Introduction
The ability to participate in our democracy by voting in elections is a foundational right of citizenship that we cherish as Americans. No adult should be denied this right because of their age or ability. This principle is reflected in President Biden’s March 7, 2021, Executive Order on Promoting Access to Voting.
The Views from AARP
The American Association of Retired Persons (AARP)—representing millions of seniors—has recent polling showing that voters age 50+ will decide the 2024 elections. According to AARP, while their concerns are, understandably, with the future of Medicare and Social Security, they also worry about threats to democracy, the costs and burdens of caregiving, and the cost of prescription drugs. If seniors will decide the next election, as lawyers, don’t we have a civic duty to make sure they are all registered and able to vote?
In response to the concerns of seniors, AARP has also put together a list of recommendations to make voting easier. From the AARP Policy Book, they include:
- Allowing same-day voter registration;
- Opening additional polling locations;
- Establishing vote-by-mail programs (including no-excuse absentee in-person voting); and
- Allowing early voting (including no-excuse absentee in-person voting).
Voting at Skilled-Nursing Facilities
More specifically, with respect to older voters, AARP advocates on behalf of the 1.4 million that live in skilled-nursing facilities as follows:
“[p]olicymakers should improve access to voting for residents in long-term care facilities. This includes permitting and encouraging mobile polling. [Further][a] proxy should be able to return the ballot on behalf of the long-term facility resident.”
For additional information and recommendations on how to make it easier for seniors to get to the polls and vote, see the AARP Policy Book referenced above.
The Role of Congress and Implementing the Help America Vote Act
On October 29, 2002, President Bush signed the Help America Vote Act (HAVA)(Pub.L. 107-252). According to the Department of Justice (DOJ) website explaining HAVA, Congress intended to “make sweeping reforms to the nation’s voting process” in order to ensure that persons with disabilities be given equal opportunity to vote freely and independently.
As we know, many seniors have disabilities and what DOJ and United States Election Assistance Commission (EAC) recommend for those with disabilities can assist seniors getting to the polls, too. DOJ has not only litigated to implement HAVA but has also published a guide for poll accessibility. The guidebook includes a design for making access to voting places easier with low-cost, temporary ways to remove physical barriers.
The Bipartisan and Independent (EAC), which also has a role in implementing HAVA, published a report in July 2023 with their recommendations to make voting accessible. These include best practices for voter registration, accessible in-person voting, and accessible voting by mail. A survey by the EAC found that one in ten disabled voters in 2020 had trouble with their votes. As of 2022, the EAC had distributed $955 million in election security grants to states and territories. On August 1, 2024, EAC held National Poll Worker Recruitment Day.
Another agency working to implement HAVA is the Administration for Community Living (ACL), part of the Department of Health and Human Services. ACL has a State Long-Term Care Ombudsman Program to help if a person living in a long-term care facility such as a nursing home or assisted living facility is having difficulty exercising their right to vote. See The National Ombudsman Resource Center (NORC) for information on each state’s program. ACL also has a Voting Access Program created under HAVA that provides services to people with disabilities.
State Implementation of HAVA
Each state has its own plan to implement HAVA. For example, the Virginia State Board of Elections (SBE) announced its 2023 amendments to the State’s HAVA plan as follows:
“HAVA gives us a unique and historic opportunity to improve the election process in the Commonwealth. While Virginia has led the nation in implementing election reform initiatives over the years, there is much to be done to fully enfranchise our citizenry. The federal financial support authorized by HAVA will allow us to create an improved statewide voter registration system, replace antiquated voting equipment, improve polling place accessibility for individuals with disabilities, enhance the training of poll workers and election officials, give our military and other overseas Virginia residents improved opportunities to vote and supply voters with information about voting procedures, voting rights, and voting technology.”
However, problems remain. For example, the SBE of Virginia does not have the funds to ensure compliance with the ADA requirements for accessibility. “As of January 2002, 12.6% of Virginia’s precincts were not compliant based on the self-evaluation. As of January 1, 2003, these self-evaluations resulted in only 12 precincts (out of 2277 total) reported as out of compliance. While SBE has also begun site visits to verify the reports on the self-10 evaluations, budgetary considerations have precluded the audit program necessary to ensure 100% compliance.” (Id. at 5.)
In addition to the SBE, the Disability Law Center of Virginia, the designated Protection and Advocacy organization of Virginia, provides reports on poll accessibility. In their May 9, 2024 annual report to the SBE, the Law Center found, based on its annual survey on poll accessibility, that curbside voting causes minimal obstacles and increases access to polls for Virginians with disabilities. However, the survey found that some locations did lack helpful directions for curbside voting. Inadequate signage was a particular issue as well as lack of accessible entrances, doors and parking and competent operation of accessible voting machines. As the Executive Director of the Center, Colleen Miller, noted, “[f]ull access to the voting booth is an issue that must be addressed immediately.” Access is important especially for seniors with disability or mobility issues.