Election Reforms Benefit Voters
with Disabilities

Laura J. Waterland, Senior Staff Attorney, Disabilities Law Program

One of the few positive things generated by the 2000 federal election debacle is the Help America Vote Act ("HAVA"), 42 USC § 15301-15545, passed by Congress in 2002. The Florida election, bogged down in a quagmire of voter challenges and disallowed votes, exposed the inconsistency, even on a precinct to precinct basis, in the way voters were determined eligible to vote, and how their votes were counted. Further review after the election showed that elections practices varied widely, within each state and among the states. As many as 6 million votes may have been lost in the 2000 election, according to the CalTech/MIT Voting Technology Project.

HAVA introduced election reforms for national elections encompassing voting systems [1], voter registration, provisional voting and a centralized grievance system. Perhaps the most fundamental element of HAVA is the insistence that voters be allowed to cast their votes independently and privately. Other key requirements are a statewide centralized voter registration system and a provisional ballot mechanism that allows voters whose registration is contested by poll workers to cast a provisional vote.

States must comply with the requirements of HAVA, with or without federal funding. There is a fairly generous appropriation attached to the bill, however, including a minimum of $5 million early appropriation ("Title I") to assist in the administration of elections and up to three years of funding, with a small state match, to assist states in complying with the substantive requirements of the law ("Title III" or "Requirements" payments.) If fully funded by Congress, Delaware anticipates receiving around $14 million over three years of Title III payments [2]. Delaware has already received the early Title I appropriation of $5 million.

From the disability perspective, HAVA should improve access to voting by people with disabilities in several ways. One, states are required to place a minimum of one voting machine, either a Direct Recording Electronic ("DRE")[3] device, or another voting system, that is accessible to all individuals with disabilities, at each polling place, by January 1, 2006. A commission (Election Assistance Commission, or "EAC") is established that in part sets standards for accessibility of voting systems [4]. Two, HAVA makes accessibility grants available to states to improve physical and nonvisual access to polling places, of which Delaware could receive $100,000 per year. HAVA also allows states to use Title I funds to improve polling place access. Three, the law establishes a Protection and Advocacy system to assist voters with disabilities, to support training of people with disabilities, and to evaluate voting systems. Other aspects of HAVA that will improve voter access include education and outreach. Finally, the centralized approach to policy and implementation that HAVA requires should standardize practices throughout the state, which will benefit all voters.

Voting access for people with disabilities has long been identified as problematic. A General Accounting Office survey conducted in 2001 revealed that 84% of polling places limit access to people with disabilities. In at least 27% of counties surveyed, accessibility was not a criterion used in polling place selection. The American Association of People with Disabilities (AAPD) estimates that while over 14 million voters with disabilities voted in 2000, more than 21 million did not. US Census figures indicate that, among voters with disabilities, more than 10 million voters could not cast their vote in private because of vision impairments, while thousands more with upper extremity impairments could not vote either independently or privately.

Earlier legislation has already spurred states to improve accessibility of voting systems and polling places. Other laws which impact the voting process for people with disabilities include the Americans with Disabilities Act, 42 USC Chapter 126 (1990) and the Voting Accessibility for the Elderly and the Handicapped Act, 42 USC §1973ee (1984)("VAEHA"). The ADA in the past has not been a particularly useful tool, because it has not been interpreted to require states to purchase new equipment, although its accessibility provisions apply to new purchases. The ADA also allows states to offer curbside and assisted voting as part of its requirement that only the system as a whole be accessible.

The VAEHA requires that polling places for federal elections be accessible, but authorizes the use of alternate means when no accessible place is available. The law also requires states to provide registration and voting aids for voters with disabilities. Even with these laws, many voters with disabilities remain unable to vote independently or privately, either because they cannot access the polling place or they cannot operate the voting machines without assistance.

Polling Place Accessibility

While HAVA encourages states to improve polling place accessibility and provides funds for that purpose, through grants and by use of Title I money, the law does not define "accessibility."[5] The section of the statute creating the accessibility grant component indicates that state governments should use the money to make "polling places, including path of travel, entrances, exits and voting areas accessible to individuals with disabilities." 42 USC §15421(b). One assumes that the states and advocates will look to the existing accessibility design standards, the ADA Standards for Accessible Design or ADAAG, promulgated by the US Architectural and Barriers Compliance Board, for guidance.

Delaware conducted a survey in 1999 of 146 polling places to determine whether existing sites were accessible or could be made accessible. Delaware uses a variety of sites, including schools, churches and civic halls. The survey identified a number of significant barriers to accessibility, particularly at fire halls, community centers and churches. The total statewide cost to remedy the deficiencies at the time was estimated at around $725,000. In the draft State HAVA Plan, accessibility improvements are budgeted for approximately $1 million of Title I HAVA funds.

There are several key areas where improvements must be made. Parking spaces for people should be of sufficient number and size, and appropriately marked. The spaces must be positioned on the accessible route to the polling site. Accessible routes should be marked clearly. Curb ramps on the accessible route should be of proper slope and width. Walkways must be level. Entrances that are not flush with the sidewalks must be appropriately ramped. Doors must be of sufficient width, have level thresholds, be adjusted so that people with disabilities can pull them, and have accessible hardware.

Inside the polling place, directions and voting instructions must be placed where people with vision impairments and those in wheelchairs can read them. Routes to the polling place should be clear of protruding objects. If other facilities are made available to voters, such as restrooms, then they should comply with ADAAG requirements as well. The approach to the voting machines should be unobstructed. In the polling place, any tables or voting booths should have sufficient clearances, reach, and clear floor space for people in wheelchairs. If necessary, machine buttons and levers should be adjusted to require only minimum pull strength. Printed instructions, in alternative formats, should be made available.

Voting Technology

To reiterate, States at a minimum must install at least one DRE voting system, or other voting systems equipped for individuals with disabilities, at each polling place by 2006. The voting system must be "accessible for people with disabilities, including nonvisual accessibility for the blind and visually impaired, in a manner that provides the same opportunity for access and participation (including privacy and independence) as for other voters." 42 USC §15481(a)(3)(A). The equipment must possess the same features that are required generally by HAVA. Consequently, the machine must be designed so that a voter with a disability can (1) verify in a private and independent manner the votes selected before the ballot is cast; (2) be able to change their ballot in a private and independent manner before the ballot is cast; and (3) be notified before a ballot is cast that the voter has selected more than one candidate for a single office. 42 USC §15481(a)(1).

The Federal Election Commission issued the most recent Voluntary Voting System Standards in 2002. Accessibility standards are found in the Functional Capabilities Section, Vol. I, Section 2.2.7. The FEC has incorporated specifications developed by the U.S. Access Board, and are based on federal regulations implementing Section 508 of the Rehabilitation Act, 36 CFR Part 1194, Electronic and Information Technology Accessibility Standards. These are the requirements that the states must follow in implementing HAVA's accessible voting system requirement, as well as ADA standards. All voting systems purchased under HAVA must be certified machines.

The FEC Voluntary Standards, which states are authorized to use [6] until the EAC issues guidelines (which will be the FEC Guidelines), have a number of common standards as well as standards specific to DREs. Section 2.2.7.1 requires all voting systems to have minimum and maximum reach requirements and floor space, as well as minimum and maximum height and reach requirements for operable controls.

DRE systems have additional requirements. Voters must not be required to bring their own assistive technology. The machine must have the following characteristics: provide audio information and stimulus and a wireless assistive coupling device; be operable with one hand and not require tight grasping, pinching or twisting; require a force of less than 5 pounds to operate; allow voters to adjust contrast, color and size of letters; and, for a device with touchscreen, provide a method using mechanically operated controls or keys that are tactilely discernable without activating the control. Any system that provides sound cues must also have visual cues.

Delaware purchased a DRE [7] called the Danaher ELECTronic 1242 (6T) in 1996. At the time, this machine was state of the art. It has many accessible features, including a tilt design that allows people in wheelchairs to vote unassisted, provided they have the upper extremity agility to do so. However, this machine does not satisfy new guidelines. Due to positioning, the write-in ballot feature on the machine cannot be accessed, even when tilted. Additionally, the machine lacks non-visual cues for the visually impaired.

Delaware will have to replace or modify its existing equipment to satisfy HAVA requirements. The proposed budget in the draft Delaware HAVA Plan dedicates up to $5,750,000 to purchase new equipment, although the state is also considering purchasing a module to attach to the existing equipment, or purchasing only one accessible machine per polling place. New DREs run an estimated $2,000 to $5,000 apiece.

The technologies are ever-evolving. Some new machines are portable, and can be placed in the lap of a voter in a wheelchair, for example. The eSlate [8] is not a touch screen; however, it is portable (weighing less than 8 pounds), and can be controlled by two tactile switches that voters can operate using their elbows or feet. An upgraded model, the Disabled Access Unit (DAU 5000) accommodates various devices that support voting for people with disabilities, including head movement switches and "sip and puff" devices, so that voters with severe disabilities can operate the equipment independently.

The TRACE Research and Development Center at the College of Engineering, University of Wisconsin, has developed a prototype cross-disability machine, which is designed to allow any voter to use the machine without instruction or assistance of a poll worker. This technology, called EZ Access, can be used on a variety of voting machines, including tablets and kiosks. It is designed to be easy to use for individuals with a range of disabilities, and the elderly. It also can be manipulated with a sip-and-puff device. [9]

The future for accessible voting technology is bright. E-Voting through the Internet, however, may eventually replace voting as we know it. As the CalTech/MIT researchers point out, touch screens and optical scanners are old technology. The British and Swiss have conducted pilot programs of internet voting for some local elections. The United States military is developing an internet-based voting component for its overseas personnel. If the obstacles of security, privacy and fraud can be surmounted, networked electronic voting may become the norm, and citizens will no longer have to "come out to the polls." Americans crave convenience and many would prefer to vote at home. In 1972, only 5% of voters were absentee; in 2000, 15% used absentee ballots. In Washington state, 50% of voters exercised the franchise by mail. Oregon has gone exclusively to mail-in ballots and will have to create polling places to comply with HAVA.

In the meantime, states will be phasing out non-accessible systems, such as punch cards and lever machines, and replacing these antiquities with state of the art equipment with federally-mandated features of accessible design. More and more voters with disabilities will be able to vote independently and privately, in the same manner as other voters.

[1] "Voting Systems" refers generally to the mechanical or electronic equipment used to cast a vote and to record and tally votes.

[2] Part of the early implementation process is the development of a State Plan for HAVA compliance. Delaware's draft Plan, at the date this article was written, is in the public comment process. The Plan can be obtained by contacting the Commissioner of Elections Office at 302-739-4277 or on the website at www.state.de.us/hava/.

[3] DREs are typically touch screen devices, similar to ATM machines.

[4] The Disabilities Law Program of Community Legal Aid Society, Inc. is the Protection and Advocacy program in Delaware. Our toll free number is 1-800-292-7980.

[5] Delaware law requires polling places to be "readily accessible" but does not define the term. 15 Del. Code §4512(b).

[6] U.S. Department of Justice, Civil Rights Division Interpretive Letter, March 17, 2003.

[7] Delaware was very much ahead of the curve in voting technology at the time. According to the National Organization on Disability, in 2000 only 9.1% of voting systems nationwide were DREs, while 34% were punch cards, 18.6% were lever systems, 27.3% were optical scanners, 1.6% paper ballots and 9.1% a mixture of systems. States that use punch card or lever systems are eligible under HAVA to receive additional funds to replace those disfavored systems. DREs are the most technologically advanced systems and provide for greatest probability of private and independent voting for people with disabilities.

[8] eSlate is manufactured by Hart InterCivic of Austin, Texas; www.hartic.com.

[9] The TRACE website address is www.trace.wisc.edu.