People with disabilities comprised roughly one in six eligible voters in 2016, according to a report by researchers Lisa Schur and Douglas Kruse at Rutgers University. The report, “Projecting the Number of Eligible Voters with Disabilities in the November 2016 Elections,” also found that despite forming a significant share of the electorate, people with disabilities have been less likely than the general population to vote in past elections.
One reason for the lower turnout is barriers to the ballot box. Imagine using a wheelchair or walker and not being able to enter your polling place because there was no ramp, the doors were too narrow, hard to open, and lacked automatic openers, or the pathway to the voting area was obstructed and lacked proper signage; having a vision impairment and encountering a voting machine that did not offer audio or large print ballots, or poll workers who were not trained to set up these features or troubleshoot malfunctions and failed to provide instructions on how to use the machine; or having an intellectual or cognitive disability and being denied the right to vote by state law that reflects incorrect assumptions about your capabilities.
Several federal laws protect voting access for individuals with disabilities. The Americans with Disabilities Act of 1990 (ADA) provides a clear and comprehensive national mandate for eliminating discrimination against individuals with disabilities. This law prohibits disability discrimination in employment (Title I), public services (Title II), public transportation and places of public accommodations (Title III), and telecommunications (Title IV). It protects individuals having physical or mental conditions that substantially limit major life activity, a history of such a disabling condition, and who are regarded as having a disability. The ADA is intended to be construed in favor of broad coverage of individuals.
Although the text of the ADA does not specifically address the requirements for accessible polling places, Title II requires state and local governments to ensure full and equal voting opportunities to those with disabilities. In order to meet this obligation, state and local governments must ensure:
- physical access to polling places and voting areas;
- effective communication, including auxiliary aids and services such as the provision of sign language interpreters or materials in alternative formats; and
- reasonable modification of policies, practices, and procedures when necessary to accommodate individual needs, which could include curbside voting or voting from home.
The Department of Justice has published guidance on the application of the ADA to voting at ADA.gov, including a checklist for accessible polling places and information on common problems with parking, walkways, entrances, and voting areas.
The Help America Vote Act of 2002 (HAVA) specifically provides that voting must be accessible for individuals with disabilities, including nonvisual accessibility for the blind and visually impaired, and that each polling place have at least one accessible voting system in federal elections. According to HAVA, an accessible voting system is one that provides individuals with disabilities the same opportunity to vote privately and independently that others enjoy.
Other laws address specific barriers. The Voting Rights Act of 1965 requires election officials to allow a voter who has a disability to receive assistance from a person of the voter’s choice, and prohibits conditioning the right to vote on a citizen’s ability to read, write, attain a certain level of education, or pass a test. The Voting Accessibility for the Elderly and Handicapped Act of 1984 requires accessible polling places or alternative means of voting for those people in federal elections. Finally, the National Voter Registration Act of 1993 requires that all offices that offer state-funded programs or public assistance primarily to individuals with disabilities also provide them with the opportunity to register to vote in federal elections.
Despite these protections, barriers to voting persist. According to a 2017 report by the U.S. Government Accountability, “Voters with Disabilities: Observations on Polling Place Accessibility and Related Federal Guidance,” roughly two-thirds of the examined polling places had at least one potential barrier such as lack of accessible parking, poor paths to the building, steep ramps, or lack of a clear path to the voting area. Although most polling places had at least one accessible voting system, roughly one-third had a voting station that did not afford an opportunity for a private and independent vote. The report also noted that Department of Justice guidance does not clearly state the extent to which federal accessibility requirements apply to early in-person voting. People with disabilities also continue to report barriers including a lack of accessible election and registration materials prior to elections, lack of transportation to polling places, and problems securing specific forms of identification required by some states.
Laws are powerful tools to protect and promote voting rights for millions of Americans with disabilities, but they require enforcement to be effective. In its 2014 resolution, the American Bar Association urged federal, state, local, territorial and tribal governments and the courts to ensure that the electoral process and voting methods are accessible to persons with disabilities and that polling places are free of physical, technological, and administrative barriers. There are also opportunities to strengthen existing protections in ways that could increase voting equity, for example, clarifying the application of the ADA to the increasingly popular practice of early in-person voting. Finally, we must continue to educate state and local officials, poll workers, and the general public about the requirements of existing laws and ensure that they receive accessibility training.
Elizabeth Pendo is the Joseph J. Simeone Professor of Law at Saint Louis University School of Law and an expert in disability law, health care law and policy, and bioethics and the law. She is a member of the ABA Commission on Disability Rights, and of the State Bars of California and New York. She can be reached at [email protected].