Election Law @ Moritz


Recent Opinion Articles

Edward B. Foley
Free & Fair is a collection of writings by Edward B. Foley, one of the nation's preeminent experts on election law.

Weekly Comment

Voters with Disabilities: The Potential Swing Vote in the Presidential Election

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November 23, 2004

Two untold but related stories from this year's presidential election include: (1) the disenfranchisement of disabled voters due to the long lines and other accessibility problems at polling places, and (2) an historic shift in voting preferences from Democratic to Republican among disabled voters.

Although the United States Department of Justice has issued guidelines for accessible polling places, those guidelines do not speak to how elections are conducted. Accessibility complaints from this year's election are numerous. Some individuals complained that they could not physically stand for the several hours necessary to wait to vote. No folding chairs were available for people to rest. Further, there was no signage indicating that people with disabilities could request accommodations from the long lines.

At some polling places, accommodations were being made for individuals with disabilities, but there was no uniform procedure for insuring that accommodations were offered. Individuals with hidden disabilities were sometimes challenged for documentation to prove their disability status. Even individuals with obvious disabilities were sometimes harassed when they sought accommodations. When a disabled voter carrying oxygen sought to vote in Broward County with assistance, he was required to present proof of disability. In Delaware County, Pennsylvania, a voter who used a wheelchair was reportedly told that she had to get out of the wheelchair in the booth if she wanted to vote.

Due to the length of the lines, some polling places enforced time limits for voting. After waiting for several hours, some individuals with disabilities found themselves unable to vote in the five or fewer minutes that they were allocated to vote. In Kentucky, voters were reportedly limited to two minutes to cast their votes.

Some individuals with disabilities need assistance when voting, and polling places were inconsistent in how they allowed individuals to access assistance. Some polling places insisted that only a family member or legal guardian could assist the individual with disability, yet the individual had no family members living in the state who could offer such assistance. One voter in Cleveland reported that poll workers called the police when she sought to assist her sight-impaired neighbor.

Although HAVA requires that curbside voting be made available to voters who cannot get to their polling sites due to accessibility problems, that requirement is frequently not followed. A poll worker in Hillsborough, Florida, complained that curbside voting was not being made available. A voter in Cuyahoga County, Ohio, voiced a similar complaint.

Solving many of these kinds of problems is relatively simple and inexpensive. Clear signage indicating how people can request assistance or accommodations would streamline the process. Consistent rules across polling places would insure that all voters with disabilities are given an equal chance to vote, irrespective of their polling place locations. States can liberalize their rules about voting assistance so that voters with disabilities can choose who they trust to assist them with voting. Early voting can be made easier for all voters, including voters with disabilities.

Voters with disabilities may have been the decisive factor in Bush's popular vote plurality over Kerry, as contrasted with the 2000 election. In 2000, Al Gore reportedly carried the disability vote 56 to 38 percent; whereas in 2004, Bush reportedly carried the disability vote 52.5 percent to 46 percent. The volatile nature of the disability vote should cause both parties to be vying for that vote in the next presidential election. Bipartisan efforts to make voting more accessible for this key constituency could have a big impact on the next election.