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Massachusetts Regulations § 950 CMR 51.03 Exemptions

⤴ Up to Title 950 CMR 51.00: Polling Place Accessibility For Elderly And Handicapped Voters

Regulation Text

(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.

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