Accessible Democracy: The Voting Rights of People with Disabilities Ohio Association of Election Officials June 14, 2006 Daniel Tokaji The Ohio State University Moritz College of Law

The Voting Rights of People with Disabilities I.Survey of Relevant Laws II.ADA Basic Principles III.Specific Requirements and Case Law Voting Technology Polling Place Access Other Access Issues

I. Survey of Relevant Laws U.S. Constitution Federal Statutes State Statutes

I. Survey of Relevant Laws U.S. Constitution Federal Statutes – The Voting Rights Act of 1965 (VRA) – Voting Accessibility for Elderly & Handicapped Act of 1984 (VAEHA) – Section 504 of the Rehab. Act of 1973 (Sec. 504) – Americans with Disabilities Act of 1990 (ADA) – National Voter Registration Act of 1993 (NVRA) – The Help America Vote Act of 2002 (HAVA) State Statutes

I. Survey of Relevant Laws U.S. Constitution Federal Statutes – The Voting Rights Act of 1965 (VRA) – Voting Accessibility for Elderly & Handicapped Act of 1984 (VAEHA) – Section 504 of the Rehab. Act of 1973 (Sec. 504) – Americans with Disabilities Act of 1990 (ADA) – National Voter Registration Act of 1993 (NVRA) – The Help America Vote Act of 2002 (HAVA) State Statutes

U.S. Constitution Disability Discrimination Prohibited where it’s arbitrary or there’s no rational basis. The Right to Vote A “fundamental” right, infringements of which are “carefully and meticulously scrutinized.”

Federal Statutes The Voting Rights Act of 1965 (VRA) Any 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, other than the voter's employer or agent of that employer or officer or agent of the voter's union. 42 USC 1973aa-6.

Federal Statutes Voting Accessibility for Elderly & Handicapped Act of 1984 (VAEHA) “Within each State…each political subdivision responsible for conducting elections shall assure that all polling places for Federal elections are accessible to handicapped and elderly voters. “ “Each State or political subdivision responsible for registration for Federal elections shall provide a reasonable number of accessible permanent registration facilities.” 42 USC 1973ee et seq.

Federal Statutes Section 504 of the Rehab. Act of 1973 (Sec. 504) “No otherwise qualified individual with a disability in the United States … shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance ….” 29 USC 794.

Federal Statutes The Americans with Disabilities Act of 1990 (ADA) Purpose “to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities” Prohibits discrimination and requires accommodation of people with disabilities in employment, public services, and services operated by private entities 42 USC et seq.

Federal Statutes The National Voter Registration Act of 1993 (NVRA or “Motor Voter”) “ Each State shall designate as voter registration agencies … all offices in the State that provide State-funded programs primarily engaged in providing services to persons with disabilities.” 42 USC 1973gg-5.

Federal Statutes The Help America Vote Act of 2002 (HAVA) Effective January 1, 2006, 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.” May be satisfied by having “at least one direct recording electronic voting system or other voting system equipped for individuals with disabilities at each polling place Every system “purchased with funds made available under title II.. on or after January 1, 2007, [shall] meet the voting system standards for disability access.” 42 USC 15481

State Statutes Ohio Revised Code – : Polling place access. – : Registration places must be accessible – : Right to be aided by person of voter’s choice other than employer or union agent/officer. – : Every polling place has to have at least one DRE or marking device accessible to disabled voters. Sub HB 312: Amends , to require accessible parking spaces and signed verification, with “good faith” exception (effective 8/22/06)

The Amended ORC (B) (1) Except as otherwise provided in this section, the board shall ensure all of the following: (a) That polling places are free of barriers that would impede ingress and egress of handicapped persons; (b) That the minimum number of special parking locations, also known as handicapped parking spaces or disability parking spaces, for handicapped persons are designated at each polling place in accordance with 28 C.F.R. Part 36, Appendix A, and in compliance with division (E) of section of the Revised Code. (c) That the entrances of polling places are level or are provided with a nonskid ramp of not over eight per cent gradient; (d) That doors are a minimum of thirty-two inches wide.

The Amended ORC (B)(2) Notwithstanding division (B)(1)(a), (c), or (d) of this section, certain polling places in each county may be specifically exempted by the secretary of state upon certification by a board of elections that a good faith, but unsuccessful, effort has been made to modify, or change the location of, such polling places.... (E) Before the day of an election, the director of the board of elections of each county shall sign a statement verifying that each polling place that will be used in that county at that election meets the requirements of division (B)(1)(b) of this section. The signed statement shall be sent to the secretary of state by certified mail.

The Voting Rights of People with Disabilities I.Survey of Relevant Laws II.ADA Basic Principles III.Specific Requirements and Case Law

The Voting Rights of People with Disabilities I.Survey of Relevant Laws II.ADA Basic Principles III.Specific Requirements and Case Law

II. ADA Basic Principles Background on Disability & Voting Purpose & and Structure of the ADA Coverage & Enforcement

Background on Disability & Voting 1 in 5 people have some type of disability, 1 in 10 a severe one. People with disabilities 15% less likely to vote. 2004: Estimated that 36% of large jurisdictions, 25% of medium, and 6% of small jurisdictions found it difficult or very difficult to find accessible poll locations.

Purpose & Structure of the ADA Purpose to open up opportunities for 43 million Americans Congress cited exclusion in many areas, including voting Includes both physical and mental disabilities Basic structure – Title I: Employment – Title II: Public entities – Title III: Public accommodations and services of private entities

Title II of the ADA “[N]o qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 USC Facilities should be “readily accessible to and usable by individuals with disabilities” 28 CFR Public entities should take “appropriate steps to ensure that communications with applicants, participants, and members of the public with disabilities are as effective as communications with others.” 28 CFR

ADA Coverage & Enforcement Who’s covered? – Qualified individuals with disabilities – Substantially limited in a major life activity – Includes mobility impairments, visual impairments, manual dexterity impairments, cognitive impairments. Enforcement – Both injunctive relief and damages available for most violations – Either individuals or the Department of Justices may commence lawsuits

The Voting Rights of People with Disabilities I.Survey of Relevant Laws II.ADA Basic Principles III.Specific Requirements and Case Law

The Voting Rights of People with Disabilities I.Survey of Relevant Laws II.ADA Basic Principles III.Specific Requirements and Case Law

Voting Technology Polling Place Access Other Accessibility Issues

Voting Technology Mixed results in ADA cases challenging the failure to provide accessible voting equipment. Compare AAPD v. Hood and AAPD v. Shelley. Effectively supplanted by HAVA’s requirement that every polling place have one accessible unit. Voluntary voting system guidelines issued by EAC include guidance on access for people with visual, dexterity, and mobility impairments.

Polling Place Access Courts have issued injunctions where polling places weren’t accessible. Absentee ballots aren’t an adequate substitute. ADA Guidelines (28 CFR, Pt. 36, App. A) – Parking spaces & drop-off areas – Ramps & access routes – Inside the building

Parking Spaces Van accessible space with 96” aisle Other spaces, 60” aisle Level (1/50) Signage (can be temporary)

Drop- Off Areas If passenger loading zones are provided, one must have: Aisle depth of 5’ Aisle length of 20’ Level (1/50) Vertical height of 114” (9’6”) Curb ramp

Curb Ramps & Access Routes Must connect parking spaces & drop-off areas with polling place 36” wide, though may narrow to 32” briefly Must be free from obstructions that wouldn’t be detectable by visually impaired voters (trees, drinking fountains, fire extinguishers) Watch for obstructions lower than 80” and more than 27”

Inside the Building Signage for accessible entrances Door handles that can be used without tight grasping Elevator if polling place isn’t on 1 st floor 36” corridors, may narrow to 32” at doorways Beware of hazards for blind voters, between ” up & more than 4” out

The Next-Best Alternative: Curbside Voting What to do if polling place isn’t accessible to some voters? Poll worker should bring voting materials to voter at the curb, in a car, or elsewhere outside the polling place.

Other Accessibility Issues Assistance – By a person of voter’s choice – But not employer or union agent Employment – Regular employees: Title I – Poll workers: Title II?

Additional resources U.S. Dept. of Justice – ADA Checklist for Polling Places – ADA Accessibility Guidelines for Buildings and Facilities GAO, Voters with Disabilities: Access to Polling Places and Alternative Voting Methods (2001) Election Moritz