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

The Future of Accessible Voting: A Crossroad?

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April 18, 2006

The disability rights community and the voting rights community have been moving in somewhat different directions with respect to suggesting that voting practices be modified. The disability rights community has lobbied Congress to improve the ability of voters to vote independently and privately at regular polling stations while some members of the voting rights community have lobbied state legislatures to make it easier to vote by not going to the polls.

Both communities (and these communities obviously overlap) value high voter participation. But the disability rights community also values something that others take for granted - the ability to vote privately and independently at polling places. This second value has two subcomponents which are commonly linked in discussions of voting for individuals with disabilities: the ability to vote privately and the ability to participate in the community of voters at polling places. But these two subcomponents need not be linked. As voting continues to migrate away from polling places, it may better enhance voter participation not to assume that private and independent voting takes place at traditional, community-based polling places.

Over the last twenty years, the disability rights community has been active in improving accessibility to voting. In 1984, Congress enacted the Voting Accessibility for the Elderly and Handicapped Act. This statute requires that "each political subdivision responsible for conducting elections shall assure that all polling places for Federal elections are accessible to handicapped and elderly voters." If individuals with disabilities are assigned to an inaccessible voting place, they can be assigned to a different polling place that is accessible or be provided with an alternative means for casting a ballot on the day of the election. "Curb site" voting where voting equipment is brought to the person's automobile is one means of meeting that requirement. Curb site voting was considered superior to absentee voting because it allowed voters with disabilities to enjoy some of the community aspects of voting and make their final decision on Election Day.

The Help America Vote Act strengthened these requirements by requiring that states have at least one accessible machine in each polling place by 2006. It also allocated $100 million for making polling places more accessible. Finally, Congress conditioned the acceptance of federal funds on states adopting federal accessibility standards for polling places. The purpose behind the emphasis on accessible voting machines was to assist visually impaired voters who previously could not vote independently and privately, as well as voters with various manual impairments that could not use traditional voting equipment.

The combination of the 1984 Voting Act and HAVA should greatly increase the likelihood that a voter can enter a polling place and vote with an accessible piece of equipment, and vote both privately and independently. Visually impaired voters can use an electronic voting machine with audio output. There are also electronic voting machines that allow voters with manual dexterity impairments to blow on a tube to record their votes without assistance, although it is unclear how many places are actually purchasing that equipment.

Meanwhile, states have been moving towards less reliance on polling places for voting. As reported by Electionline.org, fifteen states (including Ohio) allow no-excuse early voting and 16 states allow no-excuse in-person absentee voting. Oregon has been the leader in this movement by having all voters vote by mail but early voting was popular in Florida's last presidential election with approximately 25% of its voters voting in advance of the Presidential election. The movement towards early voting from home or at centralized polling places is beginning to change the community character of voting although some people have noted the security concerns associated with absentee voting.

HAVA tries to protect the right of individuals with disabilities to experience the community aspect of voting, as well as to remove some of the procedural and physical barriers to voting. Before the adoption of HAVA, states often encouraged voters with disabilities to vote by absentee ballot which deprived them of many of the community aspects of voting and dampened participation rates by requiring voters with disabilities to undergo an extra step in order to vote.

Today, states are required by HAVA to obtain at least one accessible machine per polling place. Some states are complaining that this machine may be quite expensive, especially in states with paper trail requirements. They are looking for ways to meet their HAVA requirements without purchasing machines that might not be used by anyone at small polling places. Vermont is currently facing that dilemma. Vermont continues to rely primarily on hand-counted ballots with only nine localities moving towards optical scan machines. Vermont does not use any electronic voting which makes it difficult for the state to comply with HAVA's accessibility requirements. The state has proposed a unique vote-by-phone system that election officials assert will meet the needs of voters with disabilities at low cost. The system allows voters to cast votes on designated telephones at polling stations; it produces a paper ballot from every vote cast and can be monitored.

Vermont is planning to place these phones in polling places to comply with HAVA's polling place accessibility rules. But what if a state made that technology available from home on Election Day? Voting from home on Election Day might appeal to many voters with disabilities but it would deprive them of the community aspect of voting. But is it problematic for voters with disabilities to be encouraged to use that kind of technology from home on Election Day if most voters begin to vote from home on Election Day? Unlike the old days of encouraging only voters with disabilities to follow cumbersome rules for absentee voting, voting from home may soon become the preferred method of voting for all voters, depending on the outcome of the debate about security concerns.

At present, most of us still go to the polls to vote on Election Day. And voters with disabilities should be equally able to suffer the inconvenience of voting on Election Day as well as the exhilaration of watching our democracy work. But as states increasingly move towards encouraging some form of voting away from polling places, we might want to re-write HAVA's requirement of one accessible voting machine per polling place to entail more flexibility.

Ironically, we might get to the point where it is primarily voters with disabilities who go to polling places to vote on Election Day because the other mechanisms that states provide for voting are not sufficiently accessible to individuals with disabilities. Would a vote by phone system be accessible to individuals with hearing impairments? Would an online system of voting be accessible to voters with visual impairments, manual impairments, or various learning disabilities? Is a mail-in system sufficiently accessible to individuals with various kinds of visual and manual impairments? As these alternatives become more popular, we should make sure that they offer accessibility to individuals with disabilities because those alternative forms may soon become the regular method of voting. The Americans with Disabilities Act arguably requires states to make each of those alternatives accessible to individuals with disabilities but HAVA only emphasizes the accessibility of polling places. We wouldn't want voters with disabilities to have to endure the inconveniences of Election Day voting if that method becomes unpopular for most voters. Hence, I suggest that the disability rights community be sure to "keep up" with what it means to enjoy the right to vote in our society. We should not necessarily assume that will mean visiting polling places on Election Day for the next generation.