Over 100 polling places have closed in several key swing states this election cycle thanks to aggressive prosecutions by the Department of Justice over accommodations for people with disabilities.
Since 2016, President Trump’s DOJ has initiated 23 Americans With Disabilities Act (ADA) cases connected to polling-place accessibility since 2016, a big shift in emphasis for the Civil Rights Division under Trump and the two attorneys general who have served in his administration, Jeff Sessions and William Barr.
Passed in 1990, the ADA bans discrimination against people with disabilities in public life, including jobs, schools, transportation, and all public and private buildings open to the public. Until recently, it was rarely enforced on polling places, which are sometimes held in private spaces like churches. In the decade prior to Trump’s election in 2016, the Department of Justice averaged one polling place-focused accessibility case per year, and prior to 2006, there were no recorded ADA settlements involving polling places.
DOJ prosecutions under the ADA often lead to settlement agreements that can mention remedial steps like building ramps or using alternative entrances, and an agreement to ensure polling places are compliant in the future.
While settlement agreements never explicitly called for municipalities to cut polling sites, a majority of the counties investigated by the DOJ in the last four years did so following the litigation, resulting in a total of at least 103 closures.
Disability rights advocates stressed that while making facilities accessible is an important goal, closures are never the desired outcome. “The solution to inaccessible polling places is not to close them; it’s to make them accessible,” said Michelle Bishop, the Voter Access & Engagement Manager at the National Disability Rights Network.
In a normal election year, 103 closures would be a significant drop, but this year they’re a rounding error on the nearly 21,000 polling stations that have been closed in 2020 in the face of the coronavirus pandemic, as revealed in a VICE News investigation published Thursday. From 2012 to 2016, for example, there was a drop of about 3,000 locations nationally.
But in a highly polarized electorate where a few thousand votes in a given state can swing an election, the loss of polling stations in Ohio, Arizona, Virginia, Pennsylvania, and Texas could have an impact on voter turnout.
”I don’t know why anyone would close polling sites, and I don’t know why DOJ would insist that any polling site be closed,” said Eve Hill, the former head of the Disability Rights Section at the Justice Department who left in 2017. There is no language in recent DOJ settlement agreements requiring jurisdictions to close noncompliant polling places, though they do have the power to prevent closures.
The closures also tend to disproportionately impact communities of color, which have fewer resources to make polling stations ADA-compliant. They also impact people who are less likely to own cars, such as voters of color, college students, the elderly, and lower-income voters. Traveling greater distances presents a much larger problem without a readily-accessible vehicle, and research shows that increasing the distance to the nearest polling site makes voters less likely to turn out.
An investigation into Coconino County, Arizona, that finished in 2018 found many ADA violations on Native American tribal land. About a quarter of Coconino’s population is Native American, and while tribal buildings are normally not required to be ADA-compliant, once they become polling places, they fall under the law.
After the DOJ’s action, Coconino County shuttered seven of 61 locations in the time between the 2016 election and the 2018 midterms. In one case, the High Country News reported, the closings required Native American voters to travel 10 miles from their original location to reach the next-nearest voting station. Turnout at several relocated precincts in Coconino fell after the changes.
Investigations in several other counties in Virginia, South Carolina, Pennsylvania, and Texas also resulted in closures. In one case, a majority Black and Latino suburb of Detroit called Ecorse cut its polling places by a third, from six to four.
Prior administrations rarely brought legal action against municipalities for ADA violations at polling sites, and when they did, the action did not lead to closures.
“We never brought any lawsuits or took legal action against any jurisdiction regarding ADA issues and polling places.”
“Between ’73 and ’94, we never brought any lawsuits or took legal action against any jurisdiction regarding ADA issues and polling places,” said Gerry Hebert, who served in the Civil Rights division under several administrations.
Eve Hill, the former head of the Disability Rights Division at the Justice Department who left in 2017, said, “I don’t recall any [litigation] where we would reduce the number of polling places.
“I have a great deal of trust and respect for the [career] staff attorneys at the Disability Rights Section. I really don’t believe that they would be seeking closures of polling places,” Hill said. “But they may not be empowered to oppose it.”
The DOJ has the power to prevent local officials from closing polling places by threatening them with further litigation, but Hill said Trump political appointees may not be allowing attorneys to exercise that leverage.
“When the physical accessibility cases get to the point where the section is negotiating a settlement and the jurisdiction is pushing back, I expect then that the political appointees are getting involved with what the remedy may be and pushing [the Disability Rights section] to let the jurisdiction close polling places rather than fixing them,” Hill said.
The Department of Justice declined to comment.
Weaponizing the ADA
The DOJ’s focus on polling place investigations is even more notable because other Justice Department civil rights enforcement activity is at a two-decade low. That includes the Disability Rights section, where cases fell by about 50 percent from Obama’s term. While the Obama administration pursued systemic cases involving large numbers of people affected by disability rights violations in schools and institutions, these cases have disappeared under Trump.
At the same time the Justice Department’s polling place accessibility litigation has spiked, the Voting Section—tasked potentially with prosecuting voter suppression cases—has been almost completely silent. The section upholds the Voting Rights Act, which is meant to protect voters of color from disenfranchisement, but has not filed a single case under that law in Trump’s term. If that trend holds through January, the last four years will be the first presidential term without a Voting Rights Act case since Congress passed the law in its amended form in 1982.
Polling place reviews are one of the few areas of civil rights litigation during Trump’s term where activity is outpacing, rather than significantly lower than, previous administrations.
Because the DOJ does not often announce ongoing investigations, the completed cases they list on the website are likely a small proportion of all the municipalities they have looked into. “There are probably many more cases that are being pursued,” Hill said.
But even investigations that don’t yield formal settlements can result in polling place closures. After the DOJ launched an investigation into polling place accessibility in 2016 in Hamilton County, a Democratic stronghold in Ohio encompassing the city of Cincinnati, the county closed or relocated at least 10 polling places out of their 360 in the following two years due to ADA violations.
In some cases, the Justice Department may not even need to announce investigations to scare counties into closing polling locations. The National Disability Rights Network noted in a report on ADA accessibility that, after the Justice Department concluded investigations into two counties in South Carolina in 2017 and 2018, other nearby municipalities took notice and made their own changes to polling place accessibility. “I think you’re definitely onto something when you think that it might be a beginning of an effort to intimidate people,” Hebert said.
Closing polling stations
Then there are cases where municipalities use the ADA as an excuse to close polling stations, even when there’s been no investigation or complaint.
In 2018 in Georgia, county administrators proposed closing seven of Randolph County’s nine polling places immediately before the midterm elections, ostensibly on the basis of ADA violations. Further reporting from the Huffington Post revealed that the administrators had never actually performed any review of whether the polling places complied with ADA regulations, proving that the proposed rationale was a front for an attempt at voter suppression.
The ADA has also been employed to justify voter suppression in other counties. While the clearest example of this was in Georgia, an NDRN report catalogued questionable instances of polling place closures where county administrators cited the ADA in Louisiana, Texas, and Mississippi. “Local jurisdictions in various states have gotten away with blaming their polling place closures on the access needs of voters with disabilities. The closures effectively suppress the vote in those jurisdictions and create a national environment of fear among voting rights activists,” the NDRN report noted.“
While the Disability Rights section has focused on polling place accessibility, other important disability rights problems have gone unchallenged, such as absentee or mail voting, which can be a challenge for the disabled.
“The Disability Rights section and the Justice Department really has not been involved in any of the disability discrimination issues that are relevant to this year, which are primarily about absentee voting, which is completely inaccessible to people who are blind,” Hill said. “Their absence from that fight is telling.”
Bishop, of the National Disability Rights Network, said that in many cases it’s much easier to resolve ADA-related issues than to find a new location. Fixes can sometimes be as simple as using orange cones to outline accessible parking spaces or improving signage. In some cases, more extensive work is necessary, such as changing the grade of a parking lot or entrance ramp.
Closing polling locations rather than remedying ADA violations can create significant access issues for disabled voters, even if it is intended to help them.
“Many people with disabilities are unable to drive,” Bishop said, “so moving their nearest polling place further away sometimes imposes a larger burden on them.”