American Ass'n of People with Disabil. v. Smith

• Decision Date: 16 October 2002
• Docket Number: No. 3:01-CV-1275-J-21TJC.,3:01-CV-1275-J-21TJC.
• Parties: AMERICAN ASSOCIATION OF PEOPLE WITH DISABILITIES; Daniel W. O'Conner; Kent Bell; and Beth Bowen, Plaintiffs, on behalf of themselves and others similarly situated, v. Jim SMITH, as Secretary of State for the State of Florida; Edward C. Kast, as Director, Division of Elections; John Stafford, as Supervisor of Elections in Duval County, Florida; Warren Alvarez, Elaine Brown, Matt Carlucci, Doyle D. Carter, Gwen Chandler-Thompson, Lad Daniels, Reggie Fullwood, Alberta Hipps, Jerry Holland, King Holzendorf, Suzanne Jenkins, Pat Lockett-Felder, Jim Overton, Lake Ray, III, Faye Rustin, Lynette Self, Ginger Soud, Mary A. Southwell, and Gwen Yates, as Members of the Jacksonville, Florida City Council, Defendants.
• Court: U.S. District Court — Middle District of Florida

Page 1276

227 F.Supp.2d 1276

AMERICAN ASSOCIATION OF PEOPLE WITH DISABILITIES; Daniel W. O'Conner; Kent Bell; and Beth Bowen, Plaintiffs, on behalf of themselves and others similarly situated, v. Jim SMITH, as Secretary of State for the State of Florida; Edward C. Kast, as Director, Division of Elections; John Stafford, as Supervisor of Elections in Duval County, Florida; Warren Alvarez, Elaine Brown, Matt Carlucci, Doyle D. Carter, Gwen Chandler-Thompson, Lad Daniels, Reggie Fullwood, Alberta Hipps, Jerry Holland, King Holzendorf, Suzanne Jenkins, Pat Lockett-Felder, Jim Overton, Lake Ray, III, Faye Rustin, Lynette Self, Ginger Soud, Mary A. Southwell, and Gwen Yates, as Members of the Jacksonville, Florida City Council, Defendants.

No. 3:01-CV-1275-J-21TJC.

United States District Court, M.D. Florida, Jacksonville Division.

October 16, 2002.

COPYRIGHT MATERIAL OMITTED

James Douglas Baldridge, Alan M. Wiseman, Danielle R. Oddo, Courtney O. Taylor, Vincent E. Verrocchio, Howrey, Simon, Arnold & White, LLP, Washington, DC, Lois F. Williams, Washington Lawyers Committee for Civil Rights & Urban Affairs, Washington, DC, for plaintiffs.

Tracey I. Arpen, Jr., Jason R. Teal, General Counsel's Office, Jacksonville, FL, Charles A. Finkel, Atty. General's office, Corrections Lit. Branch, Tallahassee, FL, Scott D. Makar, Office of Gen. Counsel, Jacksonville, FL, for defendants.

ORDER

NIMMONS, District Judge.

This is an action¹ brought by an organization of people with disabilities, as well as by certain visually and manually impaired voters, against state and local election officials and members of the City Council of Jacksonville, claiming violation of the Americans with Disabilities Act, the Rehabilitation Act of 1973, and Article VI, Section 1, of the Florida Constitution.

Before the Court are the following motions: (1) Defendants Smith and Kast's Motion to Dismiss (Dkt.5) and Plaintiffs' Response (Dkt.8) in opposition thereto; and (2) Defendants Stafford, Alvarez, Brown, Carlucci, Carter, Chandler-Thompson, Daniels, Fullwood, Hipps, Holland, Holzendorf, Jenkins, Lockett-Felder, Overton, Ray, Rustin, Self, Soud, Southwell, and Yates' Motion to Dismiss (Dkt.6) and Plaintiffs' Response (Dkt.9) in opposition thereto. The Court has considered the parties' written submissions, oral arguments and applicable authorities.

I. The Parties and the Alleged Facts²

Plaintiff American Association of People with Disabilities (AAPD) is a nonprofit organization whose purpose is to advocate the interests of persons with disabilities. Some of AAPD's members are registered voters in Duval County with visual and manual impairments. Plaintiffs Bell and Bowen are visually impaired persons registered to vote in Duval County. Plaintiff O'Conner is manually impaired such that he cannot manipulate a writing instrument or touchscreen, and is registered to vote in Duval County.

Defendants Alvarez, Brown, Carlucci, Carter, Chandler-Thompson, Daniels, Fullwood, Hipps, Holland, Holzendorf, Jenkins, Lockett-Felder, Overton, Ray, Rustin, Self, Soud, Southwell, and Yates are all members of the City Council of the City of Jacksonville (Council). Defendant Stafford is the Supervisor of Elections of Duval County. Defendant Smith is the Secretary of State of the State of Florida, and Defendant Kast is the Director of the Division of Elections, a division of the office of the Secretary of State.³

Plaintiffs are unable to vote unassisted with the equipment currently used in Duval County or the equipment the County has recently purchased. In order to vote, Plaintiffs Bell and Bowen rely on the assistance of third parties to read the ballot to them and to mark their selection. For Plaintiff O'Conner to vote, he must rely on the assistance of a third party to mark his selection on the ballot.

The Secretary of State and the Director of the Division of Elections must approve any voting systems to be used in Florida. Thus, before a county may purchase a voting system, it must have been certified by the Secretary of State and the Director of the Division of Elections. Six optical scan voting systems and one touchscreen voting system have been so certified by the Secretary of State and the Director of the Division of Elections. While Plaintiffs had asked the former Secretary of State, Katherine Harris, and the former Director of the Division of Elections, L. Clayton Roberts, to certify voting systems that allow visually and manually impaired voters to vote unassisted, visually and manually impaired voters are unable to access any of the presently certified voting systems for purposes of unassisted voting. Only the certified touchscreen system could potentially be used by Plaintiffs to vote unassisted; to provide for unassisted voting, it would need to be modified with audio and so-called "puff stick" equipment.

Supervisor of Elections Stafford and the City Council are responsible for selecting and purchasing voting systems to be used in Duval County. Defendants Stafford and the Council decided to purchase optical scan voting equipment despite knowing that such systems did not allow visually and manually impaired voters to vote unassisted. In addition, Defendants Stafford and the Council decided to purchase up to four touchscreen voting systems for the County but failed to purchase the audio and puff stick equipment necessary for visually and manually impaired voters to vote unassisted. Also, these touchscreen systems were only to be located at voting headquarters.

Plaintiffs filed suit alleging that Defendants violated the Americans with Disabilities Act (ADA), 42 U.S.C. § 12132, and Section 504 of the Rehabilitation Act of 1973 (Rehabilitation Act), 29 U.S.C. § 794, and that Sections 101.051,101.28, and 101.5606, Florida Statutes, violate Article VI, Section 1 of the Florida Constitution. Plaintiffs allege that Defendants Smith's and Kast's predecessors violated the ADA, the Rehabilitation Act, and Article VI, Section 1 of the Florida Constitution by certifying voting systems that do not allow visually and manually impaired voters to vote unassisted. Plaintiffs allege that Defendants Stafford and the Council violated the ADA, the Rehabilitation Act, and Article VI, Section 1 of the Florida Constitution by deciding to purchase voting equipment that would not allow visually and manually impaired voters to vote unassisted. In addition, Plaintiffs allege that Sections 101.051, 101.5606, 101.28, Florida Statutes, violate Article VI, Section 1 of the Florida Constitution.

II. Motion to Dismiss Standard

It is well established that "a motion to dismiss for failure to state a claim should not be granted unless it appears to a certainty that the plaintiff would not be entitled to recover under any state of facts which could be proved in support of his claim." Cook & Nichol, Inc. v. Plimsoll Club, 451 F.2d 505, 506 (5th Cir.1971); accord Conley v. Gibson, 355 U.S. 41, 47-48, 78 S.Ct. 99, 2 L.Ed.2d 80, 84 (1957). In evaluating the sufficiency of a complaint for purposes of a motion to dismiss, the allegations of the complaint must be accepted as true, Hishon v. King & Spalding, 467 U.S. 69, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984), and viewed in a light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974), abrogated on other grounds by Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). Nevertheless, when the allegations in a complaint are wholly conclusory and fail to set forth facts which, if proved, would warrant relief for the plaintiff, dismissal is appropriate. Davidson v. State of Georgia, 622 F.2d 895, 897 (5th Cir.1980).⁴

With regard to dismissing a complaint with prejudice, the general rule in the Eleventh Circuit is that where a "more carefully drafted complaint might state a claim, a plaintiff must be given at least one chance to amend the complaint before the district court dismisses the action with prejudice." Bank v. Pitt 928 F.2d 1108, 1112 (11th Cir.1991). Two exceptions exist: (1) where the plaintiff expresses a desire not to amend his or her complaint; and (2) where "a more carefully drafted complaint could not state a claim under the standard of Conley, 355 U.S. at 45-46, 78 S.Ct. at 102, , dismissal with prejudice is proper." Id.

III. Discussion

A. Summary of Contentions

Defendants Smith and Kast assert that Plaintiffs failed to allege that they or their predecessors were presented with a voting system that would allow visually and manually impaired voters to vote unassisted.⁵ Consequently, Defendants Smith and Kast argue the claim is not ripe and that Plaintiffs lack standing. In addition, Defendants Smith and Kast assert that they do not have a duty to ensure that local election officials apply the ADA uniformly. Instead, Defendants Smith and Kast contend that they have the discretion to adopt rules that establish minimum standards for voting systems. Thus, while they have the discretion to adopt rules requiring voting systems that allow visually and manually impaired voters to vote unassisted, Defendants Smith and Kast assert that they have no duty to adopt such rules. Defendants Smith and Kast also assert that Plaintiffs failed to state a claim under the Rehabilitation Act because they did not adequately allege that their respective offices received federal financial assistance.

Defendants Stafford and Council assert that the ADA only requires that disabled voters not be excluded from voting. Therefore, Stafford and Council argue, the ADA does not create a federal right to absolute "direct or secret voting." Similarly, Defendants Stafford and Council assert that state law does not create a right to unassisted voting. Since neither the ADA nor Florida law creates a right to a completely direct and secret vote, Stafford and Council argue that the ADA is not violated. In addition, Defendants Stafford and Council assert that Plaintiffs fail to state a claim under...