Disability And Voting: An Analysis Of The Implementation Of The Help America Vote Act Of 2002 In Arizona

INTRODUCTION

There is no greater civic duty than to vote. Our representative form of government depends on it. The history of the United States is marked by each minority group understanding they may not be considered equal before the law or heard by their elected officials if they do not have the right to vote. For voters with disabilities it is no different. This article will provide a legal analysis of previous laws assisting persons with disabilities with the right to vote, and the Help America Vote Act of 2002 and the efforts aimed at its implementation in Arizona.

The type of discrimination that voters with disabilities face is unique. Rather than facing a poll tax or an education test which barred blacks and other minorities from voting through most of our history, voters with disabilities have faced physical barriers [1] to the polling place and been denied participation in the voting process because of an inability to actually read the ballot either through blindness or low vision or intellectual disability. Voters with disabilities have endured various violations of their voting rights around the country that include being asked to vote by absentee ballots due to inaccessible polling places, the practice of being joined in their voting booth by a volunteer who assists them, or in extreme cases, being denied their right to vote. The ability and right to vote has varied from precinct to precinct, county to county, and state to state. Even in 2004, Arizona's state constitution still prohibits those who are "adjudicated an incapacitated person" from voting. [2]

BACKGROUND

In 1965, Congress passed the Voting Rights Act of 1965 to protect every American citizen from racial discrimination in voting; [3] it was not until 1984 that Congress first addressed the unique barriers and disparities faced by persons with disabilities when it passed the Voting Accessibility for the Elderly and Handicapped Act of 1984. [4] This law generally requires that all polling places for federal elections must be accessible to persons with disabilities and the elderly. [5] However, if it is determined by the chief election official-in Arizona and most other states this official is the Secretary of State-that an accessible polling place is not available, then upon advance request of the voter, the chief election official may reassign the voter to an accessible voting place or provide an alternative means for casting a ballot on the day of election. [6] This can include voting by absentee ballot or even curbside voting. Each state is required to provide registration and voting aids in the form of instructions in large print, which must be conspicuously displayed at each permanent registration facility and each polling place, and provide information by telecommunications devices for the deaf such as TTY or TTD. [7] No medical certification is required for absentee ballot or for an application for one unless the state requires it for automatically receiving an absentee ballot on a continuing basis or if the voter is requesting an absentee ballot after the deadline has passed for requesting an absentee ballot. [8] The chief election officer is required to provide notice of availability of aids intended to assist the elderly and the disabled. [9] The United States Department of Justice or a private right of action may be used to enforce the provisions of the Act. [10]

Almost from the beginning, The Voting Accessibility for the Elderly and Handicapped Act ran into difficulties in implementation. Congress never appropriated any money to enact the legislation, and states did not take accessible polling issues very seriously. Implementation was sporadic at best at the state, county, and precinct level. The law basically failed in its attempt to provide a national standard by which persons with disabilities could reasonably expect their polling place to be accessible because the law granted the state's chief election official the authority to determine what constituted an accessible polling place without providing any guidelines. [11] In addition, the law failed to address issues of voting independently and privately.

Congress has also attempted to deal with the low voter registration of persons with disabilities by passing the National Voter Registration Act of 1993, also known as the "Motor Voter Act". This law requires all offices of State-funded programs that are engaged primarily in providing services to persons with disabilities to provide all program applicants with voter registration forms, to assist them in completing the forms, and to transmit completed forms to the appropriate state official, which in Arizona is the Secretary of State. [12] Enforcement may be either through the Unites States Attorney General or through a private right of action. [13]

Congress did not seriously deal with voting issues of the disabled until the aftermath of the presidential election of 2000 and the legal ramification of the Supreme Court's per curiam [14] decision in Bush v. Gore 531 U.S. 98 (2000). Bush v. Gore involved the hotly contested 2000 presidential election where 1,784 Floridian votes separated the two candidates. [15] The Florida Supreme Court ordered a recount of several contested counties. The Supreme Court stated that equal protection involves not only who has the right to vote, but also how that vote is exercised. [16] Once a state grants the right to vote on equal terms, it cannot value one person's vote over another by using arbitrary and disparate treatment. [17] Regarding the recount of the presidential election in Florida, the Court noted that "the standards for accepting or rejecting contested ballots might vary not only from county to county but indeed within a single county from one recount team to another". [18] The Court concluded that the unorderly Florida recount violated the fundamental principle of "one man, one vote" and ordered the recount to a halt. [19]

HELP AMERICA VOTE ACT OF 2002

In an effort to avoid another presidential election debacle and to assist the states in complying with the Bush v. Gore decision, Congress passed The Help America Vote Act of 2002 (HAVA). [20] HAVA deals with several voting issues. The main goal of HAVA is to provide uniform and non-discriminatory election technology and administration requirements. [21] HAVA also provides grants to states to replace punch card voting machines and lever voting machines. [22] It creates an independent Election Assistance Commission and provides payments to States and units of local government to assure access for voters with disabilities; [23] it also provides payments to each state's protection and advocacy system to ensure full electoral process for individuals with disabilities. [24]

In providing access to voters with disabilities, HAVA goes far beyond The Voting Accessibility for the Elderly and Handicapped Act by requiring that each voting system used in federal elections be accessible for persons with disabilities. [25] HAVA deals with disability access in two distinct areas: physical access of the polling place and access of participation to the voting process. Local governments are required to ensure polling place accessibility by making the path of travel, entrances, exits, and voting areas of each polling place accessible to persons with disabilities, including those who are blind or have low vision. [26]

In addition, the accessibility of the voting process must be done in a manner that provides for the same access and participation as other voters, including privacy and independence. [27] Each polling place can satisfy the requirement by making available at least one direct recording electronic voting system or other accessible voting system. [28] Polling places should have voting machines that "talk", and/or provide large print or Braille ballots and materials and provide interpreters for voters who are deaf or hearing impaired. Polling places should also provide for a simplified voting process for the elderly and those who have intellectual disabilities. Local governments are also required to provide persons with disabilities with information on accessibility of voting places, including outreach programs, and to train election officials, poll workers, and election volunteers on how to best promote access and participation of voters with disabilities in federal elections. [29]

In April of 2002, the Federal Elections Commission (FEC) developed voluntary voting standards for accessibility for vendors under FEC's Voting System Standards 2.2.7. [30] These standards were recommended by the Access Board, which is responsible for adopting Section 508 accessible information technology and Americans with Disabilities Act accessibility guidelines. [31] The United States Department of Justice has enforcement authority for the uniform and nondiscriminatory election technology and administration requirements that apply to States under HAVA. [32] In addition, States are required to establish a uniform and non-discriminatory complaint procedure to handle grievances. [33]

ARIZONA'S IMPLEMENTATION OF HAVA

Arizona's efforts at implementing HAVA's accessibility requirements began with completing the required state plan and passing necessary state legislation. Arizona's HAVA state plan addressed physical accessibility issues in a somewhat halfhearted manner. In allocating HAVA monies toward physical accessibility, the Secretary of State stated that only a small portion of HAVA monies would go toward physical site accessibility, "since polling places are private places," with a few exceptions such as the county recorder's office. [34] The Secretary of State instead would appropriate funds precinct by precinct based on the following criteria: the county's certification of costs for the improvements, whether or not there are sufficient electoral funds, and whether or not full funding from the federal government is appropriated. [35] The county election officials would be required to report on the number of polling places that are 100 percent accessible; for those that are not accessible, the county officials must explain what steps are being taken to ensure accessibility. [36] Prior to the 2004 election, county election officials were not required to report on physical accessibility even though they were required to inspect polling places. [37] In 2004, county election officials must include in their report to the Secretary of State certifying the election results and process, the number of accessible voting places and what steps are being taken to ensure voter accessibility. [38] In the end, the Secretary of State only appropriated 0.58 percent of the election fund to accomplish physical accessibility requirements. [39]

In order to improve voting accessibility under HAVA, the Arizona Legislature required the Secretary of State to ensure that voting systems allow the blind and visually impaired similar to vote in a similar way to those who are not blind and visually impaired. [40] This requirement only applies to cities and towns of 20,000 or more in population. [41] Voting systems must provide the voter with the ability to verify both visual and non-visual methods of selection. [42] The Legislature recommends that the non-visual methods for casting and verifying a selection made on a voting system include the use of synthesized speech, Braille, and other methods that do not require sight. [43] The Secretary of State is required to consult with non-profit organizations that represent the blind and visually impaired in the selection of non-visual voting systems. [44] The Legislature requires that every polling place have at least one voting device that is compatible with HAVA by January 1, 2006. [45] The Arizona Legislature also established an election systems improvement fund to assist in the implementation of HAVA. [46]

The Secretary of State accepted the duty of obtaining requests for proposals (RFP) for obtaining accessible voting machines and ensuring that the accessible machines are placed in all 15 counties by the 2006 federal election as required by HAVA. "ADIOS CHAD" is the program the Secretary of State is implementing to facilitate punch card buy out and voting machine accessibility. Nine counties (out of fifteen) in Arizona will need completely new election voting systems. The Secretary of State appropriated 27.64 percent (20.49 percent for acquisition and 7.15 for operational) of the state election fund to ensure voting machine accessibility. [47] In September of 2003, the Secretary of State awarded Diebold Election Systems the contract to provide optical scan and touch screen voting systems. However, the touch screen voting system will not be purchased until 2005 when federal money is available and many of the recent problems, such as leaving a paper trail are resolved.
Counties are conducting poll worker training on accessibility issues and disability sensitivity during their usual periods for poll worker training. The training consists of an individual with a disability who will relate his or her experiences at the polling place, speak about accessibility in general, and provide tips on how to accomplish physical accessibility on the day of the election, in case the polling place is not entirely accessible. This author has conducted some of these trainings and has found the response of poll workers very favorable.

The protection and advocacy system of the state is also funded by HAVA to provide a variety of activities related to accessibility and voting such as providing training and technical assistance, as well as support training in using voting systems and technologies and demonstrating and evaluating technologies. The Arizona Center for Disability Law (ACDL) is Arizona's protection and advocacy system. ACDL is coordinating training of poll workers by contacting people within the disability community to conduct the training. In addition, ACDL works with election officials on making websites accessible and developing a consumer friendly complaint process. ACDL does voter education through community outreach directly and through a contract with the Arizona Mental Health Association.

Currently, ACDL is recruiting disabled voters to conduct onsite accessibility surveys of polling places during the primary and general elections. The checklist covers the main concerns of HAVA relating to physical access. The checklist used for the 2004 primary is below.

[48]

Efforts by other Arizona disability organizations include access to the voter information pamphlet and expansive voter registration drives. Sun Sounds of Arizona, a radio station that broadcasts reading of newspapers for the blind, developed a program as a result of a grant from the Arizona Clean Elections Commission to provide access to the state's voter information pamphlet and candidates for the blind and visually impaired. A person may call into Sun Dial and receive an automated reading of the voter information packet, or an individual may access the voter information pamphlet on the web which can be read by a screen reader. [49]

In addition to Sun Sounds effort, all of Arizona's State Independent Living Centers conduct extensive voter registration drives in their local disability communities. The Arizona Technology Access Program (AzTAP), the state's tech act project, provides training to poll workers on accessibility issues and offers outreach to consumers with disabilities on HAVA's requirements.

Even with HAVA's mandates, persons with disabilities may not be able to go to the polls because of the severity of their disability. People with such severe disabilities are still entitled to vote by absentee ballot and may still utilize curbside voting. Persons with disabilities should contact their local election officials for further information.

CONCLUSION

HAVA addresses accessibility issues far more extensively than other federal legislation in the past and requires equal access for all voters. The recent Supreme Court decision of Tennessee v. Lane clearly indicates that the Court will hold state and local officials accountable under Title II of the ADA when persons with disabilities' fundamental rights, such as voting access and participation, are being violated. While the 2000 Presidential election may have created some difficulties, Congress and the disability community used the matter to improve voting access for all. Arizona's disability community has taken a proactive lead in implementing HAVA to ensuring the voting rights of Arizona's disabled population.

REFERENCES

1Tennessee v. Lane, 541 U.S.____ (2004) footnote 13.

2 Article 7, Section 2(C), Arizona State Constitution

3 42 U.S.C. §1973 to 1973aa-6

4 42 U.S.C. §1973ee-6(3)

5 42 U.S.C. §1973ee-1(a)

6 42 U.S.C.§1973ee-1(b) et seq.

7 42 U.S.C.§1973ee-3(a)(1)-(2)

8 42 U.S.C.§1973ee-3(b)(1)-(2)

9 42 U.S.C.§1973ee3(c)

10 42 U.S.C.§1973ee-4

11 42 U.S.C.§1973ee-3(a)(1)-(2)

12 42 U.S.C.§1973gg-5(a)(2)(B)

13 42 U.S.C.§1973gg-9(a)-(b)

14 Per curiam is a decision written in the name of the Court rather than by an individual justice.

15 Bush v. Gore 538 U.S. 98, 101(2000)

16 Id at 104-105

17 Id .

18 Id at 106.

19 Id at 110.

20 42 U.S.C. §15301 et seq.

21 42 USC §15481

22 42 U.S.C. §15302(e)(1)-(7) describes punch card voting machines as C.E.S., Datavote, PBC Counter, Pollstar, Punch Card, Vote Recorder, and Votomatic.

23 42 USC §15421; The focus of this article is on HAVA and voters with disabilities and Arizona's attempts to implement those aspects of HAVA, However, HAVA is an extensive act and covers a broad range of voting issues such as providing grants for research on voting technology improvements, establish a pilot program for testing equipment and technology, establish a National Student and Parent Mock Election, establish a Help America Vote College Program, establish a Help America Vote Foundation, and it deals with the voting rights of overseas citizens and military members.

24 42 USC §15461(a)

25 42 USC §15421(b)(1)

26 Id.

27 Id.

28 42 USC §15481(a)(3)(A)

29[29] 42 USC §15421(b)(2)

30[30] For further specification on FEC's accessibility voting standards see http://www.fec.gov/pages/vssfinal/v1/v1s2.doc;

31[31] For more information see http://www.access-board.gov/about/boardhistory.htm

32[32] 42 USC §15511

33[33] 42 USC §15512

34 Help America Vote Act, Arizona State Plan, Section 6(C), adopted May 15, 2003.

35 Id.

36 HAVA Arizona State Plan, Performance Goal 6: Physical Accessibility

37 Id.

38 Id.

39 HAVA Arizona State Plan, Section 6(C).

40 ARIZONA REVISED STATUTES §16-442.01(A)

41 Id.

42 ARIZONA REVISED STATUTES §16-442.01(B)(1)

43 ARIZONA REVISED STATUTES §16-442.01(B)(2)

44 ARIZONA REVISED STATUTES §16-442.01(C)

45 ARIZONA REVISED STATUTES §16-1447(A), The January 1, 2006 deadline corresponds with HAVA's requirement. 42 USC §15481(d)

46 ARIZONA REVISED STATUTES §41-129(D)

47 HAVA State Plan Performance Goal 2: Voting Accessibility

48 Reprinted with permission from Arizona Center for Disability Law. For a more extensive checklist, the Department of Justice has polling places accessibility manual which can be found at http://www.usdoj.gov/crt/ada/votingck.htm

49 More information can be found at http://www.sunsounds.org