The right to vote is basic to our democratic way of life yet many individuals with disabilities find themselves unable to vote confidentially and independently.
Congress has been tackling the problem of voting rights for individuals with disabilities since 1965. The 1965 Voting Rights Act contains a provision requiring that ‘‘[a]ny voter who requires assistance to vote by reason of blindness, disability, or inability to read or write may be given assistance by a person of the voter’s choice.’’ (See Voting Rights Act of 1965 [amended 1984].) The 1965 statute did nothing to correct the problem of access to polling places. It simply eliminated the secret ballot requirement for individuals with disabilities.
In 1984, Congress focused more specifically on the problem of access to polling places with enactment of the Voting Accessibility for the Elderly and Handicapped Act (VAEHA). The purpose of this act was ‘‘to promote the fundamental right to vote by improving access for handicapped and elderly individuals to registration facilities and polling places for federal elections.’’ It only applies to federal elections.
With respect to voter registration, the act requires each state to make available: (1) instructions, printed in large type, conspicuously displayed at each permanent registration facility and each polling place, and (2) information by telecommunication devices for the deaf. The VAEHA also provides that states must permit disabled voters to vote by absentee ballot without notarization or medical certification, unless the individual desires: (1) to automatically receive an application or a ballot on a continuing basis, or (2) to apply for an absentee ballot after the deadline has passed.
The act defines ‘‘disability’’ broadly as including anyone who has ‘‘a temporary or permanent physical disability.’’ A temporary, broken leg is therefore a disability under the 1984 Act even though it is not a disability under the Americans with Disabilities Act (ADA). Although absentee voting may not be the desirable or preferable option for an individual with a disability, the 1984 Act does provide that it must be an option for disabled voters.
The 1984 Act also contains provisions that were designed to improve the accessibility of polling places. It provides that each political subdivision responsible for conducting elections must assure that all polling places for federal elections are accessible to disabled voters. It also provides that disabled voters may make an advance request to be assigned to an accessible polling place or be provided with an alternate means of casting a ballot on the day of the election if they have been assigned to an inaccessible polling place.
Some voting rights litigation has also been brought under the ADA, which prohibits public entities from engaging in discrimination. In 2000, the New York Attorney General brought a suit on behalf of disabled voters to require several counties to make their polling places compliant with the ADA. This suit resulted in injunctive relief and set the important precedent that a state attorney general could sue on behalf of disabled voters (People of New York ex rel. Spitzer v. County of Delaware ). Unlike cases brought under other statutes, the ADA can be used to make polling places accessible for state elections.
President George W. Bush signed the Help America Vote Act (HAVA) into law on October 29, 2002. HAVA gives states significant financial incentives to implement accessibility. It also requires that every polling place in the county must have at least one voting system that is accessible to individuals with disabilities by January 1, 2006.
HAVA is stronger than previous laws in specifying that individuals are to have access to secret and independent voting opportunities. It states that voting systems shall be ‘‘accessible for individuals with disabilities, including nonvisual 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.’’
In Tennessee v. Lane (2004), the Supreme Court implied that access to voting booths is a fundamental right under the U.S. Constitution. Possibly, litigants will use that ruling in the future to challenge accessibility barriers that limit their ability to vote.
Prior to the Lane decision, however, litigation was not a fruitful option for disabled voters. For example, Michigan voters challenged a state statute that provided that the state may require that a blind person accepts assistance to mark his or her ballot. They argued that this statute violated their right to vote in secrecy, and that they must be provided with technology which would permit them to vote independently and privately. The Sixth Circuit held that the Michigan statute was lawful and constitutional (Nelson v. Miller ). But in American Association of People with Disabilities v. Smith (2002) the Court held that state election officials failed to approve voting systems that would permit visually and manually impaired voters to vote without assistance, and in American Association of People with Disabilities v. Hood (2004), the Court held that a county elections supervisor had violated ADA regulations in utilizing optical scan voting system—visually impaired voters could not use optical scan system without third-party assistance and manually impaired voters could have voted unassisted using touch screen technology.
Cases and Statutes Cited
See also Voting Rights Act of 1965