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Legal Strategies to Expand the Voting Rights of Citizens with Disabilities

(Updated August 14, 2001)

New opportunities exist challenge the barriers that have kept many people with disabilities from voting. The primary tools are two federal laws: the Americans with Disabilities Act (ADA) and the National Voter Registration Act (NVRA), known as Motor-Voter.

The ADA may be used to challenge improper exclusion of voters with mental disabilities through vague or overbroad competency standards. Individuals with physical disabilities can use the "site selection" provision of the ADA Title II regulations to argue that a polling site selected after January 26, 1992 must be accessible. Reasonable accommodation is required for both groups.

The NVRA requires, among other things, that states designate as voter registration agencies all offices that receive state funds and are primarily engaged in providing disability services. Such agencies must make available to their clients voter registration forms and assistance in completing them, and must accept completed applications and transmit them to state officials.

In a shorter overview, we summarize how these and two more federal statutes can be used to expand the voting rights of citizens with mental disabilities. This paper discusses advocacy to increase access to registration and voting by citizens with any form of disability. It includes :

• potential barriers
• applicable laws and strategies
  •under the ADA: reasonable modifications, screening criteria, program access, site selection and relief;
  •strategies under the NVRA;
  •provisions of the Voting Rights Act (VRA); and
  •use of the Voting Accessibility for the Elderly and Handicapped Act (VAEHA).
• and some cautions for advocates.

Help Is Available

The Bazelon Center and the Disabilities Law Project are available to work with individuals and local advocates to ensure that citizens with disabilities have the opportunity to vote.

We can help you determine what, if any, legal strategies may be pursued and to initiate litigation in a few appropriate cases. Please contact Jennifer Mathis at the Bazelon Center, jenniferm@bazelon.org, or Mark Murphy at the Disabilities Law Project, mmurphy@dlp-pa.org.

We've posted a flyer you can circulate to find out what voting access problems exist in your area. (It's also available in PDF format (you will need the free Acrobat Reader to view and print this file). You may use this version of the flyer, simply adding your organization's name and contact information, or you could download and expand this version to include information about specific problems in your area.

Potential Barriers

Obtaining Accommodations
Voters may need accommodations for a mental or physical disability when registering to vote or casting a ballot. Individuals with disabilities must be informed about their rights to voting accommodations. It is also important to ensure that requests for accommodations are submitted ahead of time, to the extent possible.

Narrowing Voting Exclusions
State laws or local policies or practices that bar citizens with mental disabilities from voting, regardless of their competence, may violate Title II of the ADA. Advocates should look both at the language of statutory and constitutional exclusions and at how that language is enforced in practice. See the August 10, 2001 decision in Doe v. Rowe

Ensuring Designation of Voter Registration Agencies and Provision of Voter Registration Assistance
States may not be designating as voter registration agencies the state-funded offices that provide disability services, such as community mental health centers and vocational rehabilitation agencies. Even if such offices have been designated, they may not be providing appropriate registration opportunities and assistance as required by the NVRA.

Obtaining Program Access
Voters with disabilities may require removal of barriers at polling or registration sites in order to make the voting program accessible to them. However, because program access does not require every facility to be accessible, such claims may be difficult to win if alternative means of voting are provided.

Requiring Selection of Accessible Polling and Registration Sites after the ADA's Effective Date

Polling sites selected after January 26, 1992 are required to be accessible. When polling or registration sites selected after that date are inaccessible, advocates facing difficulties with the program-access standard should consider pursuing site-selection claims.

Other Barriers:We are also interested in addressing other potential barriers to voting by individuals with disabilities. If voters with physical or mental disabilities in your area face barriers not discussed above, we would be interested in hearing about the problems and discussing possible solutions.

Applicable Law and Strategies

The Americans with Disabilities Act (ADA)

Title II of the ADA provides that public entities may not exclude or deny qualified individuals with disabilities the benefits of their programs, services or activities.⁽¹⁾ Four regulations are particularly relevant in the context of voting: reasonable modification, criteria that screen out people with disabilities, program access and site selection.

Reasonable Modifications
Title II regulations require public entities to provide reasonable modifications in their programs, services and activities to enable individuals with disabilities to benefit equally from the services.⁽²⁾ Accordingly, if a voter requires modifications due to a physical or mental disability to enable her to register to vote or cast a ballot, modifications must be provided unless they would create an undue burden or fundamental alteration.⁽³⁾ For example, a voter may need an explanation of instructions in simpler language, a ballot accessible to individuals with visual impairments, a friend or family member to accompany him or her into a voting booth, or assistance in casting a ballot.

Claims for reasonable modification of voting systems have met mixed results. In Lightbourn v. County of El Paso,⁽⁴⁾ the court held that the failure to provide modifications that would give mobility-impaired voters access to polling places and enable blind voters to vote secretly, without the assistance of another person, violated the ADA.

In another case involving modifications for voters with visual impairments, however, the Sixth Circuit held that the state of Michigan did not have a program of secret voting, and therefore the plaintiffs were not excluded from Michigan's program.⁽⁵⁾ The court found that the constitutional provision guaranteeing a secret ballot was ambiguous, and concluded that there was no guarantee of absolute secrecy based on case law and statutory provisions permitting exceptions to secrecy—for example, for voters who cannot read English and for individuals accompanied into the voting booth by minor children. Accordingly, reasonable modification claims will fare better when the plaintiffs are seeking equal voting rights to those provided to all voters without disabilities.

Criteria that Screen Out People with Disabilities
Title II regulations also prohibit a public entity from using eligibility criteria that tend to screen out individuals with disabilities from its programs unless those criteria are necessary to administration of the program.⁽⁶⁾

Many states have laws or regulations that bar citizens with mental disabilities from voting, regardless of whether they are, in fact, competent to do so. Further, even where the laws themselves do not deny voting rights, in practice many citizens with mental disabilities are denied the right to vote based on the actions of staff at hospitals, ICF/MRs, group homes, and other service providers, or by election officials.

While it may be within states' authority to limit voting rights to citizens who are capable of understanding the nature of an election and what it means to cast a ballot, citizens with mental disabilities are sometimes denied the right to vote even when they do understand these things. Such exclusions may violate the ADA if they are based on criteria that are not necessary to the integrity of the voting system. As the court found in Doe v. Rowe, they may violate the U.S. Constitution or state constitutions as well.

Program Access
Title II regulations entitle people with disabilities to program access—that is, each facility used in a public entity's program need not be accessible, but the program as a whole must be, unless creating accessibility would entail an undue burden or fundamental alteration.⁽⁷⁾

Under this standard, every polling or registration site does not have to be accessible to citizens with disabilities, as long as the voting program as a whole is accessible. For example, if a voter cannot enter her assigned polling place or cannot use the voting machines because of a disability, the public entity could probably satisfy the program-access requirement by notifying her ahead of time that the site is inaccessible and, at her request, reassigning her to an accessible polling place. Similarly, if a voter discovers upon arriving at his polling place that it is inaccessible but he is transported to an accessible polling place and permitted to vote there, program access will probably be satisfied.

Because the program-access standard permits alternative methods of access, it may be difficult to challenge public entities that provide inaccessible polling sites if they provide alternative, albeit undesirable, voting methods. For example, the Department of Justice has repeatedly issued findings that "curbside voting"—where designated individuals assist voters with disabilities in completing their ballots just outside of an inaccessible polling place—constitutes program access and therefore complies with Title II of the ADA.⁽⁸⁾

Similarly, providing alternative or absentee ballots to enable citizens with disabilities to vote up until the date of the election may satisfy the ADA's program-access requirement. See NAACP v. Philadelphia Bd. of Elections⁽⁹⁾ (the provision of alternative ballots that could be submitted up until the polls closed was a reasonable modification that defendants could choose to provide to comply with the ADA) and DiPietrae v. City of Philadelphia,⁽¹⁰⁾ (affirming the decision that permitting voters with disabilities to appoint individuals to pick up absentee ballot applications and ballots for them and to deliver the completed ballots to the election board was required by the ADA and Voting Rights Act). In fact, one federal court held that the ADA did not even require that voters with disabilities be permitted to appoint someone to pick up and deliver absentee ballot applications and ballots for them. See Jacobs v. Philadelphia County Bd. of Elections.⁽¹¹⁾ Considering the same issue decided by the state court in DiPietrae, the Jacobs court held that a voter with a disability could have someone else put his or her absentee ballot in the mailbox or could give it directly to the mail carrier, and that neither the ADA nor the VRA required anything more than that.

There may be situations when no alternative methods of access are offered, or when alternative methods are offered but they are not equally effective to ensure access—for example, when voters with disabilities are not notified in advance of a polling site's inaccessibility and no other alternative, such as curbside voting or last-minute reassignment to an accessible site, is available for a person who discovers on election day that her polling site is inaccessible. In these situations, a program-access theory has a good chance of success.

Site Selection
Because of the difficulties involved in pursuing a program-access theory, we think advocates should consider pursuing a site-selection theory when appropriate. Title II regulations prohibit a public entity, when selecting sites for a program, from making selections that have the effect of excluding individuals with disabilities from, denying them the benefits of, or otherwise subjecting them to discrimination in the program, or that have the purpose or effect of defeating or substantially impairing the accomplishment of the program's objectives for people with disabilities.⁽¹²⁾

Advocates have generally interpreted the site selection provision to mean that when a public entity selects program sites after January 26, 1992, when Title II became effective, each site selected must be accessible. A number of P&As used this theory to challenge the inaccessibility of sites where lottery tickets are sold, regardless of whether the sites were constructed or altered after the ADA went into effect.

The regulation reflects the ADA's general scheme of distinguishing between new construction and alterations done after the ADA's effective date, and already existing construction. While the law does not require all of a public entity's existing facilities to be accessible as long as the entity's program as a whole is accessible, it does require newly constructed facilities and alterations to be accessible, since there is an opportunity to create accessibility without expensive retrofitting.⁽¹³⁾ Similarly, when a public entity chooses a new site for one of its programs, it has the opportunity to ensure accessibility. Without the site-selection regulation, a public entity could move program sites from accessible locations to inaccessible ones, defeating the ADA's scheme of ensuring a gradual move toward full accessibility.

In the context of voting, the site selection provision may be used to challenge the inaccessibility of polling or registration sites selected by a public entity after January 26, 1992. Many local governments re-select polling sites every year by sending out a letter and requiring a response indicating that the site will be available as a polling site in the coming year. If a local government selects or re-selects a polling or registration site any time after January 26, 1992, a covered site selection has occurred. Arguably, each such site must be accessible.

The case law interpreting the site selection provision is not encouraging, but advocates should not write it off, as it has only been interpreted by a couple of published district court decisions. In Anderson v. Dep't of Pub. Welfare,⁽¹⁴⁾ the court held that the provision only "prohibits public entities from selecting sites that effectively exclude disabled individuals from the entity's program, when the program is viewed in its entirety." In Tyler v. Kansas Lottery,⁽¹⁵⁾ the court followed Anderson and held that the site-selection provision must be read in the context of program accessibility.⁽¹⁶⁾ Interpreting the site-selection regulation as requiring nothing beyond the program-access regulation, as these courts have done, renders the former regulation superfluous.

Relief
Title II of the ADA affords the full panoply of relief, provides for attorneys' fees including litigation expenses and costs, and contains no exhaustion requirement.⁽¹⁷⁾

National Voter Registration Act (NVRA)

Among other things, the NVRA, or motor-voter law, requires states to designate as voter registration agencies: (1) all offices that are primarily engaged in providing disability services and that receive state funds, and (2) all offices that provide public assistance.⁽¹⁸⁾ These are known as "mandatory" voter registration agencies. Such agencies must make available to their clients voter registration forms and assistance in completing them, and must accept completed applications and transmit them to state officials.⁽¹⁹⁾

Certain other offices may, but do not have to be, designated as voter registration agencies, including public libraries, public schools, unemployment compensation offices, disability services offices other than the mandatory agencies, federal offices and non-governmental offices.⁽²⁰⁾ These are known as "discretionary" voter registration agencies. Federal offices must cooperate with the states "to the greatest extent practicable" to carry out the required registration assistance provisions and private-sector offices are "encouraged" to cooperate.⁽²¹⁾

Because private and federal offices are merely "encouraged" to cooperate in providing voter registration assistance, at least one court has held that they do not have to be designated as voter registration agencies, even if they are public assistance offices or state-funded disability services offices. ⁽²²⁾ The court held that private and federal offices must be only discretionary voter registration agencies, reading the statutory provisions as a whole. The statutory language of § 1973gg-5(a), however, clearly encompasses "all" public assistance offices and state-funded disability services offices, without regard to whether they are federal or private. There is certainly a strong argument that "all" means all, and that the provision "encouraging" private-sector offices to cooperate merely refers to the private-sector offices that are discretionary rather than mandatory voter registration agencies.

Disability services offices that have been designated as voter registration agencies include state and county offices of mental health and mental retardation, blindness and visual services offices, veterans' affairs offices, health department offices, labor department offices, aging department offices, and alcohol and substance abuse offices.

Actions brought under the NVRA may include "failure to designate" claims, alleging that the state has failed to designate certain offices as voter registration agencies as required by the NVRA, and/or "failure to assist" claims, alleging that the types of registration assistance required at those offices is not being provided. The latter type of claim can be brought against the office failing to provide assistance; it should also be possible to bring such a claim against the state for failing to assure that such assistance is provided. A state's chief election officer is responsible under the NVRA for providing information to the state with respect to its responsibilities under the NVRA.⁽²³⁾ Accordingly, it would be logical to hold election officers responsible for assuring compliance with the NVRA's registration assistance provisions.

In addition, some states may be implementing the NVRA only for certain groups of citizens with disabilities. See, e.g., Ga. Stat. 21-2-222(a), limiting "persons with disabilities" for purposes of designating voter registration offices under the NVRA to individuals with physical disabilities.

The NVRA may be enforced by the attorney general or private parties.⁽²⁴⁾ The relief available is limited to declaratory and injunctive relief.⁽²⁵⁾ An aggrieved person must provide written notice to the chief election officer before filing suit; if the problem is not corrected, suit cannot be filed until 90 days after the notice is received (unless the violation occurred within 120 days before an election date, in which case the action may be filed within 20 days after receipt of the notice, or if the violation occurred within 30 days before the election date, no written notice is required). ⁽²⁶⁾Attorneys' fees, including litigation expenses and costs, are available.⁽²⁷⁾

The Voting Rights Act (VRA)

The VRA contains a provision requiring that "[a]ny voter who requires assistance to vote by reason of blindness, disability, or inability to read or write may be given assistance by a person of the voter's choice . . . ."⁽²⁸⁾ One court has interpreted this provision to require the board of elections to permit voters with disabilities to appoint a person to pick up and deliver absentee ballot applications and ballots,⁽²⁹⁾ while another court has declined to read the provision so expansively, holding that voters with disabilities are entitled only to have another person place their absentee ballots in the mailbox, or to give the ballots directly to their mail carrier.⁽³⁰⁾

This portion of the VRA is silent with respect to remedies, indicating that all appropriate relief should be available.⁽³¹⁾ There is no provision for attorneys' fees.

The Voting Accessibility for the Elderly And Handicapped Act (VAEHA)

The VAEHA⁽³²⁾ applies to federal elections and provides protections that are weaker than the ADA's. The VAEHA requires each political subdivision responsible for conducting elections to assure that all polling sites for federal elections are accessible to voters with disabilities and voters 65 and older.⁽³³⁾ If the chief election officer determines that no accessible polling place is available and that the political subdivision is unable to make one temporarily accessible, however, an elderly or disabled voter must simply be reassigned to an accessible polling place or "provided with an alternative means for casting a ballot on the day of the election."⁽³⁴⁾

Each state or political subdivision must provide a "reasonable number" of accessible registration facilities, unless it permits registration by mail or at an individual's residence.⁽³⁵⁾ States must make available "registration and voting aids" for federal elections—such as large-print instructions and TDDs—and must provide public notice of the availability of these aids and the procedures for voting by absentee ballot.⁽³⁶⁾

The VAEHA has notably weak enforcement provisions. Actions may be brought for declaratory and injunctive relief only, and attorneys' fees are unavailable.⁽³⁷⁾ The plaintiff must notify the chief election officer before filing suit, and an action cannot be brought until 45 days after the notification.⁽³⁸⁾

Cautions

You should be aware that the VAEHA may be raised in an attempt to defeat ADA claims for physical voting access, on the ground that the VAEHA is a more specific federal statute addressing physical barriers to voting. Because the VAEHA permits inaccessible polling places if a state's chief election officer determines that no accessible places are available, and permits inaccessible registration facilities if a state allows the option of registration by mail or at the voter's residence, defendants may argue that the VAEHA precludes ADA claims concerning physical access to polling places. There are strong legal arguments, however, that Congress intended the ADA to apply to voting access issues, given the sweeping language of Title II, covering all of a public entity's programs, services and activities⁽³⁹⁾ and the specific congressional finding in the ADA that "discrimination against individuals with disabilities persists in such critical areas as . . . voting. . . ."⁽⁴⁰⁾

In addition, you should carefully explore whether you have chosen the proper defendant—one with the authority to provide the relief sought. If there is not a state entity with such authority, you may have to proceed against local jurisdictions.⁽⁴¹⁾

1. 42 U.S.C. § 12132.

2. 28 C.F.R. § 35.130(b)(7).

3. Id.

4. Lightbourn v. County of El Paso, 904 F. Supp. 1429 (W.D. Tex. 1995), rev'd on other grounds, 118 F.3d 421 (5th Cir.), cert. denied, 118 S.Ct. 700 (1997), vacated without opinion, 127 F.3d 33 (5^th Cir. 1997).

5. Nelson v. Miller, 170 F.3d 649-53 (6th Cir. 1999).

6. 28 C.F.R. § 35.130(b)(8).

7. 28 C.F.R. § 35.150.

8. See, e.g., http://www.usdoj.gov/crt/foia/lofc023.txt, http://www.usdoj.gov/crt/foia/lofc021.txt, http://www.usdoj.gov/crt/foia/loft018.txt and http://www.usdoj.gov/crt/foia/lofc017.txt. Notably, one federal court has held that Title II's general nondiscrimination provision requires a public entity to make all of its polling places accessible. See New York v. Spitzer, 82 F. Supp.2d 19 (N.D.N.Y. 2000). The defendants in that case apparently did not argue that this interpretation exceeded the requirement of program access.

9. NAACP v. Philadelphia Bd. of Elections, No. CIV A.97-7085, 1998 WL 321253 (E.D. Pa. June 16, 1998) -

10. DiPietrae v. City of Philadelphia, 666 A.2d 1132 (Pa. Commw. Ct. 1995).

11. Jacobs v. Philadelphia County Bd. of Elections, No. CIV.A. 94-6666, 1995 WL 63747 (E.D. Pa. Oct. 30, 1995).

12. 28 C.F.R. § 35.130(b)(4).

13. 28 C.Fs.R. §§ 35.150, 151.

14. Anderson v. Dep't of Pub. Welfare, 1 F. Supp.2d 456, 465 (E.D. Pa. 1998).

15. Tyler v. Kansas Lottery, 14 F. Supp.2d 1220, 1227 (D. Kan. 1998).

16. In Paxton v. State Dep't of Tax and Revenue, 192 W.Va. 213, 219, 451 S.E.2d 779, 785 (W. Va. 1994), the court declined to rule on whether the site selection provision required the defendant to make all of its lottery sites accessible, as it found that result to be required by 28 C.F.R. § 35.130(b)(1), which provides that a public entity may not deny a qualified individual with a disability the opportunity to participate, or afford him or her an unequal opportunity to participate, in a service, program or activity, either directly or through contractual or licensing arrangements. See also Johnson v. City of Saline, 151 F.3d 564, 570 n.1 (6^th Cir. 1998) (noting but not interpreting the "site selection" regulation).

17. 42 U.S.C. §§ 12133, 12205.

18. 42 U.S.C. § 1973gg-5(a)(2).

19. Id. § 1973gg-5(a)(4)(A).

20. Id. § 1973gg-5(a)(3).

21. Id. § 1973gg-5(b).

22. Disabled in Action of Metropolitan New York v. Hammons, 202 F.3d 110, 119-29 (2d Cir. 2000).

23. 42 U.S.C. § 1973gg-7(4).

24. 42 U.S.C. § 1973gg-9(a), (b).

25. Id.

26. Id. § 1973gg-9(b).

27. Id. § 1973gg-9(c).

29. 42 U.S.C. § 1973aa-6.

29. DiPietrae v. City of Philadelphia, 666 A.2d 1132 (Pa. Commw. Ct. 1995).

30. Jacobs v. Philadelphia County Bd. of Elections, No. CIV.A. 94-6666, 1995 WL 639747 (E.D. Pa. Oct. 30, 1995).

31. See Franklin v. Gwinnett County Pub. Schools, 503 U.S. 60, 70-71 (1992) ("absent clear direction to the contrary by Congress, the federal courts have the power to award any appropriate relief in a cognizable cause of action brought pursuant to a federal statute.").

32. 42 U.S.C. § 1973ee et seq

33. 42 U.S.C. § 1973ee-1(a).

34. Id. § 1973ee-1(b).

35. Id. § 1973ee-2.

36. Id. § 1973ee-3.

37. Id. §§ 1973ee-4(a), (c).

38. Id. § 1973ee-4(b).

39. 42 U.S.C. § 12132.

40. Id. § 12101.

41. See, e.g., Lightbourn v. County of El Paso, 118 F.3d 421 (5^th Cir.), cert. denied, 118 S. Ct. 700 (1997), vacated without opinion, 127 F.3d 33 (5^th Cir. 1997).