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ADA Claim Sparks Dispute Over Potty Breaks

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For voters in Florida’s Miami-Dade County who have had to wait up to seven hours on Election Day to cast their ballots, there’s an argument over what should take priority: the call to citizenship or the call of nature.

Emails from a deputy elections supervisor and an assistant county attorney say Miami-Dade voters are banned from using restrooms at polling places. But the chief deputy elections supervisor pooh-poohed the notion.

Number One and Number Two are fine in publicly owned voting sites, such as libraries and city halls, where bathrooms are open for anyone to use.

The problem might arise when precincts are located in private buildings, which don’t have to allow public bathroom access, or in churches and other religious facilities, which are exempt from federal law requiring accessible restrooms for people with disabilities. Elections administrators have long relied on those locations to set up Miami-Dade’s more than 500 polling places.

Two years ago, the nonprofit Center for Independent Living of South Florida asked the department run by Elections Supervisor Penelope Townsley about its plans for giving people with disabilities access to the polls.

Marc Dubin, the center’s director, said he hoped the county would try to find new voting sites to replace polling places without accessible restrooms, or that it would pay for portable toilets outside those locations.

Instead, the elections department told him that it would prohibit all voters from using restrooms. If no voters could go to the bathroom, the county argued, then it could not be accused of discriminating against only the ones with disabilities.

“This is the most bizarre response I’ve ever gotten, that we’re going to shut down access for everyone so as not to discriminate,” Dubin said.

Not only does Dubin counter that the county’s contention is incorrect — even if no voters are allowed to use the restroom, federal law requires modifications to be made for those with disabilities, he said — but he also accuses Miami-Dade of trying to keep voters from the polls.

“This is a very clear way to suppress the vote,” he said. “Telling people, ‘We have 12-hour lines but you can’t go to the bathroom?’ You can be guaranteed that people won’t come out to vote.”

Dubin raised the issue March 31 to the National Commission on Voting Rights, which held a hearing at the University of Miami.

He provided to the Miami Herald an Aug. 1, 2013, email from John Mendez, Miami-Dade’s deputy supervisor of elections for operations, that said “in order to ensure that individuals with disabilities are not treated unfairly, the use of rest rooms by the Voters is not allowed on election day.”

A subsequent, Feb. 14 email from Assistant County Attorney Shanika Graves reiterated that the department’s policy “is not to permit access to restrooms at polling sites on election days.”

“This policy was implemented to avoid situations where accessible restrooms would be available to some, but not all voters,” she wrote.

Graves, who handles matters regarding the federal Americans with Disabilities Act for the county attorney’s office, did not respond to requests for comment.

But the two emails were contradicted by Christina White, the elections department’s chief deputy supervisor, who told the Miami Herald that poll workers have always allowed voters — with disabilities or not — to use restrooms when they’re available.

“For somebody who’s voting, of course, we will allow them to use the restroom,” she said.

The county provides accessible parking and wheelchair-accessible ramps in polling places that don’t already offer it. But bathrooms, either for those with disabilities or anyone else, are not part of the deal, and allowing voters to tinkle is up to each building owner or operator. Other than the emails to Dubin, there’s no formal bathroom policy.

To Dubin’s broader point about disability access, though, White did concede that the county’s position is that it doesn’t have to provide those restrooms at polling places — because the county says it doesn’t have to provide any restrooms, period.

“There’s no legal requirement for us to provide bathroom access, but we, as a courtesy to our voters, do when there is a bathroom at the polling place,” she said. “That’s not always possible.”

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Comments (3 Responses)

  1. Liz says:

    How about adding new polling places so the line isn’t 7 hours long? No need to thank me Florida for solving your problem.

    I live in a much bigger city & have never waited longer than 20 minutes to vote and this is at peak times.

  2. Fitz says:

    Just another reason to vote absentee:-)!

  3. jackie says:

    sounds like a good rationale to expand the use of absentee ballots- I would never wait that long to vote-ridiculous- especially since I always seem to vote for the loser !

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