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SEP 30 1993

XXXXX
XXXXX
XXXXX

RE: Complaint Number XXXX

Dear Ms. XXXX :

This letter constitutes our Letter of Findings with respect


to your complaint filed with our office on January 11, 1993,
against the city and County of Denver Election Commission
[Commission], under title II of the Americans with Disabilities
Act [ADA]. Title II prohibits discrimination against qualified
individuals with disabilities on the basis of disability by State
and local governments. Specifically, you allege that the voting
machines used by the Commission are not accessible to persons
with mobility impairments.

The Civil Rights Division has completed its investigation of


your complaint. Our investigation revealed that the State of
Colorado requires that when a voter with a mobility impairment is
not able to use a voting machine, election judges shall assist
the voter outside the polling place within 100 feet of the
polling place. The Commission has advised us that it follows
these procedures in all of its elections. Two elections judges
assist the voter by taking a sample ballot and pen to the voter
and observing while the voter marks the ballot. One of the
judges will record the vote on a voting machine and, then,
destroy the sample ballot.

Title II of the ADA, which applies to public entities (State


and local governments), requires "program access," rather than
"facility access," for buildings and facilities existing an the
effective date. A public entity must operate each program,
service, or activity so that the service, program, or activity,
when viewed in its entirety, is readily accessible to and usable
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by individuals with disabilities, but is not necessarily required
to make each of its existing facilities accessible to and usable
by individuals with disabilities. 28 C.F.R. 35.15 (the
Department of Justice's regulation implementing title II, 28
C.F.R. pt. 35, a copy of which is enclosed). Removal of
architectural barriers is one method of providing access to
programs and activities in existing facilities, but other methods
are also permitted if they provide program access. The
"curbside" voting procedure followed by the Commission meets the
requirement for program accessibility because it provides an
equal opportunity for voters with disabilities to cast their
ballots on the day of the election.

If you are aware of instances when the Commission has failed


to follow its procedures for curbside voting, or otherwise has
denied you or another individual with a disability the
opportunity to vote, you may file a complaint concerning that
particular incident with our office.

Based upon our determination that the Commission's


procedures for curbside voting meet the requirements of title II,
we are closing your complaint as of the date of this letter. 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
because she or he 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 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 safe-
guard, 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.

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-3-
Please use the Department of Justice complaint number in all
correspondence and other communications regarding this complaint.
If you have any questions, please contact Linda King at (202)307-2231.

Stewart B. Oneglia

Chief
Coordination and Review Section
Civil Rights Division

Enclosure
01-00106

SEP 30 1993

Ms. Arlys Ward


Executive Director
City and County of Denver
Election Commission
303 West Colfax Avenue, Suite 101
Denver, Colorado 80204-2617

RE: Complaint Number XXXX

Dear Ms. Ward:

This letter constitutes our Letter of Findings with respect


to the complaint filed with our office against the City and
County of Denver Election commission (commission) under title II
of the Americans with Disabilities Act [ADA]. Title II prohibits
discrimination against qualified individuals with disabilities on
the basis of disability by State and local governments.

The Civil Rights Division has completed its investigation of


the complaint. Our investigation revealed that the State of
Colorado requires that when a voter with a mobility impairment is
not able to use a voting machine, election judges shall assist
the voter outside the polling place within 100 feet of the
polling place. The Commission has advised us that it follows
these procedures in all of its elections. Two elections judges
assist the voter by taking a sample ballot and pen to the voter
and observing while the voter marks the ballot. One of the
judges will record the vote on a voting machine and, then,
destroy the sample ballot.

Title II of the ADA, which applies to public entities (State


and local governments), requires "program access," rather than
"facility access," for buildings and facilities existing on the
effective date. A public entity must operate each program,
service, or activity so that the service, program, or activity,
when viewed in its entirety, is readily accessible to and usable
by individuals with disabilities, but is not necessarily required
to make each of its existing facilities accessible to and usable
by individuals with disabilities. 28 C.F.R. 35.150 [the
Department of Justice's regulation implementing title II, 28
C.F.R. pt. 35 (copy enclosed)) . Removal of architectural
01-00107

-2-
barriers is one method of providing access to programs and
activities in existing facilities, but other methods are also
permitted if they provide program access. The "curbside" voting
procedure followed by the Commission meets the requirement for
program accessibility because it provides an equal opportunity
for voters with disabilities to cast their ballots on the day of
the election.

You should be aware, however, that your curbside voting


procedure is a permissible alternative only if it is an effective
method of providing access to the program or activity. Thus, if
the Commission failed to follow its procedures for curbside
voting, or otherwise denied an individual with a disability the
opportunity to vote, it would be in violation of title II and an
individual could file a complaint concerning that particular
incident with our office.

You should be aware that no one may intimidate, threaten,


coerce, or engage in other discriminatory conduct against anyone
because she or he 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 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 safe-
guard, 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.

Based upon our determination that the commission's


procedures for curbside voting meet the requirements of title II,
we are closing our files in this matter as of the date of this
letter. Thank you for your cooperation in this matter. 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

Enclosure

01-00108

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