In-person voting during the Wisconsin primary. Photographer: Thomas Werner/Bloomberg
As the Trump administration and a mix of governors and state legislatures try to suppress voting by mail across the Union, a coalition of disability rights groups and citizens with disabilities is still fighting for full enfranchisement, 30 years after the passage of the Americans with Disabilities Act. The latest battleground is New York State, where the group has filed suit in the Southern District of New York against the state’s Board of Elections (BOE) for discrimination against New Yorkers with disabilities.
While the state’s mail-in Absentee Voting program has recently been expanded in response to Covid-19 to enable voting by mail rather than by visiting a public polling place, no provision has been made for those who are unable to privately and independently mark a paper ballot. And although active duty military and citizens overseas can cast their votes electronically, that option is simply not allowed for the disabled.
Along with several citizens, the plaintiffs’ coalition includes New York State affiliates of the National federation of the Blind (NFB), the American Council of the Blind (ACB) and the Center for Independence of the Disabled, all backed by their national offices. They are represented by law firms including Disability Rights Advocates, Disability Rights New York, and Brown Goldstein Levy LLP, a leading firm in disability rights advocacy.
The lawsuit charges that the BOE continued to exclude an accessible absentee option for the blind and people with other print disabilities. Such exclusion leaves affected voters with no choice other than to go to public polling places, potentially exposing themselves to the new corona virus and the threat of severe illness or death it carries. Ironically, avoiding this outcome is precisely why the state BOE is expanding access to mail-in ballots for non-disabled voters.
“People just want to vote,” says eve Hill, an attorney with Brown Goldstein Levy. Hill represents the NFB of New York State and plaintiff Rasheta Bunting, the blind New Yorker who instigated the case. “It’s important for people who want to vote to be able to vote.”
A spokesman for the New York State Board of Elections responded that he had no comment. A hearing is scheduled for Friday – and a primary is scheduled for June 23rd.
This disconnect is what Karen Gourgey, a blind plaintiff, said pushed her over the edge to join the lawsuit. “When Governor Cuomo published an executive order saying no one should have to go to the polls in fear for their health, I was, ‘no one but whom?’ That was my bottom line.” Referring to the recent election in Wisconsin that forced voters to go to public voting stations, she added, “I’m not compromising my health for anything.”
The New York State complaint is neither an isolated situation nor a new voting rights issue. Legislation requiring states to make electronic absentee ballots available to the military and overseas citizens was enacted in 2009 – nearly 20 years after the passage of the ADA -and yet it included no provision for voters with disabilities. While such balloting methods can easily be designed to include people with disabilities, only a handful of states have moved to do so, often following legal action.
“We’ve told the states we’re coming,” says Hill. Last September, the national office of NFB sent letters to some 40 Secretaries of State calling on them to make absentee balloting accessible – and this was well before the threat of Covid-19 made in-person voting a public health hazard. The Federation received replies from only three states, two of which, Alabama and Minnesota, said that legislation would be required to extend accessible absentee voting to the blind and disabled, while Virginia said that it is cognizant of the requirements of the ADA, and that it is working to make its electronic voting system accessible.
Just last week, along with its action against New York state, the NFB filed a similar suit in Pennsylvania and also reached a consent decree with Michigan that requires that state to provide accessible absentee ballots to blind voters in all future elections. In March 2018, after the Sixth Circuit Court of Appeals ruled that a lawsuit against the state of Ohio could go forward on similar grounds, Ohio began requiring that absentee ballots must be accessible to voters with disabilities. And in 2014, a decision by the Court of Appeals for the Fourth Circuit led Maryland to develop an accessible remote ballot marking system - which Maryland has agreed to make available free to other states. The Maryland system “is entirely homegrown,” says Christina Brandt-Young of DRA, who also represents Karen Gourgey.
Despite these precedential years-old rulings, the vast majority of states are still simply ignoring the rights of their blind and disabled citizens.
There is a long running gap between the percentage of people with disabilities who vote and that for voters without disabilities. According to a 2018 study of mid-term voting by the Program for Disability Research at the Rutgers School of Management and Labor Relations, an estimated 2.35 million voters with disabilities stayed away from the polls nationwide. This cohort surely included many voters of color, who are often the target of voter suppression efforts and thus may be doubly constrained in states with inaccessible absentee balloting structures. The growing population of seniors who find themselves with diminished vision, hearing and mobility and increasing vulnerability to Covid-19 are also likely to be disenfranchised by an absence of accessible absentee ballots.
The outcome of the lawsuit in New York State is likely to be watched by the other states in the firing line of disability rights activists fighting to vote privately and independently.
“Paper and pencil was an appropriate way to vote in 1920,” says Brandt-Young. “It’s 2020. It’s the law. The BOE has to do better.”
No question: On my own recent visit to my local polling place, a poll worker handed me the ballot I was to bring to an accessible machine for marking. “Just tell me who you want to vote for,” he said blithely. “I’ll mark it for you.”
Gee, thanks. But no thanks.
