# 173 II-5.1000 II-5.


August 11, 1995

The Honorable Strom Thurmond United States Senate 217 Russell Office Building Washington, D.C. 20510-4001 Dear Senator Thurmond: This is in response to your inquiry on behalf of your constituent, XXXXXXXXXXXXXXXXXXXXXXXXX, concerning the accessibility of voting booths and polling places. XXXXXXXXX complains that many of South Carolina's registration sites and polling places are not fully accessible and requests information on Federal requirements for accessibility of voting booths and polling places. As XXXXXXXXX may be aware, the South Carolina Election Code requires that any elector who, because of a physical disability, cannot enter the polling place in the precinct in which he/she is registered to vote, may vote outside the polling place pursuant to the "curbside" voting provisions of 7-13-771 of the Code. Title II of the Americans with Disabilities Act requires "program accessibility," rather than facility access, for existing buildings and facilities. 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 a public entity is not necessarily required to make each of its existing facilities accessible. 28 C.F.R. 35.150 (the Department of Justice's regulation implementing Title II, 28 C.F.R. pt. 35). 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. South Carolina is required to make its program of providing voter registration accessible through whatever effective means it deems appropriate. 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. The Voting Accessibility for the Elderly and Handicapped Act (Voting Access Act) requires that all polling places for Federal elections are accessible and that a reasonable number of registration facilities for Federal elections are accessible. The Voting Access Act does not apply, however, to registration facilities in any State that has in effect a system that provides an opportunity for each potential voter to register by mail or at his or her residence. Furthermore, the Voting Access Act does not apply to a polling place if the chief election officer of the State determines that no accessible place is available and it is not possible to make one temporarily accessible and that any voter in need of an accessible polling place, upon advance request, will be assigned to an accessible polling place or will be provided with an alternative means for casting a ballot on the day of the election. Thus, the "curbside" voting procedure followed by the Commission may meet the requirements of the Voting Access Act. The curbside voting procedure is a permissible alternative to accessible voting places, however, 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 the Voting Access Act. I hope this information is helpful to you in responding to your constituent. Sincerely,

Deval L. Patrick Assistant Attorney General Civil Rights Division