No. 97-1155 IN THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT KING NELSON, et al., Plaintiffs-Appellants, v. CANDICE S. MILLER, in her official capacity as Secretary of State for the State of Michigan, Defendant-Appellee. ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MICHIGAN BRIEF FOR THE UNITED STATES AS AMICUS CURIAE ISABELLE KATZ PINZLER Acting Assistant Attorney General MARK L. GROSS SAMUEL R. BAGENSTOS Attorneys Department of Justice P.O. Box 66078 Washington, D.C. 20035-6078 (202) 514-2174 01-06072 TABLE OF CONTENTS PAGE INTEREST OF THE UNITED STATES . . . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF THE ISSUE . . . . . . . . . . . . . . . . . . . . . . . . . . 2 STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 ARGUMENT: THE DISTRICT COURT ERRED BY DISMISSING PLAINTIFFS' COMPLAINT . . . . . . . . . . . . . . . . . 7 A. Plaintiffs Have Stated A Claim That Michigan's Voting Assistance Procedures Discriminatorily Deny Blind Voters Ballot Secrecy In Violation Of The ADA . . . . . . . . . . . . . . 8 B. The ADA's Requirements 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 Result In Complete Denial Of The Franchise . . . . . . . . 17 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 TABLE OF AUTHORITIES CASES: Belcher v. Mayor of Ann Arbor, 262 N.W.2d 1 (Mich. 1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 Buckley v. Valeo, 424 U.S. 1 (1976) . . . . . . . . . . . . . . . . . . . 20 Burson v. Freeman, 504 U.S. 191 (1992) . . . . . . . . . . . . . . . . . . 19 Columbia Natural Resources, Inc. v. Tatum, 58 F.3d 1101 (6th Cir. 1995), cert. denied, 116 S. Ct. 1041 (1996) . . . . . . . . . . . . . . . . . . . . 7, 12 - i - 01-06073 CASES (continued): PAGE Crowder v. Kitagawa, 81 F.3d 1480 (9th Cir. 1996) . . . . . . . . . . 18, 19 Ellenwood v. Exxon Shipping Co., 984 F.2d 1270 (1st Cir.), cert. denied, 508 U.S. 981 (1993) . . . . . . . . . . 15 Innovative Health Sys., Inc. v. City of White Plains, 931 F. Supp. 222 (S.D.N.Y. 1996) . . . . . . . . . . . 13, 19 Lightbourn v. County of El Paso, 904 F. Supp. 1429 (W.D. Tex. 1995) . . . . . . . . . . . . . . . . . 8, 10, 16, 19 McIntyre v. Ohio Elections Comm'n, 115 S. Ct. 1511 (1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 Morton v. Mancari, 417 U.S. 535 (1974) . . . . . . . . . . . . . . . . . . 14 Oak Ridge Care Ctr., Inc. v. Racine County, 896 F. Supp. 867 (E.D. Wis. 1995) . . . . . . . . . . . . . . . . . . 19 Staron v. McDonald's Corp., 51 F.3d 353 (2d Cir. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . 15 CONSTITUTION AND STATUTES: Constitution of the United States: Equal Protection Clause . . . . . . . . . . . . . . . . . . . . . 19 Mich. Const., Art. 3, Section 4 . . . . . . . . . . . . . . . . . . . . 2, 19 Americans with Disabilities Act of 1990, Title II (ADA) . . . . . . . . . . . . . . . . . . . . . . . . passim 42 U.S.C. 12101(b) (1) . . . . . . . . . . . . . . . . . . . . . . . . . 15 42 U.S.C. 12131 et seq . . . . . . . . . . . . . . . . . . . . . . . . 1, 3 42 U.S.C. 12131(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 42 U.S.C. 12132 . . . . . . . . . . . . . . . . . . . . . . . . . 9, 14, 18 42 U.S.C. 12133 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 42 U.S.C. 12134 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 42 U.S.C. 12201(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 42 U.S.C. 12201(a) (3) . . . . . . . . . . . . . . . . . . . . . . . . . 16 42 U.S.C. 12201(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Rehabilitation Act of 1973, Section 504, 29 U.S.C. 794 . . . . . . . . . . . . . . . . . . . . . . . . . . . .passim - ii - 01-06074 STATUTES (continued): PAGE Voting Accessibility for the Elderly and Handicapped Act, 42 U.S.C. 1973ee et seq . . . . . . . . . . . . . . passim 42 U.S.C. 1973ee-6(1) . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Voting Rights Act of 1965, Section 208, as amended, 42 U.S.C. 1973aa-6 . . . . . . . . . . . . . . . . . . . passim M.C.L.A. Section 168.751 (West 1989) . . . . . . . . . . . . . . . . . . . 4 REGULATIONS: 28 C.F.R. Pt. 35, App. A Section  35.102 . . . . . . . . . . . . . . . .13 28 C.F.R. Pt. 35, App. A Section  35.130 . . . . . . . . . . . . . . . . 9 28 C.F.R. 35.130(b) (1) . . . . . . . . . . . . . . . . . . . . . . . . 9, 10 28 C.F.R. 35.130(b) (7) . . . . . . . . . . . . . . . . . . . . . . . . 9, 10 28 C.F.R. 35.160(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 28 C.F.R. 35.160(b) (1) . . . . . . . . . . . . . . . . . . . . . . . 10, 11 28 C.F.R. 35.160(b) (2) . . . . . . . . . . . . . . . . . . . . . . . 10, 11 28 C.F.R. 35.164 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 RULES: Fed. R. Civ. P. 12(b) (6) . . . . . . . . . . . . . . . . . . . . 4, 6, 7, 12 LEGISLATIVE HISTORY: H.R. Rep. No. 485, Part 2, 101st Cong., 2d Sess. (1990) . . . . . . . . . . . . . . . . . . . . . . . . . 13 H.R. Rep. No. 485, Part. 3, 101st Cong., 2d Sess. (1990) . . . . . . . . . . . . . . . . . . . . . . . . . .15 H.R. 2273, Americans with Disabilities Act of 1989: Hearing Before the Subcomm. on Select Education of the House Comm. on Education & Labor, 101st Cong., 1st Sess. (1989) . . . . . . . . . 16 S. Rep. No. 116, 101st Cong., 1st Sess. (1989) . . . . . . . . . . . . . . 16 135 Cong. Rec. S10753 (1989) . . . . . . . . . . . . . . . . . . . . . . . 16 135 Cong. Rec. S10793 (1989) . . . . . . . . . . . . . . . . . . . . . . . 17 - iii - 01-06075 MISCELLANEOUS: ADA Title II Technical Assistance Manuel, 1994 Supp., Section II-7.1100 . . . . . . . . . . . . . . . . . . . . . 11 - iv - 01-06076 IN THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT No. 97-1155 KING NELSON, et al., Plaintiffs-Appellants, v. CANDICE S. MILLER, in her official capacity as Secretary of State for the State of Michigan, Defendant-Appellee. ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MICHIGAN BRIEF FOR THE UNITED STATES AS AMICUS CURIAE INTEREST OF THE UNITED STATES This case involves the relationships among four statutes 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 of 1965, as amended, 42 U.S.C. 1973aa-6 (Section 208); the Voting Accessibility for the Elderly and Handicapped Act, 42 U.S.C. 1973ee et seq. (Voting Accessibility Act); and Title II of the Americans with Disabilities Act of 1990, 42 U.S.C. 12131 et seq. (ADA Title II). The district court effectively held that the ADA and Section 504 do not impose any requirements regarding voting accessibility beyond those imposed by the Voting Accessibility Act and Section 208. That holding, if affirmed, could significantly affect the government's enforce- ment responsibilities under these statutes. 01-06077 - 2 - STATEMENT OF THE ISSUE Whether the district court properly dismissed plaintiffs' complaint alleging that the failure to provide a means for blind voters to cast secret ballots violated the Americans with Disabi- lities Act (ADA) and Section 504 of the Rehabilitation Act (Section 504). STATEMENT OF THE CASE 1. This case arises on 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 in order to exercise their fundamental constitutional right to vote and to do so by secret ballot" (R. 1: Complaint at 7 ( 35)).1/ They challenge Michigan's procedures for assisting blind or 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. 1 at 4 ( 19)). The state does not, however, "provide them with a ballot or voting system which would allow them to read and mark the vote in private" (R. 1 at 4 ( 21)). Plaintiffs contend that the state's procedures impermissibly deprive blind or visually impaired people of the right to vote by secret ballot -- a right guaranteed to all other Michigan citi- zens (R. 1 at 5-6 (Paragraph 29-34)). See Mich. Const., Art. 3,  4. In addition to the intrusion on secrecy inherent in having a 1/"R."refers to entries on the district court's docket sheet. 01-06078 - 3 - third party present in the voting booth, one plaintiff alleges that an election worker "shouted out her voting choice in front of other voters present at the polling place" (R. 1 at 5 ( 23)). Plaintiffs seek "ballots in a format which would allow them the right to vote by secret ballot" (R. 1 at 6 ( 34)). They allege that "inexpensive technologies that are currently in commercial use" such as "brailled ballot overlays or templates, taped text or phone-in voting systems" would "permit persons who are blind to read and mark ballots without involving a third party" (R. 1 at 6 ( 34)). 2. On September 26, 1996, plaintiffs brought this suit in the District Court for the Western District of Michigan. The Michigan Secretary of State, sued in her official capacity, was the sole defendant (R. 1 at 3 ( 10)). Plaintiffs claim that the state's failure to provide ballots in an accessible format violates Title II of the Americans with Disabilities Act of 1990, 42 U.S.C. 12131 et seq.. See R. 1 at 8-9 ( 41-48). Specifically, they contend that the state's current procedures "deny voters who are blind an equal opportunity to vote by secret ballot" and that the provision of ballots in alternative formats would constitute a reasonable modification that would "avoid discrimination on the basis of disability" (R. 1 at 9 ( 47- 48)). For essentially the same reasons, plaintiffs also claim that defendants have violated Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. 794. See R. 1 at 9-10 ( 49-54). On December 20, 1996, the district court granted the state's 01-06079 - 4 - motion to dismiss pursuant to Fed. R. Civ. P. 12 (b) (6) (R. 17: Opinion). The court observed that the Voting Accessibility Act and Section 208 of the Voting Rights Act explicitly addressed issues of accessibility in voting (R. 17 at 2-4). Because "Con- gress did not intend that the ADA displace the Federal Voting Rights Acts" (R. 17 at 2), the district court first addressed whether Michigan's current procedures violated either of these two statutes (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 be assisted by a person of their choice. 42 U.S.C. 1973aa-6. 2/ In fact, the Voting Accessibility Act allows the states to set their own accessibility standards -- and it does not apply to state and local elections. 42 U.S.C. 1973ee-6 (1). 2/ Section 208 entitles "[a]ny voter who requires assistance to vote 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. 1973aa-6. By its terms, the Michigan voter assistance statute (M.C.L.A.  168.751 (West 1989)) does not fully comply with Section 208. The Michigan law allows people with disabilities to receive assistance by a person of their choice only if they are "disabled on account of blindness"; unlike Section 208, it does not extend this right to persons with other disabilities or persons who are illiterate. See M.C.L.A. S 168.751 (West 1989). Even as to blind voters, the Michigan law allows the voter to obtain assistance only from "a member of his or her immediate family" or a person of his or her choice over 18 years of age; the federal statute contains no age or familial limitation. In correspondence initiated by the United States in 1984, however, Michigan assured us that it fully complies with Section 208 in practice, notwithstanding the limitations incorporated in the state statute. See letter from Gary P. Gordon, Assistant Attorney General, to Gerald W. Jones, Chief, Voting Section (Aug. 31, 1984) (attached as addendum). 01-06080 - 5 - The court next disposed of plaintiffs' ADA and Section 504 claims (R. 17 at 5-6) (footnotes omitted): Clearly, if the Plaintiffs were excluded from being able to cast a ballot, the Defendant would be in violation of the Voting Rights Acts, 12132 of the ADA, and 504 of the RA. However, 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 Con- gress 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 of the ADA and RA or the legislative history of either Act that Congress intended such a broad reading. This conclusion is further strength- ened when the ADA and RA are read in harmony with the Voting Rights Acts, which also do not mandate the result proposed by the Plaintiffs. Without citing any language in the ADA or its legislative his- tory, to support its conclusion, the court announced that "[s]imilar 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" (R. 17 at 7). SUMMARY OF ARGUMENT Michigan generally guarantees voters the right to cast secret ballots, but it does not enable blind or visually impaired voters to vote in secret. Under the state's procedures for assisting voters with disabilities, blind or visually impaired voters must announce their choices 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 at the pleading stage, - 6 - plaintiffs have stated a claim for a violation of the Americans with Disabilities Act. The ADA prohibits states from providing services in a manner that denies persons with disabilities an equal opportunity to gain the same benefits as those provided to others, and it requires states to adopt reasonable modifications to their existing practices where those modifications would avoid such discrimination 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 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 district court therefore erred by dismissing plaintiffs' complaint under Rule 12 (b) (6). In ruling for the defendants, the district court appeared to conclude that the ADA imposes no requirements for accessible voting procedures beyond those set forth in two pre-ADA statutes: the Voting Accessibility Act and Section 208 of the Voting Rights Act. That conclusion is incorrect. By its plain terms, the ADA applies with full force to discriminatory election practices, whether or not those practices comply with pre-ADA federal accessibility standards. Indeed, Congress specifically identi- fied voting as an area in which disability-based discrimination persisted at the time it enacted the ADA. The Act's legislative history confirms that Congress believed the existing voting 01-06082 - 7 - accessibility laws to be inadequate. The district court also appeared to conclude that only the outright denial of the franchise -- and not the discriminatory denial of ballot secrecy -- could make out a violation of the ADA. That conclusion, too, was incorrect. While the ADA prohib- its the complete exclusion of persons with disabilities from government services or benefits, it independently prohibits discrimination in the manner in which services or benefits are provided. Michigan's current procedures deprive blind or visu- ally impaired voters of an important benefit -- ballot secrecy -- generally afforded to voters in the state. Plaintiffs have stated a claim that those procedures violate the ADA. ARGUMENT THE DISTRICT COURT ERRED BY DISMISSING PLAINTIFFS' COMPLAINT This case arose on the pleadings. Accordingly, the district court was required to "construe the complaint in a light most favorable to the plaintiff, accept all of the factual allegations as true, and determine whether the plaintiff undoubtedly can prove no set of facts in support of his claims that would entitle him to relief. When an allegation is capable of more than one inference, it must be construed in the plaintiff's favor." Columbia Natural Resources, Inc. v. Tatum, 58 F.3d 1101, 1109 (6th Cir. 1995) (citations omitted) (citing cases), cert. denied, 116 S. Ct. 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 01-06083 - 8 - voters lack an important benefit generally guaranteed to voters in the state -- the ability to cast their ballots in secret. Plaintiffs have alleged that inexpensive technologies exist to assure blind or visually impaired voters ballot secrecy. Taking that allegation as true, as the court must at this stage of the litigation, plaintiffs' complaint clearly states a claim that Michigan has violated the ADA.3 Those allegations, if proven at trial, would establish that the state has failed to adopt reason- able modifications of its existing procedures that would elimi- nate discrimination. The only other federal court case of which we are aware that has addressed these issues found a violation of the ADA. See Lightbourn v. County of El Paso, 904 F. Supp. 1429 (W.D. Tex. 1995). The district court accordingly erred in granting defendants' motion to dismiss. A. Plaintiffs Have Stated A Claim That Michigan's Voting Assis- tance Procedures Discriminatorily Deny Blind Voters Ballot Secrecy In Violation Of The ADA 1. Title II of the ADA covers "public entities" -- that is, units of state and local government. 42 U.S.C. 12131(1). The operative section of Title II provides that "no qualified indi- vidual 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 3/The remedies available to a plaintiff under the ADA are precisely the same as those available under Section 504. See 42 U.S.C. 12133. Because, on the allegations of this case, plaintiffs could not prevail on their Section 504 claim without also prevailing on their ADA claim, this brief focuses on the ADA. Cf. 42 U.S.C. 12201(a) (setting forth relationship between ADA and the Rehabilitation Act). 01-06084 - 9 - subjected to discrimination by any such entity." 42 U.S.C. 12132 (emphasis added). The Act vests the Attorney General with authority to promulgate legislative rules to implement this provision. 42 U.S.C. 12134. Pursuant to that authority, the Attorney General has issued regulations that "establish the general principles for analyzing whether any particular action of the public entity violates [Title II's general nondiscrimination] mandate." 28 C.F.R. Part 35, App. A  35.130. These regulations state, inter alia, that a public entity may not "[p]rovide 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)(1). They also require public entities to "make reasonable modifica- tions in policies, practices, or procedures when the modifica- tions are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity." 28 C.F.R. 35.130(b)(7). The regulations also apply these principles to the specific context of communications with the public. They require public entities to "take appropriate steps to ensure" that communica- tions with people with disabilities "are as effective as communi- cations with others." 28 C.F.R. 35.160(a). In particular, such entities must "furnish appropriate auxiliary aids and services 01-06085 - 10 - 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" they conduct. 28 C.F.R. 35.160 (b) (1). Public entities must "give primary consideration to the requests of the individuals with disabilities" in determi- ning what auxiliary aid or service to use. 28 C.F.R. 35.160(b)(2). An exception occurs only when the public entity can prove that providing the requested aid or service would result in a fundamental alteration or an undue financial or administrative burden. See 28 C.F.R. 35.164. 2. Plaintiffs have clearly pleaded a violation of these requirements. "The State of Michigan has guaranteed the right to vote by secret ballot to all Michigan citizens" (R. 1 at 5 ( 29)). But the state's current voter assistance procedures do not provide blind or visually impaired voters with ballot secrecy. Thus, the state provides blind or visually impaired voters "with an aid or service that is not as effective in affording equal opportunity to obtain the same benefit, 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)(1); see Lightbourn, 904 F. Supp. at 1433. And although plaintiffs have alleged that "reasonable modifications" of the state's current procedures -- such as the adoption of alternative ballot formats -- would avoid this discrimination, the state has refused to adopt those modifica- tions, in violation of 28 C.F.R. 35.130 (b) (7). As alleged in the complaint, the state's refusal also violates the effective 01-06086 - 11 - 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 opportunity to participate in, and enjoy the benefits of," the state's voting activities, 28 C.F.R. 35.160(b)(1), and the state has failed to "give primary consideration to the requests" of those blind or visually impaired voters who desire ballot secrecy. 28 C.F.R. 35.160(b) (2). The United States has previously addressed these issues in our Title II Technical Assistance Manual. The 1994 Supplement to that publication discussed a hypothetical case in which a county allowed blind voters to vote with the assistance of "two poll workers, 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.,  II-7.1100 at 5-6. We stated that the denial of the voter's request would not violate Title II, because a Brailled ballot "would have to be counted separately and would be readily identifiable, and thus would not resolve the problem of ballot secrecy." ADA Title II Technical Assistance Manual, 1994 Supp.,  II-7.1100 at 5-6. The discussion in our technical assistance manual rested on the factual premise that Brailled ballots would not assure ballot secrecy and that no other accommodations were available that would assure ballot secrecy. If reasonable modifications were available that would allow blind or visually impaired voters to 01-06087 - 12 - 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. Here, plaintiffs have alleged that such reasonable modifications exist. Unlike the hypothetical plaintiff in our technical assistance manual, they have not sought Brailled ballots. Rather, they have requested that the state employ such alterna- tives as "brailled ballot overlays or templates" (which would not require their 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 secret ballot" (R. 1 at 6 ( 34)). In light of these allegations, Rule 12(b)(6) dismissal was improper. The complaint, taken in the light most favorable to the plaintiffs, see Columbia Natural Resources, Inc., 58 F.3d at 1109, alleges that inexpensive balloting formats are available that would allow them to vote without compromising their secrecy. If those allegations are proven, plaintiffs will have established a violation of the ADA. Plaintiffs are entitled to an opportu- nity to prove their allegations. B. The ADA's Requirements Of Voting Accessibility Are Not Limited By The Less Protective Requirements Of Pre-ADA Statutes In granting the motion to dismiss, the district court appeared to conclude that the ADA did not impose any accessibil- ity requirements on the voting process beyond those already 01-06088 - 13 - embodied in the Voting Accessibility Act and Section 208 of the Voting Rights Act. See R. 17 at 2 ("Congress did not intend that the ADA displace the Federal Voting Rights Acts."); R. 17 at 6 (stating that the court's conclusion that the ADA cannot afford plaintiffs relief "is further strengthened when the ADA and RA are read in harmony with the Voting Rights Acts, which also do not mandate the result proposed by the Plaintiffs"); R. 17 at 7 ("This Court does not find anything in the ADA to indicate that Congress believed that the Voting Rights Acts were insuf- ficient."). That ruling is incorrect.4/ By its plain terms, ADA Title II's general prohibition of discrimination applies to discriminatory election practices. Indeed, that prohibition "applies to anything a public entity does." 28 C.F.R. Part 35, App. A  35.102; see also Innovative Health Sys., Inc. v. City of White Plains, 931 F. Supp. 222, 232 (S.D.N.Y. 1996) (finding "nothing in the text or legislative history of the ADA to suggest that zoning or any other governmen- tal activity was excluded from its mandate"); H.R. Rep. No. 485, Part 2, 101st Cong., 2d Sess. 84 (1990) (Title II applies "to all actions of state and local governments").5/ Title II provides, without qualification, that "no qualified individual with a 4/The district court also erred in presuming that the Michigan statute complies with Section 208. As we have explained, see n.2, supra, the Michigan statute on its face violates Section 208, although state officials have assured us that they comply with federal law in practice. 5/By contrast, the Voting Accessibility Act does not even apply to a state's administration of state and local elections. See 42 U.S.C. 1973ee et seq. 01-06089 - 14 - 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. On its face, this broad language would appear to reach any state action that subjects people with disabilities to "discrimination" as defined in the ADA regulations -- regardless of whether 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 district court purported to rely on 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." Morton v. Mancari, 417 U.S. 535, 551 (1974) (quoted in R. 17 at 2). But the district court's decision directly contradicts that principle. Under that ruling, the ADA has no independent effect in the voting area, for the court read Section 208 and the Voting Accessibility Act to occupy the field. In short, the district court undertook "to pick and choose among congressional enactments," which "[t]he courts are not at liberty to" do. Morton, 417 U.S. at 551. Congress itself made clear that earlier, less protective statutes cannot limit the application of the ADA. The ADA's savings provision specifically addresses this question. That provision preserves the operation of other state and federal disability rights laws, but only to the extent that those laws 01-06090 - 15 - "provide[] greater or equal protection for the rights of indivi- duals with disabilities than are afforded by this chapter." 42 U.S.C. 12201(b). This provision underscores Congress's intent "to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabili- ties," 42 U.S.C. 12101 (b) (1), and not to limit people with dis- abilities to the often ineffectual protections 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,6/ those alternative remedies do not in any way limit the application of the ADA itself. Cf. Staron v. McDon- ald's Corp., 51 F.3d 353, 357 (2d Cir. 1995) (ADA savings clause "does not state, and it does not follow, that violations of the ADA should go unaddressed merely because a state has chosen to provide some degree of protection to those with disabilities"). In rejecting this conclusion, the district court stated that it had found "[no]thing in the ADA to indicate that Congress believed that the Voting Rights Acts were insufficient" (R. 17 at 7). But the district court overlooked several portions of the statute and its legislative history that bore directly on this question. In the ADA's statement of findings, Congress singled 6/ See Ellenwood v. Exxon Shipping Co., 984 F.2d 1270, 1277 (1st Cir.) (ADA savings clause "allow[s] overlapping remedies for employment discrimination"), cert. denied, 508 U.S. 981 (1993); H.R. Rep. No. 485, Part 3, 101st Cong., 2d Sess. 70 (1990) (ADA savings clause allows a plaintiff "to pursue claims under a state law that does not confer greater substantive rights, or even confers fewer substantive rights, if the plaintiff's situation is protected under the alternative law and the remedies are greater"). 01-06091 - 16 - out "voting" as one of the "critical areas" in which "discrimina- tion against individuals with disabilities persist[ed]," 42 U.S.C. 12201(a)(3) -- even though Section 208 and the Voting Accessibility Act had been on the books for eight and six years, respectively. See Lightbourn, 904 F. Supp. at 1432 ("Evidently, Congress did not feel that [the Voting Accessibility Act] was sufficient, as it revisited and specifically addressed the same issue six years later in the ADA."). The Senate Report accompa- nying the Act quoted the testimony of Illinois's Attorney Gen- eral, who "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. 116, 101st Cong., 1st Sess. 12 (1989). In the House hearings on the bill, the limitations of the Voting Accessibility Act were specifically discussed. One witness described how some jurisdic- tions had implemented that statute in a manner that was "demean- ing to the disabled person" and that "create[d] a loss of dignity and independence for the disabled voter." H.R. 2273, Americans with Disabilities Act of 1989: Hearing Before the Subcomm. on Select Education of the House Comm. on Education & Labor, 101st Cong., 1st Sess. 41 (1989) (statement of Nanette Bowling, Staff Liaison to the Mayor's Advisory Council for Handicapped Individu- als, Kokomo, IN).7/ (The plaintiffs in this case have alleged 7/ The issue of voting accessibility also arose in the floor debates over the ADA. See 135 Cong. Rec. S10753 (1989) (remarks of Senator Gore) ("As a practical matter, many Americans with disabilities find it impossible to vote. Obviously, such a (continued...) 01-06092 - 17 - that defendants' procedures have caused them a similar loss of dignity. See R. 1 at 5 ( 23). These statements demonstrate that Congress specifically targeted the problem of voting acces- sibility when it enacted the ADA. They provide further support for the conclusion that is apparent from the statutory text: Title II added additional accessibility requirements; its reach is not limited to the narrow protections afforded by existing laws. The district court erred in reaching a contrary conclu- sion. C. Discriminatory Denial of Ballot Secrecy Violates The ADA Even If It Does Not Result In Complete Denial Of The Franchise In ruling for defendants, the district court also concluded that the denial to blind or visually impaired voters of ballot secrecy -- as opposed to the outright deprivation of the right to vote -- is not sufficiently serious to constitute prohibited discrimination under the ADA. See R. 17 at 5-6 ("[T]he Plain- tiffs 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."); R. 17 at 6 n.3 ("Neither the ADA [n]or the RA indicate that voting privacy for blind voters was a benefit' Congress sought to protect or a 'discrimination' that Congress sought to 7/(...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). 01-06093 - 18 - prevent."); R. 17 at 7 ("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."). That ruling is also incorrect. The operative provision of Title II is phrased in the disjunctive: "no qualified individual with a disability shall * * * be excluded from participation in or be denied the benefits of" a service, program, or activity "or be subjected to discri- mination" by a public entity. 42 U.S.C. 12132 (emphasis added). This language plainly prohibits both the outright exclusion of people with disabilities from government activities and discrimi- nation in the manner in which those activities are administered. See Crowder v. Kitagawa, 81 F.3d 1480, 1483 (9th Cir. 1996). While the Michigan system does not entirely deprive blind or visually impaired voters of the franchise, it clearly discrimi- nates against 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 state has failed to adopt reasonable modifications to its existing proce- dures. As we have explained, that conduct would constitute "discrimination" within the meaning of the ADA and its implement- ing regulations. The district 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 (R. 17 at 5-6). The 01-06094 - 19 - district court misconceived the proper inquiry. Title II's prohibition on "discrimination" is not limited to discrimination that affects a "protected right." Rather, it encompasses all disability-based discrimination committed by a public entity. See Crowder, 81 F.3d at 1483; Innovative Health Sys., Inc., 931 F. Supp. at 232; Oak Ridge Care Ctr., Inc. v. Racine County, 896 F. Supp. 867, 872-873 (E.D. Wis. 1995). In this respect, the ADA functions like the Equal Protection Clause, which subjects to strict scrutiny all discriminations involving suspect classifi- cations, whether or not those discriminations also involve "fun- damental rights." See Lightbourn, 904 F. Supp. at 1433 ("The ADA is about equality; Plaintiffs seek to be afforded the same rights and privileges as their non-handicapped peers on election day."). In any event, Michigan's voting assistance procedures deprive blind or visually impaired voters of an exceptionally important interest -- ballot secrecy. The state's constitution itself explicitly protects the "secrecy of the ballot." Mich. Const., Art. 3, 4; see Belcher v. Mayor of Ann Arbor, 262 N.W.2d 1, 2 (Mich. 1978) (ballot secrecy may not be compromised absent showing that voter acted fraudulently). The Supreme Court has similarly recognized that the secret ballot serves compelling state interests. See Burson v. Freeman, 504 U.S. 191, 206 (1992); see also McIntyre v. Ohio Elections Comm'n, 115 S. Ct. 1511, 1517 (1995) (observing that the 'respected tradition of anonymity in the advocacy of political causes" is "perhaps best exemplified by the secret ballot, the hard-won right to vote 01-06095 - 20 - one's conscience without fear of retaliation"); Buckley v. Valeo, 424 U.S. 1, 237 (1976) (Burger, C.J., concurring in part and dissenting in part) (" [S]ecrecy and privacy as to political preferences and convictions are fundamental in a free society. For example, one of the great political reforms was the advent of the secret ballot as a universal practice."). Given their alle- gations that alternative, inexpensive ballot formats are avail- able, plaintiffs have stated a claim that the failure to choose those alternatives unlawfully "denie[s]" blind or visually im- paired voters an important "benefit[]" -- the benefit of ballot secrecy. Thus, even if the Michigan system did not violate the "discrimination" prong of Title II, plaintiffs would still have adequately alleged a violation of the "deny a benefit" prong of that Title. The district court accordingly erred in granting the motion to dismiss. CONCLUSION The judgment of the district court should be reversed. Respectfully Submitted, ISABELLE KATZ PINZLER Acting Assistant Attorney General MARK L. GROSS SAMUEL R. BAGENSTOS Attorneys Department of Justice P.O. Box 66078 Washington, D.C. 20035-6078 (202) 514-2174 01-06096 CERTIFICATE OF SERVICE I hereby certify that on April 23, 1997, two copies of the foregoing Brief for the United States as Amicus Curiae were served by first-class mail, postage prepaid, on the following counsel: Amy E. Maes, Esq. Michigan Protection & Advocacy Services 106 W. Allegan St. Suite 300 Lansing, MI 48933-1706 Denise C. Barton, Esq. Office of the Attorney General Public Employment & Elections Div. P.O. Box 30212 600 Law Building Lansing, MI 48913 SAMUEL R. BAGENSTOS Attorney 01-06097 ADDENDUM 01-06098 STATE OF MICHIGAN DEPARTMENT OF ATTORNEY GENERAL STANLEY D. STEINBORN Chief Assistant Attorney General FRANK J. KELLEY ATTORNEY GENERAL LANSING 48913 August 31, 1984 Mr. Gerald W. Jones Chief, Voting Section United States Department of Justice Washington, D.C. 20530 ATTN: Mrs. Schwartz Re: 1982 Amendments to the Voting Rights 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 the 1982 amendments to the Voting Rights Act, Public Law 97-205 has been referred to me for reply. The Michigan Election Law, 1954 PA 116, 751; MCLA 168.751; MSA 6.1751 discusses what assistance may be given to an elector who is unable 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, he or she may be assisted by a member of his or her family or by any person over 18 years of age designated by the blind person. This provision of Michigan Election Law appears to be in conflict with S 208 of Public Law 97-205 in that the handicapped individual must be assisted by inspectors of election only, unless the elector is blind. However, the Michigan Secretary of State, through his authority as the chief election officer of the State of Michigan with super- visory authority over local election officials, has speci- fically directed these officials to comply with the provi- sions of the 1982 amendments to the Voting Rights Act. Copies of directions to the local election officials are 5 SEP 1984 01-06099 Mr. Gerald W. Jones Page Two August 30, 1984 attached to this letter indicating that S 208 of the Voting Rights Act was to be complied with by the local clerks and precinct officials at Michigan's recent primary election. Therefore, based upon the attached instructions of the Secretary of State issued to local election officials directing them to comply with the Voting Rights Act, no change in Michigan law is required for compliance with the Voting Rights Act at the present time. However, it may be advisable for the Michigan Secretary of State, based upon his position as director of Michigan elections, to request the Legislature to amend Michigan Election Law to speci- fically comport with the provisions of S 208 of the Voting Rights Act. However, in the interim, please be assured that the Michigan Secretary of State and this office will make every effort to insure that the Voting Rights Act provisions are complied with by all Michigan election officials. If you have any additional questions or desire further information, please do not hesitate to contact me. Very truly yours, FRANK J. KELLEY Attorney General Gary D. Gordon Assistant Attorney General 650 Law Building 525 West Ottawa Street Lansing, MI 48913 (517) 373-6434 GPG/jad Attachments 01-06100 M I C H I G A N D E P A R T M E N T O F S T A T E LANSING RICHARD H. AUSTIN * SECRETARY OF STATE MICHIGAN 48918 MUTUAL BUILDING 208 N. CAPITOL AVENUE August 2, 1984 TO ALL COUNTY CLERKS: Please be advised that the Federal Voting 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 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 of that employer or officer or agent of that employer or officer or agent of the voter's union." This amendment took effect in 1984 and differs from Michigan Law 168.751 which reads as follows: "Sec. 751. 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 inspec- tors of election. In 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." Both of these sections are in effect for all elections conducted in Michigan. Precinct inspectors are to be advised of the following procedures. If a person is requesting assistance of two precinct inspectors, the voter only needs to state that he or she needs assistance. 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 two inspectors assisting. 01-06101 County Clerks August 2, 1984 Page two If the person is requesting to be assisted by a person of their own choice the following question must be asked of the voter: "Are you requesting assistance to vote by reason of blindness, disability, or inability to read or write?" Only a "yes" or "no" answer is required. Specific details are not necessary. If the answer is yes to the question, the person who will assist the voter is to be asked: "Are you the voter's employer or agent of that employer or an officer or agent of an union to which the voter belongs?" If the answer is NO, the person may assist the voter. In such a case the precinct inspectors shall note in the remarks section of the poll book the name of the voter being 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. Sincerely, Christopher M. Thomas Director of Elections CMT:jmf 01-06102 Voter requiring assistance: "I will require some help in voting my ballot." Election Inspector: Are you requesting assistance from two election inspectors or from a person of your choice? Answer 1 Assisted Voter: "I would like two election inspectors to assist me." Note: No further questions are required. The election inspector 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 two inspectors assisting. Answer 2 Assisted Voter: "I would like Mr. John Smith to assist me." Election Inspector: "Are you requesting assistance to vote by reason of blindness, disability, or inability to read or write?" Note: Only a "yes" or "no" answer is required. Specific details are not necessary. Assisted Voter: "Yes." Election Inspector: Question to the person named to assist: "Are you the voter's employer or agent of that employer or an officer or agent of a union to which the voter belongs?" Person Chosen to Assist the Voter: "No" - The person may assist the voter. The election inspector shall note in the remarks section of the poll book the name of the voter being assisted and the name of the person assisting the voter. Person Chosen to Assist the Voter: "Yes" - The person shall not be allowed to assist the voter if he or she is the employer or agent of that employer of the voter or an officer or agent of a union to which the voter belongs. 01-06103