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1.2. Voting rights and disability

Is Full Access Finally in Sight?

By Len Zandrow NSCIA Legal councel

The right to vote is perhaps the most cherished right in — and the hallmark of — a democracy.

In 1964, the U.S. Supreme Court ruled in Wesberry v. Sanders that "no right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live.

Other rights, even the most basic, are illusory if the right to vote is undermined."

Despite the fundamental and sacred nature of this right, access issues have often made disabled voters feel like second-class citizens.

As just one example, a Pennsylvania court in 2001 reported that only three percent of Philadelphia's 1,681 polling places were accessible to voters using wheelchairs.

As a result, voters with mobility impairments could not cast ballots where their neighbors voted and were forced to vote by absentee ballot or by alternative ballot at accessible polling places outside their precincts.

One year earlier, 43 of 44 polling places in upstate New York were deemed inaccessible.

In that case, the court catalogued accessibility problems in four areas:

  1. parking,
  2. pathways,
  3. poll entrance, and
  4. the interior of the site.

Parking accessibility deficiencies included insufficient access aisles to provide room to maneuver in and out of the vehicle, while pathway problems commonly involved non-level surfaces that made it difficult for people using walkers or wheelchairs.

An entrance was considered inaccessible if it lacked a needed ramp or featured a ramp without handrails, while an interior was noncompliant if its aisles were not wide enough for wheelchair use.

These problems at polling places are pervasive. A Florida-based task force which studied voting procedures after the 2000 presidential election estimated that 20% of the disability community was less likely to vote due to a lack of accessibility.

According to the task force, there are presently 33.7 million Americans of voting age with disabilities. If all polling sites were accessible, an additional 5 to 10 million of these disabled persons would probably vote.

Apart from access problems, confidentiality represents a separate area of discrimination. Legislation to protect voters with disabilities has proven inadequate.

Since 1984, the Voting Rights Act (VRA) and the Voting Accessibility for the Elderly and Handicapped Act (VAEH) have sought to "promote the fundamental right to vote by improving access for handicapped and elderly individuals to registration facilities and polling places for Federal elections."

When enacting this legislation, however, Congress compromised the privacy of disabled voters by relying heavily on the use of third-party poll workers despite the potential for influence and manipulation.

Six years later, Congress passed the Americans with Disabilities Act (ADA), which provides broader protection from discrimination in voting. None of these laws, however, guarantee disabled voters the right to cast secret ballots without assistance like their able-bodied neighbors.

Technological advances offer new hope for providing private, independent voting. A system manufactured by Hart InterCivic now enables manually-impaired persons to vote without help via assistive devices.

A "sip and puff" machine allows the voter to cast their ballot using only their breath. A "jelly switch" machine allows voters to activate a two-inch round switch with a hand, finger, pencil, or other body part or instrument.

The jelly switch is highly sensitive, requiring only a small amount of pressure.

A battleground state for voting rights, as well as for this year's presidential candidates, is Florida.

The voting procedures in this state have been under great scrutiny ever since the 2000 election, when it took five weeks of legal maneuvering and some recounting before Republican George W. Bush was declared president.

Last year, disability organizations challenged Florida officials' decision to certify voting machines which did not permit manually-impaired voters to cast ballots without assistance.

In an important ruling in August, 2003, a Federal District Court in Jacksonville suggested that voting rights may be subject to technological advances.

While access to third-party poll workers may have satisfied legal requirements in the past, a broader use of sip and puff and jelly switch machines may eventually be required in order to permit people with disabilities to vote unassisted.

In the Florida case, American Association of People with Disabilities v. Hood, the court denied the defendants-officials' motion for a legal judgment in their favor and ruled instead that disputed issues of accommodation would have to be decided by a jury trial. Appropriately, that decision would be left in the hands of the people.

Those who wish to register and vote in the upcoming presidential election this November 2nd and beyond should contact the clerk's office in their local city or town.

Ask whether your local polling place is accessible and, if not, what arrangements are necessary to obtain an absentee ballot. Do not be denied your most precious right.

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