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Voice of Experience

Voice of Experience: September 2024

Efforts to Protect Accessibility of the Electoral Process

Jessica Brock

Summary

  • While recognizing the voice of every person seems central to what it means to be an American, it is only in very recent history that every American has had the right to vote.
  • The disability rights community has fought hard to secure many provisions aimed at making the electoral process accessible for everyone.
  • The ABA has made numerous efforts to protect the right to vote, including protecting an accessible electoral process.
Efforts to Protect Accessibility of the Electoral Process
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The right to vote is one of the most treasured privileges of citizenship.  Voting is not just about casting a ballot.  The right to vote includes the entire electoral process, from voter registration to electing a candidate.  While recognizing the voice of every person seems central to what it means to be an American, it is only in very recent history that every American has had the right to vote.

Brief History of the Right to Vote

Much advocacy has been done to ensure this fundamental right belongs to every American rather than a privileged few:

  • 1870 – Congress passed the 15th Amendment to the Constitution, stating that the right to vote could not be denied based on race.
  • 1920 – Congress passed the 19th Amendment to the Constitution, granting women the right to vote.
  • 1964 – Congress passed the 24th Amendment to the Constitution (ratified in 1964) abolishing poll taxes.
  • 1965 – Congress passed the Voting Rights Act, which includes protections for voters with disabilities.
  • 1966 – The Supreme Court ruled, in Harper v. Virginia Bd. of Elections, that poll taxes are unconstitutional.
  • 1971 - Congress passed the 26th Amendment to the Constitution, lowering the voting age from 21 to 18 years of age.
  • 1975 – Congress amended the Voting Rights Act to protect members of language minority groups.
  • 1982 – Congress amended the Voting Rights Act to make voting more accessible for older adults and people with disabilities.
  • 1984 – Congress passed the Voting Accessibility for the Elderly and Handicapped Act of 1984, requiring accessible polling places in federal elections.
  • 1990 – Congress passed the Americans with Disabilities Act in which Title II ensures that people with disabilities have a full and equal right to vote.
  • 1993 – Congress passed the National Voter Registration Act requiring states to allow people to register to vote when they get their driver’s licenses and by mail.  The Act also requires programs that primarily serve people with disabilities to offer voter registration for federal elections.
  • 2002 – Congress passed the Help America Vote Act specifying minimum accessibility standards for polling places and voting equipment.

This timeline of voting rights legislation is very brief and abbreviated, but it illustrates a few critical points.  One, it is only in very recent history (the past 60 years) that every American has had the right to vote.  Take that in.  Only in the past 60 years has every American had the right to vote.  Two, major legislation focused on protecting access to the polls for people living with disabilities has only come in the last 40 years.  As Dr. Martin Luther King, Jr. said, “The arc of the moral universe is long, but it bends toward justice.”  The arc of voting rights bends toward justice through the hard work and advocacy of many, including many in the disability rights community. 

Capacity and Voting

The disability rights community has fought hard to secure many provisions aimed at making the electoral process accessible for everyone.  While a number of legal protections have been put in place to ensure that voting is accessible and equitable, there is still work to be done.  States can set laws governing voter eligibility so long as they do not violate federal protections and regulations.  For example, most states have rules restricting voter eligibility for people with “mental incapacity.”  States interpret and label capacity with a range of terms, many antiquated and disrespectful of persons with developmental disabilities.  In some states, restricting voter eligibility based on capacity has resulted in a blanket denial of the right to vote for persons subject to guardianship. 

In 2007, the American Bar Association adopted the following Recommendation about voting eligibility based on capacity:

State Constitutions and statutes that permit the exclusion of a person from voting on the basis of mental incapacity, including guardianship and election laws, should explicitly state that the right to vote is retained, except by court order where the following criteria must be met:

  1. The exclusion is based on a determination by a court of competent jurisdiction;
  2. Appropriate due process protections have been afforded;
  3. The court finds that the person cannot communicate, with or without accommodations, a specific desire to participate in the voting process; and
  4. The findings are established by clear and convincing evidence.

The ABA recognizes that blanket restrictions on the right to vote based on incapacity are rooted in ableist thinking.  These restrictions make unjustified assumptions about a voter’s capabilities.

Protecting Accessibility of the Electoral Process

There are other aspects of the electoral process that can limit accessibility, including: limited and inaccessible voting locations and restrictions on voting methods.  For example, early voting, voting by mail, and drive-by voting are all methods that make voting more accessible.  However, some states are making it more difficult to access voting by restricting voting methods like early and absentee voting.  These restrictions disproportionately affect people with disabilities, and some of these restrictions have been the focus of disability rights litigation.

The Voting Rights Act of 1965 was passed as one of several civil rights laws in the 1960s, and it has been amended several times since.  The primary purpose of the Voting Rights Act in 1965 was to address racial discrimination in the electoral process.  In the 1982 amendment of the Voting Rights Act, Congress added Section 208 that protects voting rights for people with disabilities.  It requires states to accommodate voters who need assistance casting their ballots.  Section 208 of the Voting Rights Act provides a cause of action for violations of the provision; these claims can be brought by individuals as well as organizations that support people with disabilities.

Many lawsuits have been filed under Section 208 of the Voting Rights Act.  One example is a lawsuit brought against the State of Alabama claiming that Alabama’s Senate Bill 1 violates Section 208 of the Voting Rights Act by criminalizing certain types of assistance with the absentee ballot process.  Under Alabama’s bill, people with disabilities would not be able to freely choose who assists them with voting.

The Help America Vote Act of 2002, like the Voting Rights Act, is another law protecting the rights of people with disabilities in the electoral process.  The Help America Vote Act established the U.S. Election Assistance Commission.  The EAC is an independent, bipartisan commission “whose mission is to help election officials improve the administration of elections and help Americans participate in the voting process.”  Along with Rutgers University, the U.S. Election Assistance Commission has completed a series of studies on voting and people living with disabilities.  Their most recent study was released following the 2022 elections.  Some of their key findings include:

  • 1 in 7 voters with disabilities encountered difficulties voting in 2022.
  • The likelihood of difficulties voting in person in 2022 was 20% among people with disabilities compared to 6% among people without disabilities.
  • The likelihood of difficulties voting with a mail ballot was 6% among people with disabilities compared to less than 1% among people without disabilities.
  • Voting difficulties were most common among people with vision and cognitive impairments.

It is vital that the U.S. Election Assistance Commission, Rutgers University, and other committed groups continue to monitor voting accessibility to ensure everyone has access to the electoral process.

ABA Advocacy for Voting Accessibility

The American Bar Association is among those organizations working to ensure that the electoral process is accessible.  The ABA has made numerous efforts to protect the right to vote, including protecting an accessible electoral process.  One need look no further than the ABA Election Administration Guidelines and Commentary.  The ABA Standing Committee on Election Law regularly updates the guidelines, and in 2023, those updates included best practices around the rights and needs of disabled voters. 

The ABA Commission on Disability Rights and the ABA Standing Committee on Election Law have done some terrific work to ensure voting access.  In 2013, the ABA’s Standing Committee on Election Law looked at the experience of voters with disabilities and found that those voters continue to face barriers to the polls.  The ABA Standing Committee on Election Law worked with the ABA Commission on Disability Rights to craft an ABA Resolution that would 1) increase awareness around barriers to voting and 2) propose practical recommendations to eliminate accessibility barriers.  The result was the passage of Resolution 113B by the ABA House of Delegates in 2014.  Resolution 113B states:

RESOLVED, That the American Bar Association urges federal, state, local, territorial and tribal governments and the courts to ensure that the electoral process, including voter registration and voting methods, is accessible to persons with disabilities and that polling places are free of physical, technological, and administrative barriers.

FURTHER RESOLVED, That the American Bar Association urges federal, state, local, territorial and tribal governments to use all appropriate means to improve enforcement of voting rights for persons with disabilities.

FURTHER RESOLVED, That the American Bar Association urges all election officials to ensure that election personnel and volunteers receive accessibility training and that persons with disabilities are actively encouraged to serve as election officials and volunteers.

The accompanying report, written by the ABA Standing Committee on Election Law and the ABA Commission on Disability Rights, is a wonderful, thoughtful primer on accessibility in the electoral process. 

More recently, the ABA Commission on Disability Rights has interviewed three experts on voting accessibility.  The conversation, Experts Weigh in on Voting Accessibility, is a must-read ahead of the election.  Kenia Flores, Voting Access and Election Protection Fellow at Detroit Disability Power and Manager of Government Relations at Learning Ally; Michelle Bishop, Manager for Voter Access and Engagement at the National Disability Rights Network; and Ben Hovland, Chairman of the U.S. Election Assistance Commission (EAC) talk about barriers they foresee in the 2024 electoral process and how voting accessibility is of concern to everyone, not just the disability rights community.

“Sometimes it feels like people only care about ensuring access when they’re disabled or because they have a disabled family member, and I like to remind folks that anyone can become disabled at any time for any reason. This is not to scare anyone but is a reminder that accessibility benefits everyone.” – Kenia Flores

It is the responsibility of everyone to work for an accessible electoral process, and it is the responsibility of everyone to ensure all voters can participate and vote.

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