ORDER

RALPH W. NIMMONS, JR., United States District Judge.

This is an action brought by an organization of people with disabilities, as well as by certain visually and manually impaired voters, against state and local election officials and members of the City Council of Jacksonville, claiming violation of the Americans with Disabilities Act, the Rehabilitation Act of 1973, and Article VI, Section 1, of the Florida Constitution.

Before the Court are the following motions: (1) Defendants Smith and Kast's Motion to Dismiss (Dkt. 5) and Plaintiffs' Response (Dkt. 8) in opposition thereto; and (2) Defendants Stafford, Alvarez, Brown, Carlucci, Carter, Chandler-Thompson, Daniels, Fullwood, Hipps, Holland, Holzendorf Jenkins, Lockett-Felder, Overton, Ray, Rustin, Self, Soud, Southwell, and Yates' Motion to Dismiss (Dkt. 6) and Plaintiffs' Response (Dkt. 9) in opposition thereto. The Court has considered the parties' written submissions, oral arguments and applicable authorities.

I. The Parties and the Alleged Facts

Plaintiff American Association of People with Disabilities (AAPD) is a nonprofit organization whose purpose is to advocate the interests of persons with disabilities. Some of AAPD's members are registered voters in Duval County with visual and manual impairments. Plaintiffs Bell and Bowen are visually impaired persons registered to vote in Duval County. Plaintiff O'Conner is manually impaired such that he cannot manipulate a writing instrument or touchscreen, and is registered to vote in Duval County.

Defendants Alvarez, Brown, Carlucci, Carter, Chandler-Thompson, Daniels, Fullwood, Hipps, Holland, Holzendorf, Jenkins, Lockett-Felder, Overton, Ray, Rustin, Self, Soud, Southwell, and Yates are all members of the City Council of the City of Jacksonville (Council). Defendant Stafford is the Supervisor of Elections of Duval County. Defendant Smith is the Secretary of State of the State of Florida, and Defendant Kast is the Director of the Division of Elections, a division of the office of the Secretary of State.

Plaintiffs are unable to vote unassisted with the equipment currently used in Duval County or the equipment the County has recently purchased. In order to vote, Plaintiffs Bell and Bowen rely on the assistance of third parties to read the ballot to them and to mark their selection. For Plaintiff O'Conner to vote, he must rely on the assistance of a third party to mark his selection on the ballot.

The Secretary of State and the Director of the Division of Elections must approve any voting systems to be used in Florida. Thus, before a county may purchase a voting system, it must have been certified by the Secretary of State and the Director of the Division of Elections. Six optical scan voting systems and one touchscreen voting system have been so certified by the Secretary of State and the Director of the Division of Elections. While Plaintiffs had asked the former Secretary of State, Katherine Harris, and the former Director of the Division of Elections, L. Clayton Roberts, to certify voting systems that allow visually and manually impaired voters to vote unassisted, visually and manually impaired voters are unable to access any of the presently certified voting systems for purposes of unassisted voting. Only the certified touchscreen system could potentially be used by Plaintiffs to vote unassisted; to provide for unassisted voting, it would need to be modified with audio and so-called "puff stick" equipment.

Supervisor of Elections Stafford and the City Council are responsible for selecting and purchasing voting systems to be used in Duval County. Defendants Stafford and the Council decided to purchase optical scan voting equipment despite knowing that such systems did not allow visually and manually impaired voters to vote unassisted. In addition, Defendants Stafford and the Council decided to purchase up to four touchscreen voting systems for the County but failed to purchase the audio and puff stick equipment necessary for visually and manually impaired voters to vote unassisted. Also, these touchscreen systems were only to be located at voting headquarters.

Plaintiffs filed suit alleging that Defendants violated the Americans with Disabilities Act (ADA), 42 U.S.C. § 12132, and Section 504 of the Rehabilitation Act of 1973 (Rehabilitation Act), 29 U.S.C. § 794, and that Sections 101.051, 101.28, and 101.5606, Florida Statutes, violate Article VI, Section 1 of the Florida Constitution. Plaintiffs allege that Defendants Smith's and Kast's predecessors violated the ADA, the Rehabilitation Act, and Article VI, Section 1 of the Florida Constitution by certifying voting systems that do not allow visually and manually impaired voters to vote unassisted. Plaintiffs allege that Defendants Stafford and the Council violated the ADA, the Rehabilitation Act, and Article VI, Section 1 of the Florida Constitution by deciding to purchase voting equipment that would not allow visually and manually impaired voters to vote unassisted. In addition, Plaintiffs allege that Sections 101.051, 101.5606, 101.28, Florida Statutes, violate Article VI, Section 1 of the Florida Constitution.

II. Motion to Dismiss Standard

It is well established that "a motion to dismiss for failure to state a claim should not be granted unless it appears to a certainty that the plaintiff would not be entitled to recover under any state of facts which could be proved in support of his claim." Cook Nichol, Inc. v. Plimsoll Club, 451 F.2d 505, 506 (5th Cir. 1971); accord Conley v. Gibson 355 U.S. 41, 47-48, 78 S.Ct. 99, 2 L.Ed.2d 80, 84 (1957). In evaluating the sufficiency of a complaint for purposes of a motion to dismiss, the allegations of the complaint must be accepted as true,Hishon v. King Spalding, 467 U.S. 69 (1984), and viewed in a light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232 (1974),abrogated on other grounds by Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). Nevertheless, when the allegations in a complaint are wholly conclusory and fail to set forth facts which, if proved, would warrant relief for the plaintiff, dismissal is appropriate.Davidson v. State of Georgia, 622 F.2d 895, 897 (5th Cir. 1980).

With regard to dismissing a complaint with prejudice, the general rule in the Eleventh Circuit is that where a "more carefully drafted complaint might state a claim, a plaintiff must be given at least one chance to amend the complaint before the district court dismisses the action with prejudice." Bank v. Pitt 928 F.2d 1108, 1112 (11^th Cir. 1991). Two exceptions exist: (1) where the plaintiff expresses a desire not to amend his or her complaint; and (2) where "a more carefully drafted complaint could not state a claim under the standard of Conley, 355 U.S. at 45-46, 78 S.Ct. at 102, [ 2 L.Ed.2d at 84], dismissal with prejudice is proper."Id.

III. Discussion

A. Summary of Contentions

Defendants Smith and Kast assert that Plaintiffs failed to allege that they or their predecessors were presented with a voting system that would allow visually and manually impaired voters to vote unassisted. Consequently, Defendants Smith and Kast argue the claim is not ripe and that Plaintiffs lack standing. In addition, Defendants Smith and Kast assert that they do not have a duty to ensure that local election officials apply the ADA uniformly. Instead, Defendants Smith and Kast contend that they have the discretion to adopt rules that establish minimum standards for voting systems. Thus, while they have the discretion to adopt rules requiring voting systems that allow visually and manually impaired voters to vote unassisted, Defendants Smith and Kast assert that they have no duty to adopt such rules. Defendants Smith and Kast also assert that Plaintiffs failed to state a claim under the Rehabilitation Act because they did not adequately allege that their respective offices received federal financial assistance.

Defendants Stafford and Council assert that the ADA only requires that disabled voters not be excluded from voting. Therefore, Stafford and Council argue, the ADA does not create a federal right to absolute "direct or secret voting." Similarly, Defendants Stafford and Council assert that state law does not create a right to unassisted voting. Since neither the ADA nor Florida law creates a right to a completely direct and secret vote, Stafford and Council argue that the ADA is not violated. In addition, Defendants Stafford and Council assert that Plaintiffs fail to state a claim under the Rehabilitation Act because they do not adequately allege that they receive federal financial assistance. Defendants Stafford and Council also assert that Sections 101.051, 101.5606, and 101.28 do not violate Article VI, Section 1 of the Florida Constitution. Also, the members of the Jacksonville City Council assert that they are entitled to absolute legislative immunity.

B. Ripeness and Standing

Defendants Smith and Kast assert that the action against them is not ripe and that Plaintiffs lack standing. They argue that the action is not ripe because, under Florida law, counties select voting systems for possible purchase and submit them to the Department of State for approval. Since no county has presented voting equipment for approval that allows visually and manually impaired voters to vote unassisted, Defendants Smith and Kast assert that neither they nor their predecessors have done anything to deny Plaintiffs the benefits of services, programs, or activities, and that the suit, at least as to Smith and Kast, is therefore not ripe. Defendants Smith and Kast also argue Plaintiffs lack standing because they have failed to adequately establish a likelihood of future injury. Defendants Smith and Kast contend that, because Plaintiffs failed to allege that they or their predecessors were presented for certification with voting equipment that permits visually and manually impaired voters to vote unassisted, Smith and Kast have not caused Plaintiffs to suffer an injury and Plaintiffs are not likely to suffer an injury in the future.

Plaintiffs respond, however, that the suit is ripe because Defendants Smith and Kast and their predecessors had a duty to certify voting systems that allowed visually and manually I impaired voters to vote unassisted. Plaintiffs argue that this duty is predicated on Plaintiffs' having requested that Defendants Smith's and Kast's predecessors certify such voting equipment and on Defendants Smith's and Kast's Florida statutory duties. Plaintiffs contend that Defendants Smith and Kast have an independent duty under Florida law to only certify voting equipment allowing visually and manually impaired voters to vote unassisted. In addition, Plaintiffs assert that Defendants Smith's and Kast's predecessors were presented with such a voting system for certification because Plaintiffs allege that they had asked Defendants Smith's and Kast's predecessors to certify such voting systems.

Standing and ripeness are justiciability issues that arise within the context of the Article III, United States Constitution, requirement that an actual case or controversy is a necessary predicate to federal court jurisdiction. See Coalition for the Abolition of Marijuana Prohibition v. City of Atlanta, 219 F.3d 1301, 1309 (11th Cir. 2000). To determine whether a claim is ripe, a court must consider the fitness of the issues for judicial determination and whether failing to decide the matter will cause hardship to the parties. See id.

A determination of whether a case is fit for judicial determination requires a court to consider whether there is sufficient injury to satisfy the Article III case or controversy requirement and whether the case is sufficiently defined to allow the court to effectively decide the case. See id. To determine whether a plaintiff has standing to bring a claim, the plaintiff must establish "(1) that the plaintiff has suffered an actual or threatened injury; (2) that the injury is fairly traceable to the challenged conduct of the defendant; and (3) that the injury is likely to be redressed by a favorable ruling." Nat'l Ass'n of Gov't Employees v. Barrett, 968 F. Supp. 1564, 1569 (N.D. Ga. 1997) (citingValley Forge Christian College v. Ams. United for Separation of Church and State, Inc., 454 U.S. 464, 471-72 (1982)).

The ripeness and standing arguments are premised on the contention that Defendants Smith and Kast and their predecessors have not had the opportunity to certify equipment that would allow visually and manually impaired voters to vote without assistance. Thus, Defendants Smith and Kast argue, the suit is not ripe because Defendants Smith and Kast and their predecessors have not yet denied certification of such equipment and Smith and Kast may not do so. Until they deny certification, Defendants Smith and Kast contend, Plaintiffs have not been injured by them or their predecessors.

It is not clear to the Court, however, whether the Secretary of State and the Director of the Division of Elections have certified, or may certify, voting systems without the system having been presented by a county seeking to purchase the system. There was some discussion at the hearing on the Motions to Dismiss regarding a list of approved systems. It is not clear whether the voting systems on this list were previously approved when counties brought them before the Secretary of State and the Director of the Division of Elections or whether they were sua sponte approved. If Defendants Smith and Kast have the power to sua sponte certify voting systems or to certify them based on Plaintiffs' alleged request therefor, then Plaintiffs have adequately alleged the existence of an actual or threatened injury caused by conduct of Defendants Smith and Kast or their predecessors that could be redressed by a favorable decision of this Court. In addition, the case would be sufficiently defined to allow the Court to effectively decide the case. Consequently, the Court cannot say that Plaintiffs would be unable to prove any state of facts that would satisfy the ripeness and standing requirements. C. Article VI, Section 1, Florida Constitution (Count Two)

Plaintiffs assert that Article VI, Section 1 of the Florida Constitution, which provides for "direct and secret" voting, necessarily confers upon visually and manually impaired voters a Florida constitutional right to be provided a method of unassisted voting. Thus, Plaintiffs assert that Defendants Smith's and Kast's predecessors violated Article VI, Section 1 of the Florida Constitution by certifying a voting system that does not permit visually and manually impaired voters to vote without assistance and that Defendants Stafford and the Council violated Article VI, Section 1 of the Florida Constitution by purchasing a voting system that does not permit visually and manually impaired persons to vote without assistance. In addition, Plaintiffs assert that Sections 101.051, 101.5606, and 101.28, Florida Statutes, violate Article VI, Section 1 because they do not specifically provide for "direct and secret" voting such that visually and manually impaired voters are able to vote without assistance.

Thus, it appears that there are two reasons why the Court is called upon to determine whether Article VI, Section 1 guarantees that visually and manually impaired voters be provided a means of voting without assistance: (1) first, because of Plaintiffs' claim that the above Florida statutory sections are violative of Article VI, Section's alleged requirement of unassisted voting for such voters; and (2) second, because, in determining Plaintiffs' federal claims under the ADA and the Rehabilitation Act, it is necessary to determine whether the "program or activity" from which the disabled voter/plaintiffs are allegedly being excluded or being denied the benefits thereof, is a program or activity requiring voting without assistance.

Defendants Smith and Kast assert that the Court, under the Pullman abstention doctrine, should abstain from deciding upon the constitutionality (under the Florida Constitution) of the above referred Florida statutory sections. Pullman abstention is clearly not applicable here if for no other reason than the fact that there are no federal constitutional issues before this Court to be avoided by such abstention. See Pittman v. Cole, 267 F.3d 1269 (11th Cir. 2001); Siegel v. Lepore, 234 F.3d 1163 (11th Cir. 2000); Rindley v. Gallagher, 929 F.2d 1552 (11th Cir. 1991). Secondly, Defendants Smith and Kast's assertion of the applicability of Pullman abstention is expressly based upon the assumption that the Court will find that Plaintiffs have failed to allege a case or controversy under the ADA or the Rehabilitation Act.See Motion to Dismiss of Smith and Kast (Dkt. 5 at p. 9).

Defendants do not assert any of the other abstention doctrines. The Court's own review of the applicable authorities indicates the inapplicability of such other abstention theories although Burford abstention would seem to come closer than abstention under Pullman. But the purpose of Burford appears to principally be directed to the protection of complex state administrative processes from undue federal interference. New Orleans Pub. Serv., Inc. v. Council of the City of New Orleans, 491 U.S. 350, 362 (1989); Boyes v. Shell Oil Products, 199 F.3d 1260, 1265 (11th Cir. 2000); Election 2000: The Law of Tied Presidential Elections, 26 Nova L. Rev. 647, 761 (Spring 2002).

Nor have Defendants Smith and Kast asserted that the Court should exercise its discretion in declining, under 28 U.S.C. § 1367 (c), supplemental jurisdiction over the Count II claim. Subsection (c)(1) of Section 1367 provides that the district court may decline to exercise supplemental jurisdiction over the state claim if "the claim raises a novel or complex issue of State law." However, the issue of whether the above Florida statutory sections are violative of the Florida Constitution are, as previously indicated above, so intertwined with the federal claims in Counts One (ADA) and Three (Rehabilitation Act) that to decline supplemental jurisdiction over Count Two would appear to be an abuse of the Court's discretion.

The Court also notes that it does not have the option of certifying a question to the Florida Supreme Court. While the Florida Supreme Court has jurisdiction to "review a question of law certified by the Supreme Court of the United States or a United States Court of Appeals which is determinative of the cause and for which there is no controlling precedent of the supreme court of Florida," FLA. CONST. art. V. § 3(b)(6), it does not have jurisdiction to review a question of law certified by a federal district court. Thus, pursuant to Defendants' Motions to Dismiss, the Court must address whether Plaintiffs have stated a claim in Count Two. And that depends upon the answer to the question of whether the Florida Constitution guarantees visually and manually impaired voters the right to be provided a method of unassisted voting.

Florida's Constitution provides that "[a]ll elections by the people shall be by direct and secret vote." FLA. CONST. art. VI. § 1. This language became part of the Florida Constitution in 1968 when a joint resolution of the Florida House and Senate, see S.J.R. 4-2X, Spec. Sess. 1968. placed the change on the ballot and the language was adopted. When interpreting a constitutional provision, the fundamental goal is to give effect to the intent of the framers. See State ex rel Dade County v. Dickinson 230 So.2d 130, 135, (Fla. 1969). "Ambiguity is an absolute prerequisite to judicial construction." Florida League of Cities v. Smith, 607 So.2d 397, 400 (Fla. 1992). If a provision is ambiguous, a court should "`focus primarily on factors that inhere in [the state's unique experience], such as the express language of the constitutional provision, its formative history, both preexisting and developing state law, evolving customs, traditions and attitudes within the state, [the] state's own general history, and finally any external influences that may have shaped state law.'" Mozo v. State, 632 So.2d 623, 630 (4th DCA 1994), rev'g 640 So.2d 1108, (Fla. 1994), remanded on wiser grounds 655 So.2d 1115 (Fla. 1995), (quoting Taylor v. State, 596 So.2d 957, 962 (Fla. 1992)). If a constitutional provision could have more than one meaning and the Legislature has adopted one meaning by enacting a statute, the Legislature's interpretation is persuasive, if not controlling. See Greater Loretta Imp. Ass'n v. State ex rel. Boone, 234 So.2d 665, 669 (Fla. 1970).

A Florida Court could interpret the Florida Constitutional provision at issue as requiring the provision of a method by which visually and manually impaired voters may vote without assistance so as to avoid anyone but the voter knowing how the vote was cast. However, a Florida Court could also interpret the language at issue as being satisfied by the assistance provided by Section 101.051, Florida Statutes. Consequently, Article VI, Section 1 of the Florida Constitution is ambiguous.

According to Black's Law Dictionary, "direct" is defined as "straight; undeviating[;] . . . straightforward[;] . . . [f]ree from extraneous influence; immediatel[;] . . . [o]f or relating to passing in a straight line of descent, as distinguished from a collateral line[;] . . . effected by the public immediately, not through representatives." Black's Law Dictionary (7th ed. 1999). "Secret" is defined as "[s]omething that is kept from the knowledge of others or shared only with those concerned[;] . . . [i]nformation that cannot be disclosed without a breach of trust; specif., information that is acquired in the attorney-client relationship." Blacks's Law Dictionary (7th ed. 1999). The definitions of these words do not clearly point to either of the meanings advanced by the respective parties, and thus are not dispositive of the issue.

While the term "direct" could be read to support Plaintiffs' interpretation (absolute directness), it also could be construed as contemplating a more flexible interpretation which gives emphasis to the element "free from extraneous influence." If a Florida court were to choose the latter definition, the provisions of Section 101.051, which provides that the person(s) providing the assistance must read the ballot to the voter "without suggestion or interference" and that "after the [voter] requests the aid of the [person(s) providing assistance], they shall retire to the voting booth for the purpose of casting the elector's vote according to the [voter's] choice" (emphasis added), would arguably satisfy this requirement of directness.

Similarly, the term "secret" could be construed to support both Plaintiffs' and Defendants' positions. While the term may be read to mean absolute secrecy, it also may be construed less restrictively so as to contemplate information known only by a few or information not publicly known. The assistance provided by Section 101.051 would not appear to violate the latter meaning because only one or two people aside from the voter would know for whom the person voted, and Section 104.23, Florida Statutes, makes it a third degree felony for someone assisting a voter to disclose how the voter voted.

Few cases have dealt with the meaning of the current language of Article VI Section 1. In Boardman v. Esteva, 323 So.2d 259, 269 (Fla. 1975), the Florida Supreme Court considered whether a procedure used to canvass absentee ballots violated the Florida Constitutional provision of secrecy. The canvassing procedure required "the Hillsborough County Canvassing Board to assign a number to each absentee elector for purposes of maintaining the integrity of the ballots and votes for purposes of judicial review." Id. The Court noted that traditionally under Florida law, when a voter opts to vote by absentee ballot, the voter waives secrecy of the ballot. See id. While the Court did not decide that there had been such a waiver, it observed that the plaintiff did not assert that the right of secrecy was violated when the absentee ballots were cast. See id. Instead, the canvassing procedure was used to maintain the integrity of the ballots for judicial review. See id. The Court emphasized that there was no contention that the voters were in any way influenced in their voting by the canvassing procedure or that a violation of secrecy actually occurred. See id. Thus, the Court held that the absentee ballots "were not invalidated by reason of a violation of the right of secrecy of the ballot." Id.

While no actual violation of the right of secrecy was found inBoardman the case illustrates that a Florida court interpreting the requirements of Article VI Section 1 places emphasis on whether the affected voters were influenced in their voting. The concern with a voter's decision being influenced by others also appears to have been a primary motivation behind the historic right to secrecy under the Florida Constitution. The current language of Article VI Section 1 replaced former Article VI Section 6, which provided that "in all elections by the people, the vote shall be by ballot," FLA CONST. Art. VI § 6 (1885). "The material guaranty of this constitutional mandate of vote by ballot is inviolable secrecy as to the person for whom an elector shall vote."State ex rel, Smith v. Anderson, 8 So. 1, 5 (Fla. 1890). This right to secrecy was intended to protect voters from the conduct of others, see Bowden v. Carter, 65 So.2d 871, 874 (1953), and to ensure that no one was in a position to question a voter's decision, see State v. Tucker, 173 So. 754, 756 (Fla. 1932).

Thus, it appears that both the current Florida Constitutional right to secrecy and its predecessor are premised, at least in part, upon a concern that one's vote not be influenced by others. This premise supports the interpretation that Article VI, Section 1 is satisfied by the assistance provided in Section 101.051 because Sections 101.051 and 104.23 (making it a third degree felony for someone assisting a voter to disclose how the voter voted) go to significant lengths to prevent someone providing assistance to voters from influencing their voting.

Similarly, the Legislature has, at least tacitly, interpreted the "direct and secret" language as having been satisfied by the assistance provided by Section 101.051. As noted above, if a constitutional provision is susceptible to more than one meaning and the Legislature has adopted one meaning by enacting legislation, the Legislature's interpretation is persuasive if not controlling. See Greater Loretta Imp. Ass'n, 234 So.2d at 669. At the time the Legislature passed the joint resolution placing the "direct and secret" language on the ballot in 1968, a previous version of Section 101.051 provided assistance to illiterate and disabled voters. Section 101.051 was subsequently amended by the Legislature in 1977, see 1977 Fla. Laws ch. 77-175 § 13; in 1979, see 1979 Fla. Laws ch. 79-366 § 2; in 1984, see 1984 Fla. Laws ch. 84-302 § 31; in 1985, see 1985 Fla. Laws ch. 85-226 § 12; in 1995, see 1995 Fla. Laws ch. 95-147 § 553; and in 1999, see 1999 Fla. Laws ch. 99-6 § 8. Under all versions of Section 101.051, assistance was provided to disabled and illiterate voters. Since legislators are sworn to uphold the constitution, see Williams v. Smith, 360 So.2d 417, 421 n. 9 (Fla. 1978), and when possible statutes are to be construed as constitutional,see In re T.W., 551 So.2d 1186, 1201 (Fla. 1989), there is a presumption that, in allowing an earlier version of Section 101.051 to remain in effect when the "direct and secret" language was added to the Constitution and in amending Section 101.051 over the years, the Legislature interpreted the "direct and secret" language as being satisfied by the assistance provided to disabled and illiterate voters.

In light of the different potential interpretations of the "direct and secret" language in Article VI Section 1, the Florida courts' focus on the absence of influence on a person's vote under the right of secrecy, the apparent interpretation of this language by the Legislature, and the presumption in favor of the validity of statutes, this Court holds that the Florida Supreme Court would interpret the "direct and secret" language of the Florida Constitution as being satisfied by the assistance provided in Section 101.051.

Thus, Defendants Smith and Kast and their predecessors did not violate Article VI, Section 1, Florida Constitution by certifying voting equipment that does not allow visually and manually impaired voters to vote without assistance. Similarly, Defendants Stafford and the Council did not violate Article VI, Section 1, Florida Constitution, by purchasing voting equipment that does not permit visually and manually impaired voters to vote without assistance. In addition, Sections 101.5606 and 101.28, Florida Statutes, do not violate "Article VI, Section 1, Florida Constitution. Nothing provided for in these sections contravenes "Article VI, Section 1, Florida Constitution, as interpreted above.

D. ADA (Count One) and Rehabilitation Act (Count Three)

As discussed above in Section C hereof, Article VI, Section 1 of the Florida Constitution provides for a program, activity, or service of direct and secret voting that is properly interpreted to permit the kind of assistance provided in Section 101.051, Florida Statutes. The question still remains, however, whether the program, activity, or service provided violates the ADA or the Rehabilitation Act. 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.

Section 504 of the Rehabilitation Act provides:

No otherwise qualified individual with a disability in the United States, as defined in section 705 (20) of this title, 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.

In view of the basic similarities of the provisions of Title II of the ADA and Section 504 of the Rehabilitation Act the parties have addressed in their briefs Counts One and Three together except, of course, as to the above mentioned additional federal funding requirement of the Rehabilitation Act. The Court will likewise do so.

Defendants do not appear to contend that Plaintiffs have failed to allege that they are or represent qualified individuals with disabilities or that Defendants represent public entities. Instead, Defendants contend that Plaintiffs have failed to allege that they were excluded from participation in or denied the benefits of the services, programs, or activities provided by the Defendants. Defendants argue that since Plaintiffs are able to vote with assistance, they have not been excluded from participating in or denied the benefits of the service, program, or activity.

Section 35.149 of the Code of Federal Regulations provides:

Except as otherwise provided in § 35.150, no qualified individual with a disability shall, because a public entity's facilities are inaccessible to or unusable by individuals with disabilities, 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 public entity.

The regulations distinguish between the accessibility of services, programs, or activities in facilities constructed on or before January 26, 1992, and those in facilities constructed or altered after January 26, 1992. See Ass'n for Disabled Ams. v. City of Orlando, 153 F. Supp.2d 1310, 1317 (M.D. Fla. 2001). For facilities constructed on or before January 26, 1992, a public entity need not necessarily modify each facility so as to make it accessible for disabled individuals, but must operate a service, program, or activity such that it is readily accessible and usable by such individuals when viewed in its entirety. See 28 C.F.R. § 35.150 (a).

For facilities altered or constructed after January 26, 1992, a "heightened standard is applied." Ass'n for Disabled Ams., 153 F. Supp.2d at 1318. With respect to post January 26, 1992, alterations of facilities, the regulations require:

(b) Alteration. Each facility or part of a facility altered by, on behalf of, or for the use of a public entity in a manner that affects or could affect the usability of the facility or part of the facility shall, to the maximum extent feasible, be altered in such manner that the altered portion of the facility is readily accessible to and usable by individuals with disabilities, if the alteration was commenced after January 26, 1992.

In Shotz v. Cates, 256 F.3d 1077, 1079-81 (11th Cir. 2001), the Eleventh Circuit, reviewing a district court's order of dismissal, considered whether facilities were readily accessible to individuals with disabilities. In Shotz, the plaintiffs alleged that the county courthouse was not readily accessible because of architectural barriers such as ramps with excessive slopes and bathroom stalls with insufficient floor space. The court ruled that Title II of the ADA is not restricted to those situations in which "a disabled person is completely prevented from enjoying a service, program, or activity." Id. at 1080 (emphasis added). Rather, the court said that "if the ramps are so steep that they impede a disabled person or if the bathrooms are unfit for the use of a disabled person, then it cannot be said that the trial is `readily accessible,' regardless whether the disabled person manages in some fashion to attend the trial." Id. (quoting 28 C.F.R. § 35.150) (emphasis added).

Similarly, the Rehabilitation Act requires that qualified individuals with a disability be provided meaningful access to programs or activities receiving federal financial assistance. See Alexander v. Choate, 469 U.S. 287, 301 (1985). In Alexander, the State of Tennessee proposed to reduce from twenty to fourteen hospital days for which Tennessee Medicaid would pay. Undisputed statistical evidence indicated that 27.4% of all disabled persons hospitalized required stays in excess of fourteen days while only 7.8% of nondisabled hospital patients required stays in excess of fourteen days. The Court considered whether this change excluded disabled persons from or denied them the benefits of the coverage provided by the Tennessee Medicaid program. See id. at 302. The Court ruled that Section 504 requires that qualified individuals with disabilities be provided meaningful access to the benefits of the program. See id. at 301. The Court held that the plaintiffs were provided meaningful access because there was no evidence that the fourteen-day limitation denied the plaintiffs meaningful coverage under the Tennessee Medicaid program. See id. at 302. The plaintiffs would be entitled to thesame meaningful coverage as nondisabled persons. See id.

In the instant case, Plaintiffs have alleged that voting equipment approved by Defendants Smith's and Kast's predecessors and purchased by Defendants Stafford and the Council is not "readily accessible" to visually and manually impaired voters. In light of the facts alleged in the Complaint, the Court cannot say with certainty that the Plaintiffs would not be entitled to relief under any state of facts which could be proved in support of their claim under the ADA. Cook Nichol, Inc. v. Plimsoll Club, 451 F.2d at 506. Similarly, Plaintiffs have alleged that Defendants have violated the Rehabilitation Act by excluding them from participating in and denying them the benefits of a program or activity. In light of the factual allegations in the complaint, Plaintiffs may be able to prove that visually and manually impaired voters are being denied meaningful access to the service, program, or activity. And so, the Court cannot say with certainty that the Plaintiffs would not be entitled to relief under any state of facts which could be proved in support of their claim under the Rehabilitation Act.

Plaintiffs may also be able to prove facts supporting a claim under the ADA pursuant to 28 C.F.R. § 35.160, of Subpart E ("Communications") of 28 C.F.R. Pt 35. Section 35.160 provides:

(a) A public entity shall take appropriate steps to ensure that communications with applicants, participants, and members of the public with disabilities are as effective as communications with others.

(b)(1) A public entity shall furnish appropriate auxiliary aids and services where necessary to afford an individual with a disability an equal opportunity to participate in, and enjoy the benefits of, a service, program, or activity conducted by a public entity.

(2) In determining what type of auxiliary aid and service is necessary, a public entity shall give primary consideration to the requests of the individual with disabilities.

"The public entity shall honor the [disabled person's] choice unless it can demonstrate that another effective means of communication exists or that use of the means chosen would not be required under § 35.164." 28 C.F.R. Pt. 35 App. A.

In the instant case, Plaintiffs have alleged that Defendants have failed to furnish appropriate auxiliary aids. The Court cannot say that there is no set of facts which, if proved, would support their claim that Defendants violated 28 C.F.R. § 35.160.

On a more general note, Defendants appear to characterize the Plaintiffs' Complaint as purporting to assert their ADA (Count One) and Rehabilitation Act (Count Three) claims on the basis of their exclusion from participation in or denial of the benefits of the services, program, or activities provided by the Defendants. That does, indeed, seem to be the emphasis of Plaintiffs' claims under the ADA and the Rehabilitation Act. However, as previously noted above, Title II of the ADA and Section 504 of the Rehabilitation Act proscribe more than such "exclusion" and "denial." They both, in addition, more generically proscribe disability "discrimination" by the pertinent public entities. Without further parsing the allegations of Counts One and Three, suffice it to say that such counts appear to include allegations under the more generic proscription of the above statutes. Although this point has received very little treatment in the parties' submissions, the Court is of the view that such allegations may be significant. However, Counts One and Three, in their present form, are unclear insofar as Plaintiffs may seek to rely upon the more generic proscription of the above acts. Accordingly, since Plaintiffs will be afforded the opportunity of filing an amended complaint, as hereinafter provided, such amended complaint should allege more clearly in Counts One and Three the bases, if any, for their reliance upon the more generic proscription of the above acts (see footnote 20) in contradistinction to the acts' more specific proscriptions ("exclusion"/denial").

Defendants also assert that Plaintiffs have failed to adequately plead that Defendants received federal financial assistance as required by Section 504 of the Rehabilitation Act. Section 504(a), quoted previously herein, applies to, inter alia, programs or activities receiving federal financial assistance. See 29 U.S.C. § 794 (a). Section 504(b) provides:

"For the purposes of [Section 504 of the Rehabilitation Act], the term `program or activity' means all of the operations of —

(1)(A) a department, agency, special purpose district, or other instrumentality of a State or of a local government.

Plaintiffs allege that "Defendants are an instrumentality of a local government that is a recipient of federal financial assistance." Since a program or activity includes all of the operations of an instrumentality of local government, the Rehabilitation Act is applicable if an instrumentality of local government receives federal financial assistance. Consequently, Plaintiff has adequately alleged that the "program or activity" at issue received federal financial assistance as to Defendants Stafford and the Council.

Plaintiffs have not, however, alleged that Defendants Smith and Kast or their predecessors received federal financial assistance. Plaintiffs allege that Defendant Smith is the Florida Secretary of State and Defendant Kast is the Director for the Division of Elections within the Florida Department of State. Thus, Defendants Smith and Kast are not instrumentalities of local government. Since Plaintiffs made no other allegations regarding the receipt of federal financial assistance, Count Three is due to be dismissed with leave to amend as to Defendants Smith and Kast.

1. Recent Amendment of Florida Election Code, Creating Section 101.56062

Notwithstanding the above discussion, the Court notes that, although not brought to the Court's attention by the parties, the 2002 Florida Legislature has recently enacted new legislation concerning voting and voting systems. See 2002 Fla. Sess. Laws Serv. ch. 2002-281 (West). It is not clear whether this new legislation, Florida Laws 2002-281, which, inter alia, created Section 101.56062, would satisfy or ameliorate the Plaintiffs' concerns which prompted the assertion of their ADA and Rehabilitation Act claims. Assuming that Plaintiffs have the right and desire to continue this litigation, it would seem that, particularly given the injunctive underpinnings of Plaintiffs' claims (essentially seeking affirmative mandatory relief as contrasted with a damages suit based on past acts), a substantial repleader or amended complaint, which would take into account the status of the Florida Election Code, post 2002 legislative session, would be in order.

E. Legislative Immunity

Defendant Council members assert that they are entitled to absolute legislative immunity. The Council cites to Woods v. Gamel, 132 F.3d 1417, 1419 (11th Cir. 1998), and Ellis v. Coffee County Bd. of Registrars, 981 F.2d 1185, 1190 (11th Cir. 1993), for the proposition that local legislators are entitled to absolute legislative immunity for legislative acts. Defendant Council members argue that their vote to approve state funds for the purchase of the optical scan voting system was a legislative act entitling them to absolute immunity and requiring the action to be dismissed as to them.

The Speech or Debate Clause, Article I, Section 6, United States Constitution, immunizes members of Congress from suits for damages or prospective relief when acting within the sphere of legitimate legislative activity. See Supreme Court of Va. v. Consumers Union of the U.S., Inc., 446 U.S. 719, 731 (1980); Eastland v. U.S. Servicemen's Fund, U.S. 491, 502-03 (1975). The clause has been read broadly to ensure the independence of members of Congress, to reinforce the separation of powers, and to prevent suits from distracting or diverting "time, energy, and attention from legislative tasks." Eastland, 421 U.S. at 503.

Similarly, "state legislators enjoy common-law immunity from liability for their legislative acts, an immunity that is similar in origin and rationale to that accorded Congressmen under the Speech or Debate Clause." Supreme Court of Va., 446 U.S. at 732. Such common-law immunity has also been extended to local legislators. See Woods, 132 F.3d at 1419. While the common-law legislative immunity available to state and local legislators is not always as broad as the immunity provided to members of Congress under the Speech or Debate Clause, in civil cases, the immunities appear to be of similar breadth. See U.S. v. Gillock, 445 U.S. 360, 372-73 (1980) (holding that legislative privilege under the Speech or Debate Clause is broader in criminal actions than the common-law legislative privilege available to state and local legislators).

In the instant case, Plaintiffs' claims against Defendant Council members are premised on the Council members' voting to approve an ordinance appropriating funds for the purchase of voting equipment. Voting by such officials is manifestly a legislative act. See Woods, 132 F.3d at 1420. Consequently, the Defendant Council members are entitled to absolute legislative immunity.

Upon consideration thereof, it is hereby ORDERED:

1. With respect to the Motion to Dismiss (Dkt. 5) filed by Defendants Smith and Kast, said Motion is GRANTED in part such that:

a. Count One and Count Three are DISMISSED with prejudice to the extent Plaintiffs assert that they have been excluded from or denied the benefits of a program of direct and secret voting that does not permit the type of assistance provided for in Section 101.051.

b. Count Two is DISMISSED with prejudice.

c. Count Three is DISMISSED with leave to amend. Plaintiffs may file an amended complaint as set forth in paragraph 3. below.

2. With respect to the Motion to Dismiss (Dkt. 6) filed by Defendants Stafford, Alvarez, Brown, Carlucci, Carter, Chandler-Thompson, Daniels, Fullwood, Hipps, Holland, Holzendorf, Jenkins, Lockett-Felder, Overton, Ray, Rustin, Self, Soud, Southwell, and Yates, said Motion is GRANTED in part such that:

a. All Counts are DISMISSED with prejudice as to Defendants Alvarez, Brown, Carlucci, Carter, Chandler-Thompson, Daniels, Fullwood, Hipps, Holland, Holzendorf, Jenkins, Lockett-Felder, Overton, Ray, Rustin, Self, Soud, Southwell, and Yates.

b. Count One and Count Three are DISMISSED with prejudice as to Defendant Stafford to the extent Plaintiffs assert that they have been excluded from or denied the benefits of a program of direct and secret voting that does not permit the type of assistance provided for in Section 101.051.

c. Count Two is DISMISSED with prejudice.

3. Plaintiffs may file an amended complaint on or before November 5, 2002, that includes allegations supporting the Rehabilitation Act claim of Count Three as to Defendants Smith and Kast. In addition, such amended complaint should take into consideration current Florida law, as amended by the 2002 Florida Legislature. (See text of this Order accompanying footnote 23). Such amended complaint should also include appropriate clarifying allegations as stated in the paragraph immediately following footnote 19 of this

DECLARATION TO SECURE ASSISTANCE

County of __________ Date _______________ Precinct ___________

I, __________ (Print name)____________, swear or affirm that I am a registered elector and request assistance from _______ (Print names)_____________ in voting at the ________(name of election)_______ held on_______ (date of election)_______ for the following reason________________________________________________________________ ______________________________________________________________________

_________________________________________ (Signature of Official Administering Oath)

(5) The supervisor of elections shall deliver a sufficient number of these forms to each precinct, along with other election paraphernalia.