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Professor Dan Tokaji
Election reform, the Voting Rights Act, the Help America Vote Act, and related topics -- with special attention to the voting rights of people of color, non-English proficient citizens, and people with disabilities

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Equal Vote
Wednesday, August 2
Disability Rights Suit Over California Voting Equipment
In a suit with nationwide implications, the Paralyzed Veterans of America filed suit yesterday against California election officials, challenging the accessibility of voting systems used by five counties in that state. The complaint, which may be found here asserts violations of the Fourteenth Amendment to the U.S. Constitution and the Help America Vote Act of 2002 ("HAVA"). Other plaintiffs include the American Association of People with Disabilities, the California Council on the Blind, and individual voters with disabilities.

In brief, the plaintiffs allege that none of the systems certified in California provide adequate access for people with disabilities. There are three types of equipment alleged to be inadequately accessible. First, the suit claims that the ES&S AutoMARK system used in San Francisco, Marin, and Sonoma County's doesn't provide for private and independent voting for people with manual dexterity limitations. Second, the suit claims that the direct record electronic ("DRE") system used to accommodate people with disabilities in Alameda County isn't fully accessible to people with visual disabilities, who can't read the contemporaraneous paper record (or "VVPAT") that this system generates. Finally, they allege that Yolo County only has an optical-scan system, which doesn't accommodate people with visual or manual impairments.

Assuming the facts alleged to be true, the strongest claim appears to lie against Yolo County. If Yolo is exclusively using optical-scan systems, as alleged, it's pretty clear that it's not complying with HAVA's mandate of providing at least one accessible unit per polling place. Assuming that the facts are true, and that the court concludes that HAVA is privately enforceable through section 1983 (as the Sixth Circuit previously concluded in Sandusky County Democratic Party v. Blackwell), plaintiffs should prevail on this claim.

A bit harder is the question whether the AutoMARK system complies with the disability access requirements of federal law. I've previously discussed this issue here and ES&S's website describes its system here. Briefly, the AutoMARK system has a DRE-like interface, but doesn't actually record the vote; instead, it prints the voter's choices on a paper ballot that the voter may then insert in an optical-scan reader. My impression is that this hinges on a factual question. Specifically, it turns on whether manually impaired voters can use this system without assistance, and thus whether it provides them the "same opportunity for access and participation" that able-bodied voters enjoy, as HAVA requires. This has far-reaching implications, since the AutoMARK is being used in a number of other states.

The issue that may prove most difficult has to do with the DRE systems that generate a contemporaneous paper record, or VVPAT. It's certainly true, as plaintiffs allege, that the VVPAT isn't accessible to people with visual disabilities, who obviously can't read it. Plaintiffs' argument, if I understand it, is that it's a problem to use the VVPAT as the official ballot of record for purposes of recounts when it can't be verified by some disabled voters. This argument has some force. The problem is that, as far as I'm aware, there's no system available that can "read back" the paper ballot for visually impaired voters, thereby allowing them to verify that the choices recorded on paper are accurate. To accept plaintiffs' argument would thus, it seems to me, have the effect of invalidating any state law requiring that the VVPAT be used as the official ballot for purposes of recounts. Were the court to agree, this would be a rather earth-shaking holding, given that a number of states have adopted such a requirement.

This is the first case of its kind and definitely one to watch.

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Moritz College of Law The Ohio State University