ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS Dkt. No. 8
JOSEPH C. SPERO, Magistrate Judge.
This action is brought by five blind registered voters of the County of Alameda, as well as California Council of the Blind, a membership organization of blind and visually impaired individuals (collectively, "Plaintiffs"). Defendants are the County of Alameda and Tim Dupuis, in his official capacity as the Interim Registrar of Voters for the County of Alameda ("Defendants"). Plaintiffs allege that in the last two elections, Defendants failed to ensure that voting machines accessible to the blind and visually impaired could be activated and operated by poll workers, and therefore required these individuals to vote with the assistance of third parties in violation of Title II of the Americans with Disabilities Act, 42 U.S.C. §§ 12101-12213, § 504 of the Rehabilitation Act, 29 U.S.C. § 794, as well as California Election Code § 19227 and California Government Code § 11135. Defendants filed a Motion to Dismiss ("Motion") under Rule 12(b)(1) and (6) of the Federal Rules of Civil Procedure. The Court held a hearing on the Motion on October 11, 2013, at 1:30 p.m. For the reasons stated below, the Motion to Dismiss is GRANTED in part and DENIED in part.
A. Factual Allegations
Plaintiffs allege that advancements in technology make it possible for blind and visually impaired individuals to vote privately and independently just as sighted voters do. Complaint ("Compl.") ¶ 4. Sequoia AVC Edge electronic voting machines ("accessible voting machines") utilize electronic ballots and possess an audio ballot feature that can read aloud instructions and voting options. Id. ¶ 31. When a tactile keyboard and headphones are connected to an accessible voting machine and the audio ballot is functioning properly, a blind voter can use the audio ballot feature and the tactile keypad to privately and independently complete and submit a ballot. Id.
In the past several public elections, the County of Alameda has provided at least one of these accessible voting machines at each of its polling sites. Id. ¶ 31. In fact, it is required to do so by California and federal law. Id. ¶¶ 4, 7. The Help America Vote Act ("HAVA"), 42 U.S.C. § 15301 et seq., which came into effect January 1, 2006, requires every voting site in federal elections to provide at least one accessible voting machine that includes "nonvisual accessibility for the blind and visually impaired in a manner that provides the same opportunity for access and participation (including privacy and independence) as for other voters[.]" Id. § 15481(a)(3)(A)-(B). Similarly, California Elections Code § 19227 requires, subject to available funds, the provision of at least one voting machine at each polling site that enables the blind and visually impaired "to cast and verify all selections made by both visual and nonvisual means." Cal. Elec. Code § 19227.
According the Plaintiffs, the fact County of Alameda has provided accessible voting machines during the last two election cycles is insufficient. Plaintiffs allege that counties must take affirmative steps to ensure that accessible voting machines are fully operational at all polling sites from the moment the sites open on Election Day to the moment they are closed. Id. ¶ 6. Such affirmative steps, according to Plaintiffs, require counties to provide adequate training of poll workers on the appropriate set up and use of the machines, conduct adequate testing of each machine and the accessible features prior to opening the polling site, provide timely and skilled technical support services to poll-site staff, deploy replacement machines as needed in a timely manner, investigate non-functioning machines to determine the cause of the problems that arise, and identify and implement solutions to such problems. Id.
Plaintiffs allege that the County of Alameda has failed to take such affirmative steps to ensure that accessible voting machines functioned properly during the November 6, 2012 Election. As a result, multiple blind voters were denied their right to vote privately and independently at multiple poll sites. Id. ¶ 32. On November 6, 2012, the five Plaintiffs in this action each tried to vote privately and independently at four different polling sites using an accessible voting machine. Id. ¶¶ 11, 17-21. At each site, however, poll workers were unable to make the audio ballot feature, tactile keypads, and/or other accessible features of the machines function properly. Id. In the end, each of the five Plaintiffs was required to vote with the assistance of a third party, either a poll worker or a family member, if they were to vote at all. Id. ¶¶ 17-21.
Before voting with the assistance of a third party, three of the Plaintiffs attempted to use an accessible voting machine at another polling site. Plaintiff Martinez's designated polling site was the Kennedy Community Center in Union City. Id. ¶ 18. Plaintiff Martinez was sent to use the accessible voting machine at the Union City Library when the audio ballot feature and tactile keypad could not be activated for the Kennedy Community Center's accessible voting machine. Plaintiff Martinez returned to the Kennedy Community Center when the same problem arose at the Union City Library. Id.
Plaintiffs Rueda and Bunn had designated polling sites at the Ceasar Chavez Middle School in Union City. Id. ¶¶ 20-21. When poll workers were unable to activate the audio ballot feature on either of the two accessible machines, Plaintiffs Rueda and Bunn were driven together to another polling site at a private home one mile away. However, they returned to Ceasar Chavez Middle School when the poll workers at the private home were also unable to activate the audio ballot feature for that site's accessible voting machine. Id. Plaintiffs further allege that Defendants did not adequately respond when the accessible voting machines at various polling sites malfunctioned. For instance, a poll worker at The Bridge of Faith Fellowship Hall polling site in Hayward called the County Registrar's troubleshooting line after trying to activate the audio ballot feature of the accessible voting machine so Plaintiff Gardner could vote privately and independently. Id. ¶ 19. After some difficulty getting through to the troubleshooting line, someone from the County Registrar's office informed Plaintiff Gardner that she would have to wait for two hours for a replacement voting machine, with no guarantee that the accessible features would be able to function properly in the end. Id.
The Complaint alleges that the County's failure to ensure that the accessible features of its voting machines are functioning on Election Day is a result of its failure to: (1) develop and implement policies to ensure that its staff are trained on appropriate use and setup of its accessible voting machines; (2) ensure that its staff properly maintain and test the accessible features of such machines; and (3) maintain an adequate troubleshooting, maintenance, and replacement machine deployment system to ensure the functionality of its machines on Election Day. Id. ¶ 36.
B. Causes of Action
Plaintiffs assert four causes of action in the Complaint. Plaintiffs allege that the foregoing constitutes a violation of Title II of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12131, et seq., as well as § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 ("Rehabilitation Act"). Plaintiffs also assert two state law claims under California Election Code § 19227 and California Government Code § 11135.
C. Motion to Dismiss
Defendants argue that Plaintiffs fail to state a claim under Title II of the ADA or § 504 of the Rehabilitation Act. Defendants' Notice of Motion and Motion to Dismiss Plaintiffs' Complaint Pursuant to Rule 12(b)(1), (6) ("Motion"). Defendants contend that nothing in the ADA or the Rehabilitation Act create a right to vote privately and independently, and because Plaintiffs allege that they were able to vote with the assistance of a third party, they fail to state a claim under the ADA or the Rehabilitation Act as a matter of law. Defendants urge the Court to decline to exercise supplemental jurisdiction over the state law claims, and argue that in any event, Plaintiffs fail to state a claim under California Election Code § 19227 and California Government Code § 11135.
Plaintiffs oppose Defendants' Motion on all grounds. Plaintiffs' Opposition to Defendants' Motion to Dismiss Plaintiffs' Complaint Pursuant to Rule 12(b)(1), (6) ("Opposition").
III. LEGAL STANDARD
A complaint may be dismissed for failure to state a claim for which relief can be granted under Rule 12(b)(6) of the Federal Rules of Civil Procedure. Fed.R.Civ.P. 12(b)(6). "The purpose of a motion to dismiss under Rule 12(b)(6) is to test the legal sufficiency of the complaint." N. Star. Int'l v. Ariz. Corp. Comm'n, 720 F.2d 578, 581 (9th Cir. 1983). In ruling on a motion to dismiss under Rule 12(b)(6), the Court takes "all allegations of material fact as true and construe(s) them in the lights most favorable to the non-moving party." Parks Sch. of Bus. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1990). The complaint need not contain "detailed factual allegations, " but must allege facts sufficient to "state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 547 (2007)).
A. Legal Standard - Discrimination under the ADA and Rehabilitation Act
Section 504 of the Rehabilitation Act and Title II of the ADA are similar in purpose and scope. Title II of the ADA provides:
Subject to the provisions of this subchapter, no 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. Section 504 of the Rehabilitation Act provides:
No otherwise qualified individual with a disability in the United States... shall, solely by reason of her or his disability, 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). For purposes of this Motion, Plaintiffs' claims under § 504 of the Rehabilitation Act and Title II of the ADA may appropriately be considered together.
To plead a cause of action under Title II of the ADA and § 504 of the Rehabilitation Act, a plaintiff must allege three elements: (1) that he or she is a "qualified individual with a disability"; (2) that he or she was "excluded from participation in or denied the benefits of a public entity's services, programs or activities, or was otherwise discriminated against by the public entity"; and (3) that "such exclusion, denial of benefits, or discrimination was by reason of his [or her] disability." Weinreich v. Los Angeles Cnty. Metro. Transp. Auth., 114 F.3d 976, 978 (9th Cir. 1997). In the Motion to Dismiss, Defendants only argue that Plaintiffs fail to establish the second element - that they were "excluded from participation in or denied the benefits of a public entity's services, programs or activities, or [were] otherwise discriminated against by the public entity." Id. ; see Motion at 5.
The Ninth Circuit has broadly construed the scope of both the Rehabilitation Act and the ADA based on the text of the statute and legislative history. The Rehabilitation Act covers "any program or activity receiving Federal financial assistance, " and "defines program or activity' as all of the operations of' a qualifying local government." 29 U.S.C. § 794(a); Barden v. City of Sacramento, 292 F.3d 1073, 1076-77 (9th Cir. 2002) (quoting 29 U.S.C. § 794(b)(1)(A)). "The legislative history of the ADA similarly supports construing the language generously, providing that Title II... simply extends the anti-discrimination prohibition embodied in section 504 [of the Rehabilitation Act] to all actions of state and local governments. '" Barden, 292 F.3d at 1077 (quoting H.R.Rep. No. 101-485(II), at 84 (1990), reprinted in 1990 U.S.C.C.A.N. 303, 367) (emphasis added in Barden ). Therefore, the Ninth Circuit construes "the ADA's broad language as bringing within its scope anything a public entity does." Barden, 292 F.3d at 1076 (quotations and alterations omitted).
Both parties note that to determine whether Plaintiffs state a claim under the ADA and Rehabilitation Act, the Court must consider whether Plaintiffs' allegations show they have been denied "meaningful access" to the County's services, programs or activities. Opposition at 4:1; Reply at 4:19; Alexander v. Choate, 469 U.S. 287, 301 (1985) (holding that under § 504 of the Rehabilitation Act, "an otherwise qualified handicapped individual must be provided with meaningful access to the benefit that the grantee offers.") (emphasis added). Indeed, the Ninth Circuit has "relied on Choate 's construction of Section 504 in ADA Title II cases, and [has] held that to challenge a facially neutral government policy on the ground that it has a disparate impact on people with disabilities, the policy must have the effect of denying meaningful access to public services." K.M. ex rel. Bright v. Tustin ...