Lightbourn v. County of El Paso

REVISED

United States Court of Appeals,

Fifth Circuit.

No. 96-50564.

Margarita LIGHTBOURN; Burns Taylor; Olivia Schonberger; Grant

Downey; Ann Lemke; Disabled Ability Resource Environment,

Plaintiffs-Appellees,

v.

The COUNTY OF EL PASO, TEXAS; The Republican Party of El Paso

County; The Democratic Party of El Paso County, Texas; Antonio O.

Garza, Jr., Secretary of State of Texas, Defendants,

Antonio O. Garza, Jr., Secretary of State of Texas, Defendant-

Appellant.

Aug. 1, 1997.

Appeal from the United States District Court for the Western

District of Texas.

Before JOLLY, DUHÉ and EMILIO M. GARZA, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

Antonio O. Garza, Jr., the Secretary of State of Texas,

appeals the district court's order finding him in violation of the

Rehabilitation Act of 1973 and the Americans with Disabilities Act,

and requiring him to undertake certain remedial actions. We

reverse and render judgment for the Secretary.

I

The plaintiffs are five blind residents of El Paso, Texas, one

mobility-impaired El Paso resident, and a private nonprofit group

that aids disabled persons. They sued El Paso County ("El Paso")

and the local Republican and Democratic parties under § 504 of the

1

Rehabilitation Act of 1973, 29 U.S.C. § 794 (" § 504"), and Title

II of the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§

12131-12134. Subsequently, El Paso impleaded the Secretary, and

the plaintiffs also added him as a defendant.

The plaintiffs alleged that the defendants discriminated

against them by failing to ensure that persons with visual and

mobility impairments have access to "polling sites and voting

procedures." Specifically, the blind plaintiffs asserted that the

voting equipment available at their polling places only permitted

them to vote with the assistance of an election worker or other

person, and the defendants had not taken steps to ensure that they

could vote with complete secrecy.1 Thus, they contended, the

defendants violated § 504 and the ADA. In addition, the

wheelchair-bound plaintiff maintained that she had trouble locating

a parking space next to and using the restroom facilities at her

polling place. She asserted that the defendants breached their

obligation to ensure that polling places are accessible to

handicapped voters and hence violated § 504 and the ADA.

The district court granted the plaintiffs' motion for class

certification of all Texas citizens of voting age who are blind or

severely mobility-impaired. The district court then granted the

local Republican Party's motion to dismiss and denied the

Secretary's motion for summary judgment. The plaintiffs settled

1

Texas Election Code § 64.031 provides that a "voter is

eligible to receive assistance in marking the ballot ... if the

voter cannot prepare the ballot because of a physical disability

that renders the voter unable to write or see...."

2

their claims against El Paso and the local Democratic Party,

leaving the Secretary as the sole defendant in this lawsuit.2

After a bench trial, the district court made several findings

in a written opinion. The court initially observed that Texas law

provides a right to a secret ballot for all voters. The court

found that the burdens the state alleged it would suffer if

compelled to ensure blind voters a completely secret ballot were

"speculative." To the contrary, the district court concluded that

the Secretary could accommodate blind (as well as mobility-

impaired) voters without affecting the voting methods of

nondisabled persons. The district court also determined that the

Secretary was a "public entity" subject to § 504 and the ADA, and

that he is responsible for ensuring "uniformity in the various

voting systems in use throughout the state." The district court

ultimately concluded that "[t]he system of voting in the State of

Texas" violates the ADA.3

After the subsequent remedies phase of the trial, the district

court issued supplemental findings of fact and conclusions of law,

and crafted a remedy for the § 504 and ADA violations it

2

The plaintiffs aver that as part of their settlement with El

Paso County, the county tested and used a template/tape recording

system in its general elections in November 1996 which enabled

blind voters to vote in secrecy. It is unclear whether the

Secretary approved this voting system. See Tex. Elec.Code §

122.031 ("Before a voting system or voting system equipment may be

used in an election, the system and a unit of the equipment must be

approved by the secretary of state....").

3

The district court's opinion does not specify whether it

found that "[t]he system of voting in the State of Texas" also

violates § 504.

3

discovered. The court found both that the Secretary has a duty to

ensure that local election authorities comply with the ADA, and

that "[t]he Secretary has joint responsibility with the state's

local election authorities in assuring compliance with the ADA and

Section 504 in conducting elections." The court also determined

that the Secretary had failed to take several possible actions to

remedy discrimination against blind or mobility-impaired voters,

such as encouraging the development of voting systems that enable

blind voters to vote with complete secrecy. The court found that

statutory methods of assisting blind persons to vote both abridge

the right to a secret ballot and cause "embarrassment and sometimes

humiliation." With respect to mobility-impaired voters, the court

determined that the evidence before it indicated "widespread

non-compliance throughout Texas" with the physical accessibility

requirements of § 504 and the ADA. Finally, the court concluded

that modification of "the current policies, practices, and

procedures that result in the denial of the secrecy of the ballot

for blind voters would not cause a fundamental alteration in the

nature of the State's voting program."

The district court ordered extensive and detailed remedial

measures to effect its "intention to have an ADA-compliant voting

system in place for the next national election in the year 2000."

The court emphasized that "only those matters over which the

Secretary has direct control are addressed [in the remedial

order]." First, the district court ordered that after December 1,

1996, the Secretary approve only voting systems that comply with

4

the ADA and that enable blind voters to vote in total secrecy.

Second, the court ordered the Secretary to issue directives,

guidelines and instructions based on of the ADA and its

implementing regulations and distribute them to local election

authorities within eighteen months of the court's order. The

directives, guidelines and instructions must state that: (1)

voting systems purchased after December 31, 1997 must be accessible

to blind and mobility-impaired voters and ensure a secret ballot

for blind voters; (2) by December 31, 1998, current voting systems

must be modified to be accessible to blind and mobility-impaired

voters and ensure a secret ballot for blind voters; and (3) by

December 31, 1999, all voting systems must be modified to be

accessible to blind and mobility-impaired voters and ensure a

secret ballot for blind voters. The district court ordered the

Secretary to submit the directives, guidelines and instructions to

it for review. The court further instructed the Secretary to

"devise a system of systematically monitoring" § 504 and ADA

compliance by local election authorities and to compile a detailed

report regarding compliance to be "delivered, on the anniversary

date of this Judgment, to the Court throughout the duration of this

Judgment." Last, the district court directed that it would retain

jurisdiction over the judgment for enforcement purposes. The

Secretary appeals.

II

The Secretary presents three arguments on appeal. First, he

contends that the district court improperly certified the

5

plaintiffs to represent all Texas citizens of voting age who are

blind and severely mobility-impaired. Second, he argues that the

plaintiffs cannot state a claim against him under § 504. Third, he

asserts that the district court erred in holding that he violated

the ADA by breaching a duty to ensure that local election

authorities comply with the ADA. We address each argument in turn.

A

The Secretary initially contends that the district court

improperly certified the plaintiffs to represent all Texas citizens

of voting age who are blind or mobility-impaired. He maintains

that class certification was improper because none of the

plaintiffs has voted outside of El Paso since enactment of the ADA,

the plaintiffs have settled their claims against El Paso, and the

punch-card voting system used in El Paso differs from the

paper-ballot voting system used in many Texas counties.

The district court did not make any specific findings of fact

with respect to the plaintiffs' class certification motion. The

district court did, however, specifically find that the plaintiffs

met the prerequisites of Federal Rule of Civil Procedure 23(a) and

(b)(1) and (2).4 The district court has wide discretion in

4

Rule 23 provides in relevant part:

(a) Prerequisites to a Class Action. One or more members

of a class may sue or be sued as representative parties

on behalf of all only if (1) the class is so numerous

that joinder of all members is impracticable, (2) there

are questions of law or fact common to the class, (3) the

claims or defenses of the representative parties are

typical of the claims or defenses of the class, and (4)

the representative parties will fairly and adequately

protect the interests of the class.

6

deciding whether to certify a proposed class. McGrew v. Texas Bd.

of Pardons & Paroles, 47 F.3d 158, 162 (5th Cir.1995). Assuming

that the court considered the Rule 23 criteria, we may reverse its

decision only for abuse of discretion. Id.

The Secretary does not dispute the numerosity and adequacy of

representation elements of Rule 23(a). In addition, Rule 23(b)(2)

clearly applies to this case because the Secretary has "acted or

refused to act" on grounds generally applicable to the class.

Hence, we need only address whether the plaintiffs satisfy the

commonality and typicality elements of Rule 23(a).

The commonality test is met when there is at least one issue,

the resolution of which will affect all or a significant number of

(b) Class Actions Maintainable. An action may be

maintained as a class action if the prerequisites of subdivision

(a) are satisfied, and in addition:

(1) the prosecution of separate actions by or

against individual members of the class would

create a risk of

(A) inconsistent or varying adjudications with

respect to individual members of the class which

would establish incompatible standards of conduct

for the party opposing the class, or

(B) adjudications with respect to individual

members of the class which would as a practical

matter be dispositive of the interests of the other

members not parties to the adjudications or

substantially impair or impede their ability to

protect their interests; or

(2) the party opposing the class has acted or

refused to act on grounds generally applicable to

the class, thereby making appropriate final

injunctive relief or corresponding declaratory

relief with respect to the class as a whole....

Fed.R.Civ.P. 23.

7

the putative class members. Forbush v. J.C. Penney Co., 994 F.2d

1101, 1106 (5th Cir.1993). Several such issues exist in this case,

including whether the Secretary violated § 504 or the ADA by

failing to direct local election officials to enforce these

statutes. Furthermore, allegations of similar discriminatory

practices generally meet the commonality requirement. Shipes v.

Trinity Indus., 987 F.2d 311, 316 (5th Cir.1993). The plaintiffs

here allege that the Secretary similarly discriminated against all

class members by failing to direct local election officials to

comply with § 504 and the ADA. Thus, the plaintiffs satisfy the

commonality requirement for class certification.

The test for typicality, like the test for commonality, is

not demanding. Forbush, 994 F.2d at 1106. Typicality focuses on

the similarity between the named plaintiffs' legal and remedial

theories and the legal and remedial theories of those whom they

purport to represent. Flanagan v. Ahearn (In re Asbestos Litig.),

90 F.3d 963, 976 (5th Cir.1996). In the event the class members in

this case were to proceed in a parallel action, they would advance

legal and remedial theories similar, if not identical, to those

advanced by the named plaintiffs. Thus, the plaintiffs also

satisfy the typicality requirement for class certification.

Accordingly, we determine that the district court did not abuse its

discretion in granting the plaintiffs' motion for class

certification.

B

The Secretary next argues that the plaintiffs cannot state a

8

claim against him under § 504 of the Rehabilitation Act of 1973

because he does not receive financial assistance from the federal

government. In determining that the Secretary violated § 504, the

district court made no finding regarding the Secretary's receipt of

federal financial assistance. The plaintiffs maintain that the

general receipt of federal funds by the State of Texas brings the

Secretary within § 504.

We review the district court's conclusions of law de novo,

Chandler v. City of Dallas, 958 F.2d 85, 89 (5th Cir.1992), cert.

denied, 511 U.S. 1011, 114 S.Ct. 1386, 128 L.Ed.2d 61 (1994), and

its factual findings for clear error. Henderson v. Norfolk S.

Corp., 55 F.3d 1066, 1068 (5th Cir.1995).

The Rehabilitation Act provides that "[n]o otherwise qualified

handicapped individual in the United States ... shall, solely by

reason of his handicap, be excluded from the participation in, be

denied the benefits of, or be subjected to discrimination under any

program or activity receiving Federal financial assistance ...."

29 U.S.C. § 794(a) (emphasis added). Section 794(b) defines

"program or activity" as:

all of the operations of—

(1)(A) a department, agency, special purpose district, or

other instrumentality of a State or of a local

government; or

(B) the entity of such State or local government that

distributes such assistance and each such department or

agency (and each other State or local government entity)

to which the assistance is extended, in the case of

assistance to a State or local government;

...

9

(4) any other entity which is established by two or more

of the entities described in paragraph (1), (2), or (3);

any part of which is extended Federal financial assistance.

The parties do not contest that the State of Texas receives federal

aid. The Secretary, however, asserts that the state's receipt of

federal funds does not suffice to bring him within § 504 in the

absence of evidence of receipt of such funds by the Secretary. In

response, the plaintiffs maintain that the Secretary "stipulated"

in district court that he is subject to § 504 and thus is precluded

from arguing that the plaintiffs failed to state a claim against

him under that section. We agree with the Secretary.

First, a defendant's stipulation that he is subject to a

claim is controlling only if the plaintiff has first alleged the

facts that establish that claim. A defendant cannot stipulate to

a claim that is defective as a matter of law. See United States v.

John J. Felin & Co., 334 U.S. 624, 640, 68 S.Ct. 1238, 1246, 92

L.Ed. 1614 (1948) (stating that court will disregard parties'

stipulation as to "facts," even if accepted and applied by court

below, "if the stipulation obviously forecloses real questions of

law"). Second, even if the plaintiffs had asserted that the

Secretary received federal financial assistance, they still cannot

show that he stipulated to this point. Indeed, Warren Thomas

Harrison, Deputy Assistant Secretary of State of Texas for

Elections, testified on cross-examination that the Secretary "never

receive[s] federal money," and that the Secretary "get[s] no

federal money." In addition, in his closing argument at the

liability phase of the trial, the Secretary averred that the

10

plaintiffs have no cause of action under § 504 because "the

Secretary of State doesn't receive any federal money."

We have held that to state a § 504 claim a plaintiff must

allege that the specific program or activity with which he or she

was involved receives or directly benefits from federal financial

assistance. Brown v. Sibley, 650 F.2d 760, 767-71 (5th Cir. Unit

A 1981). Certainly, a plaintiff may not predicate a § 504 claim

against a state actor on the mere fact that the state itself

obtains federal money. See id. at 767 ("The State of Mississippi,

for example, receives "federal financial assistance,' in the

generic sense of those words, but no one would contend that section

504 therefore reaches all proprietary and governmental activities

of the State of Mississippi."). Here, the plaintiffs have not even

argued that the Secretary receives federal financial assistance—let

alone presented any evidence on this point. Therefore, the

plaintiffs have failed to state a claim under § 504 against the

Secretary.

C

Last, the Secretary argues that the district court erred in

holding that he violated the ADA by breaching a duty to ensure that

local election authorities comply with the ADA. As noted above, we

review the district court's conclusions of law de novo, Chandler,

958 F.2d at 89, and the district court's factual findings for clear

error. Henderson, 55 F.3d at 1068.

Based on scattered provisions of the Texas Election Code, the

district court found that the Secretary had a duty to warrant that

11

local election authorities followed the ADA. Relying on Texas

Election Code §§ 31.0035 and 31.005,6 for example, the district

court concluded that the Secretary is responsible for ensuring ADA

compliance throughout state elections because the Secretary is "the

person who[m] all political subdivisions in Texas call for advice

and the person who bears the responsibility for uniformity in the

various voting systems in use throughout the state." The district

court interpreted § 31.005 as charging the Secretary with

protection of voting rights in Texas and found the Secretary

responsible for inspecting and validating proposed voting systems.

5

Section 31.003 provides:

The secretary of state shall obtain and maintain

uniformity in the application, operation, and

interpretation of this code and of the election laws

outside this code. In performing this duty, the

secretary shall prepare detailed and comprehensive

written directives and instructions relating to and based

on this code and the election laws outside this code.

The secretary shall distribute these materials to the

appropriate state and local authorities having duties in

the administration of these laws.

6

Section 31.005 states:

(a) The secretary of state may take appropriate action to

protect the voting rights of citizens of this state from

abuse by the authorities administering the state's

electoral processes.

(b) If the secretary determines that a person performing

official functions in the administration of any part of

the electoral process is exercising the powers vested in

that person in a manner that impedes the free exercise of

a citizen's voting rights, the secretary may order the

person to correct the offending conduct. If the person

fails to comply, the secretary may seek enforcement of

the order by temporary restraining order or a writ of

injunction or mandamus obtained through the attorney

general.

12

In sum, the district court determined that "[t]he Secretary does

not afford blind voters and/or mobility impaired voters an equal

opportunity to participate in, or benefit from, the State's voting

program that is equal to that accorded voters who are not

disabled."

Title II of the ADA provides that "[n]o qualified individual

with a disability shall, by reason of such disability, be excluded

from participation in or be denied the benefits of the services,

programs, or activities of a public entity, or be subjected to

discrimination by any such entity." 42 U.S.C. § 12132. Thus, to

establish a violation of Title II, the plaintiffs here must

demonstrate: (1) that they are qualified individuals within the

meaning of the Act; (2) that they are being excluded from

participation in, or being denied benefits of, services, programs,

or activities for which the Secretary is responsible, or are

otherwise being discriminated against by the Secretary; and (3)

that such exclusion, denial of benefits, or discrimination is by

reason of their disability. The Secretary does not dispute that

the plaintiffs are qualified individuals within the meaning of the

ADA or that he is a public entity for purposes of the statute. The

Secretary, however, asserts that he has not denied the plaintiffs

the benefit of a program for which he is responsible.

In Bush v. Viterna, 795 F.2d 1203 (5th Cir.1986), a class of

prisoners sued the Texas Commission on Jail Standards under 42

U.S.C. § 1983, based upon county jail conditions that allegedly

violated the Constitution. The plaintiffs claimed, under a theory

13

of "supervisory liability," that the Commission's failure to

discharge its state law-imposed duties caused the constitutional

violations. The plaintiffs argued that if the Commission had

followed its state law obligations to promulgate regulatory

standards and enforce those standards, local officials would have

ensured that conditions and activities in county jails did not

violate the Constitution.

We analyzed the Commission's state law duties, and found that

the Commission's purpose was to remedy inadequacies in county jail

conditions. We also concluded that the Commission was required to

promulgate standards, but was merely authorized to enforce those

standards by order or by filing suit against noncomplying counties.

Id. at 1205. We observed that when a federal right is deprived

through state action, the court must turn to state law to determine

which state actor is legally responsible for the violation.

"States have virtually complete freedom to decide who will be

responsible for such tasks, and therewith to determine who will be

held liable for civil rights violations that occur in the course of

carrying them out." Id. at 1209. We found that the Commission

"simply does not appear to have any state-imposed legal duty to

correct jail violations or noncompliance that it becomes aware of."

Id. at 1208. Thus, we found that the prisoners did not state a

claim against the Commission under § 1983.

The plaintiffs' claim in Bush is analogous to the plaintiffs'

claim here that the Secretary has a duty to ensure compliance with

the ADA with regard to Texas elections. Following Bush, we look to

14

Texas law to determine whether responsibility for the violations

the plaintiffs allege can properly be attributed to the Secretary.7

Review of the provisions of the Texas Election Code that

refer to the Secretary's role in elections reveals that most give

discretion to the Secretary to take some action. See, e.g., §

31.005(a) (stating that the Secretary "may take appropriate action

to protect the voting rights of the citizens ... from abuse ...");

§ 122.001(c) (noting that the Secretary "may prescribe additional

standards for voting systems ..."); § 122.002 (providing that the

Secretary "may inspect at any time ... a voting system ..."); §

122.003(a) (stating that the Secretary "may prohibit the use" of a

voting system that does not comply with applicable standards).

Provisions merely authorizing the Secretary to take some action do

not confer a legal duty on him to take the contemplated action.

See Nalle v. Taco Bell Corp., 914 S.W.2d 685, 687 (Tex.App.1996,

writ denied) ("The word "may' means possibility, permission,

liberty, or power; it does not indicate a mandatory

requirement."). In the absence of such a duty, the Secretary

cannot be held responsible for a failure to exercise his

7

During the bench trial, the district court received extensive

evidence regarding the decentralized nature of the Texas election

system. Specifically, although the Texas Election Code designates

the Secretary the chief elections official in Texas, the Secretary

does not conduct elections. Rather, the state's 3,000 or so

political subdivisions run general and special elections, while the

political parties conduct primary elections. In addition, the

Secretary does not pick polling sites for elections. Instead,

counties and political subdivisions select the location of polling

places for general and special elections; county chairs of

political parties pick polling sites for primary elections. The

Secretary's approval is required only if a local party seeks to use

a site other than an available county-designated polling place.

15

discretion.

The Texas Election Code does contain some provisions

requiring the Secretary to take action with respect to elections.

Specifically, § 31.003 states that the Secretary

shall obtain and maintain uniformity in the application,

operation, and interpretation of [the Texas Election Code] and

of the election laws outside this code. In performing this

duty, the secretary shall prepare detailed and comprehensive

written directives and instructions relating to and based on

[the Texas Election Code] and the election laws outside this

code. The secretary shall distribute these materials to the

appropriate state and local authorities having duties in the

administration of these laws.

Moreover, § 31.004 provides that the Secretary

(a) ... shall assist and advise all election authorities with

regard to the application, operation, and interpretation of

this code and of the election laws outside this code.

(b) The secretary shall maintain an informational service for

answering inquiries of election authorities relating to the

administration of the election laws or the performance of

their duties.

Whether these sections impose a duty on the Secretary to ensure

compliance with the ADA throughout Texas turns on whether the

phrase "election laws outside this code" includes the ADA.

The Texas Code does not define "election laws," and we have

found no case construing this phrase.8 Thus, we first look to the

8

In United States v. State of Texas, 422 F.Supp. 917, 921

(S.D.Tex.1976), dismissed, 430 F.Supp. 920 (1977), a three-judge

court held that the United States stated a cause of action against

the Secretary for allegedly "permitt[ing] local election officials

... to apply different and more stringent voter registration

standards" to certain black students in violation of the

Constitution and certain federal voting provisions. In so holding,

the court relied on a predecessor statute to § 31.003 which

required the Secretary "to obtain and maintain uniformity in the

application, operation and interpretation of the election laws."

A few months later, though, the court decided that, under

16

ordinary, contemporary, common meaning of "election laws." See

Perrin v. United States, 444 U.S. 37, 42, 100 S.Ct. 311, 314, 62

L.Ed.2d 199 (1979) (noting that it is a "fundamental canon of

statutory construction ... that, unless otherwise defined, words

will be interpreted as taking their ordinary, contemporary, common

meaning"). We think that the common meaning of "election laws" is

laws that specifically govern elections, rather than generally

applicable laws that may affect elections. If the Texas

legislature wanted § 31.003 to cover the latter, we doubt that it

would have inserted the adjectival modifier "election" directly

before the noun "law." By forming an open compound phrase such as

"election law," the Texas legislature meant "a combination of

separate words that are so closely related as to constitute a

single concept." Chicago Manual of Style § 6.33 (14th rev. ed.

1993). An "election district," for instance, is not a district

devised for many functions, including elections; it is "a district

created for the purposes of elections." 5 Oxford English

Dictionary 116 (2d ed. 1989). Moreover, an "election board" is not

an agency that carries out all the responsibilities of a

municipality, including elections; it is an agency "charged with

the conduct of elections." Black's Law Dictionary 519 (6th

ed.1990).

Railroad Commission of Texas v. Pullman Co., 312 U.S. 496, 61 S.Ct.

643, 85 L.Ed. 971 (1941), it would abstain from ruling

on the case and thus dismissed the United States' complaint.

Pullman requires a federal court to abstain when state law is

uncertain and a state court's clarification of state law might make

a federal court's constitutional ruling unnecessary.

17

This analysis suggests that the ADA is not an election law.

First, the ADA does not include even a single provision

specifically governing elections. On the contrary, the statute

never refers to elections. Indeed, the statute only mentions

voting once, and that is in the "findings and purpose" section.

This section, 42 U.S.C. § 12101(a)(3), notes that "discrimination

against individuals with disabilities persists in such critical

areas as employment, housing, public accommodations, education,

transportation, communication, recreation, institutionalization,

health services, voting, and access to public services...." The

mere mention of the word "voting" here does not transform the ADA

into an "election law." Such a tangential allusion is insufficient

to impose on the Secretary the rather extraordinary duty of

ensuring that local election officials interpret and apply the ADA

uniformly. Cf. Pennhurst State School and Hosp. v. Halderman, 451

U.S. 1, 19, 101 S.Ct. 1531, 1541, 67 L.Ed.2d 694 (1981) (explaining

that "bill of rights" section of Developmentally Disabled

Assistance and Bill of Rights Act, 42 U.S.C. § 6010, "is simply a

general statement of "findings' and, as such, is too thin a reed to

support the rights and obligations read into it by the court

below").

Second, as a general civil rights statute, the ADA involves

every area of law.9 If the ADA is construed as an "election law,"

9

The ADA's stated purpose is to eliminate discrimination

against disabled people and provide enforceable standards

addressing discrimination against disabled people. 42 U.S.C. §

12101(b)(1), (2).

18

then it presumably could also be called an employment law, housing

law, transportation law, and so on. However, we do not think that

the common, ordinary meaning of "election laws" includes a law that

can be characterized in so many different ways. Rather, "election

laws" only covers laws that specifically relate to elections, such

as the Voting Rights Act of 1965, 42 U.S.C. §§ 1972-1973, or the

Voting Accessibility for the Elderly and Handicapped Act, 42 U.S.C.

§ 1973ee-1.10

Third, if the Secretary is responsible for guaranteeing that

local election officials comply with the ADA, then presumably he

would also have a duty to warrant that these officials follow every

other general civil rights statute that could touch on elections.

These statutes would include, among others, the Civil Rights Act of

1870, 42 U.S.C. § 1981; the Civil Rights Act of 1871, 42 U.S.C. §

1983; the Ku Klux Klan Act of 1871, 42 U.S.C. §§ 1983, 1985, and

1986; the Civil Rights Act of 1964, 42 U.S.C. §§ 2000a, 2000d, and

2000e; the Education Amendments of 1972, 20 U.S.C. § 1681; the

Age Discrimination Act, 29 U.S.C. § 623; the Indian Civil Rights

Act of 1968, 25 U.S.C. § 1301; and various amending statutes such

as the Civil Rights Restoration Act of 1987, Pub.L. No. 100-259,

102 Stat. 28 (1988). In addition, the Secretary would need to

ensure that local election officials follow other generally

applicable laws which could pertain to elections, such as statutes

10

Note that "election laws" could very well apply to specific

election provisions that form part of a more general civil rights

statute. See, e.g., 42 U.S.C. § 1971 (voting rights provisions of

the Civil Rights Act of 1964).

19

dealing with littering, zoning, fire safety, and so on. We do not

believe that the Texas legislature intended § 31.003 to require the

Secretary to provide "detailed and comprehensive written directives

and instructions relating to and based on" these statutes, at least

to the extent that they do not specifically pertain to elections.

In sum, we conclude that the phrase "election laws outside

this code" only encompasses laws that specifically govern

elections, not generally applicable laws that might cover some

aspect of elections. Thus, neither § 31.003 nor § 31.004 imposes

a duty on the Secretary to ensure statewide compliance with the ADA

by the political subdivisions that administer elections in Texas.11

Two other provisions in the Texas Election Code place

responsibility on the Secretary for approval of voting systems and

equipment used in Texas elections. Section 122.031 states that

"[b]efore a voting system or voting system equipment may be used in

an election, the system and a unit of the equipment must be

approved by the secretary of state...." Section 122.038 provides

that the Secretary "shall approve the system or equipment" after

reviewing reports on the system or equipment prepared by designated

examiners and determining that it "satisfies the applicable

11

The plaintiffs maintain that Deputy Assistant Secretary of

State Ann McGeehan "conceded" in her deposition that the ADA is an

"election law" for purposes of Texas Election Code § 31.003.

However, we review all issues of statutory interpretation de novo,

Vinson & Elkins v. Commissioner of Internal Revenue, 7 F.3d 1235,

1237 (5th Cir.1993), and are not bound by the district court's

construction of a statute—let alone a party's. Moreover, review of

McGeehan's deposition testimony demonstrates that, rather than

conceding that the ADA is an "election law," McGeehan was unsure

whether it was.

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requirements for approval."

The plaintiffs maintain that the Secretary has violated the

ADA because he has not approved equipment accessible to blind

voters. The plaintiffs construe §§ 122.031 and 122.038 as obliging

the Secretary to take affirmative steps to solicit and approve

equipment that ensures a completely secret ballot for blind voters.

The plaintiffs do not, however, specify where in §§ 122.031 and

122.038 they find this expansive duty, particularly in the absence

of any evidence that the Secretary has refused approval of voting

equipment that satisfies the plaintiffs' desires. The plaintiffs'

assertion that a voting machine for blind voters exists does not

prove that the Secretary violated the ADA because the plaintiffs do

not allege—let alone prove—that they presented any voting machine

to the Secretary or that he failed to approve such a machine.

Perhaps the plaintiffs could state a claim under the ADA if they

demonstrated that the Secretary wrongly refused to approve such

equipment after it was presented to him for approval. However, the

record does not reveal that the Secretary has considered any voting

equipment that "satisfies the applicable requirements" and then

failed to permit it. As a result, the plaintiffs have not

demonstrated the Secretary's responsibility for the alleged ADA

violations.

With regard to mobility-impaired voters, we note that §

43.034 of the Texas Election Code places responsibility for

accessibility of polling places to the elderly and physically

handicapped on the "commissioners court[s]" and the "governing body

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of each political subdivision that holds elections." The district

court stated that § 43.034 imposes a statutory duty on local

political subdivisions, but that the statute is unclear about how

it is enforced. Without explanation, the district court concluded

that it "is of the opinion that the final enforcer of this section

is the Secretary of State." Thus, the district court found that

the Secretary violated the ADA because some buildings used as

polling places are not accessible to mobility-impaired voters.

We disagree with the district court's conclusion. Section

43.034 directs local election officials, not the Secretary, to

ensure accessibility of polling places to elderly and physically

handicapped voters. However, since § 43.034 is clearly an

"election law," we note that § 31.003 commands the Secretary to

obtain and maintain uniformity in the application, operation, and

interpretation of § 43.034. This means that the Secretary has a

duty to maintain uniformity in the operation of a statute that

requires local election officials to ensure the accessibility of

polling places.

In this regard, the plaintiffs assert that local election

officials implement § 43.034 differently and that the Secretary has

not issued "detailed and comprehensive written directives and

instructions" suggesting that the officials administer that section

in a particular way. To allege an ADA violation, though, the

plaintiffs must also maintain, among other things, that they are

being denied the benefit of a service for which the Secretary is

responsible. Here, the service the Secretary has to perform is

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obtaining the uniform operation of § 43.034. While the plaintiffs

may receive a benefit from the accessibility mandate of § 43.034,

they do not receive any benefit from the uniformity of this

mandate. For instance, assume that local election officials

interpret the accessibility mandate differently. Some officials

believe that § 43.034 requires them to provide special scooters to

ferry handicapped voters from the parking lot to the polling place;

others disagree. The Secretary could carry out his duty under §

31.003 either by informing local election officials that § 43.034

does not compel the provision of special scooters or by directing

local officials to offer such scooters. In other words, the

Secretary can ensure uniformity by acting either to increase or

decrease accessibility on the margin; uniformity in and of itself

confers no benefit on the disabled. Thus, we determine that while

the Secretary has a state-imposed legal duty to ensure the

uniformity of the application, operation, and interpretation §

43.034, this uniformity—without more—cannot be a "benefit" to the

plaintiffs for purposes of the ADA and the alleged denial of

uniformity cannot be an example of discrimination under the ADA.

Accordingly, the Secretary cannot be held liable for violation of

the ADA because some polling places are inaccessible to

mobility-impaired voters.

Finally, § 35.105 of the ADA implementing regulations

requires a public entity to "[e]valuate its current services,

policies, and practices, and the effects thereof ... [and] proceed

to make the necessary modifications." 28 C.F.R. § 35.105(a). The

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plaintiffs argue that the Secretary violated the ADA by failing to

perform this "self-evaluation." The plaintiffs maintain that

"[t]he Secretary's abject failure ... most notably by failing to

prepare a self-evaluation plan, played a pivotal role in ensuring

that, as of the trial in this case, no efforts had been made in

Texas to adapt or invent voting systems that would provide secrecy

of the ballot for voters who are blind...." The plaintiffs

describe § 35.105 as creating a "duty" on the part of the Secretary

"to take the initiative and explore, through all means reasonably

available, solutions to the discrimination faced by voters who are

blind."

Central to the plaintiffs' argument here is the premise that

§ 35.105 requires the Secretary to evaluate the practices of every

electoral subdivision in Texas. We find such an interpretation of

the regulation unreasonable. To the contrary, we read § 35.105 as

merely requiring the Secretary to evaluate his department, an

evaluation the Secretary performed. In fact, even the plaintiffs'

counsel admitted before the district court that the Secretary

performed an internal self-evaluation.

In sum, the Secretary has no duty under either Texas law or

the ADA to take steps to ensure that local election officials

comply with the ADA. While the Secretary has a duty to approve

certain voting equipment, the plaintiffs have failed to allege

facts suggesting a breach of that duty. In addition, while the

Secretary has a duty to maintain uniformity in the administration

of § 43.034 and arguably breached that duty, he could not have

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denied any benefit to the plaintiffs. Therefore, we determine that

the plaintiffs have failed to state a claim under the ADA against

the Secretary.

III

Based on the foregoing, we REVERSE the judgment of the

district court and RENDER judgment in favor of the Secretary of

State of Texas.

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