ThinkProgress

The ADA is being used to disenfranchise minority voters

A person votes in the handicapped assisted booth at Bishop Leo E. O'Neil Youth Center November 4, 2014 in Manchester, New Hampshire. CREDIT: Darren McCollester/Getty Images

Correction: This story has been updated to accurately reflect when the Department of Justice’s ADA enforcement actions were initiated and to include comment from counties that had positive experiences with the initiative.

A majority-black county in rural Georgia announced a plan last week to close seven of its nine polling places ahead of the November election, claiming the polls cannot continue to operate because they are not compliant with the Americans with Disabilities Act.

The move sparked instant opposition from voting rights advocates, who have threatened legal action if Randolph County follows though with the plan. Activists are also scrambling to collect enough signatures to stop the effort before Friday, when the election board will make a final determination.

The racial implications of the closures have generated significant attention. The county is over 61 percent black, and one of the polling locations that would be shuttered serves a precinct where more than 95 percent of voters are African American. Had the U.S. Supreme Court not gutted the Voting Rights Act in 2013, the closures would most likely have been blocked by the Department of Justice.

But the method the county is using to justify the closures has generated less attention. Advocates say that Republican lawmakers and election administrators in Randolph County are not the first to use the federal Americans with Disabilities Act (ADA), intended to protect the nation’s disabled communities, as a pretext to disenfranchise minority voters.

Jim Tucker, an attorney and member of the Native American Voting Rights Coalition, said he learned earlier this year that the Department of Justice’s Disability Rights Section is targeting at least three largely Native American counties, where facilities used as polling locations often lack paved parking lots, designated handicapped parking spots, entrance ramps, wide doorways, and other ADA-required features. In several counties, the Justice Department has threatened enforcement actions if local governments do not either spend large sums of money to modernize polling locations or shutter them altogether.

“It’s very troubling that this same pretext is now being used to target polling places used by other racial and ethnic minority groups.”

“It’s a diabolical move: citing one civil rights statute (the ADA) as the justification for violating another (the VRA),” Tucker, who previously worked in the DOJ’s Voting Section, told ThinkProgress. “These sorts of closures can effectively disenfranchise entire communities of voters, all under the false guise of purportedly seeking to make polling places accessible for the disabled.”

But Rokey W. Suleman II, the director of elections in Richland County, S.C., said the DOJ’s program to enforce the ADA has had positive consequences in his county.

The jurisdictions the Justice Department has targeted are predominantly non-white. Under President Trump, the department has settled at least five enforcement actions in counties across the country where polling locations do not meet the stringent requirements of the ADA. Four of the five locations targeted by the Justice Department — Chicago, Ill.; Chesapeake, Va.; Coconino County, Ariz.; and Richland County, S.C. — have significant minority populations.

CREDIT: Adam Peck

This was a new focus under the Obama administration: In the ten years before Trump took office, the Justice Department settled nine ADA enforcement actions related to polling locations.

Tucker interprets the pace of the settlements since Trump took office as suggesting that Trump’s DOJ is working to suppress certain voters.

“That to me suggests that it’s a pattern,” Tucker said. “They are deliberately targeting not just Native Americans areas and polling places on tribal land, but they’re generally targeting polling places that are in predominantly minority communities, and that’s extremely problematic.”

But Suleman said that reaching a settlement took years, but the work was initiated under the Obama administration.

In Randolph County, the closures are being orchestrated by elections consultant Mike Malone, who the county initially hired to help find a replacement elections supervisor after the previous person resigned. During testimony last week, one of the county’s two remaining elections officials said he contacted Secretary of State Brian Kemp (R)’s office for help filling the vacancy, and Kemp suggested the county hire Malone. It’s not clear why Malone decided to pivot from that task to pursuing the closure of polling places.

During a community meeting last week, Malone testified that his proposal is not racially-motivated, but about saving costs and helping the county comply with federal disability law.

“Is this the right time? The answer is no. It’s not. The reason it’s not the right time? It’s never the right time,” Malone said, responding to concerns that the closures are coming so close to an important election. When a county resident asked if he would be open to finding other ADA-compliant polling locations, Malone said that he was “not hired to find alternatives.”

Andrea Young, executive director of the ACLU of Georgia, called the ADA-compliance justification disingenuous.

“This is putting sheep’s clothing on a wolf,” she testified during the meeting. “We support the requests of community members that the public buildings be brought in compliance with the ADA. Closing these polls will not improve access for people with disabilities and will make it harder for everyone in these communities to vote.”

Young told ThinkProgress it was clear from the community meeting that Malone was reaching for any justification to close polling locations. During his presentation, he displayed photographs of some of the polling places he thinks should be closed. The majority are located in public buildings like fire departments, which should be ADA compliant anyway. If they are not, the county should work on updating the facilities rather than shuttering the polls, she said.

Malone's slides showing one polling location that is not ADA-compliant. CREDIT: ACLU of Georgia

“The question becomes: if they are not in compliance with the ADA, where are the resources to correct that?” Young asked.

While Kemp has criticized Randolph County’s decision to close a majority of its polls, Malone said during his presentation that the consolidation of polling locations comes “highly recommended by the Secretary of State.” According to Malone, Kemp asked him to travel the state and tell counties to close polling locations. Ten counties with large black populations followed the advice.

Kemp’s office did not respond to requests for comment, and he has denied directing Malone to use the ADA as a pretext for poll closures. Attorneys with the Lawyers’ Committee for Civil Rights Under Law obtained public records from the elections board that give no clarity to where Malone came up with the idea to justify the closures using disability law.

“There’s no evidence any studies or analyses were conducted of the locations’ ADA compliance,” John Powers, an attorney with the Lawyers’ Committee, told ThinkProgress. “At this point, there’s no indication that any real effort to determine ADA compliance was actually ever made.”

Julie Houk, another attorney with the group, added that if those studies had occurred, there should have been public meetings. “The fact that they haven’t produced any agendas or minutes or other documents showing the genesis of this plan suggests that this was done purposefully, to prevent any kind of records to be available to see how this came about, which is very suspicious,” she said.

Tucker suggested it’s possible Malone’s strategy came from the Justice Department, either directly or indirectly, given the agency’s use of the disability law to target polling places.

Shortly before the 2016 election, the DOJ sent representatives to visit Navajo Nation chapter houses that serve as polling locations in Coconino County and found that almost none were ADA-compliant. The Trump DOJ took on the work and Coconino County eventually settled instead of closing any of its polls, agreeing to “provide an accessible voting program, including a program that is accessible to persons with mobility or vision disabilities and accessible polling places at accessible sites,” according to settlement documents.

Patty Hansen, who administers elections in Coconino County, testified during a Native American voting rights field hearing in April that she struggled with deciding whether to continue operating polling locations in remote, rural locations that do not meet ADA requirements, but that are more convenient to voters living on the reservation.

Suleman said that DOJ attorneys also visited his polling locations in Richland County, and he felt the effort had positive outcomes in his county. But Tucker said he sees the ADA enforcement actions being used to suppress Native voters.

“It’s very troubling that this same pretext is now being used to target polling places used by other racial and ethnic minority groups,” Tucker said.

Disability advocates have also rejected the strategy in Randolph County. The federal Election Assistance Commission held a town hall at the National Disability Rights Network conference in July, where disability rights advocates testified about how to accommodate disabled voters with alternatives like curbside voting, while keeping polling locations open and available to voters in rural parts of the county.

The use of the ADA is just the latest tactic is a long list of strategies that Republicans have used to suppress minority voters. Earlier this year, GOP lawmakers in Georgia similarly attempted to eliminate Sunday voting in Atlanta, a move that would disproportionately hurt black voters.

Young said that closing polls is even more disruptive than cutting hours and other forms of voter suppression, and the effects are felt especially hard in rural Georgia, where many voters fought for the passage of the Voting Rights Act during the Civil Rights Era.

“What we see in Georgia is that every tool in the voter suppression toolkit is in use,” Young said. “I’m not surprised to see a new theory for voter suppression.”

Tucker warned that this won’t be the last time the ADA is deployed for this purpose. More officials may turn to the disability law in order to eliminate existing polling locations or as an excuse to not establishing them in the first place.

“You’re essentially using one civil rights statute to deny rights under another,” he said. “That’s the most perverse element of all of this.”

Editor’s note: The original published version of this story mischaracterized the Justice Department’s ADA enforcement effort in polling stations as a Trump administration initiative to suppress voters of color. That’s not the full story. After publication, officials from DOJ as well as activists in targeted counties reached out to tell ThinkProgress their interpretation and experiences with the program differed — in some jurisdictions, they told us, the program was working to increase minority voter participation. This story has been updated to reflect those other views, and to correct a factual error.