New federal case says voting machines aren't "facilities" under ADA; might the answer change as elections do?

On July 27, the U.S. Court of Appeals for the 11th Circuit issued a new opinion in American Association of People with Disabilities v. Harris, a case originally brought in 2001 by plaintiffs alleging that the State of Florida had failed to acquire voting machines to accommodate voters with disabilities.

The case has had a long and eventful trip through the federal courts – and appeared to be finished in May 2010 when the 11th Circuit issued an opinion dismissing the case on the grounds that plaintiffs lacked a private right of action (translation for non-lawyers – a right to sue directly as opposed to relying on government enforcement) under the Americans with Disabilities Act (ADA).

After a request to rehear the case, the appeals court vacated its previous opinion, using different reasoning to reach the same result. This time, the court dismissed the case on the basis that the voting machines in question are not “facilities” and thus are not subject to the authority of the ADA. Specifically, the court said

the “facilities” at issue in [the ADA regulation in this case] are
permanent, physical structures, and those objects affixed to that physical structure.
Voting machines, which are wheeled into–and out of–voting precincts on
election day, do not fall under this umbrella.
[emphasis added]

Looking ahead, however, I wonder whether this case – like so many others through the years – won’t soon be overtaken by events in the election world. Quite simply, as more and more jurisdictions contemplate expanded use of non-precinct place voting solutions like satellite voting sites, vote centers and mega-precincts, this notion of temporary polling stations is already beginning to disappear.

I wouldn’t be surprised to see the issues in AAPD v. Harris reopened down the line as polling places become more permanent and fewer occasions exist for machines to be wheeled from place to place.

Of course, many of these new permanent polling facilities will already be ADA-compliant (indeed, that is one attraction for many jurisdictions) but time will tell whether or not the voting machines used in these locations will acquire sufficient permanence that they are back in play for the purposes of the ADA.