Government provides vital information and services to U.S. citizens and residents. Their access to such information is essential to being able to obtain the services they need.
In 2018, U.S. citizens will have the opportunity to vote in primary and general elections across the country, for local, state, and federal officials. A lot of the information people need to vote, including voter registration forms, polling place locations, and sample ballots are posted online, on local and state election officials’ websites.
But what if election websites are not accessible to people with disabilities? What then?
Website accessibility for people with disabilities remains the focus of a lot of attention. The main federal website accessibility law for businesses like hotels, restaurants, banks, and supermarkets is Title III of the Americans with Disabilities Act (ADA).
Although most courts have sided with disabled people in their website accessibility cases against ADA Title III businesses, the tally is not unanimous. Where you live and what courts have decided in your part of the country can determine what kind of case a person with disabilities has for ADA Title III website accessibility discrimination.
But what about local and state election departments? Is the law the same for them as it is for businesses?
The easy answer is: No.
ADA and Website Accessibility
Local and state governments are governed by ADA Title II. The courts uniformly have decided that ADA Title II covers all state and local government functions. Judges have analyzed federal regulations and concluded:
ADA Title II regulations ‘‘appl[y] to all services, programs, and activities provided or made available’’ by local and state government. See: 28 Code of Federal Regulations §35.102 and Nondiscrimination on the Basis of Disability; Accessibility of Web Information and Services of State and Local Government Entities and Public Accommodations, Advanced Notice of Proposed Rulemaking, U.S. Department of Justice, Federal Register/Vol. 75, No. 142, at 43464 (2010).
“As authorized by [ the ADA], the United States Attorney General has promulgated a vast body of regulations implementing Title II. The regulations flesh out public entities’ statutory obligations with more specificity, but a public entity may violate the ADA even if no regulation expressly proscribes its particular conduct. See, e.g., Barden, 292 F.3d at 1076–78 (applying Title II to sidewalks even though no implementing regulations specifically addressed sidewalks).
We give Department of Justice (DOJ) regulations construing Title II “controlling weight unless they are arbitrary, capricious, or manifestly contrary to the statute.”
Cohen v. City of Culver City, No. 13-55079 (U.S. Court of Appeals for the Ninth Circuit 2014)
Many election offices have responded to the trend of website accessibility lawsuits and U.S. Department of Justice (DOJ) enforcement. These offices are posting information online about website accessibility and are making their websites legally accessible to people with disabilities perhaps more than ever before:
For example, Cerro Gordo County, Iowa features the following information:
“Accessibility: If you use assistive technology (such as a Braille reader, a screen reader, or TTY) and the format of any material on this website interferes with your ability to access information, please contact us. To enable us to respond in a manner most helpful to you, please indicate the nature of your accessibility problem, the preferred format in which to receive the material, the web address of the requested material, and your contact information. Users who need accessibility assistance can also contact us by phone through the Federal Information Relay Service at 1-800-877-8339 for TTY/Voice communication.”
DOJ’s 2017 decision not to move forward with much anticipated federal regulations that would have provided guidelines for prioritizing website accessibility fixes impacts the 2018 elections. State and local governments are now left to answer for themselves how to make their election websites legally accessible for voters with disabilities and the 2018 elections, elections that promise to be closely watched and hotly contested.
Without unequivocal DOJ guidance about this key legal question of HOW, the federal courts are filling the gap and deciding for themselves.
The Task of Determining Meaningful Access
At the end of December 2017, a federal court in New York did just that. In a case filed against the New York State Board of Elections by two visually impaired voters, the court weighing what exactly an ADA Title II elections website must have to be legally accessible to people with disabilities. The court recognized that “[election] websites provide a host of services relating to voter registration, polling location information, organ donation, gifting of motor vehicles, vehicle registration and use, and non-vehicle identity cards.”
In this case, the Board of Elections, according to the court, had already made various changes to its website to address accessibility concerns. However, the two voters who sued the Board disagreed, alleging that what the Board did was not enough. The election website, the voters claimed, was still inaccessible to them because of their visual disabilities.
On December 20, 2017, the court decided that to evaluate ADA compliance and website accessibility, the court must determine if people with disabilities have “meaningful access” to the Board’s online election programs, services, and activities.
As the court ruled: “It is well known and accepted that use of a website is dynamic; people are expected to access a site and essentially explore it, to find out what they can do, and what services are offered on the site. Thus, lack of meaningful access is the equivalent of an inability to engage in that very exploration. With respect to websites run by the State government, having a meaningful ability to understand precisely what is and is not on offer (information or services) is a right of every citizen.”
What is this “meaningful access?” With DOJ’s retreat from providing guidance about this question, U.S. District Court Judge Forrest in New York will decide for herself how much online access is enough under the ADA to be “meaningful” for these voters with disabilities. Her decision may well affect election websites across the United States, before the first vote is cast on Election Day, 2018.
**Read some of Bruce Adelson’s other blog posts about web accessibility and to learn about more developments in language access law. Be sure to contact us if you’re interested in a consultation about your own organization’s compliance with federal language access law.
© Bruce L. Adelson, special for Bromberg. 2017 All Rights Reserved The material herein is educational and informational only. No legal advice is intended or conveyed.
Bruce L. Adelson, Esq, CEO of Federal Compliance Consulting LLC is nationally recognized for his compliance expertise concerning many federal laws. Mr. Adelson is a former U.S Department of Justice Civil Rights Division Senior Trial Attorney.
Mr. Adelson teaches cultural and civil rights awareness at Georgetown University School of Medicine in Washington, D.C.