Michael Waterstone, Assistant Professor of Law, University of Mississippi School of Law. B.A., University of California, Los Angeles, J.D., Harvard Law School. I would like to thank the organizers of the Symposium on Exploring Gender, Race, and Sexual Orientation Within Disability Law at the University of Iowa Law School, as well as the participants in this Symposium. Peter Blanck, Michael Maley, Chip Brower, Dan Tokaji, Matthew Hall, and Chuck Siegal were all gracious and helpful in their review of earlier versions of this article. Finally, I thank my research assistants, Jennifer Finch, Tim Harlan, and Dave Splaingard for their help in gathering and organizing data.
In recent years, there has been an unprecedented interest in the apparatus and administration of elections as a crucial element of democracy.1 In the United States, this interest was spurred on by Bush v. Gore and the federal legislation it helped generate.2 Politicians and scholars Page 102 are just now taking the first steps in analyzing how the choices of elected officials relating to the management of elections impact the civil rights of different groups.3 This issue is ripening in the international forum as well, as many recent entrants into the world of electoral democracies begin setting up the machinery and infrastructure for their elections.4
This interest in the administration of elections coincides with an Page 103 ideological shift in American and international disability law and policy. Traditionally, the nations of the world, including the United States, have embraced a "medical model" of disability.5 These policies have centered on welfare, health, and charity programs.6 Over time, and with passage of laws like the Americans with Disabilities Act ("ADA"),7 the United States has shifted toward a "civil rights" model of disability, which specifically targets discrimination against people with disabilities.8 The exclusion and segregation of people with disabilities are replaced with ensuring equality of opportunity. This paradigm shift has also occurred in the international and comparative law spheres, as more countries and international organizations are adopting and advocating a civil rights model of disability law and policy.9
This Article examines the interaction of these two concepts: on one hand, a civil rights model of disability focused on providing equality of opportunity, and on the other hand, a renewed academic interest in the machinery of elections as an important part of election law. Thus far, there has been no scholarly work that (a) proposes a guiding standard to gauge the participation of people with disabilities in the electoral process; (b) studies what laws, if any, states have on this issue; and (c) begins the dialogue of how to express this standard through international law. In bringing together elements of disability law and policy, comparative election law, and international law, this Article attempts to do all three.
I have previously suggested that voting rights for people with visual Page 104 impairments and manual disabilities in the United States should mean that these citizens are guaranteed, by federal statute, the ability to vote in the same manner as their fellow citizens, to the maximum extent possible.10
Specifically, this suggestion includes two aspects of voting that most citizens take for granted, but which have eluded people with disabilities. These are a secret and independent ballot, and voting in a polling place. I have argued that protecting these two elements of the right to vote is the correct result because secret and polling place voting are hallmarks of an effective and informed right to vote, and because it is wrong for the government to treat different groups of people differently in the exercise of such an important right.11
This normative framework was drawn exclusively from the laws and experiences of the United States. This Article turns to the international arena, and first attempts to gauge whether the various states of the world have laws consistent with this principle. A state-by-state examination of election laws and regulations reveals that by and large, they do not. Most states offer some accommodations for their citizens with disabilities in the electoral process, and do so in different ways. Most states, however, have not protected the ability of people with disabilities to vote secretly and in a polling place like their fellow citizens.
This Article suggests that this standard-for the sake of simplicity, referred to throughout as the "secret vote/polling place access" standard-is the metric by which elections in all states should be measured.12 Current international law takes positions that are consistent with, but do not clearly spell out, the idea that people with disabilities should be guaranteed a secret ballot and the ability to vote in a polling place. A clearer international standard could be a powerful tool to internationalize the norm of truly equal voting for people with disabilities. It would also create new opportunities for the already existing and committed non-governmental actors to more effectively influence state-by-state change.
This Article proceeds in three parts. Part II explains the secret voting/polling place standard in light of the American legal landscape. Part III turns to comparative law and examines how states currently regulate this intersection of voting and disability law. To add a level of specificity to this Page 105 discussion, Part III also takes a closer look at the laws (and evidence of implementation of those laws) in three individual countries: the United Kingdom, Peru, and Ghana. Part IV defends the secret ballot/polling place standard as a desirable policy and theoretical solution to the problems people with disabilities face in the voting process. This Part also addresses the traditional omission of this polling place/secret ballot access standard from international law, and begins the discussion of how this might change.
In an earlier article, I canvassed available data relating to the voting patterns and experiences of people with disabilities in federal elections in the United States.13 Two patterns emerged. First, people with disabilities were less likely to vote than the rest of society.14 Second, when people with disabilities did vote, their voting experiences were typically different from the larger citizenry in several important ways. People with disabilities had greater difficulty voting at a polling place, and were often steered toward alternative voting procedures, such as absentee or curbside voting.15 When people with disabilities did vote in polling places, they were often directed to do so in ways that compromised the secrecy and independence of their ballot.16
This is a problem because two crucial elements of the right to vote are a secret ballot and the ability to vote in a polling place.17 The importance of these voting features is based on the values (as distinct from constitutional Page 106 principles) of equal dignity and expanded instrumentalism.18 "Equal dignity" means that discrete groups of people should not be treated differently in the exercise of important civil rights.19 This is especially true when classifications are drawn on the basis of an immutable trait, like disability.20 Moreover, people with disabilities, like other discrete and insular minorities, have a history of being discriminated against at all levels of society.21 When there is a difference in the exercise of important rights, "less than" stereotypes are perpetuated, and the integration of the group into larger society is slowed.
"Expanded instrumentalism," in contrast, is concerned with practices and laws that undermine or adversely affect the exercise of a right for a particular group.22 While practices completely denying the right to vote violate a strict instrumentalist value, the concept of expanded instrumentalism goes further. When a group is systematically forced or steered to vote utilizing certain procedures that appreciably affect the effectiveness, accuracy, or informed nature of the vote, that group´s voting rights and power are cheapened and compromised. As will be discussed below, guaranteeing people with disabilities the ability to vote in secret, and in a polling place, is important from both the equal dignity and expanded instrumentalism values.
The discussion of the importance of secret ballots and polling place access was based on the American political and legal landscape. In the United States, secret ballots developed as a reaction to widespread intimidation of voters, fraud, and...