# 103 II-5.

2000 September 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 XXXXXXXXX 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 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 safeguard, 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) 307-223l. Sincerely,

Stewart B. Oneglia Chief Coordination and Review Section Civil Rights Division Enclosure