Contemporary voting rights controversies through the lens of disability.

• Author: Belt, Rabia
• Position: Introduction through IV. Remedies, p. 1491-1520

Introduction I. Who Are Voters with Disabilities? II. Typical Disability Problems and Solutions A. Voting Barriers 1. Transportation 2. Polling place impediments 3. Poll workers B. Potential Remedies 1. Voting Rights Act of 1965 2. Section 504 of the Rehabilitation Act of 1973 3. Voting Accessibility for the Elderly and Handicapped Act of 1984 4. Americans with Disabilities Act 5. National Voter Registration Act of 1993 6. Help America Vote Act of 2002 III. Contemporary Controversies in Voting and Disability A. Voter Fraud B. Voter ID C. Long Lines D. Absentee Ballots E. Voting by the Military and Veterans F. Voting Technology IV. Remedies A. Doctrinal Change B. Policy Solutions Conclusion Appendix Introduction

People with disabilities are the ticking time bomb of the electorate. A group comprising fifty-six million people and counting, it includes people with various types of impairments, from wheelchair users to elderly people with dementia to blind people. (1) An estimated thirty to thirty-five percent of all voters in the next twenty-five years will need some form of accommodation. (2) Every person is vulnerable to falling into this category, and nearly one in five of us will before we die. (3)

Despite the significant and growing population of voters with disabilities, they do not vote in proportion to their numbers; surveys indicate that potential voters with disabilities are up to twenty-one percentage points less likely to vote than potential voters without disabilities. (4) We are missing about three million voters with disabilities because of this participation gap. (5)

We can consider voters with disabilities as the metaphorical "canaries in the coal mine," (6) the people who are an advance warning of the structural difficulties in voting not just for themselves, but also for the system as a whole. Solving problems in voting for people with disabilities will strengthen the entire system and will help improve the voting process for everyone, especially people from disempowered communities. Furthermore, although election law scholars have largely ignored the unique voting problems confronting voters with disabilities, virtually every major voting controversy in contemporary American electoral politics directly implicates issues of disability.

This Article examines the state of disability access to voting in the lead-up to the 2016 election, revealing an electoral problem that has been lurking in the background for far too long. (7) Current debates about access to voting and voter restrictions often ignore the current legal landscape's disparate effect on those with disabilities. The insights in this Article offer another angle of intervention toward ameliorating the problems in the voting process for disempowered individuals. This call for reform is timely in light of the upcoming presidential election. We tend to think of problems of voting and disability, if we think of them at all, as classic issues of physical access. But in fact, the contemporary problems with respect to voting that preoccupy election lawyers are also heavily implicated by disability and, moreover, are central to the inquiry. This Article reveals those hidden disability implications of our contemporary election law problems.

The Article proceeds in Part I by identifying the large number of potential voters with disabilities. Part II identifies the classic barriers to voting that people with disabilities face and the typical statutory remedies that offer potential solutions. Part III then moves outward to address the contemporary pressing problems of election law and highlights the disability implications of these dilemmas. Finally, Part IV uses a unique dataset of state-by-state data about voting and disability to sift through state data on electoral reform to offer potential remedies.

1. Who Are Voters with Disabilities?

   Between one out of seven and one out of five voting-age people has a disability. (8) This proportion is steadily increasing as the population ages. The elderly population is expected to increase to seventy million by 2030. (9) People over the age of eighty are projected to be the fastest-growing segment of the U.S. population. (10) By 2060, nearly one-third of eligible voters will be elderly. (11) By 2050, over forty percent of the elderly will be nonwhite, up from twenty percent in 2010. (12) Thirty-six percent of the elderly population has a disability. (13)

   Statistics are one way of looking at an affected populace. But we can think more holistically, through the approach of disability studies. Rather than focus on individual impairments, disability studies concentrates on the social conditions that give rise to the difficulties that people with impairments have to surmount. (14) A person who uses a wheelchair, for instance, has a very different life in a world that addresses her needs with curb cuts and elevators than one that does not. So the impediments that structure our electoral landscape importantly shape the constituency of the disability community and the barriers that they face as political citizens.

   Furthermore, another aspect of a holistic approach is to think more broadly about impairment than the legal definition of disability and investigate how lower-level physical impairments affect the experiences of voters and perhaps trigger barriers in the voting process. For example, in addition to those elderly people with a disability that fall under formal statutory definitions, other elderly people may have physical impairments such as mobility issues that make it hard for them to travel or walk unaided. Thus, they may not be able to vote if they have to wait in a long line. Over one million potential voters have a hand or arm impairment that may make it difficult to manipulate a paper or electronic ballot without an accommodation. (15) Over ten million potential voters have a visual impairment that would make it difficult to read small print on a ballot. (16) These potential voters may not be captured by the statutory definitions of disability, yet they have disability problems nonetheless. Thus, the statistic of fifty-six million people with disabilities is just the tip of the iceberg and captures only the people with the most severe impairments. When we look at the voting process, though, people with lower-level impairments may also have difficulties. We can use a disability approach to think about those voters as well.

   When we look at the statistics, we see that people with disabilities tend to be among the most disempowered of Americans: they are more likely to be black or brown, elderly, female, unemployed, and poor. People with disabilities are a vulnerable component of a number of cross-cutting identity groups that we care about because they are disempowered communities: the elderly, the poor, people of color, women, and veterans. Thus, they have a host of challenges. When we look at those other communities, in order to help everyone within them, it is imperative to also address disability.

2. Typical Disability Problems and Solutions

   Data from the Government Accountability Office (GAO) and other sources indicate a wide participation gap between voters with and without disabilities that is slowly decreasing over time but stubbornly remains at present. It is not a surprise, therefore, that more people with disabilities than without think that the United States has a serious problem with voting procedure. (17)

   Electoral problems are compounded by the fact that election practice is extremely localized. In one federal election there may be over 10,000 election jurisdictions, (18) 1.4 million poll workers, and over 700,000 voting machines. (19) A voter cannot anticipate that the problems she will face at one polling place will be the same as at another. The anticipation of issues, based on prior experience, can create a "chilling effect" for potential voters who may not want to face an inaccessible polling place or hostile poll workers again. (20) Thus, previous problems may create future low participation even if these problems are solved, therefore making it all the more crucial to address barriers as quickly as possible.

   1. Voting Barriers

      Voters with disabilities have and do face numerous potential barriers to their political participation. These include problems with access to the voting location itself, difficulties with voting technology, and hostile or ignorant electoral officials. (21) Impediments vary with the type of physical impairment. A person using a wheelchair, for example, may not be able to access a polling place because of an absence of curb cuts. A person who is blind, on the other hand, cannot use a printed ballot without an alternative.

      1. Transportation

         Transportation is a significant problem for many people with disabilities. Thirty percent of people with disabilities are unable to drive and for that group, their turnout is fifteen to twenty percent lower than average. (22) People with disabilities are more likely to live alone, which makes it harder to find another person for a ride. Also, potential voters with disabilities are disproportionately rural, which can mean a long distance between home and the polling place. (23)

      2. Polling place impediments

         In 2000, the GAO surveyed 496 polling places in 100 counties in 33 states. (24) No polling places had voting technology for blind voters. (25) Forty-one percent of voters with disabilities voted, as compared to fifty-one percent of all potential voters. (26) Eighty-four percent of polling places had at least one impediment. (27) These impediments included no accessible parking, no curb cuts, and steep ramps.

         By 2012, the picture had improved, but not by much. Thirty percent of voters with disabilities had difficulty voting; by contrast, only eight percent of voters without disabilities faced challenges. (28) Forty percent of people with disabilities who had not voted in a polling place in the previous ten years...