For Americans who are blind or have low vision, the right to vote independently has been hard fought and evolved over the last five plus decades. Early stages of accessible voting began with the Voting Rights Act of 1965 and eventually led to the Help America Vote Act of 2002. These laws cover everything from registering to vote to voting in person, or voting via absentee ballot. The following sections will walk you through the laws — and the rights afforded by those laws — as they pertain to voting for individuals with disabilities. But it should be noted that such rights and abilities continue to evolve even today.
Those who are blind must be able to register to vote independently. Once the person has done so, they must be able to vote, either in person at the polling place or via an absentee ballot, privately and independently. Voters should not have to rely on another person to complete any of these tasks. This right to vote privately and independently includes the right to cast, review, and verify one’s vote.
The following sections provide a walk-through of voters’ rights, how they can choose to vote in the upcoming elections, information to address COVID-19 health and accessibility concerns, and what work ACB is doing to secure the voting rights of people who are blind and low vision.
Laws That Have an Effect on Voting
The Americans with Disabilities Act
Title II of the Americans with Disabilities Act (ADA) applies to state and local government entities and protects qualified individuals with disabilities from discrimination on the basis of disabilities in services, programs, and activities provided by state and local government entities. Title II extends the prohibition on discrimination established by Section 504 of the Rehabilitation Act of 1973 as amended (29 U.S.C. 794) to all activities of state and local governments regardless of whether these entities receive federal financial assistance. State or local governments must provide different or separate aids, benefits, or services to individuals with disabilities than is provided to others, unless such activity is necessary to provide qualified individuals with disabilities with aids, benefits, or services that are as effective as those provided to others. Voting and voter registration are covered under Title II.
According to Article I, Section 4 of the U.S. Constitution, the authority to regulate the time, place, and manner of federal elections is up to each state, unless Congress legislates otherwise. Consequently, each individual state develops and carries out voting practices and procedures. Thus, states are responsible for accommodating state residents with disabilities under the ADA.
Under regulations adopted by U.S. Department of Justice in 2010, governmental bodies are required to ensure that communications with individuals with disabilities are as effective as communications with other people. Information on ballots is a form of communication. Governmental bodies are also required to provide appropriate auxiliary aids and services to individuals with disabilities when necessary for them to have an equal opportunity to participate in and enjoy the benefits of the service or program (28 C.F.R. 35.160). Auxiliary aids and services are required to make voting processes accessible for blind and visually impaired voters.
Rehabilitation Act of 1973
The Rehabilitation Act of 1973 (Rehab Act) is a federal law designed to remedy discrimination by the federal government and organizations receiving federal funding. Section 504 prohibits federally funded organizations from discriminating against individuals on the basis of disability. It applies to all organizations receiving federal grants. This includes state and county Boards of Election. Section 504 provides that “no otherwise qualified individual with a disability in the U.S. shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance or under any program or activity conducted by any executive agency” (29 U.S.C. 794). State voting systems receive some level of federal funding, and as a result, must adhere to Section 504 as well.
Section 504 includes making reasonable accommodations for people with disabilities and providing auxiliary aids at no additional costs.
Help America Vote Act of 2002
The Help America Vote Act of 2002 (HAVA) established the U.S. Election Assistance Commission (EAC). The EAC was established to assist states in improving voting systems and voter access. It established a clear mandate that all Americans with disabilities be given the same opportunity to vote as freely and independently as other voters. The bill contained landmark provisions requiring the secure, private, and independent casting of ballots for voters with disabilities. It also entrusted the EAC with leadership in this area.
The EAC has worked closely with election officials to promote HAVA’s access requirements and to foster a climate of understanding in providing assistance for voters with disabilities. In support of this effort, the EAC also engages voters with disabilities who provide vital information that informs election system and administration improvements.
The EAC’s Voting System Testing and Certification Program works directly with expert stakeholders to ensure voters with disabilities have access to election systems that meet stringent national standards. The guidelines significantly increase overall requirements for voting systems and expand access including opportunities to vote privately and independently.
The Voting Rights Act of 1965
Under the Voting Rights Act of 1965, Section 208 provides assistance for voters with disabilities. Any voter needing assistance is allowed to have an individual of their choice accompany them into the polls.
Accessible Voter Registration
National Voter Registration Act
The National Voter Registration Act of 1993 was developed to increase the historically low rate of registered disabled voters in the United States. The registration and participation of people with disabilities in the voting space with significantly low. The National Voter Registration Act (NVRA) requires all offices that provide public assistance or state-funded programs that primarily serve people with disabilities to also provide the opportunity to register to vote in federal elections. These offices must provide registration forms, assisting voters in completing the forms, and transmitting completed forms to the appropriate election officials. In a 2011 case that utilized the NVRA, the U.S. Department of Justice reached a settlement agreement with the state of Rhode Island that required state officials to ensure that voter registration opportunities were offered at all disability service offices in the state, and to develop and implement training and tracking programs for those offices.
The Americans with Disabilities Act
The ADA requires states to ensure that all aspects of the voter registration process are accessible to individuals with disabilities. This includes online registration processes. Oftentimes, when registering online, the process is inaccessible with screen-reading software. This violates Title II of the ADA.
Prior to the adoption of the Help America Vote Act (HAVA) in 2002, blind and visually impaired people did not have the right to vote independently and privately. Before the passage of HAVA, blind individuals would have to tell another person who could see who they wanted to vote for. This person could be a friend or family member, or it could be an actual poll worker. Under the Voting Rights Act of 1965, people with disabilities were given the right to gain assistance from another person. Fortunately, HAVA was signed into law on October 29, 2002 by then-President George W. Bush. The law requires states to update their voting machines to be accessible for all voters. Further, under HAVA, at least one accessible voting machine must be present at each voting site. These voting machines provide accessible settings that both display the ballot in large print, as well as output the ballot in audio formats. Although the machines are provided for blind and visually impaired people, they can also be used by any voter who chooses to do so. Privacy at these voting booths is required at all sites. Poll workers are required to go through training to understand how to work the machines.
HAVA sets forth required standards for voting machines. When a person utilizes such a machine, he or she must be able to verify the vote in a private and independent manner, be able to change the vote independently and privately, and the machine must notify the voter of an overvote. HAVA also makes election processes more uniform. Title III of the law outlines the requirements to be met in developing standards and procedures for a voting system.
In addition to HAVA, the U.S. Department of Justice promulgated regulations for the Americans with Disabilities Act that apply to voting sites and procedures. Title II regulations under of the ADA call for auxiliary aids and services. Under the regulations, state and local Boards of Election must provide auxiliary aids and services to provide voters with disabilities an equal opportunity to participate in and benefit from the programs and services offered by the Boards of Election in a manner that protects the privacy and independence of voters with disabilities. These new regulations provided state and local governments regulations to implement during voting procedures. It took the ambiguity away and set specific standards for voting systems to fulfill.
Remote Absentee Voting
In National Federation of the Blind v. Lamone (Lamone), the court found that states are mandated by the ADA and the Rehab Act to provide alternative accommodations. The court held that the Board of Elections’ decision denied the disabled plaintiff’s meaningful access to the state’s absentee ballot voting program. It said that state residents could use computer technology to vote, also known as online ballot marker tools. The court also found the tool to be secure. Via the Lamone method, disabled voters fill out their ballots online and then must print the ballot, put it in a labeled envelope, and mail it in.
State and local advocacy groups have now successfully used the legal framework from Lamone in numerous state advocacy projects, including West Virginia, Colorado, New Jersey, Delaware, and the District of Columbia. In West Virginia, ACB, the Mountain State Council of the Blind, and voting rights advocates moved for an accessible method for blind voters to vote via a remote absentee ballot. Before 2020, West Virginians had no accessible method to vote via a remote absentee ballot. Legal advocates stated that military and overseas citizens had the ability to vote electronically, and thus the precedent was set for an alternative form of voting. The West Virginia legislature passed Senate Bill 94, which amended state legislation to allow for accessible absentee voting practices for individuals with disabilities. The bill was signed into law by Gov. Jim Justice on February 3, 2020.
In the state of New York, via Hernandez v. New York, a federal judge approved a preliminary injunction settlement between the New York State Board of Elections and plaintiffs, including ACB of New York, that provided voters a more accessible remote absentee ballot system for the June 2020 primary election. The settlement only applied to the June primary. The court case will proceed to guarantee voters with disabilities equal access to the poles for the November 2020 general election. Under the original settlement, a voter with a print disability can request an accessible remote absentee ballot online. Then, the accessible ballot will be sent via email, as well as sending an envelope with postage to the voter. The voter completes the ballot electronically and prints it out. The voter then signs the envelope and puts it in a bigger envelope that is provided by the state. Although this is a significant win, the case will move forward. The intent is to make the process fully accessible, where voters may privately and independently receive, mark, verify, and submit their ballot electronically. Similar temporary systems have been agreed upon for the primary elections in Michigan and Pennsylvania.
How to Take Action as a Voter
The above information is a primer and is not intended to provide an exhaustive overview of voting laws and regulations for every state. To learn about the election process in your state and county, contact your state or local elections officials. The U.S. federal government maintains a website to help individuals find useful information from their state board of elections: https://www.usa.gov/election-office.
In preparation for voting in the 2020 primary and general elections, the Centers for Disease Control and Prevention (CDC) and the Election Assistance Commission (EAC) have provided health and safety guidance for voters and pole workers in response to COVID-19.
The CDC recommendations include: expanded guidance on changes to operations, procedures, and facilities for polling locations; added reminders to maintain accessibility; and, added recommendations for voters: https://www.cdc.gov/coronavirus/2019-ncov/community/election-polling-locations.html.
The EAC is working with federal partners and election officials to make sure elections are accessible, secure, and accurate, and that voters are safe. The EAC is compiling and offering general and state-specific resources to pole workers and voters at: https://www.eac.gov/election-officials/coronavirus-covid-19-resources.
If you have an accessibility issue related to privately and independently completing any aspect of the voting process, including registration, in-person voting, or remote absentee voting, share your experience or concern with your state and local elections officials to determine what if any alternative procedures exist. If your issue remains unresolved, contact your ACB state affiliate and share your experience. Your state affiliate may be working to address accessible voting already, and sharing your personal experience may help them address systemic changes to the voting process to increase accessibility. A full list of ACB state affiliates is available at: https://acb.org/state-affiliates.
Contact your state Protection and Advocacy (P&A) agency to share your experience and learn about the voting rights work they are doing. The National Disability Rights Network (NDRN) is the nonprofit membership organization for the federally mandated P&A systems. The P&A network does voter access work in every state and territory – helping people with disabilities register to vote and educating voters about their individual rights and participating in the elections process. More information about NDRN, including contact information for the P&A in every state and territory, is available at: https://www.ndrn.org/issues/voting/.
Finally, share your experience with the ACB National Office. Hearing from our members and voters who are blind and low vision helps us track changes in the voting landscape. The ACB Advocacy and Governmental Affairs team may be reached by calling: 202-467-5081, or by emailing: firstname.lastname@example.org.
ACB Voting News
August 31, 2020 – Alexandria, VA – The Commonwealth of Virginia committed to making the November 2020 election accessible and safe for voters who cannot mark a paper ballot privately and independently due to disabilities such as blindness. As a result of the lawsuit and preliminary injunction filed by several voters with disabilities, the American Council of the Blind of Virginia, and the National Federation of the Blind of Virginia, Virginia has agreed to provide an absentee ballot option that is accessible and can be marked electronically in time for the November election.
July 27, 2020 – Raleigh, NC – Today, disability organizations filed a lawsuit against the North Carolina State Board of Elections (“NCSBOE”) for excluding North Carolinians with disabilities from their Absentee Voting program. The lawsuit charges the state agency with discrimination against voters who are unable to independently and privately mark a paper ballot due to vision disabilities.
July 26, 2020 – Tallahassee, FL – The Secretary of State, the Supervisors of Elections throughout the State of Florida and the Florida Council of the Blind have reached a settlement in the ADA voting rights case, Williams v. DeSantis and Nielsen v. DeSantis, and ensured that the blind and print impaired will be permitted to complete a vote by mail secretly and independently using their computer.
July 28, 2020 – Alexandria, VA – On the heels of the 30th anniversary of the Americans with Disabilities Act (ADA) and the 35th anniversary of the Virginians with Disability Act, a coalition of disability organizations and individual voters sued the Commonwealth of Virginia for excluding Virginians with disabilities from absentee voting in November.
On behalf of the undersigned organizations, which represent and work to advance the rights of people with disabilities, we urge Congress to protect the rights of voters with disabilities during the COVID-19 pandemic. The Health and Economic Recovery Omnibus Emergency Solutions (HEROES) Act takes critical steps towards voting access, but now is the time to make every step of our voting system more accessible to all eligible voters, while protecting the health and safety of every voter.
June 3, 2020 – New York, NY – A federal court has approved an agreement between the NYS Board of Elections (NYS BOE) and disability groups that provides voters a more accessible absentee ballot for the upcoming June 23 Primary Election.
“Individuals with disabilities have a right to full participation in voting, including absentee voting,” stated Eric Bridges, Executive Director of the American Council of the Blind. “Persons with disabilities have fought for decades for their right to vote privately and independently. Now, especially in light of COVID-19, such persons are fighting for their right to vote via absentee ballot.”
On May 22, 2020, a coalition of disability organizations filed a lawsuit against the New York State Board of Elections (“NYS BOE”) for excluding New Yorkers with disabilities as their Absentee Voting program expanded in response to COVID-19.
May 4, 2020 - For the first time ever New Jersey is offering a secure mobile voting option for voters with disabilities in direct response to COVID-19 voting concerns.
April 28, 2020 - Election officials nationwide are preparing for what may the highest election turnout in modern history in the middle of a pandemic. In response, several states will be turning to a relatively new and untested form of Internet-based voting to aid the voters who may have the most trouble getting to the polls.
ACB and Other Disability Advocacy Organizations Bring Voting Rights Complaint before Department of Justice
April 21, 2020 - The American Council of the Blind, along with its New York affiliate and other disability advocacy organizations, has brought a complaint before the U.S. Department of Justice, Disability Rights Section.
April 13, 2020 - On Friday, April 10, ACB and more than 75 national, state and local disability and civil rights organizations sent a letter urging Congress to protect the voting rights of people who are blind and disabled during the current pandemic.
On Monday, February 3, West Virginia Governor Jim Justice signed into law Senate Bill 94, a bill to ensure that all voters in West Virginia are guaranteed access to the ballot box, at polling locations and when voting absentee.
A video by The U.S. Election Assistance Commission. Virtual Roundtable to Assist Voters with Disabilities and Election Officials with EAC Commissioner Thomas Hicks, Michelle Bishop (Disability Advocacy Specialist for Voting Rights, The National Disability Rights Network), Tina Barton (City Clerk, City of Rochester Hills, Michigan), Clark Rachfal (Director of Advocacy and Governmental Affairs, American Council of the Blind), Anthony Akamine (Voting Services Specialist, Hawaii Office of Elections) and Kristen Uyeda (Ballot Operations Section Head, Hawaii Office of Elections). Recorded on July 2, 2020.
In this video, activist, writer of the popular Crutches and Spice blog, and Director of Communications at Disability Rights Pennsylvania Imani Barbarin discusses what drives her political activism. Imani explains that as a black woman with a disability, everything politicians and policymakers do impacts her life. But, too often, those same policymakers fail to reach out to people with disabilities, especially those who are people of color. Imani puts it directly, saying, "I’m a disabled black person, so that means every single thing that happens in a legislative session… has an impact on my ability to move around society."
In this video, activist, former congressional campaign staffer, and current Disability Rights New York staff member Zach Borodkin discusses what motivates him as a person with cerebral palsy to be politically active. Zach explains that the exclusion of people with disabilities from conversations about policies that will directly affect their lives leads to disenfranchisement and bad policies.
Democracy Summer is back with a free virtual live recorded event about the 30th anniversary of the Americans with Disabilities Act (ADA)!