Accessing the Vote:

Protecting the Most Basic American Right

The recent presidential election reminded us yet again that "every vote counts." All too often, however, people with disabilities have been unable to cast their ballots - either because of inaccessible voting places or discriminatory voting policies.

In an effort to remedy these problems, NAPAS and individual protection and advocacy agencies have set out to educate, advocate, and when necessary--take legal action to ensure that people with disabilities share one of the most fundamental rights of our democracy: the right to vote.

People with disabilities continue to be faced with these realities at polling places:

• 40% of polling places are inaccessible for people with disabilities and do not allow many to cast a secret ballot.


• 34% of the voting systems in America are punch card systems, 18.6% are lever systems, 27.3 use optical scan, 9.1% use DRE (computer) systems, 1.6% use a paper ballot, and 9.1% are a mixture of the preceding systems.

• Punch card ballots are particularly difficult for people who have vision impairments, arm or hand mobility impairments.

• According to the Federal Election Commission, there are at least 20,000 polling places across the country that are physically inaccessible.



• Vague or overly broad competency standards often are used to exclude people with mental disabilities



• In most elections approximately 2% of all ballots are discarded due to voter error and in the last presidential election an even greater number were thrown out.

Recognition of these problems is not new. In 1984, the Congress passed the Voter Accessibility for the Elderly and Handicapped Act (VAEHA). The VAEHA requires that all polling places be physically accessible to voters with disabilities.

Despite the enactment of this law, people with disabilities continue to have difficulties accessing the vote.

The following examples from the recent report on the 2000 Florida presidential vote by the U.S. Com-mission on Civil Rights, present vivid illustrations of the barriers individuals with disabilities encountered when attempting to vote.

Joy Cohen, an elderly woman from Broward County, who relies on her wheelchair stated that her polling place did not have wheelchair-accessible ramps and did not provide curbside voting. As a result, she had to be lifted into her polling place. She testified how disappointing it was for her that she had spent her life advocating for legislation that would provide proper assistance for individuals with disabilities, and the one time she was in need of help, that assistance was not provided for her.

Harold Cousminer, a visually impaired voter from Palm Beach County, was given improper equipment to assist him in voting. The poll workers were unfamiliar with providing assistance and accommodations for individuals with disabilities. He was given a magnifying screen to see the ballot but the magnifying screen could not be used for his butterfly ballot. He ultimately relied on his wife to cast his ballot and believed that his right to a secret ballot was denied.

Dr. Frederick Shotz, a resident of Broward County, had to use his upper body to lift himself up to get up the steps in order for him access his polling place. Once he was inside the polling place, he was not given a wheelchair accessible polling booth. Once again, he had to use his arms to lift himself up to see the ballot and, while balancing on his arms, simultaneously attempt to cast his ballot. He testified that an individual using a wheelchair who did not have the same upper body strength could not have accessed his polling place. He also stated that his polling place did not provide curbside voting and described curbside voting as a "wonderful fantasy that never came true."

A resident of Miami-Dade County testified that his polling place was under construction and that it would have been impossible for individuals using wheelchairs to access. The pavement leading to the main entrance of the building was broken and the surrounding areas were muddy.

Responding to the need for change, the NationalAssociation of Protection and Advocacy Systems recently distributed to its members nationwide, an Accessible Voting Kit containing tools to produce change related to increasing access to the democratic process for people with disabilities. This kit includes statistics and information defining the current problems, acceptable access standards, contacts for accessible voting equipment, as well sample letters to election officials.

Long before the inadequacies and inconsistent standards of America's voting systems were brought to light by the 2000 presidential election, many Protection and Advocacy Systems (P&As) were responding to the problems. The Arkansas P&A, (The Disability Rights Center) was an early advocate in the mission to increase accessibility for people with disabilities. After identifying substantial disenfranchisement of voters with disabilities, and unable to produce sufficient change by using non-litigation based advocacy, the Disability Rights Center staff filed suit against election officials. On May 22, 1997, a Settlement Agreement was reached in the class action suit, Verlon McKay, et al v. County Election Commissioners for Puaski County, et al. In this settlement, the state Board of Election Commissioners agreed to attempt to ensure that all persons with disabilities who are legally eligible to vote in elections in the State of Arkansas may personally and secretly execute their ballots at the polling facility.

As a result, the State Board of Election commissioners delivered to the Disability Rights Center, counsel for the plaintiffs, its 1999 Report on Americans with Disabilities Act (ADA) Compliance in polling places throughout Arkansas. The Compliance Report demonstrates the current status of polling place and voting policy compliance with the ADA and simplifies monitoring of compliance. The agreement also required that the State deliver annual reports demonstrating substantial compliance by local election officials.

Another early example of P&A initiated efforts to access the vote comes from the Texas P&A, Advocacy, Inc. In 1997, the P&A filed a class action lawsuit alleging failure by the state of Texas to ensure accessibility of polling places on election day for voters with physical disabilities and blind voters. At issue in that case was the applicability of the ADA to state voting regulations. The District Court held that (1) Plaintiffs have a constitutional right to a secret ballot; (2) the ADA applies to the state voting regulations; (3) the system in Texas did not comport with the ADA; (4) the current system discriminates against persons with disabilities; (5) Texas statute and the ADA requires all polling places to be physically accessible; and (6) voters with visual impairments have a right to a secret ballot and to vote on election day at their local precinct.

On appeal, the Fifth Circuit held that the Texas Secretary of State was not responsible for Texas counties compliance with the law. Advocacy, Inc. followed with suits against selected counties across the state regarding secret balloting for those with visual impairments and have reached settlements in nearly all of them. Depending on the type of balloting--punch card, machine, etc.-- different systems that accommodate persons with visual impairments have been identified by protection and advocacy experts and adopted by the counties. These successful efforts were followed by the enactment of a state law requiring all voting systems purchased anywhere in the state to be accessible to people with physical disabilities.

More recent examples of P&A efforts to access the vote include a lawsuit brought by the Pennsylvania P&A (Pennsylvania P&A, Inc.) on behalf of people with disabilities in Philadelphia, a city that has one of the lowest rates of accessible polling places in the nation. This low rate of accessibility is compounded by the fact that, even following the attention from the Florida debacle, the city government recently purchased voting machines that cannot be used by many disabled voters. The suit is the first of its kind against a city, and it comes after years of frustration for thousands of Philadelpians who are blind, use wheelchairs, or have limited vision or hand control that makes many machines - including the new optical scan machines that Philadelphia is currently purchasing - useless to them. Strangely, a person in a wheelchair might be able to use these machines but not be able to enter the building itself; a blind person, on the other hand, could walk into the building but couldn't use the machines to cast a secret ballot.

"I'm demanding my constitutional right to vote," said Jessie Jane Lewis on the April 19, 2001 filing of the suit.

Lewis, a wheelchair user who has multiple sclerosis and is one of nine local individuals who are plaintiffs in the suit, explained that "of the 1,681 polling places in our city, only 46 are accessible to wheelchair users." Ms. Lewis described how she has brought her own ramp to her inaccessible polling place in the past, relying on others to set it up so she can enter the building and vote.

In December 1999, the Connecticut P&A (Office of Protection and Advocacy for Persons with Disabilities) initiated a statewide voter accessibility project. Christened "Every 1 Counts" the project was a joint effort by the Secretary of State and two other disability groups. The goals included 1) educating voters with disabilities about their right to equal access to the polls and 2) providing technical assistance and training to Registrars of Voters. The project staff developed informational materials including an educational pamphlet discussing accessibility, voting enforcement agencies and the importance of One Vote. Fact sheets outlining federal and state voter laws, newspaper articles, and Pictorial Guides to Voting were also created to assist voters with disabilities to understand their right to the voting process.

These and other voter information were distributed through training, community fairs, mailings to a variety of private and state organizations, and voter registration at disability related events.

Technical assistance and training continue to be provided to Registrars of Voters. Staff for the project provide training on federal and state voter accessibility statutes. Under this project, the Connecticut P&A has conducted on-site accessibility surveys of Connecticut polling places drawing heavily on the efforts of volunteers trained on accessibility statutes and using an access survey developed in conjunction with the Office of the Secretary of the State.

"Every 1 Counts" has surveyed approximately 300 of the 750 polling places in Connecticut and continue working to complete the remaining surveys during the spring and summer of 2001. Each municipality has or will receive a report outlining the accessibility problems at the polls and possible solutions to ensure that voters with physical, visual, and communication disabilities encounter a positive voting experience at the polls.

Accessibility for People with Mental Disabilities

Protection and Advocacy Systems have been in the lead on attempts to ensure access to the election process by people with mental disabilities. For example, the New Jersey P&A (New Jersey P&A, Inc.) successfully challenged a judge's decision not to count absentee ballots cast by residents of a psychiatric hospital. In a decision handed down in May of last year, the state appeals court held that "voters who are involuntarily committed residents of a psychiatric hospital...are presumed competent to vote." The court noted that unless a group challenging the vote can make a "particular showing of incompetence" even people at a psychiatric hospital have a right to participate in the political process. With 2000 people in the four state-run psychiatric hospitals and many more in group homes and private facilities, the ruling is expected to invite greater participation among people who have been viewed as disconnected from the political process.

The Maine P&A (the Disability Rights Center) is currently challenging a provision in the Maine Constitution that prohibits individuals under guardianship by reason of mental illness from voting. On November 7, 2000, residents of Maine voted to continue its ban on voters with mental illness even though the legislature overwhelmingly voted to remove it. That fall, the Maine P&A filed suit on behalf of three Maine residents who are under guardianship because of mental illness. The suit claims violations of: equal protection, due process, the ADA, and the Rehabilitation Act of 1973. A motion for summary judgement has been filed and a decision is awaited.

Setting Standards for Reform

In determining standards for accessible voting and election reform, protection and advocacy staff and others refer to the principles outlined in The National Voter Independence Projects' Voters Denied Access at the Polls: A Report on the Status of Accessibility to Polling Places in the United States.

Recommendations:

1. Any plan to address accessibility problems at polling places should include federal, minimum standards that define an accessible voting environment for voters with disabilities. This is the only way to ensure equality in voting for persons with disabilities.

2. A single state election official should be designated to be responsible for compliance with the minimum standards.

3. All new voting machines or equipment purchased by local jurisdictions should provide for private and independent voting by voters with disabilities, including voters who are blind or visually impaired.

4. Voters with disabilities need stronger enforcement schemes to enforce their voting rights under the VAEHA. The present model that relies on a right without strong remedies has resulted in what is essentially voluntary compliance, with predictable results.

Acknowledgments:

This report was prepared with assistance from Clyde E. Terry, JD, Jim Dickson, Lee Peselay, JD, and the Bazelon Center for Mental Health Law.

For more information contact:

TASC/NAPAS at (202) 408-9514