# 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 safe-
guard, 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