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

Accessible Democracy:Accessible Democracy:The Voting Rights of People with DisabilitiesThe Voting Rights of People with Disabilities

Ohio Association of Election Officials Ohio Association of Election Officials June 14, 2006June 14, 2006

Daniel Tokaji The Ohio State University

Moritz College of Law

The Voting Rights of The Voting Rights of People with DisabilitiesPeople with Disabilities

I. Survey of Relevant Laws

II. ADA Basic Principles

III. Specific Requirements and Case LawVoting TechnologyPolling Place AccessOther Access Issues

I. Survey of Relevant LawsI. Survey of Relevant LawsU.S. ConstitutionFederal StatutesState Statutes

I. Survey of Relevant LawsI. Survey of Relevant LawsU.S. ConstitutionFederal 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 LawsI. Survey of Relevant LawsU.S. ConstitutionFederal 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. ConstitutionU.S. Constitution

Disability DiscriminationProhibited where it’s arbitrary or there’s no rational basis.

The Right to VoteA “fundamental” right, infringements of which are “carefully and meticulously scrutinized.”

Federal StatutesFederal 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.


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.


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.


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 12101 et seq.


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 StatutesFederal StatutesThe 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 StatutesState StatutesOhio Revised Code

– 3501.29: Polling place access.– 3503.12: Registration places must be accessible– 3505.24: Right to be aided by person of voter’s

choice other than employer or union agent/officer. – 3506.19: Every polling place has to have at least

one DRE or marking device accessible to disabled voters.

Sub HB 312: Amends 3501.29, to require accessible parking spaces and signed verification, with “good faith” exception (effective 8/22/06)

The Amended ORC 3501.29The Amended ORC 3501.29(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 4511.69 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 3501.29The Amended ORC 3501.29(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.




III. Specific Requirements and Case Law





II. ADA Basic PrinciplesII. ADA Basic Principles

Background on Disability & VotingPurpose & and Structure of the ADACoverage & Enforcement

Background on Disability & VotingBackground 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 ADAPurpose & Structure of the ADAPurpose to open up opportunities for 43 million

AmericansCongress cited exclusion in many areas,

including votingIncludes both physical and mental disabilitiesBasic structure

– Title I: Employment– Title II: Public entities– Title III: Public accommodations and services of

private entities

Title II of the ADATitle 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 12132

• Facilities should be “readily accessible to and usable by individuals with disabilities” 28 CFR 35.151.

• 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 35.160.

ADA Coverage & Enforcement 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









III. Specific Requirements III. Specific Requirements and Case Lawand Case Law

Voting TechnologyPolling Place AccessOther Accessibility Issues

Voting TechnologyVoting 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 AccessPolling 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 SpacesParking Spaces

Van accessible space with 96” aisle

Other spaces, 60” aisleLevel (1/50)Signage (can be temporary)

Drop-Drop-Off Off

AreasAreas

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 Curb Ramps & Ramps & Access Access RoutesRoutes

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 BuildingInside the BuildingSignage for accessible

entrancesDoor handles that can be

used without tight graspingElevator if polling place

isn’t on 1st floor36” corridors, may narrow

to 32” at doorwaysBeware of hazards for

blind voters, between 27-80” up & more than 4” out

The Next-Best Alternative:The Next-Best Alternative:Curbside VotingCurbside 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 IssuesOther 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

Facilitieshttp://www.usdoj.gov/crt/ada/

GAO, Voters with Disabilities: Access to Polling Places and Alternative Voting Methods (2001)http://www.gao.gov/new.items/d02107.pdf

Election Law @ Moritz http://moritzlaw.osu.edu/electionlaw

Documents

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