SETTLEMENT AGREEMENT BETWEEN THE UNITED STATES OF AMERICA AND THE CITY OF CHESAPEAKE REGARDING THE ACCESSIBILITY OF POLLING PLACES

SETTLEMENT AGREEMENT BETWEEN THE UNITED STATES OF AMERICA AND THE CITY OF CHESAPEAKE REGARDING THE ACCESSIBILITY OF POLLING PLACES

This settlement agreement (the "Agreement") is entered into between the United States of America and the City of Chesapeake (collectively, the "Parties").

BACKGROUND

1. The United States Department of Justice (the “Department”) opened an investigation of the City of Chesapeake (the “City”) under title II of the Americans with Disabilities Act of 1990, as amended (“ADA”), 42 U.S.C. §§ 12131 - 12134, and title II’s implementing regulation, 28 C.F.R. pt. 35, to determine the physical accessibility of the City’s polling places to people with mobility and vision disabilities.  Title II of the ADA prohibits public entities from excluding individuals with disabilities from participation in or denying them the benefits of the voting program, or subjecting them to discrimination, on the basis of disability.  42 U.S.C. § 12132, 28 C.F.R. §§ 35.130(a), 35.149.  Title II also prohibits public entities from selecting facilities to be used as polling places that have the effect of excluding individuals with disabilities from or denying them the benefits of the voting program, or otherwise subjecting them to discrimination.  28 C.F.R. § 35.130(b)(4).  Title II requires public entities to administer their services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities.  28 C.F.R. § 35.130(d).

2. The City of Chesapeake is a “public entity” within the meaning of the ADA, 42 U.S.C.  § 12131(1), and 28 C.F.R. § 35.104, and is, therefore, subject to title II of the ADA, 42 U.S.C. §§ 12131 – 12134, and its implementing regulation, 28 C.F.R. pt. 35.

3. The Department is authorized under the ADA to determine the City’s compliance with title II of the ADA and title II’s implementing regulation, and to resolve the matter by informal resolution, such as through the terms of this settlement agreement.  If informal resolution is not achieved, the Department is authorized to issue findings, and, where appropriate, to negotiate and secure voluntary compliance agreements.  28 C.F.R. pt.  35, Subpart F.  The Attorney General is authorized, under 42 U.S.C. § 12133, to bring a civil action to enforce title II of the ADA.

4. The City, through its Board of Elections, is responsible for reviewing the accessibility of each polling place and selecting each polling place.  The City has 64 voting precincts, currently housed in 64 polling place locations.

5. In the May 3, 2016 election, the Department surveyed 20 of the City’s 64 polling place locations.  The Department found that many of the City’s polling places contain barriers to access for persons with disabilities, and thus the City violated title II by failing to select facilities to be used as polling places on Election Day that are accessible to persons with disabilities. The Department’s findings, with which the City disagrees as to whether certain deficiencies can be fully addressed by temporary measures, are contained in Attachment 1.

TERMS OF SETTLEMENT

Consideration

6. In consideration of the mutual promises contained in this Agreement, good and valuable consideration, the receipt and sufficiency of which is acknowledged, and to avoid the costs, expenses and uncertainty of protracted litigation, the Parties, intending to be legally bound, enter into this Agreement.

Definitions

7. “Accessible on Election Day” means that a polling place is compliant with the 2010 ADA Standards for Accessible Design (“2010 Standards”) on Election Day, whether such compliance is achieved through permanent architectural measures or through the use of temporary measures such as those provided for in Paragraph 15 below.

8. “Effective Date” of this Agreement is the date of the last signature below.

9. “Election” or “Election Day” as used in this Agreement shall include both the period of Early Voting and Election Day.

10. “Election Day Surveyors” or “EDSs” are City personnel (or contractors) who will review compliance at polling place locations where temporary measures are to be implemented on Election Day.

Obligations of the City

A. Accessible Voting Program

11. The City of Chesapeake shall not exclude individuals with disabilities from participation in or deny them the benefits of the voting program, or subject them to discrimination, on the basis of disability. 42 U.S.C. § 12132, 28 C.F.R. §§ 35.130(a), and 35.149. The City shall select facilities to be used as polling places that do not exclude individuals with disabilities from or deny them the benefits of the polling place, or otherwise subject them to discrimination. 42 U.S.C. § 12132; 28 C.F.R. § 35.130(b)(4). The City shall administer its voting program in the most integrated setting appropriate to the needs of persons with disabilities. 28 C.F.R. § 35.130(d).

12. For all elections occurring after the Effective Date of this Agreement, the City will implement measures to remediate the violations at polling places identified and as set forth in Attachment 1, to make those polling place locations accessible on Election Day, or will relocate those locations to an alternative accessible location pursuant to the process established in Paragraph 17 of this Agreement. Nothing in this Agreement limits the City from making ADA-compliant, permanent modifications to its polling place locations instead of providing temporary remedial measures or relocating a polling place location. If remediation as listed on Attachment 1 or relocation to an accessible facility cannot be achieved under applicable law and regulations, as agreed to by the United States, then the City agrees to comply with title II's program accessibility requirements.

13. The City shall maintain in operable working condition on Election Day those features of facilities and equipment (including, but not limited to, permanent equipment such as lifts and elevators, and temporary equipment such as portable ramps, traffic cones, signs, wedges, and door stops) that are required to make polling places accessible to and usable by persons with disabilities. 28 C.F.R. § 35.133(a). If circumstances arise such that a polling place location that was previously accessible is no longer accessible because a feature of the facility or equipment is no longer operable, then the City shall purchase new equipment or relocate the polling place to an alternative, accessible location pursuant to the process established in Paragraph 17 of this Agreement. If remediation or relocation to an accessible facility is impossible, as agreed to by the United States, then the City agrees to comply with Title II's program accessibility requirements.

14. The City will cooperate fully with the United States' efforts to monitor compliance with this Agreement, including but not limited to, providing the United States with timely access to polling places (including on Election Day), maps, surveys, and other requested information.

15. The City agrees that the following measures are reasonable and will be implemented where necessary to make an otherwise inaccessible polling place accessible on Election Day. The list of measures is not exhaustive; the City may propose other reasonable temporary measures subject to the review and approval of the United States.

    1. Portable ramps (including curb ramps) up to and including ramps six feet long, with side edge protection.

    2. Portable wedges or wedge ramps.

    3. Floor mats.

    4. Traffic cones.

    5. Relocating furniture or other moveable barriers.

    6. Door stops.

    7. Propping open doors.

    8. Unlocking doors.

    9. Signage, including parking signage.

    10. Portable buzzers or door bells.

    11. Removing astragals (door posts) that are not a permanent part of the structure from doorways.

16. The City agrees that for polling places that are inaccessible and cannot be made accessible through temporary measures (as identified by communications by the City to the United States in August and September of 2016, or, comparable measures to those communicated if the City identifies other more feasible accessibility measures), it will implement the temporary measures available to increase accessibility, and enhance the availability of curbside voting for the June 13, 2017 election. Curbside voting at these locations will include:

    1. signage informing voters of the possibility of voting curbside, the location of the curbside voting, and how a voter is supposed to notify the official that she is waiting curbside;

    2. location that allows the curbside voter to obtain information from candidates and others campaigning outside the polling place;

    3. a method for the voter with a disability to announce her arrival at the curbside (a temporary doorbell or buzzer system would be sufficient, but not a telephone system requiring the use of a cell phone or a call ahead notification);

    4. a prompt response from election officials to acknowledge their awareness of the voter;

    5. timely delivery of the same information that is provided to voters inside the polling place; and

    6. a portable voting system that is accessible and allows the voter to cast her ballot privately and independently.

17. After the November 8, 2016 election, for the polling places referenced in Paragraph 16 of this Agreement, compliance (subject to finding that compliance "cannot be achieved") of the 20 audited polling places are to be met by the first general election following the effective date that is at least 120 days from notice to the City of the full execution of the agreement. The City will ensure that the polling places are accessible on Election Day through the use of temporary or permanent measures, or relocate the inaccessible polling place location to an accessible polling place location selected pursuant to the process established by Paragraph 18 of this Agreement. If selection of an accessible facility, or one that can be made accessible on Election Day, cannot be achieved, as agreed by the United States, then the City agrees to comply with Title II's program accessibility requirements.

B. Survey and Review of Polling Place Locations

18. The City has developed a survey instrument to assess whether a polling place location is or can be made accessible on Election Day.  The survey instrument is based on the 2010 Standards and the United States’ “ADA Checklist for Polling Places” publication.  The survey instrument includes a requirement to include photographs and the identification of appropriate remedial provisions, including the remedial provisions in Paragraph 15 of this Agreement.  The survey instrument is incorporated as Attachment 2.

19. The City shall review each newly proposed polling place location to determine whether it is accessible to persons with disabilities or could be made accessible on Election Day through the use of the remedial measures provided for in Paragraph 15 of this Agreement or through permanent modifications, before selecting the location as a polling place.  The City shall use the survey instrument referenced in Paragraph 18 of this Agreement to make all future polling place location selections.  If the City ultimately determines that a newly proposed location is inaccessible (as defined by the survey instrument) and cannot be made accessible on Election Day, then the City will reject the location and continue searching until an accessible location or one that can be made accessible on Election Day can be found.

20. Of the 64 polling place locations that were used in the May 2016 election, 20 were surveyed by the Department.  Beginning with the effective date of this Agreement, the City will survey the 44 polling place locations not surveyed by the Department that the City intends to use in future elections, using the survey instrument referenced in Paragraph 18 of this Agreement.  The City will mail  these completed surveys to the United States upon the effective date of the agreement.

21. If the Department concludes that a survey was conducted by the City in error, then the City will re-survey the portions in error.  If the Department concludes that the City has proposed a remedial provision that does not address the violation, then the Department will recommend a temporary remedial measure consistent with Paragraph 15 of this Agreement that the City will implement in the next election.  If the City chooses not to or is unable to implement one or more of the recommended temporary remedial measures, it will relocate the inaccessible polling place location to an accessible polling place location selected pursuant to the process established by Paragraph 19 of this Agreement.

22. For the polling place locations surveyed by the City pursuant to Paragraph 20 of this Agreement, compliance (subject to finding that compliance “cannot be achieved”) of the 44 self-audited polling places must be met by the next general election following the effective date that is at least 120 days from notice to the City of the full execution of the agreement., The City will implement the appropriate remedial provisions to make polling place locations accessible on Election Day, or will relocate inaccessible locations to an alternative accessible location pursuant to the process established by Paragraph 19 of this Agreement.

23. For the duration of this Agreement, when the City selects a new polling place location, the City will provide the United States notice within twenty-one (21) days of the decision.  The City will provide the United States with copies of all surveys (and photographs) conducted within twenty-one (21) days of the decision to use the location as a polling place.  The United States’ approval must be obtained prior to the location being used in an election.  The United States’ approval will be based exclusively on whether the proposed polling place location satisfies the survey instrument referenced in Paragraph 18 of this Agreement.

24. If the City finds that it cannot implement a previously agreed to or approved remedial provision regarding a specific polling place location, the City will immediately notify the United States and, upon request, meet and confer with the United States.  If the issue cannot be resolved to the United States’ satisfaction, the City will relocate the polling place location to an alternative accessible location pursuant to the process established by Paragraph 19 of this Agreement.

25. All of the paragraphs in this Section B are subject to the condition that if selection of an accessible facility, or one that can be made accessible on Election Day, cannot be achieved, as agreed by the United States, then the City agrees to comply with Title II’s program accessibility requirements.

C. Training

26. Prior to each election during the term of this Agreement, as part of its training program for Election Officers and poll workers, the City will provide training concerning temporary remedial measures, including:  (a) why such measures are necessary; (b) how the measures must be implemented (e.g., how to install ramps, the placement of mats over (and not in front of) thresholds); and (c) a description of the role of the City’s Election Day Surveyors (EDSs), as set forth in Paragraph 31 of this Agreement, and the need to follow the instructions of the EDSs regarding the implementation of temporary measures on Election Day.

27. The City will request that all Election Officers who will be assigned to a polling place location that includes one or more temporary remedies, sign a form in which they are asked to swear or affirm that in performing Election Day duties the election official will make sure that all temporary measures at their polling place location be installed where instructed, be in place before the opening of the polls, and be maintained in place until the polling place closes to provide independent access to voters with disabilities.

28. After the first election occurring after the Effective Date of this Agreement, and for each election thereafter during the term of this Agreement, the City will identify each Election Officer whose polling place was the subject of a report from the previous election indicating that a temporary modification was not implemented properly, and will explain the noncompliance to the Election Officer and what must be done to remedy the identified issue(s) on Election Day.  The Election Officer will be asked to initial the noncompliance report.

29. Prior to each election during the term of this Agreement, the City will provide training to all EDSs designated pursuant to Paragraph 31 of this Agreement.  The training of the EDSs will address: (a) temporary measures, including why they are needed and how the measures must be implemented (e.g., how to install ramps, the placement of mats over (and not in front of) thresholds); (b) how to resolve errors in the implementation of temporary measures on Election Day; (c) how to document the implementation of temporary measures on Election Day using checklists or compliance review forms referenced in Paragraph 30; and (d) what the EDSs are required to do to implement the requirements of this Agreement.

D. Election Day Compliance Review

30. In the materials provided to each Chief Election Official for Election Day, the City will include a checklist of the temporary measures to be implemented on Election Day at each polling place location where such measures are required, as determined by the May 3 survey or the City’s review pursuant to Paragraph 19.  The checklist should contain a place for a signature by the Chief Election Official that he or she put the temporary measures in place and kept them in place throughout Election Day, or verified such placement by other parties, from the opening of the polls to their closing, and should be returned to the City along with other election materials.  Copies of these checklists will be provided to the United States within twenty-one (21) days of the election.

31. Beginning with the June 13, 2017 Primary Election, and throughout the duration of this Agreement, the City will designate City personnel (or contractors) as EDSs to review compliance at the polling place locations where temporary measures are to be implemented on Election Day.  The City and the EDSs will use the checklist developed pursuant to Paragraph 30 of this Agreement to review compliance on Election Day.  The EDSs will be required to document their compliance reviews (both compliant and non-compliant polling place locations) with photographs.  After documenting a non-compliant polling place location, the EDSs shall remedy any non-compliant implementation of a temporary remedy when possible.  Copies of these compliance reviews will be provided to the Department within twenty-one (21) days after the election.

32. If the City does not properly implement the temporary remedial measures necessary at a particular polling place location on Election Day in two (2) consecutive elections, and the City does not make permanent architectural remediations, then the City will no longer use the polling place location and will relocate it to an accessible location or one that can be made accessible on Election Day pursuant to Paragraph 19 of this Agreement.  If remediation or relocation to an accessible facility is impossible, as agreed to by the United States, then the City agrees to comply with Title II’s program accessibility requirements.

Enforcement Provisions

33. If at any time one of the Parties to this Agreement desires to modify any portion of this Agreement, it will promptly notify the other Party in writing, setting forth the facts and circumstances thought to justify modification and the substance of the proposed modification.  The Party receiving a request to modify the Agreement will not unreasonably delay notifying the requesting Party as to whether it will agree to the proposed modification.  No modification will take effect unless and until the Parties memorialize the agreed upon modification in writing.

34. All notices, demands, or other communications, including reporting materials, to be provided under this Agreement shall be in writing and delivered by email or overnight delivery to the following persons and addresses (or such other persons and addresses as any party may designate in writing from time to time):

For the United States:

Clare P. Wuerker
Assistant U.S. Attorney
Eastern District of Virginia
101 W. Main St., Suite 8000
Norfolk, VA 23510

For The City of Chesapeake:

Mary Lynn A. Pinkerman
General Registrar
411 Cedar Rd.
Chesapeake, VA 23322

and

Jan L. Proctor
City Attorney
306 Cedar Rd.
Chesapeake, VA 23322

35. The United States may review compliance with this Agreement at any time. If the United States believes that the City has failed to comply in a timely manner with any requirement of this Agreement, or that any requirement has been violated, the United States will so notify the City in writing and will attempt to resolve the issue in good faith.  If the United States is unable to reach a satisfactory resolution of the issue within thirty (30) days of the date it notifies the City, the United States may file a civil action in federal district court to enforce the terms of this Agreement, or take any other action to enforce title II of the ADA.  In the event of a dispute arising as to a determination of the possibility of identifying an accessible facility or one that can be made accessible on Election Day, the City maintains all claims and defenses available under applicable law and regulations, including but not limited to the legal, financial, and administrative components applicable to such a determination.

36. Failure by the United States to enforce a deadline or provision in this Agreement will not be construed as a waiver of the United States’ right to enforce any deadlines or provisions of this Agreement.

37. A copy of this document will be made available to any person by the City on request.

38. This Agreement shall be applicable to and binding upon the City, its officers, agents, employees, and assigns.

39. This Agreement constitutes the entire agreement between the Parties on the matters raised herein, and no other statement or promise, written or oral, made by any party or agents of any party, that is not contained in this written Agreement, including its attachments, shall be enforceable.

40. This Agreement is limited to resolving claims under title II of the ADA related to the facts specifically set forth in Paragraphs 1-5 above concerning physical accessibility of polling places.  Nothing in this Agreement relates to other provisions of the ADA or affects the City’s obligations to comply with any other federal, state, or local statutory, administrative, regulatory, or common law obligation, including those relating to nondiscrimination against individuals with disabilities.

41. This Agreement will remain in effect for five years from the Effective Date.

42. The person signing for the City represents that he or she is authorized to bind the City to this Agreement.

FOR THE UNITED STATES