Election Law @ Moritz


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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

Ohio's Disabled Voters: Ignored Again

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January 18, 2005

On January 12, 2005, Ohio Secretary of State J. Kenneth Blackwell issued his revised state plan to implement the Help America Vote Act of 2002 (HAVA) and announced that paper-based precinct count optical scan voting devices would be offered to county board of elections as the state's primary voting system. Unfortunately, both of these state actions did nothing to promote the enfranchisement of voters with disabilities despite a recognition by Blackwell in his report that the state has broad legal obligations to voters with disabilities.

Voters with disabilities face many potential obstacles to voting. As recognized by HAVA, many voters with visual impairments are not able to vote independently and confidentially under existing voting technology. Some form of audio enhancement is necessary for them to vote independently and confidentially. The state's report, in fact, stated that: "At least one voting device must be available at each polling location that includes, at minimum, audio features." Paper-based optical scan equipment does not readily work in conjunction with audio enhancement, because it is unrealistic to expect a visually impaired voter to use a paper and pencil to record a vote even if the ballot is made available with audio enhancement. Blackwell's announcement that the state is moving towards optical scan voting made no mention of how such a system could reflect the needs of visually impaired voters.

Another obstacle to voting for some voters with disabilities is a physical barrier. They may not have the manual dexterity to use a paper and pencil. Touch screens on computer-based voting equipment can help solve these accessibility problems. But, again, Blackwell's announcement said nothing about how this group of voters would be able to vote on Election Day although the report had obliquely referred to these voters when it noted the need for "keypad functions." The report seems to have presumed the existence of computer-based voting technology although Blackwell's announcement only contemplated optical scan voting through paper and pencil.

Other obstacles to voting for individuals with disabilities have been ignored by both Blackwell's report and announcement. For example, many voters with disabilities found themselves unable to stand in line for lengthy periods of time on Election Day. Polling places had no signage explaining to voters with disabilities how they might seek accommodations to avoid the long lines. And, although HAVA required that curbside voting be available for voters with disabilities, poll workers were given no systematic training in how to implement this requirement. The only discussion of physical barriers to voting in the state's report is a two-sentence reference to Ohio's antiquated law on disability access for voting which merely requires a level entrance and a door of a minimum of 32 inches. Compliance with those minimal requirements would do little to enfranchise the half million or so voters in Ohio who might be classified as disabled. Merely being able to enter the building is only the first step among many necessary to create an accessible polling station.

Although it is tempting to lay all the blame on Secretary Blackwell for ignoring the needs of disabled voters, some of the blame must be laid on the feet of the Governor and state legislature. On May 7, 2004, Governor Taft signed into law Substitute House Bill 262 which required all direct recording electronic voting machines used in Ohio to include a voter verified paper audit trail. That decision caused the price of electronic voting equipment to be nearly twice the price of optical scan equipment, thereby causing the Secretary of State to choose optical scan equipment over electronic voting. Although one cannot fault Secretary Blackwell for choosing a cost-effective option, he has understated the price of optical scan equipment by not adding the cost of disability access for voters with visual or manual impairments to his projected state costs, because they will not be to vote anonymously and confidentially, as required by HAVA, by using the optical scan equipment.

At the end of the day, money rather than accessibility seems to be guiding Ohio's choices on Election Day. So far, Ohio appears to have allocated virtually no money to make voting accessible to individuals with disabilities. The report notes that: "The Secretary of State believes Ohio should be particularly aggressive in seeking available federal funds under Title II for access grants to make Ohio's polling places more accessible." In light of Ohio's decision to invest in inaccessible voting equipment, those funds are particularly necessary. The question for the future is whether the federal government will bail out Ohio by making available money to supplement its optical scanning equipment with computer-based, accessible equipment that can leave a paper trail. It is a shame that Ohio will need a bail-out from the federal government because it did not make a responsible decision on voting technology. Or worse, it will be a shame if Ohio is forced to make a more responsible decision through costly litigation, because it has refused to put the needs of disabled voters into its state budget. If Secretary Blackwell had listened to his report's own platitudes on the need to improve accessibility for voters with disabilities, he would have made a decision about voting technology in Ohio that took into account the needs of voters with disabilities.