By Nathan Price, PBI Intern, and PBI staff
Participating in the election of public officials is a cornerstone of American Democracy and a core process for helping America ensure political freedom. According to recent U.S. Census Bureau statistics, 73 percent of U.S. citizens without disabilities reported being registered to vote and 67.5 percent of U.S. citizens without disabilities reported voting in the 2020 presidential elections, the highest turnout in the current century.[1] In contrast, only 70 percent of U.S. citizens with any disability[2] reported being registered, and just 61.8 percent of citizens with any disability reported voting — amounting to a 4 percent deficit in registration and 8.4 percent deficit in voting for citizens with any disability. These statistics make clear that our current voting system and practices present barriers to individuals with physical and cognitive disabilities, and that these barriers are compounding — the first hurdle is registering, and those that overcome that impediment face an even higher barrier to casting a ballot. Moreover, the obstacles to voting are manifestly much higher for certain categories of disabilities. Only 60.4 percent of citizens with ambulatory disabilities and just 49.4 percent of citizens with disabilities impacting self-care reported voting in the 2020 presidential elections. These numbers are 10.5 percent and 26.8 percent lower respectively than the comparable statistics for citizens without a disability. While over the course of history America has made great strides in providing equitable access to the ballot, one group that remains largely overlooked when it comes to voting rights and access is people with disabilities.
People with disabilities face many unique challenges when exercising their right to vote. These challenges include difficulties with filling out forms, getting to and navigating around polling places, or completing other tasks required to register or vote. You might expect that in the modern era of electronic aids, the situation for voters with disabilities would be improving. However, the American Civil Liberties Union reports that, in 2021 alone, more than 400 anti-voter measures were introduced by states across the country, many of which are disproportionately burdensome to voters with disabilities.[3] In some cases, states have taken measures to afford more equitable access to voting (e.g., allowing third-party assistance with the voting process), only to have these measures withdrawn under the rationale that they invite voter fraud. For example, during the 2020 election, voters in Wisconsin were permitted to have proxies deposit their ballots in widely-distributed, official, drop-off boxes. However, after the legitimacy of the ballot collection was questioned, that voting method was banned, inequitably affecting voters with disabilities.
While some states have introduced barriers making it harder for people with disabilities to register to vote and participate in the political process, key federal laws do grant them some legal protection. For example, the Voting Accessibility for the Elderly and Handicapped Act of 1984 requires polling places across the United States to be physically accessible to people with disabilities for federal elections. If there is no accessible location available to serve as a polling place, an alternate means of accessible voting must be set up. In addition, the National Voter Registration Act of 1993 sought to increase the historically low registration rates of persons with disabilities by requiring all offices that provide public assistance or state-funded programs that primarily serve persons with disabilities to also provide the opportunity to register to vote in federal elections.[4] Further, the Help America Vote Act of 2002 requires jurisdictions responsible for conducting federal elections to provide at least one accessible voting system for persons with disabilities at each polling place in federal elections.
Some states have gone well beyond the provisions of federal law to facilitate voting by individuals with disabilities. California is a leader in this area, boasting a system that allows individuals to both register to vote and download (and mark) their ballots completely online. Using this system, Californians with disabilities can complete the critical portions of the voting process independently using technology found in many American homes, such as a computer, smartphone, or tablet. Once a ballot has been marked digitally, it is printed, placed in an envelope, and dropped off at an official voting station. Importantly, anyone can drop it off at the polling place, as long as the voter’s signature appears on the outside of the ballot envelope.
Other jurisdictions also have been working to increase accessibility that can benefit voters with disabilities. Seattle passed a provision that allows voters to vote via their smartphone, and West Virginia was the first state to allow voters with physical disabilities to vote via their smartphone.
In order for electronic voting and accessibility reforms to progress further throughout the entire nation, it is important for groups representing those with disabilities have a seat at the table, and to be adequately represented, on matters of design and implementation. Among other things, better training of election officials is needed to assure that equitable laws are implemented in a manner that achieves their intent.
Here are a few of examples of lawyers recently taking action to ensure equitable voting access for people with disabilities, in addition to other impacted communities:
- Davis Wright Tremaine†* and WilmerHale†* partnered with the Southern Poverty Law Center to oppose Georgia law S.B. 202, which added a voter ID requirement for mail ballots, limited drop-off ballot boxes, shortened the time period for requesting a mailed ballot, and made it illegal to provide water and food to people standing in line to vote – measures that disproportionately impact the ability of persons with disabilities to vote.
- Perkins Coie†*, along with Krevolin & Horst, is opposing the same bill in court, on behalf of The New Georgia Project, alleging violations of the U.S. Constitution and Federal voting law.
- Reed Smith†* is co-counseling with the NAACP Legal Defense Fund and The Arc, a nonprofit serving people with intellectual and developmental disabilities, to challenge Texas’s S.B. 1, which bans 24-hour early and drive-through voting and criminalizes sending mail-in ballot applications to voters absent an express request.
- Jenner & Block* is fighting the same Texas law, working with the Texas Civil Rights Project, the American Civil Liberties Union, and other civil rights organizations.
- Law Forward is a Wisconsin-based nonprofit championing voting rights. They filed a lawsuit on behalf of voters with disabilities in Wisconsin and restored the right of voters to have third parties drop off their ballot for them.
- Sheppard Mullin is a law firm with a long history of advocating for people with disabilities. In 2021, the firm helped secure a commitment from Virginia voting officials to permanently provide absentee ballots that can be marked electronically to voters with visual impairments.
Many pro bono opportunities are available for organizations to help make further progress in this area. The following is a small sample of organizations seeking legal assistance with voting rights matters impacting people with disability:
- The Lawyers Committee for Civil Rights Under Law consists of eight independently funded and governed Lawyers’ Committees operating in Boston; Chicago; Denver; the District of Columbia; Jackson, Mississippi; Los Angeles; Philadelphia; and San Francisco. The organizations have many pro bono opportunities to aid on civil rights matters. This includes defending and expanding the voting rights of people with disabilities through integrated litigation programs, voter protection advocacy, and education.
- University Legal Services is a private, nonprofit, community-based organization that provides many services and acts as the Protection and Advocacy agency for the District of Columbia through its Disability Rights DC (DRDC) unit. DRDC’s mission is to advocate for the human, civil, and legal rights of people with disabilities in the District of Columbia. Its activities include fighting for accessible polling places.
- Disability Rights Washington is a private nonprofit organization that protects the rights of people with disabilities across the state of Washington. Their mission is to advance the dignity, equality, and self-determination of people with disabilities, including promoting legal rights.
- Arizona Center for Disability Law is a nonprofit law firm that assists people in Arizona with disabilities to promote and access their rights. They provide various free legal services, including protection and advocacy for voting access.
- Disability Law Center of VA (dLCV) is the designated Protection and Advocacy organization of Virginia the Help America Vote Act of 2002 advocating for the rights of Virginia voters with disabilities. The organization offers lawyer volunteers opportunities to take on pro bono cases and advocacy matters, while earning CLE hours in some cases.
- The National Federation of the Blind is a nonprofit organization whose legal program goals include: “create[ing] systemic change in how … government agencies address accessibility and equality for the blind”. Based in Maryland, it has pushed for reform through the courts in more than 10 states, including Virginia, Michigan, and Pennsylvania. It is seeking to build a network of advocates and legal experts.
According to the 2020 U.S. Census Bureau statistics data, there are roughly 28.7 million U.S. citizens with a disability. Consequently, if the U.S. voting system were fully equitable, citizens with disabilities would have cast more than an additional 1.6 million votes in the 2020 election. Ensuring that individuals with disabilities have equitable access to voting would affect not just those with disabilities, but all Americans in ensuring greater representation for all. Please consider taking on pro bono matters supporting voting reform for Americans with disabilities. Your efforts can help make the country stronger and bolster the nation’s status as a model of democratic society.
†denotes a Law Firm Pro Bono Project® member
*denotes a Law Firm Pro Bono Challenge® signatory
[1] See Table 6 at https://www.census.gov/data/tables/time-series/demo/voting-and-registration/p20-585.html.
[2] Generally, the April 2021 U.S. Census Bureau release on Voting and Registration in the Election of November 2020 reflects registration and voting information reported to the Bureau by census respondents for individuals with any of the six following impairments: hearing difficulty, vision difficulty, cognitive difficulty, ambulatory difficulty, self-care difficulty, and independent living difficulty compared with respondents not reporting any of these difficulties.
[3] See https://www.aclu.org/news/voting-rights/voting-with-a-disability.