Transcript 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.

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 12101 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
– 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 3501.29
(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 3501.29
(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.
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 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
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
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)
DropOff
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

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”
Curb
Ramps &
Access
Routes
Inside the Building

Signage for accessible
entrances
 Door handles that can be
used without tight grasping
 Elevator if polling place
isn’t on 1st floor
 36” corridors, may narrow
to 32” at doorways
 Beware of hazards for
blind voters, between 2780” 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
http://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