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Election Law @ Moritz

Election Law @ Moritz


Commentary

The Machinery of Democratic Accessibility

The Brennan Center for Justice recently published a comprehensive report entitled "The Machinery of Democracy: Voting System Security, Accessibility, Disability, and Cost" which should be required reading for all election officials. It can help them comply with the requirements of the Help America Vote Act of 2002, 42 U.S.C. 154981(a)(3)(A), that new voting systems, purchased with federal funds by January 2007, should allow voters with disabilities to complete and cast their ballots "in a manner that provides the same opportunity for access and participation (including privacy and independence) as for other voters." The Brennan Center Report reminds us that each polling place must have "at least one direct recording electronic voting system or other voting system equipped for individuals with disabilities," id. 15481(a)(3)(B). Further, the Federal Elections Commission (FEC) set forth a list of technical standards and recommendations in 2002 called the "Voluntary Systems Standards" which specified what is meant by "accessible voting systems" for direct recording electronic ("DRE") voting systems. Finally, the Election Assistance Commission (EAC) published further guidelines in 2005 for all voting systems, not simply DRE's. The Brennan Center Report goes much further in considering what kinds of voting systems are likely to provide genuine accessibility to a range of individuals with disabilities. In theory, many of the new voting systems that will be in place by January 2007 do create the possibility of much more accessible voting than we have ever seen before. In practice, it is not clear whether voting boards will fully take advantage of these opportunities as they procure new technology. I will focus on two challenges posed by the Brennan Report which have not been highlighted in previous discussions of voters with disabilities. First, we often tend to think of individuals with disabilities as a discrete group of people who readily self-identify as such. Yet an individual who has trouble reading small print or lacks manual dexterity or has hands that shake when she tries to touch objects may not think of herself as "disabled." She would not necessarily enter the polling place expecting to need to use anything other than the regular voting equipment. The Brennan Report recognized this problem and inquired whether a particular voting technology allows a voter to "choose and change accessibility and language options without the assistance of a poll worker." Computer-based systems fared best on this measure. Some of these systems allow voters to change visual and audio settings while they are casting their ballots. Others require poll workers to change the settings if the voter wants to make a change during the voting process but, in theory, allow a change to be made. Yet other systems allow the visual features to be changed during the voting process but do not allow the audio settings to be changed. The key advantage to many of these computer-based systems is that the voter doesn't necessarily have to self-identify to obtain an accessible machine. All the machines can be set to have flexible settings which will serve most individuals with disabilities. Nonetheless, computer-based systems are far from perfect for many individuals with disabilities. They often require significant fine motor skills. Although they can be equipped with devices that allow voters to use alternative methods of recording their votes, these methods are not usually available universally. A voter would have to request these devices, and they may not be available at a particular polling station. In some cases, voters would have to bring their own equipment to supplement the equipment made available at the polling places. Those kinds of problems impede voting accessibility. Although computer-based systems are not perfect, they do offer significant flexibility for accessibility. Paper-based systems offer much less flexibility. They also present significant privacy problems. Voters can typically request ballots with large type face but, if few voters make that request, then the privacy of the ballot is lessened. Voters who begin to vote, thinking their eyesight is adequate, also have significant problems with paper ballots if they start having visual problems while voting. It is usually difficult to seek to void a ballot and begin anew with a larger typeface. Paper ballots also present other problems. Audio versions of paper ballots can be made available but those present their own set of difficulties and the voter still has to find a way to record her preference confidentially. Finally, paper ballots present hurdles for those who cannot record their vote manually. Again, any solutions tend to compromise confidentiality. Second, the Brennan Report reminds us that we need to consider the needs of voters with multiple disabilities. Some voters need both audio and visual accessibility, and have limited fine motor skills. They may also need portable voting machines that can be brought to the street curb for voting from a car. Hence, paper-based systems that offer audio recordings may still not serve the population that additionally has fine motor impairments. The audio recording devices often require significant fine motor skills. Again, computer-based systems can offer more flexibility if they allow the voter to access several of its accessible features. These two insights may seem minor but neither can be found in the recommendations offered by the FEC in 2002 or the EAC in 2005. If our goal is to expand voting participation by individuals with disabilities, we need to be mindful of those who may not self-identify as disabled as well as those with multiple disabilities. Prior recommendations have thought of voters as self-identifying as either blind or deaf or manually impaired. The Brennan Report can help us reach voters more broadly by better understanding the range of challenges they may pose for election officials.

Commentary

Edward B. Foley

Of Bouncing Balls and a Big Blue Shift

Edward B. Foley

It is a fortuitous coincidence that the University of Virginia’s Journal of Law & Politics has just published a piece of mine that shows the relevance of the current vote-counting process in Virginia’s Attorney General election to what might happen if the 2016 presidential election turns on a similar vote-counting process in Virginia. 

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In the News

Daniel P. Tokaji

Ohio treasurer receives OK to host town halls

Professor Daniel Tokaji was quoted in an article from the Associated Press about an attorney general opinion that allows the Ohio treasurer to conduct telephone town halls using public money. The opinion will likely have broad ramifications for the upcoming elections, Tokaji said.

“As a practical matter, while that legal advice is certainly right, very serious concerns can arise about whether these are really intended to inform Ohio constituents about the operations of his office or if they’re campaign events,” he said.

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Info & Analysis

Wisconsin Supreme Court Upholds Voter ID Law

In two opinions issued today, the Wisconsin Supreme Court upheld the state's voter ID law against challenges that the law violated the Wisconsin Constitution. The court issued an opinion in League of Women Voters of Wisconsin v. Walker and also an opinion in Milwaukee Branch of the NAACP v. Walker.

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