(1)
Delegation to Director of
Elections. The Secretary delegates to the Director of Elections
(the Director) the authority to determine whether a polling place is exempt
from the accessibility requirements under
42
U.S.C. 1973ee-1(b), §
3(b), and under 950 CMR 51.03.
(2)
Emergency Exemptions. In an emergency under
42
U.S.C. 1973ee - 1(b)(1), § 3(b)(1), an
exemption may be applied for and determined by telephone, but both the city or
town and the Director shall confirm their communications in writing. Mere
failure of the city or town to make adequate and timely plans and arrangements
does not constitute an emergency. If an exemption is allowed, it applies only
to one election, and the city or town must exercise its best efforts to find
another accessible polling place, and if none is available, to provide whatever
assistance is possible to handicapped and elderly voters. If an emergency
exemption is allowed, handicapped or elderly voters assigned to such an
emergency exempt polling place may vote by absentee ballot in the office of the
city or town clerk or election commission without applying in advance. The
procedures set forth in the second paragraph of M.G.L. c. 51, § 59 shall
apply to such voters, except that the absentee ballot envelope shall be marked
"Emergency Polling Place Exemption".
(3)
Non-availability Exemptions:
Standards. In determining under
42
U.S.C. 1973ee - 1(b)(2)(A), §
3(b)(2)(A), that all potential places have been surveyed and that no accessible
place is available, nor is the city or town able to make one temporarily
accessible in the area involved, the Director shall consider the following
factors:
(a) Whether each location has been
studied by a trained person to determine whether or not it is accessible.
1. Polling places should not be presumed to
be accessible simply because there are no obvious barriers, but
950 CMR
51.02 must be applied.
2. A trained person is one with knowledge of
what constitute structural barriers to handicapped individuals.
3. Handicapped persons, representatives of
handicap groups or professionals who work with handicapped individuals should
be consulted.
4. If a location is
inaccessible, then the city or town should either seek an alternative
accessible location or seek to have the barriers removed.
(b) Whether the owners or proprietors of the
building have been consulted regarding the modifications. If the owners or
proprietors are unwilling to make the modifications, then an alternative
location should be sought. Possible locations include those which are currently
accessible and those where the owners or proprietors are willing to make
necessary modifications.
(c)
Whether an estimate of the cost to make the modifications has been obtained
from a qualified person (construction contractor, carpenter), and whether
different options for removing the barriers have been explored (e.g., temporary
ramps).
(d) With respect to polling
places in inaccessible government buildings, whether the city or town has urged
government officials to make the modifications necessary for the buildings to
be accessible.
(e) The record of
the city or town's percentage of polling places in compliance in the
past.
(f) The city or town's
expressed plans for providing an accessible polling place in the
future.
(4)
Non-availability Exemptions: Procedure.
(a) The city or town body responsible for
selecting polling places under M.G.L. c. 54, § 24 (city council, board of
selectmen, or election commission) must apply in writing for any exemption
under section 3(b)(2) of the Act, 42 U.S.C. § 1973ee-1(b)(2). The
application must be filed with the Director of Elections, under the penalties
of perjury and in a form prescribed by him, not later than 180 days before the
first federal election of an even-numbered year.
(b) Not later than the application deadline,
the city or town must give notice that it has applied for the exemption, by
posting notice on the principal bulletin board, sending copies to all local
news media, and mailing copies to the local council on aging, to any municipal
handicapped office or commission, to the state Office of Handicapped Affairs
(One Ashburton Place, Room 1305, Boston, MA 02108), and to any additional
organizations which the Director may prescribe. The notice shall state the
designation and address of the polling place or places for which exemption is
sought, the reasons for the application, the location at which a copy of the
application may be inspected, and the fact that any person may file a written
response within 30 days with the state Director of Elections, One Ashburton
Place, Room 1705, Boston, MA 02108, telephone (617) 727-2828 or (800)
462-8683.
(c) Any person may file
with the Director a written response to an exemption application within 30 days
after it is filed.
(d) The Director
may, in his discretion, seek further information from the city or town or hold
an informal hearing before himself or his designee.
(e) Not later than 90 days before the first
federal election of an even-numbered year, the Director shall notify the city
or town in writing whether an exemption is allowed and of the reasons for the
decision. The period of an exemption shall be two calendar years, beginning
with an even-numbered year. Renewal of the exemption requires a new
application.
(5)
Alternative Voting Methods. As required by section
3(b)(2)(B) of the Act, 42 U.S.C. § 1973ee-1(b)(2)(B), handicapped or
elderly voters assigned to an exempt polling place may vote by absentee ballot,
either by mail or in the office of the city or town clerk or election
commission, if they previously apply in writing, under M.G.L. c. 54,
§§ 86 through 103Q. Current state law prevents assigning such voters
to another polling place, as well as "curbside voting" outside the polling
place on election day.
