Many of us may feel as if we’ve been perpetually in the midst of a presidential campaign for quite some time. In reality, we are just now gearing up for the heart of election season. As we head into this heated contest, it is a good time to reflect on the status of voters with disabilities in this country.
In the 2000 election, people with disabilities were, on average, about 12 percent less likely than those without disabilities to vote. Although this was a significant difference compared to the population of people without disabilities, it was an improvement from previous years. In the 1998 elections, people with disabilities were about 20 percent less likely than people without disabilities to vote, according to “Voter Turnout, Voting Difficulties and Disability in the 2000 Elections: Laying a Challenge at Democracy’s Door,” by Lisa Schur, PhD, and her colleagues at Rutgers University and the University of Arkansas.
While representing an improvement over previous years, the lower voting rates of people with disabilities in the 2000 election, represents a significant number of voters left out of the political process. According to Dr. Schur’s report, if people with disabilities voted at the same rate as those without disabilities in 2000, there would have been approximately 3.2 million additional voters, which would have raised the overall turnout rate by 1.7 percent, and perhaps influenced the outcome of certain election contests.
A FEW VOTES DECIDED ELECTION
In the controversial 2000 Florida election, for instance, George W. Bush beat Al Gore in the official tally by only .009 percent. Similarly, “[f]lip fewer than 60,000 votes in Ohio, and John Kerry is President in 2004. Nixon would have won in 1960 with 5,000 shifted votes in each of Illinois and South Carolina, and 12,000 in New Jersey,” according to ABC commentator George Stephanopoulos in his article, “How To Be A Better Voter,” which appeared in a recent issue of Parade Magazine. In other words, every vote makes a difference. Given the number of people with disabilities in this country and how close recent elections have been, this voting block has the potential to sway an election.
However, people with disabilities continue to face myriad obstacles. According to a 2004 National Organization on Disability/Harris Poll Survey, 21 percent of American adults with disabilities— representing more than eight million potential voters—say that they have been unable to vote in a presidential or congressional election due to barriers faced either at or getting to the polls.
These statistics are not consistent across all states. For example, in Georgia, Arizona and California, only about one-third of those with disabilities who could vote actually did so in the 2000 election. While Maine, Minnesota and New Hampshire saw much stronger turnouts of voting-aged people with disabilities, averaging above 50 percent, according to a report called the “State Census Disability Numbers and Voting Turnout.” Among those who do vote, people with disabilities are more likely than those without disabilities to use non-traditional methods. People with disabilities are almost twice as likely as other citizens to vote by absentee ballot. Among those in this group who voted, 20 percent used an absentee ballot, compared to 11 percent of people without disabilities.
COMMON PROBLEMS AT THE BOOTH
One of the most frequent barriers for people with physical disabilities is inaccessible polling places. As of 2001 the Government Accountability Office found that 84 percent of polling places limit access to people with disabilities. For example, there may be stairs at the entrance to a polling place. Many times a polling place does not have accessible, clearly-marked paths from the parking area to the accessible entrance, which allows voters with disabilities to enter and exit safely and independently. Physical accessibility often poses a problem because polling places can be in many different types of settings, including some that are not typically open to the public or open only to limited audiences, e.g., church basements, meeting halls or a neighbor’s garage.
In other situations, voters with disabilities may be denied accommodations, given inadequate ones or encounter poll workers who are unfamiliar with how to provide them. Election workers may be unprepared, for instance, to provide chairs for voters with disabilities who must wait in a long line.
Many people with disabilities have faced inaccessible voting equipment or procedures. Common voting machines include those with punch-card ballots, levers or paper ballots that create barriers for persons who cannot press buttons, use a marking pen or levers. Voters who are blind or have vision disabilities and cannot read the text in these machines are essentially prevented from voting independently. Finally, the set up of voting machines and booths can make them inaccessible to those in wheelchairs.
Similarly, written instructions may not be provided in alternative formats, such as large print, Braille or audio. Information that is provided orally, e.g., instructions about where to go, may not be available in a written format.
All of these barriers provide a disincentive for people with disabilities to vote at the polls, and frequently can discourage a person with a disability from voting at all.
In 2002, Congress passed the Help America Vote Act, which is commonly referred to as HAVA. Largely in response to the challenges posed by the 2000 election, HAVA affects every part of the federal voting process, including voting machine regulations, provisional ballots, voter registration and complaint procedures. Election officials and legislators in each state are responsible for implementing HAVA.
Among the requirements of HAVA are a number of specific mandates designed to increase access for voters with disabilities. Most significantly, HAVA provides an explicit right to participate in elections, and to cast a private and independent ballot. As part of this mandate, HAVA requires states to ensure that their voting systems are accessible to people with disabilities. Specifically, “[t]he voting system shall . . . be accessible for individuals with disabilities, including non-visual accessibility for 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.”
HAVA also requires that voting machines must be accessible to people with disabilities. Each polling place must have “at least one direct recording electronic voting system, or other voting system equipped for individuals with disabilities.” This provision has been among the more difficult to implement, given the controversy over electronic voting. For example, some voting advocates, including many government officials, want to require touch-screen voting machines to be able to produce voter verified paper audit trails, or a printed record of each person’s vote. These advocates say the electronic machines are vulnerable to error, and that a paper audit trail will address mistakes or fraud that would otherwise be difficult to fix.
However, many disability advocates believe that this requirement has slowed the implementation of touch-screen voting, which is often the only way certain individuals can vote via secret ballot. Voting machines with touch screens and optional audio via headphones address inaccessible voting by allowing people who are blind or have limited use of their hands to vote by themselves. Otherwise, voters with such disabilities must be accompanied by someone who can provide assistance or read the ballot to them.
HAVA also addresses the right of people with disabilities to vote by providing federal funds to make the path of travel, entrances, exits and voting areas of each polling facility accessible to individuals with disabilities. The Department of Justice has developed a checklist that is a start-to-finish guide to creating accessible polling places.
The voting legislation also mandates that states provide information about the location of accessible polling places to people with disabilities. It requires that election officials, poll workers, and election volunteers receive training on how to best promote the access and participation of individuals with disabilities.
HAVA contains two enforcement mechanisms: First, the Attorney General may bring an action against a state regarding inadequacies in its voting system, provisional voting, voting information requirements and computerized statewide registration list requirements. Voters who have encountered a violation of HAVA can request that the U.S. Department of Justice seek compliance against the state through the court system. The department has begun to take action against non-compliant states. For example, a federal court recently ordered the state of New York to provide voting systems that are accessible to voters with disabilities at each poll site by September 2008, and to replace lever voting machines by September 2009.
Second, states must establish complaint procedures allowing people to file written complaints and request hearings to remedy violations that involve election technology and administration. Within 90 days of a complaint being filed, a state must determine whether or not there has been a violation.
To ensure that relevant government officials are on notice of voting problems, people with disabilities should use both means to register complaints under HAVA. In addition to HAVA, the more general disability rights laws, such as the Americans with Disabilities Act and Section 504 of the Rehabilitation Act, continue to apply to voting and voting related programs. These statutes require public entities to ensure that their programs, services and activities are accessible to people with disabilities. This would include activities related to voting, although there is no explicit requirement to provide independent and secret voting. Nevertheless, under these laws, state and local governments must ensure that programs are physically accessible, provide reasonable accommodations and offer materials in alternate formats, among other requirements. In addition to applying to voting laws, these rights also govern town hall meetings and debates.
STAYING ENGAGED IN THE PROCESS
People with disabilities should start thinking about access to the polls long before any election. To ensure states and elected representatives remain committed to enforcing voting rights laws, it’s important for the disability community to be proactive and engaged.
For example, under HAVA states must develop a plan for implementing voter accessibility requirements, which includes an explanation of how it will adopt voting system guidelines and processes. People with disabilities and disability advocacy organizations should be informed about their state’s plan so that they can determine where additional improvements may be needed.
Anyone who experiences problems on election day should call 1-866-OUR-VOTE (1-866-687-8683). Legal volunteers with the National Campaign for Fair Elections will be staffing phones to provide any needed advice about your voting rights.
Given the discrepancy in voting turnout for people with disabilities, it is clear that there is still much work to do. However, armed with information and legal resources, we can ensure that the right to vote is a promise fulfilled for every American.
by Shawna L. Parks and Paula Pearlman
Shawna L. Parks is the Director of the Civil Rights Litigation Project, and Paula Pearlman is the Executive Director of the Disability Rights Legal Center.
The Mission of the Disability Rights Legal Center, formerly the Western Law Center for Disability Rights, is to promote the rights of people with disabilities and the public interest in and awareness of those rights by providing legal and related services. We are located on the campus of Loyola Law School in Downtown Los Angeles and work with Loyola Law students in all of our programs