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Issues & Trends

Breaking Barriers for Voters With Disabilities

April 26, 2022

By Jeremy Conrad

During the November 2020 U.S. elections, expanded voting by mail, consolidated polling places, persistent privacy concerns, and poll worker shortages impacted all voters, but especially people with disabilities who were already facing barriers to voting.

Concerns about transmission of the COVID-19 virus at polling places led to the rapid and widespread implementation of mail-in ballots in the 2020 election, but the issuance of paper ballots also created a barrier to many voters with disabilities, said Eve Hill, partner at Brown, Goldstein & Levy LLP and former deputy assistant attorney general in the U.S. Department of Justice’s Civil Rights Division.

“That paper ballot is effectively useless for people who are blind or have other print disabilities,” Hill said at a recent ABA event. Hill advocated for accommodations for those impacted, including people with visual impairments and those with motor function disabilities that make marking and folding documents challenging.

In many cases, digital alternatives were developed and implemented in relatively short order. Hill said that in jurisdictions where digital voting was available, she heard from many individuals that the electronic ballot offered them the first opportunity in their lives to vote independently, underscoring the utility of such options even outside of a pandemic.

Pictured left to right: Jason Kaune, Denise Avant, Eve Hill, Lou Ann Blake, Lia Sifuentes Davis, Chad Vickery

According to Hill, there are now multiple functional systems available for states to choose from when seeking to accommodate individuals with disabilities. “Unfortunately, we are in yet another election year, and a number of states still have not taken advantage of [them],” she said.

Hill also expressed concern regarding the challenges to competency faced by individuals with disabilities seeking to exercise their right to vote. In particular, individuals subject to guardianships face the risk of disenfranchisement by polling officials and others who challenge their capacity. Hill advocated for the use of limited guardianships and averred that competency is determined by the court, not by polling or elections officials.

Disability Rights Texas senior litigation attorney Lia Sifuentes Davis gave an overview of lawsuits related to the 2020 elections filed in Texas, Florida, and Georgia contesting limitations on the accommodations that can be offered and the imposition of ID requirements. The consolidated Texas case, LUPE v. Abbott, challenges multiple provisions of state legislation for violations of constitutional amendments, the Americans With Disabilities Act, the Voting Rights Act, and more.

Davis said that the broad range of claims stems from the increasingly intersectional approach to inclusion. “It’s not just disability rights groups bringing these claims. It’s also social justice groups and voting rights groups — groups that have expertise in all of these areas. And since these laws have an impact on a really wide variety of citizens, it’s imperative that these cases be brought to reflect that intersectionality,” she said.

Lou Ann Blake, director of Research Programs, Blindness Initiatives, for the National Federation of the Blind (NFB), elaborated upon the barriers experienced by individuals with blindness or low vision at polling places, drawing upon polling data from presidential and midterm elections from 2008 and 2010, respectively. A third of those responding to the poll said that the specialized voting machines for the vision impaired were not set up when they arrived, leading to delays or the need to vote with assistance.

Lack of adequate poll worker training was another common issue, both with the voting equipment and with interactions with people with disabilities. Lack of appropriate training can be an issue for the voters themselves, Blake said. Their unfamiliarity with the voting machines can lead to failure to access features designed to assist. “Frequently, they don’t have opportunities to practice voting before an election,” she said.

Privacy was another concern. In some instances, the machines providing accommodation were positioned with their screens visible to passersby, or the completed ballots looked different than ones from the machines for people without disabilities, making them identifiable as the vote of a person with a disability on subsequent examination.

Denise Avant, chair of the ABA Commission on Disability Rights, described a recent success in Illinois, which passed a bill that will provide accessible absentee voting for people with disabilities in the upcoming November elections. In the run-up to the 2020 elections, the state passed a bill that allowed voters to request a Braille or large print ballot, but Avant said that the proposed system did not provide a method for the voter to mark the ballot themselves. “Of course, that violates our right to mark the ballot privately and independently,” she said.

As president of the Illinois NFB, Avant redoubled her efforts to gather the support of national, state, and local authorities to get a revised bill advanced in the state legislature. The bill passed, providing for electronic voting for people with visual or print disabilities.

“We are working on securing that right for the June 28 primary,” Blake said, “but at least we know that we have that for the November 2022 election and beyond.”

Chad Vickery, vice president of global strategy and technical leadership for the International Foundation for Electoral Systems, provided an international perspective on voting rights for individuals with disabilities. Employing the rights provided by international treaties, his organization advocates for inclusion, addressing many of the same issues his counterparts working domestically face.

Commenting on election security concerns, Vickery said that voting restrictions designed to increase security have, in many instances, negatively impacted the ability of persons with disabilities to vote. “From our perspective, we see how an erosion of trust results in heightened security that has an impact on inclusion issues we try to guard against,” he said.

The ABA has produced materials intended to assist in designing and implementing inclusive voting systems. The ABA Civil Rights and Social Justice Section’s Voting Rights Toolkit includes a section titled “Options to Consider for Voters with Disabilities,” and ABA Resolution 14A113B on the accessibility of the electoral process covers a variety of concerns spotlighted by speakers at the event.

Hill concluded the event by endorsing the implementation of remote electronic voting. “To be honest, that’s the only way I’ve voted,” she said, remarking on the availability of digital voting in her home state of Maryland since 2016. “I don’t want to have to go to the polls and deal with the poll workers who don’t know how to get the machine going, or enable the audio ballot, or properly interact with a blind voter … it’s just so much easier and more convenient. It can solve a lot of the issues that we deal with at the polling place.”