This topic is monitored by Moritz Law Professor Terri L. Enns
Opinion & Analysis: Voting and Disability
In Tennessee v. Lane, 1 the Supreme Court implied that access to voting booths is a fundamental right under the United States Constitution which Congress may protect through its Section Five powers to enforce the Fourteenth Amendment. Congress has repeatedly sought to protect the rights of individuals with disabilities to vote yet little real progress has occurred. Individuals with disabilities are about 15 percent less likely to vote than those without disabilities, after controlling for demographic and other factors related to voting. 2 One factor causing this low turnout is the problem of inaccessibility of polling places.
Congress has been attempting to deal with the problem of inaccessible polling places since at least 1984 when it enacted the Voting Accessibility for the Elderly and Handicapped Act. 3 That statute required each political subdivision to assure that all polling places for Federal elections be accessible to handicapped and elderly voters. Nonetheless, if individuals with disabilities are assigned to an inaccessible voting place, the statute also requires that they be assigned to an accessible polling place or be provided with an alternative means for casting a ballot on the day of the election. Aggrieved parties can sue for injunctive or declaratory relief; no compensatory damages are available under this statute.
The Help America Vote Act (HAVA) 4 reinforces those existing requirements by giving states financial incentives to implement accessibility, but it creates no new enforcement mechanism to require the states to improve accessibility. HAVA requires accessible machines in each precinct by 2006 and allocates $100 million for making polling places more accessible. Moreover, Congress conditioned the acceptance of federal funds on states adopting federal accessibility standards for polling places. 5 By setting an implementation date of 2006, however, Congress essentially realized that there was little chance that polling places would be accessible by the 2004 election.
Despite the existence of the 1984 Act, the Government Accounting Office found that most polling places were inaccessible during the 2000 Presidential Election. 6 In considering accessibility, path of travel is usually considered to be fundamental. In other words, if one cannot get from the parking lot to the facility, then it is inaccessible. The GAO found that 56 percent of polling places have one or more potential impediment but offer curbside voting, and that 28 percent have one or more potential impediment and do not offer curbside voting. Inside the voting room, they observed that none of the polling places that they surveyed had special ballots or voting equipment adapted for blind voters.
One problem with creating accessible polling places is that private schools and churches are often used for polling places. These entities are not controlled by the public so it is very difficult to ensure their accessibility. Places of worship were exempted from the Americans with Disabilities Act so it is particularly difficult to insist that they be accessible. Not surprisingly, the GAO found that 18% of all polling places are houses of worship and that 82% of these entities have at least one potential impediment to accessibility. 7
State law supplements federal law with respect to voting accessibility but it rarely provides meaningful protection, especially for visually impaired voters. Only a few states require the provision of braille or large type ballots, and most states do not even require the provision of magnifying instruments. 8 As a practical matter, therefore, visually impaired voters cannot vote independently if audio-visual accommodations are not provided.
Many states try to deal with accessibility problems for individuals with disabilities by encouraging them to use absentee ballots. Absentee ballots, however, are not a good solution. They typically require individuals to take pro-active steps in advance of an election, and require voting decisions to be made in advance of the election. Individuals with disabilities, like everyone else, deserve to be able to make up their minds at the last minute. Moreover, absentee ballots do not help the blind who often cannot vote independently with absentee ballots.
Blind voters are trying to get states to adopt easy-to-use audio voting systems but few states have such technology. Under state law, blind voters typically have two options at the polls: bring in a friend to help them or rely on poll workers to assist them, purportedly without suggestion or interference. But poll workers frequently make suggestions as visually impaired voters try to vote, making the voter lose confidence in whether her actual vote is being recorded. Blind voters typically describe voting as demoralizing, embarrassing, or simply an invasion of their privacy. But they do not have the political clout, ironically enough, to get states to spend the money needed to create accessible and confidential balloting for them. After all, elected officials need not worry about being voted out of office for not listening to their concerns.
Congress has sent millions of dollars to the states to improve accessibility for individuals with disabilities. Many states have now completed expensive surveys, documenting the broad scope of accessibility problems in their states. But little meaningful change has occurred. We can continue to expect the disenfranchisement of a significant portion of the disabled population with little chance that existing federal law will spur much change. Tennessee v. Lane opened the door to the potential for fundamental rights litigation. Litigation, rather than statutory reform, may be the only way to effect significant change in this area.
[Posted August 30, 2004]
1. 124 S. Ct. 1978, 1993 (2004).
2. United States, General Accounting Office, Voters with Disabilities: Access to Polling Places and Alternative Voting Methods 14 (October 2001) (available from http://www.gao.gov/new.items/d02107.pdf) ["GAO Study"]
3. 42 U.S.C. § 1973ee (1994).
4. Help America Vote Act of 2002, 42 U.S.C. § 15301 et seq. (2002).
5. Id. at 15421(b)(1) (requiring states to make "polling places, including the path of travel, entrances, exits, and voting areas of each polling facility, accessible to individuals with disabilities, including 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").
6. GAO Study, supra note 2.
7. Id. at 29.
8. Id. at 17.