for many years and will remedy accessible issues for the disabled. Plaintiffs assert that "Mr. Stafford admitted that touch screen voting machines have a proven track record in Florida counties other than Duval County [Ps' Memo. 14] Instead, Supervisor Stafford stated precisely the opposite. He noted that there are both advantages and disadvantages of touch screen systems [Stafford 82-83 & Ex. 10], but specifically testified that touch screens do not have a sufficient track record yet. He stated "I would think there's a
7

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track record now in the State ofFlorida, because some counties bought that screen." [Stafford 83] But, he specifically disagreed with the Plaintiffs' attempt to characterize it as a "proven" track record. [Stafford 83-84] He said that he "would have to look at how they performed in all counties" and that "there were some problems in certain areas." [Stafford 83] He specifically testified that the problems with touch screen systems in Broward and MiamiDade were of concern to him. [Stafford 83-84] As such, Plaintiffs have again severely misrepresented Supervisor Stafford's testimony in a material way.
In addition, Plaintiffs fail to present the testimony of their own witnesses that demonstrated that touchscreen systems are not nirvana and are only now in an emerging, nascent state, particularly in larger jurisdictions. Plaintiffs were able to point to only two significant larger jurisdictions in the entire country that have rolled out accessible "touchscreen" systems: (a) Riverside, California and (b) the State of Georgia (which chose the Diebold/Global voting system at issue). [See generally Deposition of Georgia Secretary of State Cox 143-45]. Plaintiffs also overlook that the Elections Supervisor in Harris County, Texas decided against touchscreens because of maintenance and financial concerns; instead, she chose a system with buttons that do not require that voters touch a screen. [Kaufman 3539] ("The task force felt that touch screen technology was delicate, easily damaged and would require a lot of maintenance which could be expensive."). Plaintiffs also overlook that major jurisdictions such as Harris County, Texas and the State of Georgia only phased in touchscreen systems as of Fall 2002 and used optical scan, punch cards and even lever machines up until that time. [Cox 10, 138-39 (discussing phasing out of lever and punchcard); D's Comp. Ex. 1 pp. 9-11 (chronology); Kaufman 66 (most voters in Harris County voted on punch cards until April2002)]
8

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D. The Diebold/Global Contract Requires Three Certified Audio Touchscreens. Plaintiffs make much ruckus about the three Diebold/Global touchscreen units with audio ballots that were to be used at the Supervisor of Elections office during the Fall 2002 elections. Again, Plaintiffs fail to provide a full and accurate picture of the situation. As a part of the Diebold/Global system, it was promised to Supervisor Stafford that three touchscreen units with audio-capability were to be provided in sufficient time for the Fall 2002 elections to be used at the Supervisor's Office as an option for disabled voters who wished to utilize the equipment at that location. [Stafford 63; Ex. 19, Exhibit A (Vender "shall have [audio] certification completed in time for use in the September Primary Election of2002.") (emphasis added)] Diebold/Global was to provide the equipment without charge and to ensure it had been certified for use in Florida at that time. [Stafford 97; Ex. 19, Exhibit A] Diebold, however, failed to do so (despite having sought and obtained certification for statewide use of their audio ballot in Georgia). [Stafford 98] For this reason, Diebold has breached its agreement and appropriate action is being taken in that regard. No evidence exists that the failure of Diebold to provide these three touchscreens is attributable to Supervisor Stafford. Instead, Supervisor Stafford - through foresight requested these machines so that they could be experienced and considered for roll-out in the future pursuant to the above-mentioned option in the Diebold contract. [Stafford 98-99] Supervisor Stafford specifically testified that his plan was is implement more and more audio touchscreens throughout the county. [Stafford 99] Plaintiffs have misportrayed the Supervisor's laudable intent in requesting these machines and thereby proven the adage that "no good deed goes unpunished." They go so far as to say Supervisor Stafford "exacerbates
9

. Case 3:.01-cv-01275-HLA-HTS Document 100 Filed 04/28/03 Page 10 of 20 PageiD 1673
the discrimination" against them by obtaining these machines. [Ps' Memo. 18] Supervisor Stafford's testimony and actions simply cannot be twisted in this manner.
In addition, the Plaintiffs make it sound as if touchscreen technology with audio components will be made available in perpetuity only at the downtown Jacksonville location where an alleged 40,000 disabled voters will have to vote. 7 [Ps' Memo 18] Plaintiffs overlook both the federal and state legislation that will require some form of this type of technology in the near future.
E. The One Specific Request For A Voting System Was For Diebold. Plaintiffs claims that "Duval County received specific requests to provide equipment with auxiliary aids" for disabled voters, pointing to a few generic, sporadic contacts that were made with the Supervisor's office. Plaintiffs fail to point out that the only specific request for a particular voting system was by Plaintiff Bowen, who stated in her affidavit that Supervisor Stafford should inquire into the Diebold system.8 The Diebold system, of course, is the system that Supervisor Stafford determined was the best for Duval County (both the optical scan and the touchscreen with audio component). It is also the system certified and used statewide in Georgia for the first time in the Fall of2002. [See generally Cox Depo.]
7 Their speculation about 40,000 disabled voters crowding into the Supervisor's office is not based on any evidence. Moreover, this number is merely an unsupported allegation in Plaintiffs' amended complaint. 8 Plaintiff Bowen's affidavit states "I told the official about the accessible equipment, gave him the name of the president of Diebold corporation, one company that manufactures such equipment, and gave him Diebold's Web site." [Bowen 56] Plaintiff Bowen testified, however, that the language in her affidavit was not urging the purchase of Diebold equipment. [Bowen 62]
10

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F. The Plaintiffs' Voting Experiences, Like Their Daily Life Experiences, Are Not The Product ofDiscrimination Based On Their Disabilities.
Finally, the Plaintiffs make repeated assertions of "fact" about various conditions they have faced at the polls in Duval County as support for a generic ADA claim of discrimination.9 These conditions, however, are no different from those they generally face and are not due to the voting experience itself. For instance, Plaintiffs claim of having to vote (a) "materially different" or in a "different manner" (b) in "a more intrusive and less secret manner" or (c) in a manner that "reveal[s] their vote to a third party." [Ps' Memo. 4-5] Beyond each of these being Plaintiffs' indirect attack on the third-party assistance statue, section 101.051, Florida Statutes, each can be said to stem from the type of third party assistance upon which Plaintiffs rely in their daily lives for various major activities, not from the voting experience in isolation.
For instance, Plaintiff Bowen who is blind relies on other persons for important daily activities such as paying bills or identifying grocery items. [Bowen 26-29] Plaintiff O'Connor who is legally blind (but retains the ability to read albeit more slowly with difficulty) relies on other persons to assist with meals, grocery shopping, paying bills, and various tasks around the office in which he works. [O'Connor 15-16, 23-26, 29-32] Plaintiff Bell who is manually disabled relies on others for important daily activities such as dressing, personal hygiene, and feeding. [Bell 19] Each of these activities requires a different and more intrusive living experience than that other non-disabled individuals experience.
9 Plaintiff Bowen voted absentee until the September 2002 primary election. [Bowen 20] Plaintiff O'Connor has voted in every election in Duval County since 1992. [O'Connor 3334] Plaintiff Bell testified that he moved to Florida in 2001 and has voted three times in Duval County (in a special election in 2001and in the primary and general elections of 2002). [Bell 52-53]
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Notably, Plaintiffs make three additional assertions that are not supported by their citations to the record. First, they claim that they face a "risk" of third parties influencing their votes that is not faced by non-disabled voters. In doing so, they cite to Supervisor Stafford's testimony, which- in fact -- indicates that such a concern would be speculative. [Stafford 5353] Moreover, no evidence exists that any Plaintiff or disabled voter in Duval County has encountered such a "risk." Second, the Plaintiffs claim that Supervisor Stafford acknowledged that "attention" is drawn to them when they cast their votes that is not experienced by nondisabled voters. The inference is that this is "bad" attention. But, the "attention" to which Supervisor Stafford was referring is the attention of poll workers in providing third party assistance under Florida law. [Stafford 51-52] Third, and similarly, Plaintiffs claim they are subject to discriminatory "delay" [Ps' Memo. 5], when- in fact- the testimony of Supervisor Stafford (upon which they rely) makes clear that any purported delay is de minimus and due solely to ensuring compliance with Florida law, particularly third party assistance. [Stafford 53] Again, Plaintiffs have misconstrued the record in this manner.
III. PLAINTIFFS' LEGAL ARGUMENTS ARE MERITLESS AND CONTRARY TO THIS COURT'S PRIOR DISMISSAL ORDER.
The Plaintiffs' legal argument is based on their displeasure with the requirement that Supervisor Stafford follows his legal duty by providing third party assistance under section 101.051, Florida Statutes. They have asserted this claim despite this Court having dismissed it on October 16, 2002. Plaintiffs were specifically instructed by this Court to replead, if the facts supported it, an ADA claim on a generic discrimination theory. As discussed below, no Plaintiff testified to any recognized legal claim of discrimination generally. As such, their motion for summary judgment against Supervisor Stafford should be denied.
12

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1. Plaintiffs' Rendition ofthe "Undisputed Facts" Is Violative OfThe Standards ofRule 56 Thereby Justifying Denying Relief
At the outset, a party moving for summary judgment in federal court bears not only the legal burden of demonstrating that judgment is appropriate in its favor, but also a duty of candor in stating the factual basis for their claim for relief. It is rote law that this Court's review must be based on viewing "evidence and factual inferences therefrom in the light most favorable to the opposing party." Rowe v. Board of Trustees for Florida School for Deaf and Blind, 70 F. Supp. 2d 1283, 1286 (M.D. Fla. 1998) (Nimmons, J.) (citing Clark v. Coats & Clark, Inc.. 929 F.2d 604, 606 (11th Cir. 1991)).
Here, Plaintiffs have thwarted the proper role of this Court's review by failing to present the facts in the manner required by law. Rather than present the testimony and evidence in a light most favorable to Supervisor Stafford, Plaintiffs have done precisely the opposite. They have mischaracterized his testimony and slanting it so severely as to forfeit
° their privilege of having this Court even consider the relief they request. 1 Courts should not
countenance this type of systemic misstatement of the record. 11 It is respectfully submitted that Plaintiff have not meet their initial burden under Rule 56 and that this Court should not accord any relief to Plaintiffs in light of the defective submission on their behalf. As the next
10 See, e.g., Divot Golf Com. v. Citizens Bank of Mass., 2003 WL 61287 (D. Mass. 2003) (repetition of factual misstatements and legally untenable claims grounds for sanctions). 11 In re Kunstler, 914 F.2d 505, 514-15 (41h Cir. 1990) (misstatements of fact not "isolated" and, instead, "pervade" the allegations and were "central to the complaint.") (noting that plaintiffs "appear to have relied entirely upon discovery in the hope of finding some factual support for many of their claims.").
13

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sections explain, Plaintiffs have failed to raise any genuine issue for trial on their claims of discrimination under the ADA.
2. Stafford Has Not Excluded Any PlaintiffFrom Participation In A Program of Voting.
In support of their "program exclusion" claim, the Plaintiffs rely upon their embellished testimony of Supervisor Stafford to support their recurring and central theme that the provision of third party assistance, required under Florida law, forces them to vote in a different manner than non-disabled voters thereby violating the ADA. Their theory is that any voting system that requires third party assistance violates the ADA, which is not the law or the ruling of this Court. Further, no Plaintiffhas been excluded from participation in a voting program or denied access to any voting facility or equipment.
Rather than advance some new or different claim under the ADA, or provide some evidence to support their assertions, the Plaintiffs have merely repackaged their prior state law and ADA claims in different language. It would be redundant and wasteful for Supervisor Stafford to again repeat the legal basis for why Plaintiffs' "program exclusion" claim is not viable, having done so in his pending motion to dismiss/summary judgment as well as in his responses to Plaintiffs' motion for reconsideration and their supplemental memorandum in support of reconsideration. That this Court and the Sixth Circuit in Nelson v. Miller, 170 F.3d 641 (61h Cir. 1999) have dispensed with this claim should be sufficient.
Plaintiffs have offered no evidence that they have been denied access to any facility or equipment. 12 No Plaintiff was denied the right to vote or claimed any poll accessibility
12 Plaintiffs claim that this Court has already held that voting machines are "equipment" within the meaning of28 CFR § 35.149. [Ps' Memo 13] This Court did not make that ruling; instead, it
14

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problems. Each testified to voting with the assistance of a third party without incident. [Bowen 32-33 ('"... the ladies [poll workers] were really nice. They treated- you know, they treated us well and everything."); O'Connor 36, 37-39 (voted with wife's assistance except once at Supervisor's Office in 2002);13 Bell 23-24 (two people assisted by marking ballot and feeding it into machine) 26-27 (poll worker assisted/personal care attendant assisted)] 14 None could point to any evidence that they were discriminated against at the polls in Duval County because of their disability. At best, there was passing reference to an occasional short delay of a few minutes because of a request for accommodations [Bell 34 (five minute wait)} or a suspicion that a poll worker acted insensitively. [Bell 43, 46-47] The voting system at issue, which is used in various jurisdictions throughout Florida (and the United States), is not "inaccessible" as Plaintiffs claim. It is "readily accessible and usable" 15 as demonstrated by Plaintiffs' own testimony, each indicating that they voted without incident on the new system. Because no Plaintiff was prevented from participating in the voting program at issue, which is readily accessible, they have failed to demonstrate grounds for relief.

stated in passing that it appeared to be that voting machines are included. AAPD, 227 F. Supp. 2d at 1290 n. 16. Even if this Court rules that voting machines are "equipment" covered by the ADA, no record evidence demonstrates that those certified by the State of Florida and purchased and used in Duval County are "inaccessible" or "unusable" by the Plaintiffs.

13 O'Connor testified that he could hear others speaking nearby, but he did not ask to move. [O'Connor 38-39] He also believed that a poll worker was not "forthcoming" about party affiliations of candidates in a particular race, but clarified that the poll worker - when asked provided party affiliations as requested. [O'Connor 39]

14 Bell testified that he felt he may have been given an incorrect ballot, but it was speculation whether it was based on discrimination due to disability. [Be1128]

15

See

Shotz

v.

Cates,

256

F.3d

1077

(11

1 h

Cir.

2001);

28

C.F.R.§

35.151

(new

construction

and

alterations).

15

Case 3:01-cv-01275-HLA-HTS Document 100 Filed 04/28/03 Page 16 of 20 PageiD 1679
3. Stafford Has Not Failed To Provide Effective Communications To Plaintiffs.
Plaintiffs cite no legal precedent in support of their claim under 28 CFR § 35.160 other
than the regulation itself, which provides that the government shall makes its communications
to the public effective by providing appropriate auxiliary aids as needed. The reason is that
none exists. The caselaw makes clear that the regulation is met if a public entity provides a means of communication via "auxiliary aids" for an individual with, for example, a hearing disability that enables effective communication in court proceedings, 16 in public education, 17 in public transportation18 and other contexts where the government communicates information.
"Auxiliary aids and services" include (1) Qualified interpreters, notetakers, transcription services, written materials,
telephone handset amplifiers, assistive listening devices, assistive listening systems, telephones compatible with hearing aids, closed caption decoders, open and closed captioning, telecommunications devices for deaf persons {TDD's), videotext displays, or other effective methods of making aurally delivered materials available to individuals with hearing impairments;
(2) Qualified readers, taped texts, audio recordings, Brailled materials, large print materials, or other effective methods of making visually delivered materials available to individuals with visual impairments;
(3) Acquisition or modification of equipment or devices; and (4) Other similar services and actions. 28 CFR § 35.104 (emphasis added); Petersen v. Hastings Public Schools, 31 F.3d 705, 708 (8th Cir. 1994) (no merit to plaintiffs' claim that their choice of signing communications
was rejected improperly) (concluding that after "modified signing system" was implemented,
16 See, e.g., Santiago v. Garcia, 70 F. Supp. 2d 84 (D. Puerto Rico 1999). 17 See, e.g., Petersen v. Hastings Public Schools, 31 F.3d 705, 708 (8th Cir. 1994). 18 See, e.g., Burkhart v. Washington Metropolitan Area Transit Auth., 112 F.3d 1207, 1213 (D.C. Cir. 1997).
16

Case 3:.01-cv-01275-HLA-HTS Document 100 Filed 04/28/03 Page 17 of 20 PageiD 1680
the "children's scholastic performances improved. Therefore the system has proven to be an effective means of communication.").
As the highlighted language makes clear, the range of permissible methods of ensuring effective communication is broad and specifically includes third party assistance. And while "'a public entity shall give primary consideration to the requests of the individual with disabilities' ... Nevertheless, '[t]he auxiliary aid requirement is a flexible one, and [covered entities] can choose among various alternatives as long as the result is effective communication'" /d. at Pt. 36, App. B (emphasis added)." Hahn ex rei. Barta v. Linn County, Iowa, 191 F. Supp.2d 1051, 1064 (N.D. Iowa 2002) (citing regulations); See also Burkhart v. Washington Metropolitan Area Transit Auth., 112 F.3d 1207, 1213 (D.C. Cir. 1997) ("individual's request need not be honored if 'another effective means of communications exists.'") (citing regulations).
Given the requirement of third party assistance under Florida elections law, and its importance both currently and historically to disabled voters generally, it would be an odd result to condemn such assistance, particularly when it is listed as an option under the flexible ADA regulatory structure at issue. Moreover, nothing in the record shows that any Plaintiff was unable to "effectively communicate" their vote. To the contrary, each testified that they voted without incident. Nothing in the regulations requires absolute secrecy in communications and does not address the right to an independent voting experience.
Notably, even if section 35.160 provides a cause of action in the voting context, section 35.164 provides that a public entity may be relieved of its duty upon proving that, considering all funding and operating resources available, the proposed action would result in either (1) a fundamental alteration in the nature of the service, program or activity or (2)
17

Case 3:01-cv-01275-HLA-HTS Document 100 Filed 04/28/03 Page 18 of 20 PageiD 1681
undue financial or administrative burdens. Either of these standards may apply in the voting system context, particularly the latter because of the disproportionately higher cost of the systems that Plaintiffs seek to impose through this litigation.
4. PlaintiffStafford Has Not Violated The "Generic" Discrimination Provision ofthe ADA.
This Court specifically instructed Plaintiffs to amend their complaint to add a generic claim of discrimination under the ADA, if appropriate, that was not based on those grounds that were previously dismissed with prejudice. Instead, Plaintiffs' amended complaint again was based in substantial, if not exclusive, manner on "discrimination" arising from the assistance of third parties under section 101.051, Florida Statutes. Because this Court has already dismissed such a theory under the ADA, Defendants moved to dismiss the amended complaint or, alternatively, for summary judgment. That motion, along with the State's dispositive motion, is pending.
Now, after many months of videotaped depositions and voluminous expensive discovery, 19 Plaintiffs have still failed to present any material evidence to support a generic discrimination claim against Supervisor Stafford. They can point to no evidence to support their broad, amorphous claim of discrimination. In fact, each Plaintiff was asked specifically what Supervisor Stafford has done, other than providing third party assistance at the polls as
19 No document, including the Task Force Reports of Secretary Harris and that of the Duval County (including the Reports' supporting transcripts of proceedings and records), contain any evidence that Supervisor Stafford has done anything to discriminate against disabled voters in Duval County. [Stafford 129-30; Teal Ex. 13] Instead, the sole basis for Plaintiffs' ADA claim is that Supervisor Stafford followed Florida law by providing third party assistance.
18

Case 3:01-cv-01275-HLA-HTS Document 100 Filed 04/28/03 Page 19 of 20 PageiD 1682
Florida law requires, that discriminated against them because of their disability. Each provided testimony contrary to a generic claim of discrimination against Supervisor Stafford.
Plaintiff O'Connor was asked twice whether he had any other basis for contending that Supervisor Stafford had discriminated against him because of his disability other than by requiring third party assistance at the polls. He stated emphatically "There is no other basis." and that there is "No other basis." [O'Connor 48-49]
Plaintiff Bowen testified she had no basis for a generic discrimination claim other than not receiving Braille materials (such as sample ballots) from the Supervisors of Elections office [Bowen 50-51], which has no legal obligation to do so. Bowen, who voted absentee until the Fall 2002 election, also raised alleged problems arising decades ago beyond the statute oflimitations that were de minimus and not legally actionable. [Bowen 35-46]
Plaintiff Bell testified emphatically and repeatedly that his basis for discrimination against Supervisor Stafford was the lack of "accessible equipment for persons with disabilities who are visually, manually and neurologically impaired to cast a secret and direct ballot" in Duval County. [Bell 42, 7-8] When asked for any additional basis for his claim of discrimination, he had none other than a generalized, personal belief that voting officials were "insensitivity to the disabled voters" in the community. [Bell43, 46-47]
In short, Plaintiffs- by their own testimony- have made clear that they have no basis (and have had no basis from the outset of this litigation) for a generic discrimination claim under the ADA against Supervisor Stafford. Their testimony, along with the record generally, establishes that this case should not have been pursued further following this Court's October 16, 2002, due to the lack of any evidence to support an ADA claim. Instead, a meritless
19

Case 3:01-cv-01275-HLA-HTS Document 100 Filed 04/28/03 Page 20 of 20 PageiD 1683
amended claim was filed and a classic "fishing expedition" was conducted. Under these circumstances, Plaintiffs' request for relief should be denied and their lawsuit dismissed.
CONCLUSION Plaintiffs have failed to demonstrate any factual issue that is relevant to this proceeding. Instead, they have exhibited a pattern of embellishing the testimony and evidence in a manner that merits rejection of the relief they seek. Plaintiffs' request under Rule 56 for summary judgment should be denied, and their action dismissed pursuant to Defendant Stafford's and the State's pending dispositive motions.
Respectfully Submitted, RICHARD A. MULLANEY
MVJ/1#.-- GENERAL COUNSEL
CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing was furnished by U.S. Mail and facsimile to J. Douglas Baldridge, Esq., Howrey, Simon, Arnold & White, LLP, 1299 Pennsylvania Avenue, N.W., Washington, D.C. 20036; by U.S. Mail to Lois G. Williams, Esq., Washington Lawyers' Committee for Civil Rights and Urban Affairs, 11 DuPont Circle, NW, Suite 400, Washington, D.C., 20036, and by U.S. Mail to Charles A. Finkel, Asst. Attorney General, Office of the Attorney General, PL-01, The Capitol, Tallahassee, Florida 32399-1050, on this 28th day of April, 2003.
Kttorney 20

 
 Case 3:01-cv-01275-HLA-HTS Document 110 Filed 06/25/03 Page 1 of 8 PageiD 1756

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Civil Action No. 3:01-CV-1275-J-21 TJC

PLAINTIFFS' SUPPLEMENTAL MEMORANDUM OF LAW IN OPPOSITION TO DEFENDANTS' MOTION TO DISMISS OR FOR SUMMARY JUDGMENT
Plaintiffs respectfully file this supplemental memorandum in opposition to Defendants Smith and Kast's Motion to Dismiss Amended Complaint or Alternatively for Summary Judgment ("Motion"). I In their Supplemental Rule 56(f) Opposition to Defendants Smith and Kast's Motion to Dismiss Amended Complaint or Alternatively for Summary Judgment ("Rule 56(f) Motion''), Plaintiffs advised the Court that they intended to supplement their opposition upon the close of discovery.2 Discovery closed on April 3, 2003, and it is now more clear than ever that the State's Motion must be denied.

t The current defendants are Florida Secretary of State Glenda Hood and the Director of the Florida Division of Elections Edward Kast, referred to herein as the "State."
2Because Plaintiffs' Rule 56(f) request has not been ruled upon, in an abundance of caution, Plaintiffs have filed a motion seeking leave to submit this memorandum. Additionally, Plaintiffs incorporate herein all arguments set forth in their Consolidated Opposition to Defendants' Motion to Dismiss or for Summary Judgment ("Consolidated Opposition").

Case 3:01-cv-01275-HLA-HTS Document 110 Filed 06/25/03 Page 2 of 8 PageiD 1757
\.,;I

I.

THE STATE RECEIVES FEDERAL FINANCIAL ASSISTANCE

Discovery has revealed two additional reasons for denial ofthe State's request that

Plaintiffs' Rehabilitation Act claim (Count IT) be dismissed. First, contrary to the State's only

specific defense to Plaintiffs' Rehabilitation Act claim, the law is clear that receipt of federal

financial assistance by any division of a state governmental department subjects all divisions of

that department to the requirements of the Rehabilitation Act. Lussier v. Dugger, 904 F. 2d 661

(11th Cir. 1990) (receipt of federal funds by the Florida Department of Corrections sufficient to

subject the Department's Division of Medicine to the guidelines of the Rehabilitation Act even

though that Division received no federal funds). See also, Jim C. v. United States, 235 F.3d

1079, 1082 (8th Cir. 2000); Lightbourn v. County ofEl Paso, 118 F.3d 421 (5th Cir. 1997);

Schroeder v. City ofChicago, 927 F. 2d 957, 962 (7th Cir. 1991); Leake v. Long Island Jewish

Med. Ctr., 869 F. 2d 130, 131 (2d Cir. 1989); Huberv. Howard County, 849 F. Supp. 407,415

(D. Md. 1994), affd mem., 56 F.3d 61 (4th Cir. 1995). It is undisputed that the Florida

Department of State receives federal financial assistance. (Lench Dep. at 12:18-20, 15:3-7

(''three divisions [of the Florida Department of State] ...receive federal funds"); see also, Lench

Dep. Ex. 4; Lench Dep. Ex. 6.)3 Therefore, the Division of Elections and all election related

activities must comply with the strictures ofthe Rehabilitation Act.

Second, even if, as the State argues, the law requires "program specific" financial

assistance (which it does not), the State's contention that "the Department of State has not

received federal funding for use by the Division of Elections, or use in election related functions"

(Motion at 18), is simply inaccurate.4 The Federal Government provided six million dollars in

3All depositions and exhibits thereto cited herein have been previously filed with the Court.
4Federal fmancial assistance need not be actual funding or grants. (Lench Dep. at 19:12-20:6, 69:2-9.) An entity receives federal financial assistance ifit "benefit[s] in its dealings with the [federal] government to a greater extent than if it were dealing with another party." Jacobson v. Delta Airlines, Inc., 742 F. 2d 1202, 1209 (9th Cir. 1984); see also, DeVargas v. Mason & Hanger-Silas Mason Co., 911 F. 2d 1377, 1382 (lOth Cir. 1990)("an entity receives [federal] financial assistance when it receives a subsidy").
2

Case 3:01-cv-01275-HLA-HvTS Document 110 Filed 06/25/03 Page 3 of 8 PageiD 1758

"federal funding" for an Internet pilot program that enabled Florida citizens to vote via the Internet in the November 2000 Florida election. (Roberts Dep. at 47:10-25; Craft Dep. at 223:1227:3.) Moreover, the Federal Government subsidizes Florida voter registration by training federal employees to register Floridians to vote, paying federal employees to register Florida voters, and paying postage to mail Florida voter registration forms to the appropriate elections officials. (Kast Dep. at 38:23-39:2,39:20-41:21,42:1-8, 74:25-76:18; see also, Stafford Dep. at 124: 1-12.) Clearly, the State receives federal financial assistance for its election programs, because it "benefit[s] in its dealings with the [federal] government to a greater extent than if it were dealing with another party." (see, n. 4, supra.)

II.

THE ADA IS AN ELECTION LAW

The State, for purposes of this litigation only, contends that the ADA is not an election

law and, therefore, it has no duty to ensure that local election officials comply with the ADA.

(Motion at 17-18; see also, Consolidated Opposition at 15.) However, Katherine Harris, in her

role as "chiefelection officer'' of Florida responsible for interpretation of election laws,s

disagrees:

We must advance the ADA's mission by forcefully addressing the exclusion of scores of persons with disabilities from full and equal participation in elections

(Harris Dep. at 47:4-16; Harris Dep. Exs. 3-5; Harris Dep. at 73:9-74:13, 128:18-130:16 (emphasis added); see also, Harris Dep. at 80:25-82:6; Harris Dep. Ex. 6 at DOE6791 ("[a]nd what is very important now is that we are very much focused on the Americans with Disabilities Act which reinforces the need for accessibility in all areas, and especially in voting rights..•.The ADA in its 11th year has made an incredible difference in the lives of persons with disabilities

5 Fla. Stat. Ann.§ 97.012(1) (West 2002); see also, Kast Dep. at 28:5-29:7. Secretary Harris admitted that all of her public statements regarding elections were made in her capacity as "chief elections officer," and that Florida voters had the right to rely on her statements. (Harris Dep. at 33:2-34:1, 101:14-23.)

3

Case 3:01-cv-01275-HLA-HTS Document 110 Filed 06/25/03 Page 4 of 8 PageiD 1759
'-'

and we should lead the way to ensure that this includes voting accessibility); Harris Dep. at 80:25-82:6, 51:17-23; Harris Dep. Ex. 7 at DOE0807; 84:10-85:12.) All the evidence indicates that the State considered the ADA fully applicable to the Florida election process -- that is, until this lawsuit was filed.

III.

THE STATE FAILED TO CERTIFY ACCESSIBLE VOTING

SYSTEMS

Discovery has revealed that the State violated the ADA and the Rehabilitation Act by,

among other things, failing to certify voting systems that would enable voters in Duval County

with either visual impairments or manual impairments to cast their votes in the same or similar

manner as non-disabled voters. It is undisputed that readily available voting equipment, such as

Hart Intercivic's eSlate which utilizes "sip and puff' technology, jelly switches and head

movement switches, would enable even voters with severe mobility impairments to vote in the

same or similar manner as non-disabled voters. (Kaufman Dep. at 45:15-50: 11; Shaw Dep. at

91:15-92:4.) Although used successfully in numerous jurisdictions, the State has not certified

these technologies for use in Florida. (Kaufman Dep. at 13:20-14:15, 54:20-55:9, 57:2-11; Craft

Dep. at 146:13-147:3.)

Moreover, the State has not certified even the Diebold touch screen system, which

Defendant Stafford purchased and intends to use in Duval County on a very limited basis at some

undetermined time in the future. (Plaintiffs' Memorandum in Support of Partial Summary

Judgment against Stafford at§ IT (E) ("Plaintiffs' Summary Judgment Motion").) This is the

case even though other jurisdictions, including Georgia, have certified the Diebold touch screen

system and have used it with great success in their elections. (Cox Dep. at 85:8-87:14, 77:22-

78:11.)6

6 Duval County's purchase and plan to place three Diebold touch screen machines in the Supervisor of Elections' office to serve the 40,000 disabled voters in Duval County does not meet the County's obligations under the ADA or the Rehabilitation Act. (Plaintiffs' Summary Judgment Motion at§ IT (E).)

4

Case 3:01-cv-01275-HLA-HTS Document 110 Filed 06/25/03 Page 5 of 8 PageiD 1760

\ ........

~

IV.

TECHNOLOGY IS THE "REASONABLE ACCOMMODATION"

FOR VISUALLY OR MANUALLY IMPAIRED VOTERS

Because this case involves new voting systems, the facts must be analyzed using the

"accessible to the maximum extent feasible" standard. (Oct. 16, 2002 Order at 16, 25-26.) Even

under the less stringent (and inapplicable) "reasonable accommodation" standard apparently

urged by the State, the State still has not complied with the ADA or the Rehabilitation Act. It is

undisputed that technology, unavailable only a few years ago, now exists and is readily available

to enable disabled voters to vote on equal footing with non-disabled voters. (Crow Dep. at 32:8-

33:6,40:21-41:5, 61:14-63:9; Stafford Dep. at 47:15-48: 4; B. O'Connor Dep. at 13:6-14:7,

30:18-23, 34:6-36:6; Kaufman Dep. at 18:17-19:2.) Jurisdictions across the country, including

many ofFlorida's own counties, have purchased and used successfully various iterations of

accessible voting systems in actual elections. (Browning Dep. at 72:22-73:21, 77:22-78:22,

81:24-84:3,85:4-14, 86:1-87:13; Browning Dep. Exs. 9, 11 & 12; Cox Dep. at 85:8-87:14,

75:17-76:4, 77:22-78:11; Kaufman Dep. at 13:20-14:15,54:20-55:2, 57:2-11; B. O'Connor Dep.

at 15:3-20, 19:21-21:5; B. O'ConnorDep. Exs. 2, 4; Haskell Dep. Ex. 3.) Even under the State's

inaccurate view of the law, these readily available, accessible voting systems are the only

"reasonable accommodation" for disabled voters.

V.

THE INJURIES TO VISUALLY IMPAIRED VOTERS AND

VISUALLY IMPAIRED VOTERS ARE PERVASIVE AND REAL

The State contends that the injuries alleged by the Plaintiffs are "isolated" or "speculative." (Motion at 11, 16.) Discovery revealed otherwise. (Harris Dep. at 52:4-53:17 and Harris Dep. Ex. 3 at Doe11298; Harris Dep. Ex. 7 at DOE0807 (persons with disabilities have been "exclu[ded] ...from full and equal participation in elections" and the Florida voting process that relegates persons with disabilities to voting only with assistance or by absentee ballot "stigmatize[s] their disabilities") (emphasis added); Harris Dep. Ex. 6 at DOE6792; Harris Dep. Ex. 10 at DOE10266-67; Harris Dep. at 94:6-22; Harris Dep. Ex. 11 at DOE1106768; ; Crow Dep. at 30:2-15, 54:1-21 (voters with disabilities are "disenfranchised" by the

5

Case 3:01-cv-01275-HLA-HTS Document 110 Filed 06/25/03 Page 6 of 8 PageiD 1761
v
Florida voting process), 33:19-34:5, 35:21-36:17; 47:4-25, 57:15-58:1 and Crow Dep. Ex. 7 at DOE12016, 12021 (there "are significant, severe and pervasive obstacles that have been placed in the path ofFlorida's voters with disabilities" including lack of"alternative" voting methods, insensitivity of election officials and poll workers, and the inability ofdisabled voters to vote in the same or similar manner as non-disabled voters); Bell Dep. at 22:11-24:9, 25:9-27:19, 33:2434:7; Bowen Dep. at 39:11-40:11, 51:13-53:23 (disabled voters cannot vote in the same or similar manner as individuals with similar impairments who live in nearby counties); Bowen Decl. ,13; D. O'Connor Dep. at 20:4-21:17, 37:24-41:4; Shaw Dep. at 82:20-83:24, 92:18-93:1; 93:12-95:11; Plaintiffs Summary Judgment Motion at§ II (B).) Equally important, it is undisputed that the Florida voting process provides no way for Plaintiffs to verify that their choices have been correctly marked on the ballot or even whether their ballot has been cast. (Harris Dep. at 46:1-47:3, 55:17-56:25; Harris Dep. Ex. 7 at DOE0807 (relegating disabled voters to voting with assistance or by absentee ballot "caus[es] them to doubt whether their vote was properly cast and counted''); Harris Dep. Ex. 6 at DOE6792; Harris Dep. Ex. 10 at DOE10266; D. O'Connor Dep. at 16:20-17:1, 20:4-21:17; Bell Dep. at 13:11-14:12; Shaw Dep. at 91 :5-14.) These injuries are hardly speculative, hypothetical or isolated.
Clearly, the discriminatory acts here far exceed the "diminution of the benefits [Plaintiffs] would otherwise receive from the program" or activity, required to establish injury under the ADA or Rehabilitation Act. Simpson v. Reynolds Metals Co., 629 F.2d 1226, 1232 (7th Cir. 1980); Sullivan v. City ofPittsburgh, 811 F. 2d 171, 182 n.12 (3d Cir. 1987). The Plaintiffs suffer real, non-speculative injuries due to the discrimination they face each and every time they vote.
For these reasons, and those stated in the Consolidated Opposition, the State's motion for summary judgment must be denied.
6

Case 3:01-cv-01275-HLA-HTS Document 110 Filed 06/25/03 Page 7 of 8 PageiD 1762

Dated: April 28, 2003

Respectfully submitted,

Lois G. Williams Co-Counsel Washington Lawyers' Committee for Civil
Rights and Urban Affairs 11 Dupont Circle NW, Suite 400 Washington, D.C. 20036 (202) 319-1000
Attorneys for Plaintiffs
Of Counsel:
Alan M. Wiseman Danielle R. Oddo Vincent E. Verrocchio Ari N. Rothman HOWREY SIMON ARNOLD & WHITE, L.L.P. 1299 Pennsylvania Ave., N.W. Washington, D.C. 20004 (202) 783-0800

7

Case 3:01-cv-01275-HLA-HTS Document 110 Filed 06/25/03 Page 8 of 8 PageiD 1763 '-I
CERTIFICATE OF SERVICE
I hereby certify that, on this 28th day of April, 2003, true copies of the foregoing Plaintiffs' Motion for Leave to File Supplemental Memorandum ofLaw in Opposition to Defendants' Motion to Dismiss orfor Summary Judgment and Plaintiffs' Supplemental Memorandum ofLaw in Opposition to Defendants' Motion to Dismiss orfor Summary Judgment were served by facsimile and first class United States mail, postage prepaid, upon each of the parties listed below:
Scott D. Makar, Esq. Office of General Counsel 117 West Duval Street Suite 480 Jacksonville, FL 32202 Charles A. Finkel, Esq. Assistant Attorney General Office ofthe Attorney General PL-01, The Capitol Tallahassee, FL 32399-1050
. ...,
,·£~ Ari N. Rothman

 
 Case 3:01-cv-01275-HLA-HTS Document 111 Filed 07/02/03 Page 1 of 8 PageiD 1764

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA JACKSONVILLE DIVISION

FILED
)j1/
ZotlJ JUL -2 I A If: 00

AMERICAN ASSOCIATION OF PEOPLE WITH DISABILITIES et al.

Plaintiffs, vs.

CASE NO.

CLfRK. US DIST!ICT COURT
M'~'-" ~' ';F''~i o:- H ORID.\ ,. .. ~ -- \ -- ~, - L _l-,: :J:....
3:01-CV-1275-J-21HTS

GLENDA E. HOOD, et al.

_____D__ef_e_n_d_a_n_ts_,_____/

DEFENDANTS HOOD AND KAST'S RESPONSE TO PLAINTIFFS' SUPPLEMENTAL MEMORANDUM
Defendants, Glenda E. Hood in her official capacity as Secretary of State for the State of Florida, and Edward C. Kast in his official capacity as Director for the Division of Elections, in response to Plaintiffs' Supplemental Memorandum of Law in Opposition to Defendants' Motion to Dismiss or for Summary Judgment say:
I. THE FEDERAL FINANCIAL ASSISTANCE RECEIVED BY THE DEPARTMENT OF STATE DOES NOT SUPPORT A REHABILITATION ACT CLAIM
The federal financial assistance referred to by the plaintiffs and by Hal Lench in his deposition was limited to specific grants that were provided to specific divisions within the Department of State. The terms of the grants either precluded the various departments from allocating those funds somewhere else or strictly limited their allocation. (Lench Dep. 25:9-22, 27:12-14, Ex.4,5,and 6) . The six million dollars in federal funding that was provided by the U.S. Department of Defense for an Internet pilot program in Okaloosa and Orange Counties was for the exclusive use of military personnel and their dependants who were deployed oversees. (Craft

l l I

Case 3:01-cv-01275-HLA-HTS Document 111 Filed 07/02/03 Page 2 of 8 PageiD 1765
Dep. 225:11-25). It was not run by the Division of Elections. (Craft Dep. 226: 13-14) . Additionally, the federal assistance referred to by the plaintiffs, which consists of providing assistance to increase voter registration as provided by the National Voter Registration Act, consists of just that. (Kast Dep.38:4-22). The Division of Elections has no authority over these armed forces recruitment offices. (Kast Dep.19-21). Plaintiffs have not demonstrated that the State can use any of these monies for any other purpose, much less to purchase "accessible" voting equipment.
The cases cited by plaintiffs are inapplicable to the facts as described. Also, there is no indication that the Division of Elections had any intent to be subject to the Rehabilitation Act by accepting limited federal assistance as required by the National Voter Registration Act. This does not "comport with community standards of fairness." Garrett v. The University of Alabama etc., 223 F.Supp 2d 1244,1251 (S.D. Ala. 2002). Additionally, plaintiffs have failed to demonstrate that they are the intended beneficiaries of the federal funds, that the state defendants were in a position to "accept or reject" the funds, and that the named defendants used their position to discriminate against the plaintiffs. Huck v. Mega Nursing Services, Inc., 989 F. Supp 1462, 1464 (S.D. Fla. 1997).
II. THE ADA IS NOT AN ELECTION LAW Plaintiffs' argument and their references to various portions of Katherine Harris' deposition do not transform her passion on behalf of voters with disabilities into enforceable rights. See,
2

Case 3:01-cv-01275-HLA-HTS Document 111 Filed 07/02/03 Page 3 of 8 PageiD 1766
Defendants Hood and Kast 's Response to Plaintiffs' Supplemental Memorandum in Support of Motion for Reconsideration. The ADA is not an election law and the Secretary of State is not responsible to ensure statewide compliance with its provisions. See, Lightbourn v. County of El Paso Texas, 118 F.3d 421,430 (5th Cir. 1997).
III. PLAINTIFFS HAVE FAILED TO DEMONSTRATE THAT THE STATE HAS FAILED TO CERTIFY "ACCESSIBLE" VOTING SYSTEMS
There is no provision in the ADA, the Rehabilitation Act, the Federal Statutes, the Florida Statutes, or in any case cited by the plaintiffs, that requires the State to certify voting systems that would enable voters, in Duval or any other county, to cast their votes in the same or similar manner as non-disabled voters. As more fully discussed in Defendants' Smith and Kast's Motion to Dismiss or for Summary Judgment, (Dkt. 55) both the United States Congress and the Florida Legislature have recognized a need and have implemented requirements and a future time table. Plaintiffs contend that the State has failed to certify readily available voting equipment such as the Hart Intercivic eSlate and the Diebold touch screen systems.
To the contrary, the State has certified various systems that have complied with the State's Voting Standards. (Craft Dep.Ex.13-19) It is readily apparent that the certification process requires a series of interactions between the State and the provider to ensure that the voting system will operate as required. (Craft Dep. Ex.7) The process includes testing and modifications, when necessary. (Craft Dep.103:21-104:12; 128:25-129:21) If during that process, the
3

Case 3:01-cv-01275-HLA-HTS Document 111 Filed 07/02/03 Page 4 of 8 PageiD 1767

voting system does not function properly, the provider is then

required to make the necessary modifications. If the provider fails

to address the issues, the certification process stops. That is

exactly what occurred with reference to the two systems referred to

by the Plaintiffs. (Craft Dep. 148:22-152:16) Specifically, that is

what occurred with the Diebold system despite requests from the State

to complete the process. Apparently, Diebold was more interested in

satisfying the State of Georgia, which had appropriated $58,000,000

to equip the entire state. (Cox Dep. 72:23-73:12; 81:5-7; Craft Dep.

Ex. 20) Moreover, it is immaterial whether various counties,

municipalities, or private citizens attempt to have various voting

systems, which are used in other states, certified in Florida. If

the provider is not interested in providing a functioning system that

complies with the voting standards and that accurately records the

votes, the State is unable to certify the system for purchase in

Florida. (Craft Dep. Ex.21). Plaintiffs cannot drive the certification

process, and they do not even have standing to raise this issue.

IV. IMMEDIATE IMPLEMENTATION OF NEW TECHNOLOGY IS NOT REQUIRED AS A "REASONABLE ACCOMMODATION" FOR VISUALLY OR MANUALLY IMPAIRED VOTERS

Assuming that the plaintiffs have suffered "pervasive and real"

injures, which they have not, the availability of new technology and

the purchase of such more "accessible" voting systems by various

Florida counties, does not require the State to only certify systems

that can be used by disabled voters without assistance at the present

time.

"Reasonable accommodation", when applicable, requires

4

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meaningful access, but does not guarantee equal results. Alexander v. Choate, 469 U.S. 287,304, 105 S.Ct. 712,722 (1985).
In an optimum environment, no individual would starve, no child would be abused, bad things would not happen to good people, and all individuals with visual or manual disabilities would be able to vote without assistance. Given the limited available resources and the various over-all needs and interests, Congress and the Florida Legislature have effectuated their priorities and have enacted legislation that will accommodate the plaintiffs' desires without creating undue hardships for the State and its numerous counties and municipalities. Plaintiffs have failed to provide any law, facts, or cogent reason why this Court should substitute its judgment for that of the legislators.
V. PLAINTIFFS HAVE FAILED TO DEMONSTRATE ANY PERVASIVE OR REAL INJURIES
Plaintiffs contend that voters with disabilities have been "excluded from full and equal participation in elections", "stigmatized", and "disenfranchised" by the Florida voting process. To support their allegations, plaintiffs rely upon various statements by former Secretary of State, Katherine Harris, and former State Representative, Larry Crow, both strong advocates and sponsors for the legislation that the Florida Legislature ultimately adopted. Their individual points of view and political advocacy do not constitute facts (except for the fact that they made the statements attributed to them) . Plaintiffs' testimony reveals a different story.
5

Case 3:01-cv-01275-HLA-HTS Document 111 Filed 07/02/03 Page 6 of 8 PageiD 1769
In their answer to Plaintiffs' Interrogatory #2 propounded by
the Court, the plaintiffs described their injuries and the specific
acts or omissions by the defendant as follows (Dkt. 7):
Through the action and inaction of the defendants that govern the voting process, voters with visual and manual disabilities have been denied their right to vote for the candidates of their choice in the free and unimpaired manner enjoyed by non-disabled citizens. They have been denied that right because the voting equipment certified, used and recently purchased by Defendants is not accessible to voters with visual or manual impairments. Defendants have discriminated against plaintiffs by subjecting them to a more burdensome and more intrusive voting process and by failing to make their services programs, or activities readily accessible.
When the same question was posed to the individual plaintiffs, their
counsel objected on the basis that it calls for a legal conclusion.
The plaintiffs then proceeded to give the same type of vague and illusory answers as set forth above. (O'Connor Dep.17:8-23:2; Bowen
Dep.14:14-17:1; Bell Dep.14:13-17:17). Additionally, none of the
inconveniences described by the individual plaintiffs prevented them from voting. (O'Connor Dep.16:20-17:7; Bowen Dep.14:3-13; Bell Dep. 13:11-15). These inconveniences are substantially the same as the individual plaintiffs face in their everyday routine. (O'Connor Dep.
15:16-16:11; Bowen Dep.22:10-29:18; Bell Dep.18:21-20:6). The
plaintiffs' testimony shows they have not been disenfranchised or excluded from full and equal participation in the election process,
and that they have not been stigmatized to any greater extent than
they might be in the performance of their daily activities.
When the same question was posed to James Dickson, the Rule
6

Case 3:01-cv-01275-HLA-HTS Document 111 Filed 07/02/03 Page 7 of 8 PageiD 1770
30(B) (6) representative for the American Association of People With Disabilities, plaintiffs' counsel objected on the basis that the question called for a legal conclusions, was vague, ambiguous and compound. Mr. Dickson then proceeded to give a vague and conclusory answer without providing any specifics. (Dickson Dep.65:13-69:19). Additionally, when asked about the source of information learned about the actions or inactions of the state defendants prior to filing this lawsuit, after numerous objections, Mr. Dickson testimony reflects that he mainly relied upon statements from various individuals, including the individual plaintiffs (who had only joined the AAPD immediately prior to the suit being filed). (Dickson Dep. 33:20-43:12 ;0' Connor Dep. 7:24-8:8 ;Bowen Dep. 6:2-11; Bell Dep. 6: 4-12) .
CONCLUSION The circle is now complete. Plaintiffs had no facts to support an action against the State defendants when they filed this action and are still unable to provide any facts that would prevent the entry of summary judgment against them. In fact, the AAPD was aware of the state's election study commission and knew or should have known of the impetus being supplied by the Secretary of State and the Division of Elections to provide exactly what is sought in this action. (Dickson Dep.35:25-36:17). The plaintiffs were fully aware that the train was rolling when they jumped on board. They have not suffered any pervasive or real injuries and it is time they got off via the entry of summary judgment against them and a dismissal with prejudice.
7

Case 3:01-cv-01275-HLA-HTS Document 111 Filed 07/02/03 Page 8 of 8 PageiD 1771

Respectfully submitted,

~~~JR.
~-~L CHARLES
Assistant Attorney General Florida Bar No. 099390 Office of the Attorney General PL-01, The Capitol Tallahassee, Florida 32399-1050 (850) 414-3300

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true copy of the foregoing has been

furnished by facsimile and U.S. Mail to:

J. Douglas Baldridge Howrey Simon Arnold & White 1299 Pennsylvania Avenue, N.W. Washington, D.C. 20004
Scott D. Makar Office of General Counsel 117 West Duval Street Suite 480 Jacksonville, FL 32202

Lois G. Williams Washington Lawyer's Committee for Civil Rights and Urban Affairs 11 Dupont Circle NW, Suite 400 Washington, D.C. 20036

on this {~day of July, 2003.

8

 
 Case 3:01-cv-01275-HLA-HTS Document 112 Filed 07/02/03 Page 1 of 8 PageiD 1772
F,rg__r:::o·

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA JACKSONVILLE DIVISION
American Association of People with Disabilities, Daniel W. O'Conner, Kent Bell, and Beth Bowen,

~---

~

ZUOJ JUL -2 i P 2: 30

Plaintiffs, v.

Case No.: 3:01-CV-1275-J-21 TJC

Glenda Hood, as Secretary of State for the State of Florida; Edward C. Kast, as Director, Division of Elections; and John Stafford, as Supervisor of Elections, Duval County.

Defendants.
------------------------------~/
RESPONSE TO PLAINTIFFS' SUPPLEMENTAL MEMORANDUM OF LAW IN OPPOSITION TO DEFENDANTS'
MOTION TO DISMISS OR FOR SUMMARY JUDGMENT

Pursuant to the Court's June 25, 2003 order, Defendant, John Stafford, Supervisor of

Elections, Duval County, provides this response in opposition to the "Plaintiffs' Memorandum

of Law in Opposition to Defendants' Motion to Dismiss or for Summary Judgment."

I. Federal Financial Assistance.

Supervisor Stafford adopts the response of the State Defendants on this issue.

II. The ADA Is Not An "Election" Law And Does Not Displace The VRA. The VAEHA. Or The "Help America Vote Act of 2002". Which Specifically Address Voting System Accessibility Issues.

The statements of former Secretary of State Katherine Harris do not alter the legal

conclusion that the ADA (and its close kin, the RA) is not an election law and does not

displace the Voting Rights Act of 1964 (as amended) ("VRA"), the Voting Accessibility for

the Elderly & Handicapped Act of 1984 ("VAEHA) or the Help America Vote Act of 2002.

Instead, these latter voting acts are the exclusive federal legislative standards for accessibility

issues as they relate to voting systems.

II~

Case 3:01-cv-01275-HLA-HTS Document 112 Filed 07/02/03 Page 2 of 8 PageiD 1773
As in their other legal papers, Plaintiffs seek to transform the former Secretary's
unofficial, personal exhortations into the force of law. In a remarkably similar situation, the
Fifth Circuit in Lightbourn v. County of E1 Paso. Tex., 118 F.3d 421, 431 (5th Cir. 1997)
specifically held that the deposition testimony of a state election official - which the plaintiffs
characterized as "conced[ing]" that the "ADA is an 'election law"' - was not binding as to
legal conclusions. Rather, statutory interpretation is done de novo and a party's construction of
a law is nonbinding. Id. As in Lightbourn, a review of the deposition testimony of Secretary
Harris- a professed non-lawyer- "demonstrates that, rather than conceding that the ADA is an
'election law,' [she] was unsure whether it was." Id.
Further, the testimony of Secretary Harris does not alter the legal conclusion that the
ADA and RA do not apply to voting systems. As the district court in Nelson v. Miller, 950 F.
Supp. 201 (W.D. Mich. 1996) stated:
This Court does not find anything in the ADA to indicate that Congress believed that the Voting Rights Acts [VRA and VAEHA] were insufficient. Nothing in Lightbourn [v. County of El Paso, Texas, 904 F. Supp. 1429 (W.D. Tex. 1995), reversed 118 F. 3d 421 (5th Cir. 1997)] or in anything submitted by the Plaintiffs demonstrate that Congress intended that the ADA or RA should be read so broadly as to require states with statutory provisions regarding a secret ballot to provide blind voters with voting privacy free from third party assistance. Similar to the Voting Rights Acts, Congress intended that blind voters have access to the voting booth and freedom from coercion within the voting booth, not complete secrecy in casting a ballot. This Court will not rewrite the ADA or RA to require such a privacy right.
Id. at 204. The district court's concern with expanding the ADA into areas already occupied by
federal voting accessibility laws should not go unheeded. As the district court noted:
... the Plaintiffs do not contend that they are being denied the right to cast their ballots. Instead, they want this Court to go even further and find that Congress intended to elevate a blind voter's privacy in casting a ballot to a protected right under the ADA or RA. There is no indication from the wording ofthe ADA and RA or the legislative history of either Act that Congress intended such a broad reading. This conclusion is further strengthened when the ADA and RA are
2

Case 3:01-cv-01275-HLA-HTS Document 112 Filed 07/02/03 Page 3 of 8 PageiD 1774
read in harmony with the Voting Rights Acts, which also do not mandate the result proposed by the Plaintiffs. ld. (emphasis added). The court noted that the VRA specifically required that a blind voter be provided third party assistance of his or her choice, and that the Senate Report accompanying the VAEHA (which requires polling places to be "accessible" to handicapped voters), specifically stated "'that any minimal effect on the privacy of those who are elderly or handicapped is more than offset by the expanded opportunities for participation in the political process." Nelson v. Miller, 170 F.3d 641,644-45 (61h Cir. 1999) (citation omitted). Further, the Fifth Circuit in Lightbourn v. County ofEl Paso. Tex., 118 F.3d 421, 431 (51h Cir. 1997) has held that the "ADA is not an election law." First, the ADA does not include even a single provision specifically governing elections. On the contrary, the statute never refers to elections. Indeed, the statute only mentions voting once, and that is in the "findings and purpose" section.... The mere mention of the word "voting" here does not transform the ADA into an "election law." Such a tangential allusion is insufficient to impose on the Secretary the rather extraordinary duty of ensuring that local election officials interpret and apply the ADA uniformly. Id. at 430 (holding that the phrase "election laws" means only those that "relate to elections," such as the VRA or the VAEHA). Persuasive, if not dispositive of this point, is the enactment of federal legislation, the Help America Vote Act of 2002, which provides funds to States to upgrade their voting systems and "establish[es] minimum election administration standards for States and units of local government" including accessibility standards for disabled voters. PL 107-252, 2002 HR 3295 (Proviso & Title 111).1 That Congress has enacted detailed requirements applicable to new
1 Recent Florida legislation also provides standards that will eliminate the Plaintiffs' concerns that prompted the assertion of their ADA and Rehabilitation Act claims. See Chapter 2002-281, Laws of Florida.
3

Case 3:01-cv-01275-HLA-HTS Document 112 Filed 07/02/03 Page 4 of 8 PageiD 1775
voting systems and technology for the disabled makes apparent that Congress has no intention that the ADA and RA apply to voting systems and their related technology or that the ADA or RA be vehicles for litigants to obtain affirmative mandatory judicial relief in the form sought by the Plaintiffs in this action. III. Plaintiffs' Argument Regarding Certification Of"Accessible" And "Readily Available"
Voting Equipment Is Vacuous. Plaintiffs erroneously make it appear that "accessible" voting systems have been "readily available" during all relevant timeframes. First, Plaintiffs fail to point out that, at the time Supervisor Stafford made the decision to purchase the Diebold/Global system in December 2001/January 2002, the only certified system in Florida for the disabled was an ESS touchscreen system with audio ballot useable only by those with visual disabilities [Craft 13031, Ex. 13-17, 20; Stafford 134-35; Ex. 12 & 13;] with only a few small counties choosing it. [Stafford Ex. 16 & 17 (Sumter and Pasco Counties)] Supervisor Stafford had evaluated the ESS system and found it lacking because it did not have the lowest error rate, had an undesirable override feature that allowed overvotes,2 and was slow in uploading. [Stafford 9697] He felt the Diebold/Global touchscreen with audio ballot for the visually disabled was superior and had contractual assurances it would be available for Fall 2002 elections and beyond. [Stafford 97] As such, Plaintiffs' discussion of voting systems certified (or not) in Florida after the decision to procure the Diebold/Global system for Duval County is irrelevant. Second, the claim that "numerous" jurisdictions have successfully used "readily available" voting systems for the manually impaired is insupportable. The archetype to which
2 This inability to override or prevent overvotes is a criterion that was found unacceptable by Plaintiffs' own witnesses who serve as election officials or vendors. [Cox 136 (Georgia Secretary of State), Kaufman 75-76 (Clerk of Court, Harris County, Texas), Brian O'Connor 65-66 (Vice President, Sales & Marketing, Sequoia Voting Systems)]
4

Case 3:01-cv-01275-HLA-HTS Document 112 Filed 07/02/03 Page 5 of 8 PageiD 1776
they point - the Hart eSlate -has only been used in two Texas jurisdictions and one Colorado jurisdiction in the past year. [Kaufmann, 57] The system was only recently selected for use in Orange County, California. ld. Plaintiffs present no evidence that it was available, much less certifiable in Florida, at the time Supervisor Stafford made his purchasing decision in December 2001/January 2002. [Stafford 130-34]
Ironically, the two jurisdictions the Plaintiffs have highlighted as role models as to visually disabled voters - Harris County/Austin, Texas and the State of Georgia - had not converted from punch cards to newer technologies until after Supervisor Stafford had already made his decision to purchase the Diebold/Global system. The Texas jurisdiction used punch cards as its predominant technology until April 2002 after which it switched to eSlate, a button-based system without touchscreens. [Kaufman 35-39, 66] (Harris County rejected touchscreen technology because it is "easily damaged and would require a lot of maintenance which could be expensive."). The State of Georgia phased in touchscreen systems as of Fal/2002 and used optical scan, punch cards and even lever machines up until that time (the latter all continuing to be used statewide in municipal elections). [Cox 10, 13839; D's Comp. Ex. 1 pp. 9-11 (chronology)]
For all these reasons, it is readily apparent that newly emerging voting system technologies that Plaintiffs attempt to have this Court require of Supervisor Stafford were neither "readily available" nor "accessible" (other than the problematic Hart eSlate for visually disabled voters) at the time Supervisor Stafford chose the Diebold/Global system in December 2001/January 2002. Given that Supervisor Stafford committed to a phase-in of touchscreens with audio ballots, as recommended by the Duval County Task Force, it is apparent that Plaintiffs have no claim for relief, even if the ADNRA were applicable.
5

Case 3:01-cv-01275-HLA-HTS Document 112 Filed 07/02/03 Page 6 of 8 PageiD 1777
N. Nascent Technology Is Not The Sole Accommodation. The claim that newly emerging technology is the only legally permissible
accommodation for disabled voters is mistaken. Plaintiffs overlook that third party assistance is recognized as a critical accommodation under federal elections law and Office of Civil Rights opinions.3 They also ignore that Florida law, as reflected in this Court's dismissal order, requires third party assistance as an appropriate accommodation and that the disabled community has long advocated for such assistance. Plaintiffs also again overstate the extent to which newly developing technology was available at the time Supervisor Stafford made the decision to purchase the Diebold/Global system. Ironically, Plaintiffs trumpet that "technology, unavailable only a few years ago, now exists and is readily available" for disabled voters, but overlook that what is becoming available today is irrelevant legally to decisions made by Supervisor Stafford a few years ago when only a handful of systems were available, much less certified in Florida or feasible (economically or technologically). V. Plaintiffs' Only Grivance Is The Provision Of Third Party Assistance Required Under
Florida And Federal Law. Despite generalized arguments about injuries to which disabled voters have purportedly been subjected, the Plaintiffs' own testimony establishes that the only grievance they claim is the provision of third party assistance, as Florida and federal law requires. Each Plaintiff was asked specifically what Supervisor Stafford has done, other than providing third party assistance, that discriminated against them because of their disability. Plaintiff 0' Connor twice
3 See Voting Rights Act of 1984; Voting Accessibility for the Elderly & Handicapped Act of 1984. Letter of Findings, Dep't of Justice (August 25, 1993) (letter to Supervisor of Elections, Pinellas County, Florida) http://www.usdoj.gov/crtlfoialcltr099.txt ("Although providing assistance to blind voters does not allow the individual to vote without assistance, it is an effective means of enabling an individual with a vision impairment to cast a ballot.").
6

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testified emphatically "There is no other basis." and that there is "No other basis." [O'Connor 48-49] Plaintiff Bowen testified she had no basis for claim other than not receiving Braille materials from the Supervisors of Elections office [Bowen 50-51], which has no legal obligation to do so. See Letter of Findings, Dep't of Justice (August 25, 1993) (supervisors of elections not "required to provide Braille ballots or electronic voting in order to enable individuals with vision impairments to vote without assistance."). Bowen, who voted absentee until the Fall 2002 election, raised alleged problems arising decades ago that were de minimis, time-barred, or not legally actionable. [Bowen 35-46] Plaintiff Bell testified emphatically and repeatedly that his basis for discrimination was the lack of "accessible equipment for persons with disabilities who are visually, manually and neurologically impaired to cast a secret and direct ballot" in Duval County. [Bell 7-8, 42] When asked for any additional basis for his claim of discrimination, he had none other than a belief that voting officials were "insensitivity to the disabled voters." [Bell 43, 46-47] Contrary to assertions in Plaintiffs' legal papers, they have no "pervasive" injuries arising from "discrimination they face each and every time they vote."
CONCLUSION Based on the foregoing, as well as other pending submissions in this case, the remainder of this action should be dismissed and judgment entered in Defendants' favor.
Respectfully Submitted, RICHARD A. MULLANEY GARAL COUNSEL
'1'&~4-
7

Case 3:01-cv-01275-HLA-HTS Document 112 Filed 07/02/03 Page 8 of 8 PageiD 1779

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing was furnished by U.S. Mail

and facsimile to J. Douglas Baldridge, Esq., Howrey, Simon, Arnold & White, LLP, 1299

Pennsylvania Avenue, N.W., Washington, D.C. 20036; by U.S. Mail to Lois G. Williams, Esq.,

Washington Lawyers' Committee for Civil Rights and Urban Affairs, 11 DuPont Circle, NW,

Suite 400, Washington, D.C., 20036, and by U.S. Mail to Charles A. Finkel, Asst. Attorney

General, Office of the Attorney General, PL-01, The Capitol, Tallahassee, Florida 32399-1050,

on this 2nd day of July, 2003.

xi~-

Attorney

8

 
 Case 3:01-cv-01275-HLA-HTS Document 124 Filed 08/19/03 Page 1 of 25 PageiD 1923

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA JACKSONVILLE DIVISION
•I '
AMERICAN ASSOCIATION OF PEOPLE WITH DISABILITIES; DANIEL W. O'CONNOR; KENT BELL; and BETH BOWEN,

Plaintiffs, on behalf of themselves and others similarly situated,
v.

CASE NO. 3:01-cv-1275-J-Alley/HTS

GLENDA E. HOOD, as Secretary of State for the State of Florida; EDWARD C. KAST, as Director, Division ofElections; JOHN STAFFORD, as Supervisor of Elections in Duval County, Florida,

Defendants.
------------------------------------------------~/
ORDER

The following motions are presently before the Court for decision:

• Defendant Stafford's Motion to Dis~iss Amended Complaint or, Alternatively,
for Summary Judgment (Dkt. 53), Defendants Hood and Kast's Dispositive Motion to Dismiss Plaintiffs' Second Amended Complaint or in the Alternative Motion for Summary Judgment (Dkt. 55), Plaintiffs' Consolidated Response (Dkt. 59) in opposition thereto, Plaintiffs Supplemental Memorandum (Dkt. 110) in opposition thereto, Defendant Stafford's Response to Plaintiffs' Supplemental Memorandum (Dkt. 112), and Defendants Hood and Kast's Response to Plaintiffs' Supplemental Memorandum (Dkt. Ill);

• Plaintiffs' Motion for Summary Judgment Against Defendant John Stafford on Count I (ADA) ofthe Amended Complaint (Dkt. 95), and Defendant Stafford's Response (Dkt. 100) in opposition thereto;

Case 3:01-cv-01275-HLA-HTS Document 124 Filed 08/19/03 Page 2 of 25 PageiD 1924

• Plaintiffs' Motion for Leave to File a Reply Memorandum to Correct Materially False Allegations in the County's Opposition to Plaintiffs' Summary Judgment Motion (Dkt. 105), and Defendant Stafford's Response (Dkt. 107) in opposition thereto.

I. Facts and Background Information

Plaintiffs Daniel O'Connor and Beth Bowen are visually impaired persons registered to

vote in Duval County. Plaintiff Kent Bell is a manually impaired person registered to vote in

Duval County. The individual Plaintiffs are unable to vote without third-party assistance using

the optical scan voting system Duval County purchased in 2002. O'Connor has voted in Duval

County in most elections since 1992, either with his wife's assistance or with the assistance of

poll workers. See Dkt. 77, o~connor's Deposition, p. 34-36. Bell has voted in Duval County

in three elections since 2001, each time with third-party assistance. See Dkt. 79, Bell's

Deposition, p. 8-9. Bowen has voted in most Duval County elections since 1962, each time with

third-party assistance. See Dkt. 78, Bowen's Deposition, p. 13-14.

All three individual Plaintiffs have expressed concerns about voting with third-party

assistance. O'Connor has wondered whether his vote has been accurately cast according to his

wishes. See Dkt. 77, p. 16-17. In addition, O'Connor stated that he cannot be sure that the

.

.

person providing assistance will read the entire ballot to him. See id. at 20. O'Connor testified

that on one occasion the person providing assistance did not initially read the candidates' party

affiliations, although she did so upon his request. See id. at 20-21. O'Connor also testified

about being provided assistance in a room where other disabled voters were being provided

assistance and how he could overhear other disabled voters' selections. See id. at 37-38.

2

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Finally, O'Connor is concerned with the possibility that the people who provide him assistance will reveal his vote to others. See id. at 56.
Bell stated that having to vote with assistance causes him to feel like "a second- class citizen" and that he is concerned that others may hear him when he tells the person providing assistance for whom he wishes to cast his vote. See Dkt. 79, p. 10-11. During one election, Bell had to wait five minutes before someone was available to assist him, during which time other voters were able to cast their votes. See id. at 33-34.
Plaintiff Bowen expressed concern that her ballots have not been marked according to her wishes, although she stated that she did not have a concrete basis for this belief. See Dkt. 78, p. 31-33. Bowen testified that she has had to ask what candidates' party affiliations are or who the candidates are for a position, but the information has always been provided. See id. at 36-38. In addition, Bowen stated that she has had to make her vote more public by telling the person providing assistance her choice of candidates in a way that permits others to overhear her vote. See id. at 39-40.
Defendant Glenda Hood is the Florida Secretary of State. As head ofthe Department of State, she has overall_responsibility for the administration of the state's el_ection laws and for the supervision of Defendant Edward Kast, Director of the Division of Elections. Kast is the person within the Department responsible for election matters, including the approval ofvoting systems. Defendant John Stafford is the Supervisor ofElections for Duval County, Florida, and is responsible for selecting and purchasing voting systems for use within the county.
3

Case 3:01-cv-01275-HLA-HTS Document 124 Filed 08/19/03 Page 4 of 25 PageiD 1926
In Florida, a voting system must be certified by the Division of Elections ofthe Florida Department ofState before a county may purchase the system. See Fla. Stat. § 101.294(1). The Certification process begins when a voting system is presented to the Bureau ofVoting Systems Certification by the filing ofa Division ofElections application form entitled "Application for Certification or Provisional Certification of Voting System."' See Dkt. 82, Paul Craft's Deposition, p. 87, Exhibit 7, p. 8. A voting system must meet the requirements set forth in the Florida Election Code and the Florida Voting System Standards. See id. at 77.
The Department of State has certified a number of voting systems that contain at least some components that make unassisted voting available to some disabled voters. Former Florida Secretary of State Katherine Harris sent a memorandum dated September 18,2001, to all county Supervisors of Elections in which she stated that, as of the writing of the letter, a voting system containing an audio ballot interface had been certified. See Dkt. 69, John Stafford's Deposition, p. 89, Exhibit 11. Paul Craft, the Chiefofthe Bureau ofVoting Systems Certification, stated that he believed that an Elections Systems and Software, Inc. (ES&S), voting system with touch screens and an audio ballot was certified in the first halfof200 1. See Dkt. 82, p. 131. In addition, the following vot~g systems were certified by the Florida Department of State and include an audio ballot:
• The ES&S Voting System, Release 3, certified May 7, 2002. See Dkt. 69, p. 93, Exhibit 12.
1 The Bureau of Voting Systems Certification is part of the Division of Elections.
4

Case 3:01-cv-01275-HLA-HTS Document 124 Filed 08/19/03 Page 5 of 25 PageiD 1927
• The ES&S Voting System, Revised Release 3.1, certified June 17, 2002. See Dkt. 82, p. 123, Exhibit 13.
• The ES&S Voting System, Release 4, certified August 7, 2002. See id. at 124, Exhibit 14.
• The Sequoia Voting Systems, Inc. (Sequoia), AVC Edge Voting System, Release Level3, certified August 7, 2002. See id. at 127, Exhibit 17.
• The ES&S Voting System, Release 3.2, certified August 21, 2002. See id. at 126, Exhibit 16.
• The ES&S Voting System, Release 4.2, certified August 21, 2002. See id. at 125, Exhibit 15.
• The Sequoia AVC Edge Voting System, Release Level3 .1, certified October 31, 2002. See id. at 143, Exhibit 19.
Finally, a Hart InterCivic voting system was presented to the Division of Elections for certification but was not certified. See id. at 148-49. Craft stated that the Division ofElections did not certify the Hart InterCivic system presented because it failed the Division's testing. See id. Craft stated that several anomalies occurred that were never successfully resolved. See id. at 149.
At least one voting system manufactured by Hart InterCivic, the eState Electronic Voting System, allows ~isually impaired voters to vote without assistance v~a audio components and allows manually impaired voters to vote without assistance via "jelly switch" or "sip and puff' devices.2 See Dkt. 93, p. 33, 39, 43-50. Craft stated, however, that the Hart lnterCivic system
2 A "sip and puff'' device is a device that allows severely physically impaired voters to cast their ballots using only their breath. A '1elly switch" or "jelly bean switch" is a round switch, roughly two-inches in diameter, that allows physically impaired voters to cast their ballots by activating the switch with a hand, fmger, pencil, or other body part or instrument; minimal force is required to activate a jelly switch because the switch is sensitive to a small amount of pressure.
5

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presented to the Florida Department of State for certification did not contain sip and puffstick components. See Dkt. 82, p. 148. It is not clear whether the Hart InterCivic system presented for certification contained jelly bean switch components. According to Stafford, no voting system certified in Florida includes puff technology. See Dkt. 69, p. 128.
The Division of Elections provides technical advice to the county Supervisors of Elections, including technical assistance concerning how voting systems differ and what types ofthings counties should consider when selecting a voting system. These include the number ofregistered voters, structure and resources available for storing voting systems, available staff support, costs, preparation, maintenance, and storage costs. See Dkt. 82, p. 47-48. Craft testified that the Division of Elections does not make specific recommendations as to which system a county should purchase or whether one system is better than another. See id. at 49-50.
Duval County had to replace its previous punch card voting system before the September 2002 elections following the enactment of legislation prohibiting the use ofsuch systems after September 1, 2002. See Dkt. 69, p. 132; see also 2001 Fla. Laws ch. 2001-40, § 18. Stafford stated that he decided to purchase the Global Election Systems AccuVote voting system in January 2002. See Dkt. 69, p. 130; Dkt. 90, J~cquelyn Gibb's Deposition, Exhibit 2, Exhibit A. In January or February of2002, the Jacksonville City Council approved and appropriated money for the purchase. See Dkt. 69, p. 130; Dkt. 90, p. 18, 21, Exhibit 2. Subsequently, the Jacksonville Procurement and Supply Division approved the procurement and recommended the purchase ofthe AccuVote voting system. See Dkt. 90, Exhibit 2, Exhibit C. On October 3,
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2002, the City of Jacksonville signed an agreement with Diebold Election Systems, Inc. (Diebold),3 to lease the AccuVote optical scan voting system with the option to purchase the system for a nominal amount at the end of the lease period. See Dkt. 69, p. 59.
In addition, the City purchased three Diebold touch screen machines, which have audio auxiliary accessibility components. See id. at 20, 56; Dkt. 90, Exhibit 4, Exhibit A. Stafford asserts that Diebold agreed to get the touch screen machines certified as part of a certified voting system in time for the 2002 elections but that Diebold failed to do so. See Dkt, 69, p. 9798. Stafford testified during his February 11, 2003, deposition that he intended to locate the three touch screen machines at election headquarters in downtown Jacksonville for visually impaired voters to use if they chose. See id. at 60. Also, the City's agreement with Diebold permits the City to trade in the optical scan machines by December 31, 2007, in exchange for credit toward the purchase of touch screen machines. See Dkt. 90, Exhibit 4, ~ 4.10.
Stafford asserts that he made the purchase decision in January or February 2002 to ensure that the new voting system would be in place in time for the September 2002 elections. See Dkt. 69, p. 132. Stafford stated that he was told that it would take three to four months to recei~e the equipment once purchased. See id. at 133. S~afford received a few machines for training in April 2002 with the rest ofthe 315 machines arriving in May and June. See id.
Stafford stated that he selected the Diebold optical scan system because he believed it was the most accurate certified system with a proven track record. See Dkt. 69, p. 96-97.
3 Diebold Election Systems, Inc., purchased Global Election Systems in February or March 2002. See Dkt. 69, p. 97.
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Stafford stated that they considered an ES&S system but opted not to purchase the ES&S system because (1) the ES&S system contained a voter override feature that he did not like; (2) Diebold agreed to have the touch screen machines certified; and (3) the ES&S system took longer to "boot-up" than the Diebold optical scan system. See Dkt. 69, p. 96-97.
The Division ofElections has not certified the Diebold touch screen machines supporting audio ballots. See Dkt. 82, p. I50-5I. The machines were not certified, at least in part, because a blind voter testing the machines could not successfully navigate through the audio ballot. See id. at I5I. It is not clearwhether Diebold subsequently withdrew its application for certification or if it just failed to continue to pursue certification. See id. at I50. According to Craft, a Diebold representative told him in or around the beginning of2003 that Diebold was not willing to pursue certification until the next version ofthe Voting System Standards were issued. See id. at I52.
The Department of State includes, inter alia, the Division of Elections, the Division of Historical Resources, the Division ofCultural Affairs, and the Division ofLibrary Information Services. See Dkt. 74, Hal Lench's Deposition, p. II; Dkt. 75, Clayton Roberts' Deposition, p. I7. Hal Lench, the Direct~r ofAdministrative Services for the Florida Depart~ent of State, stated that the Divisions of Historical Resources, Cultural Affairs, and Library Information Services receive federal funds. See Dkt. 74, p. II. According to Hal Lench, the Division of Elections does not receive federal funding for election related programs. See id. at 21.
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II. Plaintiffs' Claims On November 5, 2002, Plaintiffs filed their Amended Complaint (Dkt. 47), alleging that
Defendants violated Title II ofthe Americans With Disabilities Act, 42 U.S.C. §§ 12131-12165 (ADA), and Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794. Specifically, Plaintiffs allege (1) that, by certifying and purchasing voting equipment that is not accessible to visually and manually impaired voters, Defendants discriminated against Plaintiffs in violation of 42 U.S.C. § 12132 by not affording them the opportunity to vote in the same or similar manner as non-disabled voters; (2) that Defendants violated 28 C.F.R. § 35.151(a)-(b) by failing to ensure that the new voting system is readily accessible to and usable by Plaintiffs; (3) that Defendants violated 28 C.F.R. § 35.160 by failing to take appropriate steps to ensure that Plaintiffs are able to communicate their votes as effectively as non-disabled voters, by failing to furnish appropriate auxiliary aids that afford Plaintiffs an equal opportunity to participate in and enjoy the benefits of independently voting by secret ballot, and by failing to give primary consideration to Plaintiffs' requested auxiliary aids; and (4) that, by certifying and purchasing voting machines that do not permit visually and manually impaired voters to vote without assistance, Defendants violated 29 U.S.C. § 794 and 28 C.F.R. § 42.503. Plaintiffs allege that the Defendants' discrimination manifests itself by the Plaintiffs' (a) being forced to reveal their votes to third-parties; (b) risking and having their votes further revealed to others; (c) risking and having their votes influenced by third-parties; (d) having to vote in a manner that singles them out at the polls; (e) having to wait long periods until a third-party is available to
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provide assistance; (f) having to incur the burden of traveling to Elections Headquarters to use the three audio-ballot accessible voting machines purchased by Duval County; and (g) having to suffer embarrassment and distress when voting for the foregoing reasons and because they have to vote in a manner materially different from and more burdensome than the manner in which non-disabled voters vote. III. Defendants' Motions
Defendants' Motions seek summary judgment as an alternative to dismissal. In view of the voluminous record that has been generated since the filing of the Motions, they will be treated as motions for summary judgment and disposed of as provided in Rule 56. See Fed. R. Civ. P. Rule 12(b). All parties have received ample opportunity to present materials made pertinent by Rule 56 and to be heard on all issues presented by the Motions. In fact, based on the record developed after Defendants' Motions were filed, Plaintiffs seek summary disposition in their favor of the ADA claim against Defendant Stafford. IV. Summary Judgment Standard
Summaryjudgment is appropriate only when a court is satisfied "that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ. P. 56(c). In making this determination, a court must view all the evidence in the light most favorable to the non-moving party. See Anderson v. Liberty Lobby. Inc., 477 U.S. 242,255, 106 S.Ct. 2505,91 L. Ed.2d202 (1986). The burden ofestablishing the absence ofa genuine issue is on the moving party. See Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct.
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2548,91 L. Ed.2d 265 (1986). However, the burden extends only to facts that might affect the outcome ofthe suit under the governing law. See Anderson, 477 U.S. at248. Once this burden is met, the non-moving party must "go beyond the pleadings and by her own affidavits, or by the 'depositions, answers to interrogatories, and admissions on file,' designate 'specific facts showing that there is a genuine issue for trial.'" Celotex Corp., 477 U.S. at 324. However, a non-movant need only present evidence from which the trier of fact might return a verdict in his favor in order to survive a summary judgment motion. See Anderson, 477 U.S. at 254. V. Summary of Contentions
The core contention of Plaintiffs is this: Even if access to third party assistants to help visually and manually impaired voters satisfied legal requirements in the past, when new equipment was recently purchased, the law required the selection of equipment that would permit these voters to use it unassisted by third parties. Defendants raise numerous legal challenges to Plaintiffs' claims. Nonetheless, for reasons explained below, the Court finds that genuine disputes of material facts preclude entry of summary judgment for any party. VI. Analysis
As a threshold matter, the Court finds that Plaintiffs have standing to assert their claims because the ADA, the Rehabilitation Act, and the implementing regulations create legal rights that allegedly have been violated and likely will be violated when Plaintiffs next have opportunity to vote. All three individual Plaintiffs are registered to vote in Duval County, have consistently voted in Duval County since becoming residents, and intend to vote in future
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elections. Thus, the alleged violations of their rights will occur again. In addition, Plaintiffs assert that their injuries are traceable to the conduct of Defendants Hood and Kast (State Defendants) because the State Defendants have failed to certify voting systems that would allow them to vote without assistance. In short, Plaintiffs have made a sufficient showing to demonstrate the existence of an actual case or controversy for adjudication, as required by Article III of the Constitution.
A second preliminary matter is the effect of the Order of October 16, 2002. By that Order, the Court dismissed with prejudice Plaintiffs' ADA and Rehabilitation Act claims to the extent they were based on Plaintiffs' having been excluded from or denied the benefits of a program of direct and secret voting without the third-party assistance that is authorized by Section 101.051, Florida Statutes. See Dkt. 42, pp. 37-38. The Order did not foreclose, however, the assertion of other claims based on the recent purchase of new voting equipment. By their Amended Complaint, Plaintiffs assert, among other things, that Defendants violated the ADA and related regulations by certifying and purchasing voting equipment that is not readily accessible, that does not meet the requirements regarding communications and auxiliary aids, and that prevents Plaintiffs from voting in the same or similar manner as other voters. The Court finds that the Amended Complaint states claims that are not identical to those previously dismissed and that Plaintiffs' claims are not precluded by the October 16 Order.
Plaintiffs' claims implicate the ADA, the Rehabilitation Act, and the implementing regulations promulgated under these statutes. Title II of the ADA provides:
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Subjectto the provisions ofthis subchapter, 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.
42 U.S.C. § 12132. Similarly, Section 504 of the Rehabilitation Act provides in pertinent part:
No otherwise qualified individual with a disability ... shall, solely by reason of her or his 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.
29 U.S.C. § 794(a). Under both laws, Congress mandated the promulgation of implementing
regulations that would be consistent with each other. See 29 U.S.C. § 794(a); 42 U.S.C.
§ 12134(a)-(b). The regulations most pertinent to this case set standards for accessibility and
communications.4 Section 35.151 of Title 28 of the Code of Federal Regulations provides:
(a) Design and construction. Each facility or part of a facility constructed by, on behalfof, or for the use ofa public entity shall be designed and constructed in such manner that the facility or part of the facility is readily accessible to and usable by individuals with disabilities, if the construction was commenced after January 26, 1992.
(b) Alteration. Each facility or part of a facility altered by, on behalf of, or for the use of a public entity in a manner that affects or could affect the usability of the facility or part of the facility shall, to the maximum extent feasible, be altered in such manner that the altered portion of the facility is readily accessible to and usable by individuals with disabilities, if the alteration was commenced after January 26, 1992.
4 While the following discussion utilizes regulations issued under the ADA, regulations implementing the Rehabilitation Act contain similar standards. See 28 C.F.R. §§ 39.151, 39.160.
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28 C.F.R. § 35.151(a)-(b)(emphasis added}.5 Section 35.160 ofTitle 28 ofthe Code ofFederal
Regulations provides:
(a) A public entity shall take appropriate steps to ensure that communications with applicants, participants, and members ofthe public with disabilities are as effective as communications with others.
(b)(1) A public entity shall furnish appropriate auxiliary aids and services where necessary to afford an individual with a disability an equal opportunity to participate in, and enjoy the benefits of, a service, program, or activity conducted by a public entity.
(2) In determining what type of auxiliary aid and service is necessary, a public entity shall give primary consideration to the requests of the individual with disabilities. 28 C.F.R. § 35.160.6 Other regulations issued under the ADA and the Rehabilitation Act
identify generally prohibited acts. See 28 C.F.R. §§ 35.130, 42.503. Among other things, these
regulations provide:
A public entity, in providing any aid, benefit, or service, may not, ... on the basis of disability-
****
5 Because voting equipment plainly falls within the expansive definition of"facility" contained in the regulations, see 28 C.F.R. § 35.104, these standards apply to a purchase ofnew voting equipment in 2002. The Court agrees with Plaintiffs that the standard for alterations, rather than new construction, is applicable here. Unlike Plaintiffs, however, the Court views the "to the maximum extent feasible" as a limitation rather than expansion of the standard.
6 The phrase "auxiliary aids and services" is defined in a way that would include third-party assistants for voting, see 28 C.F.R. § 35.104, but the items listed in the regulation "is not an all-inclusive or exhaustive catalogue of [all those] possible or available." 28 C.F.R. Pt. 35, App. A.
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(iii) Provide a qualified individual with a disability with 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. 28 C.F.R. § 35.130(b)(l)(iii); see also 28 C.F.R. § 42.503(b)(l)(ii). Unless there is some impediment to their cases, Plaintiffs have demonstrated genuine issues of material facts as to whether these standards were violated when Defendants certified and purchased new voting equipment. Issues presented for trial include: (1) whether the equipment is, to the maximum extent feasible, readily accessible and useable by visually and manually impaired persons; (2) whether communications with visually and manually impaired voters are as effective as communications with other voters; and (3) whether the auxiliary aid provided-i.e., third-party assistance-affords visually and manually impaired voters an equal opportunity to participate in or gain the benefits of the activity of voting. The Court does not
intend this enumeration of issues to constitute an exhaustive list of matters to be decided at

7 The regulatory scheme provides a possible defense to compliance with these standards, which defense (ifraised) may present additional factual issues. Section 35.164 of Title 28 of the Code of Federal Regulations provides:

This subpart does not require a public entity to take any action that it can demonstrate would result in a fundamental alteration in the nature of a service, program, or activity or in undue fmancial and administrative burdens. In those circumstances where personnel of the public entity believe that the proposed action would fundamentally alter the service, program, or activity or would result in undue financial and administrative burdens, a public entity has the burden ofproving that compliance with this subpart would result in such alteration or burdens. The decision that compliance would result in such alteration or burdens must be made by the head ofthe public entity or his or her designee after considering all resources available for use in the funding and operation ofthe service, program, or activity and must be accompanied by a written statement of the reasons for reaching that conclusion. If an action required to comply with this subpart would result in such an alteration or such burdens, a public entity shall

(continued ... )

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The Court turns now to Defendants' asserted impediments to Plaintiffs' claims. The State Defendants contend that they have no cognizance over ADA compliance issues. The State Defendants rely on a state statue defining the scope oftheir authority to argue that they have no duty to ensure that local election officials' comply with the ADA. See Fla. Stat. § 15.13. Clearly, however, voting is one area that Congress intended the ADA to affect. See 42 U.S.C. § 12101(a)(3) (stating a congressional finding that discrimination against individuals with disabilities persists in the area of voting). Title II of the ADA is a law of general application applying to all public programs, activities, and services. See Lightbourn v. County of El Paso, 118 F.3d421, 430 (5th Cir. 1997). Thus, regardless ofany legal duties imposed by Florida law, the Court finds that Defendants must conform their conduct to satisfy federal requirements of the ADA.
As to the State Defendants, the record demonstrates that their involvement in the purchase of voting equipment occurs only in the certification of equipment for use within the state. See Fla. Stat. § 101.294(1). If the State Defendants wrongfully refused to certify accessible equipment, then they may have violated the ADA; otherwise they have no liability on Plaintiffs claims. See Lightbourn, 118 F.3d at 431.
The facts currently of record indicate that the Florida Department of State has certified equipment that would allow visually impaired voters to vote without assistance. It is unclear
7 ( •••continued) take any other action that would not result in such an alteration or such burdens but would nevertheless ensure that, to the maximum extent possible, individuals with disabilities receive the benefits or services provided by the public entity.
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from the record, however, whether the Department of State has certified voting equipment that would allow manually impaired voters to vote without assistance. Also, there is sufficient evidence to create a genuine issue of fact as to whether such a system was presented for certification. There is evidence that a Hart lnterCivic System was presented for certification but was rejected. It is unclear whether this system included technology that would allow manually impaired voters to vote without assistance. To the extent that such technology was included and that certification was wrongfully rejected, the State Defendants may have violated the ADA and the Rehabilitation Act. 8 Thus, the State Defendants' Motion for Summary Judgment will be granted except to the extent that Plaintiffs allege that the State Defendants violated the ADA and the Rehabilitation Act by wrongfully failing to certify a voting system that would permit manually impaired voters to vote without assistance.
Turning to Defendants' arguments based on compliance with the Voting Rights Act (VRA) and the Voting Accessibility for the Elderly and Handicapped Act (VAEH), the latter was enacted in 1984 to "promote the fundamental right to vote by improving access for handicapped and elderly individuals to registration facilities and polling places for Federal elections." 42 U.S.C. § 1973ee. Section 1973ee-l(a) provides:
8 The Court rejects the State Defendants' contention that they are not subject to the Rehabilitation Act because the Department of State does not receive federal funding for any election-related activities. The plain language of the statute and its legislative history indicate that if any part ofa state department receives federal financial assistance, then the entire department is covered. See 29 U.S.C. § 794(b); see also Lussier v. Dugger, 904 F.2d 661, 665 (11th Cir. 1990). The undisputed facts ofrecord in this case demonstrate that parts ofthe Florida Department ofState have receive federal financial assistance, thus obliging the whole department to comply with Section 504 of the Rehabilitation Act.
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Accessibility to all polling places as responsibility of each political subdivision
Within each State, except as provided in subsection (b) of this section, each political subdivision responsible for conducting elections shall assure that all polling places for Federal elections are accessible to handicapped and elderly voters.
The Senate Report accompanying the VAEH provides:
The bill could have a marginal effect on the privacy ofthose individuals who request an absentee ballot, or who request reassignment to an accessible polling site, on the grounds of a temporary or permanent physical disability, as provided by the bill. The broader aim of the legislation is to insure that those persons with disabilities are afforded the same rights and opportunities as other citizens in registering and voting in federal elections. Thus the committee anticipates that any minimal effect on the privacy of those who are elderly or handicapped is more than offset by the expanded opportunities for participation in the political process.
S. REP. No. 98-590, at 7 (1984), reprinted in 1984 U.S.C.C.A.N. 2801, 2807. While the
legislative history ofthe VAEH thus indicates Congress' willingness to accept a minimal effect
on privacy ofdisabled voters in exchange for expanded voting opportunities, the VAEH would
not appear to prevent Plaintiffs' claims as to voting machines.
The pertinent provision of the VRA was added in 1982. It provides:
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 ofthat employer or officer or agent ofthe voter's union.
42 U.S.C. § 1973aa-6. The Senate Report concerning this provision indicates that, "because of
their need for assistance," disabled voters were more susceptible "to having their vote unduly
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influenced or manipulated." S. REP. No. 97-417, at 62 (1982), reprinted in 1982 U.S.C.C.A.N. 177, 240. Finding that "the manner of assistance has a significant effect on the free exercise of the right to vote," the Senate Committee concluded that, "to limit the risks of discrimination against [disabled voters] and avoid denial or infringement oftheir right to vote[,] ... [disabled voters] must be permitted to have the assistance of a person of their own choice." S. REP. No. 97-417, at 62 (1982), reprinted in 1982 U.S.C.C.A.N. 177, 240-41.
To the extent Plaintiffs' claims are based on alleged violations of specific regulations, compliance with the VRA would not absolve Defendants from complying with the requirements set forth in those regulations. The regulations clearly require, for example, that altered or newly constructed facilities be constructed so that they are readily accessible to and usable by disabled persons. See 28 C.F.R. § 35.151. Similarly, the regulations require that a public entity ensure that communication is as effective with disabled persons as with others and that public entities provide auxiliary aids to disabled persons that afford them an equal opportunity to participate in and enjoy the benefits of the program. See 28 C.F.R. § 35.160. Thus, while the ADA and the Rehabilitation Act do not necessarily create a comprehensive federal right to vote without assistance, the application ofthe ADA and the Rehabilitation Act in a particular case may have the effect of requiring equipment that allows voters to vote without assistance.
The language of Title II of the ADA does not alter this conclusion. As stated earlier, Congress clearly intended the ADA to affect voting. See 42 U.S.C. § 12101(a)(3). In addition, Section 12201(b) sets forth Title II's relationship with other laws. It provides in pertinent part:
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Nothing in [the ADA] shall be construed to invalidate or limit the remedies, rights, and procedures of any Federal law or law of any State or political subdivision of any State or jurisdiction that provides greater or equal protection for the rights of individuals with disabilities than are afforded by [the ADA]. See 42 U.S.C. § 1220l(b). The application of the ADA in the manner sought by Plaintiffs would not limit or invalidate the rights provided under the VRA or the VAEH. Instead, in the context of this case, the application of the ADA sought by Plaintiffs would provide broader rights or remedies than provided by the VRA or the VAEH. Similarly, the application ofthe ADA sought by Plaintiffs would not displace the VRA. The VRA provides disabled voters who require assistance the right to have a person of their choice assist them (subject to exceptions). Section 101.051 of the Florida Statutes goes even further and provides visually and manually impaired voters the right to receive assistance from two poll workers. If Plaintiffs' claims are successful, the third-party assistance authorized by the VRA and Section 101.051 will continue to be available. However, Defendants' compliance with these statutes does not necessarily mean that Defendants have complied with the specific requirements of the ADA.9 The final impediment asserted by Defendants is a Letter of Finding issued August 25, 1993, by the Civil Rights Division of the United States Department of Justice. Stafford
9 Defendants also assert that the Help America Vote Act (HAVA) addresses Plaintiffs' concerns and that HAVA provides exclusive federal accessibility standards related to voting. It does appear that the HAVA addresses some of Plaintiff's concerns. ~ ~ 42 U.S. C.§ 1548l(setting standards for voting systems used in elections for federal office, including accessibility requirements for disabled voters). Nevertheless, HAVA makes clear that it is not to be construed as superseding or limiting the application of the ADA or the Rehabilitation Act. See !Q. § 15545(a). Also, HAVA does not mandate immediate compliance with its accessibility standards. See !Q, § 15481 (requiring compliance by January 1, 2006).
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contends that the Letter conclusively refutes the existence of any federal right to vote without assistance. The Letter was written in response to a complaint against the Pinellas County Supervisor of Elections. See Dkt. 58, Exhibit 1, p. 1. The complaint alleged that the Pinellas County Supervisor ofElections violated Title II ofthe ADA by failing to provide Braille ballots or an electronic voting system to blind voters so that they could vote without assistance. See id. The Civil Rights Division (Division) held that the Pinellas County Supervisor of Elections did not violate Title II ofthe ADA. See id. at 2. The Division's analysis was limited to whether the Pinellas County Supervisor of Elections complied with 28 C.F.R. § 35.160. See id. at 1-2. The Division determined that, "[a]lthough providing assistance to blind voters does not allow the individual to vote without assistance, it is an effective means ofenabling an individual with a vision impairment to cast a ballot." ld. at 2. The Division reasoned that the requirement of Section 35.160 that individuals with disabilities be provided equally effective communications "encompasses the concept of equivalent, as opposed to identical" and, thus, that the assistance provided to blind voters provided equally effective communications. Id.
Stafford's interpretation of the Letter is overly broad. The Letter only purports to evaluate whether the Pinellas County Supervisor of Elections provided equally effective communications to blind voters. Thus, to the extent that the Letter is relevant to this case, its relevance would appear limited to Plaintiffs' claims under 28 C.F.R. § 35.160. Also, while the Letter may have persuasive value as to this claim, it is not entitled to deference under Chevron U.S.A. Inc. v. Natural Res. Defense Council. Inc., 529 U.S. 576 (1984). See Christensen v.
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Harris County, 529 U.S. 576, 587 (2000) {"Interpretations such as those in opinion letters-like interpretations contained in policy statements, agency manuals, and enforcement guidelines, all ofwhich lack the force oflaw-do not warrant Chevron-style deference"). Thus the Letter is not dispositive of Plaintiffs' claims.
Because none ofthe legal impediments raised by Defendants precludes Plaintiffs' claims, Defendants are not entitled to a judgment as a matter oflaw under Rule 56. On the other hand, due to the existence of factual issues, neither are Plaintiffs. VII. Motion for Leave to File Reply
Because the existing briefs are adequate to permit full consideration of the issues, Plaintiffs' Motion for Leave to File a Reply regarding Plaintiffs' Motion for Summary Judgment will be denied.
Upon consideration thereof, it is hereby ORDERED: 1. Defendant Stafford's Motion to Dismiss Amended Complaint or Alternatively for Summary Judgment (Dkt. 53) is DENIED. 2. Defendants Hood and Kast's Dispositive Motion to Dismiss Plaintiffs' Second Amended Complaint or in the Alternative Motion for Summary Judgment (Dkt. 55) is DENIED as to the issue ofwhether Hood and Kast wrongfully failed to certify voting systems that would permit manually impaired voters to vote without assistance. Otherwise the Motion (Dkt. 55) is GRANTED.
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3. Plaintiffs' Motion for Summary Judgment Against Defendant Stafford on Count I

(ADA) (Dkt. 95) is DENIED.

4. Plaintiffs' Motion for Leave to File a Reply Memorandum (Dkt. 105) is DENIED.

The Clerk is DIRECTED to retain the proposed Reply in the file.

~y DONE AND ORDERED this

of August, 2003.

Copies to: Counsel of record Courtroom Deputy Clerk Judicial Assistant Law Clerk

WAYNE E. ALLEY UNITED STATES DISTRICT JUDGE
H IWI'I"CCURT'OPINIONS'fl.01·127~ D1111 wpd

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Case 3:01-cv-01275-HLA-HTS Document 124 Filed 08/19/03 Page 24 of 25 PageiD 1946

Date Printed: 08/19/2003

F I LE C0 P Y

Notice sent to:
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Case 3:01-cv-01275-HLA-HTS Document 124 Filed 08/19/03 Page 25 of 25 PageiD 1947 3:01-cv-01275 spw
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Charles A. Finkel, Esq. Attorney General's Office Corrections Litigation Branch The Capitol, Suite PL-01 Tallahassee, FL 32399-1050
3:01-cv-01275 spw

 
 Case 3:01-cv-01275-HLA-HTS Document 215 Filed 03/24/04 Page 1 of 33 PageiD 2734

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION

AMERICAN ASSOCIATION OF PEOPLE WITH DISABILITIES; DANIEL W. O'CONNOR; KENT BELL; and BETH BOWEN,

t.

- . - _ ~_i F.i::T COURT - r_ f-:- F! ,-,- JA

. - "-M

Plaintiffs, on behalf of themselves and others similarly situated,
v.

CASE NO. 3:01-cv-1275-J-Alley/HTS

GLENDA E. HOOD, as Secretary of State for the State of Florida; EDWARD C. K.AST, as Director, Division of Elections; JOHN STAFFORD, as Supervisor of Elections in Duval County, Florida,

__________D_e_f_en_d_a_n_ts_. ________./

ORDER This cause came on for trial before the Court, sitting without a jury, from September 23, 2003, through October 1, 2003. After considering the testimony of the witnesses, the documentary evidence submitted, the arguments of counsel, and the applicable authorities, the Court finds as follows: I. Findings of Fact 1. Plaintiffs Daniel O'Connor and Beth Bowen are visually impaired voters registered to vote in Duval County. See Dkt. 166, p. 51-52; Dkt. 167, p. 12-13. O'Connor has been legally blind since 1991 and Bowen has been blind since birth. See id.

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2. PlaintiffKent Bell is a manually impaired person registered to vote in Duval County. See Dkt. 166, p. 84. Bell was born without arms or legs (a condition known as congenital quadrahyteamelia). See id.
3. PlaintiffAmerican Association ofPeople with Disabilities (AAPD) is a national, cross disability membership organization. See Dkt. 170, p. 135-36. O'Connor, Bell, and Bowen are members ofthe AAPD. See Dkt. 166, p. 51, 83-84; Dkt. 167, p. 12.
4. Without third-party assistance, O'Connor, Bowen, and Bell are unable to vote using the optical scan voting system purchased by Duval County, Florida, in 2002. See Dkt. 166, p. 53, 84-85; Dkt. 167, p. 14. The individual Plaintiffs have voted in previous elections in Duval County with third-party assistance. See Dkt. 166, p. 52, 84-85; Dkt. 167, p. 13-14.
5. All three individual Plaintiffs have expressed concerns about voting with third-party assistance. SeeDkt.166,p.58-61,96-102;Dkt.167,p.16-20,40. O'Connorhashad to wait for poll workers to become available and has wondered whether his vote has been cast according to his wishes. See Dkt. 166, p. 60-61. In addition, O'Connor stated he cannot be sure the person providing assistance will read the entire ballot to him. See id. at 61. O'Connor testified that on one occasion the person providing assistance did not initially read the candidates' party affiliations, although she did so upon his request. See id. at 61, 70. O'Connor also testified about being provided
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assistance in a room where other disabled voters were being provided assistance and how he could overhear other disabled voters' selections. See id. at 58-60. 6. Bell has had to wait for poll workers to become available to assist him and has had to vote in an open area where others may have been able to overhear his selections. See id. at 96-99. 7. Bowen has had to wait for assistance and expressed concerns about having to have a third party fill out her ballot. See Dkt. 167, p. 16, 40. In addition, Bowen testified that she has had to vote in the middle of a large, public room such that others may have overheard her selections. See id. at 16-20. 8. Plaintiffs have requested that Duval County provide voting systems that allow them to vote without assistance. See Dkt. 166, p. 63-64, 102, 105-06; Dkt. 167, p. 25-26. 9. Defendant Glenda Hood is the Florida Secretary ofState and has overall responsibility for the administration of the state's election laws. See Dkt. 117, §IX,~ 8; Fla. Stat. § 15.13. 10. Before a Florida county may legally purchase a voting system, the voting system must be certified by the Division of Elections (DOE) of the Florida Department of State. See Dkt. 168, p. 14; Fla. Stat.§ 101.294(1). Defendant Edward Kast is the Director of the DOE. See Dkt. 117, §IX,~ 9. 11. Certification is an application and licensing process that determines ifa voting system meets the requirements of the Florida Election Code and the Florida Voting System
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Standards. See Dkt. 168, p. 10-11. A certified voting system has been tested to the highest standards ofaccuracy and reliability and can be relied upon to be dependable and to be a fairly good investment in terms of durability. See Dkt. 168, p. 15, 20; Plaintiffs' Exhibit 142. 12. Nothing prevents a county, a private organization, or an individual from seeking certification of a particular voting system. S ee D kt. 1 68, p. 2 2-23; Fla. Stat. § 101.5605(2)(a). Nevertheless, absent a vendor's cooperation, it is unlikely that a county, a private organization, or an individual would be able to provide the technical data required during the certification process. See Dkt. 168, p. 113. 13. Nothing prevents the DOE from requesting proposals for a particular voting system. See Dkt. 168, p. 23-25. 14. During the 2000 presidential election, Duval County used a punch card voting system. See Dkt. 170, p. 44-46. Following the 2000 presidential election, Florida enacted legislation prohibiting the use ofpunch card voting systems after September 1, 2002. See Fla. Laws. ch. 2001-40, § 18. 15. In September 2001, former Florida Secretary of State Katherine Harris sent a memorandum to county supervisors of elections encouraging the purchase of voting systems that are accessible to disabled voters. See Dkt. 169, p. 78-79; Plaintiffs' Exhibit 53. Recognizing that, at the time, only one certified voting system included an audio ballot option, she urged counties to include in purchase contracts a
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requirement that accessible technologies be provided prior to the September 2002 election. See Plaintiffs' Exhibit 53. 16. On August 16, 2001, the DOE certified an Elections Systems and Software, Inc. (ES&S), voting system that included optical scan machines for absentee or precinct voting and touch screen machines with audio ballot capability. See Dkt. 168, p. 2930, 32-33; Plaintiffs' Exhibit 132. Additionally, the DOE certified the following ES&S voting systems with audio ballot capabilities:
• The ES&S Release 3, certified May 7, 2002. See Dkt. 168, p. 33-34; Plaintiffs' Exhibit 47.
• The ES&S Revised Release 3.1, certified June 17,2002. See Dkt. 168, p. 35; Plaintiffs' Exhibit 68.
• The ES&S Release 4, certified August 7, 2002. See Dkt. 68, p. 37-38; Plaintiffs' Exhibit 63.
• The ES&S Release 3.2, certified August 21, 2002. See Dkt. 168, p. 38; Plaintiffs' Exhibit 64.
• The ES&S Release 4.2, certified August 21, 2002. See Dkt. 168, p. 3839; Plaintiffs' Exhibit 65.
17. On January 22, 2001, Hart InterCivic (Hart) presented its eSlate voting system for certification. See Dkt. 168, p. 56. The DOE deemed Hart's application complete on September 17, 2001. See Dkt. 168, p. 56, 58. The application included
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documentation regarding Hart's disabled access unit indicating that it would permit navigation of both audio and video ballots using accessible switches (also known as jelly-switches). See id. at 56-57, 58-59. This system failed Phase II testing, specifically the Precinct Count System Software and the Central Count System Software Florida Qualification Tests. See Dkt. 169, p. 18-21; State Defendants' Exhibit 1, p. 67-68. The former test requires each precinct tabulator to process at least 9,900 ballots. See id. The latter test requires each central count system to process at least 192,000 ballots. See id. Following the voting systems failure to satisfy these tests, Hart withdrew its application for certification. See Dkt. 169, p.23. 18. On August 7, 2002, the DOE certified a Sequoia Voting Systems, Inc. (Sequoia), voting system, the AVC Edge Voting System, Release Level3, which included audio ballot capabilities. See Dkt. 168, p. 36; Plaintiffs' Exhibit 49. 19. The ES&S and Hart InterCivic touch screen voting systems can be operated by some manually impaired voters, including Bell, through the use of a mouth stick. See Dkt. 166, p. 86, 95; Dkt. 168, p. 145-46. A mouth stick would not have to be certified because mouth sticks are available to the general public. See Dkt. 168, p. 69. Thus, manually impaired voters may vote with a mouth stick on an ES&S or Hart InterCivic touch screen machine if they are able. See Dkt. 166, p. 86, 95; Dkt. 168, p. 69, 14546.
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20. In January 2002, Defendant John Stafford, Supervisor ofElections in Duval County, made the final decision to purchase the Global Election Systems (GlobalY Accu Vote optical scan voting system. See Dkt. 169, p. 71; Dkt. 170, p. 8, 68-69. On January 24, 2002, the City ofJacksonville (City) awarded money for the purchase ofthe Accu Vote system. See Dkt. 170, p. 80; Stafford's Exhibit 6A. The City received 315 optical scan machines from April through June 2002. See Dkt. 169, p. 101-02; Stafford's Exhibit 9A, p. A-1, D-2. On October 3, 2002, the City signed an agreement (Agreement) with Diebold Election Systems, Inc. (Diebold). See Dkt. 169, p. 102.
21. The Agreement provided that the City would purchase the Accu Vote optical scan voting system for $1,813,600.00. See Dkt. 169, p. 102-03; Stafford's Exhibit 9A. The Agreement also permits the City to trade in the optical scan system machines before 2007 for credit toward the purchase of touch screen machines. See Dkt. 169, p. 108.
22. The City received $1,005,000 from the State of Florida for the purchase of this new voting equipment. See Dkt. 169, p. 103.
23. In addition to the optical scan machines, the City received three touch screen machines with audio ballot capabilities, which Stafford p tanned to 1ocate at the Supervisor ofElections' office in downtown Jacksonville for use by visually impaired voters. See Dkt. 169, p. 160-61. The Agreement required Diebold to have the touch
1 Diebold Election Systems, Inc., purchased Global in or around February 2002. See Dkt. 170, p. 37.
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screen machines with audio ballot capabilities certified prior to the September 2002 election. See Dkt. 169, p. 108-09. Said touch screen machines were not certified prior to the September 2002 election and remain uncertified. See Dkt. 169, p. 109, 160-61. 24. The only voting system that enabled visually impaired voters to vote without assistance, that was certified early enough to allow Duval County to adopt the system after certification, but in time for the September 2002 election, was the ES&S voting system with audio ballot capabilities. See Dkt. 170, p. 73. 25. All three individual Plaintiffs' polling places are located near their homes. See Dkt. 166, p. 62, 101; Dkt. 167, p. 22. To travel to the Supervisor of Elections office in downtown Jacksonville via paratransit services could take four to five hours. See Dkt. 167, p. 22-23. 26. Stafford selected optical scan technology over touch screen technology because he felt it was easier to vote on optical scan machines; it was easier to train poll workers to use optical scan machines; it was easier to recount ballots cast on an optical scan machine; and optical scan systems had a proven track record. See Dkt. 169, p. 92; Dkt. 170, p. 66, 72. 27. Stafford elected not to purchase the ES&S touch screen voting system with audio ballot capabilities because a poll worker had to insert a cartridge into each machine to "boot up" the machine at the beginning of the day and to "download" the machine
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attheendoftheday. SeeDkt.169,p.l38, 140;Dkt.170,p. 75-76. Staffordbelieved that it was more appropriate for a technician rather than a poll worker to perform this function. See Dkt. 170, p. 76. While more than one cartridge can be purchased for each polling place to speed up this process, the information on the various cartridges must eventually be merged. See id. at 75-76. 28. Around April 2001, the estimated cost of touch screen systems for 250 voting precincts (as opposed to the 285 voting precincts currently used in Duval County) was $5,844,000 for the ES&S system; $7,012,800 for the Sequoia system; and $7,597,200 for the Diebold system. See Dkt. 170, p. 27, 120-121; Plaintiffs' Exhibit 100. The estimated annual maintenance costs of touch screen systems were $107,140 for the ES&S system; $97,400 for the Sequoia system; and $155,840 for the Diebold system. See Dkt. 170, p. 121; Plaintiffs' Exhibit 100. The estimated annual maintenance cost of the Diebold optical scan system was $45,000. See Plaintiffs' Exhibit 100. 29. At the time oftrial, Stafford estimated that it would cost between twelve and thirteen million dollars to replace the optical scan system with a touch screen system. See Dkt. 170, p. 98. 30. Stafford did not investigate the cost of putting one touch screen machine in each precinct (as opposed to a voting system comprised entirely oftouch screen machines). See Dkt. 170, p. 25-26. He currently estimates that it would cost between $1 million
and $1.5 million to do so. -See-id. at 26.
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31. The City of Jacksonville's fiscal year 2002-2003 budget exceeds $1.2 billion. See Dkt. 170, p. 30-31; Plaintiffs' Exhibit 139.
32. On September 5, 2001, Diebold applied for certification ofits Accu Vote ES2001B+ touch screen voting system with audio ballot capabilities. See State Defendants' Exhibit 4, p. 21. The DOE identified several changes it wanted, including more detailed audio prompts and having the voter's final review ofthe ballot proceed from the top of the ballot to the bottom (as opposed to from the bottom of the ballot to the top). See Dkt. 171, p. 82-85. On May 9, 2002, Diebold withdrew the application prior to having effected these changes. See id. at 88-89; State Defendants' Exhibit 4, p. 21-22.
33. On June 12, 2002, Diebold applied for certification of its Accu Vote ES200 1B V 1 touch screen voting system with audio ballot capabilities. See Dkt. 168, p. 130-31; State Defendants' Exhibit 4, p. 33. The DOE asserts that Diebold omitted required supporting documentation from its application. See id. A Diebold representative testified that the DOE wanted Diebold to change the systems election management software such that it provided (1) the number of precincts in which a particular race was taking place; and (2) the number ofprecincts reporting results at the time of any intermittent reports. See Dkt. 171, p. 92-95. The Diebold optical scan system certified in Florida used the same election management software as that used in the touch screen system submitted for certification on June 14, 2002. See id. at 93. The
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DOE requested that the election management software used in the optical scan system be modified too. See id. at 96-97. On September 30, 2002, Diebold withdrew the application. See id. at 100; State Defendants' Exhibit 4, p. 33. 34. On September 30, 2002, Diebold applied for certification of its Accu Vote ES200 I B V2 touch screen voting system with audio ballot capabilities. See State Defendants' Exhibit 4, p. 41. The DOE deemed the application incomplete. See id. at 41-42. On November 6, 2002, the application still incomplete, the DOE withdrew the application pursuant to DOE rules requiring vendors to remedy application defects within a certain time period. See Dkt. 168, p. 131-32; State Defendants' Exhibit 4, p. 41-42. The application remained incomplete because Diebold was unable to timely modify the election management software. See id. 35. On May 28, 2003, Diebold applied for certification of its Diebold Election System 2003 B touch screen voting system with audio ballot capability. See Dkt. 168, p. 132; State Defendants' Exhibit 4, p. 50. This application is pending. See id. 36. Paul Craft, chiefofthe Bureau ofSystems Certification, which is part ofthe DOE, has an obligation to keep abreast oftechnological advances in voting systems and to work to bring new technologies into the state. See Dkt. 168, p. 9, 48. 37. In 1996 or 1997 Craft encouraged Sequoia, ES&S, and Global to apply for certification for their touch screen systems. See Dkt. 168, p. 104-05. In 1997 or 1998 Craft flew to Global's headquarters to again encourage it to apply for certification for
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its touch screen technology. See Dkt. 169, p. 27-28. Craft also encouraged Diebold to quickly make required changes to its touch screen system with audio ballot capabilities; raised the issue of "sip and puff' devices with ES&S; and encouraged Sequoia to create a blended system consisting ofSequoia's touch screen machines and ES&S's optical scan machines. See Dkt. 168, p. 45, 139-40; Dkt. 169, p. 35-36. In addition, Craft is involved in national organizations concerned with voting standards, exposing him to at least some technological advancements in voting systems. See Dkt. 168, p. 86-89; Dkt. 169, p. 27, 29. 38. The state has received requests to speed up the certification process. See Dkt. 168, p. 77. In a February 6, 2001, document entitled "Recommendations for the Governor's Select Task Force on Election Procedures, Standards and Technology," Stafford encouraged state action on certifying new voting technology. See Dkt. 169, p. 82-85; Plaintiffs' Exhibit 123, p. 5. The document provided:
Currently, there are significant restrictions and hurdles in the certification process for a touch screen system. I believe that this area should be thoroughly reviewed, compared with other states, and a system adopted that could help us expedite the adoption of touch screen technology throughout the state. Plaintiffs' Exhibit 123, p. 5. 39. The December 30, 2002, report from the 2002 Governor's Task Force on Election Procedures, Standards and Technology provides: [T]estimony at the 2002 Select Task Force meeting provided by a panel of local supervisors from small to mid-size counties
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indicated that Florida's standards might be too rigorous. These local supervisors stated that the relationship between vendors and the state certification officials could be improved. They went on to add that the current relationship may hinder vendors from bringing cutting-edge technology into the state for certification. Plaintiffs' Exhibit 1, p. 31. 40. Amid concerns that the Florida Voting System Standards required too lengthy a process, the DOE reduced various time periods set forth in the Florida Voting System Standards to expedite the certification process. See Dkt. 168, p. 131-32. 41. Twenty-nine Florida counties use touch screen voting systems. See Dkt. 168, p. 5051; Plaintiffs' Exhibits 135-137. Hillsborough, Dade, Broward, Nassau, Pinellas, Indian River and Pasco Counties use touch screen voting systems with audio ballot capabilities. See Dkt. 168, p. 51-52. Highlands County uses a blended system with one touch screen machine with audio ballot and one optical scan machine per precinct. See id. at 52. Lee County uses touch screens with audio ballots, although it is not clear whether one touch screen machine with audio ballot is available in each precinct. See id. Sumpter County has purchased a touch screen voting system with audio ballot capabilities but it is not clear whether or not audio ballots are actually available in Sumpter County. See id. at 53. 42. Pasco County, Florida, purchased the ES&S touch screen voting system in October 2001. See Dkt. 167, p. 160-61, 167-68. Pasco County has successfully used the ES&S system. See id. at 173.
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43. During the 2002 election, Dade and Broward Counties failed to open all of their precincts by 7:00 a.m. and failed to initially download the results from all of the machines. See Dkt. 168, p. 74-75, 169-70. The failure stemmed from not permitting sufficient time for the large, multilingual ballots to boot up on the ES&S machines and logistical problems such as getting all of the machines to precincts and poll worker training. See Dkt. 168, p. 74-76, 169-70. Following this election, local officials from Dade and Broward County criticized the State's certification standards for failing to take into account the counties' needs for a trilingual ballot and the time it took to boot up the voting system. See Plaintiffs' Exhibit 1, p. 31.
44. Harris County, Texas, purchased the Hart InterCivic eSlate Electronic Voting System in May or June 2001. See Dkt. 167, p. 71-73. One Disabled Access Unit, which permits visually and manually impaired voters to vote without assistance, was purchased for each voting precinct. See id. at 73. Harris County has successfully used the eSlate voting system. See id. at 82.
45. The Georgia Secretary of State convinced the Georgia legislature to purchase a Diebold touch screen voting system for the entire state in time for the November 2002 election. See Dkt. 167, p. 100-01, 111-12, 116. At least one voting machine with audio ballot capabilities was available in each precinct. See id. at 116. The Diebold system was well received in Georgia. See id. at 118.
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46. The touch screen voting system used in Georgia is not identical to the various Diebold touch screen systems unsuccessfully submitted for certification in Florida. See Dkt. 168, p. 134-35.
47. The Diebold system used in Georgia provides for final voter review of a ballot before it is cast from the bottom of the ballot to the top. See Dkt. 171, p. 90-91.
48. The certification process in Georgia takes no more than one to three days. See Dkt. 167, p. 103.
II. Conclusions of Law Plaintiffs assert that Defendants violated Title II of the Americans With Disabilities
Act, 42 U.S.C. § 12131-12165 (ADA), Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 (RA), and the implementing regulations promulgated under these statutes. Title II of the ADA provides:
Subject to the provisions of this subchapter, no qualified individual with a disability shall, by reason ofsuch 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. 42 U.S.C. § 12132. Similarly, Section 504 of the Rehabilitation Act provides in pertinent part: No otherwise qualified individual with a disability ... shall, solely by reason of her or his 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.
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29 U.S.C. § 794(a).2 Plaintiffs contend that Stafford (1) violated 28 C.F.R. § 35.151(b) by purchasing a
voting system that is not readily accessible to Plaintiffs; (2) violated 28 C.F.R. § 35.160 by failing to provide a means of communication that permits Plaintiffs to communicate their votes as effectively as non-disabled voters, by failing to furnish auxiliary aids that permit Plaintiffs an equal opportunity to participate in and enjoy the benefits of voting, and by failing to give primary consideration to the auxiliary aids requested by Plaintiffs; and (3) violated the "generic" discrimination clause of the ADA by subjecting Plaintiffs to discrimination by purchasing a voting system that imposes burdens on Plaintiffs not imposed on non-disabled voters. Plaintiffs assert that the State Defendants violated the ADA and the RA by failing to certify readily accessible voting systems.
A. Defendant Stafford 1. Accessibility of the Votin& System
Section 35.151 of Title 28 ofthe Code of Federal Regulations provides: (a) Design and construction. Each facility or part of a
facility constructed by, on behalf of, or for the use of a public entity shall be designed and constructed in such manner that the facility or part of the facility is readily accessible to and usable
hx individuals with disabilities, if the construction was
commenced after January 26, 1992. (b) Alteration. Each facility or part of a facility altered
by, on behalfof, or for the use of a public entity in a manner that
2 Under both the ADA and the RA, Congress mandated the promulgation of implementing regulations that would be consistent with each other. See 29 U.S.C. § 794(a); 42 U.S.C. § 12134(a)-(b).
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affects or could affect the usability of the facility or part of the facility shall, to the maximum extent feasible, be altered in such manner that the altered portion of the facility is readily accessible to and usable by individuals with disabilities, if the alteration was commenced after January 26, 1992. 28 C.F.R. § 35.15l(a)-(b) (emphasis added).3 Sincevotingequipmentplainly falls within the expansive definition of"facility" contained in the regulations, see 28 C.F.R. § 35.104, these standards apply to Duval County's purchase ofnew voting equipment in 2002. The standard for alterations, rather than new construction, is applicable in the instant case. The Diebold optical scan voting system purchased by Duval County is not readily accessible to visually or manually impaired voters. Plaintiffs are unable to vote using the Diebold optical scan system without third-party assistance. If it was feasible for Duval County to purchase a readily accessible system, then the Plaintiffs' rights under the ADA and the RA were violated. At the time the City purchased the optical scan system, it was technologically and financially feasible to employ a voting system readily accessible to visually impaired voters. The DOE had certified an ES&S voting system with audio ballot capabilities. Contrary to Stafford's assertions, state certification established that the ES&S system met accuracy and reliability standards and the requirements ofthe Federal Election Commission and the Florida Voting Systems Standards. While Stafford did not like certain features of the ES&S touch screen system-e.g., the manner in which the machines were "booted up" and "downloaded,"
3While the fo11owing discussion utilizes regulations issued under the ADA, regulations implementing the Rehabilitation Act contain similar standards. See 28 C.F.R. §§ 39.151, 39.160.
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such concerns do not constitute technical infeasibility. The stringent certification standards and process in Florida ensure that a certified voting system is not a substandard voting system. In addition, other jurisdictions within Florida and outside of Florida provided accessible equipment around the same time, indicating technical feasibility.4
Similarly, it was financially feasible for the City to purchase a voting system accessible to visually impaired voters. While a touch screen system was more expensive than an optical scan system, at least in the short-term, in light of the financing options and the overall size of Duval County's financial resources, Stafford failed to establish that a touch screen system was not financially feasible. In addition, Stafford did not investigate the cost of a blended system incorporating one touch screen system per precinct alongside of an optical scan machine, which would have been less expensive than an entirely touch screen system. Also, other jurisdictions' (both in Florida and around the country) acquisition of touch screen voting systems indicates the financial feasibility of such a system. Finally, at least some ofthe higher cost ofa touch screen system would be recouped over time because of the decreased costs of paper ballots.5
Although Stafford did acquire three Diebold touch screen machines with audio ballot capabilities under the assumption that they would be certified prior to the September 2002
4 The Court notes that no evidence was presented concerning the security of touch screen voting systems against illegal intrusions.
5 The Court notes that, when recommending the purchase of the Diebold optical scan system, Stafford also recommended that Duval County adopt a touch screen system within two to four years.
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election, this acquisition does not bring Stafford into compliance with the ADA and the RA. The Diebold touch screen machines remain uncertified and thus, unusable. Even if the machines had been certified, three machines in a central location would not make the altered facility-the new voting system-readily accessible. Duval County is a geographically large county, and requiring Plaintiffs, who already lack the mobility that non-disabled voters have, to travel downtown does not satisfy the accessibility standard.
As to manually impaired voters, the issue of feasibility is more complicated. When Plaintiffs have generally referred to voting systems accessible to manually impaired voters they have spoken of "jelly switches" and "sip and puff' devices attached to touch screen machines. Nevertheless, during trial, Bell illustrated that he could vote without assistance and without ''jelly switches" or "sip and puff' devices by using his mouth stick to tap on an ES&S touch screen. To the extent "jelly switches" and "sip and puff' devices need to be attached to a touch screen machine for it to be accessible, it was not feasible for Stafford to provide such a voting system. At the time Duval County purchased its new voting system, no voting system with "jelly switches" or "sip and puff' capabilities was certified in Florida. Accordingly, Defendant Stafford cannot be held responsible under the ADA or RA for failing to provide machines with "jelly switch'' or "sip and puff' capabilities.
However, to the extent a touch screen system is accessible to at least some manually impaired voters, the analysis is the same as set forth above for visually impaired voters. That is, with regard to PlaintiffBell, Defendant Stafford could have fulfilled his obligations under
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the ADA and RA by providing the ES&S touch screen system, which, without further accommodation from the State or the County, would have permitted Bell to vote with his mouth stick. This voting, as demonstrated in Court, would not have required any third party assistance. Accordingly, Plaintiffs are entitled to a declaratoryjudgment with regard to their claims against Stafford to the extent a touch screen voting system would have permitted them to vote unassisted.
For the reasons set forth above, Plaintiffs are entitled to declaratory judgment that Defendant Stafford violated 2 8 C .F.R. § 3 5.151 (b) as to the visually impaired and the manually impaired.
2. Effective Communication Plaintiffs assert that visually and manually impaired voters are unable to communicate as effectively as non-disabled voters and have not been provided auxiliary aids that allow them an equal opportunity to participate in and enjoy the benefits of the program of voting. Stafford responds that what constitutes an acceptable auxiliary aid is broad and specifically includes third-party assistance, the key being whether the auxiliary aid provided results in effective communication. Stafford asserts that the individual Plaintiffs have been able to vote with third-party assistance and, thus, were able to effectively communicate their votes. In addition, Stafford asserts he is not required to act pursuant to 28 C.F.R. § 35.160 if such action would fundamentally alter the nature ofthe activity provided or would result in undue financial or administrative burdens.
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Title 28 C.F.R. Section 35.160 provides:
(a) A public entity shall take appropriate steps to ensure that communications with applicants, participants, and members ofthe public with disabilities are as effective as communications with others.
(b)(l) A public entity shall furnish appropriate auxiliary aids and services where necessary to afford an individual with a disability an equal opportunity to participate in, and enjoy the benefits of, a service, program, or activity conducted by a public entity.
(2) In determining what type of auxiliary aid and service is necessary, a public entity shall give primary consideration to the requests of the individual with disabilities.
"The public entity shall honor the [disabled person's] choice unless it can demonstrate that
another effective means of communication exists or that use ofthe means chosen would not
be required under§ 35.164."6 28 C.F.R. Pt. 35 App.
The phrase "auxiliary aids and services" includes:
( 1) Qualified interpreters, notetakers, transcnphon services, written materials, telephone handset amplifiers,
6 Section 35.164 provides:
This subpart does not require a public entity to take any action that it can demonstrate would result in a fundamental alteration in the nature of a service, program. or activity or in undue financial and administrative burdens. In those circumstances where personnel of the public entity believe that the proposed action would fundamentally alter the service, program. or activity or would result in undue fmancial and administrative burdens, a public entity bas the burden ofproving that compliance with this subpart would result in such alteration or burdens. The decision that compliance would result in such alteration or burdens must be made by the head ofthe public entity or his or her designee after considering all resources available for use in the funding and operation ofthe service, program. or activity and must be accompanied by a written statement of the reasons for reaching that conclusion. If an action required to comply with this subpart would result in such an alteration or such burdens, a public entity shall take any other action that would not result in such an alteration or such burdens but would nevertheless ensure that, to the maximum extent possible, individuals with disabilities receive the benefits or services provided by the public entity.
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assistive listening devices, assistive listening systems, telephones compatible with hearing aids, closed caption decoders, open and closed captioning, telecommunications devices for deaf persons (TDD's), videotext displays, or other effective methods of making aurally delivered materials available to individuals with hearing impairments;
(2) Qualified readers, taped texts, audio recordings, Brailled materials, large print materials, or other effective methods of making visually delivered materials available to individuals with visual impairments;
(3) Acquisition or modification ofequipment or devices; and
(4) Other similar services and actions.
28 C.F.R. § 35.104. However, the list of auxiliary aids and services provided in Section
35.104 "is not an all-inclusive or exhaustive catalogue of[all those] possible or available,"
28 C.F.R. Pt. 35, App. A, and the examples listed demonstrate that third-party assistance is
an acceptable possible auxiliary aid or service. See 28 C.F.R. § 35.104 (including qualified
interpreters, notetakers, and qualified readers). Thus, the third-party assistance provided to
disabled voters is an auxiliary aid or service. The issues remain, however, whether the
communications with visually and manually impaired voters are as effective as
communications with other voters and whether the auxiliary aids provided-i.e., third-party
assistance-affords visually and manually impaired voters an equal opportunity to participate
in the activity of voting.
While Plaintiffs assert that Stafford violated 28 C.F.R. § 35.160 because visually or
manually impaired voters are not able to vote in the same or similar manner as non-disabled
voters, this is not the standard under 28 C.F.R. § 35.160. As noted above, the standard is
22

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whether communication with visually and manually impaired voters is as effective as communication with others and whether visually and manually impaired voters are afforded an equal opportunity to participate in and enjoy the benefits of voting. Plaintiffs presented no evidence that communication with visually and manually impaired voters is not as effective as communication with non-disabled voters. All three individual Plaintiffs have been able to vote with third-party assistance. While the visually impaired Plaintiffs testified to concern about whether their votes were accurately reflected, there is no evidence to suggest that their votes were not accurately communicated via third-party assistance. Similarly, there is evidence that visually and manually impaired voters have consistently been able to vote in Duval County elections using third-party assistance, which indicates that visually and manually impaired voters have been afforded an equal opportunity to participate in and enjoy the benefits of voting.
Plaintiffs, citing Tugg v. Towey, 864 F. Supp. 1201 (S.D. Fla. 1994), assert that thirdparty assistance is not as effective as voting equipment that permits visually and manually impaired voters to vote without assistance because there is a chance that ballot choices will be miscommunicated through third-party assistance. In J:ygg, the plaintiffs were hearingimpaired individuals and their families receiving mental health counseling. The plaintiffs alleged violation of the ADA and the RA because Defendants failed to provide counselors with sign language ability and who understood the deaf community and instead utilized counselors aided by sign language interpreters. The plaintiffs presented evidence (1) that,
23

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because sign language "does not lend itself to word-for-word translation into spoken English," the chance ofmiscommunication between a therapist and a "client is much greater when an interpreter is used"; and (2) that, because it was likely that different interpreters
would be used each session, there was a greater likelihood that an interpreter would "fail to
grasp the true meaning of what the parties are trying to convey." Id. at 1206. The court, considering the propriety of issuing a preliminary injunction requiring the defendants to
provide counselors with sign language ability and with an understanding of the deaf community, held that the plaintiffs presented sufficient evidence that they were denied the benefits of mental health services provided to non-disabled persons.7 See id. at 1204, 1208.
Thgg is distinguishable from the instant case. In addition to being at a different procedural posture, in the instant case, Plaintiffs have not presented similar evidence of the likelihood of miscommunication. While the visually impaired Plaintiffs have expressed
concern that there votes might not be accurately recorded, there was no evidence that their
verbal selection of candidates would be misconstrued by their assistant. Orally
7 The Tugg court considered the plaintiffs' claims under both 28 C.F.R. § 35.160(a), (b)(l) and 28 C.F.R. § 35 .130(b)( 1)(I)-(iii), which provides:
(b)(l) A public entity, in providing any aid, benefit or service, may not, directly, or through contractual, licensing, or other arrangements, on the basis of disability-(!) Deny a qualified individual with a disability the opportunity to participate in or benefit from the aid, benefit or service; (ii) Afford a qualified individual with a disability an opportunity to participate in or benefit from the aid. benefit or services that is not equal to that afforded others; (iii) Provide a qualified individual with a disability with an aid, benefit, or service that is not as affective 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 others. See 28 C.F.R. § 35.130(b)(l)(l-iii).
24

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communicating a vote does not involve the ambiguities and problems of articulation faced in mental health counseling sessions. In addition, the ability to have a person of the voter's choosing or two poll workers assist visually impaired voters further protects against miscommunication.
Consequently, the Court concludes that Stafford did not violate the effective communication provisions of28 C.F.R. § 35.160 by purchasing a voting system that does not permit visually and manually impaired voters to vote without assistance.
3. "Generic" Discrimination
In the instant case, Plaintiffs assert that Stafford violated the "generic" discrimination prohibition of 42 U.S.C. § 12132 because the recently acquired voting equipment requires Plaintiffs to vote in a manner materially different from other voters. Specifically, Plaintiffs contend that they are forced to vote in a more burdensome manner than other voters because Plaintiffs have to reveal their votes to others; risk having their votes not marked as they wish or revealed to others; and are subject to being delayed when they vote ifthey have to wait for a third-party assistant in order to be able to vote.
As quoted above, the clause containing the "generic" prohibition against discrimination in Section 12132 provides that "no qualified individual with a disability shall, by reason ofsuch disability, ... be subjected to discrimination by" a public entity. 42 U.S.C. § 12132. The legislative history indicates that Congress chose "not to list all the types of actions that are included within the term 'discrimination,' as was done in titles I and III." H.
25

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REP. 101-485(II), 84 (1990), reprinted in 1990 U.S.C.C.A.N. 303, 367; see also EllenS. v. Fla. Bd. of Bar Examiners, 859 F. Supp. 1489, 1493 (S.D. Fla. 1994). Instead, Congress intended "that the forms ofdiscrimination prohibited by [Section 12132] be identical to those set out in the applicable provisions of titles I and III" and that the regulations to Title II reflect said congressional intent. H. REP. 101-485(Il), 84 ( 1990), reprinted in 1990 U.S.C.C.A.N. 303, 367.
Congress directed the Attorney General to promulgate regulations implementing 42 U.S.C. § 12131-12134 and that such regulations "include standards applicable to facilities." 42 U.S.C. § 12134(a), (c). Congress also directed that the regulations concerning "program accessibility" and "existing facilities" be consistent with the regulations applicable to the RA in 28 C.F.R. Pt. 39. See 42 U.S.C. § 12134(b). The regulations promulgated pursuant to this congressional mandate adopted different standards for new construction/alterations and existing facilities,8 as was done in the regulations applicable to the RA,9 "because the cost of retrofitting is often prohibitive." 28 C.F.R. Pt. 35 App. A.
8 See Ass'n for Disabled Ams. v. Citv of Orlando, 153 F. Supp. 2d 1310, 1317 (M.D. Fla. 2001); 28 C.F.R. §§ 35.150(a) and 35.151(a)-(b}. Section 35.150(a) provides:
(a) General. A public entity shall operate each service, program, or activity so that the service, program, or activity, when viewed in its entirety, is readily accessible to and usable by individuals with disabilities. . (subsections (a}(l)-(3) not included here). Section 35.15l(a)-(b) is quoted above in Section II.A.l. 9 Sections 39.150 and 39.151ofTitle 39 of the Code of Federal Regulations employ a "program accessibility" standard for existing facilities and a "facility accessibility" standard for new or altered facilities.
26

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In Bledsoe v. Palm Beach County Soil & Water Conservation Dist., 133 F.3d 816, 821 (II th Cir. 1998), the Eleventh Circuit briefly discussed the "generic" prohibition against discrimination concluding that the phrase although Title II ofthe ADA referred to services, programs or activities, that it nevertheless applied to employment discrimination, even in cases where Title I ofthe ADA did not apply. See id. at 819, 821. The court concluded that the final clause of Title II is a '"catch-all phrase that prohibits all discrimination by a public entity.'" Id. at 822 (quoting Innovative Health Sys.. Inc. v. City of White Plains, 117 F.3d 37,44-45 (2d Cir. 1997)).
In the instant case, Plaintiffs' claim under the "generic" discrimination provision is premised upon the degree to which the recently purchased voting equipment is accessible and how Plaintiffs must vote using the equipment. As noted above, specific regulations have been promulgated, pursuant to an express congressional mandate, concerning standards for facilities. Thus, at least in the instant case, Plaintiffs' "generic" discrimination claim appears to be coterminous with its claim under 28 C.F.R. § 35.151. To hold otherwise would possibly permit an inconsistent result-i.e., it would be possible for Stafford to comply with the specific requirement of Section 35.151 and still violate the "generic" discrimination provision of 42 U.S.C. § 12132 based upon the accessibility of the voting system. This would undermine the specific regulations concerning this point. Thus, the Court will not
27

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separately address this claim based upon the conclusion that it is to be resolved in the same manner as Plaintiffs' claim under 28 C.F.R. § 35.151. 10
B. The State In its August 19, 2003, Order, the Court granted summary judgment for the State Defendants as to visually impaired voters. Plaintiffs' remaining claim is that Hood and Kast wrongfully refused to certify a voting system that would allow Bell, who is manually impaired, to vote without assistance. As held in the Court's August 19, 2003 Order, Plaintiffs have standing to assert their claim against Hood and Kast. Turning to the substance ofPlaintiffs' claims, the Court concludes that Plaintiffs have presented no evidence that the DOE wrongfully failed to certify a voting system that permitted Bell to vote without assistance. The Hart InterCivic eSlate system was the only system that Plaintiffs established that Bell could use without assistance but that was not certified by the DOE. The evidence presented at trial indicates that the eSlate system failed objective Phase II testing, specifically the Precinct Count System Software and the Central Count System Software Florida Qualification Tests. Plaintiffs do not assail the propriety of these tests or dispute that the eSlate system failed these tests nor do they present evidence as to what standards apply in jurisdictions utilizing the eSlate system. The only evidence that calls the State Defendants' decision into question is the fact that the system has been
10 Stafford also asserts that the Help America Vote Act, 42 U.S.C. § 15301, et seq. (HAVA), bars the relief sought by Plaintiffs. The Court rejects this argument for the reasons stated in its August 19, 2003, Order on the cross Motions for summary judgment. See Dkt. 124, p.20 n.9.
28

Case 3:01-cv-01275-HLA-HTS Document 215 Filed 03/24/04 Page 29 of 33 PageiD 2762
successfully used in Texas. Nevertheless, this fact alone does not prove that the State Defendants wrongfully failed to certify the system under Florida standards.
In addition, at trial, the Court also questioned whether the State courted new systems and technologies for certification in Florida. While the DOE could have done more to court new accessible technologies, the Court is not convinced that any acts or omissions by the State Defendants rise to the level of an ADA or a RA violation. Although Craft was not familiar with certain technological advancements touted by Plaintiffs and was not aware of other state's efforts to adopt accessible technology, he did take steps to encourage new technologies. In 1996 or 1997 Craft encouraged Sequoia, ES&S, and Global to apply for certification for their touch screen systems and in 1997 or 1998 Craft flew out to Global's headquarters to again encourage it to apply for certification for its touch screen technology. Craft also encouraged Diebold to quickly make required changes to its touch screen system with audio ballot capabilities and encouraged Sequoia to create a blended system consisting ofits touch screen machines and ES&S 's optical scan machines. In addition, Craft raised the issue of "sip and puff' devices with ES&S and has been involved in national organizations concerned with voting standards, exposing him to at least some technological advancements. 11 The Court concludes that there is no affirmative obligation on the State to
11 The Court recognizes that Plaintiffs presented evidence that the certification process in Florida is more onerous than in some other states and that a certain amount of tension exists between DOE officials and vendors. See Dkt. 169, p. 97-98. There is some evidence that, because of this tension, vendors may be hesitant to submit new technologies for certification. See id. As one of the most populous states in the Union it seems unlikely that vendors would avoid Florida for long. In addition,
(continued ... )
29

Case 3:01-cv-01275-HLA-HTS Document 215 Filed 03/24/04 Page 30 of 33 PageiD 2763
seek out all cutting edge accessibility technology, and that the States actions, undertaken through Mr. Craft, were sufficient to fulfill its obligations under the ADA and the RA.
Upon consideration thereof, it is hereby ORDERED and ADJUDGED: 1. Plaintiffs are entitled to declaratory judgment that Defendant Stafford violated 28 C.P.R. § 35.151(b) as to the visually and manually impaired Plaintiffs, to the extent the manually impaired Plaintiffs could have voted unassisted via touch screen technology. 2. Defendant Stafford is DIRECTED to have at least one voting machine that permits visually impaired voters to vote without assistance at 20% of the polling places in Duval County. Not later than April12. 2004, Stafford will file a report identifying the polling places at which he would locate the machines and an explanation of his choices, taking into account, inter alia, population density and transportation availability. Not later than April 29, 2004, Plaintiffs will file their comments regarding Stafford's plan. 3. Ifthe Diebold touch screen machines with audio ballot capabilities are not certified on or before May 14. 2004, and/or the Diebold touch screen machines do not permit a manually impaired voter to vote alone via mouth stick, Defendant Stafford is DIRECTED to select and procure another vendor's acceptable touch screen machines with audio ballot capabilities in time for use during the August 2004 primaries.
11 ( ...continued) a certain amount of tension is always likely to exist between regulators and those they regulate. Nevertheless, the DOE should ensure that such tensions do not hinder the certification of accessible voting systems.
30

Case 3:01-cv-01275-HLA-HTS Document 215 Filed 03/24/04 Page 31 of 33 PageiD 2764

4. Defendant Stafford is DIRECTED to keep the Court apprised of any significant

events regarding Diebold's application for certification of its touch screen machines with

audio ballot capabilities, including filing a status report on May 14. 2004, informing the

Court whether said Diebold machines have been certified.

5. Defendants Hood and Kast are entitled to judgment against the Plaintiffs, which

shall be entered following receipt of a status report or reports regarding Diebold's currently

pending application for certification. A final report shall be filed as events occur and in any

case not later than May 17, 2004, even if it is a negative report.

6. Defendant Stafford's Motion to Strike (Dkt. 180) is DENIED.

l/~y DONE AND ORDERED, at Jacksonville, Florida, this ,;)

of March, 2004.

~Jm~LEfu~
UNITED STATES DISTRICT JUDGE

Copies to: Counsel of record

J

Prose party, if any Courtroom Deputy Clerk (RWN) Law Clerk (RWN)

C",.J:locllmnb•.. Setltft&•\lbe)'lltO,.,..Loc:•l
s.._,.T. . . .....rf'f'691~...,.a

31

Case 3:01-cv-01275-HLA-HTS Document 215 Filed 03/24/04 Page 32 of 33 PageiD 2765

Date Printed: 03/24/2004

F I LE C0 PY

Notice sent to:
James Douglas Baldridge, Esq. Howrey, Simon, Arnold & White, LLP 1299 Pennsylvania Ave., N.W. Washington, DC 20004-2402
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Alan M. Wiseman, Esq. Howrey, Simon, Arnold & White, LLP 1299 Pennsylvania Ave., N.W. Washington, DC 20004-2402
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Lois G. Williams, Esq. Washington Laywers Committee for Civil Rights & Urban Affairs 11 Dupont Circle, N.W. Suite 400 Washington, DC 20036
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Case 3:01-cv-01275-HLA-HTS Document 215 Filed 03/24/04
Tracey I. Arpen Jr., Esq. General Counsel's Office City of Jacksonville St. James Bldg., Suite 480 117 W. Duval St. Jacksonville, FL 32202

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 IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT __________________________
CASE NO.: 07-15004-C __________________________
American Association of People with Disabilities, Daniel W. O’Conner, Kent Bell, and Beth Bowen,
Plaintiffs/Appellees,
v.
Jerry Holland, as Supervisor of Elections, Duval County.
Defendant/Appellant. _______________________________
Appeal from the United States District Court, Middle District of Florida, Jacksonville Division
INITIAL BRIEF OF APPELLANT HOLLAND
RICHARD A. MULLANEY GENERAL COUNSEL
ERNST D. MUELLER (FBN 0164027) Office of General Counsel 117 West Duval Street, Suite 480 Jacksonville, FL 32202 (904) 630-1871 (904) 630-1316 (fax) Attorneys for Appellant Holland

Case No.: 07-15004-C In re: American Association of People with Disabilities, et al, vs. Jerry Holland Page C-1 of 3 CERTIFICATE OF INTERESTED PERSONS AND CORPORATE DISCLOSURE STATEMENT Pursuant to Federal Rule of Appellate Procedure 26.1 and the applicable Rules of the Eleventh Circuit Court of Appeals, Defendant/Appellant submits the following certificate of interested persons and corporate disclosure statement: 1. Adams, Honorable Henry L., United States District Judge; 2. Alley, Honorable Wayne E., Senior Judge, United States District Court for the Western District of Oklahoma (presiding by special designation on the United States District Court for the Middle District of Florida, Jacksonville, Division); 3. The American Association of People with Disabilities 4. Arpen, Tracey I., counsel for Appellant; 5. Baldridge, J. Douglas, counsel for Appellees; 6. Bell, Kenton Appellee; 7. Bowen, Elizabeth H., Appellee; 8. Bruskin, Robert, counsel for Appellees; 9. Craft Paul, Chief, Florida Bureau of Systems Certification; 10. Dickson, James D., on behalf of AAPWD;

Case No.: 07-15004-C In re: American Association of People with Disabilities, et al, vs. Jerry Holland Page C-2 of 3 11. Dimitroff, Sashe, D., counsel for Appellees; 12. Duval County Supervisor of Elections’ Office; 13. Florida Division of Elections; 14. Foley, Danielle R., counsel for Appellees; 15. Gardner, Elaine, Washington Lawyers; Committee for Civil Rights and Urban Affairs, co-counsel for Appellees; 16. Hodge, Pamela Ann, visually impaired trial witness; 17. Holland, Jerry, Supervisor of Elections, Duval County, Appellant; 18. Howie, Brian A., counsel for Appellees; 19. Kast, Edward, as Director, Florida Division of Elections; 20. Keeling, Kevin A., counsel for Appellees; 21. Khassian, Heather M., counsel for Appellees; 22. Lawrence, Gregory A., counsel for Appellees; 23. Mueller, Ernst, counsel for Appellant; 24. O’Connor, Daniel W., Appellee; 25. Oddo, Danielle R., counsel for Appellees; 26. Ripley, Richard A., counsel for Appellees;

Case No.: 07-15004-C In re: American Association of People with Disabilities, et al, vs. Jerry Holland Page C-3 of 3 27. Rothman, Ari N., counsel for Appellees; 28. Sigler, William R., counsel for Appellees; 29. Teal, Jason, counsel for Appellant; 30. Thomas, Milo Scott, counsel for Appellees; 31. Verrocchio, Vincent E., counsel for Appellees; 32. Waas, George L., counsel for the Florida Secretary of State and Division of Elections; 33. Williams, Lois G., Washington Lawyers; Committee for Civil Rights and Urban Affairs, co-counsel for Appellees; 32. Wiseman, Alan M., counsel for Appellees.

STATEMENT CONCERNING ORAL ARGUMENT Appellant, Supervisor of Elections, believes that oral argument would be helpful to the Court because of the complex history of this case and requests that oral argument be granted.
-i-

TABLE OF CONTENTS Certified of Interested Persons . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . C-1 Statement Concerning Oral Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i Table of Contents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii Table of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv Statement of Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Statement of the Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Statement of Case and Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Statement of Standard of Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 Summary of the Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
I. The Case is Moot and, Accordingly, Requires a Remand by this Court to the District Court With Directions to Vacate the Judgment(s) and Dismiss the Case . . . . . . . . . . . . . . . . . 27 A. Whether There Would be Injunctive Relief Was the Only Remaining Issue in the Case . . . . . . . . . . . . . . . . 27 B. The Applicable Case Law Requires a Remand to the District Court With Directions to Vacate the Judgment(s) and Dismiss the Case . . . . . . . . . . . . . . . . . . 29
II. In the Event the Court Determines the Case is Not Moot, the District Court Erred in Not Granting the Supervisor of Elections Motion to Dismiss . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
-i-

III. In the Event the Court Determines the Case is Not Moot, and Concludes that the ADA was Applicable to the Supervisor of Elections Purchase of Voting Machines in February, 2002, the District Court Erred in Concluding that the Purchase of an Optical Scan Voting System at that Point in Time Violated the ADA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
A. An Optical Scan System Did Not Violate the ADA Where Third Party Assistance Under Florida Law is Provided . . . . . . . . . . . . . . . . . . . . . . . 34
IV. In the Event the Court Concludes the Case is Not Moot and that the ADA was Applicable to the Supervisor of Elections Purchase of Voting Machines in February 2002, the District Court Erred in Concluding that 28 C.F.R. 151(b) Required the Supervisor of Elections to Purchase Voting Machines Which Allowed Visually and Manually Impaired Voters to Vote Unassisted With Touchscreen Technology . . . . . . . . . . . . . . . 37
A. Because Plaintiffs Were Not Excluded from or Denied the Benefit of Voting, Their Regulatory Claim Must Fail . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
B. The Trial Court Erred In Holding That Voting Systems Are “Facilities” Under § 35/151(b) . . . . . . . 38
C. The Trial Court Erred in Its Application of 28 C.F.R. § 35.151(b)’s “Feasibility” Standard . . . . . 41
1. The Trial Court Erred in Holding That State Technical Certification Assured A System’s Overall “Feasibility.” . . . . . . . . . . . . . . . . . . . . 43
2. The Trial Court Erred in Concluding That Stafford Should Have Bought the ESS System Because it was the Only Certified System With an Audio Ballot . . . . . . . . . . . . . . . . . . . . . 44
-ii-

3. Three Audio Ballots for Centralized Short Term Use/Testing Was Reasonable . . . . . . . . . . 45
D. The Trial Court Erred in Finding A Violation as to the Manually Disabled Plaintiff . . . . . . . . . . . . . . . . . . 46
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47 Certificate of Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49 Certificate of Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
-iii-

TABLE OF AUTHORITIES
CASES
Ability Center of Greater Toledo v. City of Sandusky, 133 F. Supp. 2d 589 (N.D. Ohio 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Alexander v. Sandoval, 532 U.S. 275, 291, 121 S. Ct. 1511, 1522 (2001) . . . . . . . . . . . . . . . . . . . . . . . . 38
American Ass’n of People With Disabilities v. Hood, 2004 WL 626687 (M.D. Fla. March 24, 2004) . . . . . . . . . . . . . . . . . . . . . . . . . 8, 9
American Ass’n of People With Disabilities v. Smith, 227 F.Supp.2d 1276 (M.D. Fla. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
American Ass’n of People With Disabilities v. Hood, 278F.Supp.2d 1337, 1345 (M.D. Fla. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Anderson v. Pa. Dept. of Public Welfare, 1 F. Supp. 2d 456, 463-64 (E.D. Pa.,1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Association for Disabled Americans v. City of Orlando, 153 F. Supp. 2d 1310, 1319 (M.D. Fla. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Deck v. City of Toledo, 29 F. Supp. 2d 431 (N.D. Ohio 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Florida Progress Corp. and Subsidiaries v. C.I.R., 348 F.3d 954, 959 (11th Cir. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
IAL Aircraft Holding, Inc. v. Federal Aviation Administration, 216 F.3d 1304, 1305 (11th Cir. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Kinney v. Yerusalim, 9 F.3d 1067 (3rd Cir. 1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
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Molloy v. Metro. Transp. Auth., 94 F.3d 808, 812 (2nd Cir. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
National Advertising Co. v. City of Miami, 402 F3d 1329, 1335 (11th Circ. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Nelson v. Miller, 170 F.3d 641 (6th Cir. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
Panzardi-Santiago v. Univ. of Puerto Rico, 200 F. Supp. 2d 1 (D. Puerto Rico 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Schonfeld v. City of Carlsbad, 978 F. Supp. 1329, 1339 (S.D. Cal. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Shotz v. Cates, 256 F.3d 1077 (11th Cir. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Troiano v. Supervisor of Elections, 382 F3d 1276, 1382 (11th. Cir. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
United States v. Munsingwear, Inc., 340 U.S. 36, 39, 71 S.Ct. 104, 106, 95 L.Ed 36 (1950) . . . . . . . . . . . . . . . . . . . 29
Williams v. Alabama State University, 102 F.3d 1179, 1182 (11th Cir. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
STATUTES
§ 101.051 (1), Florida Statutes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim § 101.294 (1), Fla. Stat. (2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 § 101.56062, Florida Statutes 2002 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 97.061, Florida Statutes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 42 U.S.C. § 12132 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38 42 U.S.C. §§ 15301-15545 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 42 U.S.C. 15481(a)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 42 U.S.C. § 15481 (d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
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OTHER AUTHORITIES Art. VI, § 1, Fla. Const. (2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Chapter 2001-40, Laws of Florida, § 76 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 RULES 28 C.F.R. § 35.151(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim 28 C.F.R 35.151(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41 28 C.F.R.§ 35.160 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim Fed.R.Civ.P.3(a)(7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48 Fed.R.Civ.P. 52(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 Fed.R.Civ.P. 54(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1,10,12
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STATEMENT OF JURISDICTION This is an appeal by the Duval County, Florida, Supervisor of Elections (“Supervisor of Elections”) from an order and judgment (Doc. 215, 216) entered by the district court in March 2004, which were rendered “final” pursuant to Fed.R.Civ.P. 54(b) on September 20, 2007, through entry of a judgment against other State of Florida defendants (Kurt S. Browning, Secretary of State, Amy Tuck, Director, Division of Elections) (Doc. 295). 1 This appeal also seeks reversal of a December 3, 2007 district court order (Doc. 341) denying the Supervisor of Elections’ Motion to Vacate the 2004 order and judgment (Doc. 215, 216) entered against him on grounds of mootness, which was entered after this appeal was initiated. This order (Doc. 341) was timely appealed through an Amended Notice of Appeal filed on December 4, 2007. See Doc. 342.
1 All court documents referenced in this Brief are contained in the Appellant Holland’s Record Excerpts, unless otherwise indicated.
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STATEMENT OF THE ISSUES
I. Whether the Case is Moot and, Accordingly, Requires a Remand by this Court to the District Court with Directions to Vacate the Judgment(s) and Dismiss the Case?
II. Whether, in the event the court determines the case is not moot, the district court erred in not granting the Supervisor of Elections Pretrial Motion to Dismiss (Doc. 53)?
III. Whether, in the event the Court determines the case is moot, and concludes that the ADA was applicable to the Supervisor of Elections purchase of voting machines in February 2002, the district court erred in concluding that the purchase of an optical scan voting system at that point in time violated the ADA?
IV. Whether, in the Event the Court Concludes the Case is Not Moot, and that the ADA was applicable to the Supervisor of Election’s purchase of voting machines in February 2002, the District Court Erred in Concluding that 28 C.F.R. § 35.151(b), Required that the Supervisor of Elections to Purchase Voting Machines Which Allowed Visually and Manually Impaired Voters to Vote Unassisted Via Touch Screen Technology?
A. Whether, because no Plaintiff was ever denied the right to vote, neither the ADA nor 28 C.F.R. 35.151(b) were violated?
B. Whether the district court erred in holding that voting systems are “facilitators” under 28 C.F.R. § 35.151(b)?
C. Whether the district court erred in its application of the “Feasability” standard in 28 C.F.R. § 35.151(b)?
1. Whether the district court erred in ruling that State certification determined a voting system’s overall feasability?
2. Whether the district court erred in concluding that
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the Supervisor of Elections should have purchased the ESS system because it was the only certified system with an audio ballot? 3. Whether the Supervisor of Elections Purchase of Three Audio Ballots for Use/Testing at a Central Location Was a Reasonable Interim Measure? D. Whether the District Court Erred in Finding a Violation as to the Manually Disabled Plaintiff?
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STATEMENT OF THE CASE AND FACTS Statement of the Case A. Introduction
This appeal arises from the district court's order (Doc. 215) and final judgment, (Doc. 216) entered in March 2004, holding that Supervisor John Stafford violated the Americans with Disabilities Act (ADA) by procuring a precinct-based optical scan voting system in Duval County in 2002 rather than a touchscreen system with audio ballots of a different vendor, and requiring that such equipment be purchased in one out of every five (5) precincts. The district court’s order was stayed, initially by the trial judge and later by this Court until an order determining that the case is moot was entered by this Court on August 15, 2007. See Doc. 290 (copy attached to this Brief as Exhibit A.)
However, as set forth in greater detail below, the district court has determined that the Court of Appeals determination that the case is moot does not bind him, has proceeded to enter an additional judgment and multiple order in the case. These orders include a denial of the Supervisor of Elections motion to vacate the judgment (Doc. 215) against him on grounds of mootness. Hence, this second appeal to this Court in this case has followed.
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B. Plaintiffs’ Initial Claims Are Dismissed With Prejudice to the Extent They Assert a Right to a Secret and Direct Voting Experience
Plaintiffs’ initial complaint against the Supervisor of Elections was filed in
November 2001 and asserted three claims: a Florida constitutional claim based on the
right to a “direct and secret” vote, 1 an ADA claim, and a Rehabilitation Act (RA)
claim, each seeking to invalidate Florida’s third party assistance statute, § 101.051,
Florida Statutes. 2
The Supervisor of Elections moved to dismiss the action for failure to state
claims for relief based primarily on the Sixth Circuit’s decision in Nelson v. Miller,
1 Art. VI, § 1, Fla. Const. (2001) (“ All elections by the people shall be by direct and secret vote.”).
2 The statute provided for assistance at the polls to blind and other disabled voters and states that:
(1) Any elector applying to vote in any election who requires assistance to vote by reason of blindness, disability, or inability to read or write may request the assistance of two election officials or some other person of the elector's own choice, other than the elector's employer, an agent of the employer, or an officer or agent of his or her union, to assist the elector in casting his or her vote. Any such elector, before retiring to the voting booth, may have one of such persons read over to him or her, without suggestion or interference, the titles of the offices to be filled and the candidates therefor and the issues on the ballot. After the elector requests the aid of the two election officials or the person of the elector's choice, they shall retire to the voting booth for the purpose of casting the elector's vote according to the elector's choice.
§ 101.051 (1), Fla. Stat. (2001)
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170 F.3d 641 (6th Cir. 1999). The district court, per Judge Ralph W. Nimmons, Jr., 3 on October 16, 2002 dismissed the Plaintiff’s state constitutional claims with prejudice, finding that the assistance provided by § 101.051, Florida Statutes, satisfied the “direct and secret” language of the Florida Constitution. Doc. 42. 4
The trial court also dismissed Plaintiff’s ADA and RA claims with prejudice to the extent they claimed a right to a voting system that provided a “direct and secret” voting experience without third party assistance. Doc. 42. 5 The court permitted Plaintiffs to replead, noting that their “amended complaint should allege more clearly ... the bases, if any, for their reliance upon the more generic proscription [of the ADA] in contradistinction to the acts’ more specific proscriptions.” Doc. 42.
C. Plaintiff’s Filed Amended Complaint Notwithstanding Enactment of HAVA
The order dismissing Plaintiff’s Complaint with prejudice was entered on October 16, 2002. Doc. 42. Within two weeks thereafter, and before Plaintiffs were able to file an Amended Complaint, President Bush, on October 29, 2002, signed into
3 Judge Nimmons was the assigned judge until shortly before trial when, due to his illness, the case was transferred to a visiting judge.
4 Document 42 has not been included in the Record Excerpts, but is part of the Record on Appeal.
5 See American Ass’n of People With Disabilities v. Smith, 227 F.Supp.2d 1276 (M.D. Fla. 2002).
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law the Help America Vote Act (hereinafter “HAVA”) which is codified at 42 U.S.C.
§§ 15301-15545. Section 42 U.S.C. 15481(a)(3) of HAVA reads, in part, as follows:
(3) Accessibility for individuals with disabilities. - - The voting system shall - -
(A) 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; (B) satisfy the requirement of subparagraph (a) through the use of at least one direct recording electronic voting system or other voting system equipped for individuals with disabilities at each polling place;
Compliance with the foregoing was required by January 1, 2006. See 42 U.S.C. §
15481 (d).
Plaintiffs’ Amended Complaint was filed on November 5, 2002, six (6) days
later. See Doc. 47. The relief sought by Plaintiffs was as follows:
E. That this Court issue preliminary and permanent injunctions requiring Defendants to provide, in each polling place in Duval County, at least one voting system that is accessible to voters with visual impairments and voters with manual impairments;
This, with the exception of the “manual impairment” language, is identical to the
relief for which Congress had already provided in HAVA, per the preceding quotation
from the Act. However, Plaintiffs wanted it to happen immediately, a practical
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impossibility, rather than on the comparatively reasonable three (3) year timetable established by Congress.
Because the Supervisor of Elections, from the outset, intended to comply with HAVA, mootness was asserted as a defense when the Answer was filed. Doc. 128, p. 18, par. 3.
D. Stafford’s Motion to Dismiss the Amended Complaint Is Denied Plaintiffs Amended Complaint substituted the phrase “cast independently a secret ballot” for the phrase “cast a direct and secret ballot” which had been used in the Initial Complaint and, as to their general discrimination claim, listed various attributes of third party assistance that were allegedly intrusive as to their privacy such as “being forced to reveal their vote to a third-party.” Doc. 47, pp. 17-18 The Supervisor of Elections moved to dismiss the amended complaint as another attack on Florida’s third party assistance statute, which had already been declared valid in Judge Nimmons dismissal of the Initial Complaint. 6 Doc. 53. In an August 23, 2003 order, the trial court allowed the Plaintiffs’ repleaded ADA claims to survive dispositive motions based on two generic ADA regulations, 28 C.F.R. §§ 35.151(b) & 35.160, and a claim of “generic discrimination.” Doc. 124.
6 Judge Nimmons denied the Plaintiffs’ motion for reconsideration of his dismissal order. Doc. 115; (not included in Record Excerpts) see American Ass’n of People With Disabilities v. Hood, 278 F.Supp.2d 1337, 1345 (M.D. Fla. 2003)
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E. Plaintiffs Prevail at Trial on a Single ADA Regulatory Claim Under 28 CFR § 35.151 (b)
A seven-day bench trial was held from September 23, 2003 to October 1, 2003 Docs. 166-172. On March 24, 2004, the trial court issued its final written order in favor of Plaintiffs on a single ADA regulatory claim under 28 C.F.R. section 35.151(b), that being that the purchase of optical scan voting equipment was an “alteration” to an existing “facility” that failed to make voting in Duval County “readily accessible to visually or manually impaired voters” to the “maximum extent feasible.” Doc. 215 7 Both the Order and Judgment ordered that a touchscreen with audio capacity be placed in one of very five precincts, a significantly less stringent requirement than that imposed by HAVA (one in every precinct) See Doc. 215, page 30, par. No. 2; Doc. 216.
F. The Interlocutory Appeal The Supervisor of Elections appealed the Order (Doc. 215) and Judgment (Doc. 216) which had been entered. Doc. 217. In addition he moved for a stay of the injunctive relief directed. Doc. 219. This motion was granted by the district court. Doc. 232. This stay remained in effect from April 16, 2004 through August 15, 2007, when the Court of Appeals determined the case was moot (Doc. 290, attached to Brief
7 See American Ass’n of People With Disabilities v. Hood, 2004 WL 626687 (M.D. Fla. March 24, 2004).
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as Exhibit A) with the exception of a period of one week from September 28, 2004 (Doc. 267) through October 5, 2004 (Doc. 275). 8
At the same time the district court ruled against the Supervisor of Elections on the merits of the case in Document 215, it ruled in favor of the State Defendants (the Secretary of State and Director of the Division of Elections), concluding that they [unlike the Supervisor of Elections] had no affirmative obligation to seek out all cutting edge technology and had behave reasonably. Doc. 215, pp. 29-30. 9 The district court, however, withheld entering final judgment in favor of the State Defendants, and never did so prior to the issuance by the Court of Appeals of its final decision in the case on August 15, 2007. See Doc. 215, p. 30, par. No. 5; Doc. 295, entered September 20, 2007.
Accordingly, pursuant to Fed.F.Civ.P. 54(b), the case was not “final” for Fed.R.App. 4 requirements, and the Supervisor of Election’s appeal had to proceed on an interlocutory basis. This was recognized and confirmed by specific order of the Court of appeals, which directed that the appeal proceed only on Doc. 215 (the district court’s final order) and Doc. 216 (the judgment against the Supervisor of
8 After the visiting Judge who tried the case rescinded his handling of the case, the new Judge handling the case lifted the stay. Doc. 267. However, it was reinstated by the Court of Appeals within a week. Doc. 275.
9 This ruling was not impeded by the fact that the State had not certified a voting system specifically designated for “manually” impaired voters, the district court finding this unnecessary. Doc. 215, pp. 28-29.
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Elections), and not on Doc. 42 (order dismissing initial complaint on 10/16/02) and Doc. 124 (order denying motion to dismiss amended complaint).
This appeal does not ask the Court of Appeals to address Doc. 42, but does request the Court of Appeals to address Docs. 124, 215, and 216, as incorrect rulings, unless the Court does not determine that the case is moot and directs a remand with directions to vacate the judgments below and dismiss the case. If this occurs, the addition of Doc. 124 to the orders being substantively considered by Court would not render the issues on this appeal any different than they were on the initial interlocutory appeal. The reason is that the Court cannot appropriately address whether 28 C.F.R. § 35.151(b) (the subject of Doc. 215 and 216) was appropriately invoked by the district court, without first determining the ADA does in fact govern voting systems (the subject of Doc. 124).
Accordingly, the issues before the Court of Appeals with respect to the ADA and 28 C.F.R. § 35.151(b), other than mootness, if reached by the Court, will be identical to those presented to the Court on the initial interlocutory appeal.
G. The Court’s Decision on Appeal and Post-Appeal Proceedings in the District Court
In it’s August 15, 2007, decision the Court of Appeals reviewed information furnished by the district court, an affidavit which supplemented the record (Doc. 343-
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9) and concluded that the “case” (not the “appeal”) is moot. (Doc. 290; Ex. A, Brief). The Court’s mandate issued at the same time. No petition for rehearing was filed, nor further appeal taken by either party.
The Supervisor of Elections, however, did within ten (10) days file in the Court of Appeals a “Motion Requesting Addition of Directions to District Court in Final Order.” The added directions requested, which are normally present when a case is declared moot by the Court of Appeals were the addition of the following language to the Court’s order:
Accordingly we vacate the district court’s final order (Doc. 215) and judgment (Doc. 216) and remand to the district court with instructions to dismiss the case. The Court of Appeals denied the request on November 1, 2007, citing lack of jurisdiction because the case had been returned to the district court. See Order (attached to Brief as Exhibit B). In the order, however, the Court characterized what it had done in its August 15, 2007 order as “dismissing the appeal [not”case”] as moot . . . .”. The district court promptly entered, on September 20, 2007, judgment in favor of the State Defendants (Secretary of State Hood; Director of Elections Kast). Doc. 295. This rendered the case “final”, pursuant to Fed.R.Civ.P. 54(b). The district
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court also entered several other orders which indicated the district court deemed the case not to be moot. See Docket Sheet.
The Supervisor of Elections filed a motion, on October 4, 2007, to vacate the dispositive orders and judgment which had been entered by the district court (Doc. 215, 216, 294, 295), and for dismissal of the case, on grounds of mootness. Doc. 315. This motion was denied by the district court on December 3, 2007, because the Court of Appeals had provided no “directions to dismiss” Doc. 341, page 2. This ruling of the district court was added to an Amended Notice of Appeal, together with the other final orders and judgment in the case, which had already been appealed. See Doc. 342.
Statement of the Facts A. Post-Election 2000: Replacing Punchcards & Restoring Voter Confidence
After Election 2000, Florida elections officials sought to replace punchcard systems with more accurate equipment to restore voter confidence by eliminating overvotes and undervotes. S.E. Ex. 31, at 30-47; Tr. 5:63-64 (Doc. 170); 10 Tr. 7:10 (Doc. 172). Elimination of infamous “hanging chads” in twenty-four counties with punchcard machines had become necessary. S.E. Ex. at 30-47; Tr. 7:10-11(Doc. 172).
10 The Supervisor of Election’s Exhibit’s were called “Stafford’s” Exhibits, after the name of the Supervisor of elections at the time of trial. They will be referred to here as “S.E. Exhibit’s”. Trial transcript citations will follow the form used in the citations preceding this footnote.
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(Duval County criticized for overvotes on its punchcard system)] On May 10, 2001, the Florida Legislature enacted the Florida Elections Reform Act of 2001, Chapter 2001-40, Laws of Florida, which decertified punchcard systems effective September 2, 2002 thereby requiring counties to replace such systems.
B. The Governor’s Task Force Recommends Optical/Digital Scan The 2001 Governor’s Task Force extensively reviewed and compared so-called “Marksense” 11 technology (i.e., optical/digital scan) versus newly developing direct recording electronic (DRE) technology. The Task Force noted the nascent state of the latter (which includes touchscreens), and that there were “no DRE systems certified in Florida” at that time. S.E. Ex. 31, at 34. The Task Force reviewed existing studies and determined that optical scan systems had lower error rates than DRE systems. S.E. Ex. 31, at 37. The Report explicitly recognized two sets of standards that a voting system must meet. The first are technical certification standards set and administrated by the State of Florida. S.E. Ex. 31 at 35. The second are usability/affordability “standards that focus on the users of the equipment – voters, poll-workers, and election officials – and include voter error rates compared to other equipment; ease of setup, use, voter
11 Marksense can be either digital scan or optical scan, the latter scanning ballots faster than the former. Tr. 7:77-78 (Doc. 170). In general, Marksense is a system “in which a ballot card has candidates’ names preprinted next to an empty oval, circle, rectangle, or an incomplete arrow.” S.E. Ex. 31 at 33.
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error corrections and maintenance; documentation for vote-auditing purposes; cost; and availability. Id. The Task Force concluded that “only one voting system currently meets all of these standards: the state-certified marksense voting system with precinct level tabulation.
C. Duval County’s Election Reform Task Force Recommends Optical Scan During 2001, the Duval County Election Reform Task Force held numerous
public hearings and issued a final comprehensive report, which stated: The Task Force carefully considered both technology options, hearing presentations from vendors, the Supervisor of Elections, and other authorities. It recommends that Duval County adopt precinct-based optical scanning technology for no more than two to four years, accompanied by a firm commitment to acquiring DRE technology thereafter. In reaching this conclusion, the Task Force considered the current state of technological reliability, state certification and cost.
S E. Ex. 1, at 27 (emphasis in original). The Report recommended “that consideration be given to the establishment of a centralized voting facility for extraordinary access” including additional technology for the disabled based on input from the Jacksonville Chapter of the Florida Council of the Blind, Tr. 6:57-60 (Doc. 171); Tr. 7:137 (Doc. 172), as well as Duval County’s Chief of Disabled Services, Jack Gillrup. The Task Force heard reports regarding accommodations for disabled voters such as curbside voting and third party assistance, and commended Stafford for his overall efforts in assisting disabled voters. S.E. Ex. 1, at 22.
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D. Certified Voting Systems Available in Late 2001/Early 2002 Florida does not have a uniform statewide voting technology. Instead, its sixtyseven counties may select different voting systems, provided their equipment is certified by the Florida Department of State, Division of Elections. 12 In late 2001/early 2002, counties had the choice of one of three vendors: Global/Diebold,13 Elections Systems & Software, Inc. (ESS) or Sequoia Voting Systems Inc. (Sequoia). Each vendor offered certified optical/digital scan systems. State Ex. 3, 4; S.E. Ex. 43. Each was developing or had a touchscreen system certified, but touchscreens were substantially more expensive than optical/digital scan systems (see below). State Ex. 3, 4; S.E. Ex. 31 & 43. Counties selected only a single vendor because no certification existed for blending the equipment of different vendors. Tr. 3:118-19, & 122-23 (Doc. 168). Moreover, Florida counties preferred to work with a single vendor for warranty service and for technical assistance. Tr. 3:122-23 (Doc. 168) (“the ability to get technical assistance during an election cycle is a big area of risk that the counties want to reduce .…”
12 § 101.294 (1), Fla. Stat. (2001) (“No governing body shall purchase or cause to be purchased any voting equipment unless such equipment has been certified for use in this state by the Department of State.”).
13 The original vendor was Global Elections System, which was purchased by Diebold Elections Systems in February 2002. Tr. 5:37 (Doc. 170) (the “Global/Diebold” or “Diebold” system).
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E. Only One Vendor, ESS, Had A Certified Audio Ballot One vendor, ESS, received the first certification in Florida for an audio ballot for the visually impaired on August 16, 2001. 14 State Ex. 3, 4; Ex. 19. Global/Diebold had an application pending at that time. State Ex. 4 at ii (#14), and had given assurances that its system, with audio component, would be certified in time for the Fall 2002 election cycle. 15 Tr. 6:76-77; Tr. 5:69-70. Nonetheless, Diebold’s four applications were either withdrawn or denied and did not become available for use in Florida until after May 17, 2004. See Doc. 249. 16 On May 30, 2002. Sequoia applied for certification of its audio ballot, which was granted on August 7, 2002, only a month before the primary election. State Ex. 3, 4, at 31.
F. Stafford Contracts With Global/Diebold In January 2002 After a detailed review process starting in 1999 Tr. 7:54-55 (Doc. 172), and continuing through late 2001, the Supervisor of Elections chose to procure the Global
14 ESS later issued updated and revised technical versions for the same touchscreen system on December 27, 2001; May 7, 2002; June 17, 2002; August 7, 2002; and August 21, 2002. State Ex. 3, 4.
15 In Duval County, Diebold contractually agreed to provide three certified audio ballots without charge for the Fall 2002 elections. S.E. Ex. 97; Ex. 19, Exhibit A.
16 Document 249 is not included in the Record Excerpts, but is part of the Record on Appeal.
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optical scan system, which he and his staff gave high marks. 17 The Supervisor of Elections and his staff found that touchscreens had “no proven track record”, that recounts with touchscreens would be problematic, and that optical scan and paper ballots “will be required for absentee voting” in any event. S.E. Ex. 4. Further, they determined, touchscreens would “be extremely costly in terms of” their price; maintenance; storage and transportation; setup and testing; poll worker training; and election day contingency support staffing; and that they also posed “security and accountability” concerns. Id. In contrast, optical scan systems had few disadvantages but may advantages such as a “proven election track record for reliability and accuracy”; ease in setup, storage, administration and recounts; high voter acceptance; substantially lower overall costs and compatibility with other existing components such as voting booths. Id.
On January 17, 2002, Stafford sent a letter to the Chief of Procurement, City of Jacksonville, requesting purchase of the Global/Diebold optical scan system with three touchscreen/audio ballots for visually disabled voters. Tr. 5:79-80 (Doc. 170); S.E. Ex. 6, 7. Id. The City’s General Government Awards Committee approved this request on January 24, 2002, creating a legally enforceable obligation at that point.
17 Stafford was elected in 1999 based on a campaign platform of upgrading the voting system to either optical scan or touchscreens. Tr. 5:41 (Doc. 170); Tr. 7:6 (Doc. 172)
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S.E. Ex. 6, 7; Tr. 5:79-80 (Doc. 170); Tr. 4:100 (Doc. 169). (“We had a contract agreement in place in late January”)
The Supervisor specifically rejected the ESS system because of a number of features he deemed were ill-advised. Tr. 4:140-41 (Doc. 169); Tr. 5:66-68 (Doc. 170). Its systems required that pollworkers boot-up the ten to twenty machines in each precinct with a single device that was used sequentially for each voting machine and audio ballot. Tr. 5:66-68 (Doc. 170). The sequential nature of uploading required substantial time, typically starting the night before, to prepare a precinct in time for opening at 7 a.m. on election day, making it impractical. Tr. 7:20-21; Tr. 5:75-76 (Doc. 170); Tr. 7: 20-21 (Doc. 172).
This feature created the fiascos in Miami-Dade and Broward Counties in the September 2002 primaries requiring the extraordinary step of the Governor extending poll closing times. P. Ex. 1; Tr. 4:140-41 (Doc. 169); Tr. 7:17-22 (Doc. 172) (logistics of running election in Miami-Dade turned over to emergency management personnel/police department). The severe problems in Miami-Dade and Broward resulted in many reports critical of ESS including those by the Miami-Dade Inspector General’s office. S.E. Ex. 12. The Governor’s 2002 Task Force noted “numerous problems were experienced” with ESS and that “county election officials mobilized over 4,500 county employees to work as poll workers, filling a variety of roles from
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clerks to voting equipment technicians” to prevent their reoccurrence. S.E. Ex. 12, at 28-29. The problems with the ESS system in those counties continued thereafter. Id.; Tr. 7:17-18 (Doc. 172).
As to Sequoia, the Supervisor rejected its scanner unit because it was an old, big, heavy and “blocky” unit that was difficult for pollworkers to transport. Tr. 5:6667 (Doc. 170); Tr. 7:76-77 (Doc. 172). The unit was “slow to ingest a ballot” because of its slower digital (rather than optical) scan design. Tr. 7:76 (Doc. 172). The unit also permitted voters themselves to override or reject a ballot, a negative feature because voters could do so without a pollworker’s knowledge or involvement. Id. Finally, the Sequoia digital scan unit did not have rechargeable batteries, but rather used “one-shot’ batteries that required precincts to have spare batteries on hand. Tr. 7:77 (Doc. 172).
G. 52 of 67 Counties Use Optical Scan, 15 Choose Touchscreens, And Only A Very Few Use Audio Ballots
In the Fall 2002 elections, fifty-two (77.6%) of sixty-seven Florida counties, like Duval County, used precinct-based optical/digital systems 18 while fifteen counties used precinct-based touchscreen systems. 19 Thirty counties chose
18 S.E. Ex. 34, at 4 (“Counties Using Marksense Precinct Voting Method”). 19 S.E. Ex. 34, at 2 (“Counties Using DRE Precinct Voting Method”).
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Global/Diebold’s optical scan voting systems; 20 thirty-two chose systems offered by ESS (twenty-one optical scan); 21 and five chose systems offered by Sequoia (one digital scan). 22 The extent of audio ballot use in the fifteen DRE counties is
unknown. State Voting Systems Chief, Paul Craft, had no specific data or factual
basis regarding the use of audio ballots and did not know whether any, other than
Pasco County, used audio ballots at the precinct level. Tr. 3:42, 151 (Doc. 168).
H. The Cost of Optical Scan v. Touchscreens
The 2001 Governor’s Task Force analyzed the cost of optical scan systems
versus touchscreen systems, stating:
Precise estimates on voting system costs are difficult to gauge for many reasons. No two voting systems operate in the same way. Some voting systems have ballots and others do not. Some voting systems require special storage and maintenance and others do not. Some voting systems require computer programming and others do not … one has to make awkward comparisons between different types of equipment costs, software costs, training costs, storage costs, transportation costs, and maintenance costs.
S.E. Ex. 31, at 39. In Duval County, the direct cost of purchasing a precinct-based
touchscreen system in January 2002 for Duval County would have been from $6.5 to
20 Tr. 3:147 (Doc. 168); S.E. Ex. 34, at 4 (Florida Division of Elections website; Voting Systems: Diebold).
21 S.E. Ex. 34 at 5 (Voting Systems: ES&S). 22 Id. at 6 (Voting Systems: Sequoia).
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$12 million, three to six times the direct cost of an optical scan system. S.E. Ex. 4; P. Ex. 100; Tr. 7:11-14 (Doc. 172). The Global/Diebold System used in 2002 was ultimately procured for $1.8 million (less than estimated) with three audio ballots provided without charge. S.E. Ex. 6, 7.
STATEMENT OF THE STANDARD OF REVIEW This Court reviews the district court’s legal conclusions de novo. Williams v. Alabama State University, 102 F.3d 1179, 1182 (11th Cir. 1997). Review of factual findings is based on the clearly erroneous standard. Florida Progress Corp. and Subsidiaries v. C.F.R., 348 F.3d 954, 959 (11th Cir. 2003); Fed.R.Civ.P. 52(a) (“Findings of fact, whether based on oral or documentary, evidence, shall not be set aside unless clearly erroneous....”).
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SUMMARY OF THE ARGUMENT The district court erred in not vacating the final orders and judgments in the case after the Court of Appeals had declared the case moot in a prior interlocutory appeal. Following the dismissal of their initial Complaint with prejudice, and prior to the filing of the Amended Complaint at issue in this case, Congress passed and the President signed HAVA, on October 29, 2002. HAVA required the precise relief Plaintiff sought - a disabled compliant voting machine with audio component in every precinct. It thus rendered moot from the inception of the renewed suit the declaratory relief which Plaintiffs sought. HAVA, however, did not require compliance until January 1, 2006. Hence, the only issue in the case was whether Plaintiff could obtain injunctive relief which required the Supervisor to make such equipment available for voting prior to 2006. An injunction so requiring was entered by the district court in March 2004, but stayed pending appeal. This Court, in its August 15, 2007 order, held that inasmuch as the Supervisor of Elections had already obtained a disabled compliant voting machine for every precinct, the case was moot, and dismissed the appeal. This declaration by the Court of Appeals resolved the only issue on the merits remaining in the case. The firm case law established by the Supreme Court and this Court is that when a case becomes moot on appeal, the judgment must be vacated and the case
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dismissed. The district court erred in denying the Supervisor of Election’s motion requesting the vacating of the judgments and dismissal of the case, because no other issue remains to be decided, and the case is in fact wholly moot.
In the event the Court determines the case is not moot, the district court must resolve additional errors which the district court made in concluding that the Supervisor of Elections purchase of an optical scan voting system in 2002 – rather than an ESS touchscreen voting system with audio ballot – constituted an ADA violation. These are as follows:
First, the ADA does not apply in this context. As the Sixth Circuit and trial courts in Nelson v. Miller held, the ADA was not intended to displace federal elections laws or create a federal right of secrecy in voting. 170 F.3d 641 (6th Cir. 1999), affirming on other grounds, 950 F.Supp. 201 (W.D. Mich. 1996). The district court erred in denying the Supervisor of Elections motion to dismiss on these grounds.
Second, even if the ADA was intended to apply to voting machinery, the trial court committed errors in its application. It erred initially, by concluding that a voting system is itself a “facility” under 28 C.F.R. § 35.151(b). Reported cases under § 35.151(b) involve physical alterations to a permanent structure, such as curb cuts
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added to a sidewalk or an elevator to a building, which are dissimilar from voting systems which are portable equipment not affixed to any permanent structure.
Next, the optical scan voting system in Duval County, combined with the provision of third-party assistance at the polls as required by Florida law, was a sufficient and reasonable accommodation that makes voting readily accessible to and usable by all, including voters with disabilities. Given the then-existing choice of a single vendor (ESS) with its newly-developed touchscreen/audio ballot, and the severe administrative, technological and fiscal problems with its system overall, the choice to use an optical scan system was a reasonable one, such a system being accessible to the greatest extent possible under the circumstances that existing in late 2001/early 2002, when experience with touchscreen, audio ballots and other similar unproven voting equipment was virtually non-existent.
The district court also employed a definition of the word “feasible” that rendered it meaningless in the context of 28 C.F.R. § 35.151(b). State approval of a system does not per se make that system “feasible”, but rather is a certification that the system can perform certain technical functions. Certification does not mean a system is affordable, administratively or technologically useable, or will otherwise meet a jurisdiction’s particular needs.
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The trial court also erred in concluding that the ESS touchscreen/audio ballot system was “feasible” and thereby compelled in Florida counties. 28 C.F.R. § 35.151(b) does not require that a “facility” be made readily accessible and useable; rather, it requires only that it be made so “to the maximum extent feasible” under the circumstances. Under this reasonableness standard, the trial court engage in “judicial second-guessing” by concluding that the ESS system should have been procured. Indeed, the trial court clearly erred in overlooking the serious flaws in that system that resulted in an elections fiasco in Miami-Date County as well as the severe economic, technological and administrative problems with the ESS system.
Finally, it was error for the district court to conclude that an ADA violation had been committed with respect to a manually (not visually) disabled Plaintiff when no equipment for use by manually disable had been certified by the State for manually disabled voters.
In summary, the case is entirely moot and must be remanded to the district court with directions to vacate the final orders and judgments and dismiss the case. If the Court concludes this is not the case, it must overturn this case on the merits as inconsistent with prior ADA case law and applications.
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ARGUMENT I. The Case is Moot and, Accordingly, Requires a Remand by this
Court to the District Court With Directions to Vacate the Judgment(s) and Dismiss the Case A. Whether There Would be Injunctive Relief Was the Only
Remaining Issue in the Case The district court refused to grant the Supervisor of Elections motion to vacate the final orders and judgments entered in this case (Doc. 315) on the following grounds:
The Judgment in this action included injunctive relief, and the issue of injunctive relief was the only issue reviewed on appeal to the Eleventh Circuit. Doc. 341, p. 2. Whether or not this statement is correct, however, does not furnish a valid basis for not declaring the case moot. The reason is that the only issue remaining in the case was whether or not injunctive relief would or should be granted. Hence, when the Court of Appeals resolved that issue by declaring it moot, no other issue was left. Accordingly, the entire case became moot and required the vacating of the final orders and judgments, and the vacating of the case. It is important to recall and know in this connection that after the dismissal of the initial Complaint with prejudice (Doc. 42) and before the Amended Complaint was filed on November 5, 2002, that HAVA had already become law. Thus, there was no longer any question about whether the law required a voting system in each
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precinct which permitted visually impaired voters to vote independently. 42 U.S.C. § 15481 (a)(3) required it. 23 Hence, there was no longer any question whether this right existed, which need to be resolved by a declaratory judgment. Whether this right also conceivably existed under a federal regulation of questionable applicability, 28 C.F.R. § 35.151(b), was thus entirely academic, and moot, except for the effective date by when this right would be enforced, which Plaintiffs wanted immediately, and HAVA didn’t grant until January 1, 2006. That is what the injunction in this case was about - - whether the Supervisor of Elections would have to comply with HAVA prior to the effective date of the HAVA and companion State laws. There has been no other issue on the merits of this case, since the date the Amended Complaint was filed. All the legal issues raised concerned whether or not injunctive relief prior to the effective date of the specifically applicable state and federal statutes would be required.
Because this was the only issue in the case, the entire case was clearly moot at the time the Court of Appeals so declared in its August 15, 2007 order. Because the appeal before the Court was interlocutory, the Court of Appeals had a valid technical reason for electing to not direct disposition of the case below when it declared
23 As the Court of Appeals was aware well prior to its declaration of mootness, this was also required by Florida law. See Doc. 343-9, pp. 1-2, par. 3, which had previously been filed in the Court of Appeals, and was relief upon by the Court in determining that the case was moot. Florida Statute 101.56062.
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mootness, because of the possibility that some other issue that effects the merits of the case might have remained pending. However, there is no such other issue, and the district court, clearly, should be aware of this fact. Accordingly, the district court erred in refusing to grant the Supervisor of Elections motion to vacate the final orders and judgments in this case.
B. The Applicable Case Law Requires A Remand to the District Court With Directions to Vacate the Judgment(s) and Dismiss the Case
It is very clear that the law requires vacating of the judgment or judgments entered in and dismissal of a case determined to be moot. This requested action is thoroughly justified under applicable case law. In United States v. Munsingwear, Inc., 340 U.S. 36, 39, 71 S.Ct. 104, 106, 95 L.Ed 36 (1950), the Supreme Court stated: “The established practice of the Court in dealing with a civil case . . . which has become moot while on its way here or pending our decision on the merits is to reverse or vacate the judgment below and remand with a direction to dismiss.” The identical practice has been followed in the Eleventh Circuit:
In this circuit, when a case becomes moot after the panel publishes its decision but before the mandate issues, we dismiss the appeal, vacate the district court’s judgment, and remand to the district court with instructions to dismiss the case.
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IAL Aircraft Holding, Inc. v. Federal Aviation Administration, 216 F.3d 1304, 1305 (11th Cir. 2000). To the same effect, see National Advertising Co. v. City of Miami, 402 F3d 1329, 1335 (11th Circ. 2005); Troiano v. Supervisor of Elections, 382 F3d 1276, 1382 (11th. Cir. 2004).
The Troiano case is particularly compelling because it involves issues almost identical to those in this case. The Supervisor of Elections in Palm Beach County, Florida, was sued for not having yet provided audio components which allowed certain disabled voters to vote without receiving assistance. 382 F.3d at 1285. AS in the case of the Supervisor of Elections in Duval County in this case, her delay in installing the audio voting equipment was caused by the State of Florida’s failure to timely certify the voting machines for which she had contracted. Id. The district court ruled that the case was moot because the Supervisor intended to continue making the audio equipment available in each precinct as required by law. Id.
The Court of Appeals affirmed the Troiano decision and provided a detailed analysis of the applicability of the mootness doctrine in cases of this nature, concluding with the following:
In short, this Court has consistently held that a challenge to a government policy that has been unambiguously terminated will be moot in the absence of some reasonable basis to believe that the policy will be reinstated if the suit is terminated. In the absence of any such evidence, there
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is simply no point in allowing the suit to continue and we lack to [sic] power to allow it to do so. 382 F.3d at 385. Disabled-compliant voting machines have been available in Duval County in every election at every precinct where there was voting since late 2005, prior to the required compliance date established by HAVA, and that this will continue to be the case. If the Troiano case was moot, as it was, then this case is also moot. This Court should so determine. The mootness of the case has rendered it non-justiciable. The case must then be remanded with directions to the district court to vacate the final orders and judgments, and dismiss the case. II. In the Event the Court Determines the Case is Not Moot, the
District Court Erred in Not Granting the Supervisor of Elections Motion to Dismiss (Doc. 53). The trial court erred by not dismissing Plaintiffs’ ADA claim on the pleadings based on Nelson v. Miller, 170 F.3d 641, 653 (6th Cir. 1999), which held that the failure to provide voting technology for the disabled is not a violation of the ADA where third party assistance is provided under state law. In Nelson, a statewide class of blind voters brought an ADA action claiming violations arising from the failure of the State of Michigan to implement methods by which the "Plaintiffs could cast their votes unassisted by another person.” 170 F.Ed at 644. Plaintiffs alleged the existence of “inexpensive technologies that are currently
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in commercial use which [sic] permit persons who are blind to read and mark ballots without involving a third party, including braille ballot overlays or templates, taped text or phone-in voting systems.” Id. at 644 n.1. Plaintiffs sought a permanent injunction requiring that the State implement such methods. Id. at 644.
The Sixth Circuit rejected the argument that the ADA was violated for failure to provide a “secret voting program”. 170 F.3d at 650 (quoting district court). Based upon the substantial assistance that Michigan’s third party assistance statute provided for blind electors to case their votes, the court concluded that the refusal “to provide [Plaintiffs] with voting assistance other than that already extended to them under ... [Michigan’s voter assistance statute], does not discriminate against them in violation of the ADA and/or the RA.” 170 F.3d at 653 (emphasis added). The Court upheld the district court’s dismissal of the ADA/RA claims.
For similar reasons, the trial court erred in denying the Supervisor of Elections motion to dismiss the Plaintiffs’ Amended Complaint. In attempting to state a claim of discrimination under the ADA, the Amended Complaint simply listed various attributes of third party assistance under Florida law that were objectionable such as “being forced to reveal their vote to a third-party.” Doc. 47, pp. 17-18, par. 82. Because the Amended Complaint merely challenged Florida’s third party assistance
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law, the principles of Nelson v. Miller apply and it is urged that this Circuit adopt its reasoning and holdings.
The principles in Nelson v. Miller are further strengthened due to the enactment of HAVA, which establishes federal standards and provides funds for voting equipment for the disabled to be required in each precinct for elections after January 1, 2006. HAVA severely undermines the trial court’s conclusion that the ADA is applicable because it is nonsensical that Congress would compel, set standards fro, and appropriate funds to purchase electronic voting equipment for the disabled for use after January 1, 206, yet simultaneously intend that the ADA (which has no funding or standards for voting machines) be used to compel judicially the purchase and use of such voting equipment prior to that. It is illogical to believe that Congress intended to compel a costly addition to a voting system under the imprimatur of the ADA when it established the means for doing so under HAVA. Indeed, Voting Systems Chief Paul Craft – who served on the committee drafting HAVA standards for voting systems – testified without contradiction that any audio ballots procured at the time of trial (September 2002) to accommodate disabled voters would have to be updated or replaced because existing standards would be modified to comply with HAVA standards, which had yet to be formulated. Tr. 3:93-94, 160-
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61, 173 (Doc. 168). In short, the rationale for dismissal in Nelson v. Miller was made more compelling due by the enactment of HAVA.
III. In the Event the Court Determines the Case is Not Moot, and Concludes that the ADA was Applicable to the Supervisor of Elections Purchase of Voting Machines in February 2002,
the District Court Erred in Concluding that the Purchase of an Optical Scan Voting System at that Point in Time Violated the ADA Even if the ADA was applicable, the district court erred in concluding that Stafford’s procurement of an optical scan system in February 2002 violated 28 C.F.R. § 35.151(b), which applies to “alterations” of physical “facilities.” The district court held that the purchase of optical scan equipment in 2002 was an “alteration” to the existing “facility” (i.e., voting system) that filed to make the activity of voting “readily accessible” to the maximum extent feasible.” The trial court erred in adopting this novel application of § 35.151(b) to the facts in this case.
A. An Optical Scan System Did Not Violate the ADA Where Third Party Assistance Under Florida Law is Provided.
First, optical scan voting systems, which were used in fifty-two Florida counties (and throughout the United States), were “readily accessible and usable” 24 with third party assistance under Florida law. Indeed, the trial court held as much in ruling against Plaintiffs on their claim that the lack of touchscreens/audio ballots
24 See Shotz v. Cates, 256 F.3d 1077 (11th Cir. 2001); 28 C.F.R. § 35.151. -34-

violated 28 C.F.R. § 35.160, which requires appropriate “auxiliary aids.” The district
court concluded:
“... All three individual Plaintiffs have been able to vote with third-party assistance. While the visually impaired Plaintiffs testified to concern about whether their votes were accurately reflected, there is no evidence to suggest that their votes were no accurately communicated via third-party assistance. Similarly, there is evidence that visually and manually impaired voters have consistently been able to vote in Duval County elections using thirdparty assistance, which indicates that visually and manually impaired voters have been afforded an equal opportunity to participate in and enjoy the benefits of voting.” (emphasis added) Doc. 215, p. 23. 25 That Plaintiffs were “afforded an equal
opportunity to participate in and enjoy the benefits of voting” compels the conclusion
that the voting system in Duval County complied with the statutory language of the
ADA itself.
That certain disabled persons had to disclose their votes to a third party in
using an optical scan voting system did not constitute an ADA violation. Notably,
the Office of Civil Rights, Department of Justice, had specifically determined that
Florida’s statutory program of third party assistance met ADA standards. In a Letter
of Findings dated August 25, 1993, the Department addressed whether the failure to
25 2004 WL 626687 at *11.
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provide blind voters in Pinellas County, Florida with an electronic method of voting
violated the ADA. 26 The complainant specifically asserted that blind voters were not
provided a method of voting that allowed a secret ballot. The Department stated that
the Supervisor of Elections, who followed section 97.061, Florida Statutes, by
providing third party assistance to blind voters, was in compliance with the Act. The
Department stated:
Although providing assistance to blind voters does not allow the individual to vote without assistance, it is an effective means of enabling an individual with a vision impairment to cast a ballot. Title II requires a public entity to provide equally effective communications to individuals with disabilities, but "equally effective" encompasses the concept of equivalent, as opposed to identical, services. Poll workers who provide assistance to voters are required to respect the confidentiality of the voter's ballot, and the voter has the option of selecting an individual of his or her choice to provide assistance in place of poll workers. The Supervisor of Elections is not, therefore, required to provide Braille ballots or electronic voting in order to enable individuals with vision impairments to vote without assistance. 27
As the highlighted language indicates, the Division viewed Florida's voter assistance
statute as an "effective" method of enabling the visually impaired to vote while
26 While the Letter addressed § 35.160 dealing with auxiliary aids, its analysis and conclusions were equally applicable to a claim under § 35.151(b) seeking such aids.
27 Letter of Findings, Dep’t of Justice (August 25, 1993) (to Supervisor of Elections, Pinellas County, Florida ) http://www.usdoj.gov/crt/foia/lofc018.txt (emphasis added) (footnote omitted).
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preserving the secrecy of their votes. Moreover, the Division recognized that, under
the ADA a public entity is not required to provide "identical services" in order to
meet legal requirements. Instead, the longstanding interpretation of the ADA was that
a public entity must provide "equally effective communications to individuals with disabilities" that include "equivalent, as opposed to identical, services." Id. 28
Finally, no ADA standards for voting equipment or systems existed by the time
of trial, September 2003. Paul Craft, Division of Elections, and Jack Gillrup both
testified that they consulted with Department of Justice ADA experts who said that
no standards exist in this area. Tr. 3: 164-165 (Doc. 168); Tr. 6: 65-66 (Doc. 171).
Given the lack of ADA standards, and because the optical scan system at issue,
combined with third party assistance under Florida law, is readily accessible and
usable by the Plaintiffs, the trial court erred in concluding that the ADA was violated.
IV. In the Event the Court Concludes the Case is Not Moot and that the ADA was Applicable to the Supervisor of Elections Purchase of Voting Machines in February 2002, the District Court Erred in
Concluding that 28 C.F.R. 151(b) Required the Supervisor of Elections to Purchase Voting Machines Which Allowed Visually and Manually Impaired Voters to Vote Unassisted With Touchscreen Technology
A. Because Plaintiffs Were Not Excluded from or Denied The Benefit of Voting, Their Regulatory Claim Must Fail.
28 The Division has stated that certain "curbside voting policies" for otherwise inaccessible polling places are “effective” "alternative methods" that enable disabled voters to cast a ballot. See Letter of Findings, Dep't of Justice, Civil Rights Division (August 19, 1993) (to County Elections Department, Las Vegas, Nevada). http://www.usdoj.gov/crt/foia/lofc017.txt
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The ADA provides 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.” 42 U.S.C. § 12132. Here, the district court specifically ruled – and the evidence fully supports – that no Plaintiff was denied an equal opportunity to participate in or derive the benefits of voting in Duval County. Because Plaintiffs were not excluded from or denied the benefit of voting under the ADA’s statutory language itself, their regulatory claim under 28 C.F.R. § 35.151(b) based upon the same conduct must fail. Alexander v. Sandoval, 532 U.S. 275, 291, 121 S. Ct. 1511, 1522 (2001) (“’[T]he language of the statute and not the rules must control’ … language in a regulation” cannot “conjure up a private cause of action that has not been authorized by Congress.”) (citation omitted).
B. The Trial Court Erred In Holding That Voting Systems Are “Facilities” Under § 35.151(b).
Alternatively, the trial court erred in holding that the purchase of optical scan voting equipment is an “alteration” to an existing “facility” (i.e., voting system) that violates 28 C.F.R. § 35.151(b) of the ADA. The specific type of “accessibility” at issue is “program accessibility” referred to in Subpart D of the regulations. The gist
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of these regulations is that a public entity’s failure to make a “facility” 29 physically accessible amounts to “exclusion from participation in, or the denial of the benefits of, the program, service or activity” within the “facility” itself.
Here, the court fundamentally erred in concluding that a voting system is a “facility” when, in fact, it is the “program, service or activity” itself. The “program accessibility” regulation at issue was designed to facilitate access to programs, services and activities, such as voting; it was not designed to regulate the program, service or activity itself, particularly the complex and highly regulated “program” or “activity” of voting and elections administration, which is subject to substantial federal and state laws, regulations and policies. See Nelson v. Miller, 170 F3d. 641 (6th Circuit. 1999). For this reason alone, the trial court erred in applying section 35.151(b) to a “voting system.”
Unlike buildings, ramps, elevators and other semi-permanent structures commonly understood as “facilities” that are susceptible to being “designed and constructed” or “altered” to provide physical access to public programs, services and activities, a voting system in Florida is a “method” of casting votes via an amalgamation of computer hardware/software, voting booths, and other portable
29 See CFR § 35.104 (“Facility means all of any portion of buildings, structures, sites, complexes, equipment, rolling stock or other conveyances, roads, walks, passageways, parking lots, or other real or personal property, including the site where the building, property, structure, or equipment is lcoated.”).
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items that are designed to be transportable and thereby not permanently affixed or
installed at any one location or site. See Florida Statute 97.021 (43) 30
Indeed, while the regulatory definition of “facility” is broad, it has not been
stretched to extend beyond its common understanding, which is limited to elements
that are permanently made part of a physical structure. 31 Reported cases under section
35.151(b) relate to an alteration to an element made part of a permanent physical
structure, such as curb cuts or ramps on a sidewalk or road, elevators and restrooms
in buildings, and alarm boxes/ticket vending machines affixed to public buildings. 32
Addition of these types of elements to a permanent physical structure can be done
30 See, e.g., Molloy v. Metro. Transp. Auth., 94 F.3d 808, 812 (2nd Cir. 1996) (“Literally, an ‘alteration’ is ‘change’ to a ‘facility.’ By way of non-exclusive example, the regulation lists only physical modifications of a relatively permanent nature to the facility. Under the common sense approach to interpreting a general provision in the light of a list of specific illustrative provisions,, ejusdem generis, we construe the general term (here, ‘change’) to include only things similar to the specific items in the list.” (emphasis added)
31 For this reason, the meaning of “equipment” in the definition of a “facility” is best understood as applying to items such as elevators, escalators and other types of “equipment” that become physical modifications to a permanent structure.
32 Kinney v. Yerusalim, 9 F.3d 1067 (3rd Cir. 1993) (resurfacing of city street was alteration that required installation of curb ramps); Panzardi-Santiago v. Univ. of Puerto Rico, 200 F. Supp. 2d 1 (D. Puerto Rico 2002) (public pathway); Association for Disabled Americans v. City of Orlando, 153 F. Supp. 2d 1310, 1319 (M.D. Fla. 2001) (restrooms and seating); Ability Center of Greater Toledo v. City of Sandusky, 133 F. Supp. 2d 589 (N.D. Ohio 2001) (curb cuts); Deck v. City of Toledo, 29 F. Supp. 2d 431 (N.D. Ohio 1998) (curb ramp); Anderson v. Pa. Dept. of Public Welfare, 1 F. Supp. 2d 456, 463-64 (E.D. Pa.,1998) (alteration of office buildings); Schonfeld v. City of Carlsbad, 978 F. Supp. 1329, 1339 (S.D. Cal. 1997) (restrooms and curb ramps); see also Molloy v. Metropolitan Transp. Authority, 94 F.3d 808, 812 (2nd Cir. 1996) (“The installation of a TVM [ticket vending machine] constitutes a physical modification to the station. It also requires additional wiring and communication lines which feed into the LIRR's central TVM monitoring facility.”) (emphasis added).
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during the construction or alteration stage more cheaply (compared to adding them later) and are distinguishable from voting machines, which are portable and not affixed to a permanent structure. It is one thing to require a simple, inexpensive “curb cut” or ramp to a sidewalk that is being altered; it is quite another to require the disproportionate cost and burdens of the additional voting technology that the trial court has compelled in this litigation.
Notably, the lack of any regulatory guidelines under the ADA for voting systems speaks volumes. Detailed and voluminous ADA regulatory standards and technical/engineering specifications exist for many types of physical or structural alterations. 33 None existed for voting systems or equipment 34 and for good reason due to the complexity, portability and pervasive regulation under state law and relating to members of the disability community. For all these reasons, the trial court erred in concluding that § 35.151(b) applies to the purchase of optical scan voting equipment at issue.
C. The Trial Court Erred In Its Application of 28 C.F.R. § 35.151(b)’s “Feasibility” Standard.
33 See eg., 28 CFR 35.151(e); Americans with Disabilities Act Accessibility Guidelines for Building and Facilities (“ADAAG”); and Uniform Federal Accessibility Standards (“UFAS”).
34 The DOJ had not interpreted section 35.151(b) to apply to voting equipment, nor had the DOJ issued any guidelines or standards for voting equipment under its ADA rulemaking powers, thereby dispensing with the deference that ordinarily would apply if such guidelines or standards existed.
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Even if § 35.151(b) extend to voting systems, the trial court erred in its
application of the regulation’s “feasibility” standard in finding an ADA violation
based on the failure to procure the ESS touchscreen/audio ballot system. The trial
court correctly ruled in its August 19, 2003 order that the qualifying phrase “to the
maximum extent feasible” in § 35.151(b) is “a limitation rather than an expansion”
of the “readily accessible” standard in the regulations. [R124 14 n.5] Yet the court
misapplied this limitation in its final order of March 24, 2004.
In this regard, section 35.151, which related to “New construction and
alterations”, had two subsections with very different compliance standards. While
section 35.151(a) provided that any new facility must be a designed or constructed
facility to make it “readily accessible to and usable by individuals with disabilities,”
section 35.151(b), which applies to alterations to existing facilities, had no such
requirement. Instead, section 35.151(b) provided:
(b) Alteration. Each facility or part of a facility altered by, on behalf of, or for the use of a public entity in a manner that affects or could affect the usability of the facility or part of the facility shall, to the maximum extent feasible, be altered in such manner that the altered portion of the facility is readily accessible to and usable by individuals with disabilities, if the alteration was commended after January 26, 1992.
28 C.F.R. § 35.151(b) (emphasis added). While section 3.151(a) required that
facilities be “designed and constructed” to be “readily accessible to and usable by”
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the disabled, section 35.151(b) was more limited and required that alterations to a facility be “readily accessible to and usable” by persons with disabilities only to the “maximum extent feasible.”
In other words, the duty under § 35.151 (b) was not that an alteration render a facility”readily accessible.” Instead, the duty was to make the alteration in a way that made the facility “readily accessible.” This limiting phrase meant that alterations need not be made if they exceed existing technical ability, involve unreasonable costs, or impose risks or burdens that are disproportionate to the accessible feature sought. Indeed, the term “feasible” is most reasonably understood with this “practical” or “reasonable” interpretation, rather than the extreme position the Plaintiffs advocated and the trial court applied, which transformed this regulatory limitation into the judicial compulsion to buy a flawed voting system without regard to its usability or costs.
1. The Trial Court Erred in Holding That State Technical Certification Assured A System’s Overall “Feasibility.” The district court erred in concluding that state certification alone was sufficient to support a finding of “feasibility” by “ensur[ing] that a system is not a substandard voting system. Doc. 215, pp. 17-18. The court overlooked the official government reports and evidence demonstrating that the ESS system was not only substandard, but resulted in the most calamitous elections experience in Florida in
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2002. Given that certification is only an assurance as to technical standards (with no consideration of the usability/affordability standards deemed critical in the 2001 Governor’s Task Force Report, (S.E. Ex. 31)it was clear error to conclude that state certification of a voting system ensured that the system met a particular jurisdiction’s needs, was economically viable, or was administratively desirable.
2. The Trial Court Erred in Concluding That Stafford Should Have Bought the ESS System Because it was
the Only Certified System With an Audio Ballot. The trial court erred, both legally and factually, in concluding that the ESS touchscreen voting system should have been purchased simply because it had the first and only certified audio ballot in Florida and because it was purportedly used with success in Miami-Date County in 2002. The trial court’s findings and analysis are clearly erroneous in a number of respects as to the “feasibility” of this system. First, the trial court ignored that the ESS system directly caused an unprecedented election fiasco in Miami-Dade. Buying the ESS system with its problems simply to have the first-ever audio ballot would have been foolhardy and a recipe for disaster. The Supervisor of Elections rejected the ESS system as undesirable on numerous technical, administrative and economic grounds. Yet, the trial court engaged in judicial second-guessing by concluding that Stafford violated
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the ADA by not procuring that system. For example, the ability to override overvotes was a distinctly disqualifying feature that rendered the system undesirable.
3. Three Audio Ballots for Centralized Short Term Use/Testing Was Reasonable
Finally, Supervisor Stafford’s decision to use three audio ballots on a trial basis at a centralized location was reasonable and not an ADA violation. Instead, it was consistent the Duval County Elections Task Force’s recommendation of a “centralized voting facility for extraordinary access” to use the equipment on an experimental basis for possible future use on a precinct basis. S.E. Ex. 1 It was also consistent with the 2001 Governor’s Task Force Report, which recommended consideration of technology that might become certified and proven in the field. Indeed, Stafford sought to accommodate disabled voters in this procurement decision. Tr. 5;62-63 (Doc. 170). (“We decided that back in – I want to say December 2001 – that wen we bought a system, we wanted that capability, for touchscreen with audio.”) 35 No evidence suggests that the unexpected lack of certification for Diebold’s audio ballot was attributable to Stafford, who (along with other counties) kept in contact with and pressure Diebold regarding the status of certification. Tr. 6:75-76, 110 (Doc. 171)
35 To facilitate this possibility, Stafford negotiated a option in the Diebold/Global contract whereby optical scan equipment may be traded at full value for new touchscreens thereby enabling a more effective and affordable transition to that technology, if practicable.
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D. The Trial Court Erred in Finding A Violation as to the Manually Disabled Plaintiff.
The trial court erred in concluding that Stafford violated the ADA as to the manually disabled Plaintiff by not purchasing a touchscreen system. No voting system had ever been certified in Florida for use by persons with manual disabilities including the use of mouth sticks. Tr. 3: 145-46 (Doc. 168); State Ex. 3, 4. State Voting Systems Chief Paul Craft testified that his office does not certify touchscreens for this use because “there is no assurance that a given voter with a given mouth stick isn’t going to have difficulty with [a touchscreen]. It has not been tested nor certified for that specific accommodation.” Id. He stated that absent “regulating the mouth sticks used by people, which I think would be very undesirable, then it’s going to be very difficult to bring that particular interface into certification.” Tr. 3:146 (Doc. 168) As such, it was error for the trial court to find an ADA violation when Florida counties could not even purchase certified equipment for use by manually disabled voters, including those who might use mouth sticks.
That the one manually disabled Plaintiff was able to utilize his mouth stick on a particular manufacturer’s touchscreen at trial 36 has little probative value given that
36 Notably, Plaintiffs’ Amended Complaint pleaded a subclass of manually disabled voters who are precluded “from manipulating a writing instrument” and specifically stated that Plaintiff Bell “cannot manipulate a writing instrument or a touchscreen with his hands” – but it was not alleged that he could use a mouth stick on a touchscreen for this purpose. Doc. 47, ¶¶ 16, 24, 35
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no certification for that use of existing touchscreen equipment existing. The trial court’s findings – that “mouth sticks would not have to be certified” and “manually impaired voters may vote with a mouth stick on an ES & S ... touch screen machine if they are able” – are likewise irrelevant and beg the question whether voting systems are certified for such use. See Doc. 215, p. 6, par. 19. Given the lack of any official, objective standards by which to assess “mouth stick-accessible” equipment, it was error legally and factually for the trial court to find an ADA violation with respect to the manually disabled.
Conclusion From the inception of the renewal of this litigation with the filing an Amended Complaint, after the initial Complaint was dismissed with prejudice, the right for the visually disabled to have audio-capacity voting system in every precinct had already been legislatively established through HAVA, rendering any declaratory relief sought moot from the inception. Thus, the only issue at stake in the litigation was injunctive relief - - Plaintiffs’ effort to have this right mandated before the effective date set by HAVA. The Court of Appeals held this aspect of the case moot in the prior interlocutory appeal in ths case. Hence, there is no other on the merits left in this case which is not moot. Accordingly, the entire case is now moot and must be remanded with directions that the final orders and judgments be vacated, and the case dismissed.
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Alternatively, should the Court of Appeals conclude otherwise, it is requested that the Court of Appeals, for the reasons set forth in the brief, rule that the district court erred in determining that the Supervisor of Elections violated 28 C.F.R. § 35.151(b), in February 2002, by purchasing an optical scan voting system, and reverse this determination on the merits.
Respectfully submitted, RICHARD A. MULLANEY GENERAL COUNSEL
__________________________________ ERNST D. MUELLER Deputy General Counsel Florida Bar No. 164027 117 West Duval Street, Suite 480 Jacksonville, Florida 32202 (904) 630-1871 (telephone) (904) 630-1316 (facsimile) Attorneys for Defendant/Appellant
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CERTIFICATE OF COMPLIANCE
Pursuant to Fed.R.Civ.P.3(a)(7) and Eleventh Circuit Rule 28-1, counsel for
Appellant certifies that the Brief of Appellant is prepared in 14 point Times New
Roman type, and further certifies that the word count for the foregoing brief, as
counted by the word processing system used in preparing this brief, is 11,196.00.
____________________________________ ATTORNEY
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the Brief of Appellant has been furnished to the following by U.S. Mail, this 4th day of February, 2008:
Sashe D. Dimitroff, Esquire Heather M. Khassian, Esquire Kevin A. Keeling, Esquire HOWREY LLP 1111 Louisiana, 25th Floor Houston, Texas 77002
Elizabeth Elaine Gardner Robert Bruskins Washington Lawyers’ Committee for Civil Rights and Urban Affairs 11 Dupont Cr. N.W., Suite 400 Washington, DC 20036
George Lee Waas Attorney General’s Office The Capitol, Suite PL-01 Tallahassee, FL 32399-1050
___________________________________ ATTORNEY
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-50-

 
 IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT __________________________
CASE NO.: 04-11566-JJ __________________________
American Association of People with Disabilities, Daniel W. O’Conner, Kent Bell, and Beth Bowen,
Plaintiffs/Appellees,
v.
John Stafford, as Supervisor of Elections, Duval County.
Defendant/Appellant.
_______________________________
Appeal from the United States District Court, Middle District of Florida, Jacksonville Division
_________________________________
REPLY BRIEF OF APPELLANT STAFFORD _________________________________

Scott D. Makar (FBN 709697) Chief, Appellate Division Ernst Mueller (FBN 164027) Senior General Counsel Jason Teal (FBN 157198) Office of General Counsel 117 West Duval Street, Suite 480 Jacksonville, FL 32202 (904) 630-1700 (904) 630-1316 (fax) Attorneys for Appellant John

Stafford

CERTIFICATE OF TYPE/VOLUME Appellant certifies that this Reply Brief is presented in Times New Roman style, 14-point size and contains 6,861 words.
i

TABLE OF CONTENTS
Certificate of Type/Volume .......................................................................................... i
Table of Contents ..........................................................................................................ii
Table of Authorities ..................................................................................................... iv
Reply Argument............................................................................................................ 1
I. THE ADA DOES NOT SUPPLANT FEDERAL ELECTION LAWS OR CREATE A FEDERAL RIGHT OF VOTING SECRECY ................................................................................................ 4
II. THE PROCUREMENT OF AN OPTICAL SCAN VOTING SYSTEM IN 2002 DID NOT VIOLATE THE ADA.............................. 7
A. An Optical Scan System Does Not Violate the ADA Where Third Party Assistance is Provided .................................... 8
B. 28 C.F.R. § 35.151(b) Is Inapplicable and Was Not Violated .......................................................................................... 9
1. Plaintiffs Were Not Excluded from or Denied The Benefit of Voting .................................................................. 9
2. Voting Systems Are Not “Facilities” Under 35.151(b), Which Is Limited To Architectural and Physical Barriers ............................................................... 10
C. The Trial Court’s Application of 28 C.F.R. § 35.151(b)’s “Feasibility” Standard Was Error .................................................12
1. Technical Certification Does Not Assure Overall “Feasibility" .......................................................................14
2. Only One Touchscreen/Audio Ballot Was Available in Florida, Contrary to Plaintiffs’ Claim ...............................14
ii

3. The Trial Court’s Financial Feasibility Analysis Was Flawed ................................................................................16
4. Touchscreen Systems Not Certified in Florida Are Irrelevant ............................................................................21
5. The Use of Touchscreens/Audio Ballots for Centralized Short Term Evaluation Was Reasonable............................21
D. No Certified Voting System Exists in Florida for Manual Disabilities ....................................................................................22
III. HAVA MOOTS PLAINTIFFS’ ADA CLAIM ......................................24 IV. THE REMEDY AND LACK OF CLASS CERTIFICATION
WARRANT REVERSAL .......................................................................28 CONCLUSION........................................................................................................... 29 CERTIFICATE OF SERVICE ................................................................................... 29 Note: This Brief uses the following designations:
• References to Record on Appeal are [R# *] (# = docket number; * = page number).
• References to Transcripts in Record on Appeal are [TR# *] (# = docket number; * = page number)
• References to Exhibits are prefaced as either “Ps’” “State” or “Stafford” followed by number.
iii

TABLE OF AUTHORITIES
CASES ACLU of Florida, et. al. v. Department of State,
DOAH Case No. 04-2341RX (August 27, 2004).................................................28
American Ass'n of People with Disabilities v. Shelley, 324 F. Supp. 2d 1120 (C.D. Cal. July 6, 2004) ........................................... passim
Jews For Jesus, Inc. v. Hillsborough County Aviation Auth., 162 F.3d 627 (11th Cir. 1998) ...............................................................................27
NAACP v. Philadelphia Bd. of Elections, 1998 WL 321253 (E.D. Pa. 1998)..........................................................................5
National Org. on Disability v. Tartaglione, 2001 WL 1231717 (E.D. Pa. Oct. 11, 2001) ..........................................................5
Nelson v. Miller, 170 F.3d 641 (6th Cir. 1999) ........................................................................ 4, 5, 10
Nelson v. Miller, 950 F. Supp. 201 (W.D. Mich. 1996).....................................................................5
Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 119 S. Ct. 2176, (U.S. 1999) .................................................. 17, 18
Pascuiti v. New York Yankees, 87 F. Supp. 2d 221 (S.D.N.Y. 1999) ............................................................. 17, 19
Shotz v. Cates, 256 F.3d 1077 (11th Cir. 2001) ...............................................................................6
Tennessee v. Lane, 124 S. Ct. 1978 (2004) .................................................................................... 6, 10
Troiano v. Supervisor Of Elections In Palm Beach County, Florida, 2004 WL 1941055 (11th Cir. Sept. 1, 2004).................................................. 22, 27
STATUTES 42 U.S.C. § 15545............................................................................................. 24, 25
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42 U.S.C.A. § 12131 ................................................................................................11 RULES 28 C.F.R. § 35.104 ...................................................................................................12 28 C.F.R. § 35.151 .................................................................................... 4, 6, 10, 11 28 C.F.R. § 35.151(a).................................................................................... 3, 12, 13 28 C.F.R. § 35.151(b) ...................................................................................... passim 28 C.F.R. § 35.160 .............................................................................................. 4, 11 OTHER AUTHORITIES Title II Technical Assistance Manual ........................................................................8
v

REPLY ARGUMENT It bears noting some remarkable voids in the Plaintiffs’ brief.1 The first and most notable is the Plaintiffs’ failure to cite a recent important case of national prominence in which their identical arguments were rejected resoundingly. American Ass'n of People with Disabilities v. Shelley, 324 F. Supp. 2d 1120 (C.D. Cal. July 6, 2004). What makes this oversight remarkable is that Plaintiff AAPD was the lead party in that case with the same legal counsel herein. In denying relief, the trial court rejected each of the Plaintiffs’ arguments and found they “established no likelihood of success on the merits of their Americans With Disabilities Act claim.” Id. at 1126 (emphasis added).2 This highly relevant case, which came out over a month before Plaintiffs served their answer brief, is discussed throughout this brief due to its relevance on a number of key issues. The second most notable void is that Plaintiffs make no mention in their argument of audio ballots or “sip and puff” technology, which were the key focal
1 Stafford disagrees with much of the Plaintiffs’ characterization of the facts, but only the most notable will be addressed herein given space limitations. 2 The district court cited the decision under review in this case for the general proposition that the ADA applies to the activity of voting, but rejected the same arguments made by the Plaintiffs and legal conclusions reached by the trial court below. 324 F. Supp. 2d at 1125-1126.
1

points below.3 Instead, their arguments focus exclusively on touchscreen
technology, inferring that touchscreens solve the voting privacy concerns of
disabled voters and were widely used and accepted around the country and in
Florida. Touchscreens alone, however, provide no certified means for blind or
manually disabled voters to vote without assistance. By ignoring audio ballots,
Plaintiffs disregard the evidence showing they were problematic, were used in only
a very few jurisdictions on a trial or limited basis before possible full deployment,
and continue to have a number of shortcomings,4 collectively demonstrating no
track record at the time in late 2001/early 2002 when voting equipment was
procured in Florida. [IB 7, 16-17] Sip and puff technology for manually disabled
3 Plaintiffs make only two very minor passing references to audio ballots in their entire thirty-six pages of argument [AB 28, 49 n. 25] and no reference to sip and puff technology whatsoever.
4 Notably, in Troiano v. Supervisor Of Elections In Palm Beach County, Florida, 2004 WL 1941055 (11th Cir. Sept. 1, 2004) this Court recently upheld on mootness grounds the dismissal the claims of disabled plaintiffs that an audio ballot had not been provided in violation of the ADA. The defendant/supervisor of elections had initially decided, in large part, that “if the audio component was used in every precinct, non-impaired voters would have to wait too long for the people using the audio component to finish.” Id. Because of this unacceptable wait time and administrative problems associated with the audio ballots, she limited their use (and was sued), but subsequently decided that ballot length would not be a factor (even though it took 20-25 minutes for a blind voter to cycle through the ballot in November 2002). These types of considerations make the purchase of a particular touchscreen irresponsible fiscally before they are resolved.
2

voters has not been certified in Florida and has little meaningful track record nationwide. [IB 50] By making touchscreens their only focus, the Plaintiffs make them appear more feasible than they were at the time, and entirely sidestep the relevant focus, which is the shortcomings of or lack of certification for audio ballots and sip and puff devices for disabled voters.
The third is that Plaintiffs have attempted to recast significantly the standard by which a “facility” under the ADA is defined and the standards by which an “alteration” to a “facility” is adjudged under 28 C.F.R. § 35.151(b).5 Even if voting equipment is somehow deemed a “facility” subject to being “altered” under § 35.151(b), it is improper to apply the strict and heightened standard for “new” facilities that Plaintiffs advocate on appeal. [AB 25-27] Plaintiffs confuse the standard under § 35.151(a) for new “facilities” with the more lenient feasibility standard for “alterations” under § 35.151(b). The reason for doing so is that the standard for an “alteration” is the more deferential “feasibility” standard that considers the overall financial, technical, and administrative feasibility of a proposed “alteration” to a facility.
Finally, the Plaintiffs tacitly acknowledge that this case is more properly cataloged and analyzed as an “auxiliary aids/effective communications” case 5 The trial court specifically limited its order and final judgment solely to a regulatory claim under 28 C.F.R. § 35.151(b). [R215 30 ¶ 1; R216]
3

suitable for review under 28 C.F.R. § 35.160 versus an “alterations” to “facilities” case under § 35.151(b) because each section has a “different focus” and different “obligations” for compliance. [IB 41] Indeed, it takes a convoluted interpretive path to conclude that portable computer voting systems are in the same category as permanent physical structures commonly understood to be “facilities.” Instead, the more natural reading and understanding of the “program accessibility” regulations in § 35.151 is that they do not apply to voting systems, and that such systems are more appropriately subject to review under the “auxiliary aids/effective communications” provisions of § 35.160, upon which the trial court found no violation.6 I. THE ADA DOES NOT SUPPLANT FEDERAL ELECTION LAWS
OR CREATE A FEDERAL RIGHT OF VOTING SECRECY Stafford’s argument has never been that the ADA does not apply to the activity of voting, which surely it does. Instead, Stafford’s argument is that the ADA does not supplant the specific federal voting laws related to voting systems and that no ADA violation exists where compliance with such laws is shown. See, e.g., Nelson v. Miller, 170 F.3d 641 (6th Cir. 1999), affirming on other grounds,
6 This result is also consistent with the Department of Justice’s representations and advice, which is that no ADA standards exist for voting equipment and that the provision of third party assistance, absentee voting, and curbside voting satisfies the ADA. [TR168 164, 165; TR171 65-66]
4

950 F. Supp. 201 (W.D. Mich. 1996). As both the appellate court and the trial court in Nelson v. Miller concluded (as well as a recent California case, AAPD v. Shelley, the ADA does not create a federal right to a program of “secret and independent voting.” As such, they concluded that the refusal to provide technologies that enabled unassisted voting is neither discriminatory nor an ADA violation where third party assistance is provided. Dismissal was the result in Nelson v. Miller, as it should have been in this case.
Plaintiffs rely exclusively on the decision in National Org. on Disability v. Tartaglione, 2001 WL 1231717 (E.D. Pa. Oct. 11, 2001), which does not even reference the Sixth Circuit’s decision in Nelson v. Miller. Indeed, Tartaglione is neither binding nor persuasive within the Eastern District of Pennsylvania itself, another judge having reached a different result. See NAACP v. Philadelphia Bd. of Elections, 1998 WL 321253 at *4 (E.D. Pa. 1998).
Plaintiffs fail to make reference to AAPD v. Shelley, which made a number of rulings adverse to their position, including the adoption of the reasoning of Nelson v. Miller:
… 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. Nothing in the Americans with Disabilities Act or its Regulations reflects an intention on the part of Congress to require secret, independent voting. Nor does
5

such a right arise from the fact that plaintiff counties attempted to provide such an accommodation. 324 F. Supp. 2d at 1126 (emphasis added) (footnote omitted). The emphasized language is precisely the position that Stafford has advocated throughout this litigation. Notably, the instant case is far removed from Shotz v. Cates, 256 F.3d 1077 (11th Cir. 2001) and Tennessee v. Lane, 124 S. Ct. 1978 (2004) where the disabled persons in those cases literally had to drag themselves into or through courthouse facilities in order to access the judicial functions therein. Those cases were about permanent facilities that posed architectural and physical barriers to those plaintiffs, who desired to access the programs or activities inside. Indeed, the Supreme Court in Tennessee v. Lane emphasized that “architectural” barriers that limit “physical accessibility” are the focus of 28 C.F.R. § 35.151 Title II of the ADA. 124 S. Ct. at 1993. In sharp contrast, this case has nothing to do with these types of burdensome access and architectural barriers to physical facilities.7 Instead, it involves solely
7 Plaintiffs attempt to make it sound as if they faced intractable barriers by stating that they “somehow manage to vote using Duval County’s optical scan system” and that that they were “forced to vote in a manner rife with burdens not faced by non-disabled voters.” [AB 21 (emphasis in original)] Their assertions are not supported by the trial court’s order, which found no such barriers and held they had “an equal opportunity to participate in and enjoy the benefits of voting.” [R215 23]
6

the type of voting system temporarily placed for use inside the physical facilities where voting occurs, through which persons communicate their votes. In short, the voting system is the program or activity, the physical structures where voting occurs are the facilities to be accessed. In this regard, the Plaintiffs have accessed their polling places and voted on multiple occasions without physical impediment including all elections since the inception of their lawsuit. Indeed, the trial court concluded that “visually and manually impaired voters have been afforded an equal opportunity to participate in and enjoy the benefits of voting” thereby confirming the lack of an ADA violation. [R215 23]
In summary, this case is not about physical facilities and entry barriers. It is about the method of communicating one’s vote once within voting facilities. Given the federal and state voting laws (including HAVA) that occupy this area of the law, it was error for the trial court to apply the ADA under the circumstances and to find a regulatory violation (discussed next). II. THE PROCUREMENT OF AN OPTICAL SCAN VOTING SYSTEM IN
2002 DID NOT VIOLATE THE ADA. Plaintiffs have recast the issues in this section and thereby made it difficult or confusing to directly address those that Stafford actually raised. Each response is addressed in the order presented in Stafford’s initial brief.
7

A. An Optical Scan System Does Not Violate the ADA Where Third Party Assistance is Provided.
Plaintiffs does not meaningfully respond to Stafford’s argument in this subsection, which is that an optical scan system does not violate the ADA if sufficient accommodations, such as third party assistance, are made to ensure that disabled voters are afforded an equal opportunity to participate in and enjoy the benefits of voting (as the trial court ruled [R 216 23]). No ADA standards exist for voting systems and the Department of Justice has stated that the provision of third party assistance and curbside voting are effective means that satisfy ADA requirements.
The recent decision in AAPD v. Shelley also confirms that no ADA violation arises from third party assistance in voting, even if a more desirable method exists.
For example, in discussing the obligation to provide voting services to the disabled, the Title II Technical Assistance Manual explains that a blind voter is not entitled to cast a ballot in Braille, even though this method would allow him to vote in private. Because the County "can demonstrate that its current system of providing assistance is an effective means of affording an individual with a disability an equal opportunity to vote, the County need not provide ballots in Braille." Title II Technical Assistance Manual, § 7.1100.
8

324 F. Supp. 2d at 1126 n. 3. In light of Shelley, Plaintiffs’ lengthy and somewhat inaccurate discussion of 28 C.F.R. § 35.151(b) is misplaced.8
B. 28 C.F.R. § 35.151(b) Is Inapplicable and Was Not Violated. 1. Plaintiffs Were Not Excluded from or Denied The Benefit of Voting.
The recent (but unmentioned) decision in AAPD v. Shelley is instructive because it rejected a § 35.151(b) claim by Plaintiff AAPD. At issue was a state directive decertifying touchscreens that had been certified and used in prior elections in a number of California counties. Plaintiff AAPD contended that “decertification of touch-screen voting machines will alter the voting system and make the right to vote less accessible to disabled persons, citing 28 C.F.R. § 35.151(b).” 324 F. Supp. 2d at 1125. It also asserted that the elimination of touchscreens with audio ballots “discriminate by reason of disability, amounting to state action that disproportionately burdens the disabled because of their unique needs.” Id.
The trial court rejected AAPD’s argument and ruled consistent with Stafford’s position as follows:
8 Plaintiffs have also wrongly claim that Stafford “admitted” a range of matters in this section of their brief and elsewhere [IB 2, 3, 9, 24, 26, 27, 28, 33, 36, 37, 44] making it appear he has all but confessed error.
9

The evidence does not support the conclusion that the elimination of the DREs would have a discriminatory effect on the visually or manually impaired. Although it is not disputed that some disabled persons will be unable to vote independently and in private without the use of DREs, it is clear that they will not be deprived of their fundamental right to vote. … The evidence establishes that long before the conditional certification of DREs, counties utilized a number of programs to provide handicapped persons with ready access to voting equipment.
Id. at 1125-26 (emphasis added). Specifically, the court found that a return to
using voting systems with third party assistance, such as optical scan, did not
violate the ADA. The court followed the reasoning of Nelson v. Miller stating:
… 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. Nothing in the Americans with Disabilities Act or its Regulations reflects an intention on the part of Congress to require secret, independent voting.
Id. at 1126 (emphasis added) (footnote omitted). By analogy, the failure to provide
a secret, independent voting experience does not violate the ADA where each
Plaintiff was afforded an equal opportunity to participate in and enjoy the benefits
of voting. [R216 23]
2. Voting Systems Are Not “Facilities” Under § 35.151(b), Which Is Limited To Architectural and Physical Barriers.
Plaintiffs overlook that the Supreme Court in Tennessee v. Lane made clear
that “architectural” barriers that limit “physical accessibility” are the focus of 28
C.F.R. § 35.151. The Court stated that “[i]n the case of facilities built or altered
10

after 1992, the regulations require compliance with specific architectural accessibility standards. 28 C.F.R. § 35.151 (2003).” 124 S. Ct. at 1993 (emphasis added).
Despite this pronouncement from the Supreme Court and the rejection of their § 35.151(b) claim in Shelley, the Plaintiffs totally ignore the difference between the concept of “Program Accessibility” set forth in Subpart D of the regulations and the concept of “Communications” set forth in Subpart E” of the regulations. [see IB Ex. A] The former, which includes § 35.151(b), applies to architectural and other barriers that impede physical accessibility. The latter applies to communications barriers and auxiliary aids as described in § 35.160. This dichotomy is consistent with the organic statute, which provides for the “removal of architectural, communication, or transportation barriers, or the provision of auxiliary aids and services” that enable the participation in government programs and services. 42 U.S.C.A. § 12131. Despite Plaintiffs’ claim to the contrary [AB 30-31], this common sense dichotomy is reflected in the caselaw, which establishes that every case applying § 35.151(b) involves a physical alteration to a permanent structure thereby undermining the concept that a portable piece of voting equipment is a “facility” subject to “architectural” alterations. [IB 39-40]
11

Finally, Stafford clearly did not “ignore” the word “equipment” in 28 C.F.R. § 35.104 as Plaintiffs claim [AB 31 n. 14]. Indeed, unlike the Plaintiffs who left out the entire regulation except the word “equipment” [AB 30], Stafford set out the regulation in full in his brief. [IB 37 n.37] (“Facility means all or any portion of buildings, structures, sites, complexes, equipment, rolling stock or other conveyances, roads, walks, passageways, parking lots, or other real or personal property, including the site where the building, property, structure, or equipment is located.”). As the caselaw applying § 35.151(b) reflects, the meaning of “equipment” in this context must be understood in conjunction with these other terms. In this manner, the meaning of “equipment” within the definition of a “facility” is best understood as applying to elevators, escalators and other types of “equipment” that are architectural components that become physical modifications to a permanent structure or site. Voting equipment does not meet this definition.
C. The Trial Court’s Application of 28 C.F.R. § 35.151(b)’s “Feasibility” Standard Was Error.
Plaintiffs attempt to make this a case about a “new” voting system [AB 38 n19, 42 n.21 & 45] when, by both their own stipulation and the trial court’s ruling, it is about an “alteration” to an existing voting system. The applicable regulation, § 35.151(b), applies only to “alterations” to existing “facilities”; it does not apply to the “construction” of a “new” facility, which is governed by the stricter requirements of section 35.151(a).
12

An “alteration” to an existing facility has a more deferential “feasibility” standard compared to “new” facilities. Stafford was not required to “design” or “construct” a new “facility” to be “readily accessible to and usable by individuals with disabilities” as section 35.151(a) requires. He was only required to make alterations to the greatest extent practicable under the circumstances. Plaintiffs wholly confuse this point in their brief [AB 25-26] by making the “new” and “alteration” standards seem similar, and seem to suggest that both section 35.151(a) and 35.151(b) somehow apply. [AB 25-26] (“these strict regulations [sic] require that alterations be completed in a nondiscriminatory manner that provides full access to all qualified voters.”)
Notably, Plaintiffs claim, with no citation of authority, that the financial, administrative and technological burdens of a voting system are “legally irrelevant.”9 [AB 26-27, 37 n.18 & 38] They go so far as to say the feasibility standard in § 35.151(b) “has nothing to do with reasonableness.” [AB 29] Stafford agrees that Plaintiffs’ interpretation of § 35.151(b) has “nothing to do with reasonableness.” It is contrary to the common meaning of the term “feasible” to
9 Ironically, Plaintiffs’ counsel directly established the relevance of administrative feasibility by asking Stafford whether “we can agree, can we not, … that management matters in elections, doesn’t it?” to which Stafford responded “Yes.” [TR 170 25]
13

preclude consideration of whether a proposal is financially, administratively or technically practical or reasonable.10
1. Technical Certification Does Not Assure Overall “Feasibility" Plaintiffs gloss over the fact that the only certified system with a touchscreen and audio ballot was the ill-fated ESS system that was untested in an actual election. That system was “certified” to perform technical functions, but it was disastrous in its actual use from a technological, financial and administrative perspective. [IB 18-19] Stafford and his staff knew the ESS system was faulty and were correct to reject it. The Governor’s Task Force Report also made clear that a voting system must meet two sets of standards: technical certification standards and usability/affordability standards. [IB 11-12] Plaintiffs totally ignore this second set of standards, which were “high in the minds of the voters and Elections Supervisors” in Florida. [Stafford Ex. 31 35]
2. Contrary to Plaintiffs’ Claim, Only One Touchscreen/Audio Ballot Was Available in Florida.
Plaintiffs claim that a wide array of certified touchscreen/audio ballot “systems” were available in late 2001/early 2002, by misstating that more than one option existed at that time. [AB 12 (“There were at least two Florida-certified touchscreens systems at the time Appellant was considering which voting system 10 Synonyms of “feasible” include “practicable” and “reasonable.” [IB 42 n.44]
14

the County would purchase.”), 19 (claiming “numerous options” existed), & 35 (claiming “multiple options” existed)]
As the district court found, however, only one vendor’s touchscreen/audio ballot was certified at that time, that of ESS,11 which had the first and only certified audio ballot in Florida [R215 at ¶ 24], but which also experienced the massive problems discussed in the Miami-Dade Inspector General reports and the Governor’s Task Force Reports. [IB 43-44; see Ps’ Ex. 1 at 65; Stafford Ex. 12 at 65] No touchscreen system or audio ballot was used in Florida until the Fall 2002 election cycle, which was long after Stafford had made his procurement decision and after the Diebold system had been delivered and prepared for use in that same election cycle. [IB 17]
In this regard, the Plaintiffs’ statement that “the record is replete with evidence demonstrating that touch screen technology was not only certified, but was used successfully throughout Florida and the country at the very same time, and even before [Stafford] decided to purchase the optical scan system” [AB 34] is
11 Each vendor had various versions of their voting systems, but they each had only one version of their component hardware (i.e., optical scanners, touchscreens). For this reason, the six versions of ESS systems mentioned in the trial court’s order all use the same touchscreen/audio ballot unit, but were packaged with different software upgrades. [R 215 5 ¶16]
15

categorically untrue.12 Likewise, the representation that Stafford “concede[d] at least fifteen counties in Florida purchased and used touch screen voting systems at the same time [Stafford] purchased the optical scan system is likewise demonstrably untrue. [AB 34] As such, Plaintiffs severely embellish the fact that only one choice, and an unacceptable one, was available, ESS.
3. The Trial Court’s Financial Feasibility Analysis Was Flawed. The superficial nature of the trial court’s financial feasibility “analysis” is emphasized by its sole reliance on one piece of evidence: the cover page of a multi-page document obtained from the Internet, entered into evidence during trial over objection, that contained only the amount of the City of Jacksonville’s proposed overall budget for fiscal year 2002-03. Ps’ Ex. 139. Plaintiffs presented no other “evidence” of financial feasibility as to the City beyond this lone document, which was not produced or referred to prior to the close of discovery. Instead, it was first presented as an item on Plaintiffs’ exhibit list shortly before trial. [R127] Plaintiff presented no witness to explain it or otherwise demonstrate
12 Stafford decided on the Diebold System in January 2002, it was procured that same month, and thereafter delivered beginning in April 2002. [IB 17 and record citations therein] It was used in the September primary and November general election in 2002. Plaintiffs clearly err in perpetuating the notion that the Diebold system was “purchased” in October 2002. [AB 29]
16

how it was relevant.13 Stafford had not seen it, and merely testified that it “appears to be” from the City’s official website. [TR 170 30-31]
Merely presenting evidence that a jurisdiction has a large proposed annual budget is legally insufficient because it says nothing about whether a particular proposal is practicable or required under an ADA regulation, thereby failing to establish an element of Plaintiffs’ prima facie case. As the United States Supreme Court made clear in Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 603, 119 S. Ct. 2176, 2188 (U.S. 1999), simply comparing the cost of a proposed change in a particular service to a government’s overall budget for that service or program “would leave the State virtually defenseless once it is shown that the plaintiff is qualified for the service or program she seeks.’" 527 U.S. at 603, 119 S. Ct. at 2188) (emphasis added); see also Pascuiti v. New York Yankees, 87 F. Supp. 2d 221, 225 (S.D.N.Y. 1999) (erroneous to “simply comparing a proposed
13 Indeed, Plaintiffs embellish the document by referring (for the first time on appeal) to a “general fund of nearly $750 million” that purportedly exists. [AB 16] (“… in addition to a $700 million general fund, the County is armed with a $1.2 billion budget.”). No such fund exists. Instead, the single sheet of paper summarizing the City’s total budget (Plaintiffs’ Ex. 139 p1.) reflects approximately $750 million for the “General Fund Budget.” This purported “fund” was not mentioned in the trial court’s order and is presented as “fact” for the first time on appeal. In addition, Plaintiffs’ math is off. [AB 37] (percentages off by a factor of 100).
17

modification with the state's overall mental health budget” (quoting Olmstead). This error is precisely what occurred below.
Olmstead and the case upon which Plaintiffs rely [AB 37] both make clear that the appropriate comparison is to the “overall budget for the service or program” at issue – not a government’s overall budget.14 The trial court’s analysis is clear error in this regard because it merely cited to the City’s overall budget for fiscal year 2002-03 (i.e., after the Diebold system had been procured). [R215 10 ¶31] No effort was made to demonstrate that any portion of the City’s proposed annual budget for elections services and programs was available for the purchase of the ESS touchscreen voting system. Under the proper analysis required by Olmstead, the cost of the voting system that Plaintiffs’ sought to impose exceeded the entire annual budget of the Supervisor of Election’s Office for each of the ten years through the end 2003 thereby demonstrating lack of feasibility.15
14 As the Supreme Court in Olmstead stated: “If the expense entailed in placing one or two people in a community-based treatment program is properly measured for reasonableness against the State's entire mental health budget, it is unlikely that a State, relying on the fundamental-alteration defense, could ever prevail.” 527 U.S. at 603, 119 S. Ct. at 2188. 15 See [IB 46 n.47] (overall budget of the Supervisor of Elections office ranged from $1.84 million to $3.44 million from 1991 to 2002).
18

The trial court also erred in placing the burden of financial infeasibility on Stafford, when Plaintiffs failed to demonstrate that the costs of a touchscreen system, facially, did not clearly exceed its benefits. See, e.g., Pascuiti, 87 F. Supp. 2d at 223 (prima facie case requires plaintiffs to show “the existence of a plausible accommodation, the costs of which, facially, do not clearly exceed its benefits.”). Here, the cost of a touchscreen/audio ballot system was from $6.5 to $12 million, which is three to six times the cost of an optical scan system, and thereby facially disproportionate to its possible benefits (not to mention the intangible costs of lost voter confidence due to the failed ESS system). [See IB 21-22] Given that Plaintiffs could only identify approximately 35 persons countywide who might potentially benefit from a touchscreen/audio ballot [R227 3],16 the incremental cost per disabled voter is from approximately $134,285.72 to $291,428.5717 for a
16 Notably, at most four persons used or attempted to use an audio ballot in all of Palm Beach County in the September 2002 primary election. Troiano v. Supervisor Of Elections In Palm Beach County, Florida, 2004 WL 1941055, *2 (11th Cir. 2004) (“… in the September 2002 primary election two individuals in Palm Beach County used the audio component to vote and two others triggered the audio mode, but did not complete the voting process.”). 17 These numbers are the cost of a touchscreen system minus the cost of the optical scan system divided by 35 voters: ($6.5 - $1.8 million)/35 voters & ($12 – $1.8 million)/35 voters.
19

precinct-based touchscreen system and $28,571.43 for a blended system18 in which
one touchscreen/audio ballot is placed in each precinct.19 These numbers far
exceed the average cost of $6.13 per registered voter in Duval County. [Stafford
Ex. 1 at 34]
Finally, Plaintiffs misstate Stafford’s testimony as to financial feasibility.
They claim he “admitted” that the City “had the money and financing” that was
“readily available and inexpensive” to purchase a touchscreen/audio ballot system.
[AB 37 citing [R169 107-08]] To the contrary, Stafford stated he did not have
knowledge about such matters and specifically answered “I wouldn’t know” when
asked if the interest rate on the City’s financing was a good rate. [TR169 107-08]
He and his staff made clear throughout their testimony and analysis that the cost of
18 Plaintiffs and the trial court erroneously conclude that Stafford “did not investigate the cost of putting one touch screen machine in each precinct (as opposed to a voting system comprised entirely of touch screen machines).” [AB 38-39; R215 9] Stafford testified that his office had considered “blended systems” but rejected the faulty and highly criticized ESS system, which had the only system capable of blending a touchscreen and optical scan unit at that time. [TR169 15859] (ESS would be “last” system to consider because of its shortcomings). Further, only a very few jurisdictions in the nation had ever used a blended system of any type at that time through the present. [TR168 118-19 & 122-23; TR 167 55-56] At the time of trial, only one small county in Florida was believed to use a blended system. [TR168 52] (Highlands County). Palm Beach County uses a countywide touchscreen system [Stafford Ex. 34 2], not a blended system as Plaintiffs assert. [AB 14]
19 This number is the incremental cost of 285 touchscreens (about $1 million) divided by 35 voters.
20

a touchscreen/audio ballot system was unduly expensive at the time, a conclusion buttressed by the Governor Task Force and the Duval County Elections Task Force, both of which recommended optical scan with a transition to touchscreens as they became more financially, technologically, and administratively feasible. [IB 9-13]
4. Touchscreen Systems Not Certified in Florida Are Irrelevant. Plaintiffs offer no meaningful response to the argument that the voting systems certified and used in Georgia (touchscreen/audio ballot) and Harris County, Texas (eSlate system with audio ballot and “sip and puff” technology) are irrelevant legally. [AB 34-35] They ignore that Stafford could not use these systems in Duval County due to lack of Florida certification. They ignore that neither system was even certified until after Florida counties had already made their procurement decisions. They ignore that neither system was used until the Fall 2002 elections thereby providing no track record upon which Florida counties could base their procurement decisions in late 2001/early 2002. In short, these systems were neither “widespread” nor did they provide Stafford with “multiple options for procuring an accessible system” as Plaintiffs claim. [AB 35]
5. The Use of Touchscreens/Audio Ballots for Centralized Short Term Evaluation Was Reasonable.
Again, the decision in AAPD v. Shelley is relevant, this time on the reasonableness of Stafford’s decision to use touchscreens with audio ballots on a
21

short term evaluation basis at elections headquarters before possible deployment countywide. In Shelley, the court held that the entire discontinuation of touchscreens with audio ballots established no likelihood of an ADA violation because the “decision to suspend the use of DREs pending improvement in their reliability is certainly a rational one, designed to protect the voting rights of the state's citizens.” 324 F. Supp. 2d at 1128. Further, the court found that the decision “to withhold further certification until [Shelley] is satisfied that manufacturers and counties have complied with specified conditions is a reasonable one. It is based on studies conducted and information gathered which convinced him that the voting public's right to vote is not adequately protected by the systems currently in place.” 324 F. Supp. 2d at 1132. Likewise, Stafford’s decision to evaluate touchscreen/audio ballots at a centralized location is a reasonable one that does not constitute an ADA violation. See also Troiano v. Supervisor Of Elections In Palm Beach County, Florida, 2004 WL 1941055 (11th Cir. Sept. 1, 2004) (limited use of audio ballots in Fall 2002 general election due to their unacceptable wait time and administrative problems).
D. No Certified Voting System Exists in Florida for Manual Disabilities.
The fact that no voting system has ever been certified in Florida for use by persons with persons with manual disabilities (including the use of mouthsticks) is both irrelevant and a “red herring” according to the Plaintiffs. [AB 40] This
22

modification of their position is notable. Throughout the litigation, the Plaintiffs vigorously claimed that the State of Florida had violated the ADA by wrongly denying certification for the Hart eSlate system with a “sip and puff” device for use by the manually disabled (including Plaintiff Bell who demonstrated it at trial).
As it became evident that the State did not act unreasonably in denying certification for the Hart system, the Plaintiffs were left with no claim that Stafford failed to purchase a certified system for the manually disabled. As a result, they shifted to the theory that touchscreens, which are not certified for use by the manually disabled, ought to have been procured for this uncertified use. As discussed in Stafford’s initial brief, the trial court’s factual and legal findings as to this uncertified use are clearly erroneous. [IB 52-53] No evidence was adduced that any voting equipment has been certified (or can be certified with sufficient objectivity) for this type of use. Indeed, if a disabled voter happens to be able to vote on a voting system with other “body parts,” as Plaintiffs suggest [AB 40] that would be fortuitous. The system should not, however, be compelled by law where no state certification for such a use exists.
23

III. HAVA MOOTS PLAINTIFFS’ ADA CLAIM.
The trial court’s construction of HAVA was error. Contrary to Plaintiffs’
assertions, the fact that 42 U.S.C. § 1554520 of HAVA provides for the
preservation of existing laws does not establish that an ADA claim exists under the
circumstances. Instead, HAVA’s legislative history makes clear that section 15545
was included specifically to preserve existing standards and guidelines
promulgated under the ADA, the Voting Rights Act, and other listed acts. The fear
was that the HAVA standards the Election Assistance Commission (EAC) is
required to develop could become “safe harbors” despite being below or
inconsistent with existing guidelines promulgated under the ADA, the Voting
Rights Act, and other listed acts by the Department of Justice, the Federal
Elections Commission, or other agencies authorized to construe these laws.21
20 Section 15545 provides that “nothing in this Act may be construed to authorize or require conduct prohibited under any of the following laws, or to supersede, restrict, or limit the application of such laws” referring to the Voting Rights Act of 1965, the Voting Accessibility for the Elderly and Handicapped Act, the Uniformed and Overseas Citizens Absentee Voting Act, the National Voter Registration Act of 1993, the Americans with Disabilities Act of 1990 and the Rehabilitation Act of 1973.
21 See H.R. Rep. 107-329, Help America Vote Act of 2001 (December 10, 2001) (a purpose of section 15545 is to “continue[] unchanged the role of the Department of Justice (DOJ) as the agency responsible for authoritatively construing the ADA and promulgating regulations. … While the Committee anticipates that the Commission will take great care to create voluntary standards in a manner that
(Continued …) 24

Indeed, section 15545 was added so that the HAVA standards22 the EAC
adopts would “not replace accessibility regulations and technical assistance
provided by the DOJ for individuals with disabilities. Rather, these standards must
be consistent with DOJ's regulations, and not serve as authorization for a level of accessibility lower than required by the regulations.”23
The critical point is that section 15545 was not adopted, as Plaintiffs assert,
as a way of validating or protecting their novel ADA regulatory claim. Instead, it
was designed simply to ensure that HAVA standards are not inconsistent with or
below those actually adopted under the ADA or RA. Given that no ADA
standards, guidelines or regulations yet exist as to voting systems, section 15545
has no application in this context. Should the EAC develop a HAVA standard that
conforms to existing law, compliance with the Commission's standards cannot provide any ‘safe harbor’ against liability under the ADA or other applicable laws”). 22 Contrary to Plaintiffs’ claims [AB 47], the EAC’s standards, though termed “voluntary,” are not “voluntary” in the ordinary sense, as the legislative history reflects. Id. (“If a state accepts election fund payments, the [HAVA] bill requires the state to certify its compliance with the voluntary standards for voting systems.”) (emphasis added). State and local jurisdictions must comply with HAVA standards or lose substantial and necessary HAVA funds. Plaintiffs state categorically that “HAVA will require Defendant Appellant [sic] to place at least one touch screen machine in every Duval County polling place” [AB 50], yet contradict themselves by claiming that HAVA standards are voluntary. [AB 47] 23 Id.
25

conflicts with or is below an existing ADA standard, the HAVA standard would not be a safe harbor and have no superceding effect.24
Further, contrary to Plaintiffs’ claims [AB 46], the Department of Justice has not “directed” the implementation of voting equipment for disabled voters at this time. Rather, the highly informal letter to Plaintiff AAPD upon which they rely merely states that the Department “encourage[s] all jurisdictions to implement the requirements of Section 301 [of HAVA] as soon as practical, particularly the disability provision, to help ensure that disabled voters are able to fully participate in the election process to the maximum extent possible.” Letter from Civil Rights Division to AAPD (December 12, 2003) (emphasis added) [R193 Ex. A] Far from being compulsion or a directive, the Division’s statement merely encourages implementation of voting equipment under HAVA for disabled voters if practical. Importantly, the letter applies to HAVA and is silent as to any purported obligation under the ADA. Id.
Despite the letter upon which they rely, Plaintiff AAPD recently argued unsuccessfully in AAPD v. Shelley that the provisions of HAVA should be applied now to prevent the decertification of touchscreens in California. 324 F. Supp. 2d at
24 Plaintiffs fail to explain their assertion that “HAVA does not mandate that the [sic] touch screens meet any other requirements” [AB 48] when it is irrefutable that the EAC has been charged with and will be promulgating such standards.
26

1127. This argument conflicts with their argument in this appeal [AB 46], and undermines their claimed right to touchscreens/audio ballots for the Fall 2004 election cycle under the ADA. The trial court in Shelley rejected Plaintiffs’ arguments as “speculative” and “moot” by stating:
Plaintiffs also insist that DREs will not be certified in time to allow them to vote independently in the November 2004 presidential election. If this prediction is accurate, it is unfortunate. However, given its effective date of January 1, 2006, HAVA does not compel a different result. Id. 1126-27. Likewise, no elections will be held in Duval County after the November 2004 presidential election until Spring 2006, after HAVA’s effective date of January 1, 2006. The dispositive point is that the entire relief Plaintiffs seek was been granted legislatively by Congress via HAVA thereby rendering their lawsuit moot. Where courts can no long provide claimants with meaningful relief beyond what they have demanded, no case or controversy exists and this matter is moot. See Jews For Jesus, Inc. v. Hillsborough County Aviation Auth., 162 F.3d 627, 629 (11th Cir. 1998). Given that no meaningful relief existed below, or exists at this point in the litigation, the Plaintiffs’ claims should be dismissed or vacated. The trial court erred in not dismissing this action as moot, and its order to the contrary should be reversed or vacated. See also Troiano v. Lepore, supra (affirming dismissal of ADA claims based on mootness).
27

IV. THE REMEDY AND LACK OF CLASS CERTIFICATION WARRANT REVERSAL. Stafford could not have waived issues regarding the trial court’s order of
compelling touchscreens/audio ballots in only 20% of Duval County’s 285 precincts because this remedy was first known only upon issuance of the trial court’s order on March 24, 2004.25 Indeed, Stafford soon thereafter raised these issues in a motion for stay pending appeal. [R219] Likewise, he could not have waived class certification issues when the trial court nowhere indicated it was dispensing with these important requirements. As to class certification, Plaintiffs present only a few scattered cases that do not reflect the general principles regarding the need for certification of class claims in this type of litigation. The lack of class certification is prejudicial to Stafford, particularly as to the purported class of manually-disabled voters for which no commonality or typicality of claims or remedy exist. [IB 57-58]
25 Paper trials for and manual recounts on touchscreens remain uncertain given a recent order in a Florida administrative proceeding, which held that the State exceeded its rule-making authority in abolishing manual recounts for touchscreen systems. ACLU of Florida, et. al. v. Department of State, DOAH Case No. 042341RX (August 27, 2004).
28

CONCLUSION
Based on the foregoing, the trial court’s legal conclusions are erroneous and
its findings clearly erroneous based on the record as a whole. The district court's
order should be vacated or reversed with directions that judgment be entered in
favor of Supervisor Stafford.
RICHARD A. MULLANEY GENERAL COUNSEL
Scott D. Makar (FBN 709697) Chief, Appellate Division Ernst Mueller (FBN 164027) Senior General Counsel Jason Teal (FBN 157198) Office of General Counsel 117 West Duval Street, Suite 480 Jacksonville, FL 32202 (904) 630-1700 (904) 630-1316 (fax) Attorneys for Appellant John Stafford
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing was furnished by facsimile to Richard A. Ripley, Esq., Howrey, Simon, Arnold & White, LLP, 1299 Pennsylvania Avenue, N.W., Washington, D.C. 20036; Elaine Gardner, Esq., Washington Lawyers’ Committee for Civil Rights and Urban Affairs, 11 DuPont Circle, NW, Suite 400, Washington, D.C., 20036, and George Waas, Senior Asst. Attorney General & Dawn K. Roberts, Asst. Attorney General, Office of the Attorney General, PL-01, The Capitol, Tallahassee, Florida 32399-1050, on this __ day of September, 2004.
Attorney
29

 
 UNITED STATES DISTRICT,C.OURT MIDDLE DISTRICT OF FLORIDA _ -
JACKSONVILLE DIVIS, I0_N

American Association of People with Disabilities, Daniel W. O’Conner, Kent Bell, and Beth Bowen,

--’ ~ - -

Plaintiffs,
Vo

Case No. :3:01-CV- 1275-J-Alley/HTS

Glenda Hood, as Secretary of State for the State
of Florida; Edward C. Kast, as Director, Division of Elections; and John Stafford, as Supervisor of Elections, Duval County.

Defendants.

MOTION OF SUPERVISOR JOHN STAFFORD FOR STAY PENDING APPEAL
Pursuant to Rule 62, Federal Rules of Civil Procedure, Supervisor John Stafford, requests a stay pending appeal~ of this Court’s final judgment dated March 26, 2004, which imposes
mandatory injunctive relief. The judgment compels a substantial alteration to the existing
voting system in Duval County by requiring that currently uncertified equipment for visually
and manually disabled voters be purchased and implemented for use by the August 31, 2004
presidential primary. A stay should be granted given (a) the strong public interest in avoiding intrusion into the election process and its administration, (b) the expense and administrative
burdens of procuring, testing and implementing supplemental, judicially-compelled voting
equipment only five months before a national election (including training poll
t Supervisor Stafford filed his notice of appeal on March 31, 2004. Dkt. 217. References to the Trial Transcript are [Tr. *:#], where * is volume number and # is page number. Docket entries are [Dkt. *:#] where * is docket number and * is page number. Because Plaintiffs do not seek money damages, a bond is unnecessary for a stay and would otherwise be a waste of taxpayer funds.

workers/department employees and educating voters), (d) the likelihood that Supervisor Stafford will prevail on appeal given the novelty and lack of precedent for Plaintiffs’ ADA regulatory claim, (e) the lack of any tangible harm to any Plaintiff from third-party assistance at the polls, and (f) the public interest in avoiding unequal applications of the law. See Bush v. Gore, 531 U.S. 98, 109 (2000) (staying Florida recount process to hear case and render an expedited decision.); Southwest Voter Registration Educ. Project v. Shelley, 344 F.3d 914, 919 (9th Cir. 2003) (vacating injunctive relief and stating "[i]nterference with impending elections is extraordinary ..."); Ruiz v. Estelle, 650 F.2d 555, 565 (5th Cir. 1981) ("stay procedure of [Rule 62] affords interim relief where relative harm and the uncertainty of final disposition justify it.").2 Each of these considerations is discussed sequentially below.
LEGAL ARGUMENT Under the "’balance of the equities" test applicable to a motion for stay pending appeal, four factors are considered: (1) whether the movant has presented a substantial case on the merits; (2) whether, absent a stay, the movant will suffer irreparable harm; (3) whether the adverse party will suffer no substantial harm from a stay; and (4) whether the public interest is served by a stay. Gareia-Mir v. Meese, 781 F.2d 1450, 1453 (11th Cir. 1986). The test in this Circuit is not whether a movant meets each factor, but whether the four factors collectively weigh in favor of a stay. Id. (finding some factors favored government while others did not, but that balance of equities favored a stay). Here, each of the four factors are met and support a stay in this case: (1) Supervisor Stafford has presented a substantial case
2 See Bonner v. City of Prichard, 661 F.2d 1206, 1207 (5th Cir. 1981) ("decisions of the former Fifth Circuit prior to September 30, 1981, are "binding as precedent in the Eleventh Circuit, for this court, the district courts, and the bankruptcy courts in the circuit.").

on the merits on the novel and unprecedented ADA regulatory claim at issue; (2) the election system and process in Duval County will be irreparably harmed absent a stay; (3) issuance of a stay will cause no meaningful harm to any Plaintiff; and (4) the public interest in avoiding interference in elections favors a stay. Whether viewed individually, or considered in their totality, these factors weigh disproportionately in favor of a stay pending appeal. Id. at 1456 ("We find that, viewing the totality of the circumstances, the balance of equities on this question lies with the government.").
A. Supervisor Stafford Has Presented A Substantial Case on the Merits, As to the first factor, in this circuit a movant need not show a "probability" or likelihood of success on the merits in order to obtain a stay. Instead, a movant must show only that he has presented a "’substantial case on the merits" and that, on balance, the equities under the remaining three factors favor a stay. Garcia-Mir v. Meese, 781 F.2d at 1453; see Ruiz v. Estelle, 650 F.2d 555, 565 (5th Cir. 1981) ("We ... hold that on motions for stay pending appeal the movant need not always show a "probability" of success on the merits; instead, the movant need only present a substantial case on the merits when a serious legal question is involved and show that the balance of the equities weighs heavily in favor of granting the stay."); Isaly Co. v. Kraft, Inc., 622 F. Supp. 62, 63 (M.D. Fla. 1985) (same). Here, Supervisor Stafford has presented a substantial case on the merits on an unprecedented ADA claim under 28 C.F.R. section 35.151(b).3

3 A stay ordinarily should be granted solely on this factor if"the possibility of error ... is so

high as to constitute clear error suggestingth probable, likelihood of success on appeal."

_Garcla-~arcia-

Mir v. Meese, 781 F.2d 1450, 1454 (11 Cir. 1986); cf. Isaly Co. v. Kraft, Inc., 622 F. Supp,

62, 63 (M.D. Fla. 1985) ("Having decided for Plaintiff on the facts and the law, I am

obviously not disposed to find that the Defendant now enjoys a likelihood of success on the

(Continued ...)

1. Applicable Law is Contrary to the Court’s Decision
At the outset, it is important to note that the order cites no caselaw in support of the
unprecedented injunctive and declarative relief rendered under section 35.151 (b) of the ADA
regulations. The reason is that none exists. Instead, the only federal appellate court decision
that has considered the interplay between the ADA and the federal elections laws is to the contrary. See Nelson v. Miller, 170 F.3d 641 (6tl~ Cir. 1999) (dismissing ADA/RA claims). In
Nelson v. Miller, the Sixth Circuit specifically held that the refusal "to provide [Plaintiffs]
with voting assistance other than that already extended to them under [Michigan third party
assistance statute] does not discriminate against them in violation of the ADA and/or the
RA." Id__~. at 653.4 As the trial court in Nelson v. Miller stated: Nothing in Lightbourn~ or in anything submitted by the Plaintiffs demonstrate that Congress intended that the ADA or RA should be read so broadly as to require states with statutory provisions regarding a secret ballot to provide blind voters with voting privacy free from third party assistance. Similar to the Voting Rights Acts,
appeal."). However, a stay is warranted where a movant "will present substantial issues on its appeal" and the balance of the equities favors a stay. See Isaly Co., 622 F. Supp. at 63 (I-lodges, J.). 4 See also Nelson v. Miller, 950 F. Supp. 201,204 (W.D. Mich. 1996) ("Neither the ADA nor the RA indicate that voting privacy for blind voters was a ’be,n, efit’ Congress sought to protect or a ’discrimination’ that Congress sought to preve,~,nt. ), affd, 170 F.3d 641th ,(6 Cir. 1999); NAACP v. Philadelphia Bd. of Elections, 1998 WL 321253 at *4 (E.D. Pa. 1998) ("Defendants are not required to provide the specific procedures authorized under the VAEH [Voting Accessibility of the Elderly and Handicapped Act], but the decision to do so is a reasonable modification to comply with the ADA .... The defendants’ provision of the alternative ballot procedures [authorized by the VAEH] to qualified individuals with disabilities fulfills their obligation under the ADA...."). 5 This citation is to the trial court’s decision in Lightbourn v. County of El Paso, Tex., 904 F. Supp. 1429 (W.D. Tex. 1995), which held that the system of voting in Texas did not comport with the ADA and discriminated against the disabled. The Fifth Circuit, however, reversed that decision. See Lightbourn v. County of E1 Paso, Tex., 118 F.3d 421 (5th Cir. 1997).
4

Congress intended that blind voters have access to the voting booth and freedom from coercion within the voting booth, not complete secrecy in casting a ballot. This Court will not rewrite the ADA or RA to require such a privacy fight.
Nelson v. Miller, 950 F. Supp. 201,205 (W.D. Mich. 1996). The Eleventh Circuit is likely to
consider the reasoning and holdings of these cases to be persuasive as to the ADA claim
under section 35.151(b) at issue in this ease.
The order is also at odds with every reported case under section 35.151(b), each of
which involved an alteration to an element of a permanent physical structure, such as curb
cuts or ramps on a sidewalk or road, elevators and restrooms in buildings, and alarm boxes/ticket vending machines on public buildings.6 These types of permanent architectural
or structural barriers can be remedied at relatively little cost and involve little or no
discretion in their ongoing administration thereby distinguishing them from voting equipment
and systems, which are portable, require extensive and complex ongoing administration and
oversight, and are extremely expensive to modify. As the highlighted language emphasizes,
not a single reported case under section 35.151 (b) involves a portable/transportable item such
as a voting machine or system; rather, each addresses an alteration to a permanent structure.
6 See Kinney v. Yerusalim, 9 F.3d 1067 (3ra Cir. 1993) (resurfacing of city street was alteration that required installation of curb ramps); Panzardi-Santiago v. Univ. of Puerto Rico, 200 F.Supp.2d 1 (D. Puerto Rico 2002) ~ublic pathway); Association for Disabled Americans v. City of Orlando, 153 F. Supp. 2d 1310, 1319 (M.D. Fla. 2001) (restrooms and seating); Ability Center of Greater Toledo v. City of Sandusky, 133 F. Supp. 2d 589 (N.D. Ohio 2001) (curb cuts); Deck v. City of Toledo, 29 F. Supp. 2d 431 (N.D. Ohio 1998) (curb romp); Anderson v. Pa. Dept. of Public Welfare, 1 F. Supp. 2d 456, 463-64 (E.D. Pa.,1998) (alteration of office buildings); Sehonfeld v. City of Carlsbad, 978 F. Supp. 1329, 1339 (S.D. Cal. 1997) (restrooms and curb ramps); see also Mollo~’ v. Metropolitan Transp. Authority, 94 F.3d 808, 812 (2nd Cir. 1996) ("The installation of a TVM [ticket vending machine] constitutes a physical modification to the station. It also requires additional wiring and communication lines which feed into the LIRR’s central TVM monitoring facility.") (emphasis added).

The point is simply that the reasoning in Nelson v. Miller (that the ADA is not violated by third party assistance) is further buttressed by the cases interpreting section 35.15 l(b) and limiting it to alterations of permanent physical facilities.
2. The Relief Ordered By The Court Is Flawed. Second, the relief ordered demonstrates the adage that the "medicine" imposed (i.e., a limited, one-time rollout of (currently uncertified) touehsereen audio ballots in sixty of about 300 precincts only for the elections in Fall 2004) can be far worse than the ultimate "cure" (i.e., methodical deployment of technology for disabled voters in all polling places nationwide under HAVA for elections in 2006). For example, the judgment creates the potential for equal protection and due process violations for which a stay is necessary to avoid unequal application of the law. See Bush v. Gore, 531 U.S. 98, 109 (2000) (staying order to hear case and render expedited decision because recount process underway probably conducted in an unconstitutional manner). The order compels the purchase of touchscreens with audio ballots to be implemented in 20% of the polling locations in Duval County, which is approximately 60 precincts.7 Under Florida law, a voter may cast a vote in person only in his or her precincts or at the downtown main office.9 For this reason, a voter may not travel to
7 The precise number of polling places is 285, such that 57 would constitute 20% of the total. s See § 101.045(1), Fla. Stat. (2003) ("No person shall be permitted to vote in any election precinct or district other than the one in which the person has his or her legal residence and in which the person is registered."). 9 ld. 101.657(2) ("supervisor of elections may allow an elector to cast an absentee ballot in the main or branch office of the supervisor ...’" whose results are not made known until the close of the polls on election day."); see also Div. of Elec. Op. 02-13 (Aug. 19, 2002) (voter who goes to wrong precinct may not be given absentee ballot for correct location).

any other polling locations to cast a vote directly. Under the final judgment, voters in 20% of
polling locations will have two voting technologies on which to vote, one with a paper trail
subject to manual recounts (optical scan) and one without a paper trail and not subject to
manual recounts (touchscreens).l° Voters in the remaining 80% of polling locations will vote
on the optical scan system implemented in 2002. Disabled voters in these precincts will not
be able to vote on touchscreens or use audio ballots and will, instead, use third party assistance. They will not have the independent, secret voting experience they may seek and thereby could claim federal equal protection, ADA, RA and state law violations.11 That 80%
of polling places will not have touchscreens/audio ballots and that the votes in some Duval
County precincts will be counted differently in a recount from those in other precincts both
raise potential legal problems that justify a stay. See, e.g,, Bush v. Gore, 531 U.S. 98, 107-08
(2000) (noting equal protection problems where manual recounts of undervotes/overvotes
handled differently).
10 See Div. of Elec. Op. DE 04-02, State of Florida, (February 12, 2004) (letter to supervisors in fifteen touchsereen counties that manual recounts on touchscreens are not permitted under Florida law) (htlp://election.dos.state.fl.us/opinions/new/2OO4/deO402.pdO. This lack of a "paper trail" with touchscreens is the subject of at least one lawsuit in Florida and a number of legislative proposals, both national and state. See Wexler v. Theresa LePore, Supervisor of Elections, Palm Beach County, Kay Clem, Supervisor of Elections for Indian River County, and Glenda Hood, Secretary_ of State, State of Florida, Case No. CV-04-80216 (S.D. Fla. filed March 8, 2004); S. 1980 (amending HAVA to require a voter-verified permanent record or hardcopy); H.R. 2239 (same); S. 2045 (same); Fla. H.B. 1037 (requiring voter-verified permanent paper record with manual audit capacity); & Fla. S. B. 2390 (same) & Fla. S.B. 2870 (same/similar). i~ See, e.g., American Association for People with Disabilities, et. al. v. Kevin Shelley, as Secretary of the State of California, et. al., Case No. CV04-1526 FMC (PJWx) (filed March 23, 2004) (asserting violations of federal equal protection clause, ADA, RA and state law).
7

3. HA lZA Renders Plaintiffs’ ADA Claim Moot or Nonactionable. The judgment compels relief now that is not required until after January 1, 2006 under HAVA in every other jurisdiction nationwide. The Eleventh Circuit is likely to view this issue as a substantial one, particularly the questions of (a) whether an ADA claim even exists and (b) whether such as claim, if it exists, was rendered non-actionable or moot under HAVA. In addition, an appellate court is likely to view the hurried imposition of unnecessary and burdensome court-ordered voting equipment as the type of "judicial second-guessing’" that comprehensive federal and state voting laws were designed to avoid. See Weber v. Shelle~, 347 F.3d 1101, 1107 (9t~ Cir. 2003) ("[I]t is the job of democratically-elected representatives to weigh the pros and cons of various balloting systems. So long as their choice is reasonable and neutral, it is free from judicial second-guessing.").
4. The Scope of Relief Granted ls Unwarranted. Finally, the order accords relief on a (partial) countywide basis that is unavailable to the Plaintiffs individually absent an appropriate class certification hearing and specific findings under Rule 23. In this regard, a "court must - at an early practicable time - determine by order whether to certify the action as a class action." Rule 23(c)(1)(A), Fed. R. Civ. P. (2004). Indeed, the Court at trial itself indicated that "there would have to be a separate proceeding" regarding class certification and voiced concerns regarding certain issues such as whether Plaintiffs could show commonality. [Tr. 1:5-6] ("I do think there could be commonality issues because -- well, I regard, you know, anything as a disability is a partial disability and that runs a great gamut. You know, there’s significant matters of degree and I don’t know that you’re going to find a testimony plate that would fit every visual impairment case and every physical impairment case, so I will simply set that aside."). Here, no class
8

certification hearing was scheduled or held. ~2 No class has been certified, nor have classes or
subclasses been defined. No findings as to the numerosity, typicality, commonality and
adequacy of representation factors have been made, nor has the appropriateness of class relief
under Rule 23(B)(2)(b) been established. This lack of class certification procedures and findings constitutes prejudicial error that also justifies a stay.t3 For all these reasons,
Supervisor Stafford has presented a substantial case on the merits that weighs
disproportionately in favor of a stay.
B. Irremediable Harm Will Result Absent A Stay.
Under the second factor, a stay is in the best interests of the entire community to avoid
irremediable harm to, confusion in, and irrecoverable costs arising from interference with
12 Plaintiffs may claim that Supervisor Stafford sought to hold class certification in abeyance, but that would be only partially correct. In opposition to class certification, Supervisor Stafford sought to "defer ruling until the resolution of the pending motions to dismiss" directed to the initial complaint. [Dkt. 29] This Court resolved that motion by order dated October 16, 2002 dismissing with prejudice all claims in the initial complaint in substantial part. [Dkt. 42] Plaintiffs took no action on their class certification motion since that time, and their proposed findings of fact and conclusions of law and post-trial brief do not address class certification. See Dkt. 178 & 179. ~3 See Baxter v. Palmigiano, 425 U.S. 308, 312, 96 S. Ct. 1551, 1555 (1976) ("Without such certification and identification of the class, the action is not properly a class action."); Bieneman v. City of Chicago, 838 F.2d 962, 964 (7th Cir. 1988) ("It is ... difficult to imagine cases in which it is appropriate to defer class certification until after decision on the merits. ... When the district judge (to whom this case was transferred some two years after its filing) recognized that there was an unresolved class allegation, he should have requested the views of the parties and postponed decision of the merits."); Paxton v. Union Nat. Bank, 688 F.2d 552, 559 (8th Cir. 1982) ("...deferral of the (class) determination until full trial on the merits ...is fraught with serious problems of judicial economy, and of fairness to both sides.") (quoting Stastny v. Southern Bell Tel. & Tel. Co., 628 F.2d 267, 275 (4th Cir. 1980) (footnote omitted)).

the 2004 election process that is already underway.1’~ The interest of Supervisor Stafford as
well as the State of Florida in administering and implementing error-free elections is a
weighty one that has local, state and national implications in this presidential election year.
Implementation of the judgment creates a substantial likelihood that harm will result by injecting the potential for error in the election administration process in Duval County. A
judicially-compelled alteration to an existing voting system that requires currently uncertified~5 voting equipment for visually and manually disabled voters creates an
untenable risk of harm, error and lost taxpayer dollars for which a stay is appropriate.
I. Judicial Alteration of an Election System Should Await Appellate Review.
Judicial intervention into a critical governmental process - here, the voting and election
administration process - creates precisely the type of harm that a stay is intended to prevent.
In issuing an emergency stay in Garcia-Mir v. Meese, which involved court-ordered
immigration hearings pursuant to a judicially-approved plan, the Eleventh Circuit found that
the "actual implementation of the required plan ... does create a likelihood of injury to the
The Presidential Preference Primary was held on March 9, 2004 in Florida.
t5 No certification currently exists for a touchscreen that is compatible with the Diebold
system used in thirty Florida counties. Likewise, no certification exists for voting equipment for use by manually disabled voters including those that have the ability to use certain "mouth sticks." "’Sip and puff’ mad "jelly switch" technology is not certified and, as Paul Craft testified, the State of Florida does not certify touchscreens for use by the manually disabled because "there is no assurance that a given voter with a given mouth stick isn’t going to have difficulty with [a touehscreen]. It has not been tested nor certified for that specific accommodation." [Tr. 3:145-46] Further, absent "regulating the mouth sticks used by people, which I think would be very undesirable, then it’s going to be very difficult to bring that particular interface into certification." [Tr. 3: 146] For these reasons, no Florida county can purchase certified equipment for use by manually disabled voters including those who may use mouthsticks.
10

government. As we noted above, [the government’s] interest in supervising the immigration process is ’weighty’ and that interest is largely entrusted to the sovereign prerogative of the political branches." 781 F.2d at 1455-56. Specifically, the Court found that the cost and burden of implementing the immigration hearings at issue would be irretrievable lost without a stay. As the Eleventh Circuit stated:
The actual process of according hearings for these people will result in costs irrevocable, both of time and of money. [FN3] We are chary of imposing on the government the not inconsiderable burden of actually conducting these hearings until such time as this Court has passed on the merits. Accordingly, we find that the balance of equities here tips toward the government. Id. at 1456 (emphasis added). The government’s interest in administering the voting and election process is equally weighty, if not more so, in the context of an impending presidential election. And the cost of purchasing and implementing judicially-compelled voting equipment (including necessary training for poll workers, voter education, and other ancillary requirements) is substantial. Based on the Eleventh Circuit holding, a trial court should avoid imposing such burdens until after the appellate court itself has ruled on the merits of the case. Likewise, the cost and burden of implementing the Court’s judgment will be at least hundreds of thousands of taxpayer dollars, likely to be irretrievable lost without a stay. See also Ruiz v. Estelle, 650 F.2d 555, 565 (5th Cir. 1981) (staying court order compelling prison administrators to prepare & implement plans for prison conditions).16
16 Supervisor Stafford’s request for a stay extends to the planning process itself as set forth in the final judgment. See Ruiz v. Estelle, 650 F.2d 555 (5th Cir. 1981) (staying preparation of certain planning activities). Alternatively, he seeks a stay as to the implementation of any plan that might result from the final judgment. See Garcia-Mir v. Meese, 781 F.2d 1450, 1453 (11th Cir. 1986) (denying stay as to formulation of judicial plan, but staying implementation).
11

2. Irreparable Harm Will Result Even If DieboldTouchscreens Become Certified and Available.
Irreparable harm will result whether certified touehsereens with audio ballots become available or not. Even if the Diebold touchscreen with audio ballot were certified by the State before May 14, 2004, it would be instantaneously antiquated and have to be replaced by 2006 under HAVA. Paul Craft of the Division of Elections testified without contradiction that any system procured at this time to accommodate disabled voters would have to be updated or replaced because Florida’s voting system standards will have to be modified to comply with HAVA standards, which have not yet been formulated. [Tr. 3:93-94, 160-61,173] Further, it is doubtful that HAVA funds will be available for a judicially-compelled system that will have to be replaced or substantially modified. For this reason, any expenditure of tax dollars now will simply be wasted on immediately out-dated equipment that is not HAVAcompliant. This consideration alone is sufficiently grave to justify a stay.
3. Use of a Blended System is Impossible or Impracticable Under the Court’s Time Constraints.
If Diebold’s touchscreen audio-ballot is not certified by May 14, 2004, the Court’s judgment requires the purchase of touchsereen/audio ballots from ESS or Sequoia that are currently not certified for use with the Diebold optical scan system thereby making it teetmologically impossible to marry any two vendors’ systems.~7 Paul Craft testified that no
17 As the United States Supreme Court recognized in Bush v. Gore, 531 U.S. at 110, any equipment or software to be used as a part of an election system in Florida must be evaluated and certified by the Secretary of State under section 101.015, Florida Statutes.
12

certified voting system in Florida ever has blended different~8 vendors’ equipment. [Tr. 3:118-19 & 122-23]~9 He testifi~xi as follows:
Q. All fight. Now, let me ask you this. When a county chooses a vendor such as ES&S, to take an example, and that system has been submitted for certification and been certi fled -A. Uh-huh. Q. -- is it possible for those counties to get equipment from another vendor and - and- which is certified and then mix the two up in the sense of using components from the equipment of one vendor with the components of the - the other system without that connectability having been certified? A. No, that’s not possible. [Tr. 3:118-19] (emphasis added). For this reason, Supervisor Stafford cannot separately purchase Sequoia or ESS touchscreens with audio ballots due to their lack of a certified technological method of becoming compatible with the Diebold system at issue. [Tr. 3:12223 & 5:94-95] While this technological incompatibility may possibly be rectified in the future if vendor cooperation increases and Division of Elections certification ensues, it remains a major barrier to mixing different vendors’ equipment presently. [Tr. 3:122-23] In addition, as the Court has noted in its findings, the State’s certification process is cumbersome thereby making the relief compelled impossible unless the Division of Elections somehow certifies a vendor-blended voting system that complies with the requirements of the Court’s order and timeframes. And Duval County can hardly be expected to integrate a blended system on its own. As Paul Craft testified, "it’s going to be difficult for [counties] to pull together a blended system on their own" and that the "biggest obstacle to [blended
~ The "blended" system in Highlands County is that of a single vendor, ES&S. [Tr. 3:52-53]; see also Div. of Elections, Florida Department of State, Voting Systems http://election.dos.state.fl.us/votemethYsystems/syssearch I .asp.
13

systems] has been that, frankly, vendors don’t want to play" [i.e., cooperate]. [Tr. 3:119-20] He also testified that:
... Florida counties have historically found it preferable to work with a single vendor. Obviously if you’re working with a single vendor, you have a single point for a warranty service and technical assistance. And the ability to get technical assistance during an election cycle is a big area of risk that the counties want to reduce ... [Tr. 3:122-23] Given this strong preference for single vendor systems, it is unsurprising that only two or three jurisdictions nationwide have vendor blended systems at this time. [Tr. 5:148-49] For this reason, it is highly unlikely that the first ever certified vendor-blended system in Florida could be accomplished in the next few months to comply with the Court’s order in Duval County. Notably, the order holds that the ES&S system should have been procured for use in Duval County in 2002 simply because it was the first and only certified voting system that had a touchscreen with audio ballot available for the Fall 2002 elections. Order at 8, ¶ 24. Yet, the ES&S touchscreen/audio ballot system is the most maligned and problematic of all certified voting systems in Florida, causing dramatic increases in costs, voter confusion, and accountability in Miami-Dade County. See Plaintiffs’ Exhibit 1 (citing Miami-Dade Auditor General’s Reports condemning ES&S system).2° The purchase of ES&S touchscreen equipment in Miami-Dade County for the 2002 elections resulted in a true election fiasco, including (a) emergency management officials having to run the election, (b) over $5 million
2o See generally Plaintiffs’ Exhibit 1 (citing Miami-Dade Office of Inspector General report critical of ESS system); Office of Inspector General, Miami-Dade County, http://www.miamidadeig.org/archives/Sept102002election.pdf (initial report); http://www.miamidadeig.org/reports/voting%20final%20report.pdf (final report).
14

of additional tax dollars spent on just the general election, (c) having to boot up thousands of machines the night before and keep them under police supervision overnight, and (d) the loss
by the election supervisor of his job. [Tr. 7:17-23] ES&S was simply not a technologically and administratively adequate system either then or presently. Likewise, a Sequoia
touchscreen is not feasible under the circumstances (due to the lack of blended-vendor certification). The order also permits little or no opportunity to test or implement whatever equipment might be available in a deliberative, cost-effective and administratively feasible manner.2t
4. The Cost of the Remedy is Irrecoverable and Disproportionate. Finally, the harm to Duval County in terms of substantial irrecoverable cost weighs heavily in favor of maintaining the status quo. Even if one Diebold touchscreen with audio ballot can be certified, procured and used technologically and administratively in a partial deployment in only 20% of the precincts, the out-of-pocket cost of that equipment alone would be approximately $210,000 (i.e., 60 units times $3,500). Stafford Ex. 6 & 12 (2002 Governor’s Task Force estimates $934,500 based on 267 units). More importantly, the cost of a Diebold touchscreen/audio ballot in every precinct (about $1 million) would be more than 50% of the $1.8 million budget for the entire voting system in Duval County in 2002.2~
21 Indeed, even Georgia and Harris County, Texas - cited in the Court’s order - each had well over a year to solicit, procure and test their DRE equipment to gain consensus and experience in choosing a vendor and implementing the new technology. 22 It would also be about 10% of recent overall budgets or, more relevant, about 20% of budgets for operating expenses. From 1991 to 1999, the overall budget of the Supervisor of Elections office in Duval County has ranged from $1.84 million (1993-94) to $3.44 million (1998-99) with the City’s general fund contributing between $539,097 (1991-92) to $672,023 (1999-2000). [Plaintiffs’ Ex. 100; Stafford Ex. 2a-2k] The Supervisor’s overall budget for (Continued ...)
15

Persuasive ADA regulations indicate that where the cost of a specific alteration exceeds the
cost of the overall alteration by 20 percent, it is disproportionate and not required. See, e.g.,
28 C.F.R. § 36.403(0; Coalition of Montanans Concerned With Disabilities, Inc. v. Gallatin
Airport Auth., 957 F. Supp. 1166, 1170-71 (D. Mont. 1997) ("under the Justice Department’s interpretation of its rules, the Authority must install an elevator unless the cost would exceed
20 percent of the total cost of the alteration."). If an elevator is unwarranted where it exceeds
20 percent of total alteration costs, surely the deployment of touchscreens with audio ballots
in precincts in Duval County in 2002 is unwarranted where its cost would exceed 50 percent
of total alteration costs. In summary, the potential for substantial irremediable harm - both in
terms of actual equipment and administration costs justifies a stay pending appeal.
C. Plaintiffs Will Incur No Harm With A Stay. As this Court has found, Plaintiffs will not be denied an equal opportunity to vote under
Florida’s system of third party assistance. The Court stated unequivocally that:
All three individual Plaintiffs have been able ta vote with third-party assistance. While the visually impaired Plaintiffs testified to concern about whether their votes were accurately reflected, there is na evidence to suggest that their rates were not accurately communicated via third-party assistance. Similarly, there is evidence that visually and manually impaired raters have been afforded an equal opportunity to participate in and enjoy the benefits of voting. Order at 23 (emphasis added). The highlighted language makes clear that no risk exists
whatsoever that any Plaintiff has been or will be denied "an equal opportunity to participate
fiscal year 2000-2001 was $2.6 million (of which $677,646 came from City funds). [Plaintiffs’ Ex. 100] For fiscal year 2001-02, the budget was $3.25 million, of which $1.86 million was for personnel and $1.39 million was for operating expenses. [Stafford Ex. 2a-2k] For fiscal year 2002-03, the budget was $5.46 million reflecting $3.24 million in personnel (increase of $1.38 million for part-time and overtime due to three elections during 2002-03) and $2.23 million operating expenses (reflecting additional expense for voting system). Id.
16

in and enjoy the benefits of voting" by voting with third party assistance on Duval County’s current voting system. The Court’s order itself emphatically demonstrates that no substantial harm will befall the Plaintiffs by voting with third party assistance. As such, this factor for a stay is met based on the Court’s findings.
Plaintiffs will claim that having to disclose their vote to a third party, the method by which they and all others similarly situated have voted for decades in Florida and nationwide, constitutes sufficient "’harm" to justify the remedy. But, each Plaintiff has voted in this manner in the four/five23 elections held in Dural County since they instituted their lawsuit in 2001. Yet they never sought preliminary injunca’~e relief to prevent this "harm" and, instead, passively allowed an optical scan system to be proposed, procured and implemented in Duval County without once seeking to protect themselves in the interim from this "harm." Equity does not favor those who fail to act with diligence in protecting their asserted rights. Baldwin County Welcome Center v. Brown, 466 U.S. 147, 151, 104 S. Ct. 1723, 1726 (1984) ("One who fails to act diligently cannot invoke equitable principles to excuse that lack of diligence.").
With a stay, the Plaintiffs will merely be required to disclose their votes to third parties who assist them at the polls (or in filling out an absentee ballot), such parties being subject to criminal penalties should they disclose Plaintiffs’ choices.24 This "harm" is minimal or non-
23 The optical scan system was used in the five elections held on September 10, 2002 (primary), November 5, 2002 (general), April 15, 2003 (primary/local), May 13, 2003 (general/local) and March 9, 2004 (presidential preference primary). 24 As a specific deterrent against violation of voting secrecy, Florida law provides that "[a]ny election official or person assisting any elector who willfully discloses how any elector voted, except upon trial in court, is guilty of a felony of the third degree", which is (Continued...)
17

existent in contrast to the substantial impact of a judicially-compelled alteration to a voting
system on the eve of a presidential election. Further, Plaintiffs’ alleged "harm" in the Fall
2004 election cycle is de minimis and fleeting given that HAVA requires voting equipment
for disabled voters in every polling location nationwide for elections after January 1, 2006.
As such, a stay is equitable and will merely require that Plaintiffs vote in the 2004 election
cycle in the same manner they have throughout this litigation and as will millions of other
voters throughout Florida 25 (indeed, nationwide) this Fall.26
punishable under Florida law by imprisonment up to five years and fine up to $5,000. § 104.23, Fla. Stat. (2003). 25 The Court’s order erroneously states that 29 Florida counties "’use touchscreen voting systems" (p. 13, ¶ 41) when only fifteen actually use touchscreens. Paul Craft specifically testified that, although perhaps 29 counties had "touchscreen capability" [Tr. 3:50-51], only fifteen counties in Florida actually use precinct based touchscreens, and that he did not know whether any, other than Paseo County, used audio ballots at the precinct level:
A: ... there are 15 of those [counties] that are using the touch-screen device as a primary voter interface device in theirprecincts. Q. Not 29? A. Not 29. Q. And -- and then of those 15, how many other than Pasco have a touch screen available at the -- with audio component at the precinct level? A. I do not know.
[Tr. 3:151 (emphasis added)] As such, the order misstates significantly by almost double the extent to which touchscreen usage exists in Florida. In addition, the use of audio ballots is limited to only about half of the 15 counties with touchscreens, some not using audio ballots in all precincts, ld.
26 See Elections Data Services Report (Feb. 12, 2004) (estimating that 32.20% of the nation will vote on optical scan, 28.94% on DRE/touchscreen technology, 18.64% on punchcards, 12.82% on lever machines, 6.79% on mixed systems and 0.6% on paper ballots) http://www.electiondataservices.com/EDSInc VEstudy2004.pdf. The 28.94% figure represents both old-style DREs that replicate lever machines (about half the total) and newer touchscreen technology (e.g., Diebold Accuvote TS (4.65%), Sequoia AVC Edge (4.5%) and ES&S Votronic (2.57%)). Id.
18

Importantly, this Court dismissed with prejudice (a) the claim that third party assistance violated the Florida Constitution’s "’direct and secret" voting clause and (b) the ADA/RA claims to the extent they were based on a right to an independent, secret voting experience. See 227 F. Supp. 2d at 1297-98 (M.D. Fla. 2002). As such, the "harm" that Plaintiffs claim from third party assistance is not cognizable in this proceeding. It is odd that Plaintiffs’ claims for a secret, independent voting experience were dismissed under Florida and federal law, yet they somehow continue to have a right to this experience under the Court’s order.
Finally, it bears emphasis again that the Plaintiffs filed this lawsuit in 2001 prior to Duval County purchasing its current optical scan voting system. Yet they never once pursued preliminary injunctive relief. If Plaintiffs were being subject to substantial harm during this period, they surely had an obligation to seek interim relief. They failed to do so. They filed their lawsuit, did not seek to enjoin the purchase and implementation of the optical scan system upon which they have subsequently voted in five elections, and thereby undermined any reasoned argument that they will be subject to "substantial harm" in the Fall 2004 election cycle with a stay of this Court’s order.
D. The Public Interest Strongly Favors a Stay. Lastly, and perhaps most significantly, the public interest clearly lies in granting a stay of the order under the circumstances. The potential for unforeseeable problems, confusion and error in the hurried certification, procurement, deployment, and implementation of a court-ordered technological alteration to an established voting system in an election cycle only months away is obvious. As the Ninth Circuit en banc recently stated in a case challenging voting equipment, a "federal court cannot lightly interfere with or enjoin a state election .... The decision to enjoin an impending election is so serious that the Supreme
19

Court has allowed elections to go forward even in the face of an undisputed constitutional violation." Southwest Voter Registration Educ. Project v. Shelley, 344 F.3d 914, 918 (9th
Cir. 2003) (citations omitted). In that ease, which involved an injunction that interfered with
a pending election, the court stated:
In this case, hardship falls not only upon the putative defendant, the California Secretary of State, but on all the citizens of California, because this case concerns a statewide election. The public interest is significantly affected. For this reason our law recognizes that election cases are different from ordinary injunction cases. See, e.g., Reynolds v. Sims, 377 U.S. at 585, 84 S. Ct. 1362.
Id__~. at 919 (emphasis added). In short, the public interest is served by maintaining the status
quo and permitting the appellate court to review and issue a ruling on the disputed ADA regulatory claim at issue. See Garcia-Mir v. Meese, 781 F.2d 1450, 1456 (11th Cir. 1986)
(finding public interest equities in support of government due to court-ordered
implementation of immigration hearings).
CONCLUSION
A stay is warranted in the public interest given the balance of equities. Supervisor
Stafford requests that this Court stay its order pending review in the appellate court.
Respectfully Submitted, RICHARD A. MULLANEY GENERAL COUNSEL
E-RNS"T MUI~t~]~ER (I~I~N 164027) Senior General Counsel SCOTT D. MAKAR (FBN 709697) JASON TEAL (FBN 157198) 117 West Duval Street, Suite 480 Jacksonville, FL 32202 (904) 630-1847 (904) 630-1316 (fax)
2O

CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing was furnished by facsimile to J. Douglas Baldridge, Esq., Howrey, Simon, Arnold & White, LLP, 1299 Pennsylvania Avenue, N.W., Washington, D.C. 20036; Lois G. Williams, Esq., Washington Lawyers’ Committee for Civil Rights and Urban Affairs, 11 DuPont Circle, NW, Suite 400, Washington, D.C., 20036, and George Waas, Senior Asst. Attorney General & Dawn K. Roberts, Asst. Attorney General, Office of the Attorney General, PL-01, The Capitol, Tallahassee, Florida 32399-1050, on this ~ay of April, 2004.
Attorney
21

 
 Case 3:01-cv-01275-HLA-HTS Document 222 Filed 04/12/2004 Page 1 of 14

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION

American Association of People with Disabilities, et al.,
Plaintiff
Vo
Glenda Hood, et al., Defendants.

Civil Action No. 3:01-CV- 1275-J-AIIey/HTS

PLAINTIFFS’ OPPOSITION TO DEFENDANT STAFFORD’S MOTION FOR STAY PENDING APPEAL

Plaintiffs respectfully submit this opposition to Defendant Stafford’s Motion For Stay Pending Appeal.

I.

INTRODUCTION

Although cast as a motion for stay, Defendant Stafford’s motion is little more than a plea

for reconsideration of the issues he has lost no less than three times. The motion confuses the

standards applicable to motions for stay, and then leaps to an exhaustive recitation of Defendant

Stafford’s familiar arguments that legally inapposite law and alleged facts somehow demonstrate

that the Court’s March 26, 2004 judgment was in error. Defendant Stafford’s fourth bite at the

apple adds nothing new, is inappropriate, and otherwise fails to address the salient issue before 1
this Court - whether a stay pending appeal is justified. There simply is no basis for a stay.

I
Defendant Stafford concedes that he has no supporting precedent for his request to stay the part of the Court’s March 26 judgment requiring him to present a plan for implementing the Court’s requirements by April 12, 2004. (Motion to Stay at 11, n. 16.) Indeed, in Garcia-Mir v. Meese, the Eleventh Circuit denied the Government’s request for a stay of the part of the District Court’s order requiring submission of a plan for implementation of the immigration hearings at issue in

Case 3:01-cv-01275-HLA-HTS Document 222 Filed 04/12/2004 Page 2 of 14
Defendant Stafford’s argument is divided into two parts. The first part simply re-argues Nelson v. Miller (and related issues) and concludes that the Court erred in entering its March 26 judgment. Defendant Stafford purchased an entirely new voting system at a time when fully accessible touch screen systems (with audio ballot) had been certified by the State of Florida. American Assoc. of People With Disabilities v. Hood, n F. Supp. __, 2004 WL 626687 at *9 (M.D. Fla. March 24, 2004). This undeniable fact renders inapposite every one of the redundantly asserted legal and factual excuses for Defendant Stafford’s failure to abide by the requirements of the ADA. It is not even a close call - this is the law of every jurisdiction involving new facilities and was the correct conclusion reached by this Court. ld.
The second part of Defendant Stafford’s argument is a hodgepodge of excuses all based upon an unsupportable assertion that he lacks sufficient time to meet the requirements of the Court’s judgment. This is not true - the only record evidence is that Pasco County and Hillsborough County, Florida fully implemented their touch screen systems in less than two months. (Plaintiffs’ Post Trial Brief at 24-25 and citations therein.) Further, Diebold’s trial testimony (Mr. Early) is uncontroverted that the training process can be completed in no more than a month. (Id. at 25 and citations therein.)
In any event, if Defendant Stafford lacks sufficient time to comply with the Court’s judgment (for which there is no proof), he has only himself to blame. Since 2001 - prior to Defendant Stafford’s purchase of an inaccessible voting system- Florida counties have had the option of purchasing certified, and rigorously tested, accessible voting systems. AAPD, 2004 WL 626687 at *2 (and citations therein.) At the end of trial, in September 2003, it was apparent that this Court would likely order Defendant Stafford to take some action to bring Duval County’s election system into compliance with the ADA. (1/14/04 Tr. at 70:3-10 ("I don’t think that should be any surprise, in view of the proceedings that we held in September").) On January 14,
that case. This did not stop Defendant Stafford from seeking such a stay of his obligation to submit a plan by April 12, 2004.
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Case 3:01-cv-01275-HLA-HTS Document 222 Filed 04/12/2004 Page 3 of 14
2004, Defendant Stafford was expressly advised by the Court’s "tentative" ruling that he would be required to do so. (Id.) Finally, last month, Defendant Stafford was officially ordered to take action. His latest plea for more time is hollow, yet distressingly consistent with his uniform approach of missing every deadline related to meeting the needs of Dural County’s disabled citizens.
Finally, Defendant Stafford’s arguments have little to do with the issue before this Court. The issue is whether the Court’s March 26 judgment should be stayed pending appeal. The United States Supreme Court has identified the relevant factors that must be addressed in evaluating a motion for stay, which it has categorized as truly extraordinary relief. Defendant Stafford’s motion has little to say about these factors and fails to present any basis for granting
2 such extraordinary relief. The motion for stay must be denied.
II. ARGUMENT
A. Defendant Stafford Confuses The Applicable Legal Standards "Because a stay pending appeal would interrupt the ordinary process of judicial review and postpone even further the final resolution of [the] litigation, it is considered ’extraordinary relief’ for which the moving party bears a ’heavy burden.’" Wyatt v. Sawyer, 190 F.R.D. 685, 689 (M.D. Ala. 1999) (citing Winston-Salem/Forsyth County Board ofEduc, v. Scott, 404 U.S. 1221, 1231, 92 S. Ct. 1236, 1241 (1971)); accord, Johnson v. Mortham, 926 F. Supp. 1540, 1542 (N.D. FI. 1996). "Such motions are disfavored and granted only in exceptional circumstances." Federal Trade Commission v. Jordan Ashley, Inc., 1994 WL 485793, at *1 (S.D. Fla. 1994) (citing Garcia-Mir v. Meese, 781 F.2d 1450, 1453 (11th Cir. 1986)). In determining whether to
2
Scattered throughout Defendant Stafford’s motion are references to the interest in saving taxpayers’ money. Perhaps that issue should have been addressed before Defendant Stafford purchased an inaccessible voting system, lodged this two year fight, and potentially subjected Duva! County to an attorneys’ fees award in favor of the Plaintiffs. Indeed, this is especially true now that Defendant Stafford suggests that it would cost approximately $210,000 to comply with the Court’s judgment. (Motion to Stay at 15.)
-3-

Case 3:01-cv-01275-HLA-HTS Document 222 Filed 04/12/2004 Page 4 of 14
grant a stay pending appeal, the United States Supreme Court has determined that courts must examine the following factors:
(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.
Hilton v. Braunskill, 481 U.S. 770, 776, 107 S. Ct. 2113, 2119 (1987). "The failure to satisfy one prong of the standard for granting a stay pending appeal ’dooms his motion.’" In re Bilzerian, 276 B.R. 285,296 (M.D. Fla. 2002) (citing Green Point v. Treston, 188 B.R. 9, 12 (S.D.N.Y. 1995)). Defendant Stafford fails to meet any prong of the applicable standard.
In an attempt to evade the standard, however, Defendant Stafford argues that he need only show he "presented a substantial case on the merits." (Motion For Stay at 3.) In an apparent acknowledgement that he cannot make the required "strong showing that he is likely to succeed on the merits," he urges the Court to relax the Supreme Court’s requirements. However, the leniency he seeks applies "only if the balance of the remaining three factors weigh heavily in favor of granting the stay." Wyatt at 689-90 (citing Ruiz v. Estelle, 650 F.2d 555,565 (5th Cir. 1981), cert. denied, 460 U.S. 1042 (1983)) (emphasis added.) The remaining three factors militate decisively against granting a stay, and thus Defendant Stafford’s required showing on the merits cannot properly be relaxed. Even if it were, he has not demonstrated a substantial case on the merits.
B. Defendant Stafford Has Neither Made a Strong Showing that He is Likely to Succeed on the Merits nor a Substantial Case on the Merits.
To demonstrate that he is likely to prevail on the merits of his appeal, Defendant Stafford must prove that the Court’s orders from which he appeals were "clearly erroneous." Wyatt at 689. With two inconsequential exceptions, Defendant Stafford’s only attempt to make this requisite showing is to re-assert the identical arguments this Court has rejected three times.
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Case 3:01-cv-01275-HLA-HTS Document 222 Filed 04/12/2004 Page 5 of 14
AAPD, 2004 WL 626687; AAPD v. Hood, 278 F. Supp.2d 1345 (M.D. Fla. 2003); AAPD v. Smith, 227 F. Supp.2d 1276 (M.D. Fla. 2002). In 2002, Defendant Stafford purchased an entirely new voting system at a time when fully accessible voting technology had been certified by the State of Florida. AAPD, 2004 WL 626687 at *9 (and citations therein.) Although ignored by Defendant Stafford for over two years, this fact alone renders inapposite every legal excuse and case he offers to justify his disregard for the requirements of the ADA. The compelling rationale for this conclusion is fully explained in Plaintiffs’ opposition memoranda to the two motions to dismiss and motion for summary judgment as well as in Plaintiffs’ Post-Trial Brief ( and the Court’s resulting orders), which are incorporated into this opposition by this reference. It would
3 serve no meaningful purpose to repeat this rationale a fourth time.
The first "new" argument raised by Defendant Stafford is that ordering the use of accessible voting technology in less than all of Duval County’s polling places runs the risk of subjecting him to claims under the Equal Protection Clause. His theory is that those disabled citizens in Duval County assigned to polling places still burdened by third party assistance will be able to assert such claims. This excuse fails for a variety of reasons.
First, it is axiomatic that the "phasing in" of a remedy in the civil rights context cannot properly result in liability. Acree v. County Bd. ofEduc., 458 F.2d 486,488 (5th Cir. 1972) (enforcing court order requiring school district to implement a desegregation plan in three phases, commencing with only certain schools); Kemp v. Beasley, 352 F.2d 14, 14-17 (8th Cir. 1965) (affirming three step transitional plan period of school desegregation whereby only certain grade levels were provided the benefits of the plan during initial periods). By December 31, 2006, HAVA will require Defendant Stafford to place at least one touch screen machine (with audio ballot) in every one of Duval County’s polling places. While bringing Defendant Stafford into
3 Defendant also relies on what he calls "persuasive ADA regulations" addressing potentially "disproportionate" alterations. (Motion For Stay at 16.) "Persuasive" must be a euphemistic synonym for "entirely inapposite" as these regulations have no relevance whatsoever to ADA discrimination cases involving entirely new facilities.
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Case 3:01-cv-01275-HLA-HTS Document 222 Filed 04/12/2004 Page 6 of 14
compliance with the ADA, the Court’s judgment also has the practical affect of "phasing in" much needed relief consistent with the plans uniformly endorsed by Courts in the civil fights
4
context. Second, the only "precedent" cited by Defendant Stafford for his Equal Protection
argument is the United States Supreme Court’s decision in Bush v. Gore, 531 U.S. 98, 121 S. Ct. 525 (2000). However, the Supreme Court made it clear that its "consideration [was] limited to the present circumstances" (/d. at 109), calling into question its precedential value for the novel position asserted by Defendant Stafford (even if Bush supported that position, which it does not).
Third, if Defendant Stafford is truly concerned about the equal protection under the law of Duval County’s disabled citizens, after nearly three years of "investigating" touch screen systems, maybe he should simply provide accessible voting machinery in all of Duval County’s polling places. Countless other jurisdictions have done so. The admitted investment of less than $1 million dollars to place a touch screen machine (with audio ballot) in every polling place in Duval County (Motion for Stay at 15) pales in comparison to the County’s $1.2 billion annual budget. AAPD, 2004 WL 626687 at *4 (and citations therein.) Perhaps part of this $1.2 billion budget could be devoted to meeting the rights of disabled voters, instead of to such lofty goals as installing blue lights on Jacksonville’s bridges in time for the 2005 Super Bowl. In order to address this concern, however, the Court certainly could expand its March 26 judgment to cover all of Duval County’s polling places.
Finally, the second "new" argument raised by Defendant Stafford is a lament about this Court’s alleged failure to certify a class. (Motion For Stay at 8.) However, in the civil fights 4
Defendant Stafford argues that the harm caused to Plaintiffs by being forced to vote with third party assistance is "minimal or nonexistent." (Motion for stay at 17-18.) If this is the case (which it is not), then Defendant Stafford must agree that placing accessible voting machinery in less than all of Duval County’s polling places could not possibly result in an Equal Protection claim. D. Baverlein, "JTA To Light Downtown Bridges," The Times-Union, Apr. 2, 2004, available at http://jacksonville.corn/tv-online/stories/040204/met 15245974.shtml.
-6-

Case 3:01-cv-01275-HLA-HTS Document 222 Filed 04/12/2004 Page 7 of 14
context, where only injunctive and declaratory relief is sought, class certification is unnecessary because "the very nature of the rights [the plaintiffs] seek to vindicate requires that the decree run to the benefit not only of the named plaintiffs but also for all persons similarly situated." United Farmworkers of Florida Housing Project, Inc. v. City of Delray Beach, Florida, 493 F.2d 799, 812 (5th Cir. 1974); Bailey v. Patterson, 323 F.2d 201,206 (5th Cir. 1963), cert. denied, 376 U.S. 910 (1964). Indeed, here, as in United Farm Workers, "[e]ven with the denial of class action status, the requested injunctive and declaratory relief will benefit not only the named [plaintiffs] but also for all other persons similarly situated." Id. Discrimination on the basis of disability should be accorded the same treatment as race discrimination, which "is by definition class discrimination." Id. (citing Huffv. N.D. Cass Co. of Alabama, 485 F.2d 710, 713 (5th Cir. 1973) (en banc). See also, Bresgal v. Brock, 843 F.2d 1163 (9tla Cir. 1987) (issuance of nationwide injunctive relief under Migrant & Seasonal Agricultural Worker Protection Act); Int’l Union of Bricklayers andAlIied Craftsmen v. Meese, 616 F. Supp. 1387 (N.D. Cal. 1985).
Moreover, even if class certification was required, Defendant Stafford is not entitled to a hearing on this issue. Grayson v. K-Mart Corp., 79 F.3d 1086,1099 (11th Cir. 1996) ("The failure to hold an evidentiary heating, however, does not require reversal of the class certification unless the parties can show that the heating, if held, would have affected their rights substantially") (citing Burns v. Lang, 44 F.3d 1031 (Table), 1994 WL 709329, *3 (D.C. Cir. 1994); Dellums v. Powell, 566 F.2d 167, 189 n. 56 (D.C. Cir. 1977), cert. denied, 438 U.S. 916 (1978)). Defendant Stafford could not possibly show that the failure to conduct a class certification heating has "affected [his] rights substantially," as class certification consistent with the Court’s March 26 judgment was a certainty. (See Plaintiffs’ Motion For Class Certification, which is incorporated herein by this reference). This is especially true because "Rule 23 (b)(2) was specifically designed to allow for the class action mechanism in civil rights cases (See Advisory Committee’s Note to 1966 Amendment to Rule 23, 39 F.R.D. 98, 102 (1966) ("the requirements of the rule are given a liberal construction in civil rights suits").) Reproductive Health Services v. Webster, 662 F. Supp. 407,412 (W.D. Mo. 1987) (citing Coley v. Clinton, 635
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Case 3:01-cv-01275-HLA-HTS Document 222 Filed 04/12/2004 Page 8 of 14
F.2d 1364, 1378 (8th Cir. 1980)), aff’d in part and rev ’d in part on other grounds, 851 F. 2d 1071 (8th Cir. 1988).
Finally, nothing stops the Court from certifying a class now - although it is unnecessary. See, e.g., Larionoffv. United States, 533 F.2d 1167, 1183 (D.C. Cir. 1976) (approving simultaneous entry of judgment and class certification), aff’d, 431 U.S. 864 (1977); Jimenez v. Weinberger, 523 F.2d 689, 697 (7th Cir. 1975) (stating that "in some cases the final certification need not be made until the moment the merits are decided"), cert. denied, 427 U.S. 912 (1976); see also Gurule v. Wilson, 635 F.2d 782, 788-90 (10th Cir. 1980) (allowing post-judgment class certification under Rule 23(b)(2)); Marshall v. Kirkland, 602 F.2d 1282, 1301 (8th Cir. 1979)(same); Johnson v. Mathews, 539 F.2d 1111, 1125 n. 23 (8th Cir. 1976) (same); Alexander v. Aero Lodge No. 735, 565 F.2d 1364, 1372 (6th Cir. 1977) (affirming post-judgment certification where there was a lack of prejudice).
C. Plaintiffs Will Be Irreparably Harmed By the Stay. Defendant Stafford callously suggests, once again, that the Plaintiffs have nothing to complain about. Indeed, Defendant Stafford remains unpersuaded by the fact that forcing disabled citizens to vote in a manner he admits is materially different from the manner in which non-disabled voters vote is of any consequence. (Plaintiffs’ Post Trial Brief at 3 & 4 and citations therein.) After all, to him "merely bc[ing] required to disclose their votes to third parties" is hardly a big deal. (Motion For Stay at 17.) Fortunately, the Courts do not share Defendant Stafford’s view: Plaintiffs will suffer significant and irreparable injury if the stay is granted. Deprivation of a fundamental right, such as limiting the right to vote ... constitutes irreparable harm.
Johnson, 926 F. Supp. at 1543 (citing Harper v. Virginia Board of Elections, 383 U.S. 663, 86 S. Ct. 1079 (1962); Elrodv. Bums, 427 U.S. 347, 373-74, 96 S. Ct. 2673, 2689-90 (1976)) (emphasis added.) Having admitted at trial that Plaintiffs are forced to vote in a more
-8-

Case 3:01-cv-01275-HLA-HTS Document 222 Filed 04/12/2004 Page 9 of 14
burdensome and materially different manner than non-disabled voters (Plaintiffs’ Post Trial Brief at 3 & 4), it is beyond dispute that staying the Court’s judgment will limit (at a minimum) Plaintiffs’ fundamental right to vote in the August 2004 primary election.
Moreover, Plaintiffs "will suffer [harm] in the form of inadequate treatment and conditions with every passing day of noncompliance with the [Court’s] decree." Wyatt at 691. The harm to Plaintiffs is ongoing. Every day they are relegated to second class status in Duval County’s election system they are harmed. As in Wyatt, this "court [should] refuse[] to prolong this harm any longer than necessary." Id.
Finally, a stay would "disempower the court to address emergency matters that have and might arise ....The plaintiffs’ inability to obtain judicial relief in such matters would result in substantial harm." /d. at 692. Defendant Stafford is required to submit a plan for compliance with the Court’s judgment by April 12, 2004. There is no basis for staying this requirement (see n. 1, supra), and if history tells us anything, there will need to be court intervention to supervise both Defendant Stafford’s approach to and implementation of this plan. Further, the August 2004 primary election is approaching, and the procedural delays in obtaining relief as issues arise if a stay is granted could be tantamount to denying Plaintiffs’ rights altogether in the primary.
D. Defendant Stafford Presents No Legally Cognizable Case of Substantial Injury If the Stay is Denied.
Defendant Stafford must make a showing that he will be substantially injured in the absence of a stay. He has failed to make this requisite showing.
First, Defendant Stafford argues that the Court’s judgment constitutes a "judiciallycompelled alteration to an existing voting system" (Motion For Stay at 10), and thus harm will result if a stay is not granted. He cites no authority for this proposition. Even if he did (or could), Defendant Stafford has only himself to blame. Once again, he alone purchased an entirely new inaccessible voting system at a time when accessible systems were certified and available for immediate purchase in the State of Florida. It is utter nonsense to argue that ordering
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Case 3:01-cv-01275-HLA-HTS Document 222 Filed 04/12/2004 Page 10 of 14
Defendant Stafford to "alter" a voting system that exists only because he inexcusably violated the law constitutes irreparable harm.
Second, Defendant Stafford argues that taxpayer dollars will be wasted and administrative burden will flow if the Court’s judgment is not stayed. (Motion For Stay at 11.) Even if true (which it is not), such an alleged burden was caused by Defendant Stafford himself. Taxpayers’ dollars were wasted when he alone purchased an inaccessible voting system and elected to engage in a two year court battle to evade his duties under the ADA.
Further, "the mere administrative inconvenience ... Florida elections officials will face ... simply cannot justify denial of Plaintiffs’ fundamental rights" in the voting process. Johnson, 926 F. Supp. at 1542 (citing Goldberg v. Kelly, 397 U.S. 254, 266, 90 S. Ct. 1011, 1019 (1970)). In this regard, the "financial burdens of litigation on their own do not necessarily amount to ’irreparable harm’ favoring a stay." Wyatt, 190 F.R.D. at 691. All that Defendant Stafford points to in support of his claim of irreparable harm falls into the category of quantifiable administrative and related expense. This does not constitute substantial injury - even if the alleged injury did
6 not flow exclusively from Defendant Stafford’s unilateral actions in violation of the ADA.
Third, asserting his familiar argument, Defendant Stafford argues that he will be irreparably harmed because HAVA will "instantaneously antiquate" his preferred Diebold touch screen voting system. (Motion For stay at 12.) This argument was rejected by the Court in its August 18, 2003 and March 24, 2004 rulings. Moreover, at the January 14, 2004 hearing, the Court admitted into evidence the United States Department of Justice’s pronouncement on this issue, which provides "although HAVA’s voting system requirements do not go into effect until January 1, 2006, we encourage all jurisdictions to implement the requirements of Section 301 of
6
Defendant Stafford’s reliance on Garcia-Mir is misplaced. (Motion For Stay at 11.) He suggests that the court’s finding in that case that "the not inconsiderable burden of actually conducting these [immigration] hearings" is the same as requiring him to comply with the ADA. To the contrary, here, the election will be conducted regardless of whether the Court’ s order is stayed. Different from the order in Garcia-Mir, this Court’s judgment affects the method of the election not whether it will take place at all.
-10-

Case 3:01-cv-01275-HLA-HTS Document 222 Filed 04/12/2004 Page 11 of 14
HAVA as soon as practicable, particular the disability provision, to help ensure that disabled voters are able to fully participate in the election process to the maximum extent feasible ... [t]his will ensure that disabled voters are provided access as soon as possible." (1/14/04 Hrg. Tr. PI. Ex. A.) This should put an end to this red herring.
Fourth, Defendant Stafford argues that the Court’s judgment calls for the "technologically impossible" blending of two vendors’ systems. (Motion For Stay at 12.) Two pages later in his motion he admits that other jurisdictions in the United States have successfully blended systems. (Id. at 14.) Next, he argues that it is not impossible to blend voting systems at all, but that the true obstacle to blending is vendors’ unwillingness to cooperate with one another. (Id.) Moreover, the record is devoid of any evidence that Defendant Stafford ever investigated the possibility of blending systems. These conflicting and ambivalent positions expose the true merit (or lack thereof) of Defendant Stafford’s argument, and nothing more need be said.
Finally, Defendant Stafford concedes in his motion, just as he did at trial, that the true obstacle to him taking action is money. (Motion For Stay at 5; Trial Tr. Vol. 4, 157: 9-12.) Although belied by Duval County’s $1.2 billion annual budget, it is axiomatic that such a remedy at law is inconsistent with a finding of irreparable harm.
E. The Public Interest Mandates Denial of the Stay. Defendant Stafford fails to identify any interest of the public in having a stay granted. (Motion For Stay at 19-20). That is because the public interest overwhelmingly favors denial of the stay. As the Court held in Johnson: Finally, it is clear that the public interest is best served by denying the stay. In awarding or withholding immediate equitable relief, a court should consider the proximity of a forthcoming election ... and should correspondingly apply equitable principles. Johnson, 926 F. Supp. at 1543 (citing Reynolds v. Sims, 377 U.S. 533,585, 84 S. Ct. 1362, 1394 (1964)). Given the proximity of the August 2004 primary election, the imposition of a stay runs the real risk of resulting in the deprivation of the Plaintiffs’ fundamental rights in that election.
-11-

Case 3:01-cv-01275-HLA-HTS Document 222 Filed 04/12/2004 Page 12 of 14
In stark contrast, the record evidence is uncontroverted that Defendant Stafford can bring his conduct into compliance with the ADA by August 2004. (Plaintiffs’ Post Trial Brief at 24-25.)

IIIo

CONCLUSION

For all the reasons stated herein, Defendants Staffords’ motion for stay pending appeal

should be denied. Any other ruling would substantially jeopardize the Plaintiffs’ fundamental

rights in August 2004 primary election.

Respectfully submitted,

Dated: April 9, 2004

~ougla~Baldridge Trial Counsel Florida Bar No. 0708070 HOWREY SIMON ARNOLD & WHITE, LLP 1299 Pennsylvania Ave., N.W. Washington, D.C. 20004 (202) 783-0800
Elaine Gardner Co-Counsel Washington Lawyers’ Committee for Civil
Rights and Urban Affairs 11 Dupont Circle N.W., Suite 400 Washington, D.C. 20036 (202) 319-1000

-12-

Case 3:01-cv-01275-HLA-HTS Document 222 Filed 04/12/2004 Page 13 of 14 Of Counsel: Alan M. Wiseman Danielle R. Oddo Vincent E. Verrocchio Ari N. Rothman HOWREY SIMON ARNOLD & WHITE, LLP 1299 Pennsylvania Ave., N.W. Washington, D.C. 20004 (202) 783-0800 Attorneys for Plaintiffs
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Case 3:01-cv-01275-HLA-HTS Document 222 Filed 04/12/2004 Page 14 of 14
CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing Plaintiffs’ opposition to Defendant Stafford’s motion for stay pending appeal was served by facsimile this 9th day of April, 2004, upon the following:
Ernst D. Mueller, Esq. Scott D. Makar, Esq. Office of General Counsel 117 West Duval Street Suite 480 Jacksonville, FL 32202
4.
J. I~uglas ]~aldridge C) ’

 
 Case 3:01-cv-01275-HLA-HTS Document 290 Filed 08/17/07 Page 1 of 4 PageID 3509
FILED U.S. COURT OF APPEALS
ELEVENTH CI-RCUIT IN THE UNITED STATES COURT OF AP EALS
AUG 15 2007

FOR THE ELEVENTH CIRCUIT No. 04-11566

THOMAS K. KAHN CLERK

D.C. Docket No. 01-01275 CV-J-99HTS

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BETH BOWEN,

on behalf of themselves and others

similarly situated,

Plaintiffs-Appellees,

versus

GLENDA E. HOOD, Secretary of the State of Florida, et al.,

Defendants,

JOHN STAFFORD, as Supervisor of Elections in Duval County,

Defendant-Appellant.

Appeal from the United States District Court Middle District of Florida

Case 3:01-cv-01275-HLA-HTS Document 290 Filed 08/17/07 Page 2 of 4 PageID 3510
Before EDMONDSON, Chief Judge, and TJOFLAT and KRAVITCH, Circuit Judges. BY THE COURT:
On August 8, 2005, while retaining jurisdiction ofthe appeal, we remanded this case to the district court for the purpose of determining whether the appeal is moot. We directed the district court to answer two questions:
(1) Does the City of Jacksonville have a contract with Diebold Elections Systems to provide Duval County with enough disabled-compliant voting machines to place one in each voting precinct? (2) If the City does have a contract with Diebold, will the machines be in place and ready to use by the next election? The district court, on remand entered an order answering both questions in the affirmative. The plaintiffs thereafter filed comments with this court suggesting that the district court erred in its answer to the second question because the defendant would not have 285 disabled-compliant voting machines1 in place and ready to use by the "next election," to be held on October 4, 2005 in Atlantic Beach. The defendant has supplemented the record with an amended declaration in
1 Duval County has 285 voting precincts. The district court, in answering the first question, correctly held (and the plaintiffs admit) that the City of Jacksonville, i.e., Duval County, had a contract with Diebold to acquire 326 disabled-compliant voting machines.
2

Case 3:01-cv-01275-HLA-HTS Document 290 Filed 08/17/07 Page 3 of 4 PageID 3511

which he states, under oath, that his "office received a shipment of 326 disabled-

compliant voting units (Diebold AccuVote Tsx with audio component)" on

September 30, 2005, and that as ofNovember 17, 2005, each of the units had been

tested and were ready for use in upcoming elections. Given the district court's

response to the 1st question we posed and this amended declaration, we conclude

that the case is moot and therefore dismiss it.

DISMISSED.

ATr+MJ CGf.lY- Atte~t~
C*k, U.S. Court ot .~p~;e.(lis .A--o!N'!mth Circtrii'

3

Case 3:01-cv-01275-HLA-HTS Document 290 Filed 08/17/07 Page 4 of 4 PageID 3512

Thomas K. Kahn Clerk

United States Court of Appeals
Eleventh Circuit
56 Forsyth Street, N.W.
Atlanta, Georgia 30303

August 15, 2007

Sheryl L. Loesch Clerk, U.S. District Court 300 N HOGAN ST STE 9-150 JACKSONVILLE FL 32202-4271

Appeal Number: 04-11566-AA Case Style: American Association v. Glenda E. Hood District Court Number: 01-01275 CV-J-99HTS

For rules and forms visit www.call.uscourts.gov

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The enclosed certified copy of this Court's Order of Dismissal is issued as the mandate of this court. See 11th Cir. R. 41-4. Counsel and prose parties are advised that pursuant to 11th Cir. R. 27-2, "a motion to reconsider, vacate, or modify an order must be filed within 21 days of the entry of such order. No additional time shall be allowed for mailing."
The record on appeal will be returned to you at a later date.
The district court clerk is requested to acknowledge receipt on the copy of this letter enclosed to the clerk.

Sincerely, THOMAS K. KAHN, Clerk Reply To: Shirley M. Brown (404) 335-6170

Encl.

DIS-4 (3-2005)

 
 Case 3:01-cv-01275-HLA-HTS Document 315 Filed 10/04/07 Page 1 of 11 PageID 3757

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA JACKSONVILLE DIVISION
AMERICAN ASSOCIATION OF PEOPLE WITH DISABILITIES; DANIEL W. O’CONNOR; KENT BELL; and BETH BOWEN,
Plaintiffs, on behalf of themselves and others similarly situated,

vs.

CASE NO. 3:01-cv-1275-J-25 HTS

KURT S. BROWNING, as Secretary of State for the State of Florida; AMY TUCK, as Director, Division of Elections; JERRY HOLLAND, as Supervisor of Elections in Duval County, Florida,

Defendants. ___________________________________

MOTION TO VACATE AMENDED ORDER (DOC. 294) AND JUDGMENT (DOC. 295) ENTERED ON SEPTEMBER 20, 2007,
ORDER ENTERED ON MARCH 24, 2004 (DOC. 215), JUDGMENT ENTERED ON MARCH 26, 2004 (DOC. 216), FOR DISMISSAL OF CASE AND SUPPORTING MEMORANDUM

Defendant, Supervisor of Elections, Duval County, moves that the Order

entered by the District Court on March 24, 2004 (Doc. 215), the corresponding

Judgment entered on March 26, 2004 (Doc. 216), the Amended Order entered on

September 20, 2007 (Doc. 294), and the corresponding Judgment entered on

September 20, 2007 (Doc. 295), all be vacated, and that the case be dismissed. The

Case 3:01-cv-01275-HLA-HTS Document 315 Filed 10/04/07 Page 2 of 11 PageID 3758
grounds for this motion are that the Court of Appeals declared that the “case” (not the
“appeal”) is moot. Accordingly, the judgments and related operative orders must be
vacated and the case dismissed. A memorandum in support of this Motion follows
below.
WHEREFORE, it is requested that this Motion be granted.
Respectfully submitted,
RICHARD A. MULLANEY GENERAL COUNSEL
s/ Ernst D. Mueller Ernst D. Mueller Deputy General Counsel Florida Bar No. 164027 Office of General Counsel 117 West Duval Street, Suite 480 Jacksonville, FL 32202 (904) 630-1871 (Telephone) (904) 630-1316 (Facsimile) Attorneys for Defendant, Holland EMueller@coj.net
MEMORANDUM IN SUPPORT OF MOTION TO VACATE AND DISMISS
A. Procedural Background-District Court
A Notice of Appeal was filed in this case on March 31, 2004. Appealed via
that Notice were the Court’s March 24, 2004 Order (Doc. 215), its March 26, 2004
Judgment (Doc. 216) and two earlier orders (Doc. 42 and Doc. 124). The appeal was
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interlocutory because a final judgment had not been entered with respect to the State defendants (now Defendants Browning and Tuck). See Fed.R.Civ.P. 54(b); Williams v. Bishop, 732 F.2d 885, 885-886 (11th Cir. 1984); Pitney Bowes, Inc. v. Mestre, 701 F.2d 1365, 1368-1369 (11th Cir. ), cert. denied 464 U.S. 893 (1983). For this reason the Court of Appeals disallowed the appeal of the two earlier non-injunctive orders, Documents 42 and 124, and dismissed the appeal of these orders. See Court of Appeals Order attached hereto as Exhibit A.
Significantly, the two orders dismissed from the appeal were not orders that were dispositive of the case on the merits. Document 42 was an order that granted a motion to dismiss the Complaint, but permitted the filing of an Amended Complaint (See Doc. 42, pp. 37-39). Document 124 denied a motion to dismiss or, in the alternative, for summary judgment. They were not orders that constituted dispositive rulings on the merits which made the Plaintiff a prevailing party. In contrast, the order and judgment on which the appeal proceeded, Documents 215 and 216, were the initial and only determinations that a violation of law (a federal regulation) had occurred and mandated injunctive relief to correct same. See Doc. 215, pp. 20, 30-31; Doc. 216. It was with respect to these documents that the Court of Appeals ruled the case is moot.
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B. Court of Appeals Order A copy of the Court of Appeals order entered in this case on August 15, 2007, is attached hereto as Exhibit B. In the order the Court summarily reviewed the record to determine whether the Supervisor of Elections had complied with HAVA (Help American Vote Act), 42 U.S.C. § § 15301-15545, not the District Court’s injunctive decree and judgment (Docs. 215, 216). This is evident because the Court concerned itself with whether the Supervisor of Elections was installing disabled- compliant voting machines in all of the City’s 285 voting precincts, not just the one (1) in five (5) precincts which had been mandated by District Court (See Doc. 216), which would have required that only 57 disabled-compliant voting machines be installed. See Exhibit B, page 1. To place the foregoing in context, it is important for this Court to be aware that the Supervisor of Elections had argued to the Court of Appeals (as he had previously to the District Court), that the action was rendered moot by HAVA, which had become law on October 29, 2002, which mandated by statute the precise relief Plaintiffs sought. See Excerpt from Initial Brief of Appellants’ Stafford, filed May 12, 2004, attached hereto as Exhibit C. The Supervisor of Elections had pointed out in the District Court that he was complying with HAVA irrespective of this litigation,
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because HAVA so required. 1 The Court of Appeals in its order satisfied itself that the Duval Supervisor of
Elections would in fact have one disabled-compliant for each precinct, as required by HAVA, and declared, based on this finding: “we conclude that the case is moot and therefore dismiss it.” See Exhibit B, page 2. Significantly, the Court said “dismiss it”, referring to “the case”; nowhere in this sentence did it refer to “the appeal”. Obviously the Court of Appeals can and does distinguish between the words “appeal” and “case” when it wishes to, because it did so in the first sentence of its order, in which both words were used. See Exhibit B, page 1. Thus, it can and should be assumed that when the Court used the word “case” in the key sentence of its order, declaring that the case is moot, that it meant the “case”, not the “appeal”.
While it is perhaps more conventional for the Court of Appeals to remand a case to the District Court after a finding of mootness, with directions to dismiss, there can be no doubt that the Court of Appeals has the authority to dismiss a case itself, as it has done here. Accordingly, the District Court must regard this case as being dismissed.
In summary, Court of Appeals order declared the case moot and dismissed the
1 The Supervisor had also argued that the federal regulation at issue, 28 C.F.R. 35.151(b), was inapplicable to voting machinery and, even if it were applicable, that is was preempted by HAVA.
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case. Accordingly, the District Court can take no action in the case unless it is to facilitate the ordered dismissal.
C. The Applicable Law It is very clear that the law requires vacating of the judgment or judgments entered in and dismissal of a case determined to be moot. This requested action is thoroughly justified under applicable case law. In United States v. Munsingwear, Inc., 340 U.S. 36, 39, 71 S.Ct. 104, 106, 95 L.Ed 36 (1950), the Supreme Court stated: “The established practice of the Court in dealing with a civil case . . . which has become moot while on its way here or pending our decision on the merits is to reverse or vacate the judgment below and remand with a direction to dismiss.” The identical practice has been followed in the Eleventh Circuit:
In this circuit, when a case becomes moot after the panel publishes its decision but before the mandate issues, we dismiss the appeal, vacate the district court’s judgment, and remand to the district court with instructions to dismiss the case. IAL Aircraft Holding, Inc. v. Federal Aviation Administration, 216 F.3d 1304, 1305 (11th Cir. 2000). To the same effect, see National Advertising Co. v. City of Miami, 402 F3d 1329, 1335 (11th Circ. 2005); Troiano v. Supervisor of Elections, 382 F3d 1276, 1382 (11th. Cir. 2004). The Troiano case is particularly compelling because it involves issues almost
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identical to those in this case. The Supervisor of Elections in Palm Beach County, Florida, was sued for not having yet provided audio components which allowed certain disabled voters to vote without receiving assistance. 382 F.3d at 1285. AS in the case of the Supervisor of Elections in Duval County in this case, her delay in installing the audio voting equipment was caused by the State of Florida’s failure to timely certify the voting machines for which she had contracted. Id. The district court ruled that the case was moot because the Supervisor intended to continue making the audio equipment available in each precinct as required by law. Id.
The Court of Appeals affirmed the Troiano decision and provided a detailed analysis of the applicability of the mootness doctrine in cases of this nature, concluding with the following:
In short, this Court has consistently held that a challenge to a government policy that has been unambiguously terminated will be moot in the absence of some reasonable basis to believe that the policy will be reinstated if the suit is terminated. In the absence of any such evidence, there is simply no point in allowing the suit to continue and we lack to [sic] power to allow it to do so. 382 F.3d at 385. This Court knows very well that disabled-compliant voting machines have been available in Duval County in every election at every precinct where there was voting since late 2005, prior to the required compliance date established by HAVA, and that this will continue to be the case. If the Troiano case
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was moot, as it was, then this case is also moot. This Court should so determine on its own initiative if it is reluctant to accept the determination of the Court of Appeals that this is the case. Because the case is moot, this Court is without authority or power to continue issuing orders in this case that relate to the merits of the case. 382 F.3d at 385.
Conclusion The mootness of the case has rendered it non-justiciable. This works not only to the detriment of the Plaintiff, but also to the detriment of the Defendant, who in this case was deprived of a ruling on the merits by the Court of Appeals with respect to the District Court’s prior determination in document 215 that a Department of Justice regulation somehow transcended HAVA’s applicability to the facts in this case. The Supervisor of Elections believes this ruling would necessarily have been reversed by the Court of Appeals if the Court had addressed this issue on the merits, which would have been absolutely necessary had the case not been declared moot, because an injunctive order was involved. When a party is denied appellate review on the merits of an adverse decision because of a determination that a case is moot as here, obviously it is not just for any Court to tax costs, award attorney’s fees, and render other rulings relating to the merits of the case. By analogy, this situation is comparable to the instances in which
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a convicted criminal defendant dies while his case is on appeal. When this occurs,
this Court vacates the criminal judgment because there has been an absence of
appellate review on the merits. For the same policy reasons, that is the just result
here, and must occur pursuant to the law of mootness.
Finally, there is no legally correct way the Court of Appeals can determine that
this case is moot on its merits, and that this Court can continue to proceed as if that
hadn’t occurred. If nothing else, the Court of Appeals decision constitutes the law
of the case, and must be followed, unless reversed by a higher court.
For all the foregoing reasons it is requested that this Motion be granted.
Respectfully submitted,
RICHARD A. MULLANEY GENERAL COUNSEL s/ Ernst D. Mueller Ernst D. Mueller Deputy General Counsel Florida Bar No. 164027 Office of General Counsel 117 West Duval Street, Suite 480 Jacksonville, FL 32202 (904) 630-1871 (Telephone) (904) 630-1316 (Facsimile) Attorneys for Defendant, Holland Emueller@coj.net
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Request for Oral Argument
The undersigned requests that the Court schedule oral argument on this Motion
if the Court believes it will aid the Court in resolving this Motion.
s/ Ernst D. Mueller Ernst D. Mueller Deputy General Counsel
Local Rule 3.01(g) Certificate
The undersigned hereby certifies that he has conferred with opposing counsel,
Sasha Dimitroff, Esquire, concerning this Motion, and that Mr. Dimitroff, on behalf
of his client, opposes the granting of same.
s/ Ernst D. Mueller Ernst D. Mueller Deputy General Counsel
CERTIFICATE OF SERVICE
I hereby certify that on October 4, 2007, I electronically filed the foregoing with the Clerk of the Court by using the CM/ECF system which will send a notice of electronic filing to the following:
M. Scott Thomas, Esquire Gregory A. Lawrence, Esquire 1301 Riverplace Blvd., Suite 1630 Jacksonville, FL 32202 greg@lawyers-jacksonville.com
Ari N. Rothman, Esquire, (anrothman@venable.com), Venable LLP 575 7th Street NW Washington, DC 20004
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George Lee Waas (george_waas@oag.state.fl.us) Attorney General’s Office The Capitol, Suite PL-01 Tallahassee, FL 32399-1050
I further certify that I provided the foregoing document via e-mail transmission to:
Sashe D. Dimitroff, Esquire; Heather M. Khassian, Esquire; Kevin A. Keeling, Esquire, HOWREY LLP, 1111 Louisiana, 25th Floor, Houston, Texas 77002 sashe.dimitroff@howrey.com khassianh@howrey.com keelingk@howrey.com
I further certify that I mailed the foregoing document and the notice of electronic filing by first-class mail to the following non-CM/ECF participants:
Elizabeth Elaine Gardner Lois G. Williams Washington Lawyers’ Committee for Civil Rights and Urban Affairs 11 Dupont Cr. N.W., Suite 400 Washington, DC 20036
s/ Ernst D. Mueller Ernst D. Mueller Deputy General Counsel Florida Bar No. 164027 Office of General Counsel 117 West Duval Street, Suite 480 Jacksonville, FL 32202 (904) 630-1871 (Telephone) (904) 630-1316 (Facsimile) Attorneys for Defendant, Holland Emueller@coj.net
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 Case 3:01-cv-01275-HLA-HTS Document 325 Filed 10/22/07 Page 1 of 14 PageID 3823

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION

)

AMERICAN ASSOCIATION OF PEOPLE

)

WITH DISABILITIES, eta!.,

)

)

Plaintiffs,

)

)

v.

)

)

KURT S. BROWNING, eta!.,

)

)

__________D__ef_en_d_a_nt_s._______________))

Case No: 3:01-cv-1275-JAdams/HTS

PLAINTIFFS' OPPOSITION TO MOTION TO VACATE DOCKET NUMBERS 294,295,215, AND 216 AND
OPPOSITION TO MOTION FOR DISMISSAL OF THE CASE Plaintiffs, American Association of People with Disabilities, Daniel O'Connor, Kent Bell, and Beth Bowen (collectively "AAPD"), submit the following memorandum of law in opposition to Defendant Jerry Holland's, Supervisor of Elections in Duval County, Florida ("Defendant"), Motion to Vacate Amended Order (Doc. 294) and Judgment (Doc. 295) Entered on September 20, 2007, Order Entered on March 24, 2006 (Doc. 215), Judgment Entered on March 26, 2004 (Doc. 216), for Dismissal of Case and Supporting Memorandum ("Motion to Vacate"). AAPD also opposes Defendant's request for oral argument on his Motion to Vacate. The facts of this case are not complicated and this Court has already determined many of the legal issues. Thus, there is no need for oral argument because the parties can adequately brief the remaining issues. Defendant's Motion to Vacate is yet another in the series of attempts before this Court and the Eleventh Circuit to sidestep the final judgment entered by this Court and to delay

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payment of the AAPD's attorneys' fees and expenses that are authorized by the Americans
with Disabilities Act (the "ADA"). See 42 U.S.C. §12205. This Motion to Vacate is among
Defendant's five attempts! to stall the current proceedings since the Eleventh Circuit
dismissed Defendant's interlocutory appeal. Even since filing this current Motion to Vacate, Defendant filed a Notice of Appeal as to the Septemb<~r 20, 2007 Amended Order and Judgment, seeking review of all matters that came before this Court. See Dkt. 324. The only
issue that the current notice of appeal cannot cover is AAPD's attorneys' fees, costs and
expenses, which will only become ripe after this Court rules on the issue In order to avoid
yet a third appeal and avoid further delay in finishing this nearly seven-year-old case, this
Court should award AAPD its fees, expenses and costs in order to properly place all
potentially appealable matters before the Eleventh Circuit at once so that it may resolve all
remaining issues in this matter once and for all.
In his Motion to Vacate, the Defendant relies on four arguments, none of which
should sway the Court from its current, proper path in resolving the remaining issues of fees and costs:
• First, the Defendant attempts to vacate this Court's judgment that Defendant violated the ADA by claiming that the Help Americans Vote Act ("HAVA") somehow supersedes or limits the application of the ADA. Yet the Defendant's position is unsupported by the law or the facts because (1) HAVA expressly states that it does not supersede or limit the application of the ADA and (2) neither the Eleventh Circuit nor this Court relied on HAVA. The Defendant's current motion is simply a transparent attempt to avoid paying AAPD's attorneys' fees, expenses and costs that are awarded to the prevailing party under the ADA.

1 Defendant's recent attempts to delay include Defendant's Motion to the Eleventh Circuit Requesting Addition of Directions (filed 8 weeks ago); Defendant's Supplement to Motion Requesting Addition of Directions (filed 3!/z weeks ago); Defendant's Motion to Stay Further Action Until the Court of Appeals Enters Final Order (Dkt. 297) (filed 4 weeks ago); the current Motion to Vacate (Dkt. 315) (filed 2Y2 weeks ago); and Defendant's Notice of Appeal as to the September 20, 2007 Amended Order and Judgment (Dkt. 324) (filed 3 days ago).

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• Second, the Defendant improperly argues that more than the appealable interlocutory orders (i.e., the injunctive relief) were before the Eleventh Circuit. In fact, the Defendant's current position directly contradicts the facts and his prior position in opposing AAPD's attempt to seek Rule 54(b) certification when he opposed AAPD's attempt to bring all matters before the Eleventh Circuit.2

• Third, the Defendant characterizes the Eleventh Circuit's dismissal of its interlocutory appeal as holding that HAVA moots this case without citation to, or support from, the Eleventh Circuit.

• Fourth, the Defendant relies on case law that is neither controlling nor persuasive here. 3

Defendant's Motion to Vacate should be denied because it is an improper attempt to avoid

judgment and to delay the conclusion of these proceedings.

I.

Background

AAPD sued the Defendant in this Court on November 8, 2001, nearly a year before

HAVA was enacted,4 to remedy the Defendant's discriminatory practices against them by

failing to provide voting machines accessible to disabled voters. Dkt. 1. The Defendant

discriminated against disabled voters before AAPD filed this suit and continued to do so until

well after AAPD won a declaratory judgment. See Dkt. 290. Specifically, this Court held a

bench trial from September 23, 2003 to October 1, 2003 and entered its Findings of Fact and

Conclusions of Law on March 24, 2004. Dkt. 215. On March 26, 2004, this Court entered a

declaratory judgmentS in which:

2 "Defendant/Appellant responds by asserting that there is no need for Rule 54(b) certification in light of the exception to Rule 54 in cases involving injunctive relief and the appeal provisions of 28 U.S.C. §1292(a)(l)." Dkt. 241 (April 28, 2004 Order denying AAPD's request for Rule 54(b) Certification), pp. 1-2.
3 As discussed in more detail below, the Defendant principally relies on Troiano v. Supervisor of Elections, 382 F.3d 1276 (II th Cir. 2004).
4 HAVA was enacted as Public Law 107-252 on October 29, 2002.
5 This Court subsequently clarified that the March 26, 2004 Declaratory Judgment is now considered a final judgment against the Defendant. Dkt. 294.

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1. It held that the Defendant violated 28 C.F.R. §35.151 (b) ("Ruling 1");
2. It directed the Defendant to have at least one voting machine accessible to disabled voters (without assistance) at 20% of the polling places in Duval County, Florida ("Ruling 2"); and
3. It required the Defendant to have Diebold touch screen voting machines with audio capacity certified on or before May 14, 2007 ("Ruling 3"). Dkt. 216.
On May 31, 2004, the Defendant appealed the Declaratory Judgment and other orders to the Eleventh Circuit. Dkt. 217. Importantly, the Defendant appealed no final rulings, and no rulings were certified as final for appeal under Rule 54(b). The Eleventh Circuit questioned its jurisdiction over the appeal, asking whether all claims against all parties had been resolved, making the case ready for appeal. See Dkt. 239, Exh. A (letter from Eleventh Circuit questioning appellate jurisdiction). This question of appellate jurisdiction arose because the Defendant appealed non-injunctive rulings without a certification under Rule 54(b).
On April 28, 2004, AAPD sought an emergency Rule 54(b) certification from this Court which the Defendant opposed. Dkt. 239. Specifically, the Defendant stated that the March 24 and 26, 2004 Order and Judgment "are clearly injunctive orders which may be appealed pursuant to 28 U.S.C. § 1292(a)(l)." Dkt. 240, p. 1. Shortly thereafter, on June 24, 2004, the Eleventh Circuit ordered the appeal to proceed under 28 U.S.C. § 1292 (a)(l) with respect to this Court's March 24 and 26, 2004 Order and Judgment. The Eleventh Circuit did not allow the appeal of this Court's non-injunctive Ruling 1 that the Defendant violated 28 C.F.R. § 35.15l(b). See Dkt. 254.
Despite opposing AAPD's motion for Rule 54(b) certification, Defendant sought review of the scope of the appellate jurisdiction on July 7, 2004. Exh. A. The Eleventh Circuit declined to review its jurisdiction without comment. See Exh. B.

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On April 16, 2004, while the Eleventh Circuit wrangled with its jurisdiction, this
Court reluctantly stayed the injunction. Dkt. 232, p. 4. The Court also stated:
The court takes issue with Defendant's repeated reference to the uncertified voting machines and the implication that he was an innocent bystander during the acquisition process for those machines. Defendant Stafford is solely responsible for having selected and purchased machines that had not yet been certified when other machines with similar capabilities had been certified by the State of Florida.
Dkt. 232, p. 3, fn. 1.
This Court dissolved the stay of injunctive relief on September 28, 2004 (Dkt. 267) in
response to AAPD's request (Dkt. 255) that sought accessible voting machines for the
November 2004 elections. The Defendant received emergency relief from the Eleventh
Circuit in the form of a stay pending appeal. Dkt. 275. Yet the Defendant's compliance with
this Court's judgment - which he began even before he filed the interlocutory appeal and
completed during its pendancy -mooted the interlocutory appeal. For example, the
Defendant filed several reports with this Court reporting the steps he was taking to comply
with the judgment. In each report, the Defendant specifically admitted that he was taking
these steps pursuant to this Court's orders and never once mentioned HAVA:
• April 12, 2004 - the Defendant filed a plan with this Court to comply with the injunctive relief granted by the Court in Ruling 2 (that is, for placing accessible machines in 20% of the voting districts). Dkt. 227. In the plan, the Defendant, specifically stated that "(p]ursuant to the Court's order dated March 24, 2006[sic] and final judgment dated March 26, 2004, Supervisor John Stafford provides this Report ..."
Dkt. 227, p. 1 (emphasis added).
• May 14, 2004 - the Defendant filed with this Court a report indicating that he would comply with Ruling 3 of the Declaratory Judgment issued by the Court (that is, that the Diebold touch screen voting machines with audio capacity were certified) and admitted that "Defendants [Hood and Kast in their respective official capacities], by

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undersigned counsel and pursuant to the Court's (March 24, 2004] Order, hereby submit this final report to the court ... "
Dkt. 248, p. 1 (emphasis added). Thus, by May 14, 2004, less than two months after the
Court entered its Declaratory Judgment and before the El,eventh Circuit could consider the
appeal, the Defendant had complied with nearly all aspt~cts of the Declaratory Judgment
except for purchasing and deploying the required accessible voting machines.
By September 30, 2004, after AAPD filed additional motions and briefing to this
Court, it obtained the final relief that it won in the Declaratory Judgment. The parties
submitted an agreement that the Defendant would adopt and fulfill the plan it filed on
April 12, 2004 (with only minor changes). Dkt. 268. The Court adopted the agreement by its
Order dated October 4, 2004. Dkt 271. In the agreement, the Defendant admitted that he was
complying with the Declaratory Judgment that this Court awarded to AAPD:
In light of this Court's September 28, 2004, ruling lifting the stay pending appeal, and this Court's March 24, 2004, Order, Plaintiffs and Defendant John Stafford ("Defendant") hereby move this Court to adopt the [April 12, 2004 plan] ... by requiring Defendant to install the machines at the precincts identified ...
Dkt. 268, p. 1 (emphasis added). The appeal subsequently progressed as follows:
• January 26, 2005- the Eleventh Circuit heard oral argument in this case.
• August 8, 2005 - over six months after oral argument and after the Defendant complied with nearly the entire Declaratory Judgment, the Eleventh Circuit certified two questions to the District Court: (1) whether a contract was in place for purchasing enough accessible voting machines to place one in each voting district, and (2) whether the accessible voting machines would be in place for the subsequent election. Dkt. 282, p. 5-6. The Eleventh Circuit specifically stated that if the Defendant met these two conditions, then "this cast~ is moot because any order by this court would have no effect on the [Defendant's] actions."6 Dkt. 282, p. 5.

6 Although the Eleventh Circuit was aware that Defendant raised the issue ofHAVA and Local Ordinances, the only issue it was concerned with was "whether the machines will in fact be in place for the next election." See

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Importantly, the Eleventh Circuit did not address or cite HAVA in its decision to certifY its questions to this Court or to dismiss the appeal.
• August 22, 2005 - this Court held an evidentiary hearing regarding Defendant's compliance with the remaining portion of the interlocutory orders. See Dkt. 285. One day later, this Court answered both of the Eleventh Circuit's questions in the affirmative. Dkt. 285. This Court properly did not address or mention HAVA. See Dkt. 285.
• August 15, 2007 - two years after the Court answered the certified questions, the Eleventh Circuit recognized that the Defendant received accessible voting machines and deployed them by November 17, 2005. Dkt. 290. In its Order, the Eleventh Circuit made no mention of HAVA. See Dkt. 290.
Simply put, after November 17, 2005, there was nothing left for the Eleventh Circuit to
decide. Since the Defendant complied with all portions of this Court's Order and Judgment, the Eleventh Circuit dismissed the interlocutory appeal as moot. Dkt. 290, p. 3. Importantly,
the Eleventh Circuit did not dismiss the appeal because it found AAPD had no valid cause of
action, that this Court committed any error, or that the Defendant complied with HAVA (or any other regulation) -to the contrary, it simply had nothing to resolve since the answers to
its certified questions revealed that AAPD had obtained all of the injunctive relief won in the
Declaratory Judgment.
With the interlocutory appeal over, this Court properly clarified that the judgments in
this case were final and entered an Order on September 20, 2007 as well as a Final Judgment.
Dkts. 294 and 295. It also permitted the parties to file their post-trial motions such as
applications for costs and fees. Dkt. 294, p. 5. The State of Florida and AAPD have properly
proceeded to comply with the Court's directives. The Defendant has filed numerous
pleadings in this Court and the Eleventh Circuit attempting to delay the resolution of this

Dkt. 282, p. 5. The Court of Appeals made it clear that once the Defendant provided accessible voting machines, "this case is moot because any order by this court would have no effect on the City's action." !d. In other words, HAVA had no role in making this case moot- only the Defendant's voluntary compliance did.

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case. This Court should reject such tactics and bring this six-year old case to conclusion by

ordering the Defendant to pay the fees, costs and expenses that the ADA allows.

II.

HAVA Does Not Trump the ADA

On its face, HAVA explicitly provides that "nothing in this Act may be construed to

... supersede, restrict, or limit the application of .... The Americans With Disabilities Act of

1990 (42 U.S.C. §§ 12101, et seq.)." 42 U.S.C. § 15545(a)(5) (2002). This Court has also

already ruled that HAVA does not render this case moot because "HAVA makes clear that it

is not to be construed as superseding or limiting the application of the ADA ...." See

Dkt. 215, p. 28 n. 10; Dkt. 124, p. 20 n. 9. The Defendant's argument in its Motion to Vacate

implies the contrary and ignores the plain language of the statute and this Court's prior ruling.

See Dkt. 315. The Defendant even admitted at trial that it is "not suggesting that [its] plans

under HAVA somehow excuse [it] from complying with the Americans With Disabilities

Act." Dkt. 169, pp. 73:24-74:2. Simply put, AAPD brought this suit under the ADA, not

under HAVA. Defendants Motion to Vacate thus contradicts the language of HAVA as well

as the Defendant's own admission to this Court.

Also, since HAVA's provisions do not excuse Defendant's violations of the ADA,

Defendant's allegation that the Eleventh Circuit "reviewed the record to determine whether

the [Defendant] had complied with HAVA" is irrelevant. See Dkt. 315, p. 4. The fact that

HAVA was enacted after AAPD filed suit is irrelevant because HAVA' s statutory language

makes it clear that it does not supersede or limit AAPD's cause of action under the ADA.

42 U.S.C. § 15545(a)(5). In sum, HAVA cannot nullify AAPD's victory under the ADA as a

matter of law. The Court should reject the Defendant's transparent attempts to delay the

award of AAPD attorneys' fees, expenses, and non-taxable costs under 42 U.S.C. § 12205.

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III.

The Eleventh Circuit Only Dismissed The Injunctive Relief Before It

The Eleventh Circuit only dismissed the interlocutory appeal of the injunctive issues

before it and nothing else. And the only reason the Eleventh Circuit dismissed the

interlocutory appeal was because the Defendant's compliance with this Court's order and

judgment left no issues on appeal for the Eleventh Circuit to consider. Nothing more was

before the Eleventh Circuit. This Court properly interpreted the Eleventh Circuit's Order and

mandate and proceeded to final judgment and post-trial motions.

A. The Defendant Helped Ensure that the Eleventh Circuit Only Had Jurisdiction Over the Injunctive Relief
Defendant asserts that its appeal was only dismissed as to the prior rulings, Docket Numbers 42 and 124, while all parts of this Court's March 24 and 26, 2004 Order and Judgment were before the Eleventh Circuit. See Dkt. 315, p. 3. Defendant's claim is not only wrong, but it flatly contradicts his previous position to this Court. Specifically, in opposing AAPD's emergency motion for a Rule 54(b) certification, the Defendant indicated that the March 24 and 26, 2004 Order and Judgment "are clearly injunctive orders which may be appealed pursuant to 28 U.S.C. § 1292(a)(l)." Dkt. 240, p. 1. This Court agreed with Defendant and restated the injunctive relief granted in the March 24 and 26, 2004 Order and Judgment. Dkt. 241. Thus, Defendant clearly knew as early as 2004 that the injunctive relief issues were all that that was before the Eleventh Circuit.
Significantly, the Defendant opposed the opportunity to ensure that all parts of this Court's March 24 and 26, 2004 Order and Judgment were properly before the Eleventh Circuit through a Rule 54(b) certification. See Dkt. 240. The Court acknowledged Defendant's opposition and declined to provide a Rule 54(b) certification. See Dkt. 241. The Eleventh Circuit, in tum, limited the appeal solely to a review of this Court's injunctive relief orders. See Dkt. 254.

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Case 3:01-cv-01275-HLA-HTS Document 325 Filed 10/22/07 Page 10 of 14 PageID 3832

B. This Court Properly Interpreted the Order From the Eleventh Circuit
The Defendant claims that there can be no doubt that the Eleventh Circuit may

dismiss the entire case. See Dkt. 315, p. 5. This might be correct if the entire case was

before the Eleventh Circuit, but it is simply wrong where only portions of the judgment were

appealed. See Pitney Bowes, Inc. v. Mestre, 701 F.2d 1365, 1375 (11th Cir. 1983) ("Where

the appellant notices the appeal of a specified judgment or a part thereof, however, this court

has no jurisdiction to review other judgments or issues ... "). Here, the Eleventh Circuit made

specific, contested findings of jurisdiction. See Dkt. 254; Exhs. A, B, and C. It found that it

only had jurisdiction over the injunctive relief and assumed jurisdiction only as to those

issues. Pitney Bowes, 701 F.2d at 1375. The remainder of the jurisdiction for this case

remained with the District Court. !d. It is now too late for the Defendant to seek to undo its

opposition to the Rule 54(b) certification or seek retroactive certification.

IV.

Defendant's Statement that the Eleventh Circuit Relied on HAVA is

Unjustified

Defendant claims that the Eleventh Circuit relied upon the Defendant's compliance

with HAVA in rendering this action moot. See Dkt. 315, p. 4. Despite the Defendant's

current reliance on HAVA, when the Eleventh Circuit certified its two questions to the

District Court, it did not rely upon HAVA, only on the Defendant's actions mooting the relief

granted. See Dkt. 282. Recognizing the issue presented by the Eleventh Circuit, when this

Court answered both of the Eleventh Circuit's questions, it similarly did not rely on HAVA

and, in fact, did not even mention HAYA. See Dkt. 285. Finally, once the Eleventh Circuit

dismissed the injunctive relief on August 15, 2007, the Eleventh Circuit did not rely upon or

even mention HAVA. See Dkt. 290.

Most telling is that the Defendant did not mention or rely on HAVA when it complied with this Court's order and judgment. Specifically, in 2004, the Defendant filed a number of

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Case 3:01-cv-01275-HLA-HTS Document 325 Filed 10/22/07 Page 11 of 14 PageID 3833

reports with the Court? reporting its progress. In each report, the Defendant expressly

admitted that it was acting pursuant to this Court's order:~ and never once even mentioned

HAVA when doing so. 8 Since this case was brought before HAVA was enacted and is not

premised on HAVA or its requirements, Defendant's belat1;;:d attempt to interject HAVA into these proceedings is irrelevant. This is particularly true since HAVA required compliance by January 1, 2006 and the Defendant's discriminatory behavior all occurred before

November 17, 2005. See Dkt. 290.

The Defendant is wrong when he states that the Eleventh Circuit did not consider

whether the Defendant complied with the District Court's March 24 and 26, 2004 Order and

Judgment. See Dkt. 315, p. 4. Since HAVA does not supersede or limit the ADA and the Eleventh Circuit made no mention of HAVA, HAVA cannot be the basis for the Eleventh

Circuit's decision. See 42 U.S.C. § 15545(a)(5); Dkt. 282 and 290. To the contrary, the

appealed decision - the District Court's injunctive relief from the March 24 and 26, 2004

Order and Judgment- was the only thing properly before the Eleventh Circuit9 and the only reasonable items for the Eleventh Circuit to consider in reaching its decision.

V.

The Troiano Case is Neither Controlling Nor Persuasive in This Case

In its legal argument, the Defendant relies almost entirely on the Troiano case for

legal support of his position. See Dkt. 315, pp. 6-8; Troiano v. Supervisor of Elections,

382 F.3d 1276 (11th Cir. 2004). This reliance is unjustifit::d. Specifically, the actions ofthe

Palm Beach County Supervisor of Elections, the defendant in the Troiano case, are vastly

different from the actions of the Defendant. For example, the Troiano case was brought on

7 See pages 4 to 6, supra. 8 See pages 5 to 6, supra. 9 See pages 8 to 9, supra.

DM_US20832259_1

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Case 3:01-cv-01275-HLA-HTS Document 325 Filed 10/22/07 Page 12 of 14 PageID 3834

February 10, 2003, after HAVA was enacted, while this case was brought in November of

2001 under the ADA before HAVA's enactment. See Dkt. 1; Troiano, 382 F.3d at 1281; 42 U.S.C. §§ 12101, et seq. The Palm Beach County Supervisor of Elections provided accessible equipment in all voting precincts in two elections before she was sued. Troiano, 382 F.3d at 1281. In this case, the Defendant continued to discriminate and failed to provide accessible equipment until after the AAPD sued him, aft~;~r the case went to trial, after the

AAPD won a declaratory judgment that the Defendant violated the ADA and after this Court

ordered him to provide accessible equipment. In summary, the Troiano found the case was moot because the Supervisor of Elections ceased the discriminatory behavior before the plaintiff sued him. In this case, the Defendant failed to stop discriminative until after the

AAPD sued him for violating the ADA, not HAVA, and won a declaratory judgment.

VI.

Conclusion

This is the Defendant's fifth attempt since September to delay or avoid paying

AAPD's statutorily mandated attorney's fees, expenses and costs. This Court properly held that the judgment is final. All that remains is for the Court to rule on the post-trial motions

without further distractions from the Defendant. The Court should reject the Defendant's

attempts to delay and to confuse the issues by arguing compliance with inapplicable case law

and a statute that was never part of the case and, as a matter of law, does not excuse Defendant's violations of the ADA. Additionally, despite the Defendant's notice of appeal, AAPD respectfully requests that the Court rule on AAPD upcoming application for its fees, expenses and costs in order to place all potentially appealable issues before the Eleventh Circuit, thereby preventing future piecemeal appeals and further delay in concluding this nearly seven-year-old case. This continued pattern of delay by Defendant is unwarranted and Defendant's Motion to Vacate should be DENIED.

OM_ US:20832259 _I

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Case 3:01-cv-01275-HLA-HTS Document 325 Filed 10/22/07 Page 13 of 14 PageID 3835

Local Counsel: Of Counsel: Dated: October 22, 2007

Respectfi11ly submitted,
HOWRI~YLLP
s/Sashe D. Dimitroff SasheD. Dimitroff Texas Bar No. 00783970 Heather M. Khassian Texas Bar No. 24045902 Kevin A. Keeling Pennsylvania Bar No. 92075 1111 Louisiana, 25th Floor Houston, Texas 77002 (713) 787-1400 (phone) (713) 787-1440 (fax) E-Mail: sashe.dimitroff@howrey.com E-Mail: khassianh@howrey.com E-Mail: keelingk@howrey.com
M. Scott Thomas, Esq. Florida Bar No. 994898 Gregory A. Lawrence, Esq. Florida Bar No. 0007072 THOMAS & LAWRENCE, P.A. 1301 Riverplace Boulevard, Suite 1630 Jacksonville, Florida 32207 (904) 632-0077 (phone) (904) 632-0730 (fax) E-Mail: greg@lawyers-jacksonville.com
Elaine Gardner Robert Bruskin WASHINGTON LAWYERS' COMMITTEE FOR CIVIL RIGHTS AND URBAN AFFAIRS 11 DuPont Circle N.W., Suite 400 Washington, D.C. 20036 (202) 319-1000 (phone)
Attorneys for Plaintiffs

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Case 3:01-cv-01275-HLA-HTS Document 325 Filed 10/22/07 Page 14 of 14 PageID 3836
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on October 22, 2007, I electronically filed the foregoing
with the Clerk of the Court by using the CM/ECF system which will send a notice of
electronic filing to the following as well: Ernst D. Mueller, Esq., Office of General Counsel,
117 West Duval Street, Suite 480, Jacksonville, FL 32202, Attorneys for Defendant Jerry
Holland, George Lee Waas, Attorney General's Office for the State of Florida, Department of
Legal Affairs, The Capitol, Suite PL-01, Tallahassee, FL 32399-1050, Attorney for
Defendants Kurt S. Browning and Amy Tuck.
HOWREYLLP
s/Sashe D. Dimitroff SasheD. Dimitroff Texas Bar No. 00783970 Heather M. Khassian Texas Bar No. 24045902 Kevin A. Keeling Pennsylvania Bar No. 92075 HOWREYLLP 1111 Louisiana, 251h Floor Houston, Texas 77002 (713) 787-1400 (phone) (713) 787-1440 (fax) E-Mail: sashe.dimitroff@howrey.com E-Mail: khassianh@howrey.com E-Mail: keelingk@howrey.com Attorneys for Plaintiffs

DM _ US:20832259_I

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 Case 3:01-cv-01275-HLA-HTS Document 341 Filed 12/03/07 Page 1 of 4 PageID 4577

UNITED STATES DISTRICT COURT !\HOOLE DISTRICT OF FLORIDA JACKSONVILLE DIVISION

Al\IERICAN ASSOCIATION OF PEOPLE WITH DISABILITIES; DANIEL \V. O'CONNER; KENT BELL: and BETH 80\VEN.

Plaintiffs. on behalf of themselves and others similarly situated.

V.

CASE NO. 3:01-cv-1275-J-25HTS

KURT S. BROWNING, as Secretary of State for the State of Florida: A;\IY TUCK, as Director. Division of Elections: JERRY HOLLAND. as Supervisor of Elections in Duval County. Florida,

Defendants.

ORDER THIS CAUSE is bcfixe the Court on Defendants' Motion Requesting That the District Court Stay Further Action Until the Court of Appeals Enters Final Order in the Pending Interlocutory Appeal (Dkt. 293): Plaintiffs' opposition thereto (Dkt. 313): Defendant Holland's Motion to Vacate Amended Order and Judgment Entered on September 20,2007. Order Entered on March 24, 2004, Judgment Entered on March 26. 2004, and For Dismissal ofCase (Dkt. 315): Plaintiffs' opposition thereto (Dkt. 325): Defendants Brmvning and Tuck's Second Amended Motion for Taxation ofCosts (Dkt. 296): Plainti tTs · Motion for Taxation ofCosts (Dkt. 314): Defendant· s opposition thereto (Dkt. 329): Plaintiffs· Supplemental Motion for Attorneys' Fees. Costs, and Non-Taxable Litigation Expenses (Dkt. 330): and Unopposed Motion to Supplement (Dkt. 333). Upon due consideration, the Court tinds as follows:

Case 3:01-cv-01275-HLA-HTS Document 341 Filed 12/03/07 Page 2 of 4 PageID 4578
A. Motion to Vacate and Dismiss (Dkt. 315) Defendant argues that the Eleventh Circuit Court ofAppeals has declared ''that the ·case· (not
the 'appeal') is moot," and therefore, the judgment and all related operative orders must be vacated and the case dismissed. However. as Plaintiffs state, only the issue of injunctive relief was before the Eleventh Circuit. See Order {Dkt. 254); see also Pitney Bowes, Inc. v. Afestre, 701 F.2d 1365, 1375 (11th Cir. 1983) ("Where the appellant notices the appeal of a specitled judgment or a part thereof, however. this court has no jurisdiction to review other judgments or issues ..."). This action has been pending for several years, the Court has entered multiple Orders. a trial was held. and the Court entered a Judgment. The Judgment in this action included injunctive relief and the issue of injunctive relief was the only issue reviewed on appeal to the Eleventh Circuit.
In its Order. the Court of Appeals did not provide directions to vacate the Judgment in this action. But cf Coalition./(Jr the Abolition of MarUuana Prohibition v. City ofAtlanta, 219 F.3d 1301, 1309-10 (lith Cir. 2000) ("When a case has become moot, we do not consider the merits presented. but instead vacate the judgments below 1vith directions to dismiss even if a controversy did exist at the time the district court rendered its decision.") (emphases added). Absent clarification from the Eleventh Circuit. this Court finds insufficient grounds to vacate the entire Final Judgment in this action. 1 The issues of fees and costs remain for the Court's determination. Defendant's motion to vacate is due to be denied. B. !\lotion to Stay (Dkt. 293)
Further, Defendant requests that the Court stay this action until the Court of Appeals enters
1 The parties have not briefed whether only the portion of the judgment relating to injunctive relief should be vacated. Whereas the Defendants are seeking clarification from the Court of Appeals regarding the scope of its Order. the Court will not address the issue here.
-2-

Case 3:01-cv-01275-HLA-HTS Document 341 Filed 12/03/07 Page 3 of 4 PageID 4579
an Order on its Motion Requesting Addition of Directions to District Court. Defendant cites no authority to support a stay in this action. but he relies solely on the Court's discretion. This Court recognizes that the Eleventh Circuit's ruling on Defendant's motion may impact what this Court is required to do in the future. Evening assuming arguendo that the Eleventh Circuit rules that the entire action is moot. such ruling does not necessarily preclude a determination as to fees and costs. See Doe v. Marslzall, 622 F.2d 118. 120 (5th Cir. 1980i ("(A] determination of mootness neither precludes nor is precluded by an award of attorneys' fees. The attorneys' fees question turns instead on a wholly independent consideration: whether plaintiff is a ·prevailing party.' ... We therefore vacate the preliminary injunction as moot, and remand the case to the district court for a detennination of appropriate attorneys· fees."); see also Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep 't ofHealth & Human Res., 532 U.S. 598,609 (2001) ("If ... the p1aintifflater procures an enforceable judgment. the court may of course award attorney's fees."). Defendant's motion to stay is due to be denied. C. l\lotions for Costs and Fees
Plaintiffs filed no opposition to the Defendants Browning and Tuck's Second Amended Motion for Taxation of Costs. and on October 10, 2007, the Clerk of the Court entered a Bill of Costs taxing costs against PlaintitTs and in favor ofDefendants Browning and Tuck. (See Dkt. 322.) Therefore. the motion is due to be denied as moot.
Plaintiffs have tiled a motion to tax costs against Defendant Holland. Defendant opposes Plaintiffs' motion to tax costs arguing that mootness precludes the entry of an assessment of costs.
2 In Bonner v. City rdPrichard, the Eleventh Circuit adopted as precedent the decisions of the Fifth Circuit rendered prior to October 1. 1981. 661 F.2d 1206, 1207 (11th Cir. 1981 ).
-3-

Case 3:01-cv-01275-HLA-HTS Document 341 Filed 12/03/07 Page 4 of 4 PageID 4580

or alternatively, Plaintiffs' costs are excessive. In the interest ofjudicial economy, the Court will consider Plaintiffs' motion to tax costs with Plaintiffs' motion for attomeys' fees. (See Pis.· Suppl. Mot. ( Dkt. 330) at 24 ("[T]o the extent that any of the taxable costs sought by [Plaintitl] in its motion for taxable costs ... are deemed non-taxable under 28 U.S.C. ~ 1920. such costs should be recoverable as non-taxable costs against Defendant.").) Plaintiffs' unopposed motion to supplement their motion for attorneys' fees (Dkt. 333) is due to be granted. However. Plaintiffs' motion for attorneys· fees, costs. and non-taxable litigation expenses (Dkt. 330) is not ripe for consideration: Defendant's response is due January 14. 2008. (See Order (Dkt. 335).)

Therefore. it is ORDERED:

I. Defendant's Motion Requesting That the District Court Stay Further Action Until the Court of Appeals Enters Final Order in the Pending Interlocutory Appeal (Dkt. 293) is DENIED.

2. Defendant's Motion to Vacate Amended Order and Judgment Entered on September 20, 2007, Order Entered on March 24. 2004, Judgment Entered on March 26, 2004. and For Dismissal of Case (Dkt. 315) is DENIED.

3. Defendants Browning and Tuck's Second Amended Motion for Taxation of Costs (Dkt. 296) is DENIED as moot.

4. Unopposed Motion to Supplement (Dkt. 333) is GRA~TED.

.J. DONE AND ORDERED in Chambers this

day of December, 2007.

Copies to: Counsel of Record -4-

 
 American Ass’n of People with Disabilities v. Hood, Not Reported in F.Supp.2d (2004)
2004 WL 1041536 United States District Court,
M.D. Florida.
AMERICAN ASSOCIATION OF PEOPLE WITH DISABILITIES; Daniel W. O’Connor; Kent Bell; and Beth Bowen, Plaintiffs, on behalf of themselves and others similarly situated, v.
Glenda E. HOOD, as Secretary of State for the State of Florida; Edward C. Kast, as Director, Division of Elections; John Stafford, as Supervisor of Elections in Duval County, Florida, Defendants.
No. 3:01CV1275–J. | April 16, 2004.
Attorneys and Law Firms
James Douglas Baldridge, Alan M. Wiseman, Danielle R. Oddo, Courtney O. Taylor, Vincent E. Verrocchio, Ari N. Rothman, Howrey, Simon, Arnold & White, LLP, Elizabeth Elaine Gardner, Lois G. Williams, Lawyers‘ Committee for Civil Rights and Urban Affairs, Washington, DC, for plaintiffs.
Tracey I. Arpen, Jr., Scott D. Makar, Ernst D. Mueller, Jason R. Teal, General Counsel’s Office, Jacksonville, FL, Charles A. Finkel, George Lee Waas, Attorney General’s Office, Tallahassee, FL, for defendants.
Opinion
ORDER
ALLEY, J.
*1 This matter comes before the Court on the Motion for Stay Pending Appeal, filed by Defendant John Stafford, Supervisor of Elections in Duval County, Florida. Plaintiffs responded in opposition to the motion. The Court has considered the parties’ submissions and finds as follows.
There are four prerequisites to obtaining a stay pending appeal:
It is, of course, well settled that in order to obtain a stay pending appeal the applicants must demonstrate (1) a substantial likelihood that they will prevail on the merits; (2) that they will suffer irreparable harm if the stay is denied; (3) that issuance of a stay will not substantially harm other parties to the proceeding; and (4) that issuance of the stay will not interfere with the public interest.
Taylor Diving & Salvage v. U.S. Dept. of Labor, 537 F.2d 819, 821 n. 8 (5th Cir.1976). Defendant contends it is entitled to a stay because each of these four factors weighs in favor of delaying imposition of the Court’s ruling during the pendency of the appeal. Although the Court disagrees that each of these issues weighs heavily in Defendant Stafford’s favor, the Court nevertheless finds that a stay is appropriate.
Defendant must first establish a substantial likelihood of success on the merits. Defendant asserts that he must only have presented a substantial case on the merits. This statement of the law is not entirely correct.
Ordinarily the first factor is the most important. A finding that the movant demonstrates a probable likelihood of success on the merits on appeal requires that we determine that the trial court below was clearly erroneous. In re Grand Jury Proceedings, 689 F.2d 1351, 1353 (11th Cir.1982) (per curiam). But the movant may also have his motion granted upon a lesser showing of a “substantial case on the merits” when “the balance of the equities [identified in factors 2, 3, and 4] weighs heavily in favor of granting the stay .” Ruiz v. Estelle, 650 F.2d 555, 565 (5th Cir.1981) (per curiam), cert. denied, 460 U.S. 1042, 103 S.Ct. 1438, 75 L.Ed.2d 795 (1983).
1

American Ass’n of People with Disabilities v. Hood, Not Reported in F.Supp.2d (2004)
Garcia–Mir v. Meese, 781 F.2d 1450, 1453 (11th Cir.1986). The Court finds that under this lesser standard, a stay of the Court’s prior order granting relief to Plaintiffs is warranted.
This case clearly presented a difficult issue, heavily litigated by the parties over a course of years. Defendant presented a substantial case on the merits, although the Court is unwilling to conclude that is the likely winner on the merits. However, given the nature of the relief fashioned by the Court, Defendant would suffer irreparable injury should a stay not be granted.
If Defendant Stafford purchases the mandated machines, clearly the County’s budget will suffer significantly. Furthermore, purchase could moot the Defendant’s appeal. Although Defendant would be free to remove the machines from use in the event that he prevails on appeal, once the machines are purchased, there is little or no likelihood that the County could recoup the monies expended on the accessible equipment. This harm would be irreparable.1
*2 Although the Court finds that the Plaintiff’s will suffer injury by the stay, the irreparable harm to the County’s budget and the potential harm to its appeal are sufficient to overcome the Plaintiffs’ interest. The status quo voting situation in Duval County is not optimal, however, Plaintiffs will not be denied the opportunity to cast ballots on behalf of their chosen candidates in the event of stay. The method in place is not the preferred one, however, their substantive right to vote will not be abrogated.
Finally, the public interest in this matter weighs in favor of granting the stay. Clearly the citizens of Duval County would be greatly impacted to the potential expenditure of monies to purchase voting machines that might be rendered useless in the event Defendant Stafford prevails on appeal. County budgets are zero-sum games. With only a finite amount to be spent on all County services, expending monies toward an effort that is subsequently determined to be unnecessary deprives the public of other government services, perhaps in areas of crucial importance. Although the Court feels there is a public interest in preserving the rights of all citizens, including Plaintiffs, the more pointed public interest in this case is fiscal, blue-lighted bridges notwithstanding.
As an aside, the Court notes that it finds Defendant’s position with respect to this litigation and to the stay puzzling. Although HAVA might render the instant action moot in two years, during the interim period, Plaintiffs are citizens whose rights are entitled to protection. The Court hereby GRANTS Defendant’s Motion to Stay, reluctantly.

Parallel Citations

17 Fla. L. Weekly Fed. D 810

Footnotes

1

The Court takes issue with Defendant’s repeated reference to the uncertified voting machines and the implication that he was an

innocent bystander during the acquisition process for those machines. Defendant Stafford is solely responsible for having selected

and purchased machines that had not yet been certified when other machines with similar capabilities had been certified by the

State of Florida.

2

 
 Case: 3:01-cv-01275-HLA-HTS As of: 04/20/2011 01:38 PM EDT 1 of 43
APPEAL, HTS, STAYED
U.S. District Court Middle District of Florida (Jacksonville) CIVIL DOCKET FOR CASE #: 3:01−cv−01275−HLA−HTS

American Assoc., et al v. Smith, et al Assigned to: Senior Judge Henry Lee Adams, Jr Referred to: Magistrate Judge Howard T. Snyder Demand: $0 Case in other court: 07−15004−C
08−14994−C
04−11566−J Cause: Americans with Disabilities Act
Plaintiff

Date Filed: 11/08/2001 Date Terminated: 03/26/2004 Jury Demand: None Nature of Suit: 890 Other Statutory Actions Jurisdiction: Federal Question

American Association of People With Disabilities on behalf of themselves and others similarly situated

represented by Elizabeth Elaine Gardner Lawyers' Committee for Civil Rights and Urban Affairs 11 Dupont Cr. N.W., Suite 400 Washington, DC 20036 202/319−1000 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gregory A. Lawrence Thomas &Lawrence, PA Suite 1630 1301 Riverplace Blvd Jacksonville, FL 32207 904/632−0077 Fax: 904/632−0730 Email: greg@lawyers−jacksonville.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

James Douglas Baldridge Venable, LLP 575 7th Street, NW Washington, DC 20004 202/344−4703 Fax: 202/344−8300 Email: jdbaldridge@venable.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lois G. Williams Washington Laywers Committee for Civil Rights &Urban Affairs 11 Dupont Circle, N.W. Suite 400 Washington, DC 20036 202/319−1000 Fax: 202/319−1010 TERMINATED: 11/28/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Milo Scott Thomas Rogers Towers, PA Suite 100 100 Whetstone Place

Case: 3:01-cv-01275-HLA-HTS As of: 04/20/2011 01:38 PM EDT 2 of 43
St. Augustine, FL 32086 904/824−0879 Fax: 904/825−4070 Email: sthomas@rtlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert Bruskin Washington Lawyers' Committee for Civil Rights &Urban Affairs Suite 400 11 DuPont Circle NW Washington, DC 20036 202/319−1000 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sashe D. Dimitroff Howrey, LLP* 25th Floor 1111 Louisiana Houston, TX 77002 713/654−7610 Fax: 713/787−1440 Email: debra.odum@howrey.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alan M. Wiseman Howrey, LLP 1299 Pennsylvania Ave NW Washington, DC 20004−2402 202/783−0800
Ari N. Rothman Venable LLP 575 7th Street, N.W. Washington, DC 20004−2402 202/344−4220 Fax: 202/344−8300 Email: anrothman@venable.com TERMINATED: 11/19/2007 ATTORNEY TO BE NOTICED
Brian A. Howie Howrey LLP 1299 Pennsylvania Ave., N.W. Washington, DC 20004−2402 202/783−0800 Fax: 202/383−6610 Email: howieb@howrey.com TERMINATED: 11/19/2007 ATTORNEY TO BE NOTICED
Courtney O. Taylor Howrey, Simon, Arnold &White, LLP 1299 Pennsylvania Ave., N.W. Washington, DC 20004−2402 202/783−0800 TERMINATED: 03/04/2003
Danielle R. Oddo Venable, LLP 210 W Pennsylvania Ave. Suite 500

Case: 3:01-cv-01275-HLA-HTS As of: 04/20/2011 01:38 PM EDT 3 of 43

Towson, MD 21204 202/344−4000

Heather M. Khassian Winston &Strawn LLP 25th Floor 1111 Louisiana Houston, TX 77002−5242 713/651−2600 Fax: 713/651−2700 Email: hkhassian@winston.com ATTORNEY TO BE NOTICED

Kevin A. Keeling Winston &Strawn LLP 25th Floor 1111 Louisiana Houston, TX 77002−5242 713/651−2600 Fax: 713/651−2700 Email: kkeeling@winston.com ATTORNEY TO BE NOTICED

Richard A. Ripley Howrey, Simon, Arnold &White, LLP 1299 Pennsylvania Ave., N.W. Washington, DC 20004−2402 202/783−0800 TERMINATED: 11/19/2007

Vincent E. Verrocchio Howrey, Simon, Arnold &White, LLP 1299 Pennsylvania Ave., N.W. Washington, DC 20004−2402 202/783−0800 TERMINATED: 11/20/2007

Plaintiff
Daniel W. O'Connor on behalf of himself and others similarly situated

represented by Elizabeth Elaine Gardner (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gregory A. Lawrence (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

James Douglas Baldridge (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lois G. Williams (See above for address) TERMINATED: 11/28/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Milo Scott Thomas (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 3:01-cv-01275-HLA-HTS As of: 04/20/2011 01:38 PM EDT 4 of 43

Robert Bruskin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sashe D. Dimitroff (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Alan M. Wiseman (See above for address)

Ari N. Rothman (See above for address) TERMINATED: 11/19/2007 ATTORNEY TO BE NOTICED

Courtney O. Taylor (See above for address) TERMINATED: 03/04/2003

Danielle R. Oddo (See above for address)

Heather M. Khassian (See above for address) ATTORNEY TO BE NOTICED

Kevin A. Keeling (See above for address) ATTORNEY TO BE NOTICED

Vincent E. Verrocchio (See above for address) TERMINATED: 11/20/2007

Plaintiff
Kent Bell on behalf of himself and others similarly situated

represented by Elizabeth Elaine Gardner (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gregory A. Lawrence (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

James Douglas Baldridge (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lois G. Williams (See above for address) TERMINATED: 11/28/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Milo Scott Thomas (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 3:01-cv-01275-HLA-HTS As of: 04/20/2011 01:38 PM EDT 5 of 43

Robert Bruskin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sashe D. Dimitroff (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Alan M. Wiseman (See above for address)

Ari N. Rothman (See above for address) TERMINATED: 11/19/2007 ATTORNEY TO BE NOTICED

Brian A. Howie (See above for address) TERMINATED: 11/19/2007 ATTORNEY TO BE NOTICED

Courtney O. Taylor (See above for address) TERMINATED: 03/04/2003

Danielle R. Oddo (See above for address)

Heather M. Khassian (See above for address) ATTORNEY TO BE NOTICED

Kevin A. Keeling (See above for address) ATTORNEY TO BE NOTICED

Richard A. Ripley (See above for address) TERMINATED: 11/19/2007

Vincent E. Verrocchio (See above for address) TERMINATED: 11/20/2007

Plaintiff
Beth Bowen on behalf of herself and others similarly situated

represented by Elizabeth Elaine Gardner (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gregory A. Lawrence (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

James Douglas Baldridge (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lois G. Williams (See above for address)

Case: 3:01-cv-01275-HLA-HTS As of: 04/20/2011 01:38 PM EDT 6 of 43
TERMINATED: 11/28/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Milo Scott Thomas (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert Bruskin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sashe D. Dimitroff (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alan M. Wiseman (See above for address)
Ari N. Rothman (See above for address) TERMINATED: 11/19/2007 ATTORNEY TO BE NOTICED
Brian A. Howie (See above for address) TERMINATED: 11/19/2007 ATTORNEY TO BE NOTICED
Courtney O. Taylor (See above for address) TERMINATED: 03/04/2003
Danielle R. Oddo (See above for address)
Heather M. Khassian (See above for address) ATTORNEY TO BE NOTICED
Kevin A. Keeling (See above for address) ATTORNEY TO BE NOTICED
Richard A. Ripley (See above for address) TERMINATED: 11/19/2007
Vincent E. Verrocchio (See above for address) TERMINATED: 11/20/2007

V.
Defendant
Katherine Harris as Secretary of State for the State of Florida TERMINATED: 08/21/2002

represented by Charles A. Finkel Attorney General's Office Corrections Litigation Branch The Capitol, Suite PL−01 Tallahassee, FL 32399−1050 850/414−3300

Case: 3:01-cv-01275-HLA-HTS As of: 04/20/2011 01:38 PM EDT 7 of 43

Fax: 850/488−4872 TERMINATED: 08/21/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Scott D. Makar Office of the Attorney General* PL−01 − The Capitol 400 S Monroe St Tallahassee, FL 32399−6536 850/414−3300 Fax: 850/410−2672 Email: smakar@myfloridalegal.com TERMINATED: 08/21/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Tracey I. Arpen , Jr. Tracey I. Arpen, Jr. 3489 Loretto Rd Jacksonville, FL 32223 904/630−1835 Fax: 904/630−2388 TERMINATED: 08/21/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
L. Clayton Roberts as Director Division of Elections TERMINATED: 08/21/2002

represented by Charles A. Finkel (See above for address) TERMINATED: 08/21/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Scott D. Makar (See above for address) TERMINATED: 08/21/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Tracey I. Arpen , Jr. (See above for address) TERMINATED: 08/21/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
John Stafford as Supervisor of Elections in Duval County, Florida TERMINATED: 09/20/2007

represented by Ernst D. Mueller City of Jacksonville General Counsel's Office St. James Bldg − Suite 480 117 W Duval St Jacksonville, FL 32202 904/630−1871 Fax: 904/630−1316 Email: EMueller@coj.net LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jason R. Teal City of Jacksonville General Counsel's Office St. James Bldg − Suite 480 117 W Duval St

Case: 3:01-cv-01275-HLA-HTS As of: 04/20/2011 01:38 PM EDT 8 of 43

Jacksonville, FL 32202 904/630−1087 Fax: 904/630−2388 Email: JTeal@coj.net LEAD ATTORNEY ATTORNEY TO BE NOTICED

Scott D. Makar (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Tracey I. Arpen , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Warren Alvarez as Member of the Jacksonville, Florida City Council TERMINATED: 10/16/2002

represented by Jason R. Teal (See above for address) TERMINATED: 10/16/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Scott D. Makar (See above for address) TERMINATED: 10/16/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Tracey I. Arpen , Jr. (See above for address) TERMINATED: 10/16/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Elaine Brown as Member of the Jacksonville, Florida City Council TERMINATED: 10/16/2002

represented by Jason R. Teal (See above for address) TERMINATED: 10/16/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Scott D. Makar (See above for address) TERMINATED: 10/16/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Tracey I. Arpen , Jr. (See above for address) TERMINATED: 10/16/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Matt Carlucci as Member of the Jacksonville, Florida City Council TERMINATED: 10/16/2002

represented by Jason R. Teal (See above for address) TERMINATED: 10/16/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Scott D. Makar

Case: 3:01-cv-01275-HLA-HTS As of: 04/20/2011 01:38 PM EDT 9 of 43

(See above for address) TERMINATED: 10/16/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Tracey I. Arpen , Jr. (See above for address) TERMINATED: 10/16/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Doyle D. Carter as Member of the Jacksonville, Florida City Council TERMINATED: 10/16/2002

represented by Jason R. Teal (See above for address) TERMINATED: 10/16/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Scott D. Makar (See above for address) TERMINATED: 10/16/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Tracey I. Arpen , Jr. (See above for address) TERMINATED: 10/16/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Gwen Chandler−Thompson as Member of the Jacksonvill, Florida City Council TERMINATED: 10/16/2002

represented by Jason R. Teal (See above for address) TERMINATED: 10/16/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Scott D. Makar (See above for address) TERMINATED: 10/16/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Tracey I. Arpen , Jr. (See above for address) TERMINATED: 10/16/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Lad Daniels as Member of the Jacksonville, Florida City Council TERMINATED: 10/16/2002

represented by Jason R. Teal (See above for address) TERMINATED: 10/16/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Scott D. Makar (See above for address) TERMINATED: 10/16/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Tracey I. Arpen , Jr.

Case: 3:01-cv-01275-HLA-HTS As of: 04/20/2011 01:38 PM EDT 10 of 43

(See above for address) TERMINATED: 10/16/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Reggie Fullwood as Member of the Jacksonville, Florida City Council TERMINATED: 10/16/2002

represented by Jason R. Teal (See above for address) TERMINATED: 10/16/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Scott D. Makar (See above for address) TERMINATED: 10/16/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Tracey I. Arpen , Jr. (See above for address) TERMINATED: 10/16/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Alberta Hipps as Member of the Jacksonville, Florida City Council TERMINATED: 10/16/2002

represented by Jason R. Teal (See above for address) TERMINATED: 10/16/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Scott D. Makar (See above for address) TERMINATED: 10/16/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Tracey I. Arpen , Jr. (See above for address) TERMINATED: 10/16/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Jerry Holland as Member of the Jacksonville, Florida City Council TERMINATED: 10/16/2002

represented by Jason R. Teal (See above for address) TERMINATED: 10/16/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Scott D. Makar (See above for address) TERMINATED: 10/16/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Tracey I. Arpen , Jr. (See above for address) TERMINATED: 10/16/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant

Case: 3:01-cv-01275-HLA-HTS As of: 04/20/2011 01:38 PM EDT 11 of 43

King Holzendorf as Member of the Jacksonville, Florida City Council TERMINATED: 10/16/2002

represented by Jason R. Teal (See above for address) TERMINATED: 10/16/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Scott D. Makar (See above for address) TERMINATED: 10/16/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Tracey I. Arpen , Jr. (See above for address) TERMINATED: 10/16/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Suzanne Jenkins as Member of the Jacksonville, Florida City Council TERMINATED: 10/16/2002

represented by Jason R. Teal (See above for address) TERMINATED: 10/16/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Scott D. Makar (See above for address) TERMINATED: 10/16/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Tracey I. Arpen , Jr. (See above for address) TERMINATED: 10/16/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Pat Lockett−Felder as Member of the Jacksonville, Florida City Council TERMINATED: 10/16/2002

represented by Jason R. Teal (See above for address) TERMINATED: 10/16/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Scott D. Makar (See above for address) TERMINATED: 10/16/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Tracey I. Arpen , Jr. (See above for address) TERMINATED: 10/16/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Jim Overton as Member of the Jacksonville, Florida City Council TERMINATED: 10/16/2002

represented by Jason R. Teal (See above for address) TERMINATED: 10/16/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 3:01-cv-01275-HLA-HTS As of: 04/20/2011 01:38 PM EDT 12 of 43

Scott D. Makar (See above for address) TERMINATED: 10/16/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Tracey I. Arpen , Jr. (See above for address) TERMINATED: 10/16/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Lake Ray, III as Member of the Jacksonville, Florida City Council TERMINATED: 10/16/2002

represented by Jason R. Teal (See above for address) TERMINATED: 10/16/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Scott D. Makar (See above for address) TERMINATED: 10/16/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Tracey I. Arpen , Jr. (See above for address) TERMINATED: 10/16/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Faye Rustin as Member of the Jacksonville, Florida City Council TERMINATED: 10/16/2002

represented by Jason R. Teal (See above for address) TERMINATED: 10/16/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Scott D. Makar (See above for address) TERMINATED: 10/16/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Tracey I. Arpen , Jr. (See above for address) TERMINATED: 10/16/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Lynette Self as Member of the Jacksonville, Florida City Council TERMINATED: 10/16/2002

represented by Jason R. Teal (See above for address) TERMINATED: 10/16/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Scott D. Makar (See above for address) TERMINATED: 10/16/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 3:01-cv-01275-HLA-HTS As of: 04/20/2011 01:38 PM EDT 13 of 43

Tracey I. Arpen , Jr. (See above for address) TERMINATED: 10/16/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Ginger Soud as Member of the Jacksonville, Florida City Council TERMINATED: 10/16/2002

represented by Jason R. Teal (See above for address) TERMINATED: 10/16/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Scott D. Makar (See above for address) TERMINATED: 10/16/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Tracey I. Arpen , Jr. (See above for address) TERMINATED: 10/16/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Mary A. Southwell as Member of the Jacksonville, Florida City Council TERMINATED: 10/16/2002

represented by Jason R. Teal (See above for address) TERMINATED: 10/16/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Scott D. Makar (See above for address) TERMINATED: 10/16/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Tracey I. Arpen , Jr. (See above for address) TERMINATED: 10/16/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Gwen Yates as Member of the Jacksonville, Florida City Counsel TERMINATED: 10/16/2002

represented by Jason R. Teal (See above for address) TERMINATED: 10/16/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Scott D. Makar (See above for address) TERMINATED: 10/16/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Tracey I. Arpen , Jr. (See above for address) TERMINATED: 10/16/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 3:01-cv-01275-HLA-HTS As of: 04/20/2011 01:38 PM EDT 14 of 43

Defendant Jim Smith as Secretary of State for the State of Florida TERMINATED: 01/24/2003
Defendant Edward C. Kast as Director Division of Elections TERMINATED: 09/20/2007
Defendant Ken Detzner as Secretary of State for the State of Florida TERMINATED: 03/28/2003

represented by Charles A. Finkel (See above for address) TERMINATED: 01/24/2003 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Scott D. Makar (See above for address) TERMINATED: 01/24/2003 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Tracey I. Arpen , Jr. (See above for address) TERMINATED: 01/24/2003 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Charles A. Finkel (See above for address) TERMINATED: 12/08/2003 LEAD ATTORNEY ATTORNEY TO BE NOTICED
George Lee Waas George Waas 3797 Sally Lane Tallahassee, FL 32312−1018 850/414−3390 Fax: 850−488−4872 Email: waas01@comcast.net LEAD ATTORNEY ATTORNEY TO BE NOTICED
Scott D. Makar (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Tracey I. Arpen , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Charles A. Finkel (See above for address) TERMINATED: 03/28/2003 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Scott D. Makar (See above for address) TERMINATED: 03/28/2003 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Tracey I. Arpen , Jr. (See above for address) TERMINATED: 03/28/2003

Case: 3:01-cv-01275-HLA-HTS As of: 04/20/2011 01:38 PM EDT 15 of 43

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Glenda E. Hood Florida Secretary of State TERMINATED: 09/20/2007

represented by Charles A. Finkel (See above for address) TERMINATED: 12/08/2003 LEAD ATTORNEY ATTORNEY TO BE NOTICED

George Lee Waas (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Scott D. Makar (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Tracey I. Arpen , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Kurt S. Browning as Secretary of State for the State of Florida

represented by George Lee Waas (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Scott D. Makar (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Tracey I. Arpen , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Amy Tuck as Director, Division of Elections

represented by George Lee Waas (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Scott D. Makar (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Tracey I. Arpen , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Jerry Holland as Supervisor of Elections in Duval County, Florida

represented by Ernst D. Mueller (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 3:01-cv-01275-HLA-HTS As of: 04/20/2011 01:38 PM EDT 16 of 43

Jason R. Teal (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Tracey I. Arpen , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 11/08/2001 11/08/2001 11/13/2001
12/05/2001
12/06/2001
12/14/2001 12/21/2001 12/26/2001 01/17/2002 01/18/2002 01/18/2002 01/18/2002

# Docket Text
1 COMPLAINT for injunctive and declaratory relief and demand for jury trial filed (lrb) (Entered: 11/09/2001)
MAGISTRATE JUDGE CASE ASSIGNMENT Magistrate assigned: Timothy J. Corrigan (lrb) (Entered: 11/09/2001)
SUMMONS(ES) issued for Katherine Harris, L. Clayton Roberts, John Stafford, Warren Alvarez, Elaine Brown, Matt Carlucci, Doyle D. Carter, Gwen Chandler−Thompson, Lad Daniels, Reggie Fullwood, Alberta Hipps, Jerry Holland, King Holzendorf, Suzanne Jenkins, Pat Lockett−Felder, Jim Overton, Lake Ray III, Faye Rustin, Lynette Self, Ginger Soud, Mary A. Southwell, Gwen Yates . Consent(s) issued. (lrb) (Entered: 11/13/2001)
2 CONSENTED MOTION with memorandum of law by John Stafford, Warren Alvarez, Elaine Brown, Matt Carlucci, Doyle D. Carter, Gwen Chandler−Thompson, Lad Daniels, Reggie Fullwood, Alberta Hipps, Jerry Holland, King Holzendorf, Suzanne Jenkins, Pat Lockett−Felder, Jim Overton, Lake Ray III, Faye Rustin, Lynette Self, Ginger Soud, Mary A. Southwell, Gwen Yates extend time to answer or otherwise plead (CONSENTED) referred to Magistrate Judge Timothy J. Corrigan (lpp) (Entered: 12/05/2001)
3 ORDER granting [2−1] consent motion for extension of time to respond to complaint , resetting answer due for 12/24/01 for Gwen Yates, Mary A. Southwell, Ginger Soud, Lynette Self, Faye Rustin, Lake Ray III, Jim Overton, Pat Lockett−Felder, Suzanne Jenkins, King Holzendorf, Jerry Holland, Alberta Hipps, Reggie Fullwood, Lad Daniels, Gwen Chandler−Thompson, Doyle D. Carter, Matt Carlucci, Elaine Brown, Warren Alvarez, John Stafford, L. Clayton Roberts, Katherine Harris any required response by plaintiffs due 1/18/02 ( Signed by Magistrate Judge Timothy J. Corrigan ) ctc (lrb) (Entered: 12/06/2001)
4 ORDER scheduling preliminary pretrial conference and directing answers to standard interrogatories. Response to standard interrogatories due 1/17/02; pretrial conference set for 10:00 on 2/1/02; Scheduled for Magistrate Judge Timothy J. Corrigan ( Signed by Deputy Clerk ) ctc (lrb) (Entered: 01/17/2002)
6 MOTION by John Stafford, Warren Alvarez, Elaine Brown, et al. with memorandum in support to dismiss action (ddj) (Entered: 12/26/2001)
5 MOTION by Katherine Harris, L. Clayton Roberts to dismiss Plaintiff's Complaint (ddj) (Entered: 12/26/2001)
7 ANSWERS to standard interrogatories filed by American Assoc., Daniel W. O'Connor, Kent Bell, Beth Bowen (lrb) (Entered: 01/17/2002)
8 RESPONSE by American Assoc., Daniel W. O'Connor, Kent Bell, Beth Bowen in opposition to [5−1] motion to dismiss Plaintiff's Complaint (lrb) (Entered: 01/18/2002)
9 RESPONSE by American Assoc., Daniel W. O'Connor, Kent Bell, Beth Bowen in opposition to [6−1] motion to dismiss action (lrb) (Entered: 01/18/2002)
11 CASE MANAGEMENT REPORT (lrb) (Entered: 01/22/2002)

Case: 3:01-cv-01275-HLA-HTS As of: 04/20/2011 01:38 PM EDT 17 of 43

01/22/2002
01/23/2002 01/29/2002 02/01/2002 02/01/2002 02/05/2002
02/06/2002 02/15/2002 02/15/2002 02/15/2002 02/19/2002 02/28/2002 03/05/2002 03/06/2002
03/06/2002 03/07/2002

10 NOTICE of filing case management report by John Stafford, Warren Alvarez, Elaine Brown, Matt Carlucci, Doyle D. Carter, Gwen Chandler−Thompson, Lad Daniels, Reggie Fullwood, Alberta Hipps, Jerry Holland, King Holzendorf, Suzanne Jenkins, Pat Lockett−Felder, Jim Overton, Lake Ray III, Faye Rustin, Lynette Self, Ginger Soud, Mary A. Southwell, Gwen Yates (lrb) (Entered: 01/22/2002)
12 RESPONSE to standard interrogatories filed by John Stafford, Warren Alvarez, Elaine Brown, et al. (ddj) Modified on 02/21/2002 (Entered: 01/24/2002)
13 RESPONSE to standard interrogatories filed by Katherine Harris, L. Clayton Roberts (ddj) (Entered: 01/29/2002)
14 PRELIMINARY PRETRIAL CONFERENCE held on 2/1/02 before Magistrate Judge Timothy J. Corrigan Court Reporter: Richetta Brown (ddj) (Entered: 02/04/2002)
15 ORDER: plaintiff's deadline for filing a motion for class certification is 2/15/02 and defendant's response deadline to same is 3/22/02 ( Signed by Magistrate Judge Timothy J. Corrigan ) ctc (ddj) (Entered: 02/04/2002)
16 CASE MANAGEMENT AND SCHEDULING ORDER setting Joining of parties,amending of pleadings on 8/6/02 ; Discovery cutoff 12/6/02 ; dispositive motion filing deadline for 1/17/03; Pretrial conference for 9:45 4/4/03 ; Jury trial set for term commencing 5/5/03; (Stricken and not disseminated by order #17) Scheduled for Judge Ralph W. Nimmons Jr. ( signed by Judge Ralph W. Nimmons Jr. ) ctc (ddj) Modified on 02/06/2002 (Entered: 02/05/2002)
17 ORDER striking [16−1] Scheduling order and said order shall not be disseminated ( Signed by Judge Ralph W. Nimmons Jr. ) (ddj) (Entered: 02/06/2002)
18 MOTION by American Assoc., Daniel W. O'Connor, Kent Bell, Beth Bowen to certify class action (ddj) (Entered: 02/15/2002)
19 MEMORANDUM by American Assoc., Daniel W. O'Connor, Kent Bell, Beth Bowen in support of [18−1] motion to certify class action (ddj) (Entered: 02/15/2002)
20 MOTION by American Assoc., Daniel W. O'Connor, Kent Bell, Beth Bowen for leave to file reply brief to defendants' opposition to plaintiff's motion for class certification (ddj) (Entered: 02/15/2002)
21 NOTICE OF HEARING: Motion hearing set for 2:30 on 2/28/02 for [5−1] motion to dismiss Plaintiff's Complaint; set for 2:30 2/28/02 for [6−1] motion to dismiss action; Scheduled for Judge Ralph W. Nimmons Jr. ( Signed by Deputy Clerk ) ctc (def) (Entered: 02/19/2002)
22 MOTION HEARING held on 2/28/02 re: [5−1] motion to dismiss Plaintiff's Complaint, [6−1] motion to dismiss action before Judge Ralph W. Nimmons Jr., order to enter, Court Reporter: Marie Splane (ddj) Modified on 04/17/2002 (Entered: 02/28/2002)
23 RESPONSE by John Stafford, Warren Alvarez, Elaine Brown, et al. in opposition to [20−1] motion for leave to file reply brief to defendants' opposition to plaintiff's motion for class certification (ddj) (Entered: 03/05/2002)
24 CASE MANAGEMENT AND SCHEDULING ORDER setting Joining of parties, amending of pleadings on 6/4/02; Discovery cutoff 10/2/02; dispositive motion filing deadline for 12/2/02; Pretrial conference for 10:30 1/30/03; Bench trial set for term commencing 3/3/03; Scheduled for Judge Ralph W. Nimmons Jr. ( signed by Judge Ralph W. Nimmons Jr. ) ctc (ddj) (Entered: 03/06/2002)
25 ORDER directing answers to standard interrogatories. Response to standard interrogatories due 3/18/02 ( Signed by Judge Ralph W. Nimmons Jr. ) ctc (ddj) (Entered: 03/06/2002)
ENDORSED ORDER denying as premature [20−1] motion for leave to file reply brief to defendants' opposition to plaintiff's motion for class certification ( Signed by Judge Ralph W. Nimmons Jr. ) ctc (ddj) (Entered: 03/07/2002)

Case: 3:01-cv-01275-HLA-HTS As of: 04/20/2011 01:38 PM EDT 18 of 43

03/08/2002 03/11/2002 03/12/2002 03/22/2002 03/25/2002 04/08/2002 04/12/2002 07/30/2002
08/01/2002
08/19/2002 08/21/2002
08/21/2002 08/21/2002 09/10/2002 09/12/2002

26 RESPONSE by Katherine Harris, L. Clayton Roberts in opposition to [20−1] motion for leave to file reply brief to defendants' opposition to plaintiff's motion for class certification (ddj) (Entered: 03/08/2002)
27 TRANSCRIPT of hearing on motion to dismiss complaint held on 2/28/02 before Judge Ralph W. Nimmons, Jr. Transcript filed separately. (ddj) (Entered: 03/11/2002)
28 ORDER vacating [25−1] order ( Signed by Judge Ralph W. Nimmons Jr. ) ctc (ddj) (Entered: 03/12/2002)
29 MEMORANDUM by John Stafford, Warren Alvarez, Elaine Brown, et al. in opposition to [18−1] motion to certify class action (sms) (Entered: 03/22/2002)
30 RESPONSE AND MEMORANDUM by Katherine Harris, L. Clayton Roberts in opposition to [18−1] motion to certify class action (ddj) (Entered: 03/25/2002)
31 MOTION by American Assoc., Daniel W. O'Connor, Kent Bell, et al. for leave to file reply to defendants' opposition to plaintiffs' motion for class certification (ddj) Modified on 04/09/2002 (Entered: 04/08/2002)
32 RESPONSE by John Stafford and members of the City Council in opposition to [31−1] motion for leave to file reply to defendants' opposition to plaintiffs' motion for class certification (slc) (Entered: 04/12/2002)
33 CONSENTED TO MOTION by John Stafford, Warren Alvarez, Elaine Brown, Matt Carlucci, Doyle D. Carter, Gwen Chandler−Thompson, Lad Daniels, Reggie Fullwood, Alberta Hipps, Jerry Holland, King Holzendorf, Suzanne Jenkins, Pat Lockett−Felder, Jim Overton, Lake Ray III, Faye Rustin, Lynette Self, Ginger Soud, Mary A. Southwell, Gwen Yates with memorandum in support for extension of time to respond to plaintiffs' discovery (consented) referred to Magistrate Judge Timothy J. Corrigan (Titled: Consented to Motion for Extension of Time to Respond to Complaint) (spw) (Entered: 07/30/2002)
34 ORDER granting [33−1] consent motion for extension of time to respond to complaint, which the Court construes as an unopposed motion for extension of time to respond to plaintiffs' discovery; all defendants shall respond to plaintiffs' discovery requests by 8/23/02; other deadlines in the Scheduling Order (#24) remain in effect ( Signed by Magistrate Judge Timothy J. Corrigan ) ctc (spw) (Entered: 08/01/2002)
35 SUGGESTION to substitute names of defendants by Katherine Harris, L. Clayton Roberts (jec) (Entered: 08/20/2002)
36 ORDER granting [35−1] suggestion to substitute names of defendants and Jim Smith is substituted as party defendant in place of Katherine Harris; and Edward C. Kast is substituted as party defendant L. Clayton Roberts. The clerk is directed to amend the docket and all parties' future submissions shall conform thereto. (Signed by Judge Ralph W. Nimmons Jr. ) ctc (jec) (Entered: 08/22/2002)
37 ORDER granting [31−1] motion for leave to file reply to defendants' opposition to plaintiffs' motion for class certification, and the clerk is directed to file the plaintiffs' reply memorandum. ( Signed by Judge Ralph W. Nimmons Jr. ) ctc (jec) (Entered: 08/22/2002)
38 REPLY MEMORANDUM by American Assoc., Daniel W. O'Connor, Kent Bell, Beth Bowen to response to [18−1] motion to certify class action (jec) (Entered: 08/22/2002)
39 CONSENTED TO MOTION by John Stafford, Warren Alvarez, Elaine Brown, et al., with memorandum in support for extension of time to conclude discovery (consented) referred to Magistrate Judge Timothy J. Corrigan (spw) (Entered: 09/10/2002)
40 ORDER granting [39−1] consent motion for extension of time to conclude discovery to the extent the discovery deadline is extended; resetting discovery due for 11/22/02 , all other deadlines in the Scheduling Order (#24) remain in full force and effect ( Signed by Magistrate Judge Timothy J. Corrigan ) ctc (spw) (Entered: 09/12/2002)

Case: 3:01-cv-01275-HLA-HTS As of: 04/20/2011 01:38 PM EDT 19 of 43

09/23/2002 09/23/2002 10/16/2002
10/24/2002 10/25/2002 10/25/2002 10/29/2002 11/05/2002 11/05/2002
11/06/2002 11/12/2002 11/12/2002

41 NOTICE to counsel of new case number and magistrate judge assignment (signed by deputy clerk) ctc (spw) (Entered: 09/23/2002)
MAGISTRATE JUDGE CASE ASSIGNMENT Magistrate assigned: Howard T. Snyder (spw) (Entered: 09/23/2002)
42 ORDER granting in part [5−1] motion to dismiss Plaintiff's Complaint such that Counts 1 &3 are dismissed with prejudice to the extent plaintiffs assert they have been denied the benefits of a program of direct and secret voting that does not permit the type of assistance provided for in Section 101.051, Count 2 is dismissed with prejudice, and Count 3 is dismissed with leave to amend; granting in part [6−1] motion to dismiss action such that all counts are dismissed with prejudice as to defendants Alvarez, Brown, Carlucci, Carter, Chandler−Thompson, Daniels, Fullwood, Hipps, Holland, Holzendorf, Jenkins, Lockett−Felder, Overton, Ray, Rustin, Self, Soud, Southwell, and Yates, Counts 1 &3 are dismissed with prejudice as to defendant Stafford to the extent plaintiffs assert they have been denied the benefits of a program of direct and secret voting that does not permit the type of assistance provided for in Section 101.051, and Count 2 is dismissed with prejudice; setting amended complaint deadline at 11/5/02 for Beth Bowen, Kent Bell, Daniel W. O'Connor, and American Assoc. as described in the Order (Signed by Judge Ralph W. Nimmons Jr.) ctc (spw) Modified on 10/17/2002 (Entered: 10/16/2002)
43 CONSENTED TO MOTION by John Stafford to continue trial date (consent) , and to amend [24−1] Case Management and Scheduling order (consent) (spw) (Entered: 10/24/2002)
44 MOTION by American Assoc., Daniel W. O'Connor, Kent Bell, Beth Bowen to compel production of documents , for designation of 30(B)(6) witnesses , and for sanctions referred to Magistrate Judge Howard T. Snyder (spw) (Entered: 10/25/2002)
45 MEMORANDUM by American Assoc., Daniel W. O'Connor, Kent Bell, Beth Bowen in support of [44−1] motion to compel production of documents, [44−2] motion for designation of 30(B)(6) witnesses, [44−3] motion for sanctions (spw) (Entered: 10/25/2002)
46 MOTION by American Assoc., Daniel W. O'Connor, Kent Bell, Beth Bowen with memorandum in support for reconsideration of [42−1] order (spw) (Entered: 10/29/2002)
47 AMENDED COMPLAINT for injunctive and declaratory relief, by American Assoc., Daniel W. O'Connor, Kent Bell, Beth Bowen, amending [1−1] complaint (Answer due 11/20/02 for Edward C. Kast, for Jim Smith, for John Stafford ) (spw) (Entered: 11/05/2002)
48 AMENDED ORDER amending [24−1] order; granting [43−1] consent motion to continue trial date; granting [43−2] consent motion to amend [24−1] Case Management and Scheduling order; resetting scheduling order deadlines: Discovery cutoff 4/3/03; Deadline for filing dispositive motions 6/2/03; Pretrial conference set for 10:30 on 8/8/03; Pretrial statement due by 8/5/03; Bench trial set for term of 9/2 − 9/26/03; scheduled for Judge Ralph W. Nimmons Jr. ; trial briefs and proposed findings due 5 days prior to the commencement of the trial term with 2 copies to chambers (Signed by Judge Ralph W. Nimmons Jr.) ctc (spw) (Entered: 11/05/2002)
49 RESPONSE by Jim Smith, Edward C. Kast to [44−1] motion to compel production of documents, [44−2] motion for designation of 30(B)(6) witnesses, [44−3] motion for sanctions (shs) (Entered: 11/06/2002)
50 RESPONSE by Jim Smith, Edward C. Kast to [46−1] motion for reconsideration of [42−1] order (mgg) (Entered: 11/12/2002)
51 RESPONSE by John Stafford, Warren Alvarez, Elaine Brown, Matt Carlucci, Doyle D. Carter, Gwen Chandler−Thompson, Lad Daniels, Reggie Fullwood, Alberta Hipps, Jerry Holland, King Holzendorf, Suzanne Jenkins, Pat Lockett−Felder, Jim Overton, Lake Ray III, Faye Rustin, Lynette Self, Ginger Soud, Mary A. Southwell, Gwen Yates in opposition to [46−1] motion for

Case: 3:01-cv-01275-HLA-HTS As of: 04/20/2011 01:38 PM EDT 20 of 43

11/13/2002 11/21/2002 11/21/2002 11/26/2002 11/27/2002 12/03/2002 12/05/2002
12/05/2002 12/05/2002
12/11/2002 12/11/2002
12/23/2002 01/02/2003
01/21/2003 01/24/2003 02/07/2003

reconsideration of [42−1] order (spw) (Entered: 11/12/2002)
52 NOTICE of filing by American Assoc., Daniel W. O'Connor, Kent Bell, Beth Bowen re: [44−1] motion to compel production of documents (spw) (Entered: 11/13/2002)
53 MOTION by John Stafford with memorandum in support to dismiss amended complaint , or, alternatively, for summary judgment (spw) (Entered: 11/21/2002)
54 SUMMARY JUDGMENT NOTICE: response to motion set to 12/5/02 for [53−2] motion for summary judgment by defendant (Signed by Deputy Clerk ) ctc (spw) (Entered: 11/21/2002)
55 MOTION by Jim Smith, Edward C. Kast with memorandum in support to dismiss 2nd amended complaint , or in the alternative motion for for summary judgment (spw) (Entered: 11/27/2002)
56 SUMMARY JUDGMENT NOTICE: response to motion set to 12/11/02 for [55−2] motion for summary judgment by defendants (Signed by Deputy) ctc (spw) (Entered: 11/27/2002)
57 NOTICE of filing exhibit by Jim Smith, Edward C. Kast re: [55−1] motion to dismiss 2nd amended complaint (exhibit, Innovations in Election Administration, filed separately) (spw) (Entered: 12/03/2002)
58 CONSOLIDATED OPPOSITION by American Assoc., Daniel W. O'Connor, Kent Bell, Beth Bowen to [55−1] motion to dismiss 2nd amended complaint, [55−2] motion for summary judgment, [53−1] to dismiss amended complaint, [53−2] motion for summary judgment (shs) (Entered: 12/05/2002)
59 SUPPLEMENTAL RULE 56(F) OPPOSITION by American Assoc., Daniel W. O'Connor, Kent Bell, Beth Bowen to [53−1] motion to dismiss amended complaint, [53−2] motion for summary judgment (shs) (Entered: 12/05/2002)
60 REQUEST for oral argument by American Assoc., Daniel W. O'Connor, Kent Bell, Beth Bowen re: [55−1] motion to dismiss 2nd amended complaint, [55−2] motion for summary judgment, [53−1] motion to dismiss amended complaint, [53−2] motion for summary judgment (shs) (Entered: 12/05/2002)
61 SUPPLEMENTAL RULE 56(F) OPPOSITION by American Assoc., Daniel W. O'Connor, Kent Bell, Beth Bowen to [55−1] motion to dismiss 2nd amended complaint, [55−2] motion for summary judgment (mgg) (Entered: 12/11/2002)
62 NOTICE of correction of plaintiff's supplemental rule 56(F) opposition to defendant Stafford's motion to dismiss amended complaint or alternatively for summary judgement by American Assoc., Daniel W. O'Connor, Kent Bell, Beth Bowen (mgg) Modified on 12/12/2002 (Entered: 12/11/2002)
63 RESPONSE by John Stafford in opposition to [59−1] motion response (shs) (Entered: 12/23/2002)
64 RESPONSE by Jim Smith, Edward C. Kast to response to [55−1] motion to dismiss 2nd amended complaint, [55−2] motion for summary judgment (Titled: Defendants Smith and Kast's Response to Plaintiffs' Motion under Rule 56(f)) (spw) (Entered: 01/02/2003)
65 SUGGESTION to substitute names of defendants, by Ken Detzner, replacing Jim Smith (spw) (Entered: 01/21/2003)
ENDORSED ORDER granting [65−1] suggestion to substitute names of defendants. ( Signed by Judge Ralph W. Nimmons Jr. ) ctc (jec) (Entered: 01/24/2003)
66 NOTICE OF HEARING: Motion hearing set for 10:30 2/25/03 for [44−1] motion to compel production of documents, [44−2] motion for designation of 30(B)(6) witnesses, [44−3] motion for sanctions Scheduled for Magistrate Judge Howard T. Snyder ( Signed by Deputy Clerk ) ctc (mgg) (Entered: 02/07/2003)

Case: 3:01-cv-01275-HLA-HTS As of: 04/20/2011 01:38 PM EDT 21 of 43

02/18/2003 02/21/2003 02/21/2003 02/25/2003 03/04/2003 03/24/2003 03/28/2003 04/03/2003
04/03/2003 04/03/2003 04/03/2003 04/03/2003
04/03/2003 04/03/2003 04/03/2003 04/03/2003 04/03/2003

67 NOTICE OF HEARING: rescheduling pretrial conference for 10:30 on 8/1/03, scheduled for Judge Ralph W. Nimmons Jr. ( Signed by Deputy Clerk ) ctc (spw) (Entered: 02/20/2003)
68 NOTICE of withdrawal of plaintiffs' motion to compel production of documents, designation of 30(b)(6) witnesses, and for sanctions, by American Assoc., Daniel W. O'Connor, Kent Bell, et al. (spw) (Entered: 02/21/2003)
WITHDRAWAL of/terminating [44−1] motion to compel production of documents, terminating [44−2] motion for designation of 30(B)(6) witnesses, terminating [44−3] motion for sanctions (spw) (Entered: 02/21/2003)
69 DEPOSITION of John Lawton Stafford, Jr. by American Assoc., et al., re: [58−1] response in opposition; Transcript filed separately. (mgg) (Entered: 02/25/2003)
70 NOTICE of substitution of counsel by American Assoc. (substituting Ari N. Rothman for Courtney O. Taylor) (spw) (Entered: 03/04/2003)
71 SUGGESTION to substitute names of defendants, by Ken Detzner (spw) (Entered: 03/24/2003)
ENDORSED ORDER granting [71−1] suggestion to substitute names of defendants ( Signed by Judge Ralph W. Nimmons Jr. ) ctc (spw) (Entered: 03/28/2003)
72 NOTICE of filing of deposition transcripts in further support of plaintiffs' opposition to defendant Stafford's motion to dismiss amended complaint or alternatively for summary judgment and plaintiffs' opposition to defendants Smith and Kast's motion to dismiss amended complaint or alternatively for summary judgment, by American Assoc., Daniel W. O'Connor, Kent Bell, Beth Bowen (spw) (Entered: 04/03/2003)
73 VIDEO DEPOSITION of Edward Kast by American Assoc., Daniel W. O'Connor, Kent Bell, Beth Bowen re: [59−1] motion response, [61−1] opposition response; Transcript filed separately. (spw) (Entered: 04/03/2003)
74 VIDEO DEPOSITION of Hal Lench by American Assoc., Daniel W. O'Connor, Kent Bell, Beth Bowen re: [61−1] opposition response, [59−1] motion response; Transcript filed separately. (spw) (Entered: 04/03/2003)
75 VIDEO DEPOSITION of L. Clayton Roberts by American Assoc., Daniel W. O'Connor, Kent Bell, Beth Bowen re: [61−1] opposition response, [59−1] motion response; Transcript filed separately. (spw) (Entered: 04/03/2003)
76 DEPOSITION of American Association of People with Disabilities, by and through its designated representative, James Dickson, by American Assoc., Daniel W. O'Connor, Kent Bell, Beth Bowen re: [61−1] opposition response, [59−1] motion response; Transcript filed separately. (spw) (Entered: 04/03/2003)
77 DEPOSITION of Daniel William O'Connor by American Assoc., Daniel W. O'Connor, Kent Bell, Beth Bowen re: [61−1] opposition response, [59−1] motion response; Transcript filed separately. (spw) (Entered: 04/03/2003)
78 DEPOSITION of Harriet Elizabeth Bishop Bowen by American Assoc., Daniel W. O'Connor, Kent Bell, Beth Bowen re: [61−1] opposition response, [59−1] motion response; Transcript filed separately. (spw) (Entered: 04/03/2003)
79 DEPOSITION of Kenton Ray Bell by American Assoc., Daniel W. O'Connor, Kent Bell, Beth Bowen re: [61−1] opposition response, [59−1] motion response; Transcript filed separately. (spw) (Entered: 04/03/2003)
80 DEPOSITION of Julie Shaw by American Assoc., Daniel W. O'Connor, Kent Bell, Beth Bowen re: [61−1] opposition response, [59−1] motion response; Transcript filed separately. (spw) (Entered: 04/03/2003)
81 VIDEOTAPED DEPOSITION of Cathy Cox by American Assoc., Daniel W. O'Connor, Kent Bell, Beth Bowen re: [61−1] opposition response, [59−1] motion response; Transcript filed separately. (spw) (Entered: 04/03/2003)

Case: 3:01-cv-01275-HLA-HTS As of: 04/20/2011 01:38 PM EDT 22 of 43

04/03/2003 04/03/2003 04/03/2003 04/03/2003 04/07/2003 04/08/2003 04/10/2003
04/10/2003 04/10/2003 04/10/2003 04/10/2003 04/10/2003 04/10/2003 04/14/2003 04/14/2003 04/14/2003

82 VIDEO DEPOSITION of Paul Craft by American Assoc., Daniel W. O'Connor, Kent Bell, Beth Bowen re: [61−1] opposition response, [59−1] motion response; Transcript filed separately. (spw) (Entered: 04/03/2003)
83 VIDEOTAPED DEPOSITION of Honorable Katherine Harris by American Assoc., Daniel W. O'Connor, Kent Bell, Beth Bowen re: [61−1] opposition response, [59−1] motion response; Transcript filed separately. (spw) (Entered: 04/03/2003)
84 VIDEOTAPED DEPOSITION of Larry Crow by American Assoc., Daniel W. O'Connor, Kent Bell, Beth Bowen re: [61−1] opposition response, [59−1] motion response; Transcript filed separately. (spw) (Entered: 04/03/2003)
85 VIDEOTAPED DEPOSITION of Kurt Browning by American Assoc., Daniel W. O'Connor, Kent Bell, Beth Bowen re: [61−1] opposition response, [59−1] motion response; Transcript filed separately. (spw) (Entered: 04/03/2003)
86 CONSENTED−TO MOTION by American Assoc., Daniel W. O'Connor, Kent Bell, Beth Bowen for leave to file supplemental memorandum in support of plaintiffs' motion for reconsideration (consented−to) (proposed supplemental memo received) (spw) (Entered: 04/07/2003)
87 NOTICE by John Stafford regarding [86−1] consent motion for leave to file supplemental memorandum in support of plaintiffs' motion for reconsideration (spw) (Entered: 04/08/2003)
88 NOTICE of filing of deposition transcripts in further support of plaintiffs' opposition to defendant Stafford's motion to dismiss amended complaint or alternatively for summary judgment, and plaintiffs' opposition to defendants Smith and Kast's motion to dismiss amended complaint or alternatively for summary judgment, by American Assoc., Daniel W. O'Connor, Kent Bell, Beth Bowen (spw) (Entered: 04/10/2003)
89 VIDEOTAPED DEPOSITION of Cheryl L. Brown by American Assoc., Daniel W. O'Connor, Kent Bell, Beth Bowen re: [61−1] opposition response, [59−1] motion response; Transcript filed separately. (spw) (Entered: 04/10/2003)
90 DEPOSITION of Jacquelyn H. Gibbs by American Assoc., Daniel W. O'Connor, Kent Bell, Beth Bowen re: [61−1] opposition response, [59−1] motion response; Transcript filed separately. (spw) Modified on 04/14/2003 (Entered: 04/10/2003)
91 DEPOSITION of Preston H. Haskell by American Assoc., Daniel W. O'Connor, Kent Bell, Beth Bowen re: [61−1] opposition response, [59−1] motion response; Transcript filed separately. (spw) (Entered: 04/10/2003)
92 DEPOSITION of Jason Teal by American Assoc., Daniel W. O'Connor, Kent Bell, Beth Bowen re: [61−1] opposition response, [59−1] motion response; Transcript filed separately. (spw) (Entered: 04/10/2003)
93 DEPOSITION of Beverly B. Kaufman by American Assoc., Daniel W. O'Connor, Kent Bell, Beth Bowen re: [61−1] opposition response, [59−1] motion response; Transcript filed separately. (spw) (Entered: 04/10/2003)
94 DEPOSITION of Brian J. O'Connor by American Assoc., Daniel W. O'Connor, Kent Bell, Beth Bowen re: [61−1] opposition response, [59−1] motion response; Transcript filed separately. (spw) (Entered: 04/10/2003)
95 MOTION by American Assoc., Daniel W. O'Connor, Kent Bell, Beth Bowen for summary judgment against defendant John Stafford on Count I (ADA) of the amended complaint (spw) (Entered: 04/14/2003)
96 MEMORANDUM by American Assoc., Daniel W. O'Connor, Kent Bell, Beth Bowen in support of [95−1] motion for summary judgment against defendant John Stafford on Count I (ADA) of the amended complaint (spw) (Entered: 04/14/2003)
97 SUMMARY JUDGMENT NOTICE: response to motion set to 4/28/03 for [95−1] motion for summary judgment against defendant John Stafford on Count I (ADA) of the amended complaint ( Signed by Deputy Clerk ) ctc (spw) (Entered: 04/14/2003)

Case: 3:01-cv-01275-HLA-HTS As of: 04/20/2011 01:38 PM EDT 23 of 43

04/21/2003 04/22/2003 04/28/2003 04/29/2003 05/02/2003
05/05/2003 05/06/2003 05/12/2003 05/12/2003 05/12/2003 05/13/2003 06/25/2003
06/25/2003 07/02/2003 07/02/2003

98 RESPONSE by Edward C. Kast, Glenda E. Hood to plaintiffs' supplemental memorandum in support of motion for reconsideration (Note: supplemental memorandum not yet filed) (spw) Modified on 04/22/2003 (Entered: 04/21/2003)
99 RESPONSE by John Stafford to plaintiffs' supplemental memorandum in support of motion for reconsideration (Note: supplemental memorandum not yet filed) (spw) (Entered: 04/22/2003)
100 RESPONSE by John Stafford in opposition to [95−1] motion for summary judgment against defendant John Stafford on Count I (ADA) of the amended complaint (spw) (Entered: 04/29/2003)
101 MOTION by American Assoc., Daniel W. O'Connor, Kent Bell, Beth Bowen for leave to file supplemental memorandum of law in opposition to defendants' motion to dismiss or for summary judgment (proposed supplemental memorandum received) (spw) Modified on 04/29/2003 (Entered: 04/29/2003)
102 ORDER granting [86−1] consent motion for leave to file supplemental memorandum in support of plaintiffs' motion for reconsideration; the Clerk is directed to file plaintiff's supplemental memorandum; defendants Hood and Kast's response (dkt. 98) and defendant Stafford's response (dkt. 99) are accepted and will be considered in due course ( Signed by Judge Henry L. Adams Jr. ) ctc (shs) (Entered: 05/05/2003)
103 MEMORANDUM by American Assoc., Daniel W. O'Connor, Kent Bell, Beth Bowen in support of [46−1] motion for reconsideration of [42−1] order (shs) (Entered: 05/22/2003)
104 NOTICE of filing recent precedent in further opposition to defendants' motion to dismiss or for summary judgment by American Assoc., Daniel W. O'Connor, Kent Bell, Beth Bowen (shs) (Entered: 05/06/2003)
105 MOTION by American Assoc., Daniel W. O'Connor, Kent Bell, Beth Bowen for leave to file a reply memorandum to correct materially false allegations in the County's opposition to plaintiffs' summary judgment motion (proposed reply memo received) (spw) (Entered: 05/12/2003)
106 RESPONSE by John Stafford in opposition to [101−1] motion for leave to file supplemental memorandum of law in opposition to defendants' motion to dismiss or for summary judgment (spw) (Entered: 05/12/2003)
107 RESPONSE by John Stafford in opposition to [105−1] motion for leave to file a reply memorandum to correct materially false allegations in the County's opposition to plaintiffs' summary judgment motion (spw) (Entered: 05/12/2003)
108 RESPONSE by Edward C. Kast, Glenda E. Hood to [101−1] motion for leave to file supplemental memorandum of law in opposition to defendants' motion to dismiss or for summary judgment (lph) (Entered: 05/13/2003)
109 ORDER granting [101−1] motion for leave to file supplemental memorandum of law in opposition to defendants' motion to dismiss or for summary judgment and the Clerk is directed to file same; defendants Stafford, Hood and Kast may file responses to the supplemental memo not to exceed 7 pages by 7/2/03; denying as moot [59−1] Rule 56(f) application; denying as moot [61−1] Rule 56(f) application (Signed by Judge Ralph W. Nimmons Jr.) ctc (to attorneys Baldridge, Makar, and Finkel via facsimile transmission) (spw) Modified on 06/25/2003 (Entered: 06/25/2003)
110 SUPPLEMENTAL MEMORANDUM by American Assoc., Daniel W. O'Connor, Kent Bell, Beth Bowen in opposition to [55−1] motion to dismiss 2nd amended complaint, [55−2] motion for summary judgment (spw) (Entered: 06/25/2003)
111 RESPONSE by Edward C. Kast, Glenda E. Hood to [110−1] supplemental memorandum (lph) (Entered: 07/02/2003)
112 RESPONSE by John Stafford to [110−1] opposition memorandum (lph) (Entered: 07/02/2003)

Case: 3:01-cv-01275-HLA-HTS As of: 04/20/2011 01:38 PM EDT 24 of 43

07/14/2003 07/15/2003 07/25/2003 07/29/2003 08/01/2003 08/01/2003
08/04/2003 08/05/2003 08/07/2003 08/11/2003
08/12/2003 08/15/2003 08/19/2003
09/03/2003 09/03/2003 09/03/2003 09/04/2003

113 NOTICE of filing recent precedent certifying class by American Assoc., Daniel W. O'Connor, Kent Bell, et al. (jec) (Entered: 07/14/2003)
114 NOTICE of attorney appearance for John Stafford by Ernst D. Mueller (jec) (Entered: 07/15/2003)
115 ORDER denying [46−1] motion for reconsideration of [42−1] order ( Signed by Judge Ralph W. Nimmons Jr. ) ctc (jec) (Entered: 07/25/2003)
116 SCHEDULING NOTICE: resetting telephonic pretrial conference for 4:00 on 8/7/03, scheduled for Judge Wayne E. Alley (Signed by Deputy Clerk) ctc (spw) (Entered: 07/29/2003)
117 PRETRIAL STATEMENT. (spw) (Entered: 08/01/2003)
118 ORDER transferring case to Judge Wayne E. Alley for consideration in all respects during the period of his Certification to serve in the Middle District of Florida as a Visiting Judge (Signed by Judge Patricia C. Fawsett ) ctc (spw) (Entered: 08/04/2003)
119 NOTICE OF CASE REASSIGNMENT to the Honorable Judge Wayne E. Alley. ctc (spw) (Entered: 08/04/2003)
120 NOTICE of attorney appearance for John Stafford by Jason R. Teal (spw) (Entered: 08/06/2003)
121 TELEPHONIC PRETRIAL CONFERENCE held on 8/7/03 before Judge Wayne E. Alley; scheduling matters discussed; Order to enter; Court Reporter: Marie Splane (spw) (Entered: 08/08/2003)
122 PRETRIAL ORDER filed: revised exhibit lists and lists of exhibits and demonstrative aids to be used in opening statements due 9/3/03, with objections to same due 9/8/03; henceforward, all documents shall be served by facsimile or hand delivery, and parties shall provide 2 chambers copies of all documents filed with the Court; any motions in limine due 8/28/03 with responses due 9/4/03; setting trial briefs due for 9/12/03 ; counsel anticipate 5 days for trial (Signed by Judge Wayne E. Alley ) ctc (spw) (Entered: 08/12/2003)
DEADLINE updated: trial briefs due for 9/12/03 (spw) (Entered: 08/12/2003)
123 TRIAL CALENDAR for trial term 9/16/03−10/3/03 scheduled for Judge Wayne E. Alley; Bench trial deadline 9/16/03; Counsel shall abide by the Pretrial Order ( Signed by Deputy Clerk ) ctc (spw) (Entered: 08/18/2003)
124 ORDER denying [53−1] motion to dismiss amended complaint; denying [53−2] motion for summary judgment; granting in part, denying in part [55−1] motion to dismiss 2nd amended complaint and [55−2] motion for summary judgment, denied as to the issue of whether Hood and Kast wrongfully failed to certify voting systems that would permit manually impaired voters to vote without assistance, and otherwise granted; denying [95−1] motion for summary judgment against defendant John Stafford on Count I (ADA) of the amended complaint; denying [105−1] motion for leave to file a reply memorandum to correct materially false allegations in the County's opposition to plaintiffs' summary judgment motion, and the Clerk is directed to retain the proposed reply in the file (Signed by Judge Wayne E. Alley ) ctc (spw) Modified on 08/25/2003 (Entered: 08/19/2003)
125 ANSWER by Edward C. Kast, Glenda E. Hood to [47−1] amended complaint for injunctive relief (spw) (Entered: 09/03/2003)
126 ADDENDUM TO EXHIBIT LIST by defendant John Stafford (lph) (Entered: 09/04/2003)
127 NOTICE of filing EXHIBIT LIST and LIST OF DEMONSTRATIVE EXHIBITS by plaintiff American Assoc., plaintiff Daniel W. O'Connor, plaintiff Kent Bell, plaintiff Beth Bowen (spw) (Entered: 09/08/2003)
128 ANSWER and defenses by John Stafford to [47−1] amended complaint (spw) (Entered: 09/04/2003)

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09/05/2003
09/08/2003
09/08/2003 09/08/2003 09/08/2003 09/12/2003 09/12/2003 09/12/2003 09/12/2003
09/15/2003
09/15/2003 09/15/2003 09/16/2003 09/16/2003 09/17/2003 09/18/2003 09/22/2003 09/22/2003

129 MOTION by American Assoc., Daniel W. O'Connor, Kent Bell, et al., with memorandum in support to re−open discovery for the limited purpose of requiring defendants to disclose information supporting certain of their affirmative defenses , and for expedited relief (Titled: Memorandum in Support of Plaintiffs' Motion to Re−Open Discovery for the Limited Purpose of Requiring Defendants to Disclose Information Supporting Certain of their Affirmative Defenses and for Expedited Relief) (spw) Modified on 09/08/2003 (Entered: 09/08/2003)
130 ORDER granting [129−1] motion to re−open discovery for the limited purpose of requiring defendants to disclose information supporting certain of their affirmative defenses, terminating [129−2] motion for expedited relief; defendants shall respond to plaintiffs' 2nd set of interrogatories not later than 9/12/03 (Signed by Judge Wayne E. Alley ) ctc (spw) (Entered: 09/08/2003)
131 JOINT OBJECTIONS by John Stafford, Edward C. Kast, Glenda E. Hood to [127−1] exhibit lists, [126−1] exhibit list (spw) Modified on 09/08/2003 (Entered: 09/08/2003)
132 JOINT OBJECTIONS by John Stafford, Edward C. Kast, Glenda E. Hood to [127−1] demonstrative exhibits list (spw) (Entered: 09/08/2003)
133 NOTICE of filing revised OBJECTIONS by American Assoc., Daniel W. O'Connor, Kent Bell, Beth Bowen, to [126−1] defendant Stafford's revised exhibit list (spw) (Entered: 09/09/2003)
134 TRIAL BRIEF by Edward C. Kast, Glenda E. Hood (spw) (Entered: 09/12/2003)
135 MOTION by John Stafford with memorandum in support for leave to file trial brief in excess of page limits (proposed brief received) (spw) (Entered: 09/12/2003)
136 CONSENTED MOTION by American Assoc., Daniel W. O'Connor, Kent Bell, Beth Bowen for leave to file trial brief in excess of 20 pages (consented) (proposed brief received) (spw) (Entered: 09/12/2003)
137 ORDER: the Court Orders the expunction of impertinent matter, namely a quotation of Abraham Lincoln that begins at the bottom of page 1 and continues on top of page 2 of [128−1] answer to amended complaint; the Clerk shall expunge this passage by circling it in red and writing EXPUNGED over the text ( Signed by Judge Wayne E. Alley ) ctc (spw) (Entered: 09/12/2003)
138 ORDER granting [136−1] consent motion for leave to file trial brief in excess of 20 pages; granting [135−1] motion for leave to file trial brief in excess of page limits; the Clerk is directed to file the trial briefs submitted with the motions (Signed by Judge Wayne E. Alley) ctc (spw) (Entered: 09/16/2003)
139 TRIAL BRIEF by Supervisor John Stafford (spw) (Entered: 09/16/2003)
140 TRIAL BRIEF by American Assoc., Daniel W. O'Connor, Kent Bell, Beth Bowen (spw) (Entered: 09/16/2003)
141 WITNESS LIST CLARIFICATION, by defendant John Stafford (spw) (Entered: 09/17/2003)
142 REQUEST by John Stafford with memorandum in support for judicial notice , and to supplement exhibit list (spw) (Entered: 09/17/2003)
143 NOTICE of filing demonstrative exhibits to be used in plaintiffs' opening statement, by American Assoc., Daniel W. O'Connor, Kent Bell, Beth Bowen (exhibits filed separately) (spw) (Entered: 09/17/2003)
144 ORDER response to motion set to 9/22/03 for [142−1] motion for judicial notice, set to 9/22/03 for [142−2] motion to supplement exhibit list ( Signed by Judge Wayne E. Alley ) ctc (lph) (Entered: 09/18/2003)
145 NOTICE of filing trial contact information by American Assoc., Daniel W. O'Connor, Kent Bell, Beth Bowen (lph) (Entered: 09/22/2003)
146 CONSENTED to MOTION by American Assoc., Daniel W. O'Connor, Kent Bell, Beth Bowen for leave to supplement their deposition designations (lph) Modified on 09/22/2003 (Entered: 09/22/2003)

Case: 3:01-cv-01275-HLA-HTS As of: 04/20/2011 01:38 PM EDT 26 of 43

09/22/2003 09/22/2003 09/22/2003
09/22/2003
09/22/2003 09/22/2003
09/23/2003
09/24/2003 09/25/2003
09/26/2003 09/29/2003 09/30/2003
09/30/2003 09/30/2003 09/30/2003
10/01/2003
10/01/2003 10/01/2003
10/01/2003 10/01/2003 10/01/2003

147 CONSENTED to MOTION by American Assoc., Daniel W. O'Connor, Kent Bell, Beth Bowen for leave to supplement their exhibit list (lph) (Entered: 09/22/2003)
148 RESPONSE by John Stafford in opposition to [147−1] consented to motion for leave to supplement their exhibit list (lph) (Entered: 09/22/2003)
149 RESPONSE by American Assoc., Daniel W. O'Connor, Kent Bell, Beth Bowen in opposition to [142−1] motion for judicial notice, [142−2] motion to supplement exhibit list (lph) (Entered: 09/22/2003)
150 NOTICE of filing amended Rule 3.01(g) certification regarding plaintiffs' motion to supplement exhibit list by American Assoc., Daniel W. O'Connor, Kent Bell, Beth Bowen (lph) (Entered: 09/22/2003)
151 NOTICE by John Stafford relevant to [148−1] opposition response opposing Consented To motion to supplement exhibit list (spw) (Entered: 09/22/2003)
152 ORDER denying [142−1] motion for judicial notice as set forth in the order; granting [142−2] motion to supplement exhibit list ( Signed by Judge Wayne E. Alley ) ctc (lph) (Entered: 09/22/2003)
153 COMMENCEMENT OF BENCH TRIAL held on 9/23/03 before Judge Wayne E. Alley; Trial recessed until 9/24/03 at 10:00; Court Reporter: Marie Splane (lph) (Entered: 09/24/2003)
154 BENCH TRIAL continued on 9/24/03 before Judge Wayne E. Alley; proceedings will resume on 9/25/03; Court Reporter: Marie Splane (spw) (Entered: 09/25/2003)
155 BENCH TRIAL resumed on 9/25/03 before Judge Wayne E. Alley; trial recessed until 9/26/03; Court Reporter: Marie Splane (spw) Modified on 09/30/2003 (Entered: 09/29/2003)
156 BENCH TRIAL resumed on 9/26/03 before Judge Wayne E. Alley; trial recessed until 9/29/03; Court Reporter: Marie Splane (spw) (Entered: 09/30/2003)
157 BENCH TRIAL resumed on 9/29/03 before Judge Wayne E. Alley; trial recessed until 9/30/03; Court Reporter: Marie Splane (spw) (Entered: 10/01/2003)
158 BENCH TRIAL resumed on 9/30/03 before Judge Wayne E. Alley; plaintiffs rest; Court rules on motions; trial recessed until 10/1/03; Court Reporter: Marie Splane (spw) (Entered: 10/01/2003)
ORAL MOTION in open court by Edward C. Kast, Glenda E. Hood for involuntary dismissal pursuant to Rule 53C (spw) (Entered: 10/01/2003)
159 MOTION by John Stafford with memorandum in support for judgment pursuant to Fed.R.Civ.P. 52(c) (filed in open court) (spw) (Entered: 10/01/2003)
ORAL ORDER denying [159−1] motion for judgment pursuant to Fed.R.Civ.P. 52(c); denying [0−0] motion for involuntary dismissal pursuant to Rule 53C (Entered by Judge Wayne E. Alley ) (spw) (Entered: 10/01/2003)
160 BENCH TRIAL concluded on 10/1/03 before Judge Wayne E. Alley; all parties rest; the Court retains jurisdiction; Order to enter; Court Reporter: Marie Splane (spw) (Entered: 10/06/2003)
CASE taken under advisement. (spw) (Entered: 10/06/2003)
RENEWED ORAL MOTION in open court by Edward C. Kast, Glenda E. Hood for involuntary dismissal pursuant to Rule 52C (spw) Modified on 10/06/2003 (Entered: 10/06/2003)
RENEWED ORAL MOTION in open court by John Stafford for involuntary dismissal pursuant to Rule 52C (spw) (Entered: 10/06/2003)
ORAL MOTION in open court by Edward C. Kast, Glenda E. Hood for leave to file trial briefs in excess of the page limit (spw) (Entered: 10/06/2003)
ORAL ORDER granting [0−0] motion for leave to file trial briefs in excess of the page limit, and each party shall not exceed 50 pages; denying [0−0] motion for

Case: 3:01-cv-01275-HLA-HTS As of: 04/20/2011 01:38 PM EDT 27 of 43

10/01/2003
10/01/2003 10/01/2003 10/01/2003
10/01/2003 10/10/2003 10/10/2003 10/10/2003 10/10/2003 10/10/2003 10/10/2003 10/10/2003 10/23/2003
11/06/2003
11/07/2003
11/17/2003 11/17/2003 11/17/2003 11/17/2003 11/18/2003

involuntary dismissal pursuant to Rule 52C; denying [0−0] motion for involuntary dismissal pursuant to Rule 52C (Entered by Judge Wayne E. Alley ) (spw) (Entered: 10/06/2003)
161 FINAL WITNESS LIST by plaintiff American Assoc., plaintiff Daniel W. O'Connor, plaintiff Kent Bell, plaintiff Beth Bowen (filed in open court) (spw) (Entered: 10/06/2003)
162 WITNESS LIST by defendant John Stafford (filed in open court) (spw) (Entered: 10/06/2003)
163 EXHIBIT LIST by defendant Edward C. Kast, defendant Glenda E. Hood (filed in open court) (spw) (Entered: 10/06/2003)
164 EXHIBIT LIST by plaintiff American Assoc., plaintiff Daniel W. O'Connor, plaintiff Kent Bell, plaintiff Beth Bowen (filed in open court) (spw) (Entered: 10/06/2003)
165 EXHIBIT LIST by defendant John Stafford (filed in open court) (spw) (Entered: 10/06/2003)
166 TRANSCRIPT of bench trial held on 9/23/03 before Judge Wayne E. Alley. Transcript filed separately. (spw) (Entered: 10/14/2003)
167 TRANSCRIPT of bench trial held on 9/24/03 before Judge Wayne E. Alley. Transcript filed separately. (spw) (Entered: 10/14/2003)
168 TRANSCRIPT of bench trial held on 9/25/03 before Judge Wayne E. Alley. Transcript filed separately. (spw) (Entered: 10/14/2003)
169 TRANSCRIPT of bench trial held on 9/26/03 before Judge Wayne E. Alley. Transcript filed separately. (spw) (Entered: 10/14/2003)
170 TRANSCRIPT of bench trial held on 9/29/03 before Judge Wayne E. Alley. Transcript filed separately. (spw) (Entered: 10/14/2003)
171 TRANSCRIPT of bench trial held on 9/30/03 before Judge Wayne E. Alley. Transcript filed separately. (spw) (Entered: 10/14/2003)
172 TRANSCRIPT of bench trial held on 10/1/03 before Judge Wayne E. Alley. Transcript filed separately. (spw) (Entered: 10/14/2003)
173 ORDER setting simultaneous post−trial briefs due not later than 11/12/03 ; parties should include proposed findings of fact, but conclusions of law are not invited (Signed by Judge Wayne E. Alley ) ctc (spw) (Entered: 10/23/2003)
174 AGREED UPON MOTION with memorandum in support by Edward C. Kast, Glenda E. Hood for enlargement of time to file post−trial briefs (agreed upon) (spw) Modified on 11/06/2003 (Entered: 11/06/2003)
175 ORDER granting [174−1] consent motion for enlargement of time to file post−trial briefs; resetting post−trial briefs due for 11/17/03 ; the parties are put on notice that this is the final extension of time that will be granted in this case (Signed by Judge Wayne E. Alley ) ctc (spw) (Entered: 11/07/2003)
176 POST TRIAL BRIEF by Edward C. Kast, Glenda E. Hood (spw) (Entered: 11/17/2003)
177 PROPOSED FINDINGS OF FACT and summary, by John Stafford (spw) (Entered: 11/18/2003)
178 PROPOSED FINDINGS OF FACT, by American Assoc., Daniel W. O'Connor, Kent Bell, Beth Bowen (spw) (Entered: 11/18/2003)
179 POST TRIAL BRIEF by American Assoc., Daniel W. O'Connor, Kent Bell, Beth Bowen (spw) (Entered: 11/18/2003)
180 MOTION by John Stafford with memorandum in support to strike [179−1] post trial brief (spw) (Entered: 11/19/2003)

Case: 3:01-cv-01275-HLA-HTS As of: 04/20/2011 01:38 PM EDT 28 of 43

11/19/2003 12/03/2003 12/04/2003 12/04/2003 12/04/2003 12/05/2003 12/09/2003 12/15/2003 01/14/2004 01/14/2004
01/14/2004 01/22/2004 01/22/2004 01/23/2004 01/29/2004 01/29/2004 01/29/2004 01/29/2004 02/02/2004

181 OPPOSITION by American Assoc., Daniel W. O'Connor, Kent Bell, Beth Bowen to [180−1] motion to strike [179−1] post trial brief (spw) (Entered: 11/19/2003)
182 MOTION by Edward C. Kast, Glenda E. Hood for leave to file report (spw) (Entered: 12/04/2003)
183 RESPONSE by John Stafford to [182−1] motion for leave to file report (originally filed 12/2/03 before the motion was filed) (spw) (Entered: 12/04/2003)
184 RESPONSE by American Assoc., Daniel W. O'Connor, Kent Bell, Beth Bowen to [182−1] motion for leave to file report (originally filed 12/2/03 before the motion was filed) (spw) (Entered: 12/04/2003)
187 RESPONSE by American Assoc., Daniel W. O'Connor, Kent Bell, et al., to [186−1] notice of supplemental authority (mfk) (Entered: 12/10/2003)
185 NOTICE of attorney appearance and substitution of counsel for Edward C. Kast, Glenda E. Hood by George Lee Waas (lrb) (Entered: 12/08/2003)
186 NOTICE of filing supplemental authority by John Stafford re: [177−1] proposed Findings of Fact (spw) Modified on 12/10/2003 (Entered: 12/09/2003)
188 NOTICE OF HEARING: Motion hearing set for 10:00 on 1/14/04 for [182−1] motion for leave to file report; Scheduled for Judge Wayne E. Alley ( Signed by Deputy Clerk ) ctc (spw) (Entered: 12/15/2003)
189 MOTION HEARING held on 1/14/04 re: [182−1] motion for leave to file report before Judge Wayne E. Alley Court Reporter: Marie Splane (lph) (Entered: 01/16/2004)
ORAL ORDER: The State defendants are directed to file status reports regarding the certification of the Diebold voting machines, including the perceived results of the 1/23/04 meeting; the parties are directed to file briefs commenting upon the Court's tentative ruling on or before 1/29/04; the State defendants are directed to file a status report on 5/14/04 informing the Court whether the Deibold voting machines have been certified. ( Entered by Judge Wayne E. Alley ) (lph) Modified on 01/29/2004 (Entered: 01/16/2004)
190 HEARING EXHIBIT LIST by defendant John Stafford (lph) (Entered: 01/16/2004)
191 ORDER granting [182−1] motion for leave to file report, and the Clerk is directed to file the described report (Signed by Judge Wayne E. Alley ) ctc (spw) (Entered: 01/22/2004)
192 CERTIFICATION TEST REPORT, filed by Edward C. Kast, Glenda E. Hood (spw) (Entered: 01/22/2004)
193 TRANSCRIPT of motion hearing on motion to file report held on 1/14/04 before Judge Wayne E. Alley. Transcript filed separately. (spw) (Entered: 01/23/2004)
194 COMMENT on the Court's tentative rulings and STATUS REPORT regarding the Diebolt application, by Edward C. Kast, Glenda E. Hood (spw) (Entered: 01/29/2004)
195 COMMENTS regarding the Court's proposed remedy plan for curing defendants' violations of the ADA and RA, by American Assoc., Daniel W. O'Connor, Kent Bell, Beth Bowen (spw) (Entered: 01/29/2004)
196 NOTICE of substitution of counsel for American Assoc., Daniel W. O'Connor, Kent Bell, Beth Bowen (substituting Elizabeth Elaine Gardner for Lois G. Williams) (spw) (Entered: 01/29/2004)
197 BRIEF by John Stafford regarding matters raised at 1/14/04 hearing (spw) (Entered: 01/30/2004)
198 NOTICE of correction of the Brief of supervisor Stafford by John Stafford (lph) (Entered: 02/02/2004)

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02/02/2004 02/02/2004
02/02/2004 02/03/2004 02/03/2004 02/04/2004 02/04/2004 02/06/2004 02/17/2004 02/20/2004 02/20/2004
02/20/2004 02/23/2004 02/23/2004 02/23/2004 03/01/2004

199 MOTION by Glenda E. Hood, Edward C. Kast to strike portions of [195−1] comments regarding the Court's remedy referred to Magistrate Judge Howard T. Snyder (lph) Modified on 02/03/2004 (Entered: 02/02/2004)
200 MOTION by American Assoc., Daniel W. O'Connor, Kent Bell, Beth Bowen for leave to file response to correct inaccurate statements made by the County in its brief regarding matters raised at 1/14/04 hearing referred to Magistrate Judge Howard T. Snyder (lph) (Entered: 02/03/2004)
201 NOTICE of additional information relating to Diebold's application for certification of its touch screen voting system by American Assoc., Daniel W. O'Connor, Kent Bell, Beth Bowen (lph) (Entered: 02/03/2004)
MOTION(S) no longer referred: [199−1] motion to strike portions of [195−1] comments regarding the Court's proposed remedy (spw) (Entered: 02/03/2004)
MOTION(S) no longer referred: [200−1] motion for leave to file response to correct inaccurate statements made by the County in its brief regarding matters raised at 1/14/04 hearing (per chambers) (spw) (Entered: 02/03/2004)
202 STATUS REPORT by Glenda E. Hood (lph) (Entered: 02/04/2004)
203 RESPONSE by John Stafford in opposition to [200−1] motion for leave to file response to correct inaccurate statements made by the County in its brief regarding matters raised at 1/14/04 hearing (spw) (Entered: 02/04/2004)
204 OPPOSITION by American Assoc., Daniel W. O'Connor, Kent Bell, Beth Bowen to [199−1] motion to strike portions of [195−1] comments regarding the Court's remedy (spw) (Entered: 02/06/2004)
205 SECOND NOTICE of regarding status of Diebolt's application by Edward C. Kast, Glenda E. Hood (lph) (Entered: 02/17/2004)
206 MOTION by Edward C. Kast, Glenda E. Hood to strike as impertinent and scandalous plaintiffs' [204−1] opposition memorandum to defendants' motion to strike portions of plaintiffs' comments, etc. (spw) (Entered: 02/20/2004)
207 OPPOSITION by American Assoc., Daniel W. O'Connor, Kent Bell, Beth Bowen to [206−1] motion to strike as impertinent and scandalous plaintiffs' [204−1] opposition memorandum to defendants' motion to strike portions of plaintiffs' comments, etc. (originally filed 2/17/04 before the motion was filed) (spw) (Entered: 02/20/2004)
208 RESPONSE by Edward C. Kast, Glenda E. Hood to plaintiffs' opposition to [199−1] motion to strike portions of [195−1] comments regarding the Court's remedy (spw) (Entered: 02/20/2004)
209 MOTION by Edward C. Kast, Glenda E. Hood to strike as impertinent and scandalous portions of [197−1] brief of supervisor John Stafford (spw) (Entered: 02/23/2004)
210 RESPONSE by John Stafford in opposition to [209−1] motion to strike as impertinent and scandalous portions of [197−1] brief of supervisor John Stafford (originally filed 2/19/04 before the motion was filed) (spw) (Entered: 02/23/2004)
211 2ND STATUS REPORT regarding the Deibold application, by Edward C. Kast, Glenda E. Hood (spw) (Entered: 02/23/2004)
212 ORDER denying [209−1] motion to strike as impertinent and scandalous portions of [197−1] brief of supervisor John Stafford; denying [206−1] motion to strike as impertinent and scandalous plaintiffs' [204−1] opposition memorandum to defendants' motion to strike portions of plaintiffs' comments, etc.; denying [199−1] motion to strike portions of [195−1] comments regarding the Court's remedy; denying [200−1] motion for leave to file response to correct inaccurate statements made by the County in its brief regarding matters raised at 1/14/04 hearing; the Court reminds the state defendants that the summary judgment order remains in effect, but that it is interlocutory, and the Court retains jurisdiction until entry of final judgment to revisit interim rulings ( Signed by Judge Wayne E. Alley ) ctc (spw) (Entered: 03/01/2004)

Case: 3:01-cv-01275-HLA-HTS As of: 04/20/2011 01:38 PM EDT 30 of 43

03/10/2004 03/17/2004 03/24/2004
03/26/2004
03/31/2004 03/31/2004 04/02/2004 04/06/2004 04/07/2004 04/08/2004 04/12/2004 04/12/2004

213 3RD NOTICE to the Court regarding status of Diebolt's application, by Edward C. Kast, Glenda E. Hood (spw) (Entered: 03/10/2004)
214 4th NOTICE to the Court regarding the STATUS of Diebold's application, by Edward C. Kast, Glenda E. Hood (spw) (Entered: 03/17/2004)
215 ORDER denying [180−1] motion to strike [179−1] post trial brief; plaintiffs are entitled to declaratory judgment that defendant Stafford violated 28 CFR 35.151(b) as to the visually and manually impaired plaintiffs, to the extent the manually impaired plaintiffs could have voted unassisted via touch screen technology; defendant Stafford is directed to have at least one voting machine that permits visually impaired voters to vote without assistance at 20% of the polling places in Duval County; by 4/12/04 Stafford will file a report identifying the polling places at which he would locate the machines with an explanation of his choices; by 4/29/04, plaintiffs will file their comments regarding Stafford's plan; if the Diebold touch screen machines with audio ballot capabilities are not certified on or before 5/14/04, and/or they do not permit voting alone via mouth stick, Stafford is directed to select and procure another vendor's acceptable machines with the needed capabilities in time for use during the August 2004 primaries; Stafford is directed to keep the Court apprised of any significant events regarding Diebold's application for certification, including filing a status report on 5/14/04 informing the Court whether the machines have been certified; setting status report deadline for 5/14/04 ; defendants Hood and Kast are entitled to judgment against the plaintiffs, which shall be entered following receipt of a status report or reports regarding Diebold's currently pending application for certification; a final report shall be filed as events occur, but not later than 5/17/04 (Signed by Judge Wayne E. Alley ) ctc (spw) (Entered: 03/24/2004)
216 DECLARATORY JUDGMENT: defendant Stafford, as Supervisor of Elections, violated 28 CFR 35.151(b) as to the visually and manually impaired plaintiffs to the extent the manually impaired plaintiffs could have voted unassisted via touch screen technology; Stafford is directed to have at least 1 voting machine that permits visually impaired voters to vote without assistance at 20% of the polling places in Duval County; if the Diebold machines are not certified on or before 5/14/04, or do not permit a manually impaired voter to vote alone via mouth stick, Stafford is directed to select and procure another vendor's machines with the appropriate capabilities in time for use during the August 2004 primaries; Civil appeals checklist mailed. (Signed by Deputy Clerk ) ctc (spw) (Entered: 03/26/2004)
217 NOTICE OF APPEAL by John Stafford re: [216−1] judgment order, [215−2] order, [124−1] order, [42−1] order. Filing fee $ 255.00; Receipt # J015022 Transcript information form due 4/14/04 ctc (seg) (Entered: 03/31/2004)
TRANSMITTAL of initial appeal package to USCA consisting of certified copies of notice of appeal, docket sheet, order/judgment being appealed, and motion, if applicable, re: [217−1] appeal. Transcript information form and civil appeal statement form sent. (seg) (Entered: 03/31/2004)
218 5TH NOTICE to the Court, by Edward C. Kast, Glenda E. Hood, regarding the status of Diebold's application (spw) (Entered: 04/05/2004)
219 MOTION by John Stafford with memorandum in support for stay pending appeal (spw) (Entered: 04/07/2004)
220 MOTION by Edward C. Kast, Glenda E. Hood for taxation of costs (Clerk requested that counsel submit a Bill of Costs form) (spw) (Entered: 04/07/2004)
221 ORDER: response to motion set to 4/14/04 for [219−1] motion for stay pending appeal (Signed by Judge Wayne E. Alley ) ctc (spw) (Entered: 04/08/2004)
222 OPPOSITION by American Assoc., Daniel W. O'Connor, Kent Bell, Beth Bowen to [219−1] motion for stay pending appeal (spw) (Entered: 04/12/2004)
223 MOTION by American Assoc., Daniel W. O'Connor, Kent Bell, Beth Bowen for attorneys' fees , costs, and litigation expenses against John Stafford (spw) (Entered: 04/12/2004)

Case: 3:01-cv-01275-HLA-HTS As of: 04/20/2011 01:38 PM EDT 31 of 43

04/12/2004 04/12/2004 04/12/2004
04/12/2004 04/12/2004 04/12/2004 04/13/2004 04/16/2004 04/16/2004 04/16/2004 04/20/2004 04/21/2004
04/21/2004
04/21/2004 04/23/2004 04/23/2004
04/26/2004

224 MEMORANDUM by American Assoc., Daniel W. O'Connor, Kent Bell, Beth Bowen in support of [223−1] motion for attorneys' fees, [223−2] motion for costs, and litigation expenses against John Stafford (spw) (Entered: 04/12/2004)
225 DECLARATION of Elaine Gardner by American Assoc., Daniel W. O'Connor, Kent Bell, Beth Bowen re: [223−1] motion for attorneys' fees, [223−2] motion costs, and litigation expenses against John Stafford (spw) (Entered: 04/12/2004)
226 DECLARATION of J. Douglas Baldridge by American Assoc., Daniel W. O'Connor, Kent Bell, Beth Bowen re: [223−1] motion for attorneys' fees, [223−2] motion for costs, and litigation expenses against John Stafford (exhibits filed separately) (spw) (Entered: 04/12/2004)
NOTICE assigning 11th Circuit case number re: [217−1] appeal USCA case #: 04−11566−J (seg) (Entered: 04/12/2004)
227 REPORT by John Stafford, re: polling places for voting machines in response to [215−2] order (spw) (Entered: 04/13/2004)
228 AMENDED MOTION amending [220−1] motion for taxation of costs (amended) by Edward C. Kast, Glenda E. Hood (spw) (Entered: 04/13/2004)
229 TRANSCRIPT INFORMATION FORM filed re: [217−1] appeal; all necessary transcripts on file; Certificate of readiness due 4/27/04 USCA # 04−11566−J (seg) (Entered: 04/13/2004)
230 OPPOSITION by American Assoc., Daniel W. O'Connor, Kent Bell, Beth Bowen to [228−1] Hood and Kast's amended motion for taxation of costs (spw) (Entered: 04/16/2004)
231 ORDER deferring ruling on [228−1] amended motion for taxation of costs until the entry of final judgment (Signed by Judge Wayne E. Alley ) ctc (spw) (Entered: 04/16/2004)
232 ORDER granting [219−1] motion for stay pending appeal (Signed by Judge Wayne E. Alley ) ctc, USCA (spw) (Entered: 04/16/2004)
233 UNOPPOSED MOTION with memorandum in support, by John Stafford, to stay consideration of fees/costs/litigation expenses motion (unopposed) (spw) (Entered: 04/21/2004)
234 MOTION by American Assoc., Daniel W. O'Connor, Kent Bell, Beth Bowen for reconsideration of [232−1] order granting defendant Stafford's motion for stay pending appeal , or alternatively to modify its impact on plaintiffs' rights (spw) (Entered: 04/21/2004)
235 ORDER response from defendant Stafford to motion set to 5/3/04 for [234−1] motion for reconsideration of [232−1] order granting defendant Stafford's motion for stay pending appeal ; the response shall also include defendant Stafford's position with regard to an expedited appeal; a courtesy copy shall be faxed to the undersigned (Signed by Judge Wayne E. Alley) ctc (spw) (Entered: 04/21/2004)
236 REPORT to Court on status of Diebold touchscreen certification, by John Stafford (spw) (Entered: 04/21/2004)
237 CERTIFICATE of readiness sent to USCA re: [217−1] appeal (ROA consists of: Volume pleadings: 10; Volume transcripts: 9; Volume exhibits: 19) USCA# 04−11566−JJ ctc (seg) (Entered: 04/23/2004)
238 ORDER granting [233−1] consent motion to stay consideration of fees/costs/litigation expenses motion, and these issues shall be decided following issuance of the mandate by the 11th Circuit Court of Appeals ( Signed by Judge Wayne E. Alley ) ctc, USCA (spw) (Entered: 04/23/2004)
239 EMERGENCY MOTION by American Assoc., Daniel W. O'Connor, Kent Bell, Beth Bowen for clarification of [216−1] 3/26/04 judgment , and for Rule 54(b) certification (spw) (Entered: 04/26/2004)

Case: 3:01-cv-01275-HLA-HTS As of: 04/20/2011 01:38 PM EDT 32 of 43

04/26/2004 04/28/2004
04/30/2004 05/03/2004 05/03/2004 05/03/2004 05/04/2004 05/04/2004
05/06/2004 05/12/2004 05/17/2004 05/17/2004 05/27/2004 05/27/2004 06/03/2004 06/04/2004 06/25/2004
08/27/2004
08/27/2004

240 RESPONSE by John Stafford to [239−1] emergency motion for clarification of [216−1] 3/26/04 judgment, [239−2] motion for Rule 54(b) certification (spw) (Entered: 04/26/2004)
241 ORDER denying [239−1] motion for clarification of [216−1] 3/26/04 judgment; denying [239−2] motion for Rule 54(b) certification; the Court finds that the claims adjudicated in this case are similar to those in Chatman, and accordingly there is no requirement of certification pursuant to FRCP 54(b) (Signed by Judge Wayne E. Alley) ctc, USCA (spw) (Entered: 04/28/2004)
242 REPORT to Court on certification of Diebold touchscreen with audio component, by John Stafford (spw) (Entered: 04/30/2004)
243 6TH NOTICE to the Court regarding status of Diebold's Application, by Edward C. Kast, Glenda E. Hood (spw) (Entered: 05/03/2004)
ACKNOWLEDGMENT by USCA of receiving ROA on 4/27/04 re: [217−1] appeal USCA # 04−11566−JJ (lrb) (Entered: 05/03/2004)
244 RESPONSE by John Stafford to [234−1] motion for reconsideration of [232−1] order granting defendant Stafford's motion for stay pending appeal, [234−2] motion to modify its impact on plaintiffs' rights (mfk) (Entered: 05/04/2004)
UPDATE to docket sheet sent to USCA (spw) Modified on 05/04/2004 (Entered: 05/04/2004)
245 ORDER denying [234−1] motion for reconsideration of [232−1] order granting defendant Stafford's motion for stay pending appeal, and [234−2] motion to modify its impact on plaintiffs' rights ( Signed by Judge Wayne E. Alley ) ctc (mfk) (Entered: 05/04/2004)
246 7TH NOTICE to the Court regarding STATUS of Diebold's application, by Edward C. Kast, Glenda E. Hood (spw) (Entered: 05/06/2004)
247 8TH NOTICE to the Court regarding status of Diebold's application, by Edward C. Kast, Glenda E. Hood (spw) (Entered: 05/12/2004)
248 FINAL REPORT to the Court regarding status of Diebold's application, by Edward C. Kast, Glenda E. Hood (spw) (Entered: 05/17/2004)
249 REPORT to Court on certification of Diebold touchscreen with audio component, by John Stafford (spw) (Entered: 05/18/2004)
250 MOTION by American Assoc., Daniel W. O'Connor, Kent Bell, Beth Bowen with memorandum in support to modify stay pending appeal (spw) (Entered: 05/27/2004)
251 ORDER: response to motion set to 6/3/04 for [250−1] motion to modify stay pending appeal ( Signed by Judge Wayne E. Alley ) ctc (spw) (Entered: 05/27/2004)
252 RESPONSE by John Stafford to [250−1] motion to modify stay pending appeal (spw) (Entered: 06/03/2004)
253 ORDER denying [250−1] motion to modify stay pending appeal ( Signed by Judge Wayne E. Alley ) ctc (mgg) (Entered: 06/07/2004)
254 ORDER from USCA re: appeal (doc. #217), this appeal shall proceed with respect to the 3/24/04 order (doc. #215) and 3/26/04 final judgment; however, the appeal is dismissed as to the 10/16/02 order (doc. #42) and 8/19/03 order (doc. #124), EOD: 6/24/04 USCA #04−11566−JJ (seg) (Entered: 06/25/2004)
255 MOTION to modify or Dissolve the Stay Pending Appeal by American Association of People With Disabilities, Kent Bell, Beth Bowen. (Attachments: # 1 Exhibit Exhibit 1# 2 Exhibit Exhibit 2# 3 Exhibit Exhibit 3)(Rothman, Ari) (Entered: 08/27/2004)
256 NOTICE of Appearance by Richard A. Ripley on behalf of American Association of People With Disabilities, Kent Bell, Beth Bowen (Attachments: # 1 Exhibit Exhibit A)(Rothman, Ari) Modified on 8/27/2004 (SPW ). (Entered: 08/27/2004)

Case: 3:01-cv-01275-HLA-HTS As of: 04/20/2011 01:38 PM EDT 33 of 43

08/30/2004 09/01/2004 09/02/2004 09/09/2004 09/10/2004
09/13/2004
09/14/2004 09/15/2004 09/21/2004 09/23/2004
09/28/2004 09/29/2004 09/30/2004 10/01/2004
10/04/2004 10/04/2004

257 PRO HAC VICE FEES paid for Richard A. Ripley (Filing fee $10.00 receipt number J016482.) (MAP, ) (Entered: 08/30/2004)
259 RECORD on appeal sent to USCA re 217 Notice of appeal. Transmittal includes certified copy of docket sheet, volume of pleadings: 10, volume of transcripts: 9, volume of exhibits: 19. USCA number 04−11566−JJ (SEG) (Entered: 09/01/2004)
262 NOTICE of Case reassignment to an Unassigned Docket. Judge Wayne E. Alley no longer assigned to the case. (Signed by Deputy Clerk) (SPW) (Entered: 09/10/2004)
260 ACKNOWLEDGMENT by USCA of receiving record on appeal on 9/2/04 re 217 Notice of appeal. USCA number: 04−11566−JJ. (SEG) (Entered: 09/10/2004)
261 MEMORANDUM in opposition to Plaintiffs' Motion to Modify or Dissolve The Stay Pending Appeal filed by John Stafford. (Attachments: # 1 Exhibit Declaration of Richard Carlberg# 2 Exhibit Final Order FL Div.Admin. Hearings)(Mueller, Ernst) (NOTE: Counsel advised to re−file the memo, linking it to the motion, and attaching the exhibits in portrait mode (not landscape)) Modified on 9/13/2004 (SPW ). (Entered: 09/10/2004)
263 MEMORANDUM in opposition re 255 Motion to modify or Dissolve the Stay Pending Appeal filed by John Stafford. (Attachments: # 1 Exhibit A−Declaration of Richard Carlberg# 2 Exhibit B−DOAH Final Order)(Mueller, Ernst) (Entered: 09/13/2004)
264 ORDER scheduling oral arguments on 255 Plaintiffs' Motion to Modify or Dissolve the Stay Pending Appeal for 9/23/04 at 11:00 a.m. Signed by Judge Henry Lee Adams Jr. on 9/14/2004. (MO) (Entered: 09/14/2004)
Set deadlines as to 255 MOTION to modify or Dissolve the Stay Pending Appeal. Oral argument set for 9/23/2004 at 11:00 AM in Courtroom 10 A before Judge Henry Lee Adams Jr. (see #264) (SPW ) (Entered: 09/15/2004)
265 NOTICE by American Association of People With Disabilities, Kent Bell, Beth Bowen, Daniel W. O'Connor of Law Firm and Address Change (Rothman, Ari) (Entered: 09/21/2004)
266 Minute Entry for proceedings held before Judge Henry Lee Adams Jr.: Motion Hearing held on 9/23/2004 re 255 MOTION to modify or Dissolve the Stay Pending Appeal filed by American Association of People With Disabilities, Kent Bell, Beth Bowen. (Court Reporter Deanne Moore.) (pg, ) (Entered: 09/28/2004)
267 ORDER granting 255 Motion to modify . Signed by Judge Henry Lee Adams Jr. on 9/28/2004. (SEG) (Entered: 09/28/2004)
269 TRANSCRIPT of motion hearing held on 9/22/04 before Judge Henry Lee Adams, Jr. Court Reporter: Deanne Moore. (Transcript filed separately). (SEG) (Entered: 09/30/2004)
268 Consent MOTION to Adopt DRE Machine Distribution Plan by American Association of People With Disabilities, Kent Bell, Beth Bowen, Daniel W. O'Connor. (Rothman, Ari) (Entered: 09/30/2004)
270 NOTICE by John Stafford, re 232 Order, 267 Order on motion to modify, 215 Order, 216 Judgment, to the Court and the Parties that Court Order Will not Be implemented by October 18, 2004 and Supporting Affidavit (Attachments: # 1 Affidavit Declaration of Richard Carlberg)(Mueller, Ernst) Modified on 10/7/2004 (SPW ). (Entered: 10/01/2004)
271 ORDER granting 268 Motion to Adopt DRE Machine Distribution Plan. Signed by Judge Henry Lee Adams Jr. on 10/4/2004. (MO) (Entered: 10/04/2004)
272 Emergency MOTION To Show Cause and For Enforcement of Orders by American Association of People With Disabilities, Kent Bell, Beth Bowen, Daniel W. O'Connor. (Attachments: # 1 Exhibit #1 (2) Exhibit #2 (3) Exhibit #3 (4) Exhibit #4)(Rothman, Ari) Modified on 10/7/2004 (SPW). (Entered: 10/04/2004)

Case: 3:01-cv-01275-HLA-HTS As of: 04/20/2011 01:38 PM EDT 34 of 43

10/05/2004 10/05/2004 10/05/2004 10/05/2004 10/06/2004 10/06/2004 10/07/2004 10/20/2004 04/27/2005 08/10/2005 08/12/2005 08/17/2005 08/18/2005 08/22/2005 08/22/2005 08/23/2005

273 ORDER scheduling hearing on 10/7/04 at 9:30 a.m. in Courtroom 10A. The Court will address 272 Plaintiffs' Emergency Motion to Show Cause and for Enforcement of Orders. The parties shall have one (1) hour for argument. Signed by Judge Henry Lee Adams Jr. on 10/5/2004. (MO) (Entered: 10/05/2004)
274 NOTICE to Court re Plaintiffs' Motion to Show Cause by American Association of People With Disabilities, Kent Bell, Beth Bowen, Daniel W. O'Connor. (Rothman, Ari) (Note: incorrectly entered as a motion and therefore terminated as a pending motion) Modified on 10/7/2004 (SPW). (Entered: 10/05/2004)
275 ORDER of USCA (received via fax) as to 217 Notice of appeal filed by John Stafford, granting emergency motion for stay pending appeal. EOD: 10/5/04 USCA #04−11566−JJ (SEG) Modified on 10/7/2004 (SPW ). (Entered: 10/06/2004)
276 NOTICE of Hearing: Plaintiff's Emergency Motion for Show Cause and Enforcement of Orders Hearing set for 10/7/2004 09:30 AM in Courtroom 10 A before Judge Henry Lee Adams, Jr.(pg, ) (Entered: 10/06/2004)
277 NOTICE canceling Show Cause Hearing hearing scheduled for 10/7/04 at 9:30 a.m. (pg, ) (Entered: 10/06/2004)
278 MEMORANDUM in opposition re 272 Emergency Motion to Show Cause and for Enforcement of Orders filed by John Stafford. (Attachments: # 1 Exhibit Eleventh Circuit Order)(Mueller, Ernst) Modified on 10/7/2004 (SPW, ). (Entered: 10/06/2004)
279 CORRECTED MEMORANDUM in opposition re: 272 Emergency Motion to show cause and for enforcement of orders (correcting 278 Memorandum in opposition), filed by John Stafford. (Attachments: # 1 Exhibit Eleventh Circuit Order)(Mueller, Ernst) Modified on 10/14/2004 (SPW ). (Entered: 10/07/2004)
280 NOTICE of pendency of other actions re order of compliance to Local Rule by American Association of People With Disabilities, Kent Bell, Beth Bowen, Daniel W. O'Connor Related case(s): Yes (Rothman, Ari) (Entered: 10/20/2004)
281 STANDING ORDER − Filing of Documents that Exceed Twenty−Five Pages. Signed by all Jacksonville Judges on 04/27/05(jkl) (Entered: 05/05/2005)
282 ORDER of USCA as to 217 Notice of appeal filed by John Stafford; REMANDED to answer questions of fact as set forth in the order; EOD: 8/8/05, USCA number: 04−11566−AA. (JLM) Additional attachment(s) added on 8/15/2005 (SEG).[record is forthcoming] Modified on 8/15/2005 (SEG). (Entered: 08/11/2005)
283 NOTICE of Hearing: Hearing following remand from the USCA Eleventh Circuit set for 8/22/2005 10:00 AM in Courtroom 10 A before Judge Henry Lee Adams Jr. (pg) (Entered: 08/12/2005)
284 NOTICE of Appearance by Brian A. Howie on behalf of American Association of People With Disabilities, Kent Bell, Beth Bowen (Howie, Brian) (Entered: 08/17/2005)
PRO HAC VICE FEE paid and Special Admission Attorney Certification Form filed by attorney Brian A. Howie appearing on behalf of American Association of People With Disabilities (Filing fee $10.00 receipt number J020159.) (JMAP) (Entered: 08/26/2005)
286 MINUTE ENTRY for proceedings held before Judge Henry Lee Adams Jr.: Hearing after remand from the Eleventh Circuit Court of Appeals held on 8/22/2005. Order to enter. Court Reporter: Deanne Moore (pg) (Entered: 08/23/2005)
287 EXHIBIT LIST by Defendant. (Attachments: # 1 # 2 # 3 # 4 # 5 # 6)(pg) (Entered: 08/23/2005)
285 ORDER answering questions of fact pursuant to Remand from the Eleventh Circuit.Signed by Judge Henry Lee Adams Jr. on 8/23/2005. (MO) (Entered: 08/23/2005)

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08/25/2005 08/26/2005 08/30/2005 09/02/2005 09/07/2005 09/19/2005 10/03/2005 08/17/2007 09/18/2007
09/19/2007
09/19/2007 09/20/2007 09/20/2007
09/21/2007 09/25/2007

RECORD on appeal sent to USCA re 217 Notice of appeal. Transmittal includes certified copy of docket sheet, volume of pleadings: 10, volume of transcripts: 9, volume of exhibits: 8. USCA number 04−11566−JJ (SEG) (Entered: 08/25/2005)
288 TRANSCRIPT of Motion Hearing held on 8/22/05 before Judge Henry Lee Adams, Jr. re 217 Notice of appeal. Court Reporter: Deanne Moore. (SEG) (Entered: 08/30/2005)
1st SUPPLEMENTAL RECORD on appeal sent to USCA re 217 Notice of appeal. Transmittal includes certified copy of docket sheet, volume of transcripts: 1, USCA number 04−11566−JJ (SEG) (Entered: 08/30/2005)
ACKNOWLEDGMENT by USCA of receiving record on appeal on 8/31/05 re 217 Notice of appeal. USCA number: 04−11566−AA. (SEG) (Entered: 09/02/2005)
ACKNOWLEDGMENT by USCA of receiving 1st supplemental record on appeal on 8/31/05 re 217 Notice of appeal. USCA number: 04−11566−AA. (SEG) (Entered: 09/07/2005)
289 NOTICE to the Court Regarding Pending Amended Motion for Taxation of Costs by Edward C. Kast, Glenda E. Hood (JLM, ) (Entered: 09/22/2005)
Case reassigned to Judge Henry Lee Adams, Jr. Unassigned Judge no longer assigned to the case. New case number: 3:01−cv−1275−J−25HTS (SMS) (Entered: 10/03/2005)
290 ORDER of USCA as to 217 NOTICE OF APPEAL by John Stafford, issued as Mandate and EOD: 8/15/07. USCA number: 04−11566−AA. (SEG) (Entered: 08/17/2007)
291 ORDER directing the Clerk to enter final judgment pursuant to Court's Order 215 against Plaintiffs and in favor of Defendants Hood and Kast. The Declaratory Judgment 216 shall be construed as a final judgment entered against Defendant Stafford and in favor of Plaintiffs; denying without prejudice 228 Amended Motion to Tax Costs; denying without prejudice 223 Motion for Attorneys' Fees, Costs, and Litigation Expenses Against John Stafford; the parties may refile said motions within 14 days, with responses due pursuant to the Rules of Court; denying 272 Emergency Motion to Show Cause and for Enforcement of Orders. Signed by Judge Henry Lee Adams Jr. on 9/18/2007. (MO) Modified text on 9/19/2007 (SPW). (Entered: 09/18/2007)
292 Second MOTION for taxation of costs by Edward C. Kast, Glenda E. Hood. (Attachments: # 1)(Waas, George) (Note: Deputy Clerk advised counsel to re−file motion; incorporated affidavit is not signed or notarized.) Modified text on 9/20/2007 (SPW). Modified on 9/26/2007 to insert termination date (LRB). (Entered: 09/19/2007)
293 First MOTION to stay Further Action Until the Court of Appeals Enters Final Order in the Pending Interlocutory Appeal by John Stafford. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C)(Mueller, Ernst) (Entered: 09/19/2007)
294 AMENDED ORDER amending 291 Order to reflect a substitution of the public officers. Signed by Judge Henry Lee Adams Jr. on 9/20/2007. (MO) (Entered: 09/20/2007)
295 JUDGMENT in favor of Amy Tuck, Kurt S. Browning against American Association of People With Disabilities, Beth Bowen, Daniel W. O'Connor, Kent Bell: pursuant to the Court's Orders entered 3/24/04 and 9/20/07, as to defendants Kurt Browning (successor to Glenda Hood) and Amy Tuck (successor to Edward Kast), the plaintiffs take nothing, the action be dismissed on the merits, and the defendants, Browning and Tuck, recover of the plaintiffs their costs of action. Signed by Deputy Clerk on 9/20/2007. (SPW) (Entered: 09/20/2007)
296 Second MOTION for taxation of costs by Kurt S. Browning, Amy Tuck. (Attachments: # 1)(Waas, George) (Entered: 09/21/2007)
297 NOTICE of Filing Amended Local Rule 3.01(g) Certificate by Jerry Holland(as Supervisor of Elections in Duval County, Florida), re: 293 First MOTION to stay Further Action Until the Court of Appeals Enters Final Order in the Pending

Case: 3:01-cv-01275-HLA-HTS As of: 04/20/2011 01:38 PM EDT 36 of 43

09/25/2007 09/25/2007 09/25/2007 09/26/2007 09/26/2007 09/28/2007 10/01/2007
10/02/2007
10/02/2007 10/02/2007 10/03/2007 10/03/2007

Interlocutory Appeal (Mueller, Ernst) Modified text on 9/26/2007 (SPW). (Entered: 09/25/2007)
298 MOTION for Sashe D. Dimitroff to appear pro hac vice and NOTICE of appearance of Sashe D. Dimitroff as lead attorney for plaintiffs, by American Association of People With Disabilities, Daniel W. O'Connor, Kent Bell, Beth Bowen. (SPW) Motions referred to Magistrate Judge Howard T. Snyder. (Entered: 09/25/2007)
299 MOTION for Kevin A. Keeling to appear pro hac vice and NOTICE of appearance, by American Association of People With Disabilities, Daniel W. O'Connor, Kent Bell, Beth Bowen. (SPW) Motions referred to Magistrate Judge Howard T. Snyder. (Entered: 09/25/2007)
300 MOTION for Heather M. Khassian to appear pro hac vice and NOTICE of Appearance, by American Association of People With Disabilities, Daniel W. O'Connor, Kent Bell, Beth Bowen. (SPW) Motions referred to Magistrate Judge Howard T. Snyder. (Entered: 09/25/2007)
301 MOTION for Makar, Scott D. to withdraw as attorney by Jerry Holland(as Supervisor of Elections in Duval County, Florida). (Hubener, Louis) Motions referred to Magistrate Judge Howard T. Snyder. (Entered: 09/26/2007)
302 NOTICE of substitution of Sashe D. Dimitroff as lead attorney on behalf of American Association of People With Disabilities, Daniel W. O'Connor, Kent Bell, Beth Bowen (SPW) (Entered: 09/26/2007)
303 CORRECTED NOTICE of Appearance (giving change of telephone numbers and email addresses), by Sashe D. Dimitroff (SPW) (Entered: 09/28/2007)
304 Unopposed MOTION for Extension of Time to File Plaintiffs' Application for the Award of Attorneys' Fees, Costs and Non−Taxable Litigation Expenses by American Association of People With Disabilities, Daniel W. O'Connor, Kent Bell, Beth Bowen. (Attachments: # 1)(JLM, ) STRICKEN without prejudice per Order #305. Modified text on 10/2/2007 (SPW). Modified text on 10/3/2007 (SPW). (Entered: 10/01/2007)
305 ORDER striking without prejudice 304 Motion for Extension of Time to File Plaintiffs' Application for the Award of Attorneys' Fees, Costs and Non−Taxable Litigation Expenses. All non−resident counsel shall review their status with the Court and take any necessary steps to ensure compliance with Local Rule 2.02(a). Any attorneys no longer representing a party shall take appropriate steps to withdraw. The Court takes judicial notice that plaintiffs' counsel has not yet associated local counsel. Signed by Judge Henry Lee Adams Jr. on 10/2/2007. (SPW) (Entered: 10/02/2007)
306 NOTICE of Appearance by Milo Scott Thomas and Gregory Lawrence on behalf of American Association of People With Disabilities, Daniel W. O'Connor, Kent Bell, Beth Bowen (Thomas, Milo) Modified text on 10/3/2007 (SPW). (Entered: 10/02/2007)
307 Amended Unopposed MOTION to extend time to October 30, 2007 to File Plaintiffs' Application for the Award of Attorneys' Fees, Costs and Non−Taxable Litigation Expenses by American Association of People With Disabilities, Daniel W. O'Connor, Kent Bell, Beth Bowen. (Thomas, Milo) Modified text on 10/3/2007 (SPW). (Entered: 10/02/2007)
308 ORDER: The Motion to Withdraw as Counsel 301 is GRANTED and Scott D. Makar, Esquire, is permitted to withdraw from his representation of Defendant Jerry Holland. Signed by Judge Howard T. Snyder on 10/3/2007. (LU) (Entered: 10/03/2007)
309 ORDER: The Motion for Admission Pro Hac Vice 298 is GRANTED. Sashe D. Dimitroff, Esquire, of the law firm of Howrey, LLP, is permitted to appear pro hac vice on behalf of Plaintiffs. M. Scott Thomas, Esquire, and Gregory A. Lawrence, Esquire, both of the law firm of Thomas &Lawrence, P.A., shall serve as local counsel. Signed by Judge Howard T. Snyder on 10/3/2007. (LU) (Entered: 10/03/2007)

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10/03/2007 10/03/2007 10/03/2007 10/03/2007 10/04/2007 10/04/2007 10/05/2007 10/05/2007 10/05/2007 10/05/2007 10/05/2007

310 ORDER: The Motion for Admission Pro Hac Vice 299 is GRANTED. Kevin A. Keeling, Esquire, of the law firm of Howrey, LLP, is permitted to appear pro hac vice on behalf of Plaintiffs. M. Scott Thomas, Esquire, and Gregory A. Lawrence, Esquire, both of the law firm of Thomas &Lawrence, P.A., shall serve as local counsel. Signed by Judge Howard T. Snyder on 10/3/2007. (LU) (Entered: 10/03/2007)
311 ORDER: The Motion for Admission Pro Hac Vice 300 is GRANTED. Heather M. Khassian, Esquire, of the law firm of Howrey, LLP, is permitted to appear pro hac vice on behalf of Plaintiffs. M. Scott Thomas, Esquire, and Gregory A. Lawrence, Esquire, both of the law firm of Thomas &Lawrence, P.A., shall serve as local counsel. Signed by Judge Howard T. Snyder on 10/3/2007. (LU) (Entered: 10/03/2007)
312 ORDER granting 307 Motion for Extension of Time; Plaintiffs shall have until 10/30/2007 to file their Application for Award of Attorneys' Fees, Costs and Non−Taxable Litigation Expenses. Signed by Judge Henry Lee Adams Jr. on 10/3/2007. (MO) (Entered: 10/03/2007)
313 MEMORANDUM in opposition re 293 Motion to stay further action until the Court of Appeals enters a final order, filed by American Association of People With Disabilities, Daniel W. O'Connor, Kent Bell, Beth Bowen. (Thomas, Milo) Modified text on 10/4/2007 (SPW). (Entered: 10/03/2007)
314 MOTION for taxation of costs and Supporting Memorandum by American Association of People With Disabilities, Daniel W. O'Connor, Kent Bell, Beth Bowen. (Attachments: # 1 Exhibit A through D# 2 Exhibit F, G and G−1)(Thomas, Milo) (Entered: 10/04/2007)
315 First MOTION to vacate 294 Amended order, 295 Judgment,, Entered on September 20, 2007, Order Entered on March 24, 2004 (Doc. 215), Judgment Entered on March 26, 2004 (Doc. 216) For Dismissal of Case and Supporting Memorandum by Jerry Holland(as Supervisor of Elections in Duval County, Florida). (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C)(Mueller, Ernst) Modified document associations on 10/5/2007 (SPW). (Entered: 10/04/2007)
316 Written designation and consent to act by Gregory A. Lawrence on behalf of American Association of People With Disabilities, Daniel W. O'Connor, Kent Bell, Beth Bowen in supplement to pro hac vice motion for Sashe Dimitroff 298 . Local Counsel: Gregory A. Lawrence. Non−Resident Counsel: Sashe D. Dimitroff. (Lawrence, Gregory) Modified text/ associations on 10/9/2007 (SPW). (Entered: 10/05/2007)
317 Written designation and consent to act by Gregory A. Lawrence on behalf of American Association of People With Disabilities, Daniel W. O'Connor, Kent Bell, Beth Bowen, in supplement to pro hac vice motion for Heather M. Khassian 300 . Local Counsel: Gregory A. Lawrence. Non−Resident Counsel: Heather M. Khassian. (Lawrence, Gregory) Modified text / associations on 10/9/2007 (SPW). (Entered: 10/05/2007)
318 Written designation and consent to act by Gregory A. Lawrence on behalf of American Association of People With Disabilities, Daniel W. O'Connor, Kent Bell, Beth Bowen, in supplement to pro hac vice motion for Kevin A. Keeling 299 . Local Counsel: Gregory A. Lawrence. Non−Resident Counsel: Kevin A. Keeling. (Lawrence, Gregory) Modified text / associations on 10/9/2007 (SPW). (Entered: 10/05/2007)
319 BILL OF COSTS taxed against Defendant Supervisor of Elections, Duval County in the amount of $48,449.34. Signed by Deputy Clerk. VACATED pursuant to Order #323. (SPW) Modified text on 10/12/2007 (SPW). (Entered: 10/05/2007)
320 Unopposed MOTION for Extension of Time to File Response/Reply as to 314 MOTION for taxation of costs and Supporting Memorandum by Jerry Holland(as Supervisor of Elections in Duval County, Florida). (Attachments: # 1 Text of Proposed Order)(Mueller, Ernst) Motions referred to Magistrate Judge Howard T. Snyder. Modified text on 10/9/2007 (SPW). (Entered: 10/05/2007)

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10/09/2007 10/10/2007 10/11/2007 10/15/2007 10/17/2007 10/19/2007 10/22/2007 10/22/2007
10/22/2007 10/25/2007 10/26/2007 10/26/2007 10/29/2007 10/30/2007

321 NOTICE by Kurt S. Browning re 296 Second MOTION for taxation of costs of Filing Bill of Costs (Waas, George) Modified text on 10/10/2007 (SPW). (Entered: 10/09/2007)
322 BILL OF COSTS taxed against plaintiffs, American Association of People with Disabilities, Beth Bowen, Daniel O'Connor, and Kent Bell in the amount of $6,471.91. Signed by Deputy Clerk. (SPW) (Entered: 10/10/2007)
323 ORDER granting 320 Motion for Extension of Time to File Response re: Plaintiff's Motion [for Taxation of Costs]. Response due 10/29/2007. The Bill of Costs 319 is vacated. Signed by Judge Henry Lee Adams Jr. on 10/11/2007. (MO) (Entered: 10/11/2007)
Mail returned addressed to Danielle R. Oddo marked return to sender moved left no address re: 308 Order on motion to withdraw as attorney, 309 Order on motion to appear pro hac vice, 310 Order on motion to appear pro hac vice, 311 Order on motion to appear pro hac vice, 312 Order on motion to extend time (PAM) Modified on 10/18/2007 to enter name (PAM). (Entered: 10/16/2007)
Mail returned addressed to Danielle R. Oddo marked moved left no address re: 319 Bill of costs. (PAM) (Entered: 10/18/2007)
324 NOTICE OF APPEAL as to 294 Amended order, 295 Judgment,, by Jerry Holland(as Supervisor of Elections in Duval County, Florida). (Filing fee not paid) (Mueller, Ernst) (Entered: 10/19/2007)
TRANSMITTAL of initial appeal package to USCA consisting of certified copies of notice of appeal, docket sheet, order/judgment being appealed, and motion, if applicable to USCA re 324 Notice of appeal. Eleventh Circuit Transcript Information Form available to counsel at www.flmd.uscourts.gov under Forms and Publications/General. (SEG) (Entered: 10/22/2007)
325 RESPONSE in opposition re 315 First MOTION to vacate 294 Amended order, 295 Judgment,, Entered on September 20, 2007, Order Entered on March 24, 2004 (Doc. 215), Judgment Entered on March 26, 2004 (Doc. 216) For Dismissal of Case and Supporting MemorandumFirst MOTION to vacate 294 Amended order, 295 Judgment,, Entered on September 20, 2007, Order Entered on March 24, 2004 (Doc. 215), Judgment Entered on March 26, 2004 (Doc. 216) For Dismissal of Case and Supporting Memorandum filed by American Association of People With Disabilities, Daniel W. O'Connor, Kent Bell, Beth Bowen. (Attachments: # 1 Exhibit A−Ct pf Appeals Motion for Reconsideration# 2 Exhibit B−Ct of Appeals Order of Aug 9, 2004# 3 Exhibit C−Ct of Appeals Memo to Counsel of April 20, 2004)(Dimitroff, Sashe) (Entered: 10/22/2007)
USCA appeal fees received $ 455 receipt number J027241 re 324 Notice of appeal filed by Jerry Holland. USCA notified. (SEG) (Entered: 10/23/2007)
326 Unopposed MOTION for Richard A. Ripley to withdraw as attorney for Plaintiffs by American Association of People With Disabilities, Daniel W. O'Connor, Kent Bell, Beth Bowen. (Keeling, Kevin) Motions referred to Magistrate Judge Howard T. Snyder. (Entered: 10/25/2007)
327 Unopposed MOTION for Brian A. Howie to withdraw as attorney for Plaintiffs by American Association of People With Disabilities, Daniel W. O'Connor, Kent Bell, Beth Bowen. (Keeling, Kevin) Motions referred to Magistrate Judge Howard T. Snyder. (Entered: 10/26/2007)
328 Unopposed MOTION for Ari N. Rothman to withdraw as attorney for Plaintiffs by American Association of People With Disabilities, Daniel W. O'Connor, Kent Bell, Beth Bowen. (Keeling, Kevin) Motions referred to Magistrate Judge Howard T. Snyder. (Entered: 10/26/2007)
329 RESPONSE to motion re 314 MOTION for taxation of costs and Supporting Memorandum filed by Jerry Holland(as Supervisor of Elections in Duval County, Florida). (Mueller, Ernst) (Entered: 10/29/2007)
330 Supplemental MOTION for award of Attorney Fees and Costs and Non−Taxable Litigation Expenses and Memorandum of Law in Support Thereof by American

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10/31/2007 11/05/2007
11/06/2007 11/09/2007 11/14/2007 11/16/2007 11/16/2007 11/16/2007 11/19/2007 11/28/2007

Association of People With Disabilities, Daniel W. O'Connor, Kent Bell, Beth Bowen. (Attachments: # 1 Baldridge Declaration# 2 Gardner Declaration# 3 Hanlon Declaration# 4 Howie Declaration# 5 Magid Declaration# 6 Thomas Declaration# 7 Part 1 − Dimitroff Declaration# 8 Part 2 − Dimitroff Declaration# 9 Part 3 − Dimitroff Declaration# 10 Part 4 − Dimitroff Declaration# 11 Part 5 − Dimitroff Declaration# 12 Part 6 − Dimitroff Declaration# 13 Part 7 − Dimitroff Declaration# 14 Part 8 − Dimitroff Declaration# 15 Part 9 − Dimitroff Declaration# 16 Part 10 − Dimitroff Declaration# 17 Part 11 − Dimitroff Declaration# 18 Part 12 − Dimitroff Declaration# 19 Part 13 − Dimitroff Declaration# 20 Part 14 − Dimitroff Declaration# 21 Part 15 − Dimitroff Declaration# 22 Part 16 − Dimitroff Declaration# 23 Part 17 − Dimitroff Declaration# 24 Part 18 − Dimitroff Declaration)(Dimitroff, Sashe) Modified event type / text on 10/31/2007 (SPW). (Entered: 10/30/2007)
331 Unopposed MOTION for Vincent E. Verrocchio to withdraw as attorney for Plaintiffs by American Association of People With Disabilities, Daniel W. O'Connor, Kent Bell, Beth Bowen. (Keeling, Kevin) Motions referred to Magistrate Judge Howard T. Snyder. (Entered: 10/31/2007)
332 Unopposed MOTION to extend time to Within Which to File a Response to AAPWD's Supplemental Motion and Memorandum in Support of Motion for Attorneys' Fees, Costs, and Non−taxable Litigation Expenses (Doc. 330) and Incorporated Memorandum by Jerry Holland(as Supervisor of Elections in Duval County, Florida). (Attachments: # 1 Text of Proposed Order Order)(Mueller, Ernst) Modified on 11/6/2007 (SPW, ). (Entered: 11/05/2007)
333 Unopposed SUPPLEMENT to AAPD's Supplemental Motion for the Award of Attorneys' Fees, Costs and Non−Taxable Litigation Expenses and Memorandum of Law in Support Thereof by American Association of People With Disabilities, Daniel W. O'Connor, Kent Bell, Beth Bowen. (Attachments: # 1 Exhibit A)(Dimitroff, Sashe) Modified text on 11/7/2007 (SPW). (Entered: 11/06/2007)
334 Unopposed MOTION for Lois G. Williams to withdraw as attorney for Plaintiffs by American Association of People With Disabilities, Daniel W. O'Connor, Kent Bell, Beth Bowen. (Keeling, Kevin) Motions referred to Magistrate Judge Howard T. Snyder. (Entered: 11/09/2007)
335 ORDER granting 332 Motion for Enlargement of Time Within Which to File a Response to AAPWD's Supplemental Motion and Memorandum in Support of Motion for Attorneys' Fees, Costs, and Non−taxable Litigation Expenses; Response due 1/14/2008. A Reply Brief will not be permitted. Signed by Judge Henry Lee Adams, Jr on 11/14/2007. (MO) (Entered: 11/14/2007)
336 ORDER: The Unopposed Motion of Richard A. Ripley to Withdraw as Counsel for Plaintiffs 326 is GRANTED and Richard A. Ripley, Esquire, is permitted to withdraw from his representation of Plaintiffs. Signed by Magistrate Judge Howard T. Snyder on 11/16/2007. (LAU) (Entered: 11/16/2007)
337 ORDER: The Unopposed Motion of Brian A. Howie to Withdraw as Counsel for Plaintiffs 327 is GRANTED and Brian A. Howie, Esquire, is permitted to withdraw from his representation of Plaintiffs. Signed by Magistrate Judge Howard T. Snyder on 11/16/2007. (LAU) (Entered: 11/16/2007)
338 ORDER: The Unopposed Motion of Ari N. Rothman to Withdraw as Counsel for Plaintiffs 328 is GRANTED and Ari N. Rothman, Esquire, is permitted to withdraw from his representation of Plaintiffs. Signed by Magistrate Judge Howard T. Snyder on 11/16/2007. (LAU) (Entered: 11/16/2007)
339 ORDER: The Unopposed Motion of Vincent E. Verrocchio to Withdraw as Counsel for Plaintiffs 331 is GRANTED and Vincent E. Verrocchio, Esquire, is permitted to withdraw from his representation of Plaintiffs. Signed by Magistrate Judge Howard T. Snyder on 11/19/2007. (LAU) (Entered: 11/19/2007)
340 ORDER: The Unopposed Motion of Lois G. Williams to Withdraw as Counsel for Plaintiffs 334 is GRANTED and Lois G. Williams, Esquire, is permitted to withdraw from her representation of Plaintiffs. Signed by Magistrate Judge Howard T. Snyder on 11/28/2007. (LAU) (Entered: 11/28/2007)

Case: 3:01-cv-01275-HLA-HTS As of: 04/20/2011 01:38 PM EDT 40 of 43

12/03/2007 12/04/2007 12/05/2007 01/14/2008
01/29/2008 02/05/2008 02/05/2008 02/15/2008
03/13/2008 03/13/2008

341 ORDER denying 293 Motion to Stay; denying as moot 296 Motion for Taxation of Costs; denying 315 Motion to Vacate Amended Order and Judgment Entered on September 20, 2007, Order Entered on March 24, 2004, Judgment Entered on March 26, 2004, and For Dismissal of Case; granting 333 Motion to Supplement Motion for Attorney Fees. Signed by Judge Henry Lee Adams, Jr on 12/3/2007. (MO) (Entered: 12/03/2007)
342 AMENDED NOTICE OF APPEAL as to 294 Amended order, 216 Judgment, 341 Order on motion to stay, Order on motion for taxation of costs, Order on motion to vacate, Order on motion for attorney fees, 295 Judgment, by Jerry Holland(as Supervisor of Elections in Duval County, Florida). (Filing fee not paid) (Mueller, Ernst) Modified on 12/5/2007 (SEG). (Entered: 12/04/2007)
TRANSMITTAL of AMENDED appeal package to USCA consisting of certified copies of notice of appeal, docket sheet, order/judgment being appealed, and motion, if applicable to USCA re 342 Notice of appeal,. (SEG) (Entered: 12/05/2007)
343 RESPONSE to 330 AAPWD's Supplemental MOTION and Memorandum for the Award of Attorney's Fees and Non Taxable Litigation Expenses filed by Jerry Holland (as Supervisor of Elections in Duval County, Florida). (Attachments: # 1 Index of Exhibits, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F, # 8 Exhibit G, # 9 Exhibit H, # 10 Exhibit I, # 11 Exhibit I (Attachments 1−5), # 12 Exhibit I (Attachments 6−8), # 13 Exhibit I (Attachments 9−14), # 14 Exhibit J, # 15 Exhibit K, # 16 Exhibit L, # 17 Exhibit M)(Mueller, Ernst) Modified text on 1/15/2008 (SPW). (Entered: 01/14/2008)
344 MOTION for Hearing or, Alternatively, Permission to File a Reply to Defendant's Response to AAPD's Fee Petition by American Association of People With Disabilities, Daniel W. O'Connor, Kent Bell, Beth Bowen. (Keeling, Kevin) (Entered: 01/29/2008)
345 RESPONSE to motion re 344 MOTION for Hearing or, Alternatively, Permission to File a Reply to Defendant's Response to AAPD's Fee Petition filed by Jerry Holland(as Supervisor of Elections in Duval County, Florida). (Mueller, Ernst) (Entered: 02/05/2008)
346 ORDER granting 344 Motion for Hearing, or Alternatively, Permission to File a Reply to Defendant's Response to AAPD's Fee Petition to the extent that Plaintiffs may file a reply brief not to exceed five (5) pages in length. Signed by Judge Henry Lee Adams, Jr. on 2/5/2008. (MO) (Entered: 02/05/2008)
347 REPLY to response re 345 Response, 333 Unopposed Supplement to AAPD's Supplemental Motion for the Award of Attorneys' Fees, Costs and Non−Taxable Litigation Expenses and Memorandum of Law in Support Thereof, 330 SUPPLEMENTAL MOTION for award of attorney fees filed by American Association of People With Disabilities, Daniel W. O'Connor, Kent Bell, Beth Bowen. (Attachments: # 1 Exhibit Exhibit A, # 2 Exhibit Exhibit B, # 3 Exhibit Exhibit C, # 4 Exhibit Exhibit D)(Dimitroff, Sashe) Modified on 2/19/2008 to link to response and edit text (MGG). (Entered: 02/15/2008)
348 AAPD's Second Supplemental MOTION re: Dkt. #s 330 &322 for Reasonable Attorneys' Fees and Non−Taxable Costs for Work Performed Before the District Court Between October 1, 2007 and February 21, 2008 and Memorandum of Law in Support Thereof by American Association of People With Disabilities, Daniel W. O'Connor, Kent Bell, Beth Bowen. (Dimitroff, Sashe) Modified text/motion type on 3/14/2008 (SPW). (Entered: 03/13/2008)
349 DECLARATION of E. Elaine Gardner re 348 AAPD's Second Supplemental MOTION re: Dkt. #s 330 &322 Second Supplemental Motion for Reasonable Attorneys' Fees and Non−Taxable Costs for Work Performed Before the District Court Between October 1, 2007 and February 21, 2008 and Memorandum of Law in Support Thereof by American Association of People With Disabilities, Daniel W. O'Connor, Kent Bell, Beth Bowen. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Dimitroff, Sashe) Modified text on 3/14/2008 (SPW). (Entered: 03/13/2008)

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03/13/2008
03/18/2008 03/18/2008 03/27/2008 04/18/2008 04/18/2008 04/28/2008 05/09/2008 05/16/2008 05/16/2008
05/16/2008 05/16/2008

350 DECLARATION of Sashe D. Dimitroff re 348 AAPD's Second Supplemental MOTION re: Dkt. #s 330 &322 for Reasonable Attorneys' Fees and Non−Taxable Costs for Work Performed Before the District Court Between October 1, 2007 and February 21, 2008 and Memorandum of Law in Support Thereof by American Association of People With Disabilities, Daniel W. O'Connor, Kent Bell, Beth Bowen. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E)(Dimitroff, Sashe) Modified text on 3/14/2008 (SPW). (Entered: 03/13/2008)
351 First MOTION to strike 350 Declaration, 349 Declaration, and 348 SUPPLEMENTAL MOTION for attorney fees and Non−Taxable Costs, by Jerry Holland(as Supervisor of Elections in Duval County, Florida). (Mueller, Ernst) Modified text on 3/19/2008 (SPW). (Entered: 03/18/2008)
352 SUPPLEMENT (Rule 3.01(g) Certification) re: 351 First MOTION to strike 350 Declaration, 349 Declaration, and 348 SUPPLEMENTAL MOTION for attorney fees and Non−Taxable Costs, by Jerry Holland(as Supervisor of Elections in Duval County, Florida). (Mueller, Ernst) Modified text on 3/19/2008 (SPW). (Entered: 03/18/2008)
353 RESPONSE to motion re 351 First MOTION to strike 350 Declaration,, 349 Declaration,, 348 SUPPLEMENTAL MOTION for attorney fees and Non−Taxable Costs, filed by American Association of People With Disabilities. (Dimitroff, Sashe) Modified text on 3/28/2008 (SPW). (Entered: 03/27/2008)
354 CERTIFICATE of readiness sent to USCA re: 324 Notice of appeal. ROA consists of: volume of pleadings: 12 volume of transcripts: 10 volume of exhibits: 10. USCA number: 07−15004−CC (SEG) (Entered: 04/18/2008)
RECORD on appeal sent to USCA re 324 Notice of appeal. Transmittal includes certified copy of docket sheet, volume of pleadings: 12, volume of transcripts: 10, volume of exhibits: 10 [4 boxes, 6 folders]. USCA number 07−15004−CC (SEG) (Entered: 04/18/2008)
355 ORDER of USCA as to 217 Notice of appeal filed by Jerry Holland, EOD: 4/24/08; USCA number: 04−11566−AA. (SEG) Modified on 4/28/2008 (SEG). (Entered: 04/28/2008)
ACKNOWLEDGMENT by USCA of receiving record on appeal on 4/21/08 re 324 Notice of appeal, 342 Notice of appeal. USCA number: 07−15004−CC. (SEG) (Entered: 05/09/2008)
356 Plaintiffs' Application for Reasonable Attorneys' Fees , Costs and Expenses Incurred During Appeal Number 04−11566 by American Association of People With Disabilities, Daniel W. O'Connor, Kent Bell, Beth Bowen. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Dimitroff, Sashe) Modified text on 5/19/2008 (SPW). (Entered: 05/16/2008)
357 DECLARATION of Sashe D. Dimitroff re 356 Plaintiffs' Application for Reasonable Attorneys' Fees , Costs and Expenses Incurred During Appeal Number 04−11566 by American Association of People With Disabilities, Daniel W. O'Connor, Kent Bell, Beth Bowen. (Attachments: # 1 Exhibit A (Declaration of J. Douglas Baldridge), # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D (see below), # 5 Exhibit E (see below), # 6 Exhibit F)(Dimitroff, Sashe) Modified text on 5/19/2008 (SPW). (Additional attachment(s) added on 5/19/2008: # 7 Exhibit D (Oriented to the Screen), # 8 Exhibit E (Oriented to the Screen)) (SPW). Modified attachments / text on 5/19/2008 (SPW). (Entered: 05/16/2008)
358 DECLARATION of E. Elaine Gardner re 356 Plaintiffs' Application for Reasonable Attorneys' Fees , Costs and Expenses Incurred During Appeal Number 04−11566 by American Association of People With Disabilities, Daniel W. O'Connor, Kent Bell, Beth Bowen. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Dimitroff, Sashe) Modified text on 5/19/2008 (SPW). (Entered: 05/16/2008)
359 DECLARATION of Alan Wiseman re 356 Plaintiffs' Application for Reasonable Attorneys' Fees , Costs and Expenses Incurred During Appeal Number 04−11566, by American Association of People With Disabilities, Daniel W. O'Connor, Kent

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05/16/2008 05/19/2008 05/23/2008 06/20/2008
08/05/2008
08/07/2008 08/07/2008 08/12/2008 08/18/2008

Bell, Beth Bowen. (Dimitroff, Sashe) Modified text on 5/19/2008 (SPW). (Entered: 05/16/2008)
360 DECLARATION of Brian Howie re 356 Plaintiffs' Application for Reasonable Attorneys' Fees , Costs and Expenses Incurred During Appeal Number 04−11566, by American Association of People With Disabilities, Daniel W. O'Connor, Kent Bell, Beth Bowen. (Dimitroff, Sashe) Modified text on 5/19/2008 (SPW). (Entered: 05/16/2008)
361 Unopposed MOTION for Extension of Time to File Response to Plaintiff's Application for Reasonable Attorneys' Fees, Costs and Expenses Incurred During Appeal Number 04−11566 (Doc. 356 ) and Incorporated Memorandum by Jerry Holland(as Supervisor of Elections in Duval County, Florida). (Mueller, Ernst) Modified associations on 5/20/2008 (SPW). (Entered: 05/19/2008)
362 ENDORSED ORDER granting 361 Motion for Extension of Time to File Response to Plaintiff's Application for Reasonable Attorneys' Fees, Costs and Expenses Incurred During Appeal Number 04−11566 (Doc. 356). Issued by Judge Henry Lee Adams, Jr. on 5/23/2008. (MO) Modified on 5/23/2008 (MO). (Entered: 05/23/2008)
363 MEMORANDUM in opposition re: 356 Application for reasonable attorney's fees, costs, and expenses incurred during Appeal #04−11566, 360 Declaration, 357 Declaration, 359 Declaration, 358 Declaration, filed by Kurt S. Browning, Amy Tuck, Jerry Holland(as Supervisor of Elections in Duval County, Florida). (Attachments: # 1 Exhibit List, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F, # 8 Exhibit G, # 9 Exhibit H, # 10 Exhibit I, # 11 Exhibit J, # 12 Exhibit K, # 13 Exhibit L, # 14 Exhibit M, # 15 Exhibit N, # 16 Exhibit O, # 17 Exhibit P, # 18 Exhibit Q, # 19 Exhibit R, # 20 Exhibit S, # 21 Exhibit T, # 22 Exhibit U, # 23 Exhibit V, # 24 Exhibit W)(Mueller, Ernst) Modified text on 6/23/2008 (SPW). (Entered: 06/20/2008)
364 ORDER granting in part 314 Motion for Taxation of Costs; granting in part 330 Supplemental Motion for the Award of Attorneys' Fees, Costs, and Non−Taxable Litigation Expenses; denying 351 Motion to Strike Docket Items 348, 349, and 350. Costs are taxed against Defendant Jerry Holland, as Supervisor of Elections in the amount of $27,926.18. Plaintiffs are awarded attorneys fees in the amount of $1,260,667.10 and expenses and non−taxable costs in the amount of $137,523.14. The Clerk shall enter judgment accordingly. Signed by Judge Henry Lee Adams, Jr. on 8/5/2008. (MO) (Entered: 08/05/2008)
365 BILL OF COSTS taxed against Defendant Jerry Holland, as Supervisor of Elections in Duval County, Florida, and in favor of Plaintiffs, in the amount of $27,926.18. Signed by Deputy Clerk. (DH) (Entered: 08/07/2008)
366 JUDGMENT entered against Defendant Jerry Holland, as Supervisor of Elections in Duval County, Florida, and in favor of Plaintiffs, American Association of People With Disabilities, Daniel W. O'Conner, Kent Bell, and Beth Bowen, in the amount of $1,260,667.10 in attorneys' fees and $137,523.14 in expenses and non−taxable costs. Plaintiffs are awarded post−judgment interest on the $1,260,667.10 in attorneys' fees, beginning to accrue as of August 5, 2008. Signed by Deputy Clerk. (DH) (Entered: 08/07/2008)
367 MOTION to stay Orders and Judgment re 366 Judgment on attorney fees, 365 Bill of costs, 364 Order on motion for taxation of costs, motion for attorney fees, and motion to strike Pending Resolution of Appeals in Case and Incorporated Memorandum by Jerry Holland(as Supervisor of Elections in Duval County, Florida). (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Mueller, Ernst) Modified text on 8/14/2008 (SPW). (Entered: 08/12/2008)
368 RESPONSE and Partial Withdrawal of Opposition to 367 MOTION for Stay of Orders and Judgment (Documents 366 , 365 and 364 ) Pending Resolution of Appeals in Case and Incorporated Memorandum of Law, filed by American Association of People With Disabilities. (Attachments: # 1 Exhibit 1 Correspondence)(Keeling, Kevin) Modified text on 8/19/2008 (SPW). (Entered: 08/18/2008)

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08/19/2008 09/03/2008 09/04/2008 02/19/2009 03/23/2011

369 RESPONSE to motion re 348 SUPPLEMENTAL MOTION for attorney fees and Non−Taxable Costs filed by Jerry Holland(as Supervisor of Elections in Duval County, Florida). (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Mueller, Ernst) (Entered: 08/19/2008)
370 NOTICE OF APPEAL as to 366 Judgment on attorney fees, 365 Bill of costs, 364 Order on motion for taxation of costs, Order on motion for attorney fees, Order on motion to strike by Jerry Holland (as Supervisor of Elections in Duval County, Florida). Filing fee $ 455, receipt number J030210. (SEG) (Entered: 09/04/2008)
TRANSMITTAL of initial appeal package to USCA consisting of certified copies of notice of appeal, docket sheet, order/judgment being appealed, and motion, if applicable to USCA re 370 Notice of appeal. Eleventh Circuit Transcript Information Form available to counsel at www.flmd.uscourts.gov under Forms and Publications/General. (SEG) (Entered: 09/04/2008)
371 ORDER granting 367 Motion for Stay of Orders and Judgment Pending Resolution of Appeals; deferring ruling on 348 Motion for Reasonable Attorneys' Fees and Non−Taxable Costs and 356 Motion for Reasonable Attorneys' Fees, Costs and Expenses. Signed by Judge Henry Lee Adams, Jr. on 2/19/2009. (MO) (Entered: 02/19/2009)
372 NOTICE of Change of Counsel's Law Firm Affiliation for Plaintiffs American Association of People with Disabilities, et al.by American Association of People With Disabilities, Kent Bell, Beth Bowen, Daniel W. O'Connor (Keeling, Kevin) (Edited text, modified on 3/24/2011) (TL). (Entered: 03/23/2011)

 
 [PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

FILED

________________________ U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

No. 07-15004

MAY 11, 2010

________________________

JOHN LEY CLERK

D. C. Docket No. 01-01275-CV-J-25-HTS

AMERICAN ASSOCIATION OF PEOPLE WITH DISABILITIES, on behalf of themselves and others similarly situated, DANIEL W. O'CONNOR, KENT BELL, on behalf of themselves and others similarly situated, BETH BOWEN, on behalf of herself and others similarly situated,

KATHERINE HARRIS, as Secretary of State for the State of Florida, et al.,

versus

JERRY HOLLAND, as Supervisor of Elections in Duval County, Florida,

Plaintiffs-Appellees, Defendants,

Defendant-Appellant.
________________________ Appeal from the United States District Court
for the Middle District of Florida _________________________
(May 11, 2010) Before TJOFLAT and CARNES, Circuit Judges, and HOOD,* District Judge. TJOFLAT, Circuit Judge:
This case is before this court for the third time. In the first appeal, which challenged an injunction entered to enforce a federal regulation against one of the defendants, a panel of this court, while retaining jurisdiction, remanded the case with the instruction that the district court resolve two questions of fact. The district court did as instructed, and the case was returned to the panel. The panel then found that the injunction was premature and dismissed the appeal as moot. After the panel’s mandate issued, the defendant moved the district court to vacate the injunction and dismiss the case. The court denied his motion and entered a final judgment, effectively reinstating the injunction. This appeal is from that judgment.
We conclude that because the federal regulation at issue is not subject to enforcement via the injunction the district court fashioned, the plaintiffs had no
* Honorable Joseph M. Hood, United States District Judge for the Eastern District of Kentucky, sitting by designation
2

legally cognizable claim for relief. We therefore vacate the district court’s
judgment and remand the case with the instruction that the district court vacate the
injunction and dismiss the action.
I.
Plaintiffs are visually or manually impaired Florida citizens who are
registered to vote in Duval County, Florida, and are represented by the American
Association of People with Disabilities (collectively “Plaintiffs”). Plaintiffs filed a
putative class action on November 8, 2001,1 against Katherine Harris, Florida
Secretary of State; L. Clayton Roberts, Director of the Division of Elections of the
Florida Department of State; John Stafford, the Supervisor of Elections of Duval
County; and members of the Jacksonville City Council (collectively
“Defendants”),2 alleging that Defendants violated federal statutory and state
constitutional provisions by failing to provide handicapped-accessible voting
machines to visually or manually impaired Florida voters after the 2000 general
1 The case was filed in the Jacksonville Division of the U.S. District Court for the Middle District of Florida and assigned to the Honorable Ralph W. Nimmons, Jr. Judge Nimmons handled the case until shortly before his death on November 24, 2003. The case was then reassigned to the Honorable Wayne E. Alley of the Western District of Oklahoma, who handled it until September 2, 2004. On September 14, 2004, the case was reassigned to the Honorable Henry L. Adams, Jr., and he has presided over the case since that date. 2 The geographic limits of the City of Jacksonville and Duval County are coextensive. The City and the County are consolidated and are governed under the Charter of the Consolidated Government of the City of Jacksonville, which established a mayor-city council form of government. Throughout this opinion, we refer to the City and the County interchangeably.
3

election.3 Specifically, Duval County implemented optical scan technology4 to
avoid “hanging chads” and other problems associated with the punch card system
used in 2000, but purchased only three accessible touch screen machines with
audio components for the entire County’s use.5
Plaintiffs alleged that due to the lack of handicapped-accessible equipment,
they could not enjoy the direct and secret voting experience enjoyed by non-
disabled citizens, which violated their fundamental right to vote. Their complaint
stated claims under the Americans with Disabilities Act (“ADA”), 42 U.S.C. §
12133, the Rehabilitation Act, 29 U.S.C. § 794, and provisions of the Florida
Constitution and statutes.6 Plaintiffs requested a declaration that Defendants’
conduct violated those laws, as well as an injunction prohibiting Defendants from
3 Jerry Holland succeeded John Stafford as Supervisor of Elections in Duval County, and Glenda E. Hood and Edward C. Kast succeeded Katherine Harris and L. Clayton Roberts, respectively. The district court dismissed the City Council members and the state officials from the case in orders entered on October 16, 2002, and September 20, 2007, respectively. Those dismissals are not challenged here. Although Jerry Holland is the sole defendant remaining in the case, for brevity we refer to him and the others who were sued collectively as “Defendants.” 4 An optical scan system provides voters with a paper ballot that features ovals next to each candidate’s name or ballot issue. The voter uses a pen to fill in the oval corresponding to his or her vote. Election officials then feed the ballot through a machine that uses a light beam to record which oval the voter selected and tabulates the total number of votes. 5 After the 2000 general election, Florida enacted legislation prohibiting the use of punch card systems effective September 2, 2002. Fla. Stat. § 101.56042. 6 The complaint invoked the district court’s federal question jurisdiction, 28 U.S.C. § 1331, with respect to the ADA and Rehabilitation Act claims, and the court’s supplemental jurisdiction, 28 U.S.C. § 1367, with respect to the state law claims.
4

continuing their allegedly illegal activities and from purchasing more inaccessible voting machines.
Defendants moved to dismiss the complaint under Federal Rule of Civil Procedure 12(b)(6), arguing they had no duties under the ADA, Rehabilitation Act, or the Florida Constitution and Florida statutes to ensure that voting systems met the requirements of all disabled voters, or to provide absolute secrecy in voting. After briefing and oral argument, on October 16, 2002 the district court granted Defendants’ motion to dismiss Plaintiffs’ claims under the ADA, the Rehabilitation Act, and the Florida Constitution and statutes. The court held that Florida law, which enabled handicapped voters to have a third party assist them in the voting booth, satisfied the ADA and the Rehabilitation Act and Florida’s constitutional and statutory requirements.7
The district court gave Plaintiffs leave to file an amended complaint including further allegations supporting their ADA and Rehabilitation Act claims, and directed them to consider whether the Florida election law, as amended by the 2002 Florida legislature, satisfied the requirements of those federal statutes.8
7 The district court’s Florida law holding is ambiguous. We interpret the court’s holding as stated in the text preceding this footnote because it provides the only basis on which the court could have found no violation of the ADA or the Rehabilitation Act. 8 The 2002 amendments of the Florida election law were enacted before the district court entered its October 16, 2002 order, but were not before the court at the time Defendants’ motion to dismiss was argued and the court took the case under submission. Rather, the amendments
5

Plaintiffs filed a two-count amended complaint on November 5, 2002, alleging violations of the ADA and the Rehabilitation Act. The amended complaint noted that the 2002 Florida legislature had enacted H.B. 1350, mandating that each precinct in Florida provide one handicapped-accessible voting machine, but asserted that H.B. 1350, when implemented, would not satisfy the ADA and Rehabilitation Act requirements. Moreover, H.B. 1350 would not become effective until one year after the Florida legislature appropriated funding, and until that occurred, Duval County would not be mandated by Florida law to provide a handicapped-accessible voting machine at each precinct.
The amended complaint also noted federal legislation that had become effective one week before its filing date. On October 29, 2002, President Bush signed into law the Help America Vote Act of 2002 (“HAVA”), Pub. L. No. 107252, 116 Stat. 1666 (codified at 42 U.S.C. §§ 15301–15545). In its Title III, HAVA required voting equipment used in federal elections to “be accessible for individuals with disabilities . . . in a manner that provides the same opportunity for access and participation (including privacy and independence) as for other voters” by demanding “at least one direct recording electronic voting system or other voting system equipped for individuals with disabilities at each polling place.” 42
were brought to the court’s attention shortly before the order issued. 6

U.S.C. § 15481(a)(3). State and local voting authorities had to comply with the accessibility provision by January 1, 2006. Id. § 15481(d). HAVA provided funding for states to make improvements required by § 15481. Id. § 15301.
The Florida legislature had enacted similar laws governing accessibility in polling places, which the amended complaint omitted to mention. Responding to the report of a Select Task Force on Voting Accessibility, which the Secretary of State had created following the 2000 general election to address problems with disabled voter accessibility, the 2002 Florida legislature had promulgated standards for voting equipment—including standards designed to solve the accessibility problem. The Department of State would certify equipment that met such statutory standards. Fla. Stat. § 101.56062; see also Electronic Voting Systems Act, 2002 Fla. Sess. Law Serv. 2002-17 (West) (codified at Fla. Stat. §§ 101.5601–.5614). Among other features, voting systems would be required to include a tactile or audio input device (or both), a method by which voters could confirm tactile or audio inputs, operable controls discernible by the visually impaired, and specific functions for audio ballots. Fla. Stat. § 101.56062. As with H.B. 1350, county compliance with § 101.56062 was required one year after the Florida legislature appropriated funding. 2002 Fla. Sess. Law Serv. 2002-218 § 22 (West).
The district court convened a bench trial on Plaintiffs’ ADA and
7

Rehabilitation Act claims on September 23, 2003. By this time, the district court
had dismissed the City Council members from the case; the County’s Supervisor of
Elections, the Secretary of State, and the State Department’s Director of the
Division of Elections remained. Their defense to Plaintiffs’ claims was that the
handicapped-accessible voting machines provided by the Florida legislature would
satisfy HAVA Title III—and therefore the ADA and the Rehabilitation Act to the
extent that Plaintiffs were contending that the latter two statutes applied to
handicapped-accessible voting machines—and that appropriate steps were being
taken in Duval County to meet HAVA Title III’s requirements.
The trial ended on October 1, 2003, and, on March 26, 2004, the district
court issued a declaratory judgment and an injunction against the County’s
Supervisor of Elections.9 The court bypassed the questions of whether the Florida
election law, as amended, passed ADA and Rehabilitation Act muster10 but found
9 Judge Alley presided over the trial and issued the declaratory judgment and injunction. See supra note 1. The district court dismissed the Secretary of State and the State Department’s Director of the Division of Elections from the case in the judgment entered on September 20, 2007, which reflected the court’s March 24, 2004 order stating that the state officials would be entitled to judgment against Plaintiffs upon submission of a final status report regarding the application of Diebold Elections Systems, Inc. for certification of its handicapped-accessible voting machines. From this point forward, we refer to the March 26, 2004 judgment, which relied on the reasoning of the district court’s March 24, 2004 order. 10 Nor did the district court address the question of whether HAVA Title III superseded the ADA and the Rehabilitation Act to the extent that Plaintiffs were attempting to apply those two statutes to the handicapped-accessible voting machine issues at hand. Rather, as indicated in the text infra, the court focused solely on Duval County’s implementation of the provisions the Florida legislature had promulgated to solve the handicapped voter accessibility problem.
8

that the Supervisor of Elections, then John Stafford, had failed to satisfy the
requirements of a regulation promulgated under the ADA, 28 C.F.R. § 35.151(b),
which deals with “Nondiscrimination on the Basis of Disability in State and Local
Government Services.”11 Based on this violation, the court enjoined Stafford to
provide, by April 12, 2004, at least one handicapped-accessible voting machine at
twenty percent of the polling places in Duval County and to install, by May 14,
2004, an unspecified number of touch screen voting machines with audio capacity,
as certified by the Department of State.12 Am. Ass’n of People with Disabilities v.
Hood, 310 F. Supp. 2d 1226 (M.D. Fla. 2004).
On March 31, 2004, Stafford appealed the March 26 injunction to this court,
asserting that the case was moot because HAVA Title III superseded the ADA and
11 This regulation provides:
Each facility or part of a facility altered by, on behalf of, or for the use of a public entity in a manner that affects or could affect the usability of the facility or part of the facility shall, to the maximum extent feasible, be altered in such manner that the altered portion of the facility is readily accessible to and usable by individuals with disabilities, if the alteration was commenced after January 26, 1992.
28 C.F.R. § 35.151(b). 12 Under Florida law, counties were, and still are, responsible for choosing the types of voting machines used in their precincts. Any machines a county purchased had to be manufactured by a vendor approved by the Director of the Division of Elections and certified by the Director. Fla. Stat. § 101.294. Prior to the issuance of the district court’s March 26 judgment, Diebold Election Systems, Inc. applied to the Division of Elections for certification of its accessible touch screen voting machine, and the district court instructed the Secretary of State and the Director of the Division to submit a report detailing Diebold’s application and disclosing the results of the tests performed on the machine by handicapped testers. See supra note 9. The report was submitted, and the district court dismissed these defendants from the case.
9

the Rehabilitation Act (as they might apply in the handicapped-accessible voting machine context). Stafford further asserted that he was in the process of implementing the provisions of Florida law13 and, under Title III, had until January 1, 2006 to complete the job. The district court’s injunction was therefore premature.
While Stafford’s appeal was pending, the following events took place. The Director of the Division of Elections certified the touch screen system manufactured by Diebold Election Systems, Inc. for use in Florida. The Florida legislature, in its 2004–2005 General Appropriations Act, appropriated $11,600,000 to the counties to comply with HAVA Title III and Florida law on voting accessibility. The appropriation triggered the deadline for at least one Title III-compliant voting machine to be available in each precinct by July 1, 2005. In April 2005, the City of Jacksonville enacted an ordinance appropriating a $1,187,543.79 grant from the state to purchase at least one accessible voting machine for each precinct. On July 29, 2005, the City and Diebold entered into a purchase agreement for Diebold’s touch screen machines.
Given this information, on August 8, 2005, this court, while retaining jurisdiction over the appeal, remanded the case to the district court to answer two
13 Stafford was referring to the Florida legislation that addressed the handicapped-accessibility problem—legislation the district court approved in its March 26, 2004 judgment.
10

questions of fact: (1) whether the City had a contract to provide Duval County with enough disabled-compliant voting machines to place one machine in each voting precinct, and (2) if a contract existed, whether the voting machines would be in place and ready for use by the next election. The district court held an evidentiary hearing and answered both questions in the affirmative.
Based on the district court’s answers and Stafford’s representation that the City had acquired 326 HAVA-compliant Diebold touch screen machines that would be ready for use as of November 17, 2005, this court concluded that Stafford’s appeal was moot and, on August 17, 2007, entered an order dismissing it.14
On September 18, 2007, the district court, acting on its own initiative, ordered the Clerk of the District Court to enter a final judgment against Stafford in conformance with the court’s March 26, 2004 declaratory judgment and injunction,15 and the Clerk did so on September 20, 2007.16 On October 4, 2007, Stafford moved the district court to vacate the September 20 judgment and to
14 That the Diebold machines would be ready for use by November 17, 2005, meant that Stafford had complied with HAVA Title III’s January 1, 2006 deadline. 15 In the same September 18, 2007 order, the court denied Plaintiffs’ motion for attorney’s fees and costs because a final judgment had not been entered, but gave Plaintiffs leave to refile a motion for attorney’s fees and costs within fourteen days after entry of the September 18 order. 16 Judge Adams was the district judge who issued the September 18, 2007 order because the case had been reassigned to him. See supra note 1.
11

dismiss the case with prejudice.17 On December 3, 2007, the district court entered an order denying his motion. The next day, Stafford appealed the district court’s September 20 judgment and the December 3 order.18
Stafford presents two arguments for the reversal of the September 20 judgment. The first argument is that our dismissal of the previous appeal as moot required the district court to vacate its March 26, 2004 declaratory judgment and injunction and to dismiss the case. The second is that the ADA’s implementing regulation, 28 C.F.R. § 35.151(b), did not provide the district court with a legal basis for issuing the injunction, which obligated him to purchase voting machines that were accessible to the visually and manually impaired. We are persuaded by Stafford’s second argument; § 35.151(b) did not provide a private right of action that Plaintiffs could pursue here. Having reached this holding, which will operate to terminate this controversy, we need not address Stafford’s first argument.
II. We begin our discussion of Stafford’s second argument by noting that although Plaintiffs’ amended complaint stated claims under the ADA and the Rehabilitation Act, and the parties tried those claims to the district court, the
17 Stafford moved the district court pursuant to Fed. R. Civ. P. 59(e). 18 We have jurisdiction because the district court entered a final judgment as to the relief requested in Plaintiffs’ amended complaint. 28 U.S.C. § 1291. Pending before the district court, and therefore not before us, are Plaintiffs’ motions for attorney’s fees and costs.
12

district court’s March 26, 2004 declaratory judgment did not hold that Stafford (or any of the Defendants) had violated either of those two statutes. In fact, the district court reached no legal holding vis-à-vis the ADA or the Rehabilitation Act. Instead, the court found that Stafford had violated one of the ADA’s implementing regulations, 28 C.F.R. § 35.151(b). Hood, 310 F. Supp. 2d at 1236. Specifically, the court concluded that by purchasing optical scan machines when it was technologically and financially feasible to purchase handicapped-accessible touch screen machines,19 Stafford failed to fulfill his obligation to provide “to the maximum extent feasible” an altered portion of a facility that was “readily accessible and usable by individuals with disabilities.” 28 C.F.R. § 35.151(b). The court relied on the expansive definition of “facility” in 28 C.F.R. § 35.104 to hold that voting equipment constituted a facility that, when altered, obligated the public entity operating it to make it accessible. Notably, however, the court did not find that this shortcoming violated the ADA or the Rehabilitation Act.
It is unclear where the district court found the authority to order Stafford to comply with 28 C.F.R. § 35.151(b) without first ascertaining whether the ADA itself authorized such relief. Although Plaintiffs referred to ADA implementing
19 Recall that in his October 16, 2002 order, Judge Nimmons held that such purchase of optical scan machines did not violate the ADA because Florida law provided for third-party assistance in the voting booth.
13

regulations in their amended complaint and trial brief, they did so as part of their claim that Stafford was excluding them from participating in a program of voting, in violation of the ADA. See Shotz v. Cates, 256 F.3d 1077, 1079 (11th Cir. 2001) (holding that to prove a violation of Title II of the ADA, a plaintiff must show, inter alia, “that he was ‘excluded from participation in or . . . denied the benefits of the services, programs, or activities of a public entity’ or otherwise ‘discriminated [against] by such entity’” (quoting 42 U.S.C. § 12132)). There is no indication in the amended complaint that Plaintiffs were alleging a violation of § 35.151(b) as a freestanding cause of action. Indeed, Plaintiffs’ trial brief did not even cite § 35.151(b). Instead, it cited 28 C.F.R. § 35.149,20 alleging that Stafford excluded them from a program of voting.
Precedent of the Supreme Court and the federal courts of appeals, including this court, certainly lends no support to the district court’s holding that an administrative regulation automatically creates a private right of action. In Cort v.
20 This regulation reads: Except as otherwise provided in § 35.150, no qualified individual with a disability shall, because a public entity’s facilities are inaccessible to or unusable by individuals with disabilities, 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 public entity.
28 C.F.R. § 35.149.
14

Ash, to determine whether Congress intended to create a private right of action
where none was expressed in a statute, the Supreme Court looked for the answer to
four questions:
First, is the plaintiff one of the class for whose especial benefit the statute was enacted—that is, does the statute create a federal right in favor of the plaintiff? Second, is there any indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one? Third, is it consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff? And finally, is the cause of action one traditionally relegated to state law, in an area basically the concern of the States, so that it would be inappropriate to infer a cause of action based solely on federal law?
422 U.S. 66, 78, 95 S. Ct. 2080, 2088 (1975) (citations and quotations omitted). In
later decisions, the Court focused on the second question —legislative
intent—almost to the exclusion of the others. See, e.g., Thompson v. Thompson,
484 U.S. 174, 179, 108 S. Ct. 513, 516 (1988) (“The intent of Congress remains
the ultimate issue . . . .”); Touche Ross & Co. v. Redington, 442 U.S. 560, 575, 99
S. Ct. 2479, 2489 (1979) (“The central inquiry [is] whether Congress intended to
create, either expressly or by implication, a private cause of action.”); Love v.
Delta Air Lines, 310 F.3d 1347, 1351–52 & n.2 (11th Cir. 2002) (recognizing this
trend and citing additional cases). Therefore, for an ADA implementing regulation
to provide a private right of action, Congress must have unambiguously indicated
in the enabling statute, expressly or by clear implication, its intent to provide a
15

remedy to injured parties, be it monetary, declaratory, or injunctive. In Alexander v. Sandoval, 532 U.S. 275, 121 S. Ct. 1511 (2001), the
Supreme Court squarely addressed whether a private right of action existed to enforce an administrative regulation. Section 601 of Title VI of the Civil Rights Act of 1964 contained a provision prohibiting discrimination in covered programs or activities on the basis of race, color, or national origin. 42 U.S.C. § 2000d. Section 602 of Title VI authorized federal agencies to effectuate § 601 by promulgating regulations. 42 U.S.C. § 2000d-1. One regulation promulgated under § 602 prohibited funding recipients from using criteria or “methods of administration” that had the effect of discriminating based on race, color, or national origin. 28 C.F.R. § 42.104(b)(2).
The plaintiffs, contending that § 42.104(b)(2) provided a private right of action, sued to enjoin the enforcement of an Alabama policy mandating that driver’s license examinations be given only in English. The district court enjoined the enforcement, and this court affirmed. Sandoval v. Hagan, 197 F.3d 484, 511 (11th Cir. 1999). The Supreme Court, however, reversed. The Court noted first that it had previously interpreted § 601 to reach only intentional acts of discrimination, not disparate-impact discrimination, 532 U.S. at 280–81, 121 S. Ct. at 1516 (citing Guardians Ass’n v. Civil Serv. Comm’n of N.Y. City, 463 U.S. 582,
16

103 S. Ct. 3221 (1983)), and that it was “clear that the private right of action to enforce § 601 does not include a private right to enforce” the disparate-impact regulation, § 42.104(b)(2), id. at 285–86, 121 S. Ct. at 1519 (citing Cent. Bank of Denver, N.A. v. First Interstate Bank of Denver, N.A., 511 U.S. 164, 173, 114 S. Ct. 1439, 1446 (1994)). Instead, the right had to “come, if at all, from the independent force of § 602.” Id. at 286, 121 S. Ct. at 1519.
Examining § 602, the Court found that it contained no “rights-creating” language akin to that which the Court had previously found in § 601. Id. at 288 (citing Cannon v. Univ. of Chi., 441 U.S. 677, 690 n.13, 99 S. Ct. 1946, 1954 n.13 (1979) (finding “rights-creating” language in § 601)). Furthermore, § 602 provided methods for its own enforcement (such as an agency’s ability to terminate funding to a program that violated the regulation) that militated against congressional intent to create a private remedy. Id. at 289–91, 121 S. Ct. at 1521–22. The Court rejected the plaintiff’s argument that the regulation contained rights-creating language that made it privately enforceable, because no such language appeared in § 602: “Language in a regulation may invoke a private right of action that Congress through statutory text created, but it may not create a right that Congress has not.” Id. at 291, 121 S. Ct. at 1522. Thus, because “it is most certainly incorrect to say that language in a regulation can conjure up a private
17

cause of action that has not been authorized by Congress,” id., and because Title VI did not “display an intent to create a freestanding private right of action to enforce regulations promulgated under § 602,” id. at 293, 121 S. Ct. at 1523, the Court held the plaintiffs had no stand-alone cause of action to enforce § 602’s regulations, id.
Following Sandoval’s reasoning, we recognized in Love that we must look to “legislative intent to create a private right of action as the touchstone of [the] analysis.” 310 F.3d at 1352. We held further that “while regulations that merely interpret a statute may provide evidence of what private rights Congress intended to create . . . ‘regulations that go beyond what the statute itself requires’ are not enforceable through a private right of action.” Id. at 1354 (quoting Sandoval, 532 U.S. at 293 n.8, 121 S. Ct. at 1523 n.8). We also held that if examination of the text and history of a statute does not allow us to conclude that Congress intended to create a private right of action, “Sandoval instructs that such a right may not be created or conferred by regulations promulgated to interpret and enforce it.” Id. at 1353.
The lesson from Sandoval and the cases interpreting it, taken together with Cort’s focus on legislative intent, is simple and straightforward. There is no freestanding private right of action to enforce a statute’s implementing regulation
18

unless Congress has clearly indicated, expressly or impliedly, to the contrary. To
find such a right of action, a court must examine the text, history, and structure of
both the statute and the regulation to see if Congress provided both a right to
enforce the regulation and a remedy for successful plaintiffs. See Sandoval, 532
U.S. at 288, 121 S. Ct. at 1520; Cort, 422 U.S. at 78, 95 S. Ct. at 2088.
In this case, to find a private right of action in § 35.151(b), the district court
would have had to employ an analysis of the type employed by the Ninth Circuit in
Lonberg v. City of Riverside, 571 F.3d 846 (9th Cir. 2009), petition for cert. filed,
(U.S. Apr. 15, 2010) (No. 09-1259). There, the court applied Sandoval in deciding
an ADA claim that a city had not met the standards for ADA compliance transition
plans set forth in 28 C.F.R. § 35.150(d). The court summarized Sandoval as
instruct[ing] that because only Congress can create a private right of action through statute, we must examine a challenged regulation in the context of the statute it is meant to implement. Only those regulations effectuating the statute’s clear prohibitions or requirements are enforceable through the statute’s private right of action; regulations that do not encapsulate the statutory right and corresponding remedy are not privately enforceable.
571 F.3d at 850–51. The court examined ADA Title II § 202, 42 U.S.C. § 12132 (prohibiting discrimination by public entities on the basis of disabilities),21 and
21 The statutory prohibition against discrimination in Title II of the ADA reads: Subject to the provisions of this subchapter, no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or 19

found that its language neither imposed upon public entities an obligation to draft a detailed compliance plan to achieve “meaningful access” for those with disabilities, nor indicated that enforcement of § 35.150(d) would necessarily remedy a “meaningful access” violation. 571 F.3d at 851. Accordingly, “under Sandoval, [§ 35.150(d)] is not enforceable through § 202’s private right of action because the obligations it imposes are nowhere to be found in § 202’s plain language.” Id. at 852.
Here, the order supporting the district court’s March 26, 2004 declaratory judgment and injunction is bereft of any such analysis. Furthermore, when we examine § 35.151(b) in a manner similar to the Ninth Circuit’s examination in Lonberg, we find no congressional intent to create a private right of action for the regulation’s enforcement. As the ADA’s text indicates, Congress enacted the statute as a prophylactic measure to eradicate discrimination against persons with disabilities. 42 U.S.C. § 12101 (finding that “census data, national polls, and other studies have documented that people with disabilities, as a group, occupy an inferior status in our society, and are severely disadvantaged socially, vocationally, economically, and educationally” and stating that one of the ADA’s purposes is “to
be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by such entity. 42 U.S.C. § 12132.
20

provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities”); see also Tennessee v. Lane, 541 U.S. 509, 531, 124 S. Ct. 1978, 1993 (2004) (“Faced with considerable evidence of the shortcomings of previous legislative responses [to disability discrimination], Congress was justified in concluding that this difficult and intractable proble[m] warranted added prophylactic measures in response.” (quotations omitted; second alteration in original)). As part of the statute’s broad sweep, Congress intended to grant wide enforcement powers to ensure that the ADA’s purposes would be effected. 42 U.S.C. § 12101(b) (including among the ADA’s purposes “to provide clear, strong, consistent, enforceable standards addressing discrimination against individuals with disabilities” and “to invoke the sweep of congressional authority, including the power to enforce the fourteenth amendment and to regulate commerce”).
While the ADA directed the Attorney General to promulgate regulations implementing Part II, 42 U.S.C. § 12134,22 the purpose of those regulations is to
22 This section provides: Not later than 1 year after July 26, 1990, the Attorney General shall promulgate regulations in an accessible format that implement this part. Such regulations shall not include any matter within the scope of the authority of the Secretary of Transportation under section 12143, 12149, or 12164 of this title. . . . .
21

provide standards for compliance with the ADA, id. § 12134(c), not to give
individuals a right to sue if compliance with those standards is not met. Congress,
in fashioning an express statutory right of action in the ADA itself, 42 U.S.C. §
12133,23 anticipated that violations would occur and provided a statutory
enforcement mechanism for aggrieved parties to seek a remedy. See Sandoval,
532 U.S. at 284, 121 S. Ct. at 1518 (“A Congress that intends the statute to be
enforced through a private cause of action intends the authoritative interpretation
of the statute to be so enforced as well.”). Thus, Congress placed any available
recourse for plaintiffs alleging disability-based discrimination within the language
of the ADA. The regulations, by contrast, interpret and define the scope of the
ADA. They do not, themselves, create a private right of action and a remedy.
Regulations under subsection (a) of this section shall include standards applicable to facilities and vehicles covered by this part, other than facilities, stations, rail passenger cars, and vehicles covered by part B of this subchapter. Such standards shall be consistent with the minimum guidelines and requirements issued by the Architectural and Transportation Barriers Compliance Board in accordance with section 12204(a) of this title. 42 U.S.C. § 12134(a), (c). 23 This section provides: The remedies, procedures, and rights set forth in section 794a of Title 29 shall be the remedies, procedures, and rights this subchapter provides to any person alleging discrimination on the basis of disability in violation of section 12132 of this title. 42 U.S.C. § 12133.
22

The situation in this case resembles that in Sandoval and Lonberg, where a
statute prohibits discrimination (here, 42 U.S.C. § 12132); implementing
regulations exist pursuant to an authorizing section of the statute (42 U.S.C. §
12134); and a private right of action exists pursuant to still another section of the
statute (42 U.S.C. § 12133). An individual’s ability to sue lies in § 12133; as in
Sandoval, it does not automatically lie in the regulations implemented under the
statute’s authority. This owes, moreover, to the focus on legislative intent made
clear in the cases interpreting Cort v. Ash. Congress could have stated that it
intended a private right of action under the ADA and, separately, under its
implementing regulations—but Congress said no such thing. Finally, nothing in §
12133 indicates Congress’s intent to provide a private right of action to redress
violations of the ADA’s regulations.24 Rather, that section exists to grant a right of
24 We note that while two circuits have found 28 C.F.R. § 35.151 enforceable through the private right of action created in ADA Title II, 42 U.S.C. § 12133, those cases are distinguishable. In Ability Center of Greater Toledo v. City of Sandusky, 385 F.3d 901, 903–13 (6th Cir. 2004), the Sixth Circuit held that because § 35.151 “effectuates a mandate of Title II,” it is enforceable through the ADA’s private cause of action, 42 U.S.C. § 12133. 385 F.3d at 907. The district court here, however, made no mention of enforcing § 35.151(b) through the ADA; rather, it treated § 35.151(b) as creating a freestanding right to sue. Even Ability Center cannot be extended to support that proposition. See id. at 906 (heeding Sandoval’s rule that “a private plaintiff cannot enforce a regulation through a private cause of action generally available under the controlling statute if the regulation imposes an obligation or prohibition that is not imposed generally by the controlling statute”). Because § 35.151’s particular standards for new and altered construction do not appear in the general language of the ADA, Sandoval forecloses reliance on the ADA Title II cause of action to enforce the regulation. 532 U.S. at 291, 121 S. Ct. at 1522.
The Tenth Circuit’s decision that § 35.151 is privately enforceable, Chaffin v. Kan. State Fair Bd., 348 F.3d 850, 858 (10th Cir. 2003), is dubious for at least two reasons. First, other
23

action to those alleging a violation of the ADA itself, by providing the remedies
available under the Rehabilitation Act, 29 U.S.C. § 794a.25
Even if we were to assume that § 35.151(b) created a private right of action,
it is puzzling why the district court applied it in the context of providing
handicapped-accessible voting machines. Section 35.151, as its title implies,
addresses physical access by the disabled to public buildings. In subsection (a), it
sets reasonable architectural standards for public entities to follow when building
new facilities; in subsection (b), it provides standards for altering existing ones.
See Ass’n for Disabled Ams., Inc. v. Fla. Int’l Univ., 405 F.3d 954, 959 (11th Cir.
2005); Nondiscrimination on the Basis of Disability in State and Local
Government Services, 56 Fed. Reg. 35,694, 35,710 (July 26, 1991) (“Section
35.151 provides that those buildings that are constructed or altered by, on behalf
of, or for the use of a public entity shall be designed, constructed, or altered to be
courts have noted that Chaffin gave short shrift to Sandoval’s instruction that regulations imposing obligations beyond a statutory mandate are not enforceable through the statute’s cause of action. Iverson v. City of Boston, 452 F.3d 94, 101–02 (1st Cir. 2006); Californians for Disability Rights, Inc. v. Cal. Dep’t of Transp., 249 F.R.D. 334, 341–42 (N.D. Cal. 2008). Second, Chaffin applied Sandoval in a categorical manner to several ADA regulations, rather than examining each regulation individually to see if it evinced congressional intent to enforce the regulations through a private right of action, as Sandoval demands. Lonberg, 571 F.3d at 852. Both of these infirmities greatly diminish Chaffin’s relevance to the instant case.
Hence, our conclusion that § 35.151(b) does not confer an independent cause of action is not swayed by our sister circuits’ decisions in Ability Center or Chaffin. 25 The Rehabilitation Act, in turn, relies on the remedies provided in Titles VI and VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000d, 2000e-16. See 29 U.S.C. § 794a.
24

readily accessible to and usable by individuals with disabilities if the construction was commenced after the effective date of this part.”). The regulation preceding § 35.151 bolsters this conclusion by incorporating § 35.151 into its requirement that public entities operate services, programs, or activities such that they are readily accessible by individuals with disabilities: “A public entity, in making alterations to existing buildings, shall meet the accessibility requirements of § 35.151.” 28 C.F.R. § 35.150(b)(1) (emphasis added).
By contrast, this case is not, and never has been, about visually and manually impaired voters’ access to polling places themselves, i.e., fire stations, schools, churches, and other physical locations where Duval County precincts might place voting machines. From the beginning of this litigation, Plaintiffs attempted to (1) secure voting machines that provided greater accessibility to visually and manually impaired voters, and (2) secure more of those machines so they were available in as many Duval County polling places as possible. Plaintiffs never complained about the accessibility of polling locations themselves. This begs the question of why a regulation that addresses building standards for physical facilities would be relevant to Plaintiffs’ allegations of inadequate, undersupplied voting machines.
Still more puzzling is why the district court applied § 35.151(b), which
25

concerns alterations to existing facilities, to impose an obligation on Stafford to supply handicapped-accessible voting machines. The district court stated, without further elaboration, that “[t]he standard for alterations, rather than new construction, is applicable in the instant case.” But § 35.151(b), by its own language, does not become operative—and thereby impose legal obligations on anyone—unless and until an alteration has taken place. See 28 C.F.R. § 35.151(b) (“Each facility or part of a facility altered by, on behalf of, or for the use of a public entity . . . shall, to the maximum extent feasible, be altered in such manner that the altered portion of the facility is readily accessible to and usable by individuals with disabilities . . . .”). The subsection’s language implies the common sense proposition that an alteration having occurred is a prerequisite to that alteration’s being made accessible to the public.
New facilities constructed for use by public entities must be accessible, id. § 35.151(a); alterations of existing facilities must also be accessible, id. § 35.151(b). Nothing in this case has been altered, not voting machines or any other “facility” (assuming that a voting machine could be a facility). Instead, Stafford acquired 326 new, handicapped-accessible voting machines by November 17, 2005, in advance of the compliance date specified by HAVA. Were we to stretch the regulatory definition and treat the new voting machines as “new construction,”
26

under § 35.151(a) (and we do not adopt such a warped interpretation), Plaintiffs could have no complaint, since they admit that the new voting machines met federal and state standards for accessibility by visually and manually impaired voters. In sum, even if we read a private right of action into § 35.151 (which, again, we do not), Stafford would have had no obligation under either § 35.151(a) or § 35.151(b), the subsections cited by the district court, to do more than he did.
A final word is in order about why our decision on Plaintiffs’ regulatory claim also dispenses with their ADA and Rehabilitation Act claims. Recall that the district court dismissed those claims on October 16, 2002, because it held that Florida law fulfilled those statutes’ requirements. That order dismissing the statutory claims was incorporated into the court’s September 20, 2007 final judgment, and Plaintiffs did not cross-appeal from that judgment. The statutory claims, therefore, were disposed of in the district court, and there is no need for us to issue a new ruling that they are moot.
III. For the foregoing reasons, Plaintiffs could not have had a private right of action under 28 C.F.R. § 35.151(b), and the district court erred by affording them one. We therefore VACATE its judgment of September 20, 2007 and REMAND the case to the district court with the instruction to vacate the injunction and enter a
27

final judgment dismissing this case with prejudice.26 SO ORDERED.
26 As indicated in note 18, supra, pending in the district court are Plaintiffs’ motions for attorney’s fees and costs. The ADA’s attorney’s fee provision, by its terms, requires a party to prevail in order to receive an attorney’s fee award. 42 U.S.C. § 12205. Plaintiffs cannot recover their attorney’s fees here on the ground that they prevailed, for they did not. Nor can they recover their attorney’s fees for serving as a “catalyst,” i.e., that they caused Stafford to implement the changes they sought. Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep’t of Health & Human Res., 532 U.S. 598, 610, 121 S. Ct. 1835, 1843 (2001) (rejecting the “catalyst” theory), superseded in part by statute, OPEN Government Act of 2007, Pub. L. No. 110-175, 121 Stat. 2524 (2007) (codified at 5 U.S.C. § 552(a)(4)(E)) (amending the fee-shifting provision of the Freedom of Information Act but not the ADA); Morillo-Cedron v. Dist. Dir. for the U.S. Citizenship & Immigration Serv., 452 F.3d 1254, 1257 (11th Cir. 2006). Accordingly, this case has ended.
28

 
 CASE NO. 07-15004-CC

IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________

AMERICAN ASSOCIATION OF PEOPLE WITH DISABILITIES, DANIEL W. O’CONNOR, KENT BELL, BETH BOWEN, On behalf of themselves and others similarly situated, Plaintiffs-Appellees,

Versus

JERRY HOLLAND, As Supervisor of Elections in Duval County, Defendant-Appellant.
_____________________________________________________________

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION, DC DKT NO. 3:01-cv-01275-J-99HTS _____________________________________________________________

BRIEF OF APPELLEES

Elaine Gardner Robert M. Bruskin Co-Counsel Washington Lawyers’ Committee for Civil Rights and Urban Affairs 11 Dupont Circle N.W., Suite 400 Washington, D.C. 20036 Telephone: (202) 319-1000 Facsimile: (202) 319-1010

Sashe D. Dimitroff
Heather M. Khassian
Kevin A. Keeling HOWREY LLP 1111 Louisiana, 25th Floor Houston, Texas 77002 Telephone: (713) 787-1400 Facsimile: (713) 787-1440

ATTORNEYS FOR PLAINTIFFS-APPELLEES

DM_US:21143709_1

Case No.: 07-15004 American Association of People with
Disabilities, et al. v. Hood et al. APPELLEES’ UPDATED CERTIFICATE OF INTERESTED PERSONS
AND CORPORATE DISCLOSURE STATEMENT
Pursuant to Federal Rule of Appellate Procedure 26.1 and Eleventh Circuit Rule 26.1-1, Appellees, the American Association of People with Disabilities, Daniel W. O’Connor, Kent Bell, and Beth Bowen submit the following Certificate of Interested Persons with additional persons and entities omitted from the initial certificate filed by Appellant:
1. The American Association of People with Disabilities has no parent corporation.
2. The American Association of People with Disabilities is not a corporation and as such has no issued stock.
3. The following individuals have an interest in the outcome of this appeal: a. The Honorable Henry L. Adams, United States District Judge for the Middle District of Florida; b. The Honorable Wayne E. Alley, Senior Judge, United States District Court for the Western District of Oklahoma (presiding by special designation on the United States District Court for the Middle District of Florida, Jacksonville Division); c. Arpen, Tracey I., counsel for Appellant;
-i-
DM_US:21143709_1

Case No.: 07-15004 American Association of People with
Disabilities, et al. v. Hood et al. d. Baldridge, J. Douglas, counsel for Appellees; e. Bell, Kenton, Appellee; f. Bowen, Elizabeth H., Appellee; g. Browning, Kurt S., Secretary of State of Florida; h. Bruskin, Robert, co-counsel for Appellees; i. Craft, Paul, Chief, Florida Bureau of Systems Certification; j. Dickson, James C., on behalf of AAPD; k. Diebold Election Systems; l. Dimitroff, Sashe D., counsel for Appellees; m. Duval County Supervisor of Elections’ Office; n. Election Systems & Software, Inc.; o. Florida Division of Elections; p. Foley, Danielle R., counsel for Appellees; q. Gardner, Elizabeth Elaine, co-counsel for Appellees; r. Hodge, Pamela Ann, visually impaired trial witness; s. Holland, Jerry, Appellant; t. Keeling, Kevin A., counsel for Appellees; u. Khassian, Heather M., counsel for Appellees; v. Lawrence, Gregory A., counsel for Appellees;
-ii-
DM_US:21143709_1

Case No.: 07-15004 American Association of People with
Disabilities, et al. v. Hood et al. w. Mueller, Ernst, counsel for Appellant; x. O’Connor, Daniel W., Appellee; y. Sequoia Voting Systems; z. Sigler, R. William, counsel for Appellees; aa. Teal, Jason, counsel for Appellant; bb.Thomas, Milo Scott, counsel for Appellees; cc. Tuck, Amy, as Director, Florida Division of Elections; dd.Waas, George L., counsel for the Florida Secretary of State and
Division of Elections; ee. Williams, Lois G., co-counsel for Appellees; and ff. Wiseman, Alan M., counsel for Appellees.

DM_US:21143709_1

-iii-

STATEMENT REGARDING ORAL ARGUMENT Appellees believe that oral argument would be helpful to the Court because of long and complex history of this case. Appellees respectfully request that oral argument be granted.
-i-
DM_US:21143709_1

TABLE OF CONTENTS
STATEMENT OF JURISDICTION..........................................................................1 STATEMENT OF THE ISSUES...............................................................................2 STATEMENT OF THE CASE..................................................................................4
A. AAPD Filed Suit Under the ADA.........................................................4 B. AAPD Prevailed on the Merits at Trial.................................................7 C. Holland Voluntarily Complied with the District Court’s
2004 Injunction......................................................................................8
D. Holland’s First Appeal of the District Court’s 2004 Injunction.............................................................................................10
E. The First Appeal was Mooted by Holland’s Voluntary Compliance with the Injunction ..........................................................11
F. On Remand AAPD Moved For Its Attorneys’ Fees, Costs, and Expenses Under the ADA .................................................13
G. Holland Filed a Second Appeal from the Final Judgment ..................13 STATEMENT OF FACTS ......................................................................................15
A. Holland Altered Duval County’s Existing Voting System When Punch Cards Were Outlawed By The Florida Legislature ...........................................................................................15
B. Holland Purchased a Voting System That Was Not Readily Accessible To Duval County's Disabled Voters....................15
C. Holland Could Have Purchased a Voting System That Was Accessible to Disabled Voters ....................................................18
SUMMARY OF ARGUMENT ...............................................................................22
STANDARDS OF REVIEW...................................................................................27 ARGUMENT ...........................................................................................................28
-i-
DM_US:21143709_1

I. THE CURRENT APPEAL SHOULD BE DISMISSED FOR LACK OF JURISDICTION ..........................................................................28
A. The Current Appeal, as it Relates to the Injunction is Moot, Therefore This Court Has No Jurisdiction to Hear the Injunction Related Issues...............................................................28
B. The Denial of Holland’s Motion to Vacate is Not Yet Ripe for Appeal, Because it Only Relates to the Attorneys’ Fees Issues Still Pending at the District Court..................29
II. EVEN IF THE COURT ADDRESSES THE MOTION TO VACATE, THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION IN DECLINING TO VACATE ITS ORDERS....................32
A. Vacatur is Not Appropriate When Mootness Results From the Appellant’s Voluntary Action .............................................32
III. THE TRIAL COURT PROPERLY FOUND THAT THE ADA APPLIES TO THIS CASE ............................................................................40
A. The ADA Requires Voting to be Readily Accessible to Disabled Persons .................................................................................40
B. A 1993 DOJ Letter of Findings Does Not Undermine the District Court’s Ruling ........................................................................44
IV. THE COURT PROPERLY FOUND THAT IN 2002, DUVAL COUNTY DID NOT PROVIDE VOTING SYSTEMS THAT WERE HANDICAP ACCESSIBLE .............................................................46
A. The District Court Properly Concluded That Voting Equipment is a Facility Under the ADA .............................................46
B. The District Court Applied the Proper ADA Standard to Holland's Conduct ...............................................................................47
C. It was Feasible for Holland to Procure an Accessible Voting System .....................................................................................52
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D. The District Court Properly Concluded That Holland Violated the ADA by Failing to Provide Touch Screen Voting Systems for Manually Impaired Voters ..................................56
V. THE ENACTMENT OF HAVA DOES NOT RENDER THIS CASE MOOT ............................................................................57
CONCLUSION ........................................................................................................60

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Cases

TABLE OF AUTHORITIES

Anderson v. City of Bessemer, 470 U.S. 564, 105 S. Ct. 1504 (1985) ..................................................................27

Andrews v. Employees' Retirement Plan of First Ala. Bancshares, Inc., 938 F.2d 1245 (11th Cir. 1991)............................................................................30

Ass'n for Disabled Ams. v. City of Orlando, 153 F. Supp. 2d 1310 (M.D. Fla. 2001)................................................................48

Auer v. Robbins, 519 U.S. 452, 117 S. Ct. 905 (1997) ....................................................................45

Chevron U.S.A., Inc. v. Natural Res. Defense Council, Inc., 467 U.S. 837, 104 S. Ct. 2778 (1984) ..................................................................45

Christensen v. Harris County, 529 U.S. 576, 120 S. Ct. 1655 (2000) .................................................................45

Dilley v. Gunn, 64 F.3d 1365 (9th Cir. 1995) ................................................................................34

Engle v. Gallas, 1994 U.S. Dist. LEXIS 7935 (E.D. Pa. June 10, 1994) .......................................51

Fla. Ass’n of Rehab. Facilities, Inc. v. Fla. Dep’t of Health & Rehabilitative Servs., 225 F.3d 1208 (11th Cir. 2000)..................................................................... 29, 30

Ford v. Wilder, 469 F.3d 500 (5th Cir. 2006) ................................................................................33

Fort v. Roadway Express, Inc., 746 F.2d 744 (11th Cir. 1984)..............................................................................30

Gonzalez v. Reno, 215 F.3d 1243 (11th Cir. 2000).............................................................................45

Hall v. Beals, 396 U.S. 45, 90 S. Ct. 200 (1969) ........................................................................29

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Hibiscus Assocs. Ltd. v. Bd. of Trs. of Policemen and Firemen Ret. Sys. of Detroit, 50 F.3d 908 (11th Cir. 1995) ................................................................................30
IAL Aircraft Holding, Inc. v. Federal Aviation Administration, 21 F.3d 1304 (11th Cir. 2000)...............................................................................36
Kidder, Peabody & Co. v. Brandt, 131 F.3d 1001 (11th Cir. 1997)............................................................................27
Kinney v. Yerusalim, 9 F.3d 1067 (3d Cir. 1993)...................................................................... 47, 48, 51
Meadows v. Hudson County Bd. of Elections, 2005 WL 3636482 (D.N.J. July 27, 2005) ...........................................................39
Meek v. Metro. Dade County, 985 F.2d 1471 (11th Cir. 1993).............................................................................27
Morillo-Cedron v. District Director for the U.S. Citizenship & Immigration Services, 452 F.3d 1254 (11th Cir. 2006)............................................................................30
Murchison v. Grand Cypress Hotel Corp., 13 F.3d 1483 (11th Cir. 1994)..............................................................................27
National Advertising Co. v. City of Miami, 402 F.3d 1329 (11th Cir. 2005).............................................................................37
National Organization on Disability v. Tartaglione, 2001 WL 1231717 (E.D. Pa. Oct. 11, 2001) ................................................. 42, 47
Nelson v. Miller, 170 F.3d 641 (6th Cir. 1999) ......................................................................... 43, 44
People of the State of Cal. v. County of Santa Cruz, 2005 WL 2579968 (N.D. Cal. August 4, 2006)....................................................39
Shotz v. Cates, 256 F.3d 1077 (11th Cir. 2001)................................................................ 40, 41, 48
Solomon v. Liberty County Comm’rs, 221 F.3d 1218 (11th Cir. 2000)..................................................................... 27, 53
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Special Devices, Inc. v. OEA, Inc., 269 F.3d 1340 (Fed. Cir. 2001) ............................................................................30
Staley v. Harris County, 485 F.3d 305 (5th Cir. 2007) ................................................................................33
SunAm. Corp. v. Sun Life Assurance Co. of Canada, 77 F.3d 1325 (11th Cir. 1996)........................................................................ 27, 44
Tennessee v. Lane, 541 U.S. 509, 124 S. Ct. 1978 (2004) ..................................................................40
Troiano v. LePore, 2003 WL 24832863 (S.D. Fla. May 1, 2003)................................................ 20, 47
Troiano v. Supervisor of Elections, 382 F.3d 1276 (11th Cir. 2004)............................................................................38
U.S. Bancorp Mort. Co. v. Bonner Mall P’ship, 513 U.S. 18, 115 S. Ct. 386 (1994) ............................................................... 32, 36
United States v. Munsingwear, 340 U.S. 36, 71 S. Ct. 104 (1950) ........................................................... 32, 35, 36
Statutes 29 U.S.C. § 701..........................................................................................................4
42 U.S.C. § 12101............................................................................................... 4, 58 42 U.S.C. § 12132......................................................................................................5 42 U.S.C. § 12205............................................................................................. 13, 29
42 U.S.C. § 15481....................................................................................................60 42 U.S.C. § 15545............................................................................................... 1, 58
Rules 28 C.F.R. § 35.104 ...................................................................................................47
28 C.F.R. § 35.150 ...................................................................................................47
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28 C.F.R. § 35.151 ........................................................................................... passim 28 C.F.R. § 35.160 ...................................................................................................46

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STATEMENT OF JURISDICTION On October 19, 2007, Appellant (“Holland”) appealed the district court’s September 20, 2007 final judgment and order, which made final its March 2004 Preliminary Order and Declaratory Judgment (the subject matter of Holland’s first appeal that this Court dismissed as moot). (Notice of Appeal, Oct. 19, 2007.) Holland amended his appeal on December 4, 2007 to include the district court’s order, issued the prior day, denying Holland’s Motion to Vacate. (Dkts. 341, 342.) As briefed in their January 28, 2008 Motion to Dismiss, Appellees (“AAPD”) maintain that this Court has no jurisdiction to hear the present appeal. As explained therein, the matters encompassed by the district court’s September 20, 2007 order were found moot by this Court in its review of Holland’s first appeal. (See 11th Cir. Appeal No. 04-11566.) Any remaining issues in this appeal only relate to Holland’s liability for attorneys’ fees and costs under 42 U.S.C. § 15545. This issue is not yet ripe for appeal because the amount of such fees and costs have not been quantified and finally determined by the district court.
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STATEMENT OF THE ISSUES The issues presented are: 1. Should this appeal be dismissed for lack of jurisdiction where: (1) Holland previously appealed the injunction related issues in 2004 and this Court held them to be moot due to Holland’s voluntary compliance with the injunction; and (2) the remaining issues raised in this appeal only relate to AAPD’s pending request for attorneys’ fees, costs, and expenses yet to be decided by the district court and thus not yet ripe for appeal? 2. If there is jurisdiction, did the district court abuse its discretion by maintaining its injunction and final judgment where the mootness resulted from Holland’s voluntary compliance with injunctive relief ordered by the district court after trial, and there is significant public interest served in allowing the injunction and judgment to remain intact? 3. Did the trial court clearly err in finding that voting was an activity protected by the Americans with Disabilities Act (“ADA”) and that voting systems were “facilities,” as described by the ADA? 4. Did the trial court clearly err in finding that Holland violated the ADA by purchasing an optical scan voting system in 2002 that was not readily accessible by disabled voters to the “maximum extent feasible” as required by the ADA, where the evidence demonstrated that disabled voters were unable to vote
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unassisted on the system in the same manner as non-disabled voters; where Holland admitted (1) that there were material differences in how the purchased system forced disabled voters to vote compared to non-disabled voters; and (2) that disabled voters had a “legitimate complaint” regarding those material differences?
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STATEMENT OF THE CASE
AAPD supplements Holland's “Statement of the Case and Facts” to provide
the Court with a more complete procedural history.
A. AAPD Filed Suit Under the ADA Appellees O’Connor, Bell, and Bowden are Florida citizens who are
registered to vote in Duval County – importantly, they are all visually or manually impaired voters.1 Appellee American Association of Disabled Persons is a non-
profit association dedicated to advocating for, and enabling persons with,
disabilities. (all Appellees are collectively referred to as “AAPD”). (Dkt. 215, ¶¶ 1-3.)2 AAPD initiated suit on November 8, 2001 to remedy Holland’s failure to
provide handicap accessible voting systems, a discriminatory practice that violated
both the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq., and
the Rehabilitation Act (“RA”), 29 U.S.C. § 701 et seq. (Dkt. 1.) The ADA
requires 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
1 Hereinafter, “visually or manually impaired voters” will be referred to collectively as “disabled voters.” 2 References to the Record on Appeal, including trial transcripts, are designated by their Docket Number, and page and/or paragraph reference, e.g., “Dkt. X, p. YY.” References to trial exhibits are prefaced as “PX” for Appellees' Exhibits, and “DX” for the Appellant's or State Defendant's exhibits. State Defendants were part of the suit through trial; however, aside from ordering the State Defendants to report on the certification of certain voting systems, the district court did not hold the State Defendants liable, and they are not parties to this appeal. (Dkt. 215, pp. 30-31.)
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services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132. Holland’s discrimination continued until well after AAPD won a declaratory judgment in 2004 as a result of a full trial before the district court. (See Dkt. 215, pp. 20, 27-28, 30 (holding Holland liable under the ADA for illegal discrimination against disabled voters), Dkt. 290, p. 3 (finding that accessible voting systems were finally ready for use on November 17, 2005).)
On March 12, 2002, the district court dismissed certain claims in AAPD’s complaint which asserted that disabled voters “have been excluded from or denied the benefits of a program of direct and secret voting that does not permit the type of assistance provided for [in Florida’s third-party assistance statute].” (Dkt. 42, pp. 37-38.) While dismissing some claims the district court specifically cited this Circuit’s precedent that does not restrict the ADA to situations in which “a disabled person is completely prevented from enjoying a service, program, or activity,” and held that the ADA “more generically proscribe[s] disability ‘discrimination’ by the pertinent public entities.” (Id., pp. 26-27, 29.) The district court specifically permitted refiling of AAPD’s original ADA claims under both the program exclusion and generic discrimination proscriptions. (Dkt. 42, pp. 29-30, 39.)
AAPD subsequently filed an amended complaint on November 5, 2002, alleging that under the system then in place: (1) disabled voters were discriminated
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against because they could only vote with third party assistance, (Dkt. 47, pp. 9-10,
16-18); and (2) that the discrimination related to the additional burdens faced by
AAPD members when voting that are not faced by non-disabled voters:
The particular discrimination against Plaintiffs . . . manifests itself as follows: (a) being forced to reveal their votes to a third-party; (b) risking having (and actually having) their votes revealed by the thirdparty to other people; (c) risking having (and actually having) the third-party attempt to influence their candidate choice; (d) having to vote in a manner that singles them out in the polling place; (e) having to wait long periods of time until a third-party is available to assist the voter; (f) having to incur the burden and impediment of traveling to the Office of Elections' headquarters to use the three accessible voting systems in the event Duval County ever purchases such machinery; and (g) having to suffer embarrassment and distress during the voting process for each of the foregoing reasons and the fact that they are required to vote in a manner materially different from, and substantially more burdensome than, the manner in which nondisabled voters cast their votes in Duval County.
(Id., pp. 17-18, (emphasis added); see also id., pp. 9-10.) Thus, AAPD’s amended
complaint was predicated on the discriminatory burdens that Holland imposed on
disabled voters in Duval County by purchasing non-accessible systems in 2002,
forcing disabled voters to vote using third-party assistance, despite the availability
of several handicap accessible options. AAPD’s amended complaint was not, as
Holland contends, “another attack on Florida's third-party assistance statute.” (Br.
8.)
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B. AAPD Prevailed on the Merits at Trial The parties tried AAPD’s discrimination claims in a bench trial from September 23, 2003 to October 1, 2003. AAPD prevailed on the merits of its claim under 28 C.F.R. § 35.151(b) (the regulation outlining accessibility standards required by the ADA) and won the complete relief sought - an injunction requiring Holland to provide handicap accessible voting systems that complied with the ADA. The district court issued a Preliminary Order that AAPD’s claim under the generic proscription of the ADA “coterminous with its claim under 28 C.F.R. § 35.151” and further that “regulations implementing the Rehabilitation Act contain similar standards.” (Dkt. 215, p. 17 n.3; p. 27.) The district court concluded that “the Court will not separately address this claim based upon the conclusion that it is to be resolved in the same manner as AAPD’s claim under 28 C.F.R. § 35.151.” (Id., pp. 27-28.) The district court then entered a Declaratory Judgment3 in which:
1. It held that Holland violated 28 C.F.R. § 35.151(b); 2. It directed Holland to have at least one handicap accessible voting
system at 20% of the polling places in Duval County, Florida; and
3 The Declaratory Judgment was a non-final judgment when it was entered. On September 20, 2007, the district court made this judgment final. (Dkt. 294.)
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3. It required Holland to have Diebold touch screen voting systems with audio capacity certified on or before May 14, 2004. (Dkt. 216.)
After the district court issued its March 2004 Preliminary Order and Declaratory Judgment, Holland appealed those decisions.
C. Holland Voluntarily Complied with the District Court’s 2004 Injunction
Holland claims in the current appeal that he installed voting systems that were accessible to disabled voters because he was complying with the Help America Vote Act of 2002 (“HAVA”),4 rather than because he was complying with the district court’s injunction. In fact, Holland filed several reports with the district court reporting the steps he was taking to comply with the judgment. In each report, Holland specifically admitted that he was taking these steps pursuant to the district court’s orders and never once mentioned HAVA:
• April 12, 2004 –Holland filed a plan with the district court to comply with the injunctive relief granted by the district court (that is, for placing accessible systems in 20% of the voting districts). (Dkt. 227.) In the plan, the Holland, specifically stated that “[p]ursuant to the Court’s order dated
4 42 U.S.C. § 15301 et seq.
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March 24, 2006 [sic] and final judgment dated March 26, 2004, Supervisor John Stafford provides this Report …”5 (Dkt. 227, p. 1 (emphasis added).) • May 14, 2004 – Holland filed a report indicating that he would have Diebold touch screen voting systems with audio capacity certified and admitted that “Defendants [Hood and Kast in their respective official capacities], by undersigned counsel and pursuant to the Court’s [March 24, 2004] Order, hereby submit this final report to the court …” (Dkt. 248, p. 1 (emphasis added).) On September 30, 2004, the parties submitted an agreement that Holland would adopt and fulfill the plan it filed on April 12, 2004 (with only minor changes). (Dkt. 268.) The district court adopted the agreement by its Order dated October 4, 2004. (Dkt. 271.) In the agreement, Holland admitted that he was complying with the Declaratory Judgment that the district court awarded to AAPD: In light of … this Court’s March 24, 2004, Order, Plaintiffs and Defendant John Stafford (“Defendant”) hereby move this Court to adopt the [April 12, 2004 plan] … by requiring Defendant to install the systems at the precincts identified … (Dkt. 268, p. 1 (emphasis added).)
5 Stafford was the originally named Supervisor of Elections for Duval County; since the filing of the suit, Holland replaced Stafford.
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D. Holland’s First Appeal of the District Court’s 2004 Injunction
On March 31, 2004, before he had complied with the district court’s order, Holland filed his first appeal (11th Cir. Appeal No. 04-11566) (Dkt. 217) and sought review of the following orders:
• the March 24, 2004 Order that specifically found that Holland violated the provisions of the ADA, 28 C.F.R. § 35.151 (b) (Dkt. 215) (“Preliminary Order”);
• the March 26, 2004 Declaratory Judgment requiring Holland to purchase voting machines that are accessible to disabled voters (Dkt. 216) (“Declaratory Judgment”);
• the August 19, 2003 Order denying Holland’s second motion to dismiss (Dkt. 124); and
• the October 16, 2002 Order granting, in part, Holland’s motion to dismiss (Dkt. 42).
While the district court labeled its March 26, 2004 notice as a “Declaratory Judgment,” it only established the parameters for the injunctive relief and did not issue a final judgment in the case. (See Dkt. 216.)
Following briefing and oral argument, Holland sought a determination that his first appeal was moot since he had contracted to purchase voting systems that

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would comply with the appealed injunctive relief. (11th Cir. Further Suggestion of
Mootness, May 19, 2005.) Following a limited remand for fact finding,6 this Court
agreed and declared the first appeal moot. (See 11th Cir. Order, Aug. 15, 2007;
11th Cir. Order, Nov. 1, 2007 (order dismissed “this appeal as moot”).7)
On April 16, 2004, while this Court was determining jurisdiction over the
first appeal, the district court stayed the injunction and stated:
The court takes issue with Defendant’s repeated reference to the uncertified voting machines and the implication that he was an innocent bystander during the acquisition process for those machines. Defendant Stafford is solely responsible for having selected and purchased machines that had not yet been certified when other systems with similar capabilities had been certified by the State of Florida. (Dkt. 232, p. 3, fn. 1 (emphasis added).)
E. The First Appeal was Mooted by Holland’s Voluntary Compliance with the Injunction
Holland mooted his own appeal by voluntarily complying with the district
court’s injunction while the appeal was pending. The first appeal subsequently
progressed as follows:
• January 26, 2005 – oral argument was presented to this Court.
6 (See 11th Cir. Order, Aug. 8, 2005.) 7 While the original August 15, 2007 Order stated “we conclude that the case is moot and therefore dismiss it”, the subsequent November 1, 2007 Order clarified this statement by issuing an “order dismissing this appeal as moot….” (11th Cir. Order, Nov. 1, 2007) (emphasis added).
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• August 8, 2005 – over six months after oral argument and after Holland complied with nearly the entire Declaratory Judgment, this Court certified two questions to the district court: (1) whether a contract was in place for purchasing enough accessible voting systems to place one in each voting district, and (2) whether the accessible voting systems would be in place for the subsequent election. (Dkt. 282, pp. 5-6.)
• August 22, 2005 – the district court held an evidentiary hearing regarding Holland’s compliance with the remaining portion of the interlocutory orders. (See Dkt. 285.) One day later, the district court answered both of this Court’s questions in the affirmative. (Dkt. 285.)
• August 15, 2007 – two years after the district court answered the certified questions, this Court recognized that Holland received and deployed handicap accessible voting systems by November 17, 2005 and held that the appeal was moot. (11th Cir. Order, Nov. 1, 2007.) Given that Holland complied with all portions of the district court’s
Preliminary Order and Declaratory Judgment, the first appeal was dismissed as moot by this Court. (Dkt. 290, p. 3.) Importantly, the first appeal was not dismissed because AAPD had no valid cause of action, that the district court committed any error, or that Holland had no duty to comply with the district court’s order – to the contrary, nothing was left for this Court to resolve since
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Holland had fully complied with the injunction that the district court imposed on him. Thus, on August 15, 2007, the first appeal was dismissed and remanded to the district court for further proceedings.
F. On Remand AAPD Moved For Its Attorneys’ Fees, Costs, and Expenses Under the ADA
On September 20, 2007, the district court issued its Amended Order and Final Judgment which reiterated exactly the same relief as the district court’s Preliminary Order and Final Judgment discussed above. (Dkts. 294 and 295.) The Final Judgment granted no additional relief except that it permitted the parties to file post-trial motions including applications for costs and fees. (Dkt. 294, p. 5.) AAPD originally sought their attorneys’ fees and costs pursuant to 42 U.S.C. § 12205 on April 12, 2004. (Dkts. 224-226.) AAPD updated its motions for fees and costs on October 30, 2007 (Dkt. 330), November 6, 2007 (Dkt. 333), and March 13, 2008 (Dkts. 348-350.) Holland has challenged all such motions. (Dkts. 343, 345, 351.) The district court has not yet ruled on AAPD’s motions for attorneys’ fees and costs are still pending before the district court.
G. Holland Filed a Second Appeal from the Final Judgment
Despite the attorneys’ fees and costs motions being the only disputed matters pending in the district court, on October 19, 2007, Holland appealed the district court’s Final Judgment. On October 4, 2007, just before Holland filed his second

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appeal, Holland filed a motion with the district court to vacate these Judgments and Orders. (Dkt. 315.) On December 3, 2007, the district court rejected Holland’s motion and one day later, Holland filed an Amended Notice of Appeal adding that order to the instant appeal. (Dkt. 341, Dkt. 342.)
AAPD filed its motion to dismiss this second appeal on January 28, 2008, because Holland is appealing the same issues that this Court found moot in the first appeal. (Mot. to Dismiss, Jan. 28, 2008.) The only remaining issues that differ from the first appeal are related to the grant of attorneys’ fees, and thus are not yet ripe for appeal. (Id.)
This Court subsequently ruled that AAPD’s pending motion to dismiss is to be carried with the case and should be decided in conjunction with the instant appeal. (See 11th Cir. Order, Apr. 1, 2008.)

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STATEMENT OF FACTS A. Holland Altered Duval County’s Existing Voting
System When Punch Cards Were Outlawed By The Florida Legislature In the Fall 2000 general elections, Duval County, like many Florida counties, used a punch card voting system. (Dkt. 215, ¶14.) In early 2002, Duval County began the process to alter its voting facilities by replacing the punch card systems, which had been outlawed by the Florida legislature following the state's infamous “hanging chad” experience in the 2000 elections. (See Dkt. 215, ¶14.) B. Holland Purchased a Voting System That Was Not Readily Accessible To Duval County's Disabled Voters In January 2002, Holland chose a new voting system for Duval County – an optical scan voting system manufactured by Diebold.8 (Dkt. 215, ¶20.) To vote on the optical scan voting system, a voter fills in a bubble or otherwise marks a paper ballot with a pen or pencil, which is then fed through an optical scan ballot reader. (Dkt. 166, p. 53:16-22; PX 148, at 33:5-17.) A voter must be able to grip a pencil and see well enough to use these systems. (Dkt. 169, p. 155:20-156:7.) No auxiliary aids exist that would permit a disabled voter to vote in the same or similar manner as non-disabled voters using an optical scan voting system. (PX 150, at 79:25-80:6.) Not surprisingly, Holland admitted that:
8 The City of Jacksonville, on behalf of Duval County, signed an agreement with Diebold on October 3, 2002. (Dkt. 170, p. 124:14-23; PX 150, at 95:15-17.)
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• “there are greater burdens imposed on visually or manually impaired voters under Duval County's optical scan system that are not placed on [non-disabled] voters” (Dkt. 169, p. 154:2-8; see also id. 153:1619, 155:12-15; PX 150, at 51:6-10, 54:17-55:8);
• “visually or manually impaired voters vote in a materially different manner than non-disabled voters vote” in Duval County (Dkt. 169, p. 154:13-155:6); and
• disabled voters “probably have a legitimate complaint” about these material differences in the way they vote. (Dkt. 169, p. 155:20-156:1.)
The trial testimony from disabled voters confirmed Holland's admissions. Kent Bell, who was born without arms or legs (Dkt. 215, ¶ 2; Dkt. 166, p. 84:6-8), testified that he was forced to wait for two poll workers to assist him to vote (at the “snack table”) in the presence of non-disabled voters. (Dkt. 215, ¶ 6; Dkt. 166, p. 96:6-97:25.) On another occasion, Mr. Bell was forced to reveal his candidate choices in the presence of at least ten other people. (Dkt. 215, ¶ 6; Dkt. 166, p. 98:1-99:9.)
Dan O’Connor, who is legally blind (Dkt. 215, ¶ 1; Dkt. 166, p. 51:8-22), testified that he was taken to a “separate room” to vote where he could overhear other voters reveal their selections. (Dkt. 215, ¶ 5; Dkt. 166, p. 58:11-60:6.) The person assisting him “did not read [the] party affiliation [of] the candidates,” which
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caused him to doubt whether his ballot had been properly cast. (Dkt. 215, ¶ 5; Dkt. 166, p. 61:2-16.) As Mr. O'Connor explained, “even when the person went over the selections I made, you know, I didn't know for sure. I wasn't able to verify on my own whether that was actually accurate or not, like I had [with] the experience of the touch screen systems.” (Dkt. 166, p. 61:2-16.)
Likewise, Pamela Hodge testified that the poll worker providing her assistance could not pronounce the words on the ballot accurately. (Id., 123:8124:23.) Beth Bowen, who has been blind since birth (Dkt. 215, ¶ 1; Dkt. 167, p. 13:2-3), testified that she was put “on display” when she used third party assistance because she was required to vote in the middle of a room where “there’s people all around.” (Dkt. 215, ¶ 7; Dkt. 167, p. 18:10-22.)
This trial evidence established that Holland imposed upon tens-ofthousands9 of disabled voters in Duval County a voting process that is fundamentally different from, and more burdensome than, the process by which non-disabled voters voted. There was no way for disabled voters to vote in a nondiscriminatory manner on Duval County's optical scan system – these voters were forced to rely on third party assistance. (Dkt. 215, p. 17; Dkt. 166, p. 53:16-25, 84:23-85:10, 112:13-21; Dkt. 167, p. 14:3-13; Dkt. 169, p. 152:21-153:8; Dkt. 172,
9 Dkt. 166, p. 50:3-13; Dkt. 169, p. 132:13-134:15; Dkt. 170, p. 145:17-146:7; PX 13, at 159:13-16; PX 145.
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p. 88:24-89:3.) On the basis of this and other evidence at trial, the district court found that the “optical scan voting system purchased by Duval County is not readily accessible to visually or manually impaired voters.” (Dkt. 215, p. 17.)
C. Holland Could Have Purchased a Voting System That Was Accessible to Disabled Voters 1. Florida Certified Voting Systems Included Technologically Feasible Systems That Were More Accessible To Disabled Voters Than the Optical Scan System
Holland did not have to purchase an optical scan system. (Dkt. 215, p. 5-6, 8; see also Dkt. 169, p. 76:11-21.) Florida certified other voting systems that were accessible to disabled voters, yet Holland chose none of them. For example, Holland could have procured a touch screen voting system equipped with an audio ballot, on which disabled voters could vote independently, as non-disabled voters do. (Dkt. 215, p. 8, 17-18.) A touch screen system has a screen that enables a voter to select a candidate by pressing the candidate's name on the screen. (DX 31, at 34.) As demonstrated at trial by Mr. Bell, at least some manually impaired voters can use a mouth stick or other device to press the screen. (Dkt. 215, p. 19; PX 150, at 57:9-16; Dkt. 166, p. 85:17-86:25; Dkt. 167, p. 52:7-19,173:16-175:8.) Similarly, an auxiliary audio component can be used by visually impaired voters to navigate through the ballot screens with pre-recorded instructions played through headphones. (Dkt. 166, p. 54:3-55:5; PX 150, at 56:20-25; PX 149, at 27:1-3, 43:11-44:11, 89:12-90:10.)
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Furthermore, there were at least two Florida-certified touch screen systems
at the time the County was considering which voting system to purchase: ES&S
and Sequoia.10 The ES&S touch screen voting system with audio ballot was
certified and available for purchase and use on August 16, 2001, more than a year
before Holland signed the contract with Diebold.11 (Dkt. 215, ¶16; PX 132; see
also Dkt. 169, p. 76:16-21; PX 150, at 103:19-104:3.)
During the period that the County was investigating which voting system to
purchase, at least eleven Florida counties purchased the ES&S touch screen in time
for use in the 2002 elections. (PX 1, at 57.) For example, Pasco County, Florida,
signed a contract with ES&S to purchase a touch screen system that
“accommodate[s] the sight impaired with audio assisted voting” in October 2001.
(Dkt. 215, ¶42; Dkt. 167, p. 166:6-16, 167:23-25.) The system was delivered to
10 Holland testified that he had the options of “getting Diebold certified, or getting somebody else certified . . .” in addition to the options of purchasing the ES&S or Sequoia touch screen systems equipped with audio ballots. (Dkt. 169, p. 99:18-21; PX 150, at 103:19-104:3; see also Dkt. 172, p. 46:20-47:13; Dkt. 167, p. 46:1447:5; Dkt. 168, p. 51:11-14.) 11 Because the certification occurred after the 2001 Governor’s Select Task Force on Election Procedures, Standards, and Technology's recommendation, the ES&S system could not be part of the task force’s recommendation. (DX 31, at 30.) As a result, the Recommendation was obsolete by the time Holland purchased the County's voting system. Indeed, the 2002 Governor’s Select Task Force recognized the new landscape that existed when it concluded that “[t]he current technology” for meeting the needs of disabled voters “is the touch screen electronic voting system with features such as audio that recites the ballot in a headset for blind and illiterate voters.” (DX 12, at 23.)
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Pasco County (1,455 machines total) approximately two weeks after the contract
was signed. (Dkt. 167, p. 167:23-168:4, 169:19-170:2.) By the time of trial in this
matter, Pasco County had used its new touch screen system in three elections with
“huge success.” (Dkt. 215, ¶42; Dkt. 167, p. 170:6-171:5, 172:8-173:12; PX 81,
PX 111.)
Also, by the time of the trial in this matter, “the majority of the State’s
voters” had used Florida-certified touch screen systems in elections. (PX 1, at 23.)
Touch screens were used in at least Dade, Broward, Hillsborough, Pasco, Nassau,
Pinellas, and Indian River counties. (Dkt. 215, ¶41.) Highlands and Palm Beach
counties has used systems comprising the specific relief ordered by the district court – blended systems12 of one touch screen and an optical scan system in each
polling place. (Dkt. 215, ¶41; Troiano v. LePore, No. 03-80097, 2003 WL
24832863, at *2-4 (S.D. Fla. May 1, 2003).) Hillsborough County implemented
the Sequoia system with audio ballot one month after it was certified, in time for
12 There is a distinction between the two types of “blended” systems described at trial. The first is a certified system comprised of an optical scan reader and a touch screen system made by the same vendor. The other type of “blended” system is comprised of an optical scan reader and a touch screen system made by different vendors. Both types of blended systems are technologically feasible and used across the country. (Dkt. 170, p. 149: 15-18 (Arapahoe County, Colorado, blends the Hart eSlate with the Sequoia optical scan); Dkt. 170, p. 149:19-150:1 (Tarrant County, Texas, blends the Hart eSlate with an ES&S optical scan); see also Dkt. 168, p. 69:12-17; 52:6-14).)
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the September 2002 primary election. (Dkt. 167, p. 46:14-47:5, 49:9-20; Dkt. 168, p. 51:11-14; Dkt. 172, p. 46:20-47:13.)
The successful use of touch screen voting systems has not been limited to Florida. Between February 2001 and September 2003 the use of touch screens expanded to “about 500 counties with more than 200,000 units” throughout the country, including counties in California, Georgia, Texas, Colorado, Ohio, Maryland, Arizona, South Carolina, and the District of Columbia. (Dkt. 170, p. 142:9-14; Dkt. 167, p. 82:11-17, 117:23-121:20, 130:16-25, 172:8-173:12; Dkt. 168, p. 53:24-54:5; Dkt. 170, p. 142:15-143:5; Dkt. 171, p. 25:25-26:10.) Thus, the evidence established that touch screen systems “have performed superbly.” (Dkt. 170, p. 143:10-22.)
Given the circumstances, the Florida Chief of the Bureau of Voting System Certification admitted there was no reason why Duval County could not have procured an accessible voting system just as these other jurisdictions had done: “I don't know of any reason that Duval County officials would not have the intelligence, management skills and other resources that it would take to do the same thing . . .” as other Florida counties did. (Dkt. 168, p. 26: 19-27:7.)

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SUMMARY OF ARGUMENT The present appeal is from the district court’s September 20, 2007 Final Judgment that did nothing more than conclude the litigation (as to Holland) based on the exact same orders that were at issue in Holland’s first appeal relating to the injunction, as well as the district court’s order denying the motion to vacate. The district court granted no other relief and decided no other issues on remand before the Final Judgment was entered. Holland mooted the first appeal by voluntarily and fully complying with the district court’s injunction while the appeal was pending. Because Holland’s current appeal challenges the same underlying holdings supporting the permanent injunction, this appeal is not substantively different than his first appeal. Therefore, the issues related to granting the permanent injunction implicated by the current appeal are moot for the same reasons that this Court dismissed the prior appeal. For that reason, this appeal should be dismissed as moot. As Holland has conceded, the only remaining live issue in this case is AAPD’s request for its statutory award of attorneys’ fees, including the quantification of any such award. It is well settled that an unresolved issue concerning an award of attorneys’ fees is not sufficient to support an appeal of a substantive ruling that is otherwise moot. Without a final order concerning the
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attorneys’ fees, that issue is not yet ripe for appeal. Moreover, the potential of a future attorneys’ fee award cannot be used as a basis for having this Court issue an advisory opinion regarding the merits of the underlying ADA violation upon which any future fee award in this case would be based.
Although Holland amended his notice of appeal in December 2007 to include the district court’s denial of the motion to vacate the judgment and dismiss the entire case on grounds of mootness, Holland concedes that such relief was sought merely in an attempt to avoid liability for paying any of AAPD’s attorneys’ fees. As such, that ruling pertains only to the attorneys’ fee issue, which is still pending at the district court and thus is not yet ripe for appeal. In short, there is no final judgment from which an appeal concerning any aspect of the attorneys’ fees issue can be taken at the present time, including whether the district court properly held that Holland violated the ADA and whether the district court abused its discretion in denying the motion to vacate.
Even if this Court reaches the vacatur issue, the district court did not abuse its discretion in declining to vacate its orders. First, vacatur is not appropriate where the mootness results from Holland’s own voluntary actions in complying with the court’s ordered relief. Second, Holland’s cited case law is inapplicable to the present facts. Holland’s cases merely stand for the proposition that if a defendant’s liability is removed (e.g. by making his actions legal through repeal of
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a statute), then vacatur is appropriate. Vacatur is not appropriate where the defendant’s conduct remains illegal and he voluntarily complies with the court ordered relief. Finally, the public interest is best served by leaving the injunction in place. Other jurisdictions have begun returning to the paper “chad” voting system, which is discriminatory towards disabled voters. Thus, there remains a real threat if the injunction is vacated that the rights of disabled voters will be significantly impaired. Additionally, this case is one of the few that has proceeded through trial and represents an important precedent. As such, it has provided valuable guidance and precedence to other courts, and thus should properly be left intact in the public interest.
The district court properly concluded that the ADA applies to the voting process. It also properly concluded that the voting systems are a facility under the ADA. Further, Duval County could have procured an accessible voting system because the touch screen systems were technologically feasible and had been successfully tested and used in other counties in Florida. Holland’s failure to provide the touch screen voting systems violated the ADA because the ADA requires new facilities to be readily accessible to the maximum extent feasible.
Holland improperly cites a fifteen year old letter from the Department of Justice to argue that Florida’s statutory program of providing third-party assistance to disabled persons when voting was ADA compliant. First, the letter is outdated
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and inapplicable. It was written when electronic systems did not exist, and specifically noted that such systems were “not currently available.” Second, the letter is not entitled to deference, according to Supreme Court precedent. Finally, the letter appears to be narrowly focused on blind voters in Pinellas County, and thus of limited relevance to this case.
The district court also properly found that the voting system in Duval County was not readily accessible to the maximum extent feasible. The ADA regulations require a heightened standard of accessibility where new facilities are constructed or altered after January 26, 1992. These heightened standards require that the facility “shall, to the maximum extent feasible, be altered in such a manner that the altered portion of the facility is readily accessible to and usable by individuals with disabilities.” Holland’s plan to provide handicap accessible voting systems in a single polling location did not satisfy the heightened standard of the ADA.
Finally, Congress’ enactment of HAVA did not render the case moot. HAVA makes clear, on its face, that it does not limit or supersede the applicability of the ADA. For example, HAVA does not alter the fact that Duval County’s voting system purchased in 2002 forced disabled persons to vote in a discriminatory manner. Likewise, there is no inconsistency with the court’s injunction requiring Duval County to provide handicap accessible voting systems
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sooner than the January 1, 2006 deadline mandated by HAVA. Finally, HAVA merely sets forth voluntary standards that are to be met in order to receive federal funding to help purchase voting systems. HAVA’s requirements are not mandatory, and failure to meet HAVA’s standards merely results in loss of funding.

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STANDARDS OF REVIEW This Court must defer to the trial court's findings of fact if they are “‘plausible in light of the record viewed in its entirety… Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous.’” Solomon v. Liberty County Comm’rs, 221 F.3d 1218, 1226-27 (11th Cir. 2000) (quoting Anderson v. City of Bessemer, 470 U.S. 564, 573-74, 105 S. Ct. 1504, 1511 (1985)). In reviewing these factual findings, this Court must make all credibility choices in favor of the fact-finder's choice, in light of the record as a whole. Meek v. Metro. Dade County, 985 F.2d 1471, 1481 (11th Cir. 1993). This Court reviews the trial court’s conclusions of law de novo. See Kidder, Peabody & Co. v. Brandt, 131 F.3d 1001, 1003 (11th Cir. 1997); SunAm. Corp. v. Sun Life Assurance Co. of Canada, 77 F.3d 1325, 1333 (11th Cir. 1996). This Court reviews the trial court’s order denying vacatur for abuse of discretion. Murchison v. Grand Cypress Hotel Corp., 13 F.3d 1483, 1485 (11th Cir. 1994).

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ARGUMENT
I. THE CURRENT APPEAL SHOULD BE DISMISSED FOR LACK OF JURISDICTION A. The Current Appeal, as it Relates to the Injunction is Moot, Therefore This Court Has No Jurisdiction to Hear the Injunction Related Issues The present appeal is from the district court’s Final Judgment that did
nothing more than conclude the litigation based on the same orders that were at
issue in Holland’s first appeal of the injunction, the Preliminary Order, and
Declaratory Judgment. The district court granted no other relief and decided no
other issues on remand before it entered the final judgment. Thus, Holland’s
current appeal is not substantively different than his first appeal. Indeed, as
Holland informed this Court when opposing AAPD’s pending request for
attorneys’ fees in the first appeal:
[I]t is important that the Court of Appeals be aware that the only issues on the merits pending in this case at the time of its August 15, 2007 decision, and prior thereto, are the very same matters that were at issue in the interlocutory appeal of district court documents 215 [Preliminary Order] and 216 [Declaratory Judgment].
(11th Cir. Response, Nov. 29, 2007, p. 8.) Because this Court held the
injunction-related aspects of the first appeal moot, those identical aspects of the
instant appeal should also be dismissed as moot for the same reasons.
If this Court determines that Holland was properly found to have violated
the ADA or that the district court properly granted the injunctive relief that this
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Court held could not be reviewed in the first appeal, it would be doing nothing more than issuing an advisory opinion. See, e.g., Fla. Ass’n of Rehab. Facilities, Inc. v. Fla. Dep’t of Health & Rehabilitative Servs., 225 F.3d 1208, 1217 (11th Cir. 2000) (citing Hall v. Beals, 396 U.S. 45, 48, 90 S. Ct. 200, 202 (1969)). These issues have already been mooted by Holland’s voluntary compliance with the injunction; there is no additional relief that can be granted by this Court in this appeal. Hence, to the extent that Holland’s current appeal from the district court’s Final Judgment is co-extensive with his first appeal of the same injunction, the present appeal should also be dismissed for lack of jurisdiction.
B. The Denial of Holland’s Motion to Vacate is Not Yet Ripe for Appeal, Because it Only Relates to the Attorneys’ Fees Issues Still Pending at the District Court
The district court's holding that Holland violated the ADA entitles AAPD to seek attorneys' fees under 42 U.S.C. § 12205, but that violation cannot be reviewed by this Court outside an appeal from a final judgment including the amount of the attorneys’ fee award. The district court is currently considering AAPD’s fee petition (filed at that court’s invitation) and Holland’s objections thereto, to determine AAPD’s appropriate statutory attorneys' fees award. With no final judgment regarding the attorneys’ fee award, the remaining portion of Holland’s current appeal is not yet ripe for appeal.

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By itself, an order holding a party liable for attorneys’ fees is not final if it does not quantify the amount of such award. See Morillo-Cedron v. District Director for the U.S. Citizenship & Immigration Services, 452 F.3d 1254, 1256 (11th Cir. 2006) (citing Hibiscus Assocs. Ltd. v. Bd. of Trs. of Policemen and Firemen Ret. Sys. of Detroit, 50 F.3d 908, 921-22 (11th Cir. 1995) (“Where ‘[t]he amount of the fee award has not been determined,’ a district court order granting attorney’s fees ‘is not final.’”)); Andrews v. Employees' Retirement Plan of First Ala. Bancshares, Inc., 938 F.2d 1245, 1247 (11th Cir. 1991) (“[A]n order holding a party liable for attorney’s fees, absent determination of the amount of such fees, is not final and appealable.”).13 Additionally, where there is no other issue in controversy, an unresolved or unquantified award of attorneys’ fees cannot be used as a basis for having an appellate court issue an advisory opinion regarding the merits of underlying litigation that is otherwise moot. See, e.g., Fla. Ass’n of Rehab. Facilities., 225 F.3d at 1217.
Where a district court’s order makes clear that the court contemplates further action on attorneys’ fees issue, such order cannot be considered an appealable order. Fort v. Roadway Express, Inc., 746 F.2d 744, 747 (11th Cir. 1984). Here, the district court clearly contemplated further action on the attorneys’ fee issue.
13 See generally Special Devices, Inc. v. OEA, Inc., 269 F.3d 1340, 1344 (Fed. Cir. 2001) (“Most of our sister circuits have also adopted the rule that an award of unquantified attorney fees … is not a final decision.”)(and cases cited).
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The district court’s Final Order held that the Declaratory Judgment “shall be construed as a final judgment entered against Defendant Holland and in favor of Plaintiffs” and further stated, with respect to the Defendants’ Motion to Tax Costs and the Plaintiffs’ Motion for Attorneys’ Fees, Costs, and Litigation Expenses, “[t]he parties may refile said motions within fourteen (14) days hereof.” (Dkt. 294, p. 5 (emphasis in original).) Given that the district court’s Final Order and Judgment did not include any final determination concerning the amount of fees, but did contemplate a future award of such fees, the attorneys’ fees-related issues are not currently ripe for appeal.
The only reason that Holland has repeatedly sought to vacate the district court’s Preliminary Order and Declaratory Judgment was his belief that vacatur would negate his liability for the costs and fees to which AAPD is entitled under the ADA. (See e.g., Dkt. 315, p. 8.) Holland informed this Court that the only remaining issue in the case is the attorneys’ fees, making this issue the only plausible basis for filing his motion to vacate. (11th Cir. Response, Nov. 29, 2007, at 8 (“No other issues remain, other than Plaintiff’s desire to collect attorney’s fees.”).) Given that Holland’s amended appeal challenging the denial of his motion to vacate is tied directly and solely to the propriety of any award of attorneys’ fees, the order denying the motion to vacate is not ripe for appeal until a final determination regarding any attorneys’ fees is made by the district court.
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II. EVEN IF THE COURT ADDRESSES THE MOTION TO VACATE, THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION IN DECLINING TO VACATE ITS ORDERS A. Vacatur is Not Appropriate When Mootness Results From the Appellant’s Voluntary Action Even if this Court finds that the entire case has become moot, the district
court was well within its discretion in declining to vacate its orders. If a case becomes moot, vacatur is only appropriate when the mootness results from an action unattributable to either party or results from the unilateral action of the party who prevailed below. U.S. Bancorp Mort. Co. v. Bonner Mall P’ship, 513 U.S. 18, 25, 115 S. Ct. 386, 391 (1994). In Bancorp, the Supreme Court noted that its prior decision, United States v. Munsingwear, 340 U.S. 36, 37, 71 S. Ct. 104, 105 (1950),14 only addressed vacatur in dicta, and thus Munsingwear was not binding on this issue. Bancorp 513 U.S. at 23-24, 115 S. Ct. at 390-391. Hence, Holland’s reliance on Munsingwear’s description of the “established practice” of vacating judgments without regard to why the mootness occurred is inappropriate.
In Bancorp, the Supreme Court explained that the reason why the case becomes moot is critical to the analysis of whether vacatur is appropriate. 513 U.S. at 24, 115 S. Ct. at 391 (“From the beginning we have disposed of moot cases in the manner “‘most consonant to justice’ ... in view of the nature and character of
14 Holland’s lead case for his vacatur argument. (Br. at 29-30.)
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the conditions which have caused the case to become moot.” (emphasis added).) In settlement, the losing party has voluntarily forfeited his legal remedy by the ordinary process of appeal, thereby surrendering his claim to the equitable remedy of vacatur. 513 U.S. at 25, 115 S. Ct. at 391. Similarly, where mootness resulted from the losing party complying with the injunctive relief ordered, the equitable remedy of vacatur is neither required nor appropriate. In view of the nature and character of the conditions that caused the present case to become moot, namely Holland’s voluntarily compliance with the injunctive relief won by AAPD, vacatur of the district court’s Orders and Judgments would be an injustice to the plaintiffs and to disabled voters seeking precedent for establishing similar rights in other jurisdictions.
Holland’s 2004 purchase of handicap accessible voting systems was a voluntary action by Holland to comply with the district court’s orders, and therefore the motion to vacate was properly denied. A party cannot comply with an order and then later seek vacatur of that same order. See, e.g., Staley v. Harris County, 485 F.3d 305, 306 (5th Cir. 2007) (vacatur denial where the County’s appeal of the district court’s order to remove a bible near a courthouse was mooted by county’s voluntary decision to put the bible in storage); Ford v. Wilder, 469 F.3d 500, 506 (5th Cir. 2006) (subsequent voiding of the challenged election mooted the case but did not grant vacatur because “the defendants were
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responsible for the mooting of this case”). The reason for this rule is to “prevent the litigant from abusing the equitable
remedy of vacatur by purposefully mooting his own appeal.” Dilley v. Gunn, 64 F.3d 1365 (9th Cir. 1995). Holland is seeking to have the district court’s judgments vacated in hopes of escaping liability for attorneys’ fees. Holland purposefully mooted his first appeal and voluntarily complied with the district court’s injunction order by purchasing accessible voting systems for each voting precinct in Duval County – precisely the relief that AAPD sued for and obtained in this litigation. This is exactly the situation in which vacatur should not be allowed.
1. Holland’s Case Law is Inapplicable The vacatur cases cited by Holland are inapplicable and do not show that the district court abused its discretion here. These cases merely demonstrate that if the basis for a defendant’s liability is removed, e.g., a statute is repealed, then the case has become moot for reasons other than the losing party’s action. Likewise, if the defendant had remedied its wrongdoing before suit was filed, then vacatur may be appropriate. However, in the instant situation, the ADA has not been repealed, Holland’s liability for violating the ADA has not been eliminated, and Holland did not remedy his ADA violations before AAPD sued and obtained its injunction. Therefore, vacatur remains wholly inappropriate in this instance, where any
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mootness resulted from Holland voluntarily complying with the injunction. In Munsingwear, the United States alleged that the defendant violated a
regulation fixing the maximum price of certain commodities. 340 U.S. at 37, 71 S. Ct. at 105. The district court held that the defendant’s prices complied with the regulation; the United States appealed. Id. While the appeal was pending, the commodity involved was decontrolled. Id. Decontrol made the regulation inapplicable, thus the appellate court determined that the appeal was moot. Id. In a subsequent case where the United States sought to avoid the preclusive effect of the prior judgment, the Supreme Court merely observed that the United States could have moved to vacate the earlier district court judgment. 340 U.S. at 39, 715 S. Ct. at 106.
Holland insists that Munsingwear stands for an absolute proposition that if a case becomes moot while on appeal, it should be reversed or vacated and remanded with directions to dismiss. (Br. at 29-30.) However, Holland conveniently overlooks that in Munsingwear the mootness was caused by a change in the law. Nothing in Munsingwear suggests that a defendant can voluntarily moot the appeal to have the unfavorable judgment against him dismissed or vacated. See supra at 33-34. In the instant case, Holland’s 2002 purchase of optical scan voting systems was found to violate the ADA and nothing has happened since that changed the fact that Holland’s actions were illegal.
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Moreover, as noted above, the Supreme Court later determined that its “established practice” vacatur statements in Munsingwear were merely dicta, and as such have invoked its “customary refusal to be bound by dicta” and exercised its “customary skepticism toward per curiam dispositions that lack the reasoned consideration of a full opinion” in declining to follow its own vacatur analysis in Munsingwear. Bancorp, 513 U.S. at 24. Therefore, this Court should follow the directly applicable teachings of Bancorp rather than accept Holland’s reliance on Munsingwear’s discredited position on vacatur.
Holland’s reliance on IAL Aircraft Holding, Inc. v. Federal Aviation Administration, 21 F.3d 1304, 1305 (11th Cir. 2000), is also misguided. There the owner of an airplane obtained a judgment that its Brazilian registration was no longer valid. After the owner unsuccessfully filed for registration, the owner appealed the denial to this Court. Id. While the appeal was pending, the owner sold the aircraft. Id. The owner did not notify this Court, and the Court subsequently issued its opinion. Given that the party who sought relief voluntarily mooted the case by selling the aircraft before the appellate court rendered a decision, its decision was properly vacated as it should never have been rendered in the first place because the court had no jurisdiction. Id. at 1306. Here, at the time of the district court’s decision, Holland was still violating the ADA. Only as a result of the district court’s injunction did Holland finally comply with the ADA.
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At no point has any party questioned the district court’s jurisdiction at the time it issued its orders.
In National Advertising Co. v. City of Miami, 402 F.3d 1329, 1330 (11th Cir. 2005), a billboard company sued the City of Miami challenging municipal zoning ordinances. Subsequently, the City amended its zoning regulations pertaining to signs. Id. at 1331. The district court granted summary judgment to the City; National Advertising appealed. Id. Upon appeal, this Court concluded that the City’s post-suit amendments to its zoning ordinances mooted the appeal, dismissed the case and vacated the summary judgment. Id. at 1335. On appeal, the court noted that the City was unlikely to reenact the old zoning ordinances, and thus determined it had no jurisdiction over the appeal. Id.
First, National Advertising cannot stand for a broad proposition that vacatur is required where a case is mooted by voluntary actions of the losing party. National Advertising merely illustrates that when a law changes, and the activity at issue is no longer a violation of the law, a court does not have jurisdiction to review the old law. Id. at 1335. Again, here there was been no change in the law – the relevant portion of the ADA has been in effect for the entire duration of this case. Moreover, as discussed in section II.A.3, there is a risk of Duval County returning to non-compliant voting systems, and thus there is a strong public interest to deny vacatur in this situation.
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Finally, Holland relies heavily on Troiano v. Supervisor of Elections, 382
F.3d 1276, 1281 (11th Cir. 2004), as showing that this case is moot, but such
reliance does not support vacatur in this case. In Troiano, the Supervisor of
Elections had provided handicap accessible voting systems in two elections before
she was sued. Id. This is much different than the case at hand where Holland
continued to discriminate and failed to provide accessible voting systems until
after being sued, after going to trial, and after the district court ordered him to
provide accessible voting systems. Thus, Holland’s cases do not show that the
denial of Holland’s motion to vacate was an abuse of discretion.
2. The Public Interest is Best Served by Keeping the Order and Injunction In Place
The Supreme Court had made clear that the public interest should be
considered in determining whether to vacate a decision:
As always when federal courts contemplate equitable relief, our holding must also take account of the public interest. “Judicial precedents are presumptively correct and valuable to the legal community as a whole. They are not merely the property of private litigants and should stand unless a court concludes that the public interest would be served by a vacatur.”
Bancorp, 513 U.S. at 26, 115 S. Ct. at 392 (citations omitted). The district court’s
injunction should remain in place, as it serves an important public interest by
protecting the ability of disabled voters to vote using handicap accessible voting
systems to the maximum extent possible. In response to the “hanging chad”
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controversy associated with the 2000 presidential election, many jurisdictions across the country switched to other forms of voting systems (including Florida). However, recently some jurisdictions have returned to the paper ballot based voting systems, thus suggesting that other jurisdictions, including Duval County could follow suit. (See John Gibeaut, Electing to Litigate, ABA JOURNAL, Jan. 2008, at 43.) Leaving the current injunction in place is appropriate to protect the right to vote using a system that is handicap accessible to the maximum extent possible, a right which AAPD fought for, and won, in a long and arduous litigation.
Leaving the current injunction in place will not only protect the right of handicapped persons in Duval County, but also in jurisdictions across the country. This case provides an important precedent for other jurisdictions grappling with these same issues. In fact, it has been cited and relied on in other suits by disabled persons fighting for voting rights in other jurisdictions. See, e.g, People of the State of Cal. v. County of Santa Cruz, 2005 WL 2579968 (N.D. Cal. August 4, 2006)); Meadows v. Hudson County Bd. of Elections, 2005 WL 3636482 (D.N.J. July 27, 2005). Where jurisdictions are returning to a discriminatory voting system, this case has great value and importance for all disabled voters. Vacatur of the orders finding liability and establishing the injunction solely because Holland complied with them is not warranted, particularly in view of the important value of
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this case to disabled voters in other jurisdictions. Finally, at least one of the purposes of statutory provisions which provide
for the award of attorneys fees is to reward successful law suits of this nature. Without such provisions, many would not undertake the task of seeking relief to which they are entitled. To allow a defendant to avoid paying attorneys’ fees through his own compliance with the order granting the relief sought would negate the purpose of allowing those fees – why provide award of attorneys fees to a prevailing party if the losing party can avoid paying them by merely obtaining vacatur after complying with the order granting the relief sought? III. THE TRIAL COURT PROPERLY FOUND THAT THE
ADA APPLIES TO THIS CASE A. The ADA Requires Voting to be Readily Accessible to
Disabled Persons Holland asserts that the district court erred as a matter of law when it held that Holland violated the ADA (Dkt. 215, p. 17-20) because the ADA does not apply to the impairment of disabled voters’ rights when they are forced to vote using a more burdensome and discriminatory voting process than non-disabled voters. (Br. 34-35.) However, the district court’s application of the ADA and its implementing regulations comports with Supreme Court and Eleventh Circuit precedent. Shotz v. Cates, 256 F.3d 1077 (11th Cir. 2001); see also Tennessee v. Lane, 541 U.S. 509, 124 S. Ct. 1978 (2004) (noting court findings under the ADA

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of a “pattern of unequal treatment in the administration of a wide range of public services, programs, and activities, including ... voting ....”) (emphasis added) (citations omitted).
In Shotz, Appellees with physical impairments brought suit against the judge of a state court and the county sheriff for failing to remove barriers that would make the courthouse accessible and usable by individuals with disabilities. Shotz, 256 F.3d at 1079. This Court held that a “violation of Title II…[of the ADA] does not occur only when a disabled person is completely prevented from enjoying a service, program or activity.” Id. at 1080. Therefore, the court explained that if wheelchair ramps leading to the courthouse are steep or the bathrooms are not usable, then the courthouse is not “‘readily accessible,’ regardless whether the disabled person manages in some fashion to attend the trial.” Id.
This Court has already rejected Holland's contention that there can be no ADA violation because AAPD somehow managed to vote using Duval County’s optical scan system. (Br. 34-35.) The district court properly held that Holland violated the ADA because, in 2002, the voting process in Duval County was not readily accessible to AAPD because they were forced to vote in a manner rife with burdens not faced by non-disabled voters. (Dkt. 215, p. 2-3.) Other federal courts’ discussions are consistent with the district court’s application of the ADA to voting. For example, in National Organization on Disability v. Tartaglione, 2001 WL
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1231717 (E.D. Pa. Oct. 11, 2001), disabled plaintiffs alleged that the City of
Philadelphia violated the ADA when it entered into a contract for new voting
equipment that did not include accessible voting systems because they were forced
to vote using third party assistance in a manner that imposed burdens upon them
not placed upon non-disabled voters. Id. at *2. The court denied the City’s motion
to dismiss:
Defendant’s argument that plaintiffs cannot state claims for relief [under the ADA and Rehabilitation Act] because plaintiffs have not been prevented from voting mischaracterizes the Complaint… plaintiffs claim to have been discriminated against in the process of voting because they are not afforded the same opportunity to participate in the voting process as non-disabled voters. The Complaint alleges that assisted voting…is substantially different from, more burdensome than, and more intrusive than the voting process utilized by non-disabled voters… The Complaint alleges that the … plaintiffs…cannot participate in the program or benefit of voting in the same manner as other voters but, instead, must participate in a more burdensome process… [T]he Court concludes that the Complaint states a claim for discrimination in the process of voting….
Id. at *3. Finally, the Department of Justice has declared that the ADA applies to
the voting process: “[i]f reasonable modifications were available that would allow
blind or visually impaired voters to cast their ballots without assistance and that
would assure ballot secrecy, the plain import of the ADA and its implementing
regulations would require the state to adopt those modifications.” (Dkt. 58, Ex. 2,
p. 11-12 (emphasis added).)

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Holland’s continued reliance on Nelson v. Miller, 170 F.3d 641 (6th Cir. 1999), is misplaced for multiple reasons. (Br. 31.) Most importantly, the Sixth Circuit’s affirmance of the district court’s dismissal was “on grounds different from those advanced [by the district court]….”15 Nelson, 170 F.3d at 645. The Sixth Circuit framed the issue as whether the Michigan Constitution “requires more secrecy than the Michigan legislature has provided for in [the Michigan voter assistance statute].” Nelson, 170 F.3d at 650. Given two plausible interpretations, the Sixth Circuit – for reasons completely unrelated to the ADA – picked the interpretation that held the voter assistance statute constitutional. Id.
In addition, the claims in Nelson were factually distinct from the claims here. The plaintiffs there did not allege the ADA was violated by the defendants’ alteration of a facility. Instead, the plaintiffs sought an injunction forcing the State to modify a facility, i.e., purchase new voting equipment. Nelson, 170 F.3d at 644. Thus, Nelson did not involve a voluntary decision to alter an existing facility which gives rise to the affirmative obligation and more stringent standard applicable to Holland’s actions here. Finally, Nelson did not involve a claim under the ADA's generic proscription against discrimination. For all these reasons, Nelson was properly held to be inapplicable by the district court.
15 When a public entity alters an existing “facility,” it must make the altered facility readily accessible to the “maximum extent feasible.” 28 C.F.R. § 35.151 (b); see infra p. 48-52.
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B. A 1993 DOJ Letter of Findings Does Not Undermine the District Court’s Ruling
Holland argues that the district court erred by not adopting a 1993 Department of Justice (“DOJ”) Letter of Findings (“Letter”) that Holland asserts “specifically determined that Florida’s statutory program of third party assistance met ADA standards.” (Br. 35.) To the contrary, the district court committed no “clear error in judgment” when it concluded that “[Appellant’s] interpretation of the Letter is overly broad.” (Dkt. 124, p. 21; see SunAm., 77 F.3d at 1333.)
First, the Letter was written when accessible voting systems did not exist. In reviewing Pinellas County’s election practices in 1993, the DOJ concluded that, because no alternative existed for allowing a blind voter to cast a ballot on his own, third-party assisted voting allowed blind voters to participate in and enjoy the benefits of a service, program, or activity conducted by a public entity. (Dkt. 58, Ex. 1.) In a portion of the Letter notably absent from Holland’s brief, the DOJ found that “electronic systems of voting by telephone that meet the security requirements necessary for casting ballots are not currently available.” (Id. (emphasis added).) Consistent with this acknowledgement, as technology has changed, so have the views of the DOJ.
More recently, in its amicus curiae brief in Nelson, the DOJ stated: “If reasonable modifications were available that would allow blind or visually impaired voters to cast their ballots without assistance and that would assure ballot
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secrecy, the plain import of the ADA and its implementing regulations would require the state to adopt those modifications.” (Dkt. 58, Ex. 2, p. 11-12 (emphasis added).)16 In 2002, electronic voting systems did exist and were readily available; thus Holland’s failure to purchase these systems was properly held to violate the ADA. (See also Dkt. 193, Hrg. Ex. A (encouraging jurisdictions to implement disability requirements of HAVA as soon as possible “to help ensure that disabled voters are able to fully participate in the election process to the maximum extent possible”). )
Second, the district court properly concluded that the 1993 Letter “is not entitled to deference under Chevron U.S.A., Inc. v. Natural Res. Defense Council, Inc., 467 U.S. 837, 104 S. Ct. 2778 (1984).” (Dkt. 124, pp. 21-22.) This opinion letter is neither binding nor controlling authority. Christensen v. Harris County, 529 U.S. 576, 587, 120 S. Ct. 1655, 1662 (2000); Gonzalez v. Reno, 215 F.3d 1243, 1245 (11th Cir. 2000). At best, it is evidence that the district court properly weighed and did not clearly err in rejecting it in its analysis.
Third, as the district court found, “[t]he Letter only purports to evaluate whether the Pinellas County Supervisor of Elections provided equally effective communications to blind voters. Thus, to the extent that the Letter is relevant to this case, its relevance would appear limited to [AAPD’s] claims under 28 C.F.R. 16 See Auer v. Robbins, 519 U.S. 452, 117 S. Ct. 905 (1997)(giving deference to position taken by U.S. Secretary of Labor in amicus brief).
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§ 35.160.” (Dkt. 124, p. 21.) Thus, whatever its accuracy or weight, the Letter has no bearing on AAPD’s claims under the heightened altered facilities standard of 28 C.F.R. § 35.151 (b). IV. THE COURT PROPERLY FOUND THAT IN 2002,
DUVAL COUNTY DID NOT PROVIDE VOTING SYSTEMS THAT WERE HANDICAP ACCESSIBLE The district court concluded that “[t]he Diebold optical scan voting system purchased by Duval County is not readily accessible to visually or manually impaired voters.” (Dkt. 215, p. 17.) Indeed, Holland admitted as much at trial. (See supra p. 15-16.) Specifically, Duval County's purchase of optical scan systems required disabled voters in 2002 to vote in a materially different manner than nondisabled voters. (Dkt. 169, p. 154:13-155:19.) A. The District Court Properly Concluded That Voting
Equipment is a Facility Under the ADA The threshold inquiry facing the district court was whether the voting systems that Holland purchased in 2002 constituted a “facility” under the ADA implementing regulations. (Dkt. 215, p. 17.) The district court concluded that “voting equipment plainly falls within the expansive definition of ‘facility’ contained in the regulations .... ,” because a voting system is equipment, and equipment is, on its face, included in the definition of “facility” in the regulations. (Dkt. 215, p. 17; Dkt. 124, p. 14, n.5; Dkt. 42, p. 25, n.16.)

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The trial court’s ruling is firmly grounded in the plain language of the regulations. A “facility” is defined in part as “all or any portion of . . . equipment . . . .” 28 C.F.R. § 35.104 (2003) (emphasis added). (See Dkt. 215, p. 17; Dkt. 42, p. 25 n.16; Dkt. 124, p. 14 n.5.) Courts that have addressed this issue have likewise held that voting systems constitute “facilities” under the ADA. See Troiano v. LePore, No. 03-80097, 2003 WL 24832863, at 1-2 (S.D. Fla. May 1, 2003); Tartaglione, 2001 U.S. Dist. LEXIS 16731, at *17-*18. Thus, this is not a “novel” conclusion, as Holland advocates. (Br. 34.) Moreover, Holland's contention that facilities are “limited to elements that are permanently made part of a physical structure” (Br. 40) is neither supported by the cases he cites nor consistent with the plain language of the regulations.17 28 C.F.R. § 35.104; see also Kinney, 9 F.3d at 1071.
B. The District Court Applied the Proper ADA Standard to Holland's Conduct
The ADA distinguishes between existing facilities and those constructed or altered after January 26, 1992. 28 C.F.R. §§ 35.150 & 151 (2007). The regulations do not require public entities affirmatively make changes to existing facilities.

17 Holland's assertion that “[r]eported cases under § 35.151 (b) relates to an alteration to an element made part of a permanent physical structure,” ignores Tartaglione. Holland also ignored the word “equipment” contained in the regulation’s definition of “facilities.” 28 C.F.R. § 35.104. (Br. 40.)

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Shotz, 256 F .3d at 1080. However, the ADA does impose a “heightened standard”
of accessibility when public entities choose to alter existing facilities or construct
new ones. “When a public entity independently decides to alter a facility, it ‘shall,
to the maximum extent feasible, be altered in such a manner that the altered portion
of the facility is readily accessible to and usable by individuals with disabilities.’”
Kinney v. Yerusalim, 9 F.3d 1067, 1071 (3d Cir. 1993) (quoting 28 C.F.R. § 35.151
(b)); see also Ass'n for Disabled Ams. v. City of Orlando, 153 F. Supp. 2d 1310,
1317 (M.D. Fla. 2001). This standard is “substantially more stringent” than the
standard applied to existing facilities. Kinney, 9 F.3d at 1071. These stricter
regulations require that alterations be completed in a nondiscriminatory manner that provides full access to all qualified voters.18 Id. at 1073. Thus, the district
court properly analyzed AAPD’s ADA claims under the heightened standard of §
35.151(b), which obligated Holland to make Duval County’s voting system
18 Indeed, Congress recognized that altered or new facilities presented “an immediate opportunity to provide full accessibility.” Kinney, 9 F.3d at 1074. Accordingly, it required such changes to be made free of discrimination and to be usable by all. Id. at 1073. Congress also appreciated the importance of implementing advances in technology. The House Committee made it clear that “technological advances can be expected to further advance options for making meaningful and effective opportunities available.” H.R. Rep. No. 101-485 (II), at 108 (1990), reprinted in 1990 U.S.C.C.A.N. 303, 391. That Committee intended accommodations and services to “keep pace with the rapidly changing technology of the times.” Id.
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accessible to the maximum extent feasible at the time he purchased the optical scan system in 2002. (Dkt. 215, p. 16-17.)
Holland proffers several excuses in an attempt to justify his decision to purchase a wholly inaccessible voting system. For example, Holland argues that there were certain features of the Diebold optical scan system he preferred over the ES&S optical scan system and that he did not like the “boot up” process of the ES&S touch screen.19 (Br. 19.) Similarly, Holland places great weight on the recommendations of the Duval County Task Force and the “research” of the staff of the Supervisor of Elections’ office. (Br. 15, 17-20.) Holland ignores that all of these purported excuses are legally irrelevant in light of the heightened standard imposed by § 35.151 (b). Indeed, the record demonstrates that neither the Duval County Task Force nor the Supervisor of Elections’ office considered the admittedly “specific needs” of disabled voters when choosing the optical scan system, let alone ensured that the voting system Holland procured was accessible to the maximum extent feasible, as compliance with § 35.151(b) obligated them to do. (PX 74; PX 150, at 38:13-17.)
Holland admitted that despite the fact he received requests to provide accessible voting systems, he did no real analysis of what technology existed to
19 While Holland did compare different optical scan voting systems, he admitted that he made no comparison of touch screen systems. (Dkt. 169, p. 150:12-151:6; Dkt. 170, p. 117:14-118:5.)
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meet the needs of disabled voters, and never sent out a request for proposals to investigate what technology existed. (Dkt. 169, p. 127:7-129:15, 145:1-5; Dkt. 170, p. 32:1-5; Dkt. 166, p. 63:14-64:18, 102:11-20, 115:13-117:25; Dkt. 167, p. 25:1527:2; Dkt. 170, p. 11:5-15:10.) Similarly, the chairman of the Duval County Task Force admitted that the Task Force’s conclusions were not based on “a detailed investigation” of issues faced by disabled voters. (Dkt. 171, p. 166:8-15.) Instead, the chairman testified that despite receiving testimony about the problems encountered by disabled voters, the Task Force did not regard the problems faced by disabled voters to be among the “top sixteen” issues that needed to be addressed. (Dkt. 171, p. 151:10-152:13.)
For similar reasons, Holland’s “plan” to place three touch screen voting systems with audio ballot in the Supervisor of Elections’ downtown office does not satisfy the heightened standard of § 35.151 (b). (Dkt. 215, p. 18-19.) This “plan” fails to “satisfy the accessibility standard” because “Duval County is a geographically large county,” and would “require[e] AAPD, who already lack the mobility that non-disabled voters have, to travel downtown” instead of voting in their neighborhood polling places. (Dkt. 215, p. 19.) As the record demonstrates, this plan would require tens-of-thousands of disabled voters in the county to travel, up to five hours, on election day (Dkt. 215, ¶ 25; Dkt. 166, p. 62:10-63:1, 99:20100:21; Dkt. 167, p. 22:21-23:9), through one of the nation’s largest counties (Dkt.
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169, p. 162:10-16) to Holland’s 10,000 square foot office (Id. 179:4-23) to cast their votes on these three systems. (Id. 160:22-161:13.)
Holland admitted that in formulating this “plan,” he did no analysis of the travel issues faced by disabled voters in Duval County. (Dkt. 169, p. 164:19167:10.) He has “no idea how long it takes for a visually or manually impaired person to travel on disabled transportation in Duval County.” (Id. 165:7-10, 166:15-19.) Nor does he have any “knowledge regarding the reliability of ParaTransit in Duval County.” (Dkt. 169, p. 165:11-13, 167:11-13.)
Holland’s argument that this “plan” was “reasonable” again ignores the standards imposed by the ADA. (Br. 45.) The applicable standard has nothing to do with reasonableness. To the contrary, the ADA required that Duval County’s voting system be readily accessible and usable by disabled voters to the maximum extent feasible at the time the County purchased the system in October 2002. A plan to one day comply with the ADA does not constitute compliance at all. Kinney, 9 F.3d at 1072; Engle v. Gallas, No. 93-3324, 1994 U.S. Dist. LEXIS 7935, at *9 (E.D. Pa. June 10, 1994) (unimplemented plan is insufficient to remedy an ADA violation because “[g]ood intentions, in this regard, are of little help to one who must endure the hardship of a disability”).

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C. It was Feasible for Holland to Procure an Accessible Voting System
There is no dispute that disabled voters cannot vote using the optical scan voting system in the same or similar manner as non-disabled voters, and that other options were available at the time Holland chose to procure the optical scan system. (See supra p. 22-23.) Thus, as the trial court properly framed the issue, “[i]f it was feasible for Duval County to purchase a readily accessible system, then AAPD’s rights under the ADA ... were violated.” (Dkt. 215, p. 17.) The record evidence clearly supports the trial court’s answer to this question in the affirmative that: “[a]t the time the City purchased the optical scan system, it was technologically and financially feasible” for Holland to have provided an accessible touch screen voting system instead. (Dkt. 215, p. 17-18.)
Holland does not contest that § 35.151 (b) requires that alterations to facilities must be readily accessible to and usable by people with disabilities to the maximum extent feasible. (Br. 42.) Instead, Holland argues that the trial court imposed too broad a standard of feasibility that resulted in the “transforma[tion of] this regulatory limitation into the judicial compulsion to buy a flawed voting system without regard to its usability or costs.” (Br. 43 (emphasis in original).) Holland argues “alterations need not be made if they exceed existing technical ability, involve unreasonable costs, or impose risks or burdens that are disproportionate to the accessible feature sought.” (Id. at 43.) This standard,
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which contradicts the plain language of § 35.151(b), lacks any legal support. Moreover, as discussed below, the trial court’s decision clearly took into account both the usability and cost of accessible voting equipment, and the record clearly supports the trial court’s conclusion that procuring accessible voting systems was both technologically and financially feasible.
1. Touch screens were technologically feasible Holland challenges the district court’s conclusion that it was technologically feasible, “[a]t the time the City purchased the optical scan system,” to provide an accessible touch screen voting system. (Dkt. 215, p. 17.) Specifically, Holland contends that it was “clear error” for the district court to make this conclusion because (1) the court relied on state certification “alone,” and (2) the ES&S touch screen “resulted in the most calamitous election experiences in Florida in 2002.” (Br. 43.) The record supports neither of these assertions, and, given that the record demonstrates the district court’s findings were “plausible,” this Court is constrained to defer to that conclusion. Solomon, 221 F.3d at 1226-27. First, the trial evidence clearly supports the district court’s finding that certification by Florida means a voting system “has been tested to the highest standards of accuracy and reliability and can be relied upon to be dependable and to be a fairly good investment in terms of durability.” (Dkt. 215, ¶11.) Indeed, this was the uncontroverted testimony of Paul Craft, Chief of the Florida Bureau of
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Voting System Certification, who testified at length about the stringent certification process, and noted, in particular, that Florida’s testing is far more stringent than that employed elsewhere. (Dkt. 168, p. 15:8-16, 19:9-21:2; PX 142; see also Dkt. 168, p. 89:2-16, 103:20-105:24.)
Although the district court could properly find that the system was “technologically feasible” based solely on the fact that the system enjoyed certification by Florida, that certification is not the only factual support for technological feasibility. The trial court also based its finding on the evidence that “other jurisdictions within Florida and outside of Florida provided accessible equipment around the same time. . . .” (Dkt. 215, p. 18.) Indeed, the record is replete with evidence demonstrating that touch screen technology was not only certified, but was used successfully throughout Florida and the rest of the country during, and even before Holland decided to purchase the optical scan system. The previous Supervisor of Elections, Stafford, admitted that 257 counties across the country used touch screen systems as of 2001, and as early as February 2001, Stafford advocated that the county take immediate steps to adopt a touch screen system. (Dkt. 169, p. 183:4-8; PX 11, at 10; Dkt. 170, p. 113:21-114:19; PX 123, at 2-4.) Finally, the record shows that the use of touch screen voting systems has grown exponentially, with “in the neighborhood now of 500 counties” using touch screen technology across the country. (Dkt. 170, p. 142:9-14.)
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Similarly, the record flatly contradicts Holland’s contention that the district court erred as to technological feasibility because the ES&S system “caused” problems during the September 2002 primaries. (Br. 43-45.) First, the record demonstrates that any problems encountered in Broward and Dade Counties during the 2002 primary election “stemmed from not permitting sufficient time for the large, multilingual ballots to boot up on the ES&S systems and logistical problems such as getting all of the systems to precincts and poll worker training,” as opposed to any system malfunction. (Dkt. 215, ¶ 43.) Indeed, all of the evidence demonstrates that the problems arose from mismanagement by the elections supervisors in those counties, which has been fully corrected. (Dkt. 168, p. 76:611.) The Chief of the Florida Bureau of Voting System Certification, the only person to testify with first-hand knowledge of the situation, stated that “the problems [in Dade County] stemmed primarily from failure to allow enough time to open the precincts, [and] failure to understand how much time that would take.” (Dkt. 215, ¶ 43; Dkt. 168, p. 74:5-17; see also id. 74:18-75:24.) He explained that the problems in Broward County were attributable to “logistics,” “problems with training the poll workers,” and problems “getting all the systems and all the supporting devices to the precincts.” (Dkt. 215, ¶ 43; Dkt. 168, p. 75:13-17.)
Tellingly, Holland’s argument even contradicts Stafford’s deposition testimony that the problems in Broward were attributable to the mismanagement of
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the Broward County elections supervisor, and that Dade Counties’ “issue” was
with the boot-up time of the systems, alone. (Dkt. 170, p. 25:5-24; PX 150, at 86:420.)20 Finally, Holland’s contention on this issue is belied by the fact that the
ES&S system was not decertified following the 2002 primary, and indeed remained
certified and in use in these same counties subsequent to the 2002 primary. (Dkt. 169, p.141:21-142:1.)21
D. The District Court Properly Concluded That Holland Violated the ADA by Failing to Provide Touch Screen Voting Systems for Manually Impaired Voters
The record similarly supports the trial court’s determination that Holland
violated the ADA by failing to provide a touch screen voting system, because such
a system “is accessible to at least some manually impaired voters.” (Dkt. 215, p.
19-20.) Indeed, Appellee Bell, who has no arms or legs, demonstrated for the trial
court how he could vote on a touch screen system by using his mouth stick. (Dkt.
166, p. 93:6-96:2.)
20 Holland’s description of Mr. Dickson’s testimony about Miami Dade and Broward counties is incorrect. Mr. Dickson clearly testified, “My study and examination of the problems concurred with Mr. Craft. . . . The problems were election administratively related, poll worker training.” (Dkt. 171, p. 14:2-7.)
21 Stafford was forced to admit that he “never questioned the accuracy of [the ES&S touch screen],” but rather his sole concern “was with the cartridge as far as uploading and downloading ....” (Dkt. 170, p. 117:3-118:5.) He also admitted that “ES&S... would work.” (Dkt. 169, p. 186:1-6.)
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Holland attempts to confuse the record by arguing that “[n]o voting system has ever been certified in Florida for use by persons with manual disabilities including the use of mouth sticks.” (Br. 46.) This is nothing more than a red herring. As the district court concluded, “[a] mouth stick would not have to be certified because mouth sticks are available to the general public.” (Dkt. 215, ¶19.) Indeed Paul Craft, Chief of the Bureau of Voting System Certification, specifically testified that there is no hardware certification requirement for “a mouth stick,” or any other items that a manually impaired person could use to press the touch screen and cast a ballot. (Dkt. 168, p. 68:20-69:11.) A mouth stick is something that is maintained by the disabled voter and used in every day activities. It is not a part of any voting system and is not something that is provided by the polling place. (Id. 145:24-147:7.) Indeed, a manually impaired person can use a variety of items to operate a touch screen, including other body parts, and is not restricted to voting only by the use of a mouth stick. (Id. 145:17-20.) This, in and of itself, demonstrates that the district court properly concluded touch screen voting systems available in Florida are accessible, to the maximum extent feasible, to at least some manually impaired voters. (Dkt. 215, p. 19.) V. THE ENACTMENT OF HAVA DOES NOT RENDER
THIS CASE MOOT The district court ruled that HAVA does not render this case moot because “HAVA makes clear that it is not to be construed as superseding or limiting the
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application of the ADA....” (Dkt. 215, p. 28 n.10; Dkt. 124, p. 20, n.9.) Holland’s argument to the contrary (Br. 32-34.) ignores the plain language of HAVA itself. On its face, HAVA explicitly provides that “nothing in this Act may be construed to ... supercede, restrict, or limit the application of .... The Americans With Disabilities Act of 1990 (42 U.S.C. §§ 12101 et seq.).” 42 U.S.C. § 15545(a)(5) (2002). Holland even admitted at trial that he is “not suggesting that [his] plans under HAVA somehow excuse [him] from complying with the Americans With Disabilities Act.” (Dkt. 169, p. 73:24-74:2.) The ADA made Holland’s discrimination illegal and the provisions of HAVA did nothing to excuse Holland’s conduct.
There is no inconsistency with the district court’s declaration that Holland violated the ADA and was thus required to provide accessible voting systems before HAVA’s deadline requiring jurisdictions to provide accessible voting systems no later than January 1, 2006. The district court’s March 23, 2004 order mandated a remedy for Holland’s adjudicated violation of the ADA, while HAVA’s subsequent January 1, 2006 deadline, served only as the absolute latest date by which a county which had not already violated the ADA by purchasing a new voting system could wait to install accessible voting systems.
Similarly, Holland’s insinuation that Duval County would have had to buy new voting systems in 2006 because the touch screens that were currently certified
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and used in Florida and across the country in 2002 may not meet the current accessibility standards of HAVA is erroneous. (Br. 32-34.) First, the DOJ had directed counties to comply with HAVA’s disability provision “as soon as practical... to help ensure that disabled voters are able to fully participate in the election process to the maximum extent possible. This will ensure that disabled voters are provided access as soon as possible.” (Dkt. 193, Hrg. Ex. A (emphasis added).) It defies logic to argue that the DOJ would “encourage” jurisdictions to provide accessible voting systems now, but then require these jurisdictions to buy new systems later.
Next, to the extent Holland argues there were no accessibility standards in 2002, the DOJ had also directed that until the HAVA commission promulgated standards, “the voluntary guidance of the Federal Election Commission on Voting System Standards can be used to determine the accessibility of voting systems.” (Dkt. 200, Exs. A & B.) Thus, any of the touch screen voting systems which met the FEC's voluntary standards – which Mr. Craft admitted “the vast majority of states,” including Georgia, use (Dkt. 169, p. 66:20-67:25) – would have also satisfied the accessibility requirements of § 301 of HAVA.22

22 This pronouncement by the DOJ also undermined Holland’s argument that there are no specific regulations governing voting systems under the ADA. (Br. 34.)

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Finally, the to-be-crafted HAVA “standards” to which Holland refers were voluntary – not mandatory – that must be met in order to receive federal funding to purchase voting systems. (Br. 33.) All HAVA required at that time was that a jurisdiction provide one voting system per polling place that is “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.” 42 U.S.C. § 15481(a)(3)(A) (2002). HAVA specifically states that this requirement can be met “through the use of at least one direct recording electronic voting system or other voting system equipped for individuals with disabilities at each polling place.” Id. at (a)(3)(B). HAVA does not mandate that the touch screens meet any other requirements, nor does HAVA make noncompliance with these standards illegal. Thus, there was no need to wait for any regulations to be promulgated, because the touch screen voting systems certified and used in Florida already met HAVA’s requirement.
CONCLUSION The current appeal should be dismissed for lack of jurisdiction, as the injunction-related issues have already been declared moot by this Court. The remaining issues are all related to Holland’s baseless attempt to circumvent payment of AAPD’s attorneys’ fees to which AAPD is entitled under the ADA.
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The district court, in a thoughtful, detailed opinion, correctly determined that
Holland has violated the ADA in 2002 by refusing to provide accessible voting
systems for Duval County’s disabled voters to allow them to vote in the fully
accessible manner enjoyed by voters in hundreds of jurisdictions throughout the
country and Florida. The factual findings underlying this decision are supported
by credible trial evidence and the legal principles on which the judgment is based
are sound. Thus, if reached in the current appeal, this Court should affirm the
declaratory and injunctive relief granted to AAPD.
Respectfully submitted,
By:________________________ Sashe D. Dimitroff Texas State Bar No. 00783970 Heather M. Khassian Texas State Bar No. 24045902 Kevin A. Keeling Pennsylvania State Bar No.92075 HOWREY LLP 1111 Louisiana, 25th Floor Houston, Texas 77002 Telephone: (713) 787-1400 Facsimile: (713) 787-1440

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Elaine Gardner Robert M. Bruskin Co-Counsel Washington Lawyers’ Committee for Civil Rights and Urban Affairs 11 Dupont Circle N.W., Suite 400 Washington, D.C. 20036 Telephone: (202) 319-1000 Facsimile: (202) 319-1010
ATTORNEYS FOR APPELLEES

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CERTIFICATE OF COMPLIANCE Pursuant to Fed. R. App. P. 32(a)(7) and Eleventh Circuit Rule 28-1, counsel for Appellees certifies that the Brief of Appellees is prepared in 14 point Times New Roman type, and further certifies that the word count for the foregoing brief, as counted by the word processing system used in preparing this brief, is 13,796.
______________________________ SASHE D. DIMITROFF

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CERTIFICATE OF SERVICE
I hereby certify that copies of the foregoing BRIEF OF APPELLEES were served on April 9, 2008, via Federal Express upon:
Ernst D. Mueller, Esq. Scott D. Makar, Esq. Office of General Counsel 117 West Duval Street Suite 480 Jacksonville, FL 32202
Attorneys for Defendant-Appellant Jerry Holland
George Lee Waas Attorney General’s Office for The State of Florida Department of Legal Affairs The Capitol, Suite PL-01 Tallahassee, FL 32399-1050
Attorney for Defendants Kurt S. Browning and Amy Tuck
SASHE D. DIMITROFF

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 IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
CASE NO.: 07-15004-C
American Association of People with Disabilities, Daniel W. O’Conner, Kent Bell, and Beth Bowen,
Plaintiffs/Appellees,
vs.
Jerry Holland, as Supervisor of Elections, Duval County.
Defendant/Appellant.
Appeal from the United States District Court, Middle District of Florida, Jacksonville Division
REPLY BRIEF OF APPELLANT HOLLAND
RICHARD A. MULLANEY GENERAL COUNSEL
ERNST D. MUELLER Deputy General Counsel Florida Bar No.: 164027 Office of General Counsel 117 West Duval Street, Suite 480 Jacksonville, FL 32202 (904) 630-1871 (Telephone) (904) 630-1316 (Facsimile) Attorneys for Appellant Holland

TABLE OF CONTENTS
Table of Contents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i
Table of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii
Reply Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
I. The Court Properly Has Jurisdiction Over This Appeal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
II. Because the Case is Moot the Judgment Must be Vacated . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
A. Plaintiffs Mischaracterize the Proceedings Below . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
B. Significance of HAVA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
C. Vacating the Judgment is Required Because of the Mootness of the Case . . . . . . . . . . . . . . . . . . . . 7
D. The District Court Injunction is Obsolete . . . . . . . . . . . . . . . . 9
III. The ADA Does Not Supplant Federal Election Laws or Create a Federal Right to Vote Independently . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
IV. 28 C.F.R. § 35.151(b) Was Inapplicable and Was Not Violated . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
A. Plaintiffs Were Not Excluded From or Denied the Benefit of Voting . . . . . . . . . . . . . . . . . . . . . . . . . 14
B. Voting Systems Are Not “Facilities” Under 28 C.F.R. § 35.151(b), Which is Limited to Architectural and Physical Barriers . . . . . . . . . . . . . . . . . . . . 15
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V. Plaintiffs Misrepresented the Availability of Audio Touchscreens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 Certificate of Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 Certificate of Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
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TABLE OF AUTHORITIES
CASES AAPD v. Shelley
324 F.Supp 2d 1120, 1125, 1126 (C.D. Cal. 2004) . . . . . . . . . . . . . 11, 12, 14, 15
BankWest, Inc. v. Baker 446 F.3d 1358, 1368 (11th Cir. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 18
Buckhannon Board and Care Home v. West Virginia Department of Health and Human Resources
532 U.S. 598, 602-604 (2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
De La Teja v. U.S. 321 F.3d 1357, 1364 (11th Cir. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
IAL Aircraft Holding, Inc. V. Federal Aviation Administration 216 F.3d 1304, 1305 (11th Cir. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
NAACP v. Philadelphia Bd. of Elections 1998 WL 321253 at *4 (E.D. Pa. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
National Advertising Co. v. City of Miami 402 F.3d 1329, 1335 (11th Cir. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
National Organization On Disability v. Tartaglione 2001 WL 1231717 (E.D. Pa., Oct. 11, 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Nelson v. Miller 170 F.3d 641 (6th Cir. 1999), 950 F.Supp 201 (W.D. Mich 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 12
Shotz v. Cates 256 F.3d 1077 (11th Cir. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Soliman v. United States 296 F.3d 1237, 1243 (11th Cir. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
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Tennessee v. Lane 124 S.Ct. 1978, 1993 (2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 15
Troiano v. Supervisor of Elections 382 F.3d 1276, 1382 (11th Cir. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
STATUTES Florida Statute 101.294 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Florida Statute 101.295 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Florida Statute 101.56062 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 10 Florida Statute 101.56075 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 42 U.S.C. § 12131 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 42 U.S.C. §§ 15301-15545 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 42 U.S.C. § 15481(a)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 42 U.S.C. § 15481(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 RULES 28 C.F.R. § 35.104 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 28 C.F.R. § 35.151 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 13, 14, 15, 16 28 C.F.R. § 35.160 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 Fed.R.Civ.P. 54(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
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REPLY ARGUMENT
I. The Court Properly Has Jurisdiction Over This Appeal
Plaintiffs argument that this Court does not have jurisdiction over this appeal
is entirely without merit. The “finality” of the orders and judgments entered by the
district court which are being appealed are not in question. Nor is the timeliness of
the appeal. The Statement of Jurisdiction, set forth in the Supervisor of Elections’
initial brief, which reads as follows, makes this plain as can be:
This is an appeal by the Duval County, Florida, Supervisor of Elections (“Supervisor of Elections”) from an order and judgment (Docs. 215, 216) entered by the district court in March 2004, which were rendered “final” pursuant to Fed.R.Civ.P. 54(b) on September 20, 2007, through entry of a judgment against other State of Florida defendants (Kurt S. Browning, Secretary of State, Amy Tuck, Director, Division of Elections) (Doc. 295).
This appeal also seeks reversal of a December 3, 2007 district court order (Doc. 341) denying the Supervisor of Elections’ Motion to Vacate the 2004 order and judgment (Docs. 215, 216) entered against him on grounds of mootness, which was entered after this appeal was initiated. This order (Doc. 341) was timely appealed through an Amended Notice of Appeal filed on December 4, 2007. See Doc. 342.
The foregoing quoted paragraphs speak for themselves.
The Supervisor concurs with Plaintiffs that this Court should not and cannot
revisit its determination, made in the initial interlocutory appeal in this case, that the
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case is moot. That is not an issue in this appeal. However, this Court clearly has the authority to review the district court’s decisions and orders made ancillary to this Court’s prior determination that the case is moot, which, as here, have been properly appealed.
Specifically, in this case, the district court denied the Supervisor’s Motion (Doc. 315) to vacate the injunctive order and judgment (Docs. 215, 216), entered in this case, which it was required to do pursuant to the applicable case law on the doctrine of mootness. See Argument II, below. The failure to carry out its duty under the law in this respect has very tangible consequences because AAPWD is seeking $3,400,000 in attorney’s fees in the case, even though it did not prevail, which it could not do if the order and judgment had been vacated, as required by the applicable case law. See Buckhannon Board and Care Home v. West Virginia Department of Health and Human Resources, 532 U.S. 598, 602-604 (2001).
In summary, for those reasons this Court clearly has jurisdiction over this appeal. Failure to recognize and accept same would permit the district courts below, in this and similar situations, to simply fail to carry out or ignore this Court’s orders.
II. Because the Case is Moot the Judgment Must be Vacated A. Plaintiffs Mischaracterize the Proceedings Below
Plaintiffs suggest in their brief that the Supervisor of Elections was operating
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in violation of law from the time of the November 2002 elections onward, and that they somehow helped to correct this situation through this litigation. See Appellee’s Brief, pp. 15, 19, 20, and 21. Nothing could be further from the truth, on either count.
In this connection, it is critical to remember and know the following. Plaintiffs initial Complaint in this case, which had been filed on November 8, 2001, was dismissed with prejudice on October 16, 2002. Doc. 42. Shortly thereafter, on October 29, 2002, the Help America Vote Act (“HAVA”), 42 U.S.C. §§ 1530115545, was signed into law. Plaintiffs did not file their Amended Complaint until November 5, 2002, which was Election Day. Doc. 47. The Supervisor had commenced purchase of a new, reliable voting system long before that, consummating with signature of a contract in January 2002. See Doc. 170 (Tr. 5), pp. 124-125. By election time, of course, this system was in place. The notion that Plaintiffs’ filing an Amended Complaint on Election Day in November 2002 had any impact or importance concerning that election, or rendered the Supervisor’s conduct on that day illegal, is totally fatuous.
B. Significance of HAVA Plaintiffs, when they filed the Amended Complaint (Doc. 47), sought two types of relief. First, they sought declaratory relief, and second, they sought injunctive relief. See “Prayer for Relief,” Doc. 47, p. 22. As previously stated, HAVA had
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already become law. Thus, there was no longer any question about whether the law required a disabled compliant voting system in each precinct which permitted visually impaired voters to vote independently, the object of the declaratory action. A new statute, 42 U.S.C. § 15481(a)(3), specifically required it.1 Hence, whether this right existed no longer needed to be resolved by a declaratory judgment. Whether this right also conceivably existed under a federal regulation of questionable applicability, 28 C.F.R. § 35.151(b), in addition to existing under HAVA, was thus entirely academic, and moot, except for the effective date by which this right would be enforced. Plaintiffs wanted this right enforced instantly, but HAVA didn’t require that it be provided until January 1, 2006. See 42 U.S.C. § 15481(d).
That is what the issue of injunctive relief in this case was about - - whether the Supervisor of Elections would have to comply with HAVA prior to the effective date of HAVA and companion State laws.2 Apart from determining how to provide this relief, there has been no other issue on the merits of this case, since the Amended
1 As the Court of Appeals was aware well prior to its declaration of mootness, this was also required by Florida law. See Doc. 343-9, pp. 1-2, par. 3, which had previously been filed in the Court of Appeals, and was relied upon by the Court in determining that the case was moot. Florida Statute 101.56062. See also Amended Declaration of Jerry Holland which was furnished to the Court in the prior appeal (copy attached as Exhibit A hereto).
2 HAVA, as previously noted, required disabled compliant equipment in every precinct. The injunction entered in this case required disabled compliant equipment in only 1 of every 5 precincts. See Doc. 216.
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Complaint was filed. Plaintiffs suggest that the Supervisor of Elections, following the entry of the
injunction and declaratory judgment (Docs. 215, 216) implemented same, rather than implementing HAVA. See Appellee’s Brief, pp. 22, 33. This argument blindly ignores reality. The injunction entered by the district court was stayed. See Docs. 232, 267, 275. As the HAVA deadline neared, the Supervisor made arrangements to purchase and did purchase enough disabled compliant voting machines to provide one for every precinct, as required by HAVA, not just one for every fifth precinct, as required by the stayed injunctive order. No violation of any law or court order occurred in the process. Good faith in complying with the applicable federal law was manifested every step of the way.
As an example of “implementation” Plaintiffs cite the fact that, post-judgment, the Supervisor submitted reports to the Court related to the State certification of an audio-equipped Diebold touchscreen. See Appellee’s Brief, p. 9. The reason for this, however, was that in Florida state certification of election machinery is required prior to its use by local governments. See Fla. Stat. §§101.294, 101.295. The State, through the time of the issuance of the injunctive orders in this case (Docs. 215, 216) had not certified the Diebold equipment for reasons which Diebold claimed did not have merit. The district court, in the judgment, had decreed that the Supervisor would
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have to contract with a different vendor to purchase election machinery if the Diebold equipment was not certified by May 2004. The Supervisor had already contracted with Diebold, which he believed had the best equipment, and did not want this plan derailed by the district court for fear that it would result in having to replace the entire voting system already present in Duval County, rather than augmenting it with compatible equipment. Hence, the Supervisor was doing his best to persuade the State and Deibold to resolve their differences relative to the certification of the Diebold audio touchscreens. This was accomplished just barely within the time deadline the district court had established, in May 2004, was central to the Supervisor’s complying with HAVA, and was reported to the district court.
A second example of asserted “implementation” of the district court’s orders cited by Plaintiffs was the agreement with Plaintiffs on the identity of the one (1) of five (5) precincts which would be authorized to receive audio touchscreens pursuant to the district court’s order, if it had been implemented, reached on September 30, 2004. This occurred only because on September 28, 2004, two days before, the district judge newly assigned to the case lifted the stay of the injunction which had been in place, just five weeks before the election. See Doc. 267. The Court of Appeals, however, reinstated the stay of the injunction just a week later, on October 5, 2004, thus ending the necessity to comply with the district court’s order until the
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resolution of the appeal. The argument that taking judicially required steps to implement the injunction amounted to voluntary compliance, under these circumstances, is simply farfetched.
In summary, the Supervisor always intended to comply with HAVA, which provided a workable timetable for the development, purchase, and installation of disabled-compliant voting equipment in every precinct. The injunction entered by the district court in March 2004, part of the way on the road to implementing HAVA, required only one fifth (1/5) of what HAVA required. Thus, of course, when HAVA was implemented by the Supervisor, voluntarily, the district court injunction was implemented also, and rendered moot. Accordingly, the proposition that the injunction, which was stayed, was the motivating factor, is simply inaccurate.
C. Vacating the Judgment is Required Because of the Mootness of the Case
As noted in the Supervisor’s initial brief, in this judicial Circuit when a case becomes moot on appeal, the Court dismisses the appeal, vacates the district court’s judgment and remands the case to the district court. IAL Aircraft Holding, Inc. V. Federal Aviation Administration, 216 F.3d 1304, 1305 (11th Cir. 2000). To the same effect, see National Advertising Co. v. City of Miami, 402 F.3d 1329, 1335 (11th Cir. 2005); Troiano v. Supervisor of Elections, 382 F.3d 1276, 1382 (11th Cir. 2004). An
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additional more recent decision by this Court confirming the foregoing, but not yet
discussed, is BankWest, Inc. v. Baker, 446 F.3d 1358 (11th Cir. 2006). In that case,
payday loan stores and out of state banks sought a declaration of unconstitutionality
with respect to certain Georgia statutes, and a preliminary injunction enjoining their
enforcement. The district court denied the preliminary injunction request, a decision
which was appealed to this Court. This Court concluded that the appeal was moot
and stated:
This conclusion compels us to dismiss this appeal and to vacate the district court’s order, because “when an issue in a case becomes moot on appeal, [we] not only must dismiss as to the mooted issue, but [we must] also vacate the portion of the district court’s order that addresses it.” De La Teja, 321 F.3d at 1364; see also Soliman v. United States, 296 F.3d 1237, 1243 (11th Cir. 2002) (“Under our precedent, when a case becomes moot on appeal, [we] must not only dismiss the case, but also vacate the district court’s order.”).
Our well-established practice of vacating the district court’s order when we dismiss a moot appeal “clears the path for future relitigation of the issues between the parties and eliminates a judgment, review of which was prevented through happenstance.” Soliman, 296 F.3d at 1243.... Accordingly, we vacate our prior decision, BankWest, 411 F.3d 1289, we vacate the district court’s May 13, 2004 order denying the motions for preliminary injunctive relief, ... and we dismiss this appeal as moot.
446 F.3d at 1368. The foregoing is a recent confirmation of the Court’s prior
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statements of the law on this subject. The Court of Appeals in this case, although it declared the case moot, for
reasons unstated, did not direct the vacating of either the operative injunctive order (Doc. 215) or the judgment (Doc. 216) at the conclusion of the interlocutory appeal. However, that did not relieve the district court of the responsibility for carrying out these clearly enunciated requirements of the law. Following this Court’s ruling of mootness in August 2007, the district court was asked, by motion to do just that - vacate the injunctive order and judgment. See Doc. 315. The district court denied the motion so requesting, and committed clear error in doing so. See Doc. 341. This Court should now correct this clear and egregious injustice and vacate the injunctive order and judgment, or order the district court to do so.
D. The District Court Injunction is Obsolete Plaintiffs argue that the injunctive orders (Docs. 215, 216) have some intrinsic importance and need to be kept in place, notwithstanding that they have been declared moot by the Court. See Appellee’s Brief, pp. 23-24, 38-40. This, obviously, is in total derogation of the declaration of mootness, and contravenes same. An order or judgment that has become moot, of necessity, must be vacated. Both federal and state law require disabled compliant voting equipment and have for some time. Apart from that, at a practical level, the district court’s order is
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obsolete. The judgment requires “touch screen machines with audio ballet capabilities.” See Doc. 216. The same language is set forth in the related court order. See Doc. 215, at 30. Florida law, however, is requiring new technology (not necessarily a touch screen), which will include the protection of having a resulting paper ballot available for recount purposes. See Florida Statutes §§ 101.56062, 101.56075, attached to the brief as Exhibit B.
The foregoing demonstrates that there is no intrinsic necessity for the injunction entered in this case, but rather, that the injunction will be in the way. Because the law relating to mootness requires it, because the Court’s decree requires it, and for this practical reason also, the order (Doc. 215) and judgment (Doc. 216) must be vacated.
III. The ADA Does Not Supplant Federal Election Laws or Create a Federal Right to Vote Independently
As noted in the Supervisor’s initial brief, because this case has been declared moot during the course of the prior interlocutory appeal, the arguments on the merits of the case cannot now be considered. However, the district court and Plaintiffs are acting, in part, as if no declaration of mootness has occurred. Accordingly, some of the arguments relating to the merits of the district court’s initial decision discussed in Appellee’s Brief, are addressed in the next several arguments.
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With respect to the ADA, the Supervisor’s argument has never been that the ADA does not apply to the activity of voting, which surely it does. Instead, his argument was that the ADA does not supplant the specific federal voting laws related to voting systems and that no ADA violation exists where compliance with such laws is shown. See, e.g., Nelson v. Miller, 170 F.3d 641 (6th Cir. 1999), affirming on other grounds, 950 F. Supp 201 (W.D. Mich 1996). As both the appellate court and the trial court in Nelson v. Miller concluded, the ADA does not create a federal right to a program of “secret and independent voting.” As such, they concluded that the refusal to provide technologies that enabled unassisted voting is neither discriminatory nor an ADA violation where third party assistance is provided. Dismissal was the result in Nelson v. Miller, as it should have been in this case. To the same effect, see AAPD v. Shelley, 324 F. Supp 2d 1120 (C.D. Cal. 2004), a case litigated by the same lead Plaintiff and counsel who are litigating this case.
Plaintiffs rely on the decision in National Organization on Disability v. Tartaglione, 2001 WL 1231717 (E.D. Pa. Oct. 11, 2001), which does not even reference the Sixth Circuit’s decision in Nelson v. Miller. Indeed, Tartaglione is neither binding nor persuasive even within the Eastern District of Pennsylvania itself, another judge having reached a different result. See NAACP v. Philadelphia Bd. of Elections, 1998 WL 321253 at 4 (E.D. Pa. 1998).
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Plaintiffs, failed to make reference to AAPD v. Shelley, which made a number
of rulings adverse to their position, including the adoption of the reasoning of Nelson
v. Miller:
... 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. Nothing in the Americans with Disabilities Act or its Regulations reflects an intention on the part of Congress to require secret, independent voting. Nor does such a right arise from the fact that plaintiff counties attempted to provide such an accommodation.
324 F. Supp 2d at 1126 (emphasis added) (footnote omitted). The emphasized
language is precisely the position that the Supervisor has advocated throughout this
litigation. The instant case is far removed from Shotz v. Cates, 256 F.3d 1077 (11th Cir.
2001) and Tennessee v. Lane, 124 S.Ct. 1978 (2004) in which the disabled persons
literally had to drag themselves into or through courthouse facilities to access the
judicial functions therein. Those cases were about permanent facilities that posed
architectural and physical barriers to those plaintiffs, who desired to access the
programs or activities inside. Indeed, the Supreme Court in Tennessee v. Lane
emphasized that “architectural” barriers that limit “physical accessibility” are the
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focus of 28 C.F.R. § 35.151 Title II of the ADA. 124 S.Ct. at 1993. In sharp contrast, this case has nothing to do with access and architectural
barriers to physical facilities. Instead, it involves solely the type of voting system temporarily placed for use inside the physical facilities where voting occurs, through which persons communicate their votes. In short, the voting system is the program or activity, the physical structures where voting occurs are the facilities to be accessed. In this regard, the Plaintiffs have accessed their polling places and voted on multiple occasions without physical impediment including all elections since the inception of their lawsuit. Indeed, the trial court concluded that “visually and manually impaired voters have been afforded an equal opportunity to participate in and enjoy the benefits of voting” thereby confirming the lack of an ADA violation. (R215 23).
In summary, this case was not about physical facilities and entry barriers. It was about the method of communicating one’s vote once within voting facilities. Given the federal and state voting laws (including HAVA) that occupy this area of the law, it was error for the trial court to apply the ADA and to find a regulatory violation as it did.
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IV. 28 C.F.R. § 35.151(b) Was Inapplicable and Was Not Violated
A. Plaintiffs Were Not Excluded from or Denied the Benefit of Voting
The decision in AAPD v. Shelley, 324 F.Supp 2d 1120 (C.D. Cal. 2004) is
instructive because it rejected a 28 C.F.R. § 35.151(b) claim by Plaintiff AAPD. At
issue was a state directive decertifying touchscreens that had been certified and used
in prior elections in a number of California counties. Plaintiff AAPD contended that
“decertification of touch-screen voting machines will alter the voting system and
make the right to vote less accessible to disabled persons, citing 28 C.F.R. §
35.151(b).” 324 F.Supp. 2d at 1125. It also asserted that the elimination of
touchscreens with audio ballots “discriminate by reason of disability, amounting to
state action that disproportionately burdens the disabled because of their unique
needs.” Id.
The trial court rejected AAPD’s argument and ruled consistent with the
Supervisor’s position, as follows:
The evidence does not support the conclusion that the elimination of the DREs would have a discriminatory effect on the visually or manually impaired. Although it is not disputed that some disabled persons will be unable to vote independently and in private without the use of DREs, it is clear that they will not be deprived of their fundamental right to vote. ... The evidence establishes that long before the conditional certification of DREs,
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counties utilized a number of programs to provide handicapped persons with ready access to voting equipment. Id. at 1125-26 (emphasis added). Specifically, the court found that a return to using voting systems with third party assistance, such as optical scan, did not violate the ADA. By analogy, the failure to provide a secret, independent voting experience does not violate the ADA where each Plaintiff is afforded an equal opportunity to participate in and enjoy the benefits of voting. (R216 23). B. Voting Systems Are Not “Facilities” Under 28 C.F.R. § 35.151(b), Which is Limited to Architectural and Physical Barriers Plaintiffs in discussing the Supreme Court in Tennessee v. Lane, overlooked the fact that the Court made clear that “architectural” barriers which limit “physical accessibility” are the focus of 28 C.F.R. § 35.151. The Court stated that “[i]n the case of facilities built or altered after 1992, the regulations require compliance with specific architectural accessibility standards. 28 C.F.R. § 35.151 (2003).” 124 S.Ct. at 1993 (emphasis added). Despite this pronouncement from the Supreme Court and the rejection of the 28 C.F.R. § 35.151(b) claim in Shelley, the Plaintiffs ignore the difference between the concept of “Program Accessibility” set forth in Subpart D of the regulations and
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the concept of “Communications” set forth in Subpart E” of the regulations. The former, which includes 28 C.F.R. § 35.151(b), applies to architectural and other barriers that impede physical accessibility. The latter applies to communications barriers and auxiliary aids as described in 28 C.F.R. § 35.160. This dichotomy is consistent with the ADA itself, which provides for the “removal of architectural, communication, or transportation barriers, or the provision of auxiliary aids and services” which enable the participation in government programs and services. 42 U.S.C.A. § 12131. Despite Plaintiffs’ claim to the contrary (Appellee’s Brief, pp 4043), this common sense dichotomy is reflected in the caselaw, which establishes that 28 C.F.R. § 35.151(b) involves a physical alteration to a permanent structure, thereby undermining the concept that a portable piece of voting equipment is a “facility” subject to “architectural” alterations. See Initial Brief, p. 40, footnotes 30, 31, 32.
Finally, the Supervisor clearly did not misconstrue the word “equipment” in 28 C.F.R. § 35.104. As the caselaw applying 28 C.F.R. § 35.151(b) reflects, the meaning of “equipment” in this context must be understood in conjunction with other terms used in the regulations. Thus, the meaning of “equipment” within the definition of a “facility” is best understood as applying to elevators, escalators and other types of “equipment” that are architectural components which become physical modifications to a permanent structure or site. Voting equipment does not meet this definition.
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V. Plaintiffs Misrepresented the Availability of Audio Touchscreens Plaintiffs inaccurately state that a wide array of certified touchscreen/audio ballot “systems” were available in late 2001/early 2002. See Appellee’s Brief, pp 1820. As the district court found, however, only one vendor’s touchscreen/audio ballot was certified at that time, that of ESS, which had the first and only certified audio ballot in Florida (R215 at ¶ 24), but which also experienced the massive problems discussed in the Miami-Dade Inspector General reports and the Governor’s Task Force Reports. See Ps’ Ex. 1 at 65; Stafford Ex. 12 at 65. No touchscreen system or audio ballot was used in Florida until the Fall 2002 election cycle, which was long after the Supervisor had made his procurement decision and after the Diebold system had been delivered and prepared for use in that same election cycle.3 In this regard, the Plaintiffs’ statements that “the record is replete with evidence demonstrating that touch screen technology was not only certified, but was used successfully throughout Florida and the country at the very same time, and even before the Supervisor decided to purchase the optical scan system, are categorically incorrect.
3 The Supervisor decided on the Diebold System in January 2002, it was procured that same month, and thereafter delivered beginning in April 2002. (Initial Brief, pp. 18, 19 and record citations therein). It was used in the September primary and November general election in 2002.
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CONCLUSION In a case that becomes moot while on appeal, the order or judgment being appealed, or both, as in this case, must be vacated, or the right to appeal is effectively denied. When this occurs there is no prevailing party as to the issues that were on appeal. That is so whether the issue being reversed is a denial of a preliminary injunction sought by the Plaintiff in the case, as in BankWest, Inc. v. Baker, 446 F.3d 1358, 1368 (11th Cir. 2006), or whether the issue being reviewed is the claimed unjust granting of a preliminary injunction, as in this case. This Court should not now change this long-established law and procedure when no legal predicate for so doing has been laid because of perceived or likely collateral effects mandated by other laws. The operative order and judgment in this case (Docs. 215, 216) were declared moot by the initial panel which heard the case in the interlocutory appeal. The district court should have vacated the order and judgment when requested to so by motion, but didn’t, and erred in not so doing. The Court properly has jurisdiction over this appeal and now must do what the district court should have done before and vacate the order and judgment (Docs. 215, 216).
Respectfully submitted,
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RICHARD A. MULLANEY GENERAL COUNSEL
______________________________ ERNST D. MUELLER Deputy General Counsel Florida Bar No.: 164027 Office of General Counsel 117 West Duval Street, Suite 480 Jacksonville, FL 32202 (904) 630-1871 (Telephone) (904) 630-1316 (Facsimile) Attorneys for Appellant Holland
CERTIFICATE OF COMPLIANCE Pursuant to Fed.R.Civ.P. 32(a)(7) and Eleventh Circuit Rule 28-1, counsel for Appellant certifies that the Reply Brief of Appellant is prepared in 14 point Times New Roman type, and further certifies that the word count for the foregoing Brief, as counted by the word processing system used in preparing this brief, is 4,247.
____________________________________ ATTORNEY
-19-

CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the Reply Brief of Appellant has been furnished to the following by Federal Express, this 28th day of April, 2008:
Sashe D. Dimitroff, Esquire Heather M. Khassian, Esquire Kevin A. Keeling, Esquire HOWREY LLP 1111 Louisiana, 25th Floor Houston, Texas 77002
Elizabeth Elaine Gardner Robert Bruskins Washington Lawyers’ Committee for Civil Rights and Urban Affairs 11 Dupont Cr. N.W., Suite 400 Washington, DC 20036
George Lee Waas Attorney General’s Office The Capitol, Suite PL-01 Tallahassee, FL 32399-1050
RICHARD A. MULLANEY GENERAL COUNSEL
______________________________ ERNST D. MUELLER Deputy General Counsel Florida Bar No.: 164027 Office of General Counsel 117 West Duval Street, Suite 480 Jacksonville, FL 32202 (904) 630-1871 (Telephone) (904) 630-1316 (Facsimile) Attorneys for Appellant Holland
-20-

 
 IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT __________________________
CASE NO.: 04-11566-JJ __________________________
American Association of People with Disabilities, Daniel W. O’Conner, Kent Bell, and Beth Bowen,
Plaintiffs/Appellees,
v.
John Stafford, as Supervisor of Elections, Duval County.
Defendant/Appellant.
_______________________________
Appeal from the United States District Court, Middle District of Florida, Jacksonville Division
_________________________________
INITIAL BRIEF OF APPELLANT STAFFORD _________________________________
Scott D. Makar (FBN 709697) Chief, Appellate Division Ernst Mueller (FBN 164027) Senior General Counsel Jason Teal (FBN 157198) Office of General Counsel 117 West Duval Street, Suite 480 Jacksonville, FL 32202 (904) 630-1700 (904) 630-1316 (fax) Attorneys for Appellant John Stafford

STATEMENT REGARDING ORAL ARGUMENT Appellant believes that oral argument would assist in the resolution of the issues raised in this appeal.
CERTIFICATE OF TYPE/VOLUME Appellant certifies that this Answer Brief is presented in Times New Roman style, 14-point size and contains 13,964 words.
i

TABLE OF CONTENTS
Certificate of Interested Persons ............................................................................C-1
Statement Regarding Oral Argument/Certificate of Type/Volume........................... i
Table of Contents ...................................................................................................... ii
Table of Authorities ...................................................................................................v
Statement of Jurisdiction............................................................................................1
Statement of the Issues...............................................................................................1
Statement of the Case and Facts ................................................................................2
Statement of the Standards of Review .....................................................................23
Summary of the Argument.......................................................................................24
Argument..................................................................................................................27
I. THE TRIAL COURT ERRED BY NOT DISMISSING PLAINTIFFS’ ACTION BECAUSE THE ADA DOES NOT SUPPLANT FEDERAL ELECTION LAWS OR CREATE A FEDERAL RIGHT OF VOTING SECRECY ....................................27
II. THE TRIAL COURT ERRED IN CONCLUDING THAT STAFFORD’S PROCUREMENT OF AN OPTICAL SCAN VOTING SYSTEM VIOLATED THE ADA .....................................32
A. An Optical Scan System Does Not Violate the ADA Where Third Party Assistance Under Florida Law is Provided. ...............32
B. The Trial Court Erred In Concluding that 28 C.F.R. § 35.151(b) Is Applicable...............................................................36
1. Because Plaintiffs Were Not Excluded from or Denied The Benefit of Voting, Their Regulatory Claim Must Fail....................................................... ......36
ii

2. The Trial Court Erred In Holding That Voting Systems Are “Facilities” Under § 35.151(b). ........ ......37
C. The Trial Court Erred In Its Application of 28 C.F.R. § 35.151(b)’s “Feasibility” Standard. .......................................41
1. The Trial Court Erred In Holding That State Technical Certification Assures A System’s Overall “Feasibility." .....................................................43
2. The Trial Court Erred in Concluding That Stafford Should Have Bought the ESS System Simply For Its Audio Ballot. ..............................................................44
3. The Trial Court Erred as to the Economic Feasibility of Touchscreens, Particularly the ESS Touchscreen System........................................................45
4. The Trial Court Made Inapt Comparisons With Systems Not Certified in Florida. ...................................49
5. Three Audio Ballots for Centralized Short Term Use/Testing Was Reasonable..........................................50
D. The Trial Court Erred in Finding A Violation as to the Manually Disabled Plaintiff......................................................52
III. THE TRIAL COURT ERRED IN RULING THAT HAVA DOES NOT MOOT PLAINTIFFS’ CLAIMS....................................53
IV. THE REMEDY AND LACK OF CLASS CERTIFICATION WARRANT REVERSAL ...................................................................56
A. The Relief Ordered By The Court Is Flawed............................56
B. The Failure to Certify A Class Was Prejudicial Error..............57
Conclusion ...............................................................................................................59
iii

Certificate of Service ............................................................................................ 59 Note: This Brief uses the following designations:
• References to Record on Appeal are [R# *] (# = docket number; * = page number).
• References to Transcripts in Record on Appeal are [TR# *] (# = docket number; * = page number)
• References to Exhibits are prefaced as either “Ps’” “State” or “Stafford” followed by number.
• Depositions are designated by deponent’s name and page number (e.g., [Stafford 23-24]).
• References to the Record Excerpts are [RE#] where # is tab number. • References to the Pretrial Statement and are [PS #] (# is the page).
iv

TABLE OF AUTHORITIES
CASES Ability Center of Greater Toledo v. City of Sandusky,
133 F. Supp. 2d 589 (N.D. Ohio 2001) ................................................................39
Alexander v. Sandoval, 532 U.S. 275, 121 S. Ct. 1511 (2001) ..................................................................37
American Ass'n of People With Disabilities v. Hood, 2004 WL 626687 (M.D. Fla. March 24, 2004) ......................................................6
American Ass'n of People With Disabilities v. Hood, 278 F. Supp. 2d 1337 (M.D. Fla. 2003) .................................................................5
American Ass'n of People With Disabilities v. Hood, 278 F. Supp. 2d 1345 (M.D. Fla. 2003) .................................................................5
American Ass'n of People With Disabilities v. Smith, 227 F. Supp. 2d 1276 (M.D. Fla. 2002) .................................................................4
American Association for People with Disabilities, et. al. v. Kevin Shelley, as Secretary of the State of California, et. al., Case No. CV04-1526 FMC (PJWx) (filed March 23, 2004)..........................................................................................57
Anderson v. Pa. Dept. of Public Welfare, 1 F. Supp. 2d 456 (E.D. Pa. 1998)........................................................................40
Association for Disabled Americans v. City of Orlando, 153 F. Supp. 2d 1310 (M.D. Fla. 2001) ...............................................................39
Atlanta Gas Light Co. v. FERC, 140 F.3d 1392 (11th Cir. 1998) .............................................................................54
Baxter v. Palmigiano, 425 U.S. 308, 96 S. Ct. 1551 (1976) ....................................................................58
Bieneman v. City of Chicago, 838 F.2d 962 (7th Cir. 1988) .................................................................................58
v

Brooks v. Georgia State Bd. Of Elections, 59 F.3d 1114 (11th Cir. 1995) ...............................................................................54
Bush v. Gore, 531 U.S. 98, 121 S. Ct. 525 (2000) ......................................................................57
Church of Scientology v. United States, 506 U.S. 9, 12, 113 S. Ct. 447 (1992) ..................................................................54
Coalition of Montanans Concerned With Disabilities, Inc. v. Gallatin Airport Auth., 957 F. Supp. 1166 (D. Mont. 1997) .....................................................................48
Deck v. City of Toledo, 29 F. Supp. 2d 431 (N.D. Ohio 1998) ..................................................................40
Florida Progress Corp. and Subsidiaries v. C.I.R., 348 F.3d 954 (11th Cir. 2003) ...............................................................................23
Jews For Jesus, Inc. v. Hillsborough County Aviation Auth., 162 F.3d 627 (11th Cir. 1998) ...............................................................................54
John Roe, Inc. v. United States, 142 F.3d 1416 (11th Cir. 1998) .............................................................................54
Kinney v. Yerusalim, 9 F.3d 1067 (3rd Cir. 1993) ...................................................................................39
Molloy v. Metro. Transp. Auth., 94 F.3d 808 (2nd Cir. 1996)............................................................................ 39, 40
NAACP v. Philadelphia Bd. of Elections, 1998 WL 321253 (E.D. Pa. 1998)........................................................................30
National Org. on Disability v. Tartaglione, 2001 WL 1231717 (E.D. Pa. Oct. 11, 2001) ........................................................30
Nelson v. Miller, 170 F.3d 641 (6th Cir. 1999) ......................................................................... passim
Nelson v. Miller, 950 F. Supp. 201 (W.D. Mich. 1996)............................................................ 24, 28
vi

North Carolina v. Rice, 404 U.S. 244, 92 S. Ct. 402 (1971) ......................................................................54
Panzardi-Santiago v. Univ. of Puerto Rico, 200 F. Supp. 2d 1 (D. Puerto Rico 2002) .............................................................39
Patton v. Triad Guar. Ins. Corp., 277 F.3d 1294 (11th Cir. 2002) .............................................................................23
Paxton v. Union Nat. Bank, 688 F.2d 552 (8th Cir. 1982) .................................................................................58
S & Davis Intern., Inc. v. The Republic of Yemen, 218 F.3d 1292 (11th Cir. 2000) .............................................................................23
Schonfeld v. City of Carlsbad, 978 F. Supp. 1329 (S.D. Cal. 1997) .....................................................................40
Shotz v. Cates, 256 F.3d 1077 (11th Cir. 2001) .............................................................................32
Wexler v. Theresa LePore, et. al., Case No. CV-04-80216 (S.D. Fla. filed March 8, 2004) .....................................57
STATUTES § 101.045(1), Florida Statutes..................................................................................56
§ 101.051, Florida Statutes ....................................................................................2, 3
§ 101.294(1), Florida Statutes (2001) ......................................................................14
§ 101.56062, Florida Statutes (2002).......................................................................55
§ 101.657(2), Florida Statutes..................................................................................56
§ 104.23, Florida Statutes ..........................................................................................4
§ 97.021(38), Florida Statutes (2003) ......................................................................38
28 U.S.C. § 1331........................................................................................................1
vii

28 U.S.C. § 1292(a)(1)...............................................................................................1 42 U.S.C. § 12132....................................................................................................36 42 U.S.C. § 15481(a)(3) & (d).................................................................................55 42 U.S.C. § 15301-15545 ........................................................................................53 42 U.S.C. § 1973aa-6 ...............................................................................................28 42 U.S.C. § 1973ee-1 ...............................................................................................28 OTHER AUTHORITIES Americans with Disabilities Act Accessibility Guidelines for Building and
Facilities (“ADAAG”)..........................................................................................40 Art. VI, § 1, Fla. Const. (2001)..................................................................................2 Chapter 2002-281, Laws of Florida .........................................................................48 Chapter 2001-40, Laws of Florida, ..........................................................................47 Chapter 2003-415, Laws of Florida .........................................................................38 Div. of Elec. Op. DE 04-02, State of Florida, (February 12, 2004) ........................56 NEW SHORTER OXFORD DICTIONARY (1993) ...........................................................42 Uniform Federal Accessibility Standards (“UFAS”) ..............................................40 RULES 28 C.F.R. § 35.104 ...................................................................................................37 28 C.F.R. § 35.151(b) ...................................................................................... passim 28 C.F.R. § 35.160 ........................................................................................... passim 28 C.F.R. § 36.403(f) ...............................................................................................48 28 C.F.R. § 35.151 ...................................................................................................32 28 C.F.R. § 35.151(e)...............................................................................................40
viii

Rule 23(c)(1)(A), Fed. R. Civ. P..............................................................................57 Rule 52(a), Fed. R. Civ. P. .......................................................................................23
ix

STATEMENT OF JURISDICTION This appeal is from a final judgment entered upon an order of the United States District Court against Defendant John Stafford, Supervisor of Elections, Duval County. The district court's jurisdiction was based on federal question jurisdiction under 28 U.S.C. § 1331. This Court has jurisdiction over the final judgment pursuant to 28 U.S.C. §§ 1291 (final orders) and 1292(a)(1) (injunctions).
STATEMENT OF THE ISSUES I. Whether the trial court erred by not dismissing Plaintiffs’ amended
complaint because the Americans with Disabilities Act (ADA) does not supplant federal election laws or create a federal right of voting secrecy? II. Whether the trial court erred in concluding that Supervisor Stafford’s procurement of an optical scan voting system violated 28 C.F.R. § 35.151(b) promulgated pursuant to the ADA? III. Whether the trial court erred in ruling that the Help America Vote Act (HAVA) did not moot Plaintiffs’ ADA claims? IV. Whether the trial court erred as to the remedy imposed and in failing to certify a class action thereby warranting reversal?
1

STATEMENT OF THE CASE AND FACTS
Statement of the Case
This appeal arises from the district court's order and final judgment, holding
that Supervisor John Stafford violated the Americans with Disabilities Act (ADA)
by procuring a precinct-based optical scan voting system in Duval County in 2002
rather than the touchscreen system with audio ballots of a different vendor.
A. Plaintiffs’ Initial Claims Are Dismissed With Prejudice to the Extent They Assert a Right to a Secret and Direct Voting Experience Plaintiffs’ initial class complaint against Stafford1 in November 2001
asserted three claims: a Florida constitutional claim that elections be by “direct and secret” vote,2 an ADA claim, and a Rehabilitation Act (RA) claim, each seeking to invalidate Florida’ voter assistance statute, § 101.051, Florida Statutes.3 [R1; RE1]
1 Plaintiffs also sued members of the Jacksonville City Council, who were dismissed based on legislative immunity on October 12, 2002. [R42] Plaintiffs also sued Secretary Katherine Harris, Florida’s Secretary of State, and Clay Roberts, Florida Division of Elections, whose predecessors in office prevailed after trial. [RE7/R215] 2 Art. VI, § 1, Fla. Const. (2001) (“All elections by the people shall be by direct and secret vote.”). 3 The statute provides for assistance at the polls to blind and other disabled voters and states that:
(1) Any elector applying to vote in any election who requires assistance to vote by reason of blindness, disability, or inability to (Continued …)
2

Stafford moved to dismiss the action for failure to state claims for relief based primarily on the Sixth Circuit’s decision in Nelson v. Miller, 170 F.3d 641 (6th Cir. 1999). [R6] After oral argument in early 2002 [R27], the district court, per Judge Ralph W. Nimmons, Jr.,4 on October 16, 2002 dismissed the Plaintiffs’ state constitutional claim with prejudice, finding that the assistance provided by § 101.051, Florida Statutes, satisfies the “direct and secret” language of the Florida Constitution. [RE3; R42 21 (“Stafford did not violate Article VI, Section 1 … by purchasing voting equipment that did not permit visually and manually disabled voters to vote without assistance.”) & 18 (noting the “significant lengths” to which
read or write may request the assistance of two election officials or some other person of the elector's own choice, other than the elector's employer, an agent of the employer, or an officer or agent of his or her union, to assist the elector in casting his or her vote. Any such elector, before retiring to the voting booth, may have one of such persons read over to him or her, without suggestion or interference, the titles of the offices to be filled and the candidates therefor and the issues on the ballot. After the elector requests the aid of the two election officials or the person of the elector's choice, they shall retire to the voting booth for the purpose of casting the elector's vote according to the elector's choice. § 101.051(1), Fla. Stat. (2001). 4 Judge Nimmons was the assigned judge until shortly before trial when, due to his illness, the case was transferred.
3

Florida law goes to prevent influencing or disclosing vote citing § 104.23 making it a third degree felony to disclose how voter voted]
Similarly, the trial court dismissed their ADA and RA claims with prejudice to the extent they claimed a right to a voting system that provided a “direct and secret” voting experience without third party assistance. [RE2; R42 37-38]5 The court permitted Plaintiffs to replead, noting that their “amended complaint should allege more clearly … the bases, if any, for their reliance upon the more generic proscription [of the ADA] in contradistinction to the acts’ more specific proscriptions.” [RE2; R42 30] Trial was set for September 2003 term. [R48]
B. Stafford’s Motion to Dismiss the Amended Complaint, Which Is Similar To Their Initial Complaint, Is Denied. Plaintiffs filed an amended class action complaint on November 5, 2002 that substituted the phrase “cast independently a secret ballot” for the phrase “cast a direct and secret ballot” and, as to their general discrimination claim, listed various attributes of third party assistance that were allegedly intrusive as to their voting privacy such as “being forced to reveal their vote to a third-party.” [R47 17-18; RE4] On November 21, 2002, Stafford moved to dismiss the amended complaint as merely another attack on Florida’s third party assistance statute. [R53]
5 See American Ass'n of People With Disabilities v. Smith, 227 F. Supp. 2d 1276 (M.D. Fla. 2002). [RE3]
4

On August 1, 2003, Senior District Judge Wayne E. Alley was assigned to handle pending motions6 and to preside at trial. [R118] In an August 23, 2003 order, the trial court allowed the Plaintiffs’ repleaded ADA claims to survive dispositive motions based on two generic ADA regulations, 28 C.F.R. §§ 35.151(b) & 35.160, and a claim of “generic discrimination.” [RE5; R124]7 Stafford answered the amended complaint on September 4, 2003, and asserted defenses. [RE6; R128]
E. Plaintiffs Prevail on a Single ADA Regulatory Claim Under 28 CFR § 35.151(b)
A seven-day bench trial was held from September 23, 2003 to October 1, 2003 [R166-172] and proposed findings of fact were submitted on November 17, 2003. [R176, 177 & 178] On March 24, 2004, the trial court issued its final written order in favor of Plaintiffs on a single ADA regulatory claim under 28 C.F.R. section 35.151(b), that being that the purchase of optical scan voting equipment was an “alteration” to an existing “facility” that failed to make voting in Duval County “readily accessible to visually or manually impaired voters” to the
6 Prior to reassignment, on July 23, 2003, Judge Nimmons denied the Plaintiffs’ motion for reconsideration of his dismissal order. [R115; see American Ass'n of People With Disabilities v. Hood, 278 F. Supp. 2d 1337, 1345 (M.D. Fla. 2003)] 7 See American Ass'n of People With Disabilities v. Hood, 278 F. Supp. 2d 1345 (M.D. Fla. 2003). [RE5]
5

“maximum extent feasible.” [RE7; R215]8 The trial court entered judgment against Stafford on March 26, 2004. [RE8; R216]
F. The Trial Court Rules That Duval County Should Have Purchased the ESS Voting System Used in Miami-Dade County in 2002
In concluding that Stafford violated 28 C.F.R. § 35.151(b), the trial court held that Duval County should have procured the ESS touchscreen/audio ballot system in 2002 because that was the first and “only voting system that enabled visually impaired voters9 to vote without assistance, that was certified early enough to allow Duval County to adopt the system after certification, but in time for the September 2002 election” in Florida. [RE7/R215 8]
The court reached this conclusion despite acknowledging that this same ESS system caused major election failures in two large Florida counties (Miami-Dade and Broward) arising from (a) the failure to open polling places due to slow “booting up” of the ESS machines, (b) “logistical problems” such as “getting machines to precincts” and (c) poor pollworker training for the system. [RE7/R215 14 (citing 2001 Governor’s Task Force Report, P’s Ex. 1)] The trial court also
8 See American Ass'n of People With Disabilities v. Hood, 2004 WL 626687 (M.D. Fla. March 24, 2004) [RE7]. 9 As to manually impaired voters, the trial court found that because Plaintiff Bell showed at trial that he could “vote” on an ESS touchscreen with his mouth stick, that the failure to procure ESS touchscreens violated the ADA. [RE7/R215 19-20]
6

acknowledged that ESS was rejected by Stafford, in part, because (a) pollworkers had to use cartridges to boot up machines and download them, tasks that are timeconsuming and better suited for technicians, and (b) cost. [RE7/R215 8-9] The trial court further acknowledged that Stafford favored the Diebold optical scan system because “it had a proven track record” and because it was easier (a) to train pollworkers; (b) to conduct a recount; and (c) to vote generally. [RE7/R215 8-9]
G. Trial Court Rules For Stafford On Other Claims Including That Third Party Assistance Is An Appropriate “Auxiliary Aid” Under The
ADA That Provides Effective Communications in Voting The trial court found no ADA violation as to an “effective communications/auxiliary aids” regulatory claim under 28 C.F.R. § 35.160. The Court held that third party assistance under Florida law is an effective and appropriate auxiliary aid by which disabled voters may communicate their votes that provides “an equal opportunity to participate in and enjoy the benefits of voting.” [RE7/R215 23 (emphasis added)] The court found no independent violation of the “generic” discrimination provision of the ADA [RE7/R215 25-27] and made no mention of the RA claims.
H. The Trial Court’s Remedy The trial court ordered “at least one voting machine that permits visually impaired voters to vote without assistance at 20% of the polling places in Duval County.” [RE7/R215 30] Stafford was directed to file a report indicating which
7

polling places should receive machines “taking into account, inter alia, population density and transportation availability.” [RE7/R215 30] The trial court also ordered that if “the Diebold touch screen machines with audio ballot capabilities are not certified on or before May 14, 2004, and/or the Diebold touch screen machines do not permit a manually impaired voter to vote alone via mouth stick, Defendant Stafford is DIRECTED to select and procure another vendor's acceptable touch screen machines with audio ballot capabilities in time for use during the August 2004 primaries.” [RE7/R215 30 (emphasis in original)]
I. Stafford Appeals And The Trial Court Stays Its Order Stafford appealed the trial court’s order and judgment [R217], and moved for a stay pending appeal [R219], which the trial court granted. [R232] The trial court stated that while optical scan with third party assistance is not the “preferred” method of voting, no Plaintiff would be denied “the substantive right to vote.” [R232 3] Prior to the stay being entered, Stafford filed his report, which indicated that approximately 35 persons had been identified countywide that might potentially benefit from an audio ballot. [R227 3] Plaintiffs filed a motion seeking over $2 million in attorneys’ fees and costs, [R223 & R224] which has been stayed as well. [R238] Plaintiffs did not file a cross-appeal.
8

Statement of the Facts A. Post-Election 2000: Replacing Punchcards & Restoring Voter Confidence
After Election 2000, Florida elections officials sought to replace punchcard systems with more accurate equipment to restore voter confidence by eliminating overvotes and undervotes. [Stafford Ex. 31 30-47; TR170 63-64, 7:10] Elimination of infamous “hanging chads” in the twenty-four counties with punchcard machines had become necessary. [Id.;; TR172 10-11 (Duval County criticized for overvotes on its punchcard system)] On May 10, 2001, the Florida Legislature enacted the Florida Election Reform Act of 2001, Chapter 2001-40, Laws of Florida, which decertified punchcard systems effective September 2, 2002 thereby requiring counties to replace such systems.
B. The Governor’s Task Force Recommends Optical/Digital Scan The 2001 Governor’s Task Force extensively reviewed and compared socalled “Marksense”10 technology (i.e., optical/digital scan) versus newly developing direct recording electronic (DRE) technology. The Task Force noted the nascent state of the latter (which includes touchscreens), and that there were
10 Marksense can be either digital scan or optical scan, the latter scanning ballots faster than the former. [TR172 77-78] In general, Marksense is a system “in which a ballot card has candidates’ names preprinted next to an empty oval, circle, rectangle, or an incomplete arrow.” [Stafford Ex. 31 33]
9

“no DRE systems certified in Florida” at that time.11 It found the
advantages/disadvantages of optical/digital scan were:
Advantages • Estimated costs at $4,000-$5,000 per precinct are less than per precinct
cost for DRE systems. • Fewer marksense system units are needed than the DRE system requires;
DRE systems require a DRE machine for each booth in a polling place while marksense/precinct tabulation systems require only one scanner per polling place. • 41 Florida counties already use some type of certified marksense system. • Voter errors such as ‘overvotes’ can be corrected by voters at the polls, eliminating a large percentage of ‘spoiled’ ballots. • Marksense systems are proven systems; 26 Florida counties using the marksense precinct-level tabulation system had the lowest percentage of ‘spoiled’ or blank ballots during the November 2000 election. • Counties converting from punch cards to marksense can use existing privacy booths. • Storage space is minimal compared to larger systems. • Number of staff to operate and maintain a marksense system is smaller than the more technologically advanced DRE voting system; more sophisticated staff are required to operate the DRE system. • Some voters generally feel more comfortable with paper ballots, and a paper ‘audit trail’ exists in marksense systems for possible vote recounts.
Disadvantages • Voter errors such as ‘undervotes’ or blank ballots may go undetected. • Ballots must be preprinted and can be a costly recurring expense for
counties. • Elections with large numbers of candidates and issues may require more
than one ballot per voter. • Visually impaired and other disabled individuals will still need assistance
to mark their ballots.
11 Id. at 34.
10

[Stafford Ex. 31 33-34] The advantages/disadvantages of DRE systems were:
Advantages • DRE machines are more expensive to purchase and maintain but their
overall, long-term costs may be less than marksense machines because they have no paper ballots and therefore reduce recurring costs for County governments. • ‘Overvotes’ are impossible to make thus eliminating a large percentage of ‘spoiled’ ballots. • It is easy to change one’s vote if a mistake is made; no assistance is required from a poll-worker. • Some DRE machines are easier to use for illiterate voters because candidates’ photographs can be displayed. • Some DRE machines have audio features and large fonts that make them easier to use for visually impaired voters and other disabled voters.
Disadvantages • DRE machines are more costly per precinct than marksense machines
because it takes more DRE machines per voter at the polling place than marksense systems and maintenance costs are higher. • Many DRE machines produce no paper ballots, making recounts difficult. • DRE machines require more technologically competent staff for maintenance. • Poll-workers are not prepared to troubleshoot DRE machines if they fail. • It is unclear whether manufacturers can meet Florida’s demand for DRE machines by the 2002 primary and general elections.
[Stafford Ex. 31 34] The Task Force reviewed existing studies and determined that
optical scan systems had lower error rates than DRE systems.12
12 [Stafford Ex. 31 37 (noting research report in February 2001 “found that the marksense or ‘optical scan’ system had a lower residual rate than DRE or touchscreen systems. An even bigger surprise was that the DRE or touchscreen systems had a residual rate as high as punchcard systems.”)]
11

The Report explicitly recognized two sets of standards that a voting system must meet. The first are technical certification standards set and administered by the State of Florida. Id. at 35. The second are usability/affordability “standards that focus on the users of the equipment – voters, poll-workers, and election officials – and include voter error rates compared to other equipment; ease of setup, use, voter error corrections and maintenance; documentation for vote-auditing purposes; cost; and availability.” Id. at 35. This “second set of standards13 is not yet promulgated by law or regulation but is high in the minds of the voters and Elections Supervisors and could be known as ‘user-friendly standards.’” Id. The Task Force concluded that “only one voting system currently meets all of these standards: the state-certified marksense voting system with precinct level tabulation.” Id. at 38 (emphasis added).
C. Duval County’s Election Reform Task Force Recommends Optical Scan During 2001, the Duval County Election Reform Task Force held numerous
public hearings and issued a final comprehensive report, which stated:
13 These usability/affordability standards include: “Be accurate; Be simple for voters to use; Provide the ability to correct common errors made by voters; Be easy for poll-workers to set-up on election days; Allow for re-creation of voter intent independent of technology; Allow the Elections Supervisor and his or her staff to set up and take down the equipment from beginning to end without being dependent on any third party outside his or her office; Be cost efficient so that the local county government could afford to purchase it.” Id. at 35-36.
12

The Task Force carefully considered both technology options, hearing presentations from vendors, the Supervisor of Elections, and other authorities. It recommends that Duval County adopt precinct-based optical scanning technology for no more than two to four years, accompanied by a firm commitment to acquiring DRE technology thereafter. In reaching this conclusion, the Task Force considered the current state of technological reliability, state certification and cost. [Stafford Ex. 1 27 (emphasis in original)] The Report recommended “that consideration be given to the establishment of a centralized voting facility for extraordinary access” including additional technology for the disabled based on input from the Jacksonville Chapter of the Florida Council of the Blind [TR171 5760; 7:137], as well as Duval County’s Chief of Disabled Services, Jack Gillrup. [TR171 57-60; 7:137]14 The Task Force heard reports regarding accommodations for disabled voters such as curbside voting and third party assistance, and commended Stafford for his overall efforts. [Stafford Ex. 1 22] D. Florida Certified Voting Systems Available in Late 2001/Early 2002 Florida does not have a uniform statewide voting technology. Instead, its sixty-seven counties may select different voting systems, provided their equipment
14 Both Ms. Bobbie Probst (Chapter President) and Mr. Gillrup requested that the Task Force recommend a centrally located downtown site with such access for disabled persons. [TR171 59-60, TR172 144 & 149; Ps’ Ex. 13 164-72]
13

is certified by the Florida Department of State, Division of Elections.15 In late 2001/early 2002, counties had the choice of one of three vendors: Global/Diebold,16 Elections Systems & Software, Inc. (ESS) or Sequoia Voting Systems Inc. (Sequoia). Each vendor offered certified optical/digital scan systems. [State Ex. 3 & 4; Stafford Ex. 43] Each was developing or had a touchscreen system certified, though they were substantially more expensive than optical/digital scan (see below). [State Ex. 3 & 4; Stafford Ex. 31 & 43] Counties selected only a single vendor because no certification exists for blending different vendors’ equipment. [TR168 118-19 & 122-23] Moreover, Florida counties prefer to work with a single vendor for warranty service and for technical assistance. [TR168 122-23 (“the ability to get technical assistance during an election cycle is a big area of risk that the counties want to reduce …”)]
15 § 101.294(1), Fla. Stat. (2001) ("No governing body shall purchase or cause to be purchased any voting equipment unless such equipment has been certified for use in this state by the Department of State."). 16 The original vendor was Global Elections System, which was purchased by Diebold Elections Systems in February 2002. [TR170 37] (the “Global/Diebold” or “Diebold” system).
14

E. One Vendor, ESS, Had A Certified Audio Ballot One vendor, ESS, received the first certification in Florida for an audio ballot for the visually impaired on August 16, 2001.17 [State Ex. 3 & 4; PS 19] Global/Diebold had an application pending at that time [State Ex. 4 at ii (#14)], and had given assurances that its audio ballot would be certified in time for the Fall 2002 election cycle.18 [TR171 76:77; 5:69-70] Nonetheless, its four applications were either withdrawn or denied and its audio ballot is not yet available for use in Florida.19 On May 30, 2002, Sequoia applied for certification of its audio ballot, which was certified on August 7, 2002, a month before the primary election. [State Ex. 3 & 4 at 31]
F. Stafford Procures Global/Diebold In January 2002 After a detailed review process starting in 1999 [Tr. 754-55] and continuing through late 2001, Stafford chose to procure the Global optical scan system, which
17 ESS later issued updated and revised technical versions for the same touchscreen system on December 27, 2001; May 7, 2002; June 17, 2002; August 7, 2002; and August 21, 2002. [State Ex. 3 & 4] 18 Diebold contractually agreed to provide three certified audio ballots without charge for the Fall 2002 elections. [Stafford 97; Stafford Ex. 19 Ex. A] 19 Its most recent application has passed all testing phases and is awaiting final certification by the Department. [R242 & R 246]
15

he and his staff gave high marks.20 Assistant Supervisor of Elections, Dick Carlberg, compiled a list of advantages/disadvantages of optical scan versus DRE systems, and reviewed each based on his years of technical experience as well as his familiarity with how voters/pollworkers relate to technology.21 [Stafford Ex. 4; TR172 58-59] He found that touchscreens had “no proven track record”, that recounts would be problematic, and that optical scan and paper ballots “will be required for absentee voting” in any event. [Stafford Ex. 4] Touchscreens would “be extremely costly in terms of” their price; maintenance; storage and transportation; setup and testing; poll worker training; and election day contingency support staffing; they also posed “security and accountability” concerns. Id. In contrast, optical scan systems had few disadvantages but many advantages such as a “proven election track record for reliability and accuracy”; ease in setup, storage, administration and recounts; high voter acceptance;
20 Stafford was elected in 1999 based on a campaign platform of upgrading the voting system to either optical scan or touchscreens. [TR170 41; TR171 6] One of his “ten points” for election reform in February 2001 was consideration of touchscreens and audio ballots. [Stafford Ex. 3 (Ten-Point Plan); Ps’ Ex. 123; TR170 41] 21 Mr. Carlberg has masters’ degrees in business and public administration and worked for the City’s Information Technologies Division for seventeen years after serving in the military as a naval aviator. [TR172 52-53]
16

substantially lower overall costs and compatibility with other existing components such as voting booths. Id.
On January 17, 2002, Stafford sent a letter to the Chief of Procurement, City of Jacksonville, requesting purchase of the Global/Diebold optical scan system with three touchscreen/audio ballots for visually disabled voters. [RE9; TR170 7980; Stafford Ex. 6 & 7] He noted that the “Governor, the Governor’s Task Force, the Secretary of State, and the Duval County Election Reform Task Force” had recommended optical scan and that “DRE products are unduly expensive when deployed in all precincts, have no proven track record of success, and could easily be confusing to certain segments of the voting population.” [Stafford Ex. 7, Ex. A] He indicated that the Global/Diebold system had “the lowest incidence of voter error” in Florida by a threefold margin. Id. The City’s General Government Awards Committee approved this request on January 24, 2002, creating a legally enforceable obligation at that point. [Stafford Ex. 6 & 7; TR170 79-80; Stafford 95, 130-32; Tr. 4:100 (“We had a contract agreement in place in late January”)]22
22 Diebold began delivery of the equipment in April 2002 with additional deliveries in May and June 2002. [TR170 62 & -83-84; Stafford 132-33] Negotiation with Diebold – the successor to Global in February 2002 – delayed the formal signing of a revised agreement until October 3, 2002. [Stafford Ex. 9a & 9b; TR170 12324] The only change to the original agreement was a name change. [TR170 99100]
17

As to the two other vendors, Stafford specifically rejected the ESS system because of a number of features he deemed to be ill-advised. [Tr. 4:140-41, 5:6668] He rejected ESS because its systems required that pollworkers boot-up the ten to twenty machines in each precinct with a single device that is used sequentially for each voting machine and audio ballot. [TR170 66-68] The sequential nature of uploading required substantial time, typically starting the night before, to prepare a precinct in time for opening at 7 a.m. on election day. [TR172 20-21; 5:75-76]
This last feature created the fiascos in Miami-Dade and Broward Counties in the September 2002 primaries requiring the extraordinary step of the Governor extending poll closing times. [Ps’ Ex. 1; Tr. 4:140-41; 7:17-22 (logistics of running election in Miami-Dade turned over to emergency management personnel/police department)] The severe problems in Miami-Dade and Broward resulted in many critical reports of ESS, including those by the Miami-Dade Inspector General’s office. [Stafford Ex. 12]23 The Governor’s 2002 Task Force noted “numerous problems were experienced” with ESS and that “county election officials mobilized over 4,500 county employees to work as poll
23 The 2002 Governor’s Task Force Report noted that there “were three major reports generated as a result of problems experienced by Miami-Dade County – one from the Office of Inspector General Miami-Dade County, one from the Center for Voting and Democracy, and one from the Miami-Dade Election Reform Coalition.” Id. at 30. [Ps’ Ex. 1 at 65; Stafford Ex. 12 at 65]
18

workers, filling a variety of roles from clerks to voting equipment technicians” to prevent their reoccurrence. [Stafford Ex. 12 28-29] The problems with the ESS system in those counties continue to this day. Id.; [TR172 17-18]
Stafford and his staff also disliked the process of relying on pollworkers to boot-up the ESS systems. [Tr. 4:140-41] Based on Stafford’s experience in data processing and elections administration, he felt it was “dangerous” to have pollworkers rather than technicians preparing the voting systems. [Tr.4:140-41; 5:75-76] This factor too was part of the problem experienced in Miami-Dade and Broward. [Tr. 4:140-41; 5:72-73; 7:17-19] The 2002 Governor’s Task Force noted that the Miami-Dade and Broward experiences “confirm that increased efforts on a statewide and local basis are necessary to establish a pool of poll workers capable of filling the stringent experience requirements necessary for the more technologically complex voting systems being implemented.” [Stafford Ex. 12 29] Finally, the ESS system was very complex – a “Rube Goldberg” setup in Mr. Carlberg’s words – because it used both DOS and Windows-based software. [TR172 82-83] Requiring use and understanding of two operating systems and multiple file servers (versus one on the Diebold System) was a drawback and significant concern. Id.
As to Sequoia, Stafford rejected its scanner unit because it was an old, big, heavy and “blocky” unit that was difficult for pollworkers to transport. [TR170
19

66-67; 7:76-77] The unit was “slow to ingest a ballot” because of its slower digital (rather than optical) scan design. [TR172 76] The unit also permitted voters themselves to override or reject a ballot, a negative feature because voters could do so without a pollworker’s knowledge or involvement. [TR172 76] The Sequoia digital scan unit did not have rechargeable batteries; instead, it used “one-shot’ batteries that required precincts to have spare batteries on hand. [TR172 77]
G. 52 of 67 Counties Use Optical Scan, 15 Choose Touchscreens, And Only A Very Few Use Audio Ballots
In the Fall 2002 elections, fifty-two (77.6%) of sixty-seven Florida counties used precinct-based optical/digital scan systems24 while fifteen counties used precinct-based touchscreen systems.25 Thirty counties used Global/Diebold’s optical scan voting systems;26 thirty-two used systems offered by ESS (twenty-one optical scan);27 and five used systems offered by Sequoia (one digital scan).28 The
24 [Stafford Ex. 34 4 (“Counties Using Marksense Precinct Voting Method”)] 25 [Stafford Ex. 34 2 (“Counties Using DRE Precinct Voting Method”)] 26 [Stafford Ex. 34 4 (Florida Division of Elections website; Voting Systems: Diebold); TR168 147] 27 [Stafford Ex. 34 5 (Voting Systems: ES&S)] 28 [Stafford Ex. 34 6 (Voting Systems: Sequoia)]
20

extent of audio ballot use in the fifteen DRE counties is unknown. Voting Systems
Chief Paul Craft had no specific data or factual basis regarding the use of audio
ballots and did not know whether any county, other than Pasco County, used audio
ballots at the precinct level. [TR168 42, 151]
H. The Cost of Optical Scan v. Touchscreens
The 2001 Governor’s Task Force analyzed the cost of optical scan systems
versus touchscreen systems, stating:
Precise estimates on voting system costs are difficult to gauge for many reasons. No two voting systems operate in the same way. Some voting systems have ballots and others do not. Some voting systems require special storage and maintenance and others do not. Some voting systems require computer programming and others do not … one has to make awkward comparisons between different types of equipment costs, software costs, training costs, storage costs, transportation costs, and maintenance costs.
[Stafford Ex. 31 39] Based upon information it obtained, it estimated that the cost
for a statewide touchscreen system would be about two to five times as expensive
as optical scan. Id. at 40. As to Duval County, the direct cost of purchasing a
precinct-based touchscreen system in January 2002 for Duval County would have
been from $6.5 to $12 million, which is more than three to six times the direct cost of an optical scan system. [Stafford Ex. 4; Ps’ Ex. 100; TR172 11-14].29 The
29 The $12 million figure is based on $3,000-3,500 per DRE unit with one touchscreen for every 125 registered voters, which equals about 4000 machines for (Continued …)
21

Global/Diebold System was ultimately procured for $1.8 million (less than estimated) with three touchscreen/audio ballots without charge. [Stafford Ex. 6 & 7] The cost of printed ballots in Duval County was very low due to negotiations with a local printer that provided a rate (17 cents per page) well below that charged by the voting system vendor (25 cents per page). [TR172 15]
Duval County (i.e., 4000 units times $3,000). [TR172 11] This amount did not include annual maintenance costs of $360,000 based on $90 per touchscreen or pollworker training and voter education costs. [TR172 12-13] The $6.5 million figure is based on 250 registered voters per unit. Ps’ Ex. 100; TR172 12-14] Even at this level, the direct cost of purchasing a DRE system would have been between $5.8 to $7.6 million (depending on which vendor is selected) exclusive of maintenance and other costs. [Ps’ Ex. 100].
22

STATEMENT OF THE STANDARDS OF REVIEW This Court reviews the trial court’s legal conclusions de novo, [cite] and factual findings based on the clearly erroneous standard. Florida Progress Corp. and Subsidiaries v. C.I.R., 348 F.3d 954, 959 (11th Cir. 2003); Fed. R. Civ. P. 52(a) (“Findings of fact, whether based on oral or documentary evidence, shall not be set aside unless clearly erroneous...."). The trial court’s denial of a motion to dismiss is subject to de novo review as to the law. S & Davis Intern., Inc. v. The Republic of Yemen, 218 F.3d 1292, 1298 (11th Cir. 2000). Review of the denial of a motion for summary judgment is “de novo, viewing the record and drawing all reasonable inferences in the light most favorable to the non-moving party.” Patton v. Triad Guar. Ins. Corp., 277 F.3d 1294, 1296 (11th Cir. 2002).
23

SUMMARY OF THE ARGUMENT The trial court erred in a number of respects in concluding that Stafford’s purchase of an optical scan voting system in January 2002 – rather than an ESS touchscreen voting system with audio ballot – constituted an ADA violation. First, the ADA does not apply in this context. As the Sixth Circuit and trial courts in Nelson v. Miller held, the ADA was not intended to displace federal elections laws or create a federal right of secrecy in voting. 170 F.3d 641 (6th Cir. 1999), affirming on other grounds, 950 F. Supp. 201 (W.D. Mich. 1996). Second, even if the ADA was intended to supplant election laws, the trial court committed errors in its application. First, it erred by concluding that a voting system is itself a “facility” under 28 C.F.R. § 35.151(b). Every reported case under § 35.151(b) involves a physical alteration to a permanent structure, such as curb cuts added to a sidewalk or an elevator to a building, which are dissimilar from voting systems that involve portable equipment not affixed to any permanent structure. At best, the ADA might require “auxiliary aids” be made available for use with a government program under 28 C.F.R. § 35.160, but the trial court ruled in favor of Stafford on this regulatory claim in concluding that third party assistance is an effective means of communication/auxiliary aid. Next, the optical scan voting system in Duval County, combined with the provision of third-party assistance at the polls as required by Florida law, is a
24

sufficient and reasonable accommodation that makes voting readily accessible to and usable by all, including voters with disabilities. Given the then-existing choice of a single vendor (ESS) with its newly-developed touchscreen/audio ballot, and the severe administrative, technological and fiscal problems with that system overall, the choice to use an optical scan system was a reasonable one, such a system being accessible to the greatest extent possible under the circumstances that existed in late 2001/early 2002 when experience with touchscreens, audio ballots and other similar unproven voting equipment was virtually non-existent.
The trial court also employed an interpretation of “feasible” under section 35.151(b) that rendered this term meaningless. Section 35.151(b) only requires an alteration improve access to the greatest extent it can be done under the circumstances. Under its misapplication of this “feasibility” standard, the trial court engaged in “judicial second-guessing” by concluding that the ESS touchscreen system should have been procured, simply because it had the first and only certified audio ballot in Florida. Indeed, the trial court clearly erred by ignoring the serious flaws in that system that caused the election debacles in Miami-Dade and Broward Counties resulting in severe economic, technological and administrative problems.
Moreover, state approval of a voting system does not make that system “feasible” and, instead, is merely a certification that the system will perform
25

certain technical functions. Certification does not mean a system is affordable, administratively or technologically useable, or will otherwise meet a jurisdiction’s particular needs, as the 2001 Governor’s Task Force in Florida made evident in its comprehensive report. And merely because two jurisdictions (Georgia and Harris County, Texas) had some limited experience in Fall 2002 using certain touchscreen/audio ballots, did not make those voting systems “feasible” in Florida where neither system is certified.
Finally, the court erred in refusing to dismiss the action as moot in light of HAVA, which legislatively provided the precise relief the Plaintiffs sought. A case is rendered moot after its commencement if a court can no longer give “meaningful relief." Here, the district court could provide no relief beyond what HAVA already required thereby rendering the case moot. Also, the court’s remedy was flawed by creating constitutional and statutory problems and by not following class certification procedures or making class rulings.
The ADA requires that no person be excluded from or denied the benefits of any government program, service or activity. The trial court held that no Plaintiff was denied an equal opportunity to participate in and enjoy the benefits of voting in Duval County on the optical scan system with third party assistance. As such, the trial court’s conclusion that section 35.151(b) was violated is erroneous and should be reversed with directions to enter judgment for Stafford.
26

ARGUMENT I. THE TRIAL COURT ERRED BY NOT DISMISSING PLAINTIFFS’
ACTION BECAUSE THE ADA DOES NOT SUPPLANT FEDERAL ELECTION LAWS OR CREATE A FEDERAL RIGHT OF VOTING SECRECY. The trial court erred by not dismissing Plaintiffs’ ADA claim on the pleadings based on Nelson v. Miller, 170 F.3d 641, 653 (6th Cir. 1999), which held that the failure to provide voting technology disabled voters is not a violation of the ADA where third party assistance is provided under state law. In Nelson, a statewide class of blind voters brought an ADA action claiming violations arising from the failure of the State of Michigan to implement methods by which the "Plaintiffs could cast their votes unassisted by another person.” Id. at 644. Plaintiffs alleged the existence of “inexpensive technologies that are currently in commercial use which [sic] permit persons who are blind to read and mark ballots without involving a third party, including braille ballot overlays or templates, taped text or phone-in voting systems.” Id. at 644 n.1. Plaintiffs sought a permanent injunction requiring that the State implement such methods. Id. at 644. The defendants moved to dismiss the entire action for two reasons. First, they argued that Michigan’s law allowing blind voters to designate any person over the age of eighteen or a family member to assist in casting a ballot was in compliance with the Federal Voting Rights Act of 1965 and the Voting Accessibility for the Elderly and Handicapped Act of 1984, both of which
27

specifically address the issues of assistance with and accessibility to voting by
handicapped individuals. 950 F. Supp. at 202. Second, the Defendants argued that
the ADA and RA do not establish a right to privately cast a ballot without the
assistance of a third party. Id.
The district court granted the Defendants’ motion, holding that “Michigan's
current voting law, which permits blind voters to have third-party assistance of
their choosing in marking their ballots, complies with the ADA and RA and thus
that the Plaintiffs had failed to allege facts upon which relief could be granted
under either act.” 170 F.3d at 644. The district court made two rulings.
First, the court found that the ADA and RA, statutes that apply generally to disability-based discrimination, needed to be read in conjunction with older, specific congressional acts dealing with voting rights for the disabled, namely the Voting Rights Act of 1965 (as amended in 1982), 42 U.S.C.A. § 1973aa-6 (West 1994) ("VRA"), and the Voting Accessibility for the Elderly & Handicapped Act of 1984, 42 U.S.C.A. § 1973ee-1 (West 1994) ("VAEH"), insofar as they involved the elections of federal officers.
170 F.3d at 644. In doing so, the district "court stated that Congress did not intend
for the ADA to displace the Federal Voting Rights Acts” and noted that “the VRA
specifically required that a blind voter be provided assistance by a person of his or
her choice when voting" (with certain immaterial exceptions). Id. Also, the Senate
Report accompanying the VAEH (which requires polling places to be "accessible"
to handicapped voters), specifically noted "'that any minimal effect on the privacy
of those who are elderly or handicapped is more than offset by the expanded
28

opportunities for participation in the political process.'” Id. at 644-45 (citation omitted). Thus, to the extent the ADA or RA were applicable, the district court “concluded that the Defendant could not be said to have violated them by providing the Plaintiffs with the same type of meaningful assistance prescribed by them.” Id. at 645.
Second, the district court addressed whether, as to state and local elections that the VRA and VAEH did not cover, the ADA or RA created a private right of blind or visually impaired voters to cast a secret ballot. In rejecting this claim, the district court:
reasoned that nothing in the language of the ADA or RA indicated that voting privacy was a benefit Congress sought to protect under them … and that Congress did not intend the ADA and RA to extend to blind voters in state and local elections anything more than it had already extended to them in federal elections through the VRA and VAEH. Id. Stated differently, the ADA and RA were intended to ensure that disabled voters are not excluded from participation in, or denied the benefits of, the state's voting program; they were not intended to create a federal right of secrecy of the ballot independent of that established under state law. For these reasons, the district court dismissed the Plaintiffs’ ADA and RA claims. The Sixth Circuit affirmed, rejecting the argument that the ADA was violated for failure to provide a ‘secret voting program.’" Id. at 650 (quoting district court). Based upon the substantial assistance that Michigan’s third party
29

assistance statute provided for blind electors to cast their votes, the court concluded that the refusal "to provide [Plaintiffs] with voting assistance other than that already extended to them under … [Michigan’s voter assistance statute], does not discriminate against them in violation of the ADA and/or the RA." Id. at 653 (emphasis added). As such, the court upheld the district court's dismissal of the ADA/RA claims.30
For similar reasons, the trial court erred in denying Stafford’s motion to dismiss the Plaintiffs’ amended complaint, which was simply another attempt to attack Florida’s third party assistance statute under the guise of an ADA violation.31 Indeed, in attempting to state a claim of discrimination under the ADA, the amended complaint merely listed various attributes of third party assistance under Florida law that were objectionable such as “being forced to reveal their vote to a third-party.” [R47 17-18] Because the amended complaint merely challenged
30 See also NAACP v. Philadelphia Bd. of Elections, 1998 WL 321253 at *4 (E.D. Pa. 1998) ("The defendants' provision of the alternative ballot procedures [authorized by the VAEH] to qualified individuals with disabilities fulfills their obligation under the ADA...."). Plaintiffs have relied on the decision in National Org. on Disability v. Tartaglione, 2001 WL 1231717 (E.D. Pa. Oct. 11, 2001), which is neither binding nor persuasive. Indeed, that decision fails to even mention Nelson v. Miller decided two years earlier. 31 For instance, when asked what basis he had for an ADA claim other than the provision of third party assistance at the polls, Plaintiff O’Connor stated emphatically: “There is no other basis … No other basis.” [O’Connor 48-49]
30

Florida’s third party assistance law, the principles of the Nelson v. Miller cases apply and it is urged that this Circuit adopt their reasoning and holdings.
The principles in Nelson v. Miller are further strengthened due to the enactment of HAVA, which establishes federal standards and provides funds for voting equipment for disabled voters to be required in each precinct for elections after January 1, 2006. HAVA severely undermines the trial court’s conclusion that the ADA is applicable because it is nonsensical that Congress would compel, set standards for, and appropriate funds to purchase electronic voting equipment for disabled voters for use after January 1, 2006, yet simultaneously intend that the ADA (which has no funding or standards for voting machines) be used to compel judicially the purchase and use of such voting equipment now. It is illogical to believe that Congress intended to compel a costly addition to a voting system under the imprimatur of the ADA when it established the means for doing so under HAVA. Indeed, Voting Systems Chief Paul Craft – who serves on the committee drafting HAVA standards for voting systems – testified without contradiction that any audio ballots procured at this time to accommodate disabled voters would have to be updated or replaced because existing standards will have to be modified to comply with HAVA standards, which have not yet been formulated. [TR168 9394, 160-61, 173] In short, the rationale for dismissal in Nelson v. Miller is made more compelling due to HAVA.
31

II. THE TRIAL COURT ERRED IN CONCLUDING THAT STAFFORD’S PROCUREMENT OF AN OPTICAL SCAN VOTING SYSTEM VIOLATED THE ADA. Even if the ADA applies, the trial court erred in concluding that Stafford’s
procurement of an optical scan system in February 2002 violated 28 C.F.R. § 35.151(b), which applies to “alterations” to physical “facilities.” The court held that the purchase of optical scan equipment in 2002 was an “alteration” to the existing “facility” (i.e., voting system) that failed to make the activity of voting “readily accessible” to the “maximum extent feasible.” The trial court erred in adopting this novel application of § 35.151(b) to the facts below.
A. An Optical Scan System Does Not Violate the ADA Where Third Party Assistance Under Florida Law is Provided.
First, optical scan voting systems, which are used in fifty-two Florida counties (and thousands throughout the United States), are “readily accessible and usable”32 with third party assistance under Florida law. Indeed, the trial court held as much in ruling against Plaintiffs on their claim that the lack of touchscreens/audio ballots violated 28 C.F.R. § 35.160, which requires appropriate “auxiliary aids.” As the trial court concluded:
“… All three individual Plaintiffs have been able to vote with thirdparty assistance. While the visually impaired Plaintiffs testified to concern about whether their votes were accurately reflected, there is 32 See Shotz v. Cates, 256 F.3d 1077 (11th Cir. 2001); 28 C.F.R.§ 35.151.
32

no evidence to suggest that their votes were not accurately communicated via third-party assistance. Similarly, there is evidence that visually and manually impaired voters have consistently been able to vote in Duval County elections using third-party assistance, which indicates that visually and manually impaired voters have been afforded an equal opportunity to participate in and enjoy the benefits of voting.”33 [R23] That Plaintiffs were “afforded an equal opportunity to participate in and enjoy the benefits of voting” compels the conclusion that the voting system in Duval County complies with the statutory language of the ADA itself. That certain disabled persons must disclose their votes to a third party in using an optical scan voting system does not constitute an ADA violation. In its October 16, 2002 dismissal order, the trial court held that neither the ADA nor the Florida constitutional right to a direct and secret vote is violated by third party assistance provided in Florida, given the substantial statutory protections for right. Dismissal of Plaintiffs’ ADA claim was with prejudice. [R42 21 & 37-38] As such, it was error that Plaintiffs’ amended ADA theory (i.e., that an optical scan system fails to provide disabled voters with an “independent” voting experience) be resurrected. Phrases such as “voting ‘independently’” or “denial of access” are simply different euphemistic ways of saying “voting in secret without third party assistance,” which was the ADA theory that was dismissed with prejudice. No
33 [R216 23] (emphasis added).
33

evidence or precedent suggests that the ADA establishes a right to “absolute
secrecy” in the voting experience under the rubric of “accessibility.”
Notably, the Office of Civil Rights, Department of Justice, has specifically
held that Florida's statutory program of third party assistance meets ADA standards.34 For instance, in a Letter of Findings dated August 25, 1993, the
Department addressed whether the failure to provide blind voters in Pinellas
County, Florida with an electronic method of voting violated the ADA. The
complainant asserted that blind voters were not provided a method of voting that
allowed a secret ballot. The Department stated that the supervisor of elections, who
followed Florida law by providing assistance to blind voters, was in compliance
with the Act. The Department stated:
Although providing assistance to blind voters does not allow the individual to vote without assistance, it is an effective means of enabling an individual with a vision impairment to cast a ballot. Title II requires a public entity to provide equally effective communications to individuals with disabilities, but "equally effective" encompasses the concept of equivalent, as opposed to identical, services. Poll workers who provide assistance to voters are required to respect the confidentiality of the voter's ballot, and the voter has the option of selecting an individual of his or her choice to provide assistance in place of poll workers. The Supervisor of Elections is not, therefore, required to provide Braille ballots or
34 While the Letter of Findings addressed § 35.160 dealing with auxiliary aids, its analysis and conclusions are equally applicable to a claim under § 35.151(b) seeking such aids.
34

electronic voting in order to enable individuals with vision impairments to vote without assistance.35 As the highlighted language indicates, the Division viewed Florida's voter assistance statute as an "effective" method of enabling the visually impaired to vote while preserving the secrecy of their votes. Moreover, the Division recognized that, under the ADA a public entity is not required to provide "identical services" in order to meet legal requirements. Instead, the longstanding interpretation of the ADA is that a public entity must provide "equally effective communications to individuals with disabilities" that includes "equivalent, as opposed to identical, services." Id.36 Finally, no ADA standards for voting equipment or systems exist to date. Paul Craft, Division of Elections, and Jack Gillrup both testified that they consulted with Department of Justice ADA experts who said that no standards exist in this area. Mr. Craft testified:
35 Letter of Findings, Dep't of Justice (August 25, 1993) (to Supervisor of Elections, Pinellas County, Florida) http://www.usdoj.gov/crt/foia/lofc018.txt (emphasis added) (footnote omitted). 36 The Division has stated that certain "curbside voting policies" for otherwise inaccessible polling places are “effective” "alternative methods" that enable disabled voters to cast a ballot. See Letter of Findings, Dep't of Justice, Civil Rights Division (August 19, 1993) (to County Elections Department, Las Vegas, Nevada). http://www.usdoj.gov/crt/foia/lofc017.txt.
35

As to voting systems, I think the phrase ADA compliant has no meaning. One of the things that I did when we started researching these standards was to go to people in the Department of Justice who are specialists in ADA and start working with them trying to find, you know, what would be standards that could apply. They were -- I wasn't able to find anything, they weren't able to give me anything. … The results were no one could point me to a clear standard that I could use.
[TR168 164, 165] Likewise, after Mr. Gillrup was contacted by Plaintiff
O’Conner, he reviewed his ADA Technical Manuals and found no standards. He
then contacted the Department, which advised that the provision of third party
assistance, absentee voting, and curbside voting satisfies the ADA. [TR171 65-66]
Given the lack of ADA standards, and because the optical scan system at issue,
combined with third party assistance under Florida law, is readily accessible and
usable by the Plaintiffs, the trial court erred in concluding that the ADA was
violated.
B. The Trial Court Erred In Concluding that 28 C.F.R. § 35.151(b) Is Applicable.
1. Because Plaintiffs Were Not Excluded from or Denied The Benefit of Voting, Their Regulatory Claim Must Fail.
The ADA provides 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.” 42 U.S.C. § 12132. Here, the trial court
specifically ruled – and the evidence fully supports – that no Plaintiff was denied
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an equal opportunity to participate in or derive the benefits of voting in Duval County. Because Plaintiffs were not excluded from or denied the benefit of voting under the ADA’s statutory language itself, their regulatory claim under 28 C.F.R. § 35.151(b) based upon the same conduct must fail. Alexander v. Sandoval, 532 U.S. 275, 291, 121 S. Ct. 1511, 1522 (2001) ("’[T]he language of the statute and not the rules must control’ … language in a regulation” cannot “conjure up a private cause of action that has not been authorized by Congress.”) (citation omitted).
2. The Trial Court Erred In Holding That Voting Systems Are “Facilities” Under § 35.151(b).
Alternatively, the trial court erred in holding that the purchase of optical scan voting equipment is an “alteration” to an existing “facility” (i.e., voting system) that violates 28 C.F.R. § 35.151(b) of the ADA. The specific type of “accessibility” at issue is “program accessibility” referred to in Subpart D of the regulations. See Addendum. The gist of these regulations is that a public entity’s failure to make a “facility” 37 physically accessible amounts to “exclusion from
37 See 28 CFR § 35.104 (“Facility means all or any portion of buildings, structures, sites, complexes, equipment, rolling stock or other conveyances, roads, walks, passageways, parking lots, or other real or personal property, including the site where the building, property, structure, or equipment is located.”).
37

participation in, or the denial of the benefits of, the program, service or activity” occurring within the “facility” itself.
Here, the court fundamentally erred in concluding that a voting system is a “facility” when, in fact, it is the “program, service or activity” itself. The “program accessibility” regulation at issue was designed to facilitate access to programs, services and activities, such as voting; it was not designed to regulate the program, service or activity itself, particularly the complex and highly regulated “program” or “activity” of voting and elections administration, which is subject to substantial federal and state laws, regulations and policies. Nelson v. Miller. For this reason alone, the trial court erred in applying section 35.151(b) to a “voting system.”
Unlike buildings, ramps, elevators and other semi-permanent structures commonly understood as “facilities” that are susceptible to being “designed and constructed” or “altered” to provide physical access to public programs, services and activities, a voting system in Florida38 is a “method” of casting votes via an amalgamation of computer hardware/software, voting booths, and other portable
38 Under Florida law, a “voting system” means “a method of casting and processing votes that functions wholly or partly by use of electromechanical or electronic apparatus or by use of paper ballots and includes, but is not limited to, the procedures for casting and processing votes and the programs, operating manuals, tabulating cards, printouts, and other software necessary for the system's operation.” § 97.021(38), Fla. Stat. (2003), as amended by Chapter 2003-415, Laws of Florida.
38

items that are designed to be transportable and thereby not permanently affixed or
installed at any one location or site.39
Indeed, while the regulatory definition of “facility” is broad, it has not been
stretched to extend beyond its common understanding, which is limited to elements
that are permanently made part of a physical structure.40 Every reported case under
section 35.151(b) relates to an alteration to an element made part of a permanent
physical structure, such as curb cuts or ramps on a sidewalk or road, elevators and
restrooms in buildings, and alarm boxes/ticket vending machines affixed to public
buildings.41 Addition of these types of elements to a permanent physical structure
39 See, e.g., Molloy v. Metro. Transp. Auth., 94 F.3d 808, 812 (2nd Cir. 1996) (“Literally, an ‘alteration’ is ‘change’ to a ‘facility.’ By way of non-exclusive example, the regulation lists only physical modifications of a relatively permanent nature to the facility. Under the common sense approach to interpreting a general provision in the light of a list of specific illustrative provisions, ejusdem generis, we construe the general term (here, ‘change’) to include only things similar to the specific items in the list.”) (emphasis added) (vacating injunction).
40 For this reason, the meaning of “equipment” in the definition of a “facility” is best understood as applying to items such as elevators, escalators and other types of “equipment” that become physical modifications to a permanent structure.
41 Kinney v. Yerusalim, 9 F.3d 1067 (3rd Cir. 1993) (resurfacing of city street was alteration that required installation of curb ramps); Panzardi-Santiago v. Univ. of Puerto Rico, 200 F. Supp. 2d 1 (D. Puerto Rico 2002) (public pathway); Association for Disabled Americans v. City of Orlando, 153 F. Supp. 2d 1310, 1319 (M.D. Fla. 2001) (restrooms and seating); Ability Center of Greater Toledo v. City of Sandusky, 133 F. Supp. 2d 589 (N.D. Ohio 2001) (curb cuts); Deck v. City (Continued …)
39

can be done during the construction or alteration stage more cheaply (compared to
adding them later) and are distinguishable from voting machines, which are
portable and not affixed to a permanent structure. It is one thing to require a
simple, inexpensive “curb cut” or ramp to a sidewalk that is being altered; it is
quite another to compel the disproportionate cost and burdens of the voting
technology the trial court has compelled under section 35.151(b) in this litigation.
Notably, the lack of any regulatory guidelines under the ADA for voting
systems speaks volumes. Detailed and voluminous ADA regulatory standards and
technical/engineering specifications exist for many types of physical or structural
alterations.42 None exists for voting systems or equipment,43 and for good reason
of Toledo, 29 F. Supp. 2d 431 (N.D. Ohio 1998) (curb ramp); Anderson v. Pa. Dept. of Public Welfare, 1 F. Supp. 2d 456, 463-64 (E.D. Pa.,1998) (alteration of office buildings); Schonfeld v. City of Carlsbad, 978 F. Supp. 1329, 1339 (S.D. Cal. 1997) (restrooms and curb ramps); see also Molloy v. Metropolitan Transp. Authority, 94 F.3d 808, 812 (2nd Cir. 1996) (“The installation of a TVM [ticket vending machine] constitutes a physical modification to the station. It also requires additional wiring and communication lines which feed into the LIRR's central TVM monitoring facility.”) (emphasis added). 42 See, e.g., 28 CFR 35.151(e); Americans with Disabilities Act Accessibility Guidelines for Building and Facilities (“ADAAG”); and Uniform Federal Accessibility Standards (“UFAS”). 43 The DOJ has not interpreted section 35.151(b) to apply to voting equipment, nor has the DOJ issued any guidelines or standards for voting equipment under its ADA rulemaking powers, thereby dispensing with the deference that ordinarily would apply if such guidelines or standards existed.
40

due to the complexity, portability and pervasive regulation under state and federal election law of voting systems. For all these reasons, the trial court erred in concluding that section 35.151(b) applies to the purchase of optical scan voting equipment at issue.
C. The Trial Court In Its Application of 28 C.F.R. § 35.151(b)’s “Feasibility” Standard.
Even if section 35.151(b) extends to voting systems, the trial court erred in its application of the regulation’s “feasibility” standard in finding an ADA violation based on the failure to procure the ESS touchscreen/audio ballot system. The trial court correctly ruled in its August 19, 2003 order that the qualifying phrase “to the maximum extent feasible” in section 35.151(b) is “a limitation rather than an expansion” of the “readily accessible” standard in the regulations. [R124 14 n.5] Yet the court misapplied this limitation in its final order of March 24, 2004.
In this regard, section 35.151, which relates to “New construction and alterations”, has two subsections with very different compliance standards. While section 35.151(a) provides that any new facility must be designed or constructed facility to make it “readily accessible to and usable by individuals with disabilities,” section 35.151(b), which applies to alterations to existing facilities, has no such requirement. Instead, section 35.151(b) provides:
41

(b) Alteration. Each facility or part of a facility altered by, on behalf of, or for the use of a public entity in a manner that affects or could affect the usability of the facility or part of the facility shall, to the maximum extent feasible, be altered in such manner that the altered portion of the facility is readily accessible to and usable by individuals with disabilities, if the alteration was commenced after January 26, 1992. 28 C.F.R. § 35.151(b) (emphasis added). While section 35.151(a) requires that facilities be “designed and constructed” to be “readily accessible to and usable by” the disabled, section 35.151(b) is more limited and requires that alterations to a facility be “readily accessible to and usable” by persons with disabilities only to the “maximum extent feasible.” In other words, the duty under § 35.151(b) is not that an alteration renders a facility “readily accessible.” Instead, the duty is to make the alteration in a way that makes the facility – to the extent it can be accomplished under the circumstances – “readily accessible.” This limiting phrase means that alterations need not be made if they exceed existing technical ability, involve unreasonable costs, or impose risks or burdens that are disproportionate to the accessible feature sought. Indeed, the term “feasible” is most reasonably understood with this “practical” or “reasonable” interpretation44 rather than the extreme position the
44 See NEW SHORTER OXFORD DICTIONARY, 926 (1993) (“Feasible: n., Practical, possible, manageable, convenient; serviceable.”). Synonyms of feasible include (Continued …)
42

Plaintiffs advocated and the trial court applied, which transformed this regulatory limitation into the judicial compulsion of a flawed voting system without regard to its usability or cost.45
1. The Trial Court Erred In Holding That State Technical Certification Assures A System’s Overall “Feasibility."
In this regard, the district court clearly erred in concluding that state certification alone is sufficient to support a finding of “feasibility” by “ensur[ing] that a system is not a substandard voting system.” [RE7/R215 17-18] The court overlooked the official government reports and evidence demonstrating that the ESS system was not only substandard, but resulted in the most calamitous election experiences in Florida in 2002. Indeed, even Plaintiff AAPD conceded that the failure of the ESS System in Miami-Dade in 2002 resulted in the disaster/emergency management team being brought in to run elections, the mobilization of thousands of additional county workers to ensure the system worked, millions of extra funds expended, the unprecedented step of the governor keeping the polls open later, and the loss of the supervisor’s job. [TR171 10-18;
doable, practicable, reasonable, viable, workable. See ROGET’S ONLINE THESAURUS at http://thesaurus.reference.com (visited November 15, 2003). 45 The Plaintiffs advocated that section 35.151(b) applied, but urged it was a stricter, higher standard. See, e.g., [R27 24, 41, & 42-46] (hearing transcript of February 28, 2002); R124 14 n.5]
43

see TR172 17-23]] Plaintiff AAPD also acknowledged that in Broward County, Florida “problems” existed with the ESS system to the point that efforts were made to replace it with an optical scan system. [TR171 11-13, 26] Thus, by the Plaintiffs’ own admissions, the ESS system was problematic, costly, and subject to administrative glitches that rendered it an undesirable choice – despite it being “certified.” Given that certification is only an assurance as to technical standards (with no consideration of the usability/affordability standards deemed critical in the 2001 Governor’s Task Force Report), it was clear error to conclude that state certification ensures a system meets a particular jurisdiction’s needs, is economically viable, or administratively desirable.
2. The Trial Court Erred in Concluding That Stafford Should Have Bought the ESS System Simply For Its Audio Ballot.
Further, the trial court erred in concluding that the ESS touchscreen voting system should have been purchased simply because it had the first and only certified audio ballot in Florida and because it was purportedly used with success in Miami-Dade County in 2002. The trial court’s findings and analysis are clearly erroneous as to the “feasibility” of this system.
As discussed in the previous section, the trial court ignored that the ESS system directly caused an unprecedented election fiasco in Miami-Dade. Buying the ESS system with its problems simply to have the first-ever audio ballot would have been foolhardy and a recipe for disaster. Stafford was prescient in rejecting
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the ESS system as undesirable on numerous technical, administrative and economic grounds. Yet, the trial court engaged in judicial second-guessing by concluding that Stafford violated the ADA by not procuring that system simply because it had the only audio ballot available.
3. The Trial Court Erred as to the Economic Feasibility of Touchscreens, Particularly the ESS Touchscreen System.
The trial court erred as to the economic feasible of touchscreen/audio ballot systems. First, by the court’s own findings, the direct cost of touchscreens for use in Duval County was from $5,844,000.00 to $13 million with annual maintenance46 of $107,140.00. [RE7/R215 9] In sharp contrast, the optical scan system purchased for use in Duval County was $1.8 million with annual maintenance of $45,000.00. [RE7/R215 7 & 9] As such, the direct cost of a touchscreen system was three to five times more expensive than an optical scan system. The trial court also ignored the substantial costs the ESS system imposed on other counties such as the 4,500 extra pollworkers, the $5 million of extra expense, and the loss of voter confidence in Miami-Dade County. [TR171 10-18; Stafford Ex. 12 28-29; TR172 17-23 (“They had almost a complete breakdown of the system, just about everything that could do wrong did to wrong.”)]
46 Maintenance costs of touchscreen systems are substantially higher due to the larger number of those units required per precinct (versus one optical scan unit).
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Second, the trial court erred in concluding that simply because the annual budget of the City of Jacksonville is substantial, that it must ipso facto be “feasible” for the City to pay whatever amount is necessary to procure voting equipment. This analysis is superficial and, indeed, no effort was made to review the more appropriate measure of financial feasibility: the actual budgets of the Supervisor of Elections Office for preceding years including what portions came from City funds. Using these budgets for comparison, the cost of a touchscreen voting system in 2002 far exceeded the entire budget of the Supervisor’s Office for each of the past ten years.47 In addition, a touchscreen system would cost in excess of ten times the City’s portion of the annual budget (which is approximately 25% overall). Indeed, the share of state funds for the purchase of a voting system for
47 From 1991 to 1999, the overall budget of the Supervisor of Elections office in Duval County has ranged from $1.84 million (1993-94) to $3.44 million (199899) with the City’s general fund contributing between $539,097 (1991-92) to $672,023 (1999-2000). [Ps’ Ex. 100; Stafford Ex. 2a-2k] The Supervisor’s overall budget for fiscal year 2000-2001 was $2.6 million (of which $677,646 came from City funds). [Ps’ Ex. 100] For fiscal year 2001-02, the budget was $3.25 million, of which $1.86 million was for personnel and $1.39 million was for operating expenses. [Stafford Ex. 2a-2k] For fiscal year 2002-03, the budget was $5.46 million reflecting $3.24 million in personnel (increase of $1.38 million for part-time and overtime due to three elections during 2002-03) and $2.23 million operating expenses (reflecting additional expense for voting system). Id.
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Duval County in 2002 was $1 million,48 [RE7/R215 7] an amount insufficient to purchase an optical scan system, let alone a touchscreen system. That counties felt they could not afford new voting systems (even with state funds) in part due to caps on millage for local tax revenues49 and that Duval County financed its purchase of an optical scan system, both demonstrate the tight fiscal constraints that existed. [Stafford Ex. 31 40]
Third, the cost of just one touchscreen with audio ballot in each precinct (approximately $1 million)50 would easily exceed the entire amount of the optical scan system in Duval County in 2002 ($1.8 million) by more than fifty percent. Persuasive ADA regulations state that where the cost of a specific alteration exceeds the total cost of an overall alteration by 20 percent, it is disproportionate
48 Counties under 75,000 in population received a total of $7,500 per precinct while larger counties received a total of $3,750 per precinct. Chapter 2001-40, Laws of Florida, § 76. 49 A major concern nationwide in 2001 was financing, particularly for new voting equipment with features for the disabled. GAO Report 02-107, “Voters with Disabilities: Access to Polling Places and Alternative Voting Methods,” at 34 (“Most elections 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.”). 50 See Report of 2002 Florida Governor’s Task Force on Election Procedures, Standards and Technology 24, 57 (Dec. 30, 2002) (estimating $934,500 for Duval County); Stafford Ex. 12.
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and not required.51 Here, the deployment of one touchscreen/audio ballot in each precinct would exceed 50 percent of total alteration costs and is thereby unwarranted (not to mention the costs of maintaining two types of voting systems and training workers on each).
Fourth, the trial court ignored Florida legislation in 2002 setting standards for voting equipment for the disabled to be used in each precinct once funding is appropriated for that purpose. Ch. 2002-281, Laws of Florida. The amount of such funding was set as “$8.7 million or such other amounts as it determines and appropriates for the specific purpose of funding this act.” Id. § 21. This enactment is a tacit acknowledgement by the Florida Legislature itself that this specialized voting equipment is economic infeasibility without state financial assistance to the counties. Likewise, the trial court ignored that the enactment of HAVA in 2002, which provides funding for voting equipment for disabled voters, supports a similar conclusion that Congress deemed this equipment economically infeasible without such funds.
51 See, e.g., 28 C.F.R. § 36.403(f); Coalition of Montanans Concerned With Disabilities, Inc. v. Gallatin Airport Auth., 957 F. Supp. 1166, 1170-71 (D. Mont. 1997) (“under the Justice Department's interpretation of its rules, the Authority must install an elevator unless the cost would exceed 20 percent of the total cost of the alteration.”).
48

Finally, the trial court clearly erred in concluding that twenty-four of Florida’s sixty-seven counties used touchscreen systems in 2002 thereby inferring the feasibility of those systems in Duval County. Voting Systems Chief Paul Craft testified that, although perhaps twenty-nine counties had “touchscreen capability” [TR168 50-51], only fifteen counties in Florida actually used precinct-based touchscreens, and that he did not know whether any, other than Pasco County, used audio ballots at the precinct level. [TR168 151] As such, the order misstates by almost double the extent to which touchscreen usage existed in Florida in the Fall 2002 elections. Given that neither touchscreens nor audio ballot were used in Florida prior to 2002, and had limited use during 2002 (some of the experiences disastrous), it was clear error to infer that such systems were required in Duval County in 2002 under the ADA.
4. The Trial Court Made Inapt Comparisons With Systems Not Certified in Florida.
The trial court misapplied the concept of feasibility by making inapt comparisons with systems used in Georgia and Harris County, Texas, neither of which was certified in Florida. In addition, neither situation is remotely comparable to the state of affairs in Florida in 2002. Georgia is the first and only state to fully fund and require by law the implementation of a unified touchscreen/audio ballot system on a statewide basis (it chose a Diebold system). [TR167 130-31] Unlike Florida, every local jurisdiction in Georgia purchased the
49

requisite touchscreen/audio ballots without adverse fiscal effects. Because Georgia is so different as to its standards and funding, it is a particularly inappropriate comparison for feasibility purposes.
Similarly, Harris County, Texas used the Hart Intercivic system, which is not certified in Florida system and, indeed, is not even a touchscreen.52 The choice of the Hart system was unique because its manufacturer was based in Harris County and expended substantial time and resources to market and implement it there. [TR167 84-85] Both Georgia and Harris County, Texas phased in their systems as of the late Fall 2002, which was after Florida counties had already procured their voting systems. See Addendum (Chronology). As such, their voting systems could not have served as examples of “feasibility” in Florida in late 2001/early 2002. For all these reasons, the trial court clearly erred in considering Georgia and Harris County, Texas systems in determining “feasibility” in Florida.
5. Three Audio Ballots for Centralized Short Term Use/Testing Was Reasonable.
Finally, Stafford’s decision to use three audio ballots on a trial basis at a centralized location was reasonable and not an ADA violation. Instead, it was
52 Harris County chose a system with buttons/knobs rather than touchscreens due to maintenance and financial concerns. [TR167 72; Kaufman 35-39] (“task force felt that touch screen technology was delicate, easily damaged and would require a lot of maintenance which could be expensive.”).
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consistent the Duval County Elections Task Force’s recommendation of a “centralized voting facility for extraordinary access” to use the equipment on an experimental basis for possible future use on a precinct basis. [Stafford Ex. 1] It was also consistent with the 2001 Governor’s Task Force Report, which recommended consideration of technology that might become certified and proven in the field.53 Indeed, Stafford sought to accommodate disabled voters in his procurement decision. [TR170 62-63; Stafford 91 (“We decided that back in – I want to say December 2001 – that when we bought a system, we wanted that capability, for touchscreen with audio.”)] No evidence suggests that the unexpected lack of certification for Diebold’s audio ballot was attributable to Stafford, who (along with other counties) kept in contact with and pressured Diebold regarding the status of certification. [TR171 75-76, 110; Stafford 98-99] Further, Secretary Cox in Georgia and Beverly Kaufman in Harris County, Texas made clear the importance of their pilot projects for testing new voting equipment on a limited, trial basis before deploying it fully. [TR167 100-106 (Cox) & 68-70, 80-82 (Kaufman)] Thus, it was reasonable for Stafford to have the opportunity to
53 [Stafford Ex. 31 38] To facilitate this possibility, Stafford negotiated a option in the Diebold/Global contract whereby optical scan equipment may be traded at full value for new touchscreens thereby enabling a more effective and affordable transition to that technology, if practicable. [Stafford Ex. 9A/9B)]
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do so without violating the ADA. The trial court’s conclusions to the contrary are erroneous.
D. The Trial Court Erred in Finding A Violation as to the Manually Disabled Plaintiff.
The trial court erred in concluding that Stafford violated the ADA as to the manually disabled Plaintiff by not purchasing a touchscreen system. No voting system has ever been certified in Florida for use by persons with manual disabilities including the use of mouth sticks. [TR168 145-46; State Ex. 3 & 4] Voting Systems Chief Paul Craft testified that his office does not certify touchscreens for this use because “there is no assurance that a given voter with a given mouth stick isn't going to have difficulty with [a touchscreen]. It has not been tested nor certified for that specific accommodation.” [TR168 145-46] He stated that absent “regulating the mouth sticks used by people, which I think would be very undesirable, then it's going to be very difficult to bring that particular interface into certification.” [TR168 146] As such, it was error for the trial court to find an ADA violation when Florida counties cannot even purchase certified equipment for use by manually disabled voters including those who may use mouth sticks.
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That the one manually disabled Plaintiff was able to utilize his mouth stick on a particular manufacturer’s touchscreen at trial54 is irrelevant given the lack of certification for that type of use. The trial court’s findings – that “mouth sticks would not have to be certified” and “manually impaired voters may vote with a mouth stick on an ES & S … touch screen machine if they are able” – are likewise irrelevant and begs the question of whether certified machines are available for such use. [RE7/R215-6] Given the lack of any official, objective standards by which to assess “mouth stick-accessible” equipment, it was error legally and factually for the trial court to find an ADA violation, particularly given that no class or sub-class was defined or certified for this use (see Section IV infra). III. THE TRIAL COURT ERRED IN RULING THAT HAVA DOES NOT
MOOT PLAINTIFFS’ CLAIMS. The trial court erred in concluding that HAVA55 did not moot the Plaintiffs’ claims. It is well settled that the exercise of federal jurisdiction depends on the existence of a "case or controversy" and federal courts are without
54 Notably, Plaintiffs’ amended complaint pleaded a subclass of manually disabled voters who are precluded “from manipulating a writing instrument” and specifically stated that Plaintiff Bell “cannot manipulate a writing instrument or a touchscreen with his hands” – but it was not alleged that he could use a mouth stick on a touchscreen for this purpose. [R47 ¶¶ 16, 24, 35] 55 On October 29, 2002, President Bush signed HAVA, which is codified at 42 U.S.C. 15301 to 15545.
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authority to issue opinions on moot questions.56 Because mootness is a "threshold
jurisdictional inquiry" and because a party's claims must remain viable
throughout litigation, it is appropriate to raise mootness at any stage of a proceeding.57 A case is rendered moot when events occurring after the
commencement of a lawsuit "create a situation in which the court can no longer give the plaintiff meaningful relief."58
Here, the precise relief that Plaintiffs sought – “at least one voting system” in each precinct in Duval County for disabled voters59 – was legislatively mandated
56 John Roe, Inc. v. United States, 142 F.3d 1416, 1420-21 (11th Cir. 1998) (citing Church of Scientology v. United States, 506 U.S. 9, 12, 113 S. Ct. 447 (1992) & North Carolina v. Rice, 404 U.S. 244, 92 S. Ct. 402 (1971)). 57 See, Brooks v. Georgia State Bd. Of Elections, 59 F.3d 1114, 1119 (11th Cir. 1995) (“case or controversy" requirement "mandates that the case be viable at all stages of the litigation; it is not sufficient that the controversy was live only at its inception.") (citation and quotations omitted). 58 Jews For Jesus, Inc. v. Hillsborough County Aviation Auth., 162 F.3d 627, 629 (11th Cir. 1998); see also Atlanta Gas Light Co. v. FERC, 140 F.3d 1392, 1401 (11th Cir. 1998) (case becomes moot when issues presented are no longer "live"). 59 Plaintiffs’ prayer for relief sought injunctive relief “requiring Defendants to provide, in each polling place in Duval County, at least one voting system that is accessible to voters with visual impairments and voters with manual impairments.” [R47 at 23; see also Dickson at 64 (“We are simply asking that there be one accessible machine in each polling place.”)]
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on a nationwide basis via Congress’s enactment of HAVA.60 Any relief the trial court might have ordered, such as requiring Duval County to purchase specific voting equipment for disabled voters, would merely duplicate what Congress had already required to be done for elections after January 1, 2006 (with certain hardship exceptions). As such, no “meaningful relief” existed in this lawsuit beyond what Congress already had mandated. The trial court’s refusal to dismiss the action as moot was erroneous.61
60 HAVA provides that for elections after January 1, 2006 every polling place must have “at least one direct recording electronic voting system or other voting system equipped for individuals with disabilities[.]” 42 U.S.C.A. § 15481(a)(3) & (d). This voting equipment must meet HAVA standards to 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[.]” Id. § 15481(a)(3). 61 In addition, the trial court, per Judge Nimmons, expressed mootness concerns after the enactment of section 101.56062, Florida Statutes (requiring voting machines for disabled voters), which might “satisfy or ameliorate the Plaintiffs' concerns which prompted the assertion of their ADA and Rehabilitation Act claims.” [R42 32-35] He stated that if Plaintiffs “desire to continue this litigation … a substantial repleader or amended complaint [taking section 101.56062 into account] would be in order.” Id.
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IV. THE REMEDY AND LACK OF CLASS CERTIFICATION WARRANT REVERSAL.
A. The Relief Ordered By The Court Is Flawed.
The relief ordered by the trial court is facially defective in two respects,
First, the requirement that touchscreen/audio ballots be placed in 20% of Duval
County’s precincts creates the potential for equal protection, ADA, RA and state
law violations. Under Florida law, a voter may cast a vote in person only in his or her precinct62 or at the downtown main office.63 For this reason, voters whose
precincts do not have touchscreen/audio ballots may not cast a vote at another
polling location. As a result, voters in 57 polling locations would have two voting
technologies, one with a paper trail subject to manual recounts (optical scan) and one without a paper trail and not subject to manual recounts (touchscreens).64
62 See § 101.045(1), Fla. Stat. (2003) (“No person shall be permitted to vote in any election precinct or district other than the one in which the person has his or her legal residence and in which the person is registered.”). 63 Id.§ 101.657(2) (“supervisor of elections may allow an elector to cast an absentee ballot in the main or branch office of the supervisor …” whose results are not made known until the close of the polls on election day.”). 64 See Div. of Elec. Op. DE 04-02, State of Florida, (February 12, 2004) (letter to supervisors in fifteen touchscreen counties that Florida law does not permit manual recounts on touchscreens). This lack of a “paper trail” with touchscreens is the subject of at least one lawsuit in Florida and a number of legislative proposals, both national and state. See Wexler v. Theresa LePore, et. al. Case No. CV-04(Continued …)
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Voters in the remaining 228 polling locations will vote on the optical scan system, with disabled voters using third party assistance potentially asserting federal equal protection, ADA, RA and state law violations.65 Further, that the votes in some Duval County precincts will be counted differently in a recount from those in other precincts raises constitutional problems. See, e.g., Bush v. Gore, 531 U.S. 98, 10708, 121 S. Ct. 525 (2000) (noting equal protection problems where manual recounts of undervotes/overvotes handled differently). For these reasons, the relief sought is flawed thereby justifying reversal.
B. The Failure to Certify A Class Was Prejudicial Error. Second, the trial court ordered countywide relief that is improper absent an appropriate class certification hearing and specific findings under Rule 23 as to subclasses, neither of which was done below. In this regard, a “court must – at an early practicable time – determine by order whether to certify the action as a class action.” Rule 23(c)(1)(A), Fed. R. Civ. P. (2004). Indeed, the trial court itself
80216 (S.D. Fla. filed March 8, 2004); see, e.g., S. 1980 (amending HAVA to require a voter-verified permanent record or hardcopy); H.R. 2239 (same). 65 See, e.g., American Association for People with Disabilities, et. al. v. Kevin Shelley, as Secretary of the State of California, et. al., Case No. CV04-1526 FMC (PJWx) (filed March 23, 2004) (asserting violations of federal equal protection clause, ADA, RA and state law).
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indicated that “there would have to be a separate proceeding” for class certification
and voiced concerns such as whether Plaintiffs could show commonality.66
Yet, no class certification hearing was scheduled or held. No class was
certified, nor were classes or subclasses defined. No findings as to the numerosity,
typicality, commonality and adequacy of representation factors were made, nor
was the appropriateness of class relief under Rule 23(B)(2)(b) established.
Notably, the court ordered countywide relief based on a particular disability (i.e.,
manually disabled who can use a mouth stick) but made no findings as to this
purported sub-class. This lack of class certification procedures and findings
constitutes prejudicial error that warrants reversal.67
66 [TR166 5-6] (“I do think there could be commonality issues because -- well, I regard, you know, anything as a disability is a partial disability and that runs a great gamut. You know, there's significant matters of degree and I don't know that you're going to find a testimony plate that would fit every visual impairment case and every physical impairment case ….”).
67 See Baxter v. Palmigiano, 425 U.S. 308, 312, 96 S. Ct. 1551, 1555 (1976) (“Without such certification and identification of the class, the action is not properly a class action.”); Bieneman v. City of Chicago, 838 F.2d 962, 964 (7th Cir. 1988) (“It is … difficult to imagine cases in which it is appropriate to defer class certification until after decision on the merits. … When the district judge (to whom this case was transferred some two years after its filing) recognized that there was an unresolved class allegation, he should have requested the views of the parties and postponed decision of the merits.”); Paxton v. Union Nat. Bank, 688 F.2d 552, 559 (8th Cir. 1982) (“…deferral of the (class) determination until full trial on the merits … is fraught with serious problems of judicial economy, and of fairness to both sides.") (citation omitted).
58

CONCLUSION
Based on the foregoing, the district court's order should be reversed with
directions that judgment be entered in favor of Supervisor Stafford.
RICHARD A. MULLANEY GENERAL COUNSEL
Scott D. Makar (FBN 709697) Chief, Appellate Division Ernst Mueller (FBN 164027) Senior General Counsel Jason Teal (FBN 157198) Office of General Counsel 117 West Duval Street, Suite 480 Jacksonville, FL 32202 (904) 630-1700 (904) 630-1316 (fax) Attorneys for Appellant John Stafford
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing was furnished by facsimile to J. Douglas Baldridge, Esq., Howrey, Simon, Arnold & White, LLP, 1299 Pennsylvania Avenue, N.W., Washington, D.C. 20036; Elaine Gardner, Esq., Washington Lawyers’ Committee for Civil Rights and Urban Affairs, 11 DuPont Circle, NW, Suite 400, Washington, D.C., 20036, and George Waas, Senior Asst. Attorney General & Dawn K. Roberts, Asst. Attorney General, Office of the Attorney General, PL-01, The Capitol, Tallahassee, Florida 32399-1050, on this 12th day of May, 2004.
Attorney
59

 
 Case No. 04-11566-JJ

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________

AMERICAN ASSOCIATION OF PEOPLE WITH DISABILITIES, DANIEL W. O’CONNOR, KENT BELL, AND BETH BOWEN,

Plaintiffs/Appellees,

v.

JOHN STAFFORD, Defendant/Appellant. ________________________

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF FLORIDA, JACKSONVILLE DIVISION
No. 3:01-CV-1275-J-Alley/HTS ________________________

BRIEF OF APPELLEES
________________________

Richard A. Ripley Danielle R. Foley Vincent E. Verrocchio Ari N. Rothman R. William Sigler HOWREY SIMON ARNOLD & WHITE, LLP 1299 Pennsylvania Ave., N.W. Washington, D.C. 20004 (202) 783-0800
Counsel for Plaintiffs/Appellees

Of Counsel: Alan M. Wiseman HOWREY SIMON ARNOLD & WHITE, LLP
Elaine Gardner
WASHINGTON LAWYERS’ COMMITTEE FOR CIVIL RIGHTS AND URBAN AFFAIRS
11 Dupont Circle N.W., Suite 400 Washington, D.C. 20036 (202) 319-1000

Dated: August 24, 2004

CERTIFICATE OF INTERESTED PERSONS PURSUANT TO ELEVENTH CIRCUIT RULE 26.1 Pursuant to Federal Rule of Appellate Procedure 26.1 and Eleventh Circuit Rules 26.1-1 and 26.1-2, counsel for Appellees hereby supplement their Certificate of Interested Persons and Corporate Disclosure Statement filed along with Appellees’ Opposition to Appellant Stafford’s Motion for Reconsideration or Modification of Jurisdictional Order by adding R. William Sigler, counsel for Appellees. STATEMENT REGARDING ORAL ARGUMENT Pursuant to Federal Rule of Appellate Procedure 34 and Eleventh Circuit Rule 28-1(c), Appellees respectfully request that this appeal be placed on the oral argument calendar for submission and decision with oral argument. Appellees believe that oral argument would assist with the resolution of the issues raised by this appeal.
i

TABLE OF CONTENTS CERTIFICATE OF INTERESTED PERSONS PURSUANT TO ELEVENTH CIRCUIT RULE 26.1 ...........................................................................i STATEMENT REGARDING ORAL ARGUMENT.................................................i STATEMENT OF JURISDICTION..........................................................................1 STATEMENT OF THE ISSUES...............................................................................2 STATEMENT OF THE CASE..................................................................................4 I. STATEMENT OF PROCEEDINGS IN THE TRIAL COURT .....................4 II. STATEMENT OF FACTS ..............................................................................7
A. Appellant Altered Duval County’s Existing Voting System When Punch Cards Were Outlawed By The Florida Legislature .........7
B. Appellant Purchased A Voting System That Is Not Readily Accessible To Duval County’s Disabled Voters...................................8
C. Duval County Could Have Purchased An Accessible Voting System In Lieu Of The Optical Scan System......................................11 1. Florida Certified Voting Systems Included Viable, Tested Technologies That Were More Accessible To Disabled Voters Than The Optical Scan System .....................................11
ii

2. The Available Accessible Voting Systems Were And Are Financially Feasible ..................................................................16
STANDARDS OF REVIEW ...................................................................................17 SUMMARY OF ARGUMENT ...............................................................................18 ARGUMENT ...........................................................................................................20 I. THE TRIAL COURT PROPERLY CONCLUDED THAT THE ADA
APPLIES TO THIS CASE ............................................................................20 II. THE COURT PROPERLY FOUND THAT THE VOTING SYSTEM
IN DUVAL COUNTY IS NOT READILY ACCESSIBLE TO AND USABLE BY DISABLED VOTERS TO THE MAXIMUM EXTENT FEASIBLE.....................................................................................................24 A. The Trial Court Applied The Proper ADA Standard To
Appellant’s Conduct............................................................................25 B. The Trial Court Properly Concluded That Voting Equipment Is
A Facility Under the ADA ..................................................................30 C. It was Feasible for Appellant to Procure an Accessible Voting
System .................................................................................................31 1. Touch screens were technologically feasible............................32 2. Appellant could have afforded to place one accessible
voting system in each polling place ..........................................36
iii

D. The Trial Court Properly Concluded That Appellant Violated the ADA by Failing to Provide Touch Screen Voting Machines for Manually Impaired Voters.............................................................39
E. The Trial Court’s Finding on Appellees’ “Effective Communication” Claim Is Not Inconsistent With The Court’s Finding That the Optical Scan System Is Not Accessible to the Maximum Extent Feasible...................................................................41
F. A 1993 DOJ Letter of Findings Does Not Undermine the Trial Court’s Ruling .....................................................................................43
III. HAVA DOES NOT RENDER THIS LAWSUIT MOOT ............................45 IV. THE TRIAL COURT’S REMEDY PLAN IS AN APPROPRIATE
RESPONSE TO APPELLANT’S ADA VIOLATIONS ..............................48 A. The Trial Court’s Order Will Not Subject Appellant to Equal
Protection Violation Claims ................................................................48 B. Class Certification Is Not a Prerequisite to Injunctive Relief.............52 CONCLUSION ........................................................................................................54 CERTIFICATE OF COMPLIANCE .......................................................................56 CERTIFICATE OF SERVICE ................................................................................57
iv

TABLE OF CITATIONS CASES
Acree v. County Board of Education, 458 F.2d 486 (5th Cir. 1972)....................................................................49
Association for Disabled Americans v. City of Orlando, 153 F. Supp. 2d 1310 (M.D. Fla. 2001) ...................................................25
Bailey v. Patterson, 323 F.2d 201 (5th Cir. 1963)....................................................................52
Baxter v. Palmigiano, 425 U.S. 308, 96 S. Ct. 1551 (1976) ........................................................53
Bieneman v. City of Chicago, 838 F.2d 962 (7th Cir. 1988)....................................................................53
Bing v. Railway Express, Inc., 485 F.2d 441 (5th Cir. 1973)....................................................................54
Bresgal v. Brock, 843 F.2d 1163 (9th Cir. 1987)..................................................................53
Bush v. Gore, 531 U.S. 98, 121 S. Ct. 525 (2000) ....................................................51, 52
Christensen v. Harris County, 529 U.S. 576, 120 S. Ct. 1655 (2000) ......................................................44
v

Craft v. Memphis Light, Gas & Water Division, 534 F.2d 684 (6th Cir. 1976), aff’d, 436 U.S. 1, 98 S. Ct. 1554 (1978) ...............................................................................53 Doe v. Bush, 261 F.3d 1037 (11th Cir. 2001)................................................................54
Engle v. Gallas, No. 93-3324, 1994 U.S. Dist. LEXIS 7935 (E.D. Pa. June 10, 1994)...........................................................................29
Fairley v. Forrest County, 814 F. Supp. 1327 (S.D. Miss. 1993) .......................................................52
FDIC v. Verex Assurance, Inc., 3 F.3d 391 (11th Cir. 1993)................................................................48, 50
Fisher v. Oklahoma Health Care Authority, 335 F.3d 1175 (10th Cir. 2003)................................................................37
Gonzalez v. Reno, 215 F.3d 1243 (11th Cir. 2000)................................................................44
International Union of Bricklayers & Allied Craftsmen v. Meese, 616 F. Supp. 1387 (N.D. Cal. 1985).........................................................53
Kemp v. Beasley, 352 F.2d 14 (8th Cir. 1965)......................................................................49
vi

Kidder, Peabody & Co. v. Brandt, 131 F.3d 1001 (11th Cir. 1997)................................................................18
* Kinney v. Yerusalim, 9 F.3d 1067 (3d Cir. 1993) .....................................................25, 26, 29, 31
Local 28 of Sheet Metal Workers International Ass’n v. EEOC, 478 U.S. 421, 106 S. Ct. 3019 (1986) ......................................................50
Meek v. Metropolitan Dade County, 985 F.2d 1471 (11th Cir. 1993)................................................................18
* National Organization on Disability v. Tartaglione, No. 01-1923, 2001 U.S. Dist. LEXIS 16731 (E.D. Pa. Oct. 11, 2001) ...............................................................21, 22, 30
Nelson v. Miller, 170 F.3d 641 (6th Cir. 1999)........................................................23, 24, 42
Pascuiti v. New York Yankees, 87 F. Supp. 2d 221 (S.D.N.Y. 1999) ........................................................37
Paxton v. Union National Bank, 688 F.2d 552 (8th Cir. 1982)....................................................................53
Sanford v. R.L. Coleman Realty Co., 573 F.2d 173 (4th Cir. 1978)....................................................................53
vii

* Shotz v. Cates, 256 F.3d 1077 (11th Cir. 2001)....................................................20, 21, 25
Solomon v. Liberty County Commissioners, 221 F.3d 1218 (11th Cir. 2000)....................................................17, 33, 39
Sun America Corp. v. Sun Life Assurance Co. of Canada, 77 F.3d 1325 (11th Cir. 1996)......................................................18, 41, 43
* Tennessee v. Lane, 124 S. Ct. 1978 (2004) .......................................................................18, 20
Troiano v. LePore, No. 03-80097-Civ-Middlebrook/Johnson (S.D. Fla. May 1, 2003)..........................................................14, 22, 24, 30
United Farmworkers of Florida Housing Project, Inc. v. City of Delray Beach, 493 F.2d 799 (5th Cir. 1974)..................................52, 53
United States v. Secretary of HUD, 239 F.3d 211 (2d Cir. 2001) .....................................................................50
Weber v. Shelly, 347 F.3d 1101 (9th Cir. 2003)..................................................................51
viii

Wexler v. LePore, 319 F. Supp. 2d 1354 (S.D. Fla. 2004), dismissed, (11th Cir. May 24, 2004), on appeal, No. 04-12826-II (11th Cir. 2004) .........................................................................................................51
Wexler v. LePore, No. 502004A000491XXXXMBA (Fla. Cir. Ct. 15th Cir. Feb 11, 2004), aff’d, No. 4D04-918 (Fla. 4th Dist. Ct. App. Aug. 6, 2004).........51 STATUTES
28 U.S.C. §1292(a)(1) (2002)..........................................................................1 42 U.S.C. §§ 12101-12213 (2002) .................................................................1 42 U.S.C. § 15481 (2002) ...................................................................3, 19, 48 42 U.S.C. § 15545 (2002) .............................................................................45
REGULATIONS 28 C.F.R. § 35.104 (2003) .............................................................................31 28 C.F.R. § 35.150 (2003) .............................................................................25 28 C.F.R. § 35.151 (2003) ..................................................................... passim 28 C.F.R. § 35.160 (2003) .............................................................................41
LEGISLATIVE MATERIALS H.R. Rep. No. 101-485(II), reprinted in 1990 U.S.C.C.A.N. 303 ................26
ix

STATEMENT OF JURISDICTION The United States District Court for the Middle District of Florida granted final judgment in favor of Appellees against Appellant under the Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12101-12213 (“ADA”). This Court has jurisdiction under 28 U.S.C. § 1292(a)(1).
1

STATEMENT OF THE ISSUES
The issues presented are: 1. Did the trial court commit clear error by concluding that it was feasible for Appellant to purchase one touch screen voting machine with audio ballot for every polling place in Duval County when he purchased new voting machines in 2002, where the trial record contained evidence that Florida had certified such systems at that time; that other Florida counties, including those of comparable size to Duval County, purchased these certified systems; that the cost of such a purchase would be approximately $1 million; and that Duval County’s 2001 annual budget was over $1.2 billion, including a general fund of nearly $750 million? 2. Did the trial court commit clear error when it found that Appellant violated the ADA when he purchased an optical scan voting system in 2002 that is not readily accessible and usable by disabled voters to the maximum extent feasible, where the evidence demonstrated that Appellees, disabled voters, were unable to vote on the optical scan system unassisted in the same manner as nondisabled voters; the Appellant admitted that there were material differences in the manner that optical scan systems required disabled voters to vote as compared to the manner in which non-disabled voters voted using optical scan systems; and
2

Appellant conceded that disabled voters had a “legitimate complaint” regarding those material differences?
3. Did the trial court err when it held that the Help America Vote Act (HAVA), 42 U.S.C. § 15481, does not moot Appellees’ ADA claims, where HAVA expressly disavows any limitation or restriction of the ADA; HAVA does not provide a remedy for Appellant’s current violation of the ADA; the United States government has instructed all counties, including Duval County, to comply with HAVA’s disability provisions “as soon as practical”; and Appellant failed to prove that it was impractical to comply with the deadlines set forth in the trial court’s judgment?
4. Did the trial court err in the scope of the injunction that it entered against Appellant, where the conduct mandated – to provide at least one accessible voting machine in 20% of the polling places in Duval County by the August 2004 primary election – was substantially less than what Appellant could do voluntarily to the maximum extent feasible, and the lawsuit proceeded to judgment as an individual action, although Appellees moved for a class to be certified?
3

STATEMENT OF THE CASE
Appellees are Florida citizens who are visually or manually impaired voters1 registered to vote in Duval County, Florida and a non-profit association dedicated to advocating for and enabling persons with disabilities. (Dkt. 215, ¶¶1-3.)2 They challenged the Appellant’s decision to purchase new voting systems as violations of the Americans with Disabilities Act (“ADA”) and the Rehabilitation Act (“RA”) because the machines that Appellant purchased were not readily accessible to disabled voters to the maximum extent feasible, as those statutes mandate. (Dkt. 215, p. 15-16.)
I. STATEMENT OF PROCEEDINGS IN THE TRIAL COURT Appellees provide a brief response and supplementation to certain portions
of Appellant’s “Statement of Proceedings and Disposition in the Court Below” to provide the court a complete recitation of the procedural history of this case.
1 Hereinafter, “visually or manually impaired voters” will be referred to collectively as “disabled voters.” 2 In this brief, references to the Record on Appeal, including trial transcripts, will be designated by their Docket Number, and Page and/or Paragraph reference, e.g., “Dkt. X, p. YY.” For the Court’s convenience, Appellees have bold-faced Dkt. 215, which is the trial court’s opinion. References to trial exhibits are prefaced as “PX” for Plaintiffs’ Exhibits, and “DX” for the Appellant’s or State Defendants’ exhibits.
4

First, Appellant claims that, in ruling on his initial motion to dismiss, “the trial court dismissed [Plaintiffs’] ADA and RA claims with prejudice to the extent they claimed a right to a voting system that provided a ‘direct and secret’ voting experience without third party assistance.” (Appellant’s Brief (“Br.”) 4.) This mischaracterizes the trial court’s ruling. The Honorable Ralph W. Nimmons, Jr. upheld the Plaintiffs’ ADA claims under both the program exclusion and generic discrimination proscriptions. (Dkt. 42, p. 29-30.) He dismissed Plaintiffs’ ADA claim only to the extent that Plaintiffs claimed “they have been excluded from or denied the benefits of a program of direct and secret voting that does not permit the type of assistance provided for [in Florida’s third-party assistance statute].” (Id. 37-38.) Indeed, Judge Nimmons specifically relied on this Circuit’s precedent that the ADA is not restricted to those situations in which “‘a disabled person is completely prevented from enjoying a service, program, or activity,” and held that the ADA “more generically proscribe[s] disability ‘discrimination’ by the pertinent public entities.” (Id. 26-27, 29.)
Second, Appellant characterizes the amended complaint (Dkt. 47) as merely “substitut[ing] the phrase ‘cast independently a secret ballot’ for the phrase ‘cast a direct and secret ballot’ and, as to their general discrimination claim, list[ing] various attributes of third party assistance that were allegedly intrusive as to their voting privacy such as ‘being forced to reveal their vote to a third-party.’” (Br. 4.)
5

To the contrary, the amended complaint alleges not only discrimination flowing
from third party assistance as the only option for disabled voters, (Dkt. 47, p. 9-10,
16-18), but also discrimination related to the additional burdens faced by Plaintiffs
when voting that are not faced by non-disabled voters:
The particular discrimination against Plaintiffs . . . manifests itself as follows: (a) being forced to reveal their votes to a third-party; (b) risking having (and actually having) their votes revealed by the thirdparty to other people; (c) risking having (and actually having) the third-party attempt to influence their candidate choice; (d) having to vote in a manner that singles them out in the polling place; (e) having to wait long periods of time until a third-party is available to assist the voter; (f) having to incur the burden and impediment of traveling to the Office of Elections’ headquarters to use the three accessible voting machines in the event Duval County ever purchases such machinery; and (g) having to suffer embarrassment and distress during the voting process for each of the foregoing reasons and the fact that they are required to vote in a manner materially different from, and substantially more burdensome than, the manner in which nondisabled voters cast their votes in Duval County.
(Id. 17-18, (emphasis added); see also id. 9-10.)
Thus, the amended complaint is predicated on the burdens and
discrimination imposed upon disabled voters in the County who are forced, despite
the availability of several accessible options, to vote using third-party assistance,
and is not, as Appellant contends, simply “another attack on Florida’s third-party
assistance statute.” (Br. 4.)
Third, the trial court’s final judgment was not, as Appellant contends,
limited to “a single ADA regulatory claim under 28 C.F.R. section 35.151(b)….”
6

(Br. 5.) After finding for Appellees on their claim under 28 C.F.R. § 35.151(b), the court went on to review Appellees’ claim under the generic proscription of the ADA, and found it to be “coterminous with its claim under 28 C.F.R. § 35.151.” (Dkt. 215, p. 27.) The trial court stated that “the Court will not separately address this claim based upon the conclusion that it is to be resolved in the same manner as Plaintiffs’ claim under 28 C.F.R. § 35.151.” (Id. 27-28.)
II. STATEMENT OF FACTS
A. Appellant Altered Duval County’s Existing Voting System When Punch Cards Were Outlawed By The Florida Legislature
In the Fall 2000 general elections, Duval County, like many Florida counties, utilized a punch card voting system. (Dkt. 215, ¶14.) In early 2002, Duval County, under the Appellant’s supervision as the County’s Supervisor of Elections, commenced the process to alter its voting facilities by replacing the punch card machines, which had been outlawed by the Florida legislature following the state’s infamous “hanging chad” experience during the 2000 elections. (See Dkt. 215, ¶14.)
Under Florida law, any new voting system Appellant purchased had to have passed Florida’s stringent certification process. (Dkt. 215, ¶10.) “Certification is an application and licensing process that determines if a voting system meets the
7

requirement of the Florida Election Code and the Florida Voting System Standards.” (Dkt. 215, ¶11.) Florida’s certification process is objective, rigorous and thorough; “a certified voting system has been tested to the highest standards of accuracy and reliability and can be relied upon to be dependable and to be a fairly good investment in terms of durability.” (Id.) On September 25, 2001, the DOE Director specifically assured the Appellant that “[a] county choosing from among the certified systems can be confident that it is providing its voters with the highest standard in voting technology.” (Id.; PX 142.)
B. Appellant Purchased A Voting System That Is Not Readily Accessible To Duval County’s Disabled Voters
The new voting system that Appellant chose in January 2002 from among those certified for use in Florida was an optical scan voting system manufactured by Diebold.3 (Dkt. 215, ¶20.) The City of Jacksonville, on behalf of the County, signed an agreement with Diebold on October 3, 2002; before that date, the County was free to change its choice of systems. (Dkt. 170, p. 124:14-23; PX 150, at 95:15-17.)
To vote on the optical scan voting system, a voter fills in a bubble or otherwise marks a paper ballot with a pen or pencil, which is then fed through an
3 The system bore the brand of Global Election Systems Accu Vote; Diebold purchased Global in or around February 2002. (Dkt. 215, ¶20 n.1.)
8

optical scan ballot reader. (Dkt. 166, p. 53:16-22; PX 148, at 33:5-17.) A voter must be able to grip a pencil and see to use these machines. (Dkt. 169, p. 155:20156:7.) No auxiliary aids exist that would permit a disabled voter to vote in the same or similar manner as non-disabled voters using an optical scan voting system. (PX 150, at 79:25-80:6.) Not surprisingly, the Appellant admitted that “there are greater burdens imposed on visually or manually impaired voters under Duval County’s optical scan system that are not placed on [non-disabled] voters” (Dkt. 169, p. 154:2-8; see also id. 153:16-19, 155:12-15; PX 150, at 51:6-10, 54:1755:8); “visually or manually impaired voters vote in a materially different manner than non-disabled voters vote” in Duval County (Dkt. 169, p. 154:13-155:6); and that disabled voters “probably have a legitimate complaint” about these material differences in the way they vote. (Dkt. 169, p. 155:20-156:1.)
The trial testimony from disabled voters about the burdensome and humiliating process they have endured when casting their votes on Duval County’s optical scan system confirms Appellant’s concessions. Beth Bowen, who has been blind since birth (Dkt. 215, ¶1; Dkt. 167, p. 13:2-3), testified that she was put “on display” when she used third party assistance because she was required to vote in the middle of a large room where “there’s people all around.” (Dkt. 215, ¶7; Dkt. 167, p. 18:10-22.) Kent Bell, who was born without arms or legs (Dkt. 215, ¶2; Dkt. 166, p. 84:6-8), was forced to wait for two poll workers to assist him to vote
9

(at the “snack table”) in the presence of non-disabled voters. (Dkt. 215, ¶6; Dkt. 166, p. 96:6-97:25.) On another occasion, Mr. Bell was forced to reveal his candidate choices in the presence of at least ten other people. (Dkt. 215, ¶6; Dkt. 166, p. 98:1-99:9.)
Dan O’Connor, who is legally blind (Dkt. 215, ¶1; Dkt. 166, p. 51:8-22), was taken to a “separate room” to vote where he could overhear other voters reveal their selections. (Dkt. 215, ¶5; Dkt. 166, p. 58:11-60:6.) The person assisting him “did not read [the] party affiliation [of] the candidates,” which caused Mr. O’Connor to doubt whether his ballot had been properly cast. (Dkt. 215, ¶5; Dkt. 166, p. 61:2-16.) As Mr. O’Connor explained, “And even when the person went over the selections I made, you know, I didn’t know for sure. I wasn’t able to verify on my own whether that was actually accurate or not, like I had [with] the experience of the touch screen machines.” (Dkt. 166, p. 61:2-16.) Likewise, Pamela Hodge testified that the poll worker providing her assistance could not even pronounce the words on the ballot accurately. (Id. 123:8-124:23.)
This evidence established that Appellant imposed upon tens-of-thousands4 of disabled voters in Duval County a voting process that is fundamentally different from and more burdensome than the process by which non-disabled voters vote.
4 Dkt. 166, p. 50:3-13; Dkt. 169, p. 132:13-134:15; Dkt. 170, p. 145:17-146:7; PX 13, at 159:13-16; PX 145.
10

There simply is no way for disabled voters to vote in a non-discriminatory manner on Duval County’s optical scan system – instead, these voters are forced to rely on third party assistance. (Dkt. 215, ¶2, p. 17; Dkt. 166, p. 53:16-25, 84:23-85:10, 112:13-21; Dkt. 167, p. 14:3-13; Dkt. 169, p. 152:21-153:8; Dkt. 172, p. 88:2489:3.) On the basis of this and other evidence at trial, the trial court found that the “optical scan voting system purchased by Duval County is not readily accessible to visually or manually impaired voters.” (Dkt. 215, p. 17.)
C. Duval County Could Have Purchased An Accessible Voting System In Lieu Of The Optical Scan System
1. Florida Certified Voting Systems Included Viable, Tested Technologies That Were More Accessible To Disabled Voters Than The Optical Scan System
The County did not have to purchase an optical scan system. (Dkt. 215, p. 5-6, 8; see also Dkt. 169, p. 76:11-21.) Instead, Appellant could have procured a touch screen voting system equipped with an audio ballot, on which disabled voters can vote independently, as non-disabled voters do. (Dkt. 215, p. 8, 17-18.) A touch screen system has a computer screen, and enables a voter to select a candidate by pressing on the candidate’s name on the screen. (DX 31, at 34.) An auxiliary audio component, which is often referred to as an audio ballot, can be used by visually impaired voters to navigate through the ballot screens with pre-
11

recorded instructions played through headphones. (Dkt. 166, p. 54:3-55:5; PX
150, at 56:20-25; PX 149, at 27:1-3, 43:11-44:11, 89:12-90:10.) As demonstrated
at trial by Mr. Bell, at least some manually impaired voters can use a mouth stick
or other device to press the screen. (Dkt. 215, p. 19; PX 150, at 57:9-16; Dkt. 166,
p. 85:17-86:25; Dkt. 167, p. 52:7-19, 173:16-175:8.)
There were at least two Florida-certified touch screen systems at the time
Appellant was considering which voting system the County would purchase:
ES&S and Sequoia.5 The ES&S touch screen voting system with audio ballot was
certified and available for immediate purchase and use on August 16, 2001, more
than a year before Appellant signed the contract with Diebold.6 (Dkt. 215, ¶16;
PX 132; see also Dkt. 169, p. 76:16-21; PX 150, at 103:19-104:3.)
5 Although the trial court concluded that only the ES&S was certified sufficiently in advance of the September 2002 primary election to have been used in that election by Appellant, the trial evidence demonstrated that Florida counties also used the Sequoia touch screen system in the September 2002 primary election. (Dkt. 172, p. 46:20-47:13; Dkt. 167, p. 46:14-47:5; Dkt. 168, p. 51:11-14.) Appellant testified that he had the options of “getting Diebold certified, or getting somebody else certified . . .” in addition to the options of purchasing the ES&S or Sequoia touch screen systems equipped with audio ballots. (Dkt. 169, p. 99:18-21; PX 150, at 103:19-104:3.) 6 Because the certification occurred after the 2001 Governor’s Select Task Force on Election Procedures, Standards, and Technology’s recommendation, the ES&S system could not be part of the task force’s recommendation. (DX 31, at 30.) As a result, the Recommendation was obsolete by the time Appellant purchased the County’s voting system. Indeed, the 2002 Governor’s Select Task Force recognized the new landscape that existed when it concluded that “[t]he current
12

During the period that Appellant was investigating which voting system to purchase, at least eleven Florida counties purchased and provided the ES&S touch screen in time for the 2002 elections. (PX 1, at 57.) For example, Pasco County, Florida, entered into a contract with ES&S for the purchase of a touch screen system that “accommodate[s] the sight impaired with audio assisted voting” in October 2001. (Dkt. 215, ¶42; Dkt. 167, p. 166:6-16, 167:23-25.) The system was delivered to Pasco County (1,455 machines in total) approximately two weeks from the time the contract was signed. (Dkt. 167, p. 167:23-168:4, 169:19-170:2.) By the time of trial, Pasco County had used its new touch screen system in three elections with “huge success.” (Dkt. 215, ¶42; Dkt. 167, p. 170:6-171:5, 172:8173:12; PX 81, PX 111.)
By the time of the trial in this matter, “the majority of the State’s voters” had used Florida-certified touch screen machines in elections. (PX 1, at 23.) Touch screens were used in at least Dade, Broward, Hillsborough, Pasco, Nassau, Pinellas, and Indian River counties. (Dkt. 215, ¶41.) Highlands and Palm Beach counties have used systems comprising the specific relief ordered by the trial court
technology” for meeting the needs of disabled voters “is the touch screen electronic voting machine with features such as audio that recites the ballot in a headset for blind and illiterate voters.” (DX 12, at 23.)
13

– blended systems7 of one touch screen and an optical scan system in each polling
place. (Dkt. 215, ¶41; Troiano v. LePore, No. 03-80097-Civ-
Middlebrook/Johmsom, slip op., at 8-10 (S.D. Fla. May 1, 2003).) Hillsborough
implemented the Sequoia system with audio ballot one month after it was certified,
in time for the September 2002 primary election. (Dkt. 167, p. 46:14-47:5, 49:9-
20; Dkt. 168, p. 51:11-14; Dkt. 172, p. 46:20-47:13.)
The successful use of touch screen voting systems is not limited to Florida.
Prior to purchasing the County’s optical scan system, Appellant knew that 257
counties throughout the country used touch screen voting systems, representing at
least 8.9% of the national popular vote. (Dkt. 169, p. 183:4-8; PX 11, at 10.)
Between February 2001 and September 2003 the use of touch screens expanded to
“about 500 counties with more than 200,000 units” throughout the country,
including counties in California, Georgia, Texas, Colorado, Ohio, Maryland,
7 There is a distinction between the two types of “blended” systems described at trial. The first is a certified system comprised of an optical scan reader and a touch screen machine made by the same vendor. The other type of “blended” system is one comprised of an optical scan reader and a touch screen system made by two different vendors. Both types of blended systems are technologically feasible and used across the country. (Dkt. 170, p. 149:15-18 (Arapahoe County, Colorado, blends the Hart eSlate with the Sequoia optical scan); Dkt. 170, p. 149:19-150:1 (Tarrant County, Texas, blends the Hart eSlate with an ES&S optical scan); see also Dkt. 168, p. 69:12-17; 52:6-14).) The recent certification of the Diebold touch screen with audio ballot now means that the county could use a “blended” Diebold system for use in all of its polling places, and all training could be completed by Diebold within a month. (Dkt. 248; Dkt. 171, p. 109:9-110:4.)
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Arizona, South Carolina, and the District of Columbia. (Dkt. 170, p. 142:9-14; Dkt. 167, p. 82:11-17, 117:23-121:20, 130:16-25, 172:8-173:12; Dkt. 168, p. 53:24-54:5; Dkt. 170, p. 142:15-143:5; Dkt. 171, p. 25:25-26:10.) Thus, the trial evidence established that touch screen systems “have performed superbly.” (Dkt. 170, p. 143:10-22.)
Given the circumstances, the Florida Chief of the Bureau of Voting System Certification could offer no explanation why Duval County could not have procured an accessible voting system as these other jurisdictions had done: “I don’t know of any reason that Duval County officials would not have the intelligence, management skills and other resources that it would take to do the same thing. . .” as other Florida counties did. (Dkt. 168, p. 26:19-27:7.)
2. The Available Accessible Voting Systems Were And Are Financially Feasible
The cost to make available one touch screen with audio ballot in every polling place in Duval County is approximately $1 million.8 (Dkt. 215, ¶30; Dkt. 170, p. 25:25-26:14; Dkt. 172, p. 42:15-22; see also Dkt. 139, p. 24.) Duval County could well afford this expenditure. (Dkt. 215, p. 18.) The Duval County Task Force concluded that “with [a general fund] approaching $700 million,
15

[Duval County] could well afford the additional expenditures” required to remedy the years of neglect in Duval County’s “outmoded” election equipment. (Dkt. 171, p. 171:2-6; PX 10, at 6-7, 19, 27, 34, 36.) Indeed, in addition to a $700 million general fund, the County is armed with a $1.2 billion budget. (Dkt. 215, ¶31; PX 139.) In fact, the County had sufficient resources that it could have paid cash for the Diebold system, rather than finance the acquisition. (Dkt. 169, p. 107:4-11.) Finally, financing for touch screen voting equipment was readily available and inexpensive. (Dkt. 169, p. 107:15-108:5.)
Furthermore, the purchase price of the touch screen system does not account for cost savings that the County would enjoy by using a paperless system. Pasco County determined that purchasing the ES&S touch screen system was not going to “put Pasco [County] in the poorhouse.” (PX 99; Dkt. 167, p. 141:12-142:3.) The initial outlay of funds to acquire the ES&S touch screen voting system was offset by the long-term savings Pasco County would achieve from no longer having to print expensive paper ballots. (Dkt. 167, p. 149:14-150:22.) Similarly, Georgia performed an extensive cost analysis for twelve years into the future, and concluded that the touch screen system was a “better value . . . because the longterm costs were minimal compared to the escalating cost [for an] optical scan
8 It would cost Appellant far less, only $210,000, to implement the trial court’s order to place one touch screen with audio ballot in 20% of the polling places in
16

system.” (Dkt. 167, p. 97:10-98:22.) The evidence demonstrated that Duval County would have saved as much as $400,000 per year in ballot printing costs alone by implementing a countywide touch screen system. (PX 13, at 21:12-24; PX 14, at 174:4-175:2.)
STANDARDS OF REVIEW
This Court must defer to the trial court’s findings of fact if they are “‘plausible in light of the record viewed in its entirety. . . . Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous.’” Solomon v. Liberty County Comm’rs, 221 F.3d 1218, 1226-27 (11th Cir. 2000) (quoting Anderson v. City of Bessemer City, 470 U.S. 564, 57374, 105 S. Ct. 1504, 1511 (1985)). In reviewing these factual findings, this Court must make all credibility choices in favor of the fact-finder's choice, in light of the record as a whole. Meek v. Metro. Dade County, 985 F.2d 1471, 1481 (11th Cir. 1993).
This Court reviews the trial court’s conclusions of law de novo. See Kidder, Peabody & Co. v. Brandt, 131 F.3d 1001, 1003 (11th Cir. 1997); SunAm. Corp. v. Sun Life Assurance Co. of Canada, 77 F.3d 1325, 1333 (11th Cir. 1996).
Duval County. (Dkt. 219, p. 15.)
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This Court reviews the trial court’s order granting declaratory and injunctive relief for a “clear error of judgment.” SunAm., 77 F.3d at 1333 (internal citations omitted).
SUMMARY OF ARGUMENT
Appellant’s appeal is based upon arguments that were properly rejected by the trial court on no less than three separate occasions.
First, Appellant continues to argue that the ADA does not apply to voting. This argument ignores the legislative history of the ADA, and applicable federal case law, including the recent pronouncements of the United States Supreme Court in Tennessee v. Lane, 124 S. Ct. 1978, 1989 (2004). The ADA applies to voting programs generally and the Appellant’s purchase of new voting systems for Duval County specifically.
Second, the Appellant’s arguments that (1) he proposed an acceptable alternative for disabled voters in the County, (2) the purchase that Appellees seek would impose an undue administrative and financial burden, and (3) disabled voters are able to cast their votes – albeit in burdensome, discriminatory and in some cases humiliating way – are not only unsupported factual contentions that the trial court rejected in weighing the evidence, these arguments are immaterial as a matter of law under the applicable regulations.
18

Third, the trial court’s factual conclusions that touch screen voting is “feasible” and a “readily accessible” facility are supported by credible trial evidence and thus entitled to due deference by this Court.
Fourth, Appellant’s contention that HAVA, 42 U.S.C. § 15481, renders this case moot ignores not only the plain language of HAVA but also the position of the United States Department of Justice.
Finally, Appellant’s legal challenges to the trial court’s injunction are legally unsupportable.
The record is crystal clear that Appellant purchased an inaccessible optical scan voting system at a time when numerous options to meet the needs of disabled voters existed. Duval County’s voting system imposes significant (and unnecessary) burdens on disabled voters that are not faced by non-disabled voters. This voting system is not – as the ADA demands – readily accessible to the maximum extent feasible. The trial court committed no error in reaching this conclusion.
ARGUMENT
I. THE TRIAL COURT PROPERLY CONCLUDED THAT THE ADA APPLIES TO THIS CASE
Appellant first asserts that the trial court erred as a matter of law when it held that Appellant violated the ADA (Dkt. 215, p. 17-20) because the ADA does
19

not apply to the impairment of disabled voters’ rights when they are forced to vote using a more burdensome and discriminatory voting process than non-disabled voters do. (Br. 27-31.) Unfortunately for Appellant, the trial court’s application of the ADA and its implementing regulations comports with Supreme Court and Eleventh Circuit precedent. Shotz v. Cates, 256 F.3d 1077 (11th Cir. 2001); see also Tennessee v. Lane, 124 S. Ct. at 1989 (noting court findings under the ADA of a “pattern of unequal treatment in the administration of a wide range of public services, programs, and activities, including...voting....”) (emphasis added) (citations omitted).
In Shotz, plaintiffs with physical impairments brought suit against the chief judge of a state court and the county sheriff for failing to remove barriers that would make the courthouse accessible and usable by individuals with disabilities. 256 F.3d at 1079. This Court held that a “violation of Title II . . . [of the ADA] does not occur only when a disabled person is completely prevented from enjoying a service, program or activity.” 256 F.3d at 1080. Therefore, the court explained that if wheelchair ramps leading to the courthouse are steep or the bathrooms are not usable, then the trial is not “‘readily accessible,’ regardless whether the disabled person manages in some fashion to attend the trial.” Id.
Thus, this Court has already effectively rejected Appellant’s contention that there can be no ADA violation because Appellees somehow managed to vote using
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Duval County’s optical scan system. (Br. 32-33.) Shotz deems irrelevant to
Appellees’ ADA claim that the Appellees somehow manage to vote. The ADA is
violated because the process of voting is not readily accessible to Appellees as they
are forced to vote in a manner rife with burdens not faced by non-disabled voters.
(Dkt. 215, p. 2-3.) Other federal courts join the trial court’s application of the
ADA to voting. For example, in National Organization on Disability v.
Tartaglione, No. 01-1923, 2001 U.S. Dist. LEXIS 16731 (E.D. Pa. Oct. 11, 2001),
disabled plaintiffs alleged that the City of Philadelphia violated the ADA and
Rehabilitation Act when it entered into a contract for new voting equipment that
did not include accessible voting machines. Id. at *5-6. Plaintiffs challenged the
purchase of new voting equipment because they were forced to vote using third-
party assistance in a manner that imposed burdens upon them not placed upon non-
disabled voters. Id. at *11-*13. The Court denied the City’s motion to dismiss and
held:
Defendants’ argument that Plaintiffs cannot state claims for relief [under the ADA and Rehabilitation Act] because Plaintiffs have not been prevented from voting mischaracterizes the Complaint . . . . Plaintiffs claim to have been discriminated against in the process of voting because they are not afforded the same opportunity to participate in the voting process as non-disabled voters. The Complaint alleges that assisted voting . . . is substantially different from, more burdensome than, and more intrusive than the voting process utilized by non-disabled voters . . . . The Complaint alleges that the . . . Plaintiffs . . . cannot participate in the program or benefit of voting in the same
21

manner as other voters but, instead, must participate in a more burdensome process . . . [T]he Court concludes that the Complaint states a claim for discrimination in the process of voting. . . . Id.; accord Troiano v. LePore, No. 03-80097-Civ-Middlebrooks/Johnson, slip op. at 14 (S.D. Fla. May 1, 2003).9 Finally, the federal government agrees that the ADA applies to the voting process. The Department of Justice has stated: “If reasonable modifications were available that would allow blind or visually impaired voters to cast their ballots without assistance and that would assure ballot secrecy, the plain import of the ADA and its implementing regulations would require the state to adopt those modifications.” (Dkt. 58, Ex. 2, p. 11-12 (emphasis added).) Appellant’s reliance on Nelson v. Miller, 170 F.3d 641 (6th Cir. 1999), is misplaced for multiple reasons. (Br. 27.) Most importantly, the Sixth Circuit’s affirmance of the district court’s dismissal was “so on grounds different from those advanced [by the district court] below.” 170 F.3d at 645. Contrary to Appellant’s statements, the Sixth Circuit did not embrace the district court’s reasoning on which Appellant heavily relies, i.e., that the Michigan voter assistance statute
9 The district court later granted summary judgment because the record demonstrated that Palm Beach County had used Sequoia touch screen machines with audio ballots in each of the seven elections since November 2002, “with at least one machine available in each precinct”; thus the plaintiffs could demonstrate “injury in fact.” Slip op. at 8, 10. By contrast, in Duval County, no such machines have been purchased or used anywhere – much less in every precinct.
22

complied with the ADA, compare id. at 644 with Br. 28; that the ADA did not create a secret right to vote, compare 170 F.3d at 645 with Br. 29; and that Congress did not intend for the ADA to displace the Federal Voting Rights Act and Voting Accessibility for the Elderly and Handicapped Act, compare 170 F.3d at 644 with Br. 28. Instead, the Sixth Circuit framed the issue as whether the Michigan Constitution “requires more secrecy than the Michigan legislature has provided for in [the Michigan voter assistance statute].” 170 F.3d at 650. The Sixth Circuit observed that the Michigan Supreme Court could reasonably answer that question either way. Given these two plausible interpretations, the Sixth Circuit – for reasons completely unrelated to the ADA – picked the interpretation that held the voter assistance statute constitutional. Id.
In addition, the claims in Nelson were factually distinct from the claims here. The plaintiffs there did not challenge as violative of the ADA the defendant’s alteration of a facility. Instead, the Nelson plaintiffs sought an affirmative injunction forcing the State to modify a facility, i.e., purchase new voting equipment. 170 F.3d at 644. Thus, Nelson did not involve the affirmative obligation and stringent standard that Appellant faces here.10 Finally, Nelson did
10 When a public entity alters an existing “facility,” it must make the altered facility readily accessible to the “maximum extent feasible.” 28 C.F.R. § 35.151(b); see infra p. 25-30.
23

not involve a claim under the ADA’s generic proscription against discrimination. For all these reasons, Nelson is inapposite. Accord Troiano v. LePore, No. 0380097-Civ-Middlebrooks/Johnson, slip op. at 12 (S.D. Fla. May 1, 2003) (holding Nelson to be “readily distinguishable,” because “the complaint in Nelson was single-issue in scope and narrowly aimed at plaintiffs’ allegedly being denied access, because of their disability, to the so-called ‘secret voting program’ mandated by the Michigan Constitution”).
II. THE COURT PROPERLY FOUND THAT THE VOTING SYSTEM IN DUVAL COUNTY IS NOT READILY ACCESSIBLE TO AND USABLE BY DISABLED VOTERS TO THE MAXIMUM EXTENT FEASIBLE
The trial court concluded that “[t]he Diebold optical scan voting system purchased by Duval County is not readily accessible to visually or manually impaired voters.” (Dkt. 215, p. 17.) Indeed, Appellant himself admitted as much at trial. (See supra p. 8-9.) Specifically, Duval County’s optical scan system requires disabled voters to vote in a materially different manner than the way nondisabled voters vote. (Dkt. 169, p. 154:13-155:19.)
A. The Trial Court Applied The Proper ADA Standard To Appellant’s Conduct
The ADA’s implementing regulations distinguish between existing facilities and those constructed or altered after January 26, 1992. 28 C.F.R. §§ 35.150 and
24

151 (2003). The regulations do not require public entities affirmatively to make
changes to existing facilities. Shotz, 256 F.3d at 1080. However, the regulations
do impose a “heightened standard” of accessibility when public entities choose to
alter existing facilities or construct new ones. “When a public entity independently
decides to alter a facility, it ‘shall, to the maximum extent feasible, be altered in
such a manner that the altered portion of the facility is readily accessible to and
usable by individuals with disabilities.’” Kinney v. Yerusalim, 9 F.3d 1067, 1071
(3d Cir. 1993) (quoting 28 C.F.R. § 35.151(b)); see also Ass’n for Disabled Ams. v.
City of Orlando, 153 F. Supp. 2d 1310, 1317 (M.D. Fla. 2001). This standard is
“substantially more stringent” than the standard that applies to existing facilities.
Kinney, 9 F.3d at 1071. These stricter regulations require that alterations be
completed in a nondiscriminatory manner that provides full access to all qualified
voters.11 Id. at 1073. Thus, the trial court properly analyzed Appellees’ ADA
claims under the heightened standard of § 35.151(b), which obligated Appellant to
11 Indeed, Congress recognized that altered or new facilities presented “an immediate opportunity to provide full accessibility.” Kinney, 9 F.3d at 1074. Accordingly, it required such changes to be made free of discrimination and to be usable by all. Id. at 1073. Congress also appreciated the importance of implementing advances in technology. The House Committee made it clear that “technological advances can be expected to further advance options for making meaningful and effective opportunities available.” H.R. Rep. No. 101-485 (II), at 108 (1990), reprinted in 1990 U.S.C.C.A.N. 303, 391. That Committee intended accommodations and services to “keep pace with the rapidly changing technology of the times.” Id.
25

make Duval County’s voting system accessible to the maximum extent feasible at the time he purchased the optical scan system. (Dkt. 215, p. 16-17.)
Appellant proffers several “excuses” in an attempt to justify his decision to purchase a wholly inaccessible voting system. For example, Appellant argues that there were certain features of the Diebold optical scan system he preferred over the ES&S optical scan system and that he did not like the “boot up” process of the ES&S touch screen.12 (Br. 15-20.) Similarly, Appellant places great weight on the recommendations of the Duval County Task Force and the “research” of the staff of the Supervisor of Elections’ office. (Br. 12-13, 15-18.) Appellant ignores that all of these purported excuses are legally irrelevant in light of the heightened standard imposed by § 35.151(b).
Indeed, the record demonstrates that neither the Duval County Task Force nor the Supervisor of Elections’ office considered the admittedly “specific needs” of disabled voters when choosing the optical scan system, let alone ensured that the voting system Appellant procured was accessible to the maximum extent feasible, as compliance with §35.151(b) obligated them to do. (PX 74; PX 150, at 38:1317.)
12 While Appellant did compare different optical scan voting systems, he admitted that he made no comparison of touch screen systems. (Dkt. 169, p. 150:12-151:6; Dkt. 170, p. 117:14-118:5.)
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Appellant admitted that despite the fact he received requests to provide accessible voting equipment, he did no real analysis of what technology existed to meet the needs of disabled voters, and never sent out a request for proposals to investigate what technology existed. (Dkt. 169, p. 127:7-129:15, 145:1-5; Dkt. 170, p. 32:1-5; Dkt. 166, p. 63:14-64:18, 102:11-20, 115:13-117:25; Dkt. 167, p. 25:15-27:2; Dkt. 170, p. 11:5-15:10.) Similarly, the chairman of the Duval County Task Force admitted that the Task Force’s conclusions were not based on “a detailed investigation” of issues faced by disabled voters. (Dkt. 171, p. 166:8-15.) Instead, the chairman testified that despite receiving testimony about the problems encountered by disabled voters, the Task Force did not regard the problems faced by disabled voters to be among the “top sixteen” issues that needed to be addressed. (Dkt. 171, p. 151:10-152:13.)
For similar reasons, Appellant’s argument that his “plan” to place three touch screen voting machines with audio ballot in the Supervisor of Elections’ downtown office does not satisfy the heightened standard of § 35.151(b). (Dkt. 215, p. 18-19.) This “plan” fails to “satisfy the accessibility standard” because “Duval County is a geographically large county,” and would “requir[e] Plaintiffs, who already lack the mobility that non-disabled voters have, to travel downtown” instead of voting in their neighborhood polling places. (Dkt. 215, p. 19.) As the record demonstrates, this plan would require the tens-of-thousands of disabled
27

voters in the county to travel, up to five hours, on election day (Dkt. 215, ¶25; Dkt. 166, p. 62:10-63:1, 99:20-100:21; Dkt. 167, p. 22:21-23:9), through one of the nation’s largest counties (Dkt. 169, p. 162:10-16) to Appellant’s 10,000 square foot office (id. 179:4-23) to cast their votes on these three machines. (Id. 160:22161:13.)
Appellant admitted that in formulating this “plan,” he did no analysis of the travel issues faced by disabled voters in Duval County. (Dkt. 169, p. 164:19167:10.) He has “no idea how long it takes for a visually or manually impaired person to travel on disabled transportation in Duval County.” (Id. 165:7-10, 166:15-19.) Nor does he have any “knowledge regarding the reliability of ParaTransit in Duval County.” (Dkt. 169, p. 165:11-13, 167:11-13.)
Appellant’s argument that this “plan” was “reasonable” again ignores the standards imposed by the ADA. (Br. 50-52.) The applicable standard has nothing to do with reasonableness. To the contrary, the ADA required that Duval County’s voting system be readily accessible and usable by disabled voters to the maximum extent feasible at the time the County purchased the system in October 2002. A plan to one day comply with the ADA does not constitute compliance at all.13
13 Appellant’s plea for leniency on the grounds that the lack of certification of Diebold is not “attributable to [Appellant]” is disingenuous at best. (Br. 51.) As the trial court aptly described, “[Appellant] is solely responsible for having selected and purchased machines that had not yet been certified when other
28

Kinney, 9 F.3d at 1072 (city’s transition plan for the installation of curb cuts on existing streets did not negate city’s obligation to provide curb cuts whenever it undertook to construct new streets or alter existing ones); Engle v. Gallas, No. 933324, 1994 U.S. Dist. LEXIS 7935, at *9 (E.D. Pa. June 10, 1994) (unimplemented plan is insufficient to remedy an ADA violation because “[g]ood intentions, in this regard, are of little help to one who must endure the hardship of a disability”).
B. The Trial Court Properly Concluded That Voting Equipment Is A Facility Under the ADA
The threshold inquiry facing the trial court was whether the voting systems that Appellant purchased in 2002 constituted a “facility” under the ADA implementing regulations. (Dkt. 215, p. 17.) The trial court concluded that “voting equipment plainly falls within the expansive definition of ‘facility’ contained in the regulations….,” because a voting machine is equipment, and equipment is, on its face, included in the definition of “facility” in the regulations. (Dkt. 215, p. 17; Dkt. 124, p. 14, n.5; Dkt. 42, p. 25, n.16.)
The trial court’s ruling is firmly grounded in the plain language of the regulations. A “facility” is defined in part as “all or any portion of . . . equipment . . . .” 28 C.F.R. § 35.104 (2003) (emphasis added). (See Dkt. 215, p. 17; Dkt. 42,
machines with similar capabilities had been certified by the State of Florida.” (Dkt. 232, p. 3, n. 1.)
29

p. 25 n.16; Dkt. 124, p. 14 n.5.) Every court that has addressed this issue has held that voting machines constitute “facilities” under the ADA. See Troiano v. LePore, No. 03-80097-Civ-Middlebrooks/Johnson, slip op. at 9-11 (S.D. Fla. May 1, 2003); Tartaglione, 2001 U.S. Dist. LEXIS 16731, at *17-*18. Thus, this is not a “novel” conclusion, as Appellant advocates. (Br. 37-38.) Moreover, Appellant’s contention that facilities are “limited to elements that are permanently made part of a physical structure” (Br. 39) is neither supported by any of the cases he cites nor consistent with the plain language of the regulations.14 28 C.F.R. § 35.104; Kinney, 9 F.3d at 1071.
C. It was Feasible for Appellant to Procure an Accessible Voting System
There is no dispute that disabled voters cannot vote using the optical scan voting system in the same or similar manner as non-disabled voters can, and that other, readily accessible, options were available at the time Appellant chose to procure the optical scan system. (See supra p. 8-17.) Thus, as the trial court properly framed the issue, “[i]f it was feasible for Duval County to purchase a readily accessible system, then the plaintiffs rights under the ADA … were
14 Appellant’s assertion that “[e]very reported case under § 35.151(b) relates to an alteration to an element made part of a permanent physical structure,” ignores Tartaglione. Appellant also appears to have ignored the word “equipment”
30

violated.” (Dkt. 215, p. 17.) The record evidence clearly supports the trial court’s answer to this question in the affirmative that: “[a]t the time the City purchased the optical scan system, it was technologically and financially feasible” for Appellant to have provided an accessible touch screen voting system instead. (Dkt. 215, p. 17-18.)
Appellant does not contest that § 35.151(b) requires that alterations to facilities must be readily accessible to and usable by people with disabilities to the maximum extent feasible. (Br. 42.) Instead, Appellant argues that the trial court imposed too broad a standard of feasibility that resulted in the “transforma[tion of] this regulatory limitation into the judicial compulsion of a flawed voting system without regard to its usability or cost.” (Br. 43 (emphasis in original).) Appellant argues that “alterations need not be made if they exceed existing technical ability, involve unreasonable costs, or impose risks or burdens that are disproportionate to the accessible feature sought.” (Id. at 42.) This standard, which contradicts the plain language of § 35.151(b), lacks any legal support. Moreover, as discussed below, the trial court’s decision clearly took into account both the usability and cost of accessible voting equipment, and the record clearly supports the trial
contained in the regulation’s definition of “facilities.” 28 C.F.R. § 35.104. (Br. 39.)
31

court’s conclusion that procuring accessible voting machines was both technologically and financially feasible.
1. Touch screens were technologically feasible Appellant challenges the trial court’s conclusion that it was technologically feasible, “[a]t the time the City purchased the optical scan system,” to provide an accessible touch screen voting system. (Dkt. 215, p. 17.) Specifically, Appellant contends the trial court “clearly erred” in this conclusion because (1) the court relied on state certification “alone,” and (2) the ES&S touch screen “resulted in the most calamitous election experiences in Florida in 2002.” (Br. 43.) The record supports neither of these assertions, and, given that the record demonstrates the trial court’s findings were “plausible,” this Court is constrained to defer to that conclusion. Solomon, 221 F.3d at 1226-27. First, the trial evidence clearly supports the trial court’s finding that certification by Florida means a voting system “has been tested to the highest standards of accuracy and reliability and can be relied upon to be dependable and to be a fairly good investment in terms of durability.” (Dkt. 215, ¶11.) Indeed, this was the uncontroverted testimony of Paul Craft, Chief of the Florida Bureau of Voting System Certification, who testified at length about the stringent certification process, and noted, in particular, that Florida’s testing is far more
32

stringent than that employed elsewhere. (Dkt. 168, p. 15:8-16, 19:9-21:2; PX 142; see also Dkt. 168, p. 89:2-16, 103:20-105:24.) Assistant Duval County Supervisor of Elections, Dick Carlberg, conceded that Florida certification is a “pretty solid standard.” (Dkt. 172, p. 90:16-18.)
Although there is nothing amiss about resting a technologically feasible finding solely on the fact that the system enjoyed certification by the State of Florida, that certification is not the only factual support for technological feasibility. The trial court also based its finding on the evidence that “other jurisdictions within Florida and outside of Florida provided accessible equipment around the same time. . . .” (Dkt. 215, p. 18.) Indeed, the record is replete with evidence demonstrating that touch screen technology was not only certified, but was used successfully throughout Florida and the country at the very same time, and even before, Appellant decided to purchase the optical scan system. Appellant admitted that 257 counties across the country used touch screen systems as of 2001, and as early as February 2001, Appellant himself advocated that the county take immediate steps to move to a touch screen system. (Dkt. 169, p. 183:4-8; PX 11, at 10; Dkt. 170, p. 113:21-114:19; PX 123, at 2-4.) Moreover, Appellant concedes that at least fifteen15 counties in Florida purchased and used touch screen
15 Appellant tries to make much out of the trial court’s conclusion that twenty-nine counties use touch screen technology. There is evidence in the record supporting
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voting systems at the same time Appellant purchased the optical scan system. (Br. 49.) Finally, the record shows that the use of touch screen voting systems has grown exponentially, with “in the neighborhood now of 500 counties” using touch screen technology across the country. (Dkt. 170, p. 142:9-14.) That some of these counties use voting systems that were not certified in Florida (Br. 49-50), does not render their usage “irrelevant” or “inapt” for a determination of feasibility. Instead, it only strengthens the notion that touch screen technology was widespread and Appellant had multiple options for procuring an accessible system.
Similarly, the record flatly contradicts Appellant’s contention that the trial court erred as to technological feasibility because the ES&S system “caused” problems during the September 2002 primaries. (Br. 43-44.) First, the record demonstrates that any problems encountered in Broward and Dade Counties during the 2002 primary election “stemmed from not permitting sufficient time for the large, multilingual ballots to boot up on the ES&S machines and logistical problems such as getting all of the machines to precincts and poll worker training,” as opposed to any machine malfunction. (Dkt. 215, ¶43.) Indeed, all of the evidence demonstrates that the problems arose from mismanagement by the
this number. (PX 135, PX 136, PX 137.) However, even if the number of counties using touch screens is fifteen instead of twenty-nine, Appellant fails to demonstrate how this difference undermines the conclusion that touch screens were technologically feasible.
34

elections supervisors in those counties, which has been fully corrected. (Dkt. 168, p. 76:6-11.) The Chief of the Florida Bureau of Voting System Certification, the only person to testify with first-hand knowledge of the situation, stated that “the problems [in Dade County] stemmed primarily from failure to allow enough time to open the precincts, [and] failure to understand how much time that would take.” (Dkt. 215, ¶43; Dkt. 168, p. 74:5-17; see also id. 74:18-75:24.) He explained that the problems in Broward County were attributable to “logistics,” “problems with training the poll workers,” and problems “getting all the machines and all the supporting devices to the precincts.” (Dkt. 215, ¶43; Dkt. 168, p. 75:13-17.) Tellingly, Appellant’s argument even contradicts his own deposition testimony that the problems in Broward were attributable to the mismanagement of the Broward County elections supervisor, and that Dade Counties’ “issue” was with the boot-up time of the machines, alone. (Dkt. 170, p. 25:5-24; PX 150, at 86:4-20.)16 Finally, Appellant’s contention on this issue is belied by the fact that the ES&S system was not decertified following the 2002 primary, and indeed remained
16 Appellant’s description of Mr. Dickson’s testimony about Miami Dade and Broward counties is incorrect. Mr. Dickson clearly testified, “My study and examination of the problems concurred with Mr. Craft. . . . The problems were election administratively related, poll worker training.” (Dkt. 171, p. 14:2-7.)
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certified and in use in these same counties subsequent to the 2002 primary. (Dkt. 169, p. 141:21-142:1.)17
2. Appellant could have afforded to place one accessible voting system in each polling place
The undisputed evidence established that it would have cost Duval County approximately $1 million to install a single touch screen voting machine in each polling place in the County. (Dkt. 215, ¶30.) The trial court found this cost to be feasible based on “the overall size of Duval County’s resources” (Dkt. 215, p. 18), and this conclusion enjoys the support of credible trial evidence.18
First, the appropriate measure for this determination is all of the county’s resources, not just the budget of the Supervisor of Elections’ office as Appellant argues. Fisher v. Okla. Health Care Auth., 335 F.3d 1175, 1182-83 (10th Cir. 2003) (consideration of all resources available to state and state’s fiscal problem); Pascuiti v. New York Yankees, 87 F. Supp. 2d 221, 224 (S.D.N.Y. 1999) (assessing not only the budget of the Yankees, but also the budget of New York City Parks Department and all available resources). The County’s fiscal year 2002-2003
17 Appellant was forced to admit that he “never questioned the accuracy of [the ES&S touch screen],” but rather his sole concern “was with the cartridge as far as uploading and downloading….” (Dkt. 170, p. 117:3-118:5.) He also admitted that “ES&S… would work.” (Dkt. 169, p. 186:1-6.) 18 Again, “undue financial burden” is not a defense to complying with § 35.151.
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annual budget was $1,214,406,456, of which $749,954,179 represented the County’s general fund. (PX 10, at 6, 36; PX 139.) This would make the purchase .0008% and .0013% of those budgets, respectively. Second, Appellant admitted that the county had the money and that financing for touch screen voting equipment was readily available and inexpensive. (Dkt. 169, p. 107:1-108:5.)
Third, the undisputed fact that numerous other jurisdictions have purchased touch screen voting systems further supports the trial court’s conclusion and eviscerates Appellant’s claim of financial infeasibility. (Dkt. 215, p. 18 (“other jurisdictions’ (both in Florida and around the country) acquisition of touch screen voting systems indicates the financial feasibility of such a system”).) Appellant admits that other Florida counties have already implemented touch screen voting systems. (PX 150, at 23:4-17.) Most of these Florida counties have provided touch screens for all voters, not just one machine per polling place. (See supra p. 14-15.) Even this expenditure, as described by Mr. Browning, Supervisor of Elections for Pasco County, Florida, did not put these jurisdictions “in the poorhouse.”19 (Dkt. 167, p. 139:2-5, 15-21.) Appellant put forth no evidence
19 This evidence refutes Appellant’s unsupported assertion that the unfunded Florida accessibility legislation is “a tacit acknowledgment by the Florida legislature itself that this specialized voting equipment is economic infeasibility without state financial assistance to the counties.” (Br. 48.) Appellant also omits the fact that the Florida Legislature provided Duval County $1,005,000 to procure
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demonstrating that Duval had less resources than these other Florida counties. Indeed, the record shows that counties of comparable size to Duval County, such as Hillsborough County, were able to implement touch screen voting systems at the same time Appellant chose to implement the inaccessible optical scan system. (Dkt. 169, p. 185:3-9, 20-22.)
Finally, all of Appellant’s arguments about financial burden are irrelevant, as Appellant did no analysis of the cost of providing accessible voting technology. Appellant never evaluated the cost to place one touch screen machine in each polling place in Duval County. (Dkt. 215, ¶30; Dkt. 170, p. 25:25-26:3; Dkt. 172, p. 42:5-11, 80:6-9, 91:20-92:10.) He never considered a public bond offering or borrowing the funds necessary to place one accessible voting machine in each polling place. (Dkt. 170, p. 32:6-16.)
Given all of this evidence, the trial court’s finding that it was financially feasible for the County to have purchased accessible touch screen technology was “plausible” and thus not “clearly erroneous.” Solomon, 221 F.3d at 1226-27.20
a new voting system. (Dkt. 215, ¶22; PX 3; Dkt. 169, p. 104:20-25, 107:4-11; PX 86, at 1; Dkt. 169, p. 103:14-22.) 20 Appellant cites what he refers to as “[p]ersuasive ADA regulations [that] state that where the cost of a specific alteration exceeds the total cost of an overall alteration by 20%, it is disproportionate and not required.” (Br. 47-48.) The regulation alluded to refers to a specific regulation regarding elevators promulgated
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D. The Trial Court Properly Concluded That Appellant Violated the ADA by Failing to Provide Touch Screen Voting Machines for Manually Impaired Voters
The record similarly supports the trial court’s determination that Appellant violated the ADA by failing to provide a touch screen voting system, because such a system “is accessible to at least some manually impaired voters.” (Dkt. 215, p. 19-20.) Indeed, Plaintiff Bell, who has no arms or legs, demonstrated for the trial court how he could vote on a touch screen system by using his mouth stick. (Dkt. 166, p. 93:6-96:2.)
Appellant attempts to confuse the record by arguing that “[n]o voting system has ever been certified in Florida for use by persons with manual disabilities including the use of mouth sticks.” (Br. 52.) This is nothing more than a red herring. As the trial court concluded, “[a] mouth stick would not have to be certified because mouth sticks are available to the general public.” (Dkt. 215, ¶19.) Indeed Paul Craft, Chief of the Bureau of Voting System Certification, specifically testified that there is no hardware certification requirement for “a mouth stick,” or any other items that a manually impaired person could use to press the touch screen and cast a ballot. (Dkt. 168, p. 68:20-69:11.) A mouth stick is something that is maintained by the disabled voter and used in every day activities.
under Title III of the ADA. In contrast, the DOJ has promulgated no similar regulation for alterations under Title II.
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It is not a part of any voting machine and is not something that is provided by the polling place. (Id. 145:24-147:7.) Indeed, a manually impaired person can use a variety of items to operate a touch screen, including other body parts, and is not restricted to voting only by the use of a mouth stick. (Id. 145:17-20.) This, in and of itself, demonstrates that the trial court properly concluded touch screen voting systems available in Florida are accessible, to the maximum extent feasible, to at least some manually impaired voters. (Dkt. 215, p. 19.)
E. The Trial Court’s Finding on Appellees’ “Effective Communication” Claim Is Not Inconsistent With The Court’s Finding That the Optical Scan System Is Not Accessible to the Maximum Extent Feasible
Appellant challenges the trial court’s conclusion that he violated 28 C.F.R. § 35.151(b) on the ground that it is inconsistent with the trial court’s conclusion that Appellant did not violate the “effective communications” requirements of 28 C.F.R. § 35.160. (Br. 32-36.) This argument, however, is nothing more than a repackaging of Appellant’s contention that no ADA violation exists because Appellees were able to vote (regardless of the burdens). Given the different focus and obligations provided under these two regulations, the trial court neither committed a “‘clear error in judgment’” nor “applied an incorrect legal standard.” SunAm., 77 F.3d at 1333 (citation omitted).
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28 C.F.R. § 35.160 requires that a public entity provide disabled persons with auxiliary aids and services to ensure that the person’s communications with the public entity are “as effective as communications with others” and that the individual is afforded “an equal opportunity to participate in, and enjoy the benefits of, a service, program, or activity conducted by the public entity.” 28 C.F.R. § 35.160(a)(b) (2003). Unlike Section 35.151 and the generic discrimination prohibition of the ADA, Section 35.160 does not govern the process of voting or require that the process by which a disabled voter casts his/her ballot be free from burdens that are not imposed on non-disabled voters. Instead, Section 35.160 requires that the voter be able to communicate his/her vote, and, in essence, seeks only to ensure that the voter was able to vote.
Thus, the trial court’s analysis of the “effective communication” claim properly did not consider whether Appellees are forced to vote in a more burdensome manner than non-disabled voters. Instead, those issues are governed by 28 C.F.R. § 35.151(b) and the generic discrimination prohibition of the ADA. Thus, the mere fact that Appellant may have satisfied the requirements of Section 35.160 says nothing about whether Appellant complied with his other ADA obligations, which the record clearly demonstrates he did not.21
21 Appellant repeatedly mischaracterizes the trial court’s orders in an attempt to make his argument more credible. For example, he argues that “[I]n its October
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F. A 1993 DOJ Letter of Findings Does Not Undermine the Trial Court’s Ruling
Appellant claims the trial court erred by not adopting a 1993 Department of
Justice Letter of Findings (“Letter”) that Appellant claims “specifically held that
Florida’s statutory program of third party assistance meets ADA standards.” (Br.
34-35.) To the contrary, the trial court committed no “clear error in judgment”
when it concluded that “[Appellant’s] interpretation of the Letter is overly broad.”
(Dkt. 124, p. 21; see SunAm., 77 F.3d at 1333.)
First, the Letter was written at a time when accessible voting systems did not
exist. In reviewing Pinellas County’s election practices eleven years ago, the DOJ
concluded that, because no alternative for a blind voter to cast a ballot existed,
third-party assisted voting allowed blind voters to participate in and enjoy the
benefits of a service, program, or activity conducted by a public entity. (Dkt. 58,
Ex. 1.) In a portion of the Letter notably absent from Appellant’s brief, the DOJ
found that “electronic systems of voting by telephone that meet the security
16, 2002 dismissal order, the trial court held that neither the ADA nor the Florida constitutional right to a direct and secret vote is violated by third party assistance provided in Florida, given the substantial statutory protections for [sic] right.” (Br. 33.) To the contrary, no court, not even Nelson, has ever held that a county’s purchase of a new inaccessible voting system when other accessible systems were available comports with the ADA. The trial court repeatedly upheld Appellees’ ADA claims that alleged Duval County’s voting system imposed greater burdens on disabled voters than it did on non-disabled voters. (Dkt. 42, p. 29-30, 37-38; Dkt. 124, p. 12, 15; Dkt. 215, p. 18-19, 27-28.)
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requirements necessary for casting ballots are not currently available.” (Id. (emphasis added).) Consistent with this acknowledgement, as technology has changed so have the views of the DOJ.
More recently, as noted above, in its amicus curiae brief in Nelson, the DOJ stated: “If reasonable modifications were available that would allow blind or visually impaired voters to cast their ballots without assistance and that would assure ballot secrecy, the plain import of the ADA and its implementing regulations would require the state to adopt those modifications.” (Dkt. 58, Ex. 2, p. 11-12 (emphasis added).) In 2002, electronic voting systems did exist and were readily available; thus Appellant’s refusal to purchase these machines constitutes an ADA violation. (See also Dkt. 193, Hrg. Ex. A (encouraging jurisdictions to implement disability requirements of HAVA as soon as possible “to help ensure that disabled voters are able to fully participate in the election process to the maximum extent possible”).)
Second, the trial court properly concluded that the 1993 Letter “is not entitled to deference under Chevron U.S.A., Inc. v. Natural Res. Defense Council, Inc., 529 U.S. 576 (1984).” (Dkt. 124, p. 21-22.) This opinion letter is neither binding nor controlling authority. Christensen v. Harris County, 529 U.S. 576, 587, 120 S. Ct. 1655, 1662 (2000); Gonzalez v. Reno, 215 F.3d 1243, 1245 (11th Cir. 2000).
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Third, as the trial court observed, “[T]he Letter only purports to evaluate whether the Pinellas County Supervisor of Elections provided equally effective communications to blind voters. Thus, to the extent that the Letter is relevant to this case, its relevance would appear limited to Plaintiffs’ [Effective Communication] claims under 28 C.F.R. § 35.160.” (Dkt. 124, p. 21.) Thus, whatever its accuracy or weight, the Letter has no bearing on Appellees’ claims under the heightened altered facilities standard of 28 C.F.R. § 35.151(b).
III. HAVA DOES NOT RENDER THIS LAWSUIT MOOT The trial court ruled that HAVA does not render this case moot because
“HAVA makes clear that it is not to be construed as superseding or limiting the application of the ADA….” (Dkt. 215, p. 28 n.10; Dkt. 124, p. 20, n.9.) Appellant’s argument to the contrary (Br. 54-55) ignores the plain language of the statute. On its face, HAVA explicitly provides that “nothing in this Act may be construed to … supercede, restrict, or limit the application of …. The Americans With Disabilities Act of 1990 (42 U.S.C. §§ 12101 et seq.).” 42 U.S.C. §15545(a)(5) (2002). Appellant even admitted at trial that he is “not suggesting that [his] plans under HAVA somehow excuse [him] from complying with the Americans With Disabilities Act.” (Dkt. 169, p. 73:24-74:2.)
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As the provisions of HAVA do nothing to remedy Appellant’s past and current violations of the ADA, Appellant’s contention that “no ‘meaningful relief’ exists in this lawsuit beyond what Congress already had mandated” in HAVA is without merit. (Br. 55.) HAVA does not alter the fact that without implementation of the trial court’s order, disabled citizens in Duval County will be forced to vote in the upcoming 2004 August primary election, the November 2004 presidential election, and all elections thereafter in a discriminatory manner.
For the same reasons, Appellant’s contention that “HAVA severely undermines the trial court’s conclusion that the ADA is applicable” is without merit. (Br. 31.) There is no inconsistency with the Court’s declaration that Appellant violated the ADA and must provide accessible voting equipment now, and HAVA’s requirement that jurisdictions provide accessible voting equipment no later than January 1, 2006. (See Br. 31.) The trial court’s order provides a remedy for Appellant’s current violation of the ADA, while January 1, 2006, is the absolute latest date another county (which has not already violated the ADA by purchasing a new voting system) can wait to install accessible voting equipment.
Similarily, Appellant’s insinuation that the county will have to buy new voting equipment in 2006 because the touch screens that are currently certified and in use in Florida and across the country may not meet the accessibility standards of HAVA is erroneous. (Br. 31.) First, the DOJ has directed counties to comply with
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HAVA’s disability provision “as soon as practical… to help ensure that disabled voters are able to fully participate in the election process to the maximum extent possible. This will ensure that disabled voters are provided access as soon as possible.” (Dkt. 193, Hrg. Ex. A (emphasis added).) It defies logic to argue that the DOJ would “encourage” jurisdictions to provide accessible voting equipment now, but then require these jurisdictions to buy new systems later.22
Next, to the extent Appellant argues there are no accessibility standards, the DOJ has also directed that until the HAVA commission promulgates standards, “the voluntary guidance of the Federal Election Commission on Voting System Standards can be used to determine the accessibility of voting machines.” (Dkt. 200, Exs. A & B.) Thus, any of the touch screen voting systems currently meeting the FEC’s voluntary standards – which Mr. Craft admitted “the vast majority of states,” including Georgia, use (Dkt. 169, p. 66:20-67:25) – will also satisfy the accessibility requirements of § 301 of HAVA.23
22 Appellant’s argument further implies that the at least 500 counties and the entire state of Georgia that have implemented touch screen systems (Dkt. 170, p. 142:914) have misunderstood or ignored this issue. 23 This pronouncement by the DOJ also undermines Appellant’s argument that there are no specific regulations governing voting systems under the ADA. (Br. 35-36.)
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Finally, the to-be-crafted HAVA “standards” to which Appellant refers are voluntary – not mandatory. All HAVA requires is that a jurisdiction provide one voting machine per polling place that is “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.” 42 U.S.C. § 15481(a)(3)(A) (2002). HAVA specifically states that this requirement can be met “through the use of at least one direct recording electronic voting system or other voting system equipped for individuals with disabilities at each polling place.” Id. at (a)(3)(B). HAVA does not mandate that the touch screens meet any other requirements. Thus, there is no need to wait for any regulations to be promulgated, because the touch screen voting systems certified and used in Florida already meet HAVA’s requirement.
IV. THE TRIAL COURT’S REMEDY PLAN IS AN APPROPRIATE RESPONSE TO APPELLANT’S ADA VIOLATIONS
The trial court further committed no clear error in judgment or misapplication of the legal standard in granting injunctive relief for Appellant’s violations of the ADA.
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A. The Trial Court’s Order Will Not Subject Appellant to Equal Protection Violation Claims
Appellant’s assertion that the trial court’s injunction raises Equal Protection
concerns fails for several reasons. (Br. 56-57). First, Appellant failed to raise this
argument before the trial court issued the Order, and, accordingly has waived this
argument. FDIC v. Verex Assurance, Inc., 3 F.3d 391, 395 (11th Cir. 1993).
Appellant had ample opportunity to do so, as the trial court announced its tentative
ruling and remedy at the January 14, 2004 hearing and specifically provided
Appellant the opportunity to raise this issue. (Dkt. 193, p. 66:9-70:16.) Nowhere
in Appellant’s fifteen-page response did Appellant raise this Equal Protection
argument. (Dkt. 197.)24
Second, contrary to Appellant’s arguments, no violation of the Equal
Protection Clause is created by the trial court’s remedy plan.25 It is axiomatic that
24 Moreover, at the January 14, 2004, hearing, counsel for Appellant told the trial court that if the Diebold machine was certified, the county would “probably get as many as eight, spread them out . . . making them available at more locations than just downtown….” (Dkt. 193, p. 64:20-65:2.) At no point during this announcement did Appellant indicate that there would be an Equal Protection issue with this plan. 25 Appellant’s reference to the AAPD’s current lawsuit in California, challenging on ADA and Equal Protection grounds, several counties’ purchases of inaccessible optical scan systems instead of touch screen machines with audio ballots, ignores that the California case does not challenge any judicial remedy of an ADA violation as violating the Equal Protection clause, but rather challenges the
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the “phasing in” of a remedy in the civil rights context cannot properly result in liability. Acree v. County Bd. of Educ., 458 F.2d 486, 488 (5th Cir. 1972) (enforcing court order requiring school district to implement a desegregation plan in three phases, commencing with only certain schools); Kemp v. Beasley, 352 F.2d 14, 14-17 (8th Cir. 1965) (affirming three step transitional plan period of school desegregation whereby only certain grade levels were provided the benefits of the plan during initial periods); United States v. Sec’y of HUD, 239 F.3d 211, 220-21 (2d Cir. 2001) (remedy requiring development of subsidized and public housing in specific areas did not violate Equal Protection); see also, Local 28 of Sheet Metal Workers, Int’l Ass’n v. EEOC, 478 U.S. 421, 476, 106 S. Ct. 3019, 3050 (1986) (rejecting Equal Protection argument, Supreme Court concluded that affirmative relief “may be necessary to dissipate the lingering effects of pervasive discrimination.”). By December 31, 2006, HAVA will require Defendant Appellant to place at least one touch screen machine in every Duval County polling place. While bringing Appellant into compliance with the ADA, the court’s judgment also has the practical effect of “phasing in” much needed relief consistent with the plans uniformly endorsed by courts in the civil rights context.
purchase of optical scan systems as violations of both the ADA and Equal Protection clauses.
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Third, Appellant’s argument that an Equal Protection violation may arise
because “the votes in some Duval County precincts will be counted differently in a
recount from those in other precincts” because the touch screen machines have no
paper audit trail is faulty,26 and was rejected by the only federal appeals court to
consider it on the merits.27 (Br. 57.) In Weber v. Shelly, 347 F.3d 1101, 1105 (9th
Cir. 2003), the Ninth Circuit rejected an equal protection challenge to the use of a
touch screen voting system that did not provide voter-verified paper trail because
there was no evidence that the Sequoia touch screen system at-issue “is inherently
less accurate, or produces a vote count that is inherently less verifiable, than other
systems.”28
26 Unrelated to the substance of this argument, Appellant did not raise this argument at trial, and therefore has not preserved it for appeal. FDIC, 3 F.3d at 395. 27 At most, the County attempted to argue, based on hearsay contained in a newspaper article, that there was something inherently wrong with touch screen voting systems that do not provide the voter with a piece of paper to verify the voter’s ballot choices. Mr. Craft resoundingly rejected this argument (Dkt. 168, p. 156:15-157:12). Furthermore, each touch screen machine generates paper confirmation of the total votes cast on the machine and an image of every ballot cast. (Dkt. 168, p. 143:12-144:17, 157:7-12.) 28 Challenges to the use of touch screens in Florida because they lack a paper receipt have also been dismissed by both federal and state courts in Florida. See Wexler v. LePore, 319 F. Supp. 2d 1354 (S.D. Fla. 2004), dismissed (11th Cir. May 24, 2004), on appeal, No. 04-12826-II (11th Cir. 2004); Wexler v. LePore, No. 502004000491XXXXMBA slip op. (Fla. Cir. Ct. 15th Cir. Feb. 11, 2004), aff’d, No. 4D04-918 (Fla. 4th Dist. Ct. App. Aug. 6, 2004).
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The only “precedent” cited by Appellant for his Equal Protection argument is the United States Supreme Court’s decision in Bush v. Gore, 531 U.S. 98, 121 S. Ct. 525 (2000), the precedential value of which is questionable, at best, as the Supreme Court made it clear that its “consideration [was] limited to the present circumstances.” 531 U.S. at 109, 121 S. Ct. at 532. Moreover, Bush does not support Appellant’s argument. In Bush, the Supreme Court found an Equal Protection violation not because different voting machines used different methods for recounts, but rather because different, arbitrary standards were employed in the recounting of punch card ballots both within and among different jurisdictions across Florida. Id. at 105-106, 121 S. Ct. at 530. Appellant ignores that different machines were used by the various Florida counties in the 2000 election (including punch cards and optical scan), which necessarily involved different recount procedures without raising Equal Protection violations.
B. Class Certification Is Not a Prerequisite to Injunctive Relief Appellant’s second challenge to the trial court’s injunction – that the unresolved class certification motion undermines trial court’s injunction relief – is also without merit. In the civil rights context, where only injunctive and declaratory relief is sought, class certification is unnecessary because “the very nature of the rights [the plaintiffs] seek to vindicate requires that the decree run to
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the benefit not only of the named plaintiffs but also for all persons similarly situated.” United Farmworkers of Fla. Hous. Project, Inc. v. City of Delray Beach, 493 F.2d 799, 812 (5th Cir. 1974); see Bailey v. Patterson, 323 F.2d 201, 206 (5th Cir. 1963); Fairley v. Forrest County, 814 F. Supp. 1327, 1329 (S.D. Miss. 1993). Indeed, here, as in United Farm Workers, “[e]ven with the denial of class action status, the requested injunctive and declaratory relief will benefit not only the [named plaintiffs]. . . but also all other persons subject to the practice under attack.” 493 F.2d at 812; see also Sandford v. R.L. Coleman Realty Co., 573 F.2d 173, 178 (4th Cir. 1978); Craft v. Memphis Light, Gas & Water Div., 534 F.2d 684, 686 (6th Cir. 1976) aff’d 436 U.S. 1, 98 S. Ct. 1554 (1978). Discrimination on the basis of disability should be accorded the same treatment as race discrimination, which “is by definition class discrimination.” United Farmwokers, 493 F.2d at 812 (emphasis added) (citing Huff v. N.D. Cass Co., 485 F.2d 710, 713 (5th Cir. 1973) (en banc)). See also, Bresgal v. Brock, 843 F.2d 1163 (9th Cir. 1987); Int’l Union of Bricklayers & Allied Craftsmen v. Meese, 616 F. Supp. 1387 (N.D. Cal. 1985). Notably, Appellant cites no cases that support his contention that the trial court’s judgment is fatally flawed because no class action was certified.29
29 Indeed, none of the cases Appellant cites even remotely discuss, let alone support, this proposition. For example, Baxter v. Palmigiano, 425 U.S. 308, 312, 96 S. Ct. 1551, 1555 (1976), only holds that the case was not properly a class action, not that the judgment was infirm for failing to certify the class. Similarly,
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In addition, formal class certification is unnecessary because the class action nature of this case may be implied. Doe v. Bush, 261 F.3d 1037 (11th Cir. 2001); Bing v. Ry. Express, 485 F.2d 441 (5th Cir. 1973). As the court stated in Doe, when it found an implied class, Appellees “should not be penalized because the district court forgot to address the certification question sooner, or determined that it was not necessary to do so.” 261 F.3d at 1051-52.
CONCLUSION
The trial court, in a thoughtful, detailed opinion, determined that Appellant has violated, and continues to violate, the ADA by refusing to provide accessible voting systems for Duval County’s disabled voters so they can vote in the fully accessible manner enjoyed by voters in hundreds of jurisdictions throughout the country and Florida. The factual findings underlying this decision are supported by credible trial evidence and the legal principles on which the judgment is based
Bieneman v. City of Chicago, 838 F.2d 962, 963 (7th Cir. 1988), did not hold that the decision of the district court to dismiss plaintiff’s complaint was in error for failing to certify the class, but rather held that the case was not yet ripe for appellate review because the district court had identified the issue of class certification as needing resolution. Finally, Paxton v. Union National Bank, 688 F.2d 552, 559 (8th Cir. 1982), did not involve judgment for plaintiffs without class certification, but rather addressed the district court’s improper refusal to certify a class – a far different scenario than presented here.
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are sound. Thus, this Court should affirm the declaratory and injunctive relief granted to Appellees.
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Respectfully submitted,

Of Counsel: Alan M. Wiseman HOWREY SIMON ARNOLD & WHITE, LLP
Elaine Gardner Washington Lawyers’ Committee for Civil Rights and Urban Affairs 11 Dupont Circle N.W., Suite 400 Washington, D.C. 20036 (202) 319-1000

_______________________________ Richard A. Ripley Danielle R. Foley Vincent E. Verrocchio Ari N. Rothman R. William Sigler HOWREY SIMON ARNOLD & WHITE, LLP 1299 Pennsylvania Ave., N.W. Washington, D.C. 20004 (202) 783-0800
Counsel for Plaintiffs/Appellees

55

CERTIFICATE OF COMPLIANCE
1. This brief complies with the type-volume limitation of Federal Rule of Appellate Procedure 32(a)(7)(B) because this brief contains 12,504 words, excluding parts of the brief exempted by Federal Rule of Appellate Procedure 32(a)(7)(B)(iii); and
2. This brief complies with the typeface requirements of Federal Rule of Appellate Procedure 32(a)(5) and the type style requirements of Federal Rule of Appellate Procedure 32(a)(6) because this brief has been prepared in a proportionally spaced typeface using Microsoft Word 2000 in Times New Roman 14 point font.

Of Counsel: Alan M. Wiseman HOWREY SIMON ARNOLD & WHITE, LLP
Elaine Gardner Washington Lawyers’ Committee for Civil Rights and Urban Affairs 11 Dupont Circle N.W., Suite 400 Washington, D.C. 20036 (202) 319-1000

_______________________________ Richard A. Ripley Danielle R. Foley Vincent E. Verrocchio Ari N. Rothman R. William Sigler HOWREY SIMON ARNOLD & WHITE, LLP 1299 Pennsylvania Ave., N.W. Washington, D.C. 20004 (202) 783-0800
Counsel for Plaintiffs/Appellees

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CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing Brief of Appellees were served by facsimile and regular U.S. Mail this 24th day of August, 2004, upon:
Ernst D. Mueller, Esq. Scott D. Makar, Esq. Office of General Counsel 117 West Duval Street Suite 480 Jacksonville, FL 32202
Attorney for Appellees
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ADDENDUM OF STATUTES, REGULATIONS, AND LEGISLATIVE MATERIALS

STATUTES 42 U.S.C. § 12132. Discrimination (ADA) Subject to the provisions of this title, 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.
42 U.S.C. § 15481. Voting systems standards (HAVA) (a) Requirements. Each voting system used in an election for Federal office shall meet the following requirements:
(1) In general. (A) Except as provided in subparagraph (B), the voting system (including any
lever voting system, optical scanning voting system, or direct recording electronic system) shall--
(i) permit the voter to verify (in a private and independent manner) the votes selected by the voter on the ballot before the ballot is cast and counted;
(ii) provide the voter with the opportunity (in a private and independent manner) to change the ballot or correct any error before the ballot is cast and counted (including the opportunity to correct the error through the issuance of a replacement ballot if the voter was otherwise unable to change the ballot or correct any error); and
(iii) if the voter selects votes for more than one candidate for a single office-(I) notify the voter that the voter has selected more than one candidate for a
single office on the ballot; (II) notify the voter before the ballot is cast and counted of the effect of
casting multiple votes for the office; and (III) provide the voter with the opportunity to correct the ballot before the

ballot is cast and counted. (B) A State or jurisdiction that uses a paper ballot voting system, a punch card
voting system, or a central count voting system (including mail-in absentee ballots and mail-in ballots), may meet the requirements of subparagraph (A)(iii) by--
(i) establishing a voter education program specific to that voting system that notifies each voter of the effect of casting multiple votes for an office; and
(ii) providing the voter with instructions on how to correct the ballot before it is cast and counted (including instructions on how to correct the error through the issuance of a replacement ballot if the voter was otherwise unable to change the ballot or correct any error).
(C) The voting system shall ensure that any notification required under this paragraph preserves the privacy of the voter and the confidentiality of the ballot.
(2) Audit capacity. (A) In general. The voting system shall produce a record with an audit capacity
for such system. (B) Manual audit capacity. (i) The voting system shall produce a permanent paper record with a manual
audit capacity for such system. (ii) The voting system shall provide the voter with an opportunity to change
the ballot or correct any error before the permanent paper record is produced. (iii) The paper record produced under subparagraph (A) shall be available as
an official record for any recount conducted with respect to any election in which the system is used.
(3) Accessibility for individuals with disabilities. The voting system shall-(A) 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; (B) satisfy the requirement of subparagraph (A) through the use of at least one
direct recording electronic voting system or other voting system equipped for individuals with disabilities at each polling place; and
(C) if purchased with funds made available under title II [42 USCS §§ 15321 et seq.] on or after January 1, 2007, meet the voting system standards for disability access (as outlined in this paragraph).
(4) Alternative language accessibility. The voting system shall provide alternative language accessibility pursuant to the requirements of section 203 of the Voting Rights Act of 1965 (42 U.S.C. 1973aa-1a).
(5) Error rates. The error rate of the voting system in counting ballots (determined by taking into account only those errors which are attributable to the voting system and not attributable to an act of the voter) shall comply with the error rate standards established under section 3.2.1 of the voting systems standards issued by the Federal Election Commission which are in effect on the date of the enactment of this Act [enacted Oct. 29, 2002].
(6) Uniform definition of what constitutes a vote. Each State shall adopt uniform and nondiscriminatory standards that define what constitutes a vote and what will be counted as a vote for each category of voting system used in the State.
(b) Voting system defined. In this section, the term "voting system" means-(1) the total combination of mechanical, electromechanical, or electronic
equipment (including the software, firmware, and documentation required to program, control, and support the equipment) that is used--
(A) to define ballots; (B) to cast and count votes; (C) to report or display election results; and

(D) to maintain and produce any audit trail information; and (2) the practices and associated documentation used--
(A) to identify system components and versions of such components; (B) to test the system during its development and maintenance; (C) to maintain records of system errors and defects; (D) to determine specific system changes to be made to a system after the initial qualification of the system; and (E) to make available any materials to the voter (such as notices, instructions, forms, or paper ballots).
(c) Construction. (1) In general. Nothing in this section shall be construed to prohibit a State or
jurisdiction which used a particular type of voting system in the elections for Federal office held in November 2000 from using the same type of system after the effective date of this section, so long as the system meets or is modified to meet the requirements of this section.
(2) Protection of paper ballot voting systems. For purposes of subsection (a)(1)(A)(i), the term "verify" may not be defined in a manner that makes it impossible for a paper ballot voting system to meet the requirements of such subsection or to be modified to meet such requirements.
(d) Effective date. Each State and jurisdiction shall be required to comply with the requirements of this section on and after January 1, 2006.

REGULATIONS 28 C.F.R. § 35.104 Definitions.
For purposes of this part, the term --
Act means the Americans with Disabilities Act (Pub. L. 101-336, 104 Stat. 327, 42 U.S.C. 12101-12213 and 47 U.S.C. 225 and 611).
Assistant Attorney General means the Assistant Attorney General, Civil Rights Division, United States Department of Justice.
Auxiliary aids and services includes --
(1) Qualified interpreters, notetakers, transcription services, written materials, telephone handset amplifiers, assistive listening devices, assistive listening systems, telephones compatible with hearing aids, closed caption decoders, open and closed captioning, telecommunications devices for deaf persons (TDD's), videotext displays, or other effective methods of making aurally delivered materials available to individuals with hearing impairments;
(2) Qualified readers, taped texts, audio recordings, Brailed materials, large print materials, or other effective methods of making visually delivered materials available to individuals with visual impairments;
(3) Acquisition or modification of equipment or devices; and
(4) Other similar services and actions.
Complete complaint means a written statement that contains the complainant's name and address and describes the public entity's alleged discriminatory action in sufficient detail to inform the agency of the nature and date of the alleged violation of this part. It shall be signed by the complainant or by someone authorized to do so on his or her behalf. Complaints filed on behalf of classes or third parties shall describe or identify (by name, if possible) the alleged victims of discrimination.

Current illegal use of drugs means illegal use of drugs that occurred recently enough to justify a reasonable belief that a person's drug use is current or that continuing use is a real and ongoing problem.
Designated agency means the Federal agency designated under subpart G of this part to oversee compliance activities under this part for particular components of State and local governments.
Disability means, with respect to an individual, a physical or mental impairment that substantially limits one or more of the major life activities of such individual; a record of such an impairment; or being regarded as having such an impairment.
(1)(i) The phrase physical or mental impairment means --
(A) Any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: Neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genitourinary, hemic and lymphatic, skin, and endocrine;
(B) Any mental or psychological disorder such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities.
(ii) The phrase physical or mental impairment includes, but is not limited to, such contagious and noncontagious diseases and conditions as orthopedic, visual, speech and hearing impairments, cerebral palsy, epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease, diabetes, mental retardation, emotional illness, specific learning disabilities, HIV disease (whether symptomatic or asymptomatic), tuberculosis, drug addiction, and alcoholism.

(iii) The phrase physical or mental impairment does not include homosexuality or bisexuality.
(2) The phrase major life activities means functions such as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.
(3) The phrase has a record of such an impairment means has a history of, or has been misclassified as having, a mental or physical impairment that substantially limits one or more major life activities.
(4) The phrase is regarded as having an impairment means -(i) Has a physical or mental impairment that does not substantially limit major life activities but that is treated by a public entity as constituting such a limitation; (ii) Has a physical or mental impairment that substantially limits major life activities only as a result of the attitudes of others toward such impairment; or (iii) Has none of the impairments defined in paragraph (1) of this definition but is treated by a public entity as having such an impairment. (5) The term disability does not include -(i) Transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments, or other sexual behavior disorders; (ii) Compulsive gambling, kleptomania, or pyromania; or (iii) Psychoactive substance use disorders resulting from current illegal use of drugs. Drug means a controlled substance, as defined in schedules I through V of section 202 of the Controlled Substances Act (21 U.S.C. 812).

Facility means all or any portion of buildings, structures, sites, complexes, equipment, rolling stock or other conveyances, roads, walks, passageways, parking lots, or other real or personal property, including the site where the building, property, structure, or equipment is located.
Historic preservation programs means programs conducted by a public entity that have preservation of historic properties as a primary purpose.
Historic Properties means those properties that are listed or eligible for listing in the National Register of Historic Places or properties designated as historic under State or local law.
Illegal use of drugs means the use of one or more drugs, the possession or distribution of which is unlawful under the Controlled Substances Act (21 U.S.C. 812). The term illegal use of drugs does not include the use of a drug taken under supervision by a licensed health care professional, or other uses authorized by the Controlled Substances Act or other provisions of Federal law.
Individual with a disability means a person who has a disability. The term individual with a disability does not include an individual who is currently engaging in the illegal use of drugs, when the public entity acts on the basis of such use.
Public entity means --
(1) Any State or local government;
(2) Any department, agency, special purpose district, or other instrumentality of a State or States or local government; and
(3) The National Railroad Passenger Corporation, and any commuter authority (as defined in section 103(8) of the Rail Passenger Service Act).

Qualified individual with a disability means an individual with a disability who, with or without reasonable modifications to rules, policies, or practices, the removal of architectural, communication, or transportation barriers, or the provision of auxiliary aids and services, meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity.
Qualified interpreter means an interpreter who is able to interpret effectively, accurately, and impartially both receptively and expressively, using any necessary specialized vocabulary.
Section 504 means section 504 of the Rehabilitation Act of 1973 (Pub. L. 93112, 87 Stat. 394 (29 U.S.C. 794)), as amended.
State means each of the several States, the District of Columbia, the Commonwealth of Puerto Rico, Guam, American Samoa, the Virgin Islands, the Trust Territory of the Pacific Islands, and the Commonwealth of the Northern Mariana Islands.
28 C.F.R. § 35.149 Discrimination prohibited. Except as otherwise provided in § 35.150, no qualified individual with a
disability shall, because a public entity's facilities are inaccessible to or unusable by individuals with disabilities, 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 public entity.
28 C.F.R. § 35.150 Existing facilities. (a) General. A public entity shall operate each service, program, or activity so
that the service, program, or activity, when viewed in its entirety, is readily

accessible to and usable by individuals with disabilities. This paragraph does not--
(1) Necessarily require a public entity to make each of its existing facilities accessible to and usable by individuals with disabilities;
(2) Require a public entity to take any action that would threaten or destroy the historic significance of an historic property; or
(3) Require a public entity to take any action that it can demonstrate would result in a fundamental alteration in the nature of a service, program, or activity or in undue financial and administrative burdens. In those circumstances where personnel of the public entity believe that the proposed action would fundamentally alter the service, program, or activity or would result in undue financial and administrative burdens, a public entity has the burden of proving that compliance with § 35.150(a) of this part would result in such alteration or burdens. The decision that compliance would result in such alteration or burdens must be made by the head of a public entity or his or her designee after considering all resources available for use in the funding and operation of the service, program, or activity, and must be accompanied by a written statement of the reasons for reaching that conclusion. If an action would result in such an alteration or such burdens, a public entity shall take any other action that would not result in such an alteration or such burdens but would nevertheless ensure that individuals with disabilities receive the benefits or services provided by the public entity.
(b) Methods--(1) General. A public entity may comply with the requirements of this section through such means as redesign of equipment, reassignment of services to accessible buildings, assignment of aides to beneficiaries, home visits, delivery

of services at alternate accessible sites, alteration of existing facilities and construction of new facilities, use of accessible rolling stock or other conveyances, or any other methods that result in making its services, programs, or activities readily accessible to and usable by individuals with disabilities. A public entity is not required to make structural changes in existing facilities where other methods are effective in achieving compliance with this section. A public entity, in making alterations to existing buildings, shall meet the accessibility requirements of § 35.151. In choosing among available methods for meeting the requirements of this section, a public entity shall give priority to those methods that offer services, programs, and activities to qualified individuals with disabilities in the most integrated setting appropriate.
(2) Historic preservation programs. In meeting the requirements of § 35.150(a) in historic preservation programs, a public entity shall give priority to methods that provide physical access to individuals with disabilities. In cases where a physical alteration to an historic property is not required because of paragraph (a)(2) or (a)(3) of this section, alternative methods of achieving program accessibility include--
(i) Using audio-visual materials and devices to depict those portions of an historic property that cannot otherwise be made accessible;
(ii) Assigning persons to guide individuals with handicaps into or through portions of historic properties that cannot otherwise be made accessible; or
(iii) Adopting other innovative methods.

(c) Time period for compliance. Where structural changes in facilities are undertaken to comply with the obligations established under this section, such changes shall be made within three years of January 26, 1992, but in any event as expeditiously as possible.
(d) Transition plan. (1) In the event that structural changes to facilities will be undertaken to achieve program accessibility, a public entity that employs 50 or more persons shall develop, within six months of January 26, 1992, a transition plan setting forth the steps necessary to complete such changes. A public entity shall provide an opportunity to interested persons, including individuals with disabilities or organizations representing individuals with disabilities, to participate in the development of the transition plan by submitting comments. A copy of the transition plan shall be made available for public inspection.
(2) If a public entity has responsibility or authority over streets, roads, or walkways, its transition plan shall include a schedule for providing curb ramps or other sloped areas where pedestrian walks cross curbs, giving priority to walkways serving entities covered by the Act, including State and local government offices and facilities, transportation, places of public accommodation, and employers, followed by walkways serving other areas.
(3) The plan shall, at a minimum--
(i) Identify physical obstacles in the public entity's facilities that limit the accessibility of its programs or activities to individuals with disabilities;
(ii) Describe in detail the methods that will be used to make the facilities

accessible;
(iii) Specify the schedule for taking the steps necessary to achieve compliance with this section and, if the time period of the transition plan is longer than one year, identify steps that will be taken during each year of the transition period; and
(iv) Indicate the official responsible for implementation of the plan.
(4) If a public entity has already complied with the transition plan requirement of a Federal agency regulation implementing section 504 of the Rehabilitation Act of 1973, then the requirements of this paragraph (d) shall apply only to those policies and practices that were not included in the previous transition plan.
28 C.F.R. § 35.151 New construction and alterations. (a) Design and construction. Each facility or part of a facility constructed by, on
behalf of, or for the use of a public entity shall be designed and constructed in such manner that the facility or part of the facility is readily accessible to and usable by individuals with disabilities, if the construction was commenced after January 26, 1992.
(b) Alteration. Each facility or part of a facility altered by, on behalf of, or for the use of a public entity in a manner that affects or could affect the usability of the facility or part of the facility shall, to the maximum extent feasible, be altered in such manner that the altered portion of the facility is readily accessible to and usable by individuals with disabilities, if the alteration was commenced after January 26, 1992.

(c) Accessibility standards. Design, construction, or alteration of facilities in conformance with the Uniform Federal Accessibility Standards (UFAS) (appendix A to 41 CFR part 101-19.6) or with the Americans with Disabilities Act Accessibility Guidelines for Buildings and Facilities (ADAAG) (appendix A to 28 CFR part 36) shall be deemed to comply with the requirements of this section with respect to those facilities, except that the elevator exemption contained at section 4.1.3(5) and section 4.1.6(1)(k) of ADAAG shall not apply. Departures from particular requirements of either standard by the use of other methods shall be permitted when it is clearly evident that equivalent access to the facility or part of the facility is thereby provided.
(d) Alterations: Historic properties. (1) Alterations to historic properties shall comply, to the maximum extent feasible, with section 4.1.7 of UFAS or section 4.1.7 of ADAAG.
(2) If it is not feasible to provide physical access to an historic property in a manner that will not threaten or destroy the historic significance of the building or facility, alternative methods of access shall be provided pursuant to the requirements of § 35.150.
(e) Curb ramps. (1) Newly constructed or altered streets, roads, and highways must contain curb ramps or other sloped areas at any intersection having curbs or other barriers to entry from a street level pedestrian walkway.
(2) Newly constructed or altered street level pedestrian walkways must contain

curb ramps or other sloped areas at intersections to streets, roads, or highways.
28 C.F.R. § 35.160 General. (a) A public entity shall take appropriate steps to ensure that communications
with applicants, participants, and members of the public with disabilities are as effective as communications with others.
(b)(1) A public entity shall furnish appropriate auxiliary aids and services where necessary to afford an individual with a disability an equal opportunity to participate in, and enjoy the benefits of, a service, program, or activity conducted by a public entity.
(2) In determining what type of auxiliary aid and service is necessary, a public entity shall give primary consideration to the requests of the individual with disabilities.
LEGISLATIVE MATERIALS H.R. Rep. No. 101-485(II) Counsel for Appellees were advised by the Clerk of Court on June 9, 2004, to omit from this addendum H.R. Rep. No. 101-485(II) due to its volume. Counsel for Appellees advised the Clerk of Court that it would promptly deliver to the Court a full copy of H.R. Rep. No. 101-485(II) should the Court request it.

 
 US Court of Appeals for the Eleventh Circuit

United States Court of Appeals
for the Eleventh Circuit
56 Forsyth Street, N.W. Atlanta, GA 30303-2289
(404) 335-6100

07-15004-CC American Association of People v. Katherine Harris

Docket #: 07-15004-CC Short Style: American Association of People v. Katherine Harris Docket Date: 10/24/2007 Lead Case:
Agency: Nature of Suit: Other: Statutory Actions
Misc. Type: Clerk: Wiegmann, Brenda
Clerk Phone: (404) 335-6174

District Information

Docket #: 01-01275-CV-J-25-HTS Judge: Henry Lee Adams, Jr.

Dkt Date: 11/08/2001

District: Florida-Middle

NOA Date: 10/19/2007

Office: MFL-Jacksonville

Secondary Case Information

Docket #: Judge: Howard T. Snyder Dkt Date: / /

Case Relationships

Docket #

Short Style

Relation Status

08-14994-CC American Association of People v. Glenda E. Hood Related Open

04-11566-AA American Association v. Glenda E. Hood

Related Closed

Pending Motions

Date

Motion

06/01/2010 Petition for Rehearing En Banc: (Atty:

Party
American Association of People with Disabilities

Emergency No
Page 1 of 11

US Court of Appeals for the Eleventh Circuit
06/01/2010 Jerrold J. Ganzfried)

with Disabilities

No

1dar@sgdblaw.com

United States Court of Appeals
for the Eleventh Circuit
56 Forsyth Street, N.W. Atlanta, GA 30303-2289
(404) 335-6100

07-15004-CC American Association of People v. Katherine Harris
AMERICAN ASSOCIATION OF PEOPLE WITH DISABILITIES,
on behalf of themselves and others similarly situated,
DANIEL W. O'CONNOR, KENT BELL,
on behalf of themselves and others similarly situated,
BETH BOWEN, on behalf of herself and others similarly
situated,
Plaintiffs-Appellees,
versus
KATHERINE HARRIS, as Secretary of State for the State

Page 2 of 11

US Court of Appeals for the Eleventh Circuit

of Florida, et al.,

Defendants,

JERRY HOLLAND, as Supervisor of Elections in
Duval County, Florida,

Defendant-Appellant.
United States Court OF Appeals FOR the Eleventh Circuit
56 Forsyth Street, N.W. Atlanta, GA 30303-2289
(404) 335-6100

07-15004-CC American Association of People v. Katherine Harris

Appellant
Jerry Holland Address Not On File E-Brief Tendered: Appellant filed on 02/05/2008 Appellant Brief Filed filed on 02/05/2008 Record Excerpts filed on 02/05/2008 E-Brief Tendered: Reply filed on 04/29/2008 Reply Brief Filed filed on 04/29/2008 Fees: Paid on 10/24/2007

Appellant Attorney
Ernst D. Mueller Office of City Attorney 117 W DUVAL ST STE 480 JACKSONVILLE, FL 32202-5721 904-630-1871 Fax: (904) 630-1316 EMueller@coj.net No Briefing Information Found.

Appellee American Association of People with Disabilities Address Not On File 1dar@sgdblaw.com
Daniel W. O'Connor Address Not On File

Appellee Attorney
Jerrold J. Ganzfried Howrey Simon Arnold & White, LLP 1299 PENNSYLVANIA AVE NW WASHINGTON, DC 20004-2400 (202) 783-0800 No Briefing Information Found.
Sashe D. Dimitroff Howrey LLP

Page 3 of 11

US Court of Appeals for the Eleventh Circuit
Kent Bell Address Not On File
Beth Bowen Address Not On File
Amicus United States Address Not On File
National Federation of the Blind Address Not On File

1111 LOUISIANA ST FL 25 HOUSTON, TX 77002-5242 (713) 654-7610 Fax: (713) 787-1440 sashe.dimitroff@howrey.com E-Brief Tendered: Appellee filed on 04/10/2008 Appellee Brief Filed filed on 04/10/2008
Heather M. Khassian Winston and Strawn, LLP 1111 LOUISIANA ST FL 25 HOUSTON, TX 77002-5242 (713) 651-2600 Fax: (713) 651-2700 hkhassianh@winston.com No Briefing Information Found.
No Briefing Information Found.
Kevin A. Keeling Winston and Strawn, LLP 1111 LOUISIANA ST FL 25 HOUSTON, TX 77002-5242 (713) 651-2600 Fax: (713) 651-2700 kkeeling@winston.com No Briefing Information Found.
Amicus Attorney
Sasha Samberg-Champion Department of Justice-Civil Rights Division 950 PENNSYLVANIA AVENUE, NW APPELLATE SECTION WASHINGTON, DC 20530-0001 (202) 307-0714 Fax: (202) 514-8490 No Briefing Information Found.
Amy Farr Robertson Fox & Robertson, PC 104 BROADWAY STE 400 DENVER, CO 80203-3972 (303) 595-9700 Fax: (303) 595-9705 arob@foxrob.com No Briefing Information Found.
Jessica Dunsay Silver USDOJ PO BOX 14403 WASHINGTON, DC 20044-4403 (202) 514-2195 Fax: (202) 514-8490 jessica.d.silver@usdoj.gov

Page 4 of 11

US Court of Appeals for the Eleventh Circuit
Initial Service Richard A. Mullaney General Counsel's Office 117 W DUVAL ST STE 480 JACKSONVILLE, FL 32202-5721 (904) 630-1700 rickm@coj.net M. Scott Thomas Rogers Towers 7 WALDO ST STE B ST AUGUSTINE, FL 32084-2718 (904) 825-1612 Fax: (904) 825-4070 sthomas@rtlaw.com Gregory A. Lawrence Thomas & Lawrence, P.A. 1301 Riverplace Blvd., Suite 1630 JACKSONVILLE, FL 32202-4342 (904) 632-0077 Fax: (904) 632-0730 thomlawr@bellsouth.net Ari N. Rothman Venable LLP 575 7TH ST NW WASHINGTON, DC 20004-1607 (202) 344-4420 Fax: (202) 344-8300 anrothman@venable.com George L. Waas Attorney at Law 3797 SALLY LN

No Briefing Information Found.
Peter Blanck Burton Blatt Institute 900 S CROUSE AVE HINDS HALL 300 SYRACUSE, NY 13244-0001 (315) 443-9703 Fax: (315) 443-9725 pblanck@law.syr.edu No Briefing Information Found.
Eve L. Hill 1667 K ST NW STE 640 WASHINGTON, DC 20006-1689 (202) 296-2044 Fax: (202) 296-2047 ehill@law.syr.edu No Briefing Information Found.

Page 5 of 11

US Court of Appeals for the Eleventh Circuit
TALLAHASSEE, FL 32312-1018 (850) 893-8483 waas01@comcast.net
Elizabeth Elaine Gardner 11 DUPONT CIR NW STE 400 WASHINGTON, DC 20036-1226 (202) 319-1000
Lois G. Williams 11 DUPONT CIR NW STE 400 WASHINGTON, DC 20036-1226
James Douglas Baldridge Venable LLP 575 7TH ST NW WASHINGTON, DC 20004-1607 (202) 344-4703 Fax: (202) 344-8300 jdbaldridge@venable.com
Alan M. Wiseman Howrey, LLP 1299 PENNSYLVANIA AVE NW WASHINGTON, DC 20004-2400 202-383-6638 wisemana@howrey.com
Brian A. Howie Quarles & Brady, LLP 2 N CENTRAL AVE PHOENIX, AZ 85004-2322 (602) 229-5405 Fax: (602) 420-5023 brian.howie@quarles.com
Courtney O. Taylor 1299 PENNSYLVANIA AVE NW WASHINGTON, DC 20004-2400 (202) 783-0800
Danielle R. Oddo 210 ALLEGHENY AVE TOWSON, MD 21204-4021
Richard Arthur Ripley Howrey LLP 1299 PENNSYLVANIA AVE NW WASHINGTON, DC 20004-2400 (202) 783-0800 Fax: (202) 778-6155 ripleyr@howrey.com
Vincent E. Verrocchio VenableLLP 575 7TH ST NW WASHINGTON, DC 20004-1607 (202) 344-4496

Page 6 of 11

US Court of Appeals for the Eleventh Circuit
Fax: (202) 344-8300 veverrocchivo@venable.com
Scott Douglas Makar Office of the Solicitor General THE CAPITOL - PL01 TALLAHASSEE, FL 32399-0001 (850) 414-3639 Fax: (850) 410-2672 scott.makar@myfloridalegal.com

United States Court of Appeals
for the Eleventh Circuit
56 Forsyth Street, N.W. Atlanta, GA 30303-2289
(404) 335-6100

07-15004-CC American Association of People v. Katherine Harris

File Date

Entry

Party Pending

10/24/2007 No Hearings to be Transcribed.

No

10/29/2007 Briefing Notice Issued - Recalled - FRAP 4 Motion Pending

No

DKT7CIV (Docketing Notice confirming brief due date) issued.

To:Ernst D. Mueller; c:Alan M. Wiseman; c:Ari N. Rothman;

10/29/2007 c:Brian A. Howie; c:Courtney O. Taylor; c:Danielle R. Oddo;

No

c:Elizabeth Elaine Gardner; c:George L. Waas; c:Gregory A.

Lawrence; c:Hea+

DKT1 (Notice of Toling Motion/Recall Briefing- Docketing

Notice) issued. To:Ernst D. Mueller; c:Alan M. Wiseman; c:Ari

11/01/2007 N. Rothman; c:Brian A. Howie; c:Courtney O. Taylor;

No

c:Danielle R. Oddo; c:Elizabeth Elaine Gardner; c:George L.

Waas; c:Gregory +

11/06/2007 E-CIP Filed.

Ernst D. Mueller

No

11/07/2007 Appearance Form Submitted.

Sashe D. Dimitroff

No

11/07/2007 Appearance Form Submitted.

Kevin A. Keeling

No

11/07/2007 Appearance Form Submitted.

Heather M. Khassian

No

11/07/2007 Appearance Form Submitted.

Ernst D. Mueller

No

11/07/2007 Certificate of Interested Persons: (Atty: Ernst D. Mueller)

Jerry Holland

No

Page 7 of 11

US Court of Appeals for the Eleventh Circuit

11/07/2007 Civil Appeal Statement Form: (Atty: Ernst D. Mueller)

Jerry Holland

No

11/19/2007

CLK5 (Letter to district court re status of motion) To:Sheryl L. Loesch; c:Henry Lee Adams, Jr.

issued.

No

11/21/2007 E-CIP Filed.

Sashe D. Dimitroff

No

11/23/2007 Certificate of Interested Persons: (Atty: Kevin A. Keeling)

American Association of People No with Disabilities

12/06/2007 FRAP 4 Disposition Order

No

12/12/2007 Probable Jurisdiction Noted: (Atty: Ernst D. Mueller)

Jerry Holland

No

12/18/2007 Briefing Notice Issued

No

BR1CIV (Letter confirming brief due date) issued. c:Alan M.

Wiseman; c:Ari N. Rothman; c:Brian A. Howie; c:Courtney O.

12/18/2007 Taylor; c:Danielle R. Oddo; c:Elizabeth Elaine Gardner; c:Ernst

No

D. Mueller; c:George L. Waas; c:Gregory A. Lawrence;

c:Heather M. Khas+

01/02/2008

Motion for Mueller)

Extension

to

File

Appellant

Brief:

(Atty:

Ernst

D.

Jerry Holland

No

Appellant's motion for an extension of time up to and including

01/14/2008 February 4, 2008, to file his initial brief and record excerpts is

No

GRANTED. SM

EXT-1 (Extension of time granted) issued. c:Ernst D. Mueller;

01/14/2008 c:Heather M. Khassian; c:Kevin A. Keeling; c:Sashe D.

No

Dimitroff

01/28/2008

Appellee's Mot. D. Dimitroff)

to

Dism.

for

Lack

of

Appellate

Juris.:

(Sashe

American Association of People No with Disabilities

02/05/2008 E-Brief Tendered: Appellant by Ernst D. Mueller
30pages

Jerry Holland

No

02/05/2008 Appellant Brief Filed: (Atty: Ernst D. Mueller)

Jerry Holland

No

02/05/2008 Record Excerpts: (Atty: Ernst D. Mueller)

Jerry Holland

No

02/08/2008

Appellant's Response to Appellate Juris...: (Atty:

Appellee's Mot. to Ernst D. Mueller)

Dism.

for

Lack

of

Jerry Holland

No

Appellees' Reply in Support of Motion to Dismiss Defendant02/19/2008 Appellant's Appeal for Lack of Jurisdcition...: (Atty: Sashe D.
Dimitroff)

American Association of People No with Disabilities

Page 8 of 11

US Court of Appeals for the Eleventh Circuit

02/25/2008

Rule 31-2(b) Motion for Extension (Atty: Kevin A. Keeling)

to

File

Appellee

Brief:

American Association of People No with Disabilities

03/06/2008

Appellees' motion for an extension of time up to and April 9, 2008, to file their brief is GRANTED. SM

including

No

EXT-1 (Extension of time granted) issued. c:Ernst D. Mueller;

03/06/2008 c:Heather M. Khassian; c:Kevin A. Keeling; c:Sashe D.

No

Dimitroff

MP-1 (Multi-Purpose letter) issued to return aples' motion to

stay appeal because it duplicates portion of the motion to

03/12/2008 dismiss, whcih is now before the court. To:Kevin A. Keeling;

No

c:Ernst D. Mueller; c:Heather M. Khassian; c:Sashe D.

Dimitroff

MOT2 (Notice of court action) issued. c:Ernst D. Mueller;

04/01/2008 c:Heather M. Khassian; c:Kevin A. Keeling; c:Sashe D.

No

Dimitroff

The Appellees' motion to dismiss the appeal for lack of

04/01/2008 jurisdiction, or, alternatively, to stay the appeal is CARRIED

No

WITH THE CASE. SHB

04/10/2008 E-Brief Tendered: Appellee by Sashe D. Dimitroff
30pages

Daniel W. O'Connor

No

04/10/2008 Appellee Brief Filed: (Atty: Sashe D. Dimitroff)

Daniel W. O'Connor

No

04/21/2008 Certificate of Readiness

No

04/21/2008 Record on Appeal

No

04/21/2008 Exhibits

No

04/29/2008 E-Brief Tendered: Reply by Ernst D. Mueller
25pages

Jerry Holland

No

04/29/2008 Reply Brief Filed:: (Atty: Ernst D. Mueller)

Jerry Holland

No

07/16/2008

Motion to Mueller)

Supplement

the

Record

on

Appeal:

(Atty:

Ernst

D.

Jerry Holland

No

07/16/2008

Motion Requesting Additional Time Beyond that Currently Allotted for Oral Argument: (Atty: Ernst D. Mueller)

Jerry Holland

No

07/25/2008 E-CIP Filed.

Kevin A. Keeling

No

American

07/28/2008

Response Keeling)

to

Motion

to

supplement

the

record:

(Atty:

Kevin

A.

Association of People with

No

Disabilities

07/28/2008

Response to Motion requesting additional argument: (Atty: Kevin A. Keeling)

time

at

oral

American Association of People No

Page 9 of 11

US Court of Appeals for the Eleventh Circuit

argument: (Atty: Kevin A. Keeling)

with Disabilities

08/08/2008

Appellant's "Motion DENIED. CRW

To

Supplement

Record

On

Appeal"

is

No

MOT2 (Notice of court action) issued. c:Ernst D. Mueller;

08/08/2008 c:Heather M. Khassian; c:Kevin A. Keeling; c:Sashe D.

No

Dimitroff

Motion Requesting Additional Time Beyond that Currently

09/17/2008 Allotted for Oral Argument is GRANTED. (From 15 mins to 22

No

mins per side.) GBT

MOT2 (Notice of court action) issued. c:Ernst D. Mueller;

09/17/2008 c:Heather M. Khassian; c:Kevin A. Keeling; c:Sashe D.

No

Dimitroff

Sua Sponte Order: Appellee's Motion to Dismiss Appeal for

09/24/2008 Lack of Jurisdiction or, in the alternative, to Stay the Appeal is

No

DENIED.TKK

11/06/2008 Appearance Form Submitted.

Jerrold J. Ganzfried

No

11/18/2008 Oral Argument Scheduled: 11/18/08

No

11/21/2008

Ernst D. Mueller argued argued for Appellee

for

Appellant;

Jerrold

J.

Ganzfried

No

05/11/2010 Judgment Entered

No

OPIN1A (Notice of issuance of opinion) issued. costs to be

determined at a later date. c:Ernst D. Mueller; c:Heather M.

05/11/2010 Khassian; c:Henry Lee Adams, Jr.; c:Jerrold J. Ganzfried;

No

c:Joseph M. Hood; c:Kevin A. Keeling; c:Sashe D. Dimitroff;

c:Snyder, Howar+

05/11/2010 Opinion Issued VACATE and REMAND.

No

COST-2 (Letter re taxation of costs) issued. c:Ernst D. Mueller;

05/12/2010

c:Heather M. Khassian; Ganzfried; c:Joseph M.

c:Henry Lee Adams, Jr.; c:Jerrold J. Hood; c:Kevin A. Keeling; c:Sashe D.

No

Dimitroff; c:Snyder, Howard T.

06/01/2010 Petition for Rehearing En Banc: (Atty: Jerrold J. Ganzfried)

American Association of People Yes with Disabilities

06/11/2010 Appearance Form Submitted.

Sasha Samberg- No Champion

06/11/2010 Appearance Form Submitted.

Jessica Dunsay No Silver

06/11/2010

Motion to File Amicus Brief in Support of Petition Rehearing En Banc: (Atty: Caitlin R. Anderson)

for

No

Sasha

Page 10 of 11

US Court of Appeals for the Eleventh Circuit

06/14/2010 E-CIP Filed.

Samberg- No Champion

06/14/2010 E-Brief Tendered: Amicus by Sasha Samberg-Champion

United States

No

06/14/2010

Amicus Brief in Support Samberg-Champion)

of

Rehearing

Petition::

(Atty:

Sasha

United States

No

06/14/2010 Amicus Curiae Brief: (Atty: Sasha Samberg-Champion)

United States

No

DELETED: E-Brief Tendered: Corrected Amicus Curiae Brief

06/18/2010

(5) by Sasha Samberg-Champion. The subject ebrief was rejected because it did not match the description selected

when

United States

No

it was uploaded.

06/18/2010

Response to Motion Ernst D. Mueller)

for

Leave

to

File

Amicus

Brief:

(Atty:

Jerry Holland

No

06/21/2010 E-Brief Tendered: Amicus by Sasha Samberg-Champion
1pages

United States

No

07/19/2010 Appearance Form Submitted. (need aoc form)

Amy Farr Robertson

No

"Motion of National Federation of the Blind...for Leave to File

07/19/2010 a Brief as Amici Curiae in Support of Petition for Rehearing

No

and Rehearing En Banc" is GRANTED. GBT/EEC/JMH

07/19/2010

MOT2 (Notice of court action) c:Eve L. Hill; c:Peter Blanck

issued.

To:Amy

Farr

Robertson;

No

MOT2 (Notice of court action) issued. c:Ernst D. Mueller;

07/19/2010 c:Heather M. Khassian; c:Jerrold J. Ganzfried; c:Kevin A.

No

Keeling; c:Sashe D. Dimitroff

07/19/2010

MOT2 (Notice of court action) c:Sasha Samberg-Champion

issued.

c:Jessica

Dunsay

Silver;

No

07/19/2010

Amicus Brief in Farr Robertson)

Support

of

Rehearing

Petition:

(Atty:

Amy

National Federation No of the Blind

07/26/2010 Appearance Form Submitted.

Eve L. Hill No

08/13/2010 Appearance Form Submitted.

Peter Blanck

No

Page 11 of 11

 
 US Court of Appeals for the Eleventh Circuit

United States Court of Appeals
for the Eleventh Circuit
56 Forsyth Street, N.W. Atlanta, GA 30303-2289
(404) 335-6100

04-11566-AA American Association v. Glenda E. Hood

Closed No Extensions
Docket #: 04-11566-AA Short Style: American Association v. Glenda E. Hood Docket Date: 04/02/2004 Lead Case:
Agency: Nature of Suit: Other: Statutory Actions
Misc. Type: Clerk: Dixon, Eleanor
Clerk Phone: (404) 335-6172

District Information

Docket #: 01-01275-CV-J-99HTS Judge: Wayne E. Alley

Dkt Date: 11/08/2001

District: Florida-Middle

NOA Date: 03/31/2004

Office: MFL-Jacksonville

Secondary Case Information

Docket #: Judge: Dkt Date: / /
Case Relationships

Docket #

Short Style

Relation Status

07-15004-CC American Association of People v. Katherine Harris Related Open

08-14994-CC American Association of People v. Glenda E. Hood Related Open

Page 1 of 16

US Court of Appeals for the Eleventh Circuit

Pending Motions
No Pending Motions
United States Court of Appeals for the Eleventh Circuit
56 Forsyth Street, N.W. Atlanta, GA 30303-2289
(404) 335-6100

04-11566-AA American Association v. Glenda E. Hood
AMERICAN ASSOCIATION OF PEOPLE WITH DISABILITIES, DANIEL W. O'CONNER, KENT BELL, BETH BOWEN,
on behalf of themselves and others similarly situated,
Plaintiffs-Appellees,
versus
GLENDA E. HOOD, Secretary of the State of Florida, et al.,

Page 2 of 16

US Court of Appeals for the Eleventh Circuit

Defendants,

JERRY HOLLAND, as Supervisor of Elections in Duval County,

Defendant-Appellant.
United States Court OF Appeals FOR the Eleventh Circuit
56 Forsyth Street, N.W. Atlanta, GA 30303-2289
(404) 335-6100

04-11566-AA American Association v. Glenda E. Hood

Appellant
Person Not Found No Briefing Information Found.
Jerry Holland Address Not On File Supplemental Authority for Appellant filed on 05/04/2006 Supplemental Authority for Appellant filed on 09/14/2006

Appellant Attorney
Ernst D. Mueller Office of City Attorney 117 W DUVAL ST STE 480 JACKSONVILLE, FL 32202-5721 904-630-1871 Fax: (904) 630-1316 EMueller@coj.net No Briefing Information Found.
Jason R. Teal The City of Jacksonville 117 W DUVAL ST STE 480 JACKSONVILLE, FL 32202-5721 (904) 630-1700 Fax: (904) 630-2388 JTeal@coj.net No Briefing Information Found.
Scott Douglas Makar

Page 3 of 16

Office of the Solicitor General THE CAPITOL - PL01 TALLAHASSEE, FL 32399-0001 (850) 414-3639 Fax: (850) 410-2672 scott.makar@myfloridalegal.com No Briefing Information Found.

Appellee American Association of People with Disabilities Address Not On File 1dar@sgdblaw.com
Daniel W. O'Conner Address Not On File
Kent Bell Address Not On File
Beth Bowen Address Not On File

Appellee Attorney
Sashe D. Dimitroff Howrey LLP 1111 LOUISIANA ST FL 25 HOUSTON, TX 77002-5242 (713) 654-7610 Fax: (713) 787-1440 sashe.dimitroff@howrey.com E-Brief Tendered: Appellee filed on 08/24/2004 Appellee Brief Filed filed on 08/24/2004 E-Brief Tendered: Supplemental Appellant Brief filed on 10/05/2004 E-Brief Tendered: Supplemental Appellee Brief filed on 10/05/2004 Other filed on 09/29/2006
Sashe D. Dimitroff Howrey LLP 1111 LOUISIANA ST FL 25 HOUSTON, TX 77002-5242 (713) 654-7610 Fax: (713) 787-1440 sashe.dimitroff@howrey.com No Briefing Information Found.
Sashe D. Dimitroff Howrey LLP 1111 LOUISIANA ST FL 25 HOUSTON, TX 77002-5242 (713) 654-7610 Fax: (713) 787-1440 sashe.dimitroff@howrey.com No Briefing Information Found.
Sashe D. Dimitroff Howrey LLP 1111 LOUISIANA ST FL 25 HOUSTON, TX 77002-5242 (713) 654-7610 Fax: (713) 787-1440 sashe.dimitroff@howrey.com

Page 4 of 16

US Court of Appeals for the Eleventh Circuit

No Briefing Information Found.
Vincent E. Verrocchio VenableLLP 575 7TH ST NW WASHINGTON, DC 20004-1607 (202) 344-4496 Fax: (202) 344-8300 veverrocchivo@venable.com No Briefing Information Found.
Ari N. Rothman Venable LLP 575 7TH ST NW WASHINGTON, DC 20004-1607 (202) 344-4420 Fax: (202) 344-8300 anrothman@venable.com No Briefing Information Found.
R. William Sigler Howrey Simon Arnold & White, LLP 1299 PENNSYLVANIA AVE NW WASHINGTON, DC 20004-2400 (202) 783-0800 Fax: (202) 383-6610 siglerb@howrey.com No Briefing Information Found.
Brian A. Howie Quarles & Brady, LLP 2 N CENTRAL AVE PHOENIX, AZ 85004-2322 (602) 229-5405 Fax: (602) 420-5023 brian.howie@quarles.com No Briefing Information Found.
Kevin A. Keeling Winston and Strawn, LLP 1111 LOUISIANA ST FL 25 HOUSTON, TX 77002-5242 (713) 651-2600 Fax: (713) 651-2700 kkeeling@winston.com No Briefing Information Found.
Heather M. Khassian Winston and Strawn, LLP 1111 LOUISIANA ST FL 25 HOUSTON, TX 77002-5242

Page 5 of 16

US Court of Appeals for the Eleventh Circuit
Initial Service Richard A. Mullaney General Counsel's Office 117 W DUVAL ST STE 480 JACKSONVILLE, FL 32202-5721 (904) 630-1700 rickm@coj.net Alan M. Wiseman Howrey, LLP 1299 PENNSYLVANIA AVE NW WASHINGTON, DC 20004-2400 202-383-6638 wisemana@howrey.com Elizabeth Elaine Gardner 11 DUPONT CIR NW STE 400 WASHINGTON, DC 20036-1226 (202) 319-1000 Lois G. Williams 11 DUPONT CIR NW STE 400 WASHINGTON, DC 20036-1226 Tracey I. Arpen, Jr. Office of General Counsel 117 W DUVAL ST STE 480 JACKSONVILLE, FL 32202-5721 (904) 630-1700 George L. Waas Attorney at Law 3797 SALLY LN TALLAHASSEE, FL 32312-1018 (850) 893-8483 waas01@comcast.net

(713) 651-2600 Fax: (713) 651-2700 hkhassianh@winston.com No Briefing Information Found. Rodney K. Caldwell Howrey LLP 1111 LOUISIANA ST FL 25 HOUSTON, TX 77002-5242 (713) 787-1400 Fax: (713) 787-1440 caldwellr@howrey.com No Briefing Information Found.
Page 6 of 16

US Court of Appeals for the Eleventh Circuit
Bill McCollum 107 W. Gaines Street TALLAHASSEE, FL 32399-0001

United States Court of Appeals
for the Eleventh Circuit
56 Forsyth Street, N.W. Atlanta, GA 30303-2289
(404) 335-6100

04-11566-AA American Association v. Glenda E. Hood

File Date

Entry

Party

03/31/2004 Fee Status: Paid (03/31/04) for John Stafford

William E. Scheu, Jr.

04/06/2004 Briefing Notice Issued

DKT7CIV (Docketing Notice confirming brief due date) issued. To:Makar, Scott Douglas; c:Arpen, Tracey I., Jr.; 04/06/2004 c:Baldridge, J. Douglas; c:Crist, Charles Joseph, Jr.; c:Gardner, Elizabeth Elaine; c:Mueller, Ernst D.; c:Mullaney, Richard A.; c:Oddo, Danie+

Transcripts Filed in D.C. on 10-10-03 for bench trial -[ 9-23-03 04/06/2004 thru 10-01-03. ] - transcript filed on 1-23-04 for motion hrg.
[1-14-04]-transcript filed on 3-11-02 for motion hrg. [2-28-02]

04/13/2004 Appearance Form Submitted.

Scott Douglas Makar

04/13/2004 Appearance Form Submitted.

Ernst D. Mueller

04/13/2004 Appearance Form Submitted.

Jason R. Teal

04/13/2004

Transcript Order Form (All Necessary (Atty: Scott Douglas Makar)

Transcripts

on

File):

William E. Scheu, Jr.

04/13/2004 Civil Appeal Statement Form: (Atty: Scott Douglas Makar)

William E. Scheu, Jr.

04/19/2004

ATTY1 (Appearance form/bar To:Baldridge, J. Douglas

admission

letter)

issued.

JUR-1 (Letter enclosing jurisdictional question) issued.

Pending No No
No
No
No No No No No No

Page 7 of 16

US Court of Appeals for the Eleventh Circuit

04/20/2004

c:Baldridge, J. Douglas; c:Makar, Ernst D.; c:Mullaney, Richard A.;

Scott Douglas; c:Mueller, c:Oddo, Danielle R.; c:Teal,

No

Jason R.; c:Wiseman, Alan M.

04/20/2004 Jurisdictional Questions Issued

No

04/21/2004

DC Order: (04/23/04) Dkt pending appeal is granted,

# 238 Defendant's motion Judge Wayne E. Alley.

to

stay

No

04/26/2004 Appearance Form Submitted.

James Douglas No Baldridge

04/26/2004 Appearance Form Submitted.

Danielle R. Foley

No

04/26/2004 Appearance Form Submitted.

Ari N. Rothman

No

04/26/2004 Appearance Form Submitted.

Vincent E. Verrocchio

No

04/26/2004 Motion to Expedite: (Atty: J. Douglas Baldridge)

American Association of People No with Disabilities

04/27/2004 Certificate of Readiness

No

04/27/2004 Response to Motion: (Atty: Scott Douglas Makar)

William E. Scheu, Jr.

No

Notice of Filing: Appellees' Reply in support of their 04/28/2004 emergency motion for an expedited appeal. (Atty: J. Douglas
Baldridge)

American Association of People No with Disabilities

04/30/2004

Ape Response Baldridge)

to

Jurisdictional

Question:

(Atty:

J.

Douglas

American Association of People No with Disabilities

05/03/2004

Attorney Changed for: John Stafford From: Makar (904) 630-1847 smakar@coj.net To:

Scott Douglas Mueller, Ernst

D..

William E. Scheu, Jr.

No

05/03/2004 Appellees' motion to expedite this appeal is DENIED. (WHP)

No

MOT2 (Notice of court action) issued. c:Baldridge, J. Douglas;

05/03/2004

c:Makar, Scott Douglas; c:Mueller, Ernst D.; c:Oddo, Danielle R.; c:Rothman, Ari N.; c:Teal, Jason R.; c:Verrocchio, Vincent

No

E.

DC Order: Plaintiff's motion for clairfication of 03/26/04

05/03/2004 judgment is DENIED. Denying motion for Rule 54( b )

No

Page 8 of 16

US Court of Appeals for the Eleventh Circuit

certification.

05/03/2004

Apt Response Mueller)

to

Jurisdictional

Question:

(Atty:

Ernst

D.

William E. Scheu, Jr.

No

30pages

05/12/2004

E-Brief Tendered: Stafford

Appellant

by

Scott

Douglas

Makar

for

John

William E. Scheu, Jr.

No

05/13/2004 Appellant Brief Filed: (Atty: Ernst D. Mueller)

William E. Scheu, Jr.

No

05/13/2004 Record Excerpts: (Atty: Ernst D. Mueller)

William E. Scheu, Jr.

No

American

06/10/2004

MOOT- see Order 06/24 Appellees' Motion for Immediate Ruling on Jurisdictional Question: (Atty: J. Douglas Baldridge)

Association of People with

No

Disabilities

06/18/2004 Response to Motion: (Atty: Ernst D. Mueller)

William E. Scheu, Jr.

No

MOT2 (Notice of court action) issued. c:Arpen, Tracey I., Jr.;

c:Baldridge, J. Douglas; c:Crist, Charles Joseph, Jr.; c:Gardner,

06/24/2004 Elizabeth Elaine; c:Makar, Scott Douglas; c:Mueller, Ernst D.;

No

c:Mullaney, Richard A.; c:Oddo, Danielle R.; c:Rothman, Ari

N+

Appeal may PROCEED with respect to the March 24 and

06/24/2004

March appeal

26, 2004 order and final judgment . . .However, the is DISMISSED as to the October 16, 2002 and August

No

19, 2003 orders . . . (SFB/JFD) See order for text

07/07/2004

Motion for Reconsideration Douglas Makar)

of

Panel

Order:

(Atty:

Scott

William E. Scheu, Jr.

No

07/08/2004

Attorney Changed for: John Stafford From: Ernst D. Mueller 904-630-1871 EMueller@coj.net To: Makar, Scott Douglas.

William E. Scheu, Jr.

No

07/16/2004 Appearance Form Submitted.

Richard

Arthur

No

Ripley

07/19/2004 Response to Motion: (Atty: Richard Arthur Ripley)

American Association of People No with Disabilities

07/27/2004

Notice of Filing: Reply to Appellees' Response to Motion for Reconsideration of Panel Order (Atty: Scott Douglas Makar)

William E. Scheu, Jr.

No

Appellant's motion for reconsideration of our June 24, 2004,

08/09/2004 order dismissing this appeal for lack of jurisdiction, is

No

DENIED. (GBT, RLA, SFB)

Page 9 of 16

US Court of Appeals for the Eleventh Circuit

MOT2 (Notice of court action) issued. c:Baldridge, J. Douglas;

08/09/2004

c:Foley, Danielle R.; c:Makar, Scott Douglas; c:Mueller, D.; c:Ripley, Richard Arthur; c:Rothman, Ari N.; c:Teal,

Ernst Jason

No

R.; c:Verrocchio, Vincent E.

08/23/2004 Appearance Form Submitted.

R. William Sigler

No

30pages

08/24/2004

E-Brief Tendered: Appellee by Ari N. Rothman Association of People With Disabilities

for

American

American Association of People No with Disabilities

08/24/2004 Appellee Brief Filed: (Atty: R. William Sigler)

American Association of People No with Disabilities

08/31/2004

Motion Makar)

for

Extension

to

File

Reply

Brief:

(Atty:

Scott

Douglas

William E. Scheu, Jr.

No

09/02/2004 Record on Appeal

No

09/02/2004 Exhibits: (Atty: Scott Douglas Makar)

William E. Scheu, Jr.

No

American

09/03/2004

Response to Appellant's Motion Brief: (Atty: R. William Sigler)

to

Extend

Time to Serve

Reply

Association of People with

No

Disabilities

Appellant's motion for a 10 day extension of time in which to

09/07/2004

file the reply brief, up to and including, September 20, DENIED IN PART. Appellant's reply brief is due on

2004

is

No

September 13, 2004. (WHP)

MOT2 (Notice of court action) issued. c:Baldridge, J. Douglas;

09/07/2004

c:Foley, Danielle R.; c:Makar, Scott Douglas; D.; c:Ripley, Richard Arthur; c:Rothman, Ari

c:Mueller, Ernst N.; c:Sigler, R.

No

William; c:Teal, Jason R.; c:Verrocchio, Vincent E.

09/10/2004

2nd Motion for Extension Douglas Makar)

to

File

Reply

Brief:

(Atty:

Scott

William E. Scheu, Jr.

No

30pages

09/13/2004

E-Brief Tendered: Stafford

Reply

by

Scott

Douglas

Makar

for

John

William E. Scheu, Jr.

No

Appellant's 2nd motion for a 4 day extension of time in which

09/14/2004

to file the reply brief, up to and including September 17, is GRANTED but no further extensions will be allowed.

2004

No

(WHP)

MOT2 (Notice of court action) issued. c:Baldridge, J. Douglas;

Page 10 of 16

US Court of Appeals for the Eleventh Circuit

09/14/2004

c:Foley, Danielle R.; c:Makar, Scott Douglas; c:Mueller, Ernst D.; c:Ripley, Richard Arthur; c:Rothman, Ari N.; c:Sigler, R.

No

William; c:Teal, Jason R.; c:Verrocchio, Vincent E.

09/14/2004 Reply Brief Filed: (Atty: Scott Douglas Makar)

William E. Scheu, Jr.

No

09/16/2004 New Dist Court case number

No

10/01/2004 Motion to Stay Pending Appeal: (Atty: Scott Douglas Makar)

William E. Scheu, Jr.

No

Appellant's "Emergency Motion for Stay Pending Appeal...,"

10/05/2004

seeking to March 26,

stay the district court's March 24, 2004, order and 2004, declaratory judgment pending disposition of

No

this appeal, is GRANTED. (RB/EEC/FMH)

MOT2 (Notice of court action) issued. To:Teal, Jason R.;

c:Baldridge, J. Douglas; c:Foley, Danielle R.; c:Makar, Scott

10/05/2004 Douglas; c:Mueller, Ernst D.; c:Ripley, Richard Arthur;

No

c:Rothman, Ari N.; c:Sigler, R. William; c:Verrocchio, Vincent

E.

American

10/05/2004

E-Brief Tendered: Supplemental Appellant Brief by Ari N. Rothman for American Association of People With Disabilities

Association of People with

No

Disabilities

American

10/05/2004

E-Brief Tendered: Supplemental Appellee Brief by Ari N. Rothman for American Association of People With Disabilities

Association of People with

No

Disabilities

10/05/2004 Response to Motion: (Atty: R. William Sigler)

American Association of People No with Disabilities

DC Order: Granting the parties agreed motion to adopt DRE

10/07/2004 Machine Distribution Plan (Dkt. 268) wiht the proposed

No

amendments.

01/05/2005 Appearance Form Submitted.

Brian A. Howie

No

01/18/2005

Motion to Baldridge

Withdraw as and Danielle

Counsel Richard A. Ripley, R. Foley is GRANTED. M.

J. Douglas Davidson

No

MOT2 (Notice of court action) issued. c:Baldridge, J. Douglas;

c:Foley, Danielle R.; c:Howie, Brian A.; c:Makar, Scott

01/18/2005 Douglas; c:Mueller, Ernst D.; c:Ripley, Richard Arthur;

No

c:Rothman, Ari N.; c:Sigler, R. William; c:Teal, Jason R.;

Page 11 of 16

US Court of Appeals for the Eleventh Circuit

c:Verrocchio, Vince+

01/18/2005 Motion to File Supplemental Record: (Atty: Brain A. Howie)

American Association of People No with Disabilities

American

01/18/2005

Motion to Baldridge

Withdraw as and Danielle

Counsel Richard A. Ripley, J. Douglas R. Foley: (Atty: Brian A. Howie)

Association of People with

No

Disabilities

01/19/2005 Response to Motion: (Atty: Scott Douglas Makar)

William E. Scheu, Jr.

No

01/26/2005 Oral Argument Scheduled: 01/26/05

No

01/27/2005

Scott Douglas Makar argued for Appellee

argued

for

Appellant;

Brian

A.

Howie

No

Further Suggestion of Mootness and Request to Dismiss 05/19/2005 Appeal and Vacate District Court Judgment: (Atty: Scott
Douglas Makar)

William E. Scheu, Jr.

No

Response to Appellant's Further Suggestion of Mootness and 06/03/2005 Request to Dismiss Appeal and Vacate District Court
Judgment: (Atty: Brian A. Howie)

American Association of People No with Disabilities

Appellant's Reply to Appellees' Response to Further 06/07/2005 Suggestion of Mootness and Request to Dismiss Appeal and
Vacate District Court Judgment: (Atty: Scott Douglas Makar)

William E. Scheu, Jr.

No

American

Motion to Supplement the Record (regarding recently aborted Association

06/22/2005 procurement of accessible voting machines in Volusia Co., FL): of People No

(Atty: Brian A. Howie)

with

Disabilities

Appellees' Motion to supplement the record on appeal with

06/27/2005 Resolution 2004-1205-E of the Jacksonville City Council is

No

hereby GRANTED. GBT

MOT2 (Notice of court action) issued. c:Howie, Brian A.;

06/27/2005

c:Makar, Scott Douglas; c:Mueller, Ernst D.; c:Rothman, N.; c:Sigler, R. William; c:Teal, Jason R.; c:Verrocchio,

Ari

No

Vincent E.

06/27/2005 1st Supplemental Exhibits (see order dated 6/27/05).

No

Appellant's Response to Appellee's Motion to Supplement the

07/05/2005 Record (regarding recently aborted procurement of accessible

No

voting machines in Volusia Co., FL)

Page 12 of 16

US Court of Appeals for the Eleventh Circuit

08/01/2005

Supplemental Authority for Appellant Filed: (Atty Scott Douglas Makar)

(Supervisor

of

Elections)

No

08/01/2005

Appellant's Motion to Supplement the Record Judicial Notice Filed: (Scott Douglas Makar)

or

to

Take

No

CLK3 (Letter to district court re limited remand) issued.

08/08/2005

To:Sheryl L. Loesch; c:Howie, Brian A.; c:Makar, Scott Douglas; c:Mueller, Ernst D.; c:Rothman, Ari N.; c:Sigler,

R.

No

William; c:Teal, Jason R.; c:Verrocchio, Vincent E.

ORDER: OA in this case was held on 1/26/05. On 5/19/05, the

aplt... submtd to this court a Further Suggestion of Mootness

08/08/2005 and Request to DISM & Vacate DC Judgmt... we therefore

No

remand this case to the DC... (see file for complete text)

JLE/GBT/PAK

08/10/2005

REC3 (Letter returning To:Sheryl L. Loesch

record

to

district

court)

issued.

No

08/10/2005

Record and Exhibits boxes of exh)

Returned

to

District

Court

(19vols

ROA;

4

No

08/11/2005

REC3 (Letter returning To:Sheryl L. Loesch

record

to

district

court)

issued.

No

08/11/2005 Exhibits Returned to District Court (1env. 1st supp)

No

08/26/2005

ROA WAS RCVD FROM DIST CT 6 BOXES PLEAD/9 TRANS) THE REST EXHIBITS

(19

V

(10

No

08/30/2005

DC Order: ...The Court answers both questions affirmative... (please see f/f for complete text)

in

the

No

Notice of Filing of DC's order on limited remand dated

08/30/2005 8/23/05... The 11th Cir remanded this case to this Court for

No

findings of fact... (see file for complete text)

08/31/2005 1st Supplemental Record On Appeal

No

08/31/2005 1st Supplemental Certificate of Readiness

No

Notice of Withdrawal of Motion to Supplement Record: 11/30/2005 (MOOT per amended motion received 12/6/05) (Atty: Scott
Douglas Makar)

William E. Scheu, Jr.

No

12/06/2005

Amended Motion Douglas Makar)

to

Supplement

the

Record:

(Atty:

Scott

William E. Scheu, Jr.

No

12/20/2005

Appellees' Response to Amended Record: (Atty: Brian H. Howie)

Motion

to

Supplement

American Association of People No with Disabilities

12/23/2005

Appellant's amended GRANTED. GBT

motion

to

supplement

record

on

appeal

is

No

Page 13 of 16

US Court of Appeals for the Eleventh Circuit

MOT2 (Notice of court action) issued. c:Howie, Brian A.;

12/23/2005

c:Makar, Scott Douglas; c:Mueller, N.; c:Sheryl L. Loesch; c:Sigler, R.

Ernst D.; c:Rothman, Ari William; c:Teal, Jason R.;

No

c:Verrocchio, Vincent E.

05/04/2006 Supplemental Authority for Appellant:

Jerry Holland

No

09/14/2006 Supplemental Authority for Appellant:

Jerry Holland

No

American Association 09/29/2006 Response to Supp Authority filed 9/14/06 (Atty. Brian Howie) of People No with Disabilities

We directed the DC to answer two questions... DC entered an

08/15/2007

order answering both in the affirmative... The ROA... we conclude that the case is moot and

def has supp the therefore dismiss

No

it. (see file for comp text). (JLE/GBT/PAK

08/15/2007 Case Closed. Dismissed - Order

No

DIS-4 (Letter to district court enclosing court order) issued.

08/15/2007

To:Sheryl L. Loesch; c:Ari N. Rothman; c:Brian A. Howie; c:Ernst D. Mueller; c:Jason R. Teal; c:R. William Sigler;

No

c:Scott Douglas Makar; c:Vincent E. Verrocchio

08/28/2007

Motion Requesting Addition of Directions Final Order: (Atty: Ernst D. Mueller)

to

District

Court

in

Jerry Holland

No

08/30/2007

Attorney D..

Changed

for:

Jerry

Holland

From:

To:

Mueller,

Ernst

Jerry Holland

No

Appellees' Response in Opposition to Motion Requesting 09/10/2007 Addition of Directions to District Court... : (Atty: R. William
Sigler)

American Association of People No with Disabilities

09/11/2007

REC3 (Letter returning To:Sheryl L. Loesch

record

to

district

court)

issued.

No

09/26/2007 Appearance Form Submitted.

Kevin A. Keeling

No

Supplement to Motion Requesting Addition of Directions to 09/27/2007 District Court in Final Order construed as Motion to
Supplement: (Atty: Ernst D. Mueller)

Jerry Holland

No

09/28/2007

ATTY1 (Appearance form/bar To:Heather M. Khassian

admission

letter)

issued.

No

09/28/2007

ATTY1 (Appearance form/bar To:Sashe D. Dimitroff

admission

letter)

issued.

No

Page 14 of 16

US Court of Appeals for the Eleventh Circuit

Appellees' Opposition to Appellant's Supplement to Motion 10/02/2007 Requesting Addition of Directions to District Court in Final
Order: (Atty: Rodney K. Caldwell)

American Association of People No with Disabilities

10/03/2007 Appearance Form Submitted.

Rodney K. Caldwell

No

10/10/2007 Appearance Form Submitted.

Sashe D. Dimitroff

No

10/10/2007 Appearance Form Submitted.

Heather M. Khassian

No

Aplt's "Mot Requesting Addition of Directions to DC in Final

11/01/2007 Order" is DENIED for lack of juris... (see file for full text).

No

JLE/GBT/PAK

MOT2 (Notice of court action) issued. c:Ari N. Rothman;

c:Brian A. Howie; c:Ernst D. Mueller; c:Heather M. Khassian;

11/01/2007 c:Jason R. Teal; c:Kevin A. Keeling; c:R. William Sigler;

No

c:Rodney K. Caldwell; c:Sashe D. Dimitroff; c:Scott Douglas

Makar; c:Vincent E+

Aples' Aplca'n for Determination of Entitlement to Reasonable

11/15/2007

Attys' Fees Costs Determination of

& Expenses or ...Mot to Transfer the Attys' Fees... to the District Court: (Atty:

Sashe D. Dimitroff)

American Association of People with Disabilities

No

MOT2 (Notice of court action) issued to request completion of

11/16/2007 Form to Accompany Application for Attormey's Fees. To:Sashe

No

D. Dimitroff

12/03/2007

Appellant's Response Ernst D. Mueller)

to

Motion

for

Attorneys

fees:

(Atty:

Jerry Holland

No

Appellees' Reply to Appellant's Response to Appellees' 12/10/2007 Application for Determination of Entitlement to Reasonable
Attorneys' Fees..: (Atty: Sashe D. Dimitroff)

American Association of People No with Disabilities

...Aples' request to deem their 11/15/07, atty's fees appl'n to be

04/24/2008

timely filed is GRANTED... Aples are for this appeal... to be ... transferred to

entitled to ...fees DC (see file for

&

exps

No

complete text). (JLE/GBT/PAK)

MOT2 (Notice of court action) issued. To:Sheryl L. Loesch;

c:Ari N. Rothman; c:Brian A. Howie; c:Ernst D. Mueller;

04/24/2008 c:Heather M. Khassian; c:Jason R. Teal; c:Kevin A. Keeling;

No

c:R. William Sigler; c:Rodney K. Caldwell; c:Sashe D.

Dimitroff; c:Scott Dougl+

Page 15 of 16

US Court of Appeals for the Eleventh Circuit Page 16 of 16