Dan Tokaji's Blog
Professor Dan Tokaji
Election reform, the Voting Rights Act, the Help America Vote Act, and related topics -- with special attention to the voting rights of people of color, non-English proficient citizens, and people with disabilities

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Equal Vote
Thursday, April 20
Making Voting Accessible for All
One of the most important requirements of the Help America Vote Act ("HAVA") is that every polling place have at least one unit that's accessible to people with disabilities. Meeting this requirement, which takes effect this year, is turning out to be quite a challenge in some states.

More specifically, Section 301 of HAVA requires that voting systems:
be accessible for individuals with disabilities, including 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....
This section goes on to say that the requirement may be met by having "at least one direct recording electronic voting system or other voting system equipped for individuals with disabilities at each polling place."

Now, People for the American Way has filed a lawsuit alleging among other things that the machines to be used in Allegheny County, Pennsylvania don't comply with HAVA. The complaint may be found here. Allegheny County is planning to use the ES&S iVotronic system, which the complaint alleges to have been chosen after plans to obtain machines made by the two other big voting machine vendors (Diebold and Sequoia) were scrapped. One of the allegations in the complaint is that the ES&S system isn't accessible to all disabled voters, and thus doesn't comply with HAVA. Although the system accommodates people with visual impairments, plaintiffs allege that it doesn't accommodate people with manual dexterity impairments.

My initial take is that it's unlikely that the plaintiffs in this lawsuit will get the injunctive relief they're seeking -- namely, stopping the use of ES&S's iVotronic machine and allowing Allegheny to continue using its lever voting machines. That's mainly because Pennsylvania was among the states that accepted HAVA funds on condition that it get rid of lever machines by 2006 and because those lever machines don't meet HAVA's requirement that voting systems generate a paper audit trail that can be used for manual audits. Lever machines aren't accessible to people with disabilities either. Moreover, as this story in the Pittsburgh Tribune-Review points out, Allegheny is just one of several counties that's struggling to meet HAVA's requirements, and may not be in any worse shape than other counties in the state.

The case is nevertheless significant, in that it raises the issue of whether an electronic voting machine is accessible, if it doesn't allow private and independent voting by people with manual dexterity impairments. It also raises the factual issue of how well the electronic voting machines being used really do accommodate people with non-visual disabilities. State and local election offcials throughout the country are thus likely to be eyeing this litigation nervously in weeks and months to come. Could it be that there's no system out there that fully accommodates people with disabilities, in the manner that HAVA requires? If that's the case, then what are counties supposed to do? And what are courts supposed to do?

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Moritz College of Law The Ohio State University