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October 29, 2012

Disability and Voting

Waterstone SJ blog Picture.jpgBy Associate Dean Michael Waterstone

My primary research area, disability law, typically doesn't garner a lot of headlines or attention in presidential elections. There was a National Forum on Disability Issues in September of 2012 where both candidates were invited, but neither showed up (President Obama was represented by Ted Kennedy, Jr. and Governor Romney was represented by Rep. Cathy McMorris Rodgers (R-WA)). In a way this is understandable -- disability is a less contentious civil rights issue than some other areas. It may just be a perception that there is less to fight about (and a good fight is what really draws media attention).

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But there are certainly many important issues relevant to people with disabilities that are at stake in this election. A major one is health care. The provision of the Affordable Care Act that stops insurance companies from denying coverage based on preexisting conditions can help people with disabilities move in and out of the labor force without losing their health insurance. This approach, I have argued elsewhere, is part of the explanation of the higher rate of veterans with disabilities, who have access to the VA for some healthcare services. Governor Romney seemed to suggest that his healthcare proposals would also cover people with preexisting conditions, but most analyses I have seen refute this, at least to the extent that it would help people with long term disabilities be more fluid in and out of jobs. Another issue of importance to the disability community is the ratification of the United Nations Convention on the Rights of Persons with Disabilities. President Obama signed the treaty and has urged ratification; as far as I could find, Governor Romney has taken no public position on the issue.

But in this blog post, I'd like to focus on an issue that comes before both of these -- voting for people with disabilities. Given the recent focus on the administration of elections (mostly, as my former colleague Rick Hasen has profiled, based on hazy and unsubstantiated claims of voter fraud), this is timely.

Although the situation has improved, there are still real concerns about the voting rights of people with disabilities in this election. In a 2000 Report, the General Accountancy Office found that 84 percent of polling places had at least one impediment that could deter persons with disabilities from casting their ballot. These barriers -- no ramps, lack of signage directing to an accessible entrance, an obstructed path to the polling place -- might seem trivial to voters without disabilities. But for people with disabilities, it can be the difference between voting and not voting. After increased litigation by advocates for people with disabilities, and passage of the Help America Vote Act, this situation has improved, but only somewhat. In a follow-up report examining the 2008 election, the GAO found that 73 percent of polling places had potential impediments to people with disabilities being able to access the voting areas, but 45 percent offered curbside voting. As I have argued elsewhere, curbside voting is a cheapened version of the voting experience.

Recent reports indicate this problem has not gone away for this election cycle. In a recent case in New York, plaintiffs alleged that random samplings of New York City polling places revealed widespread inaccessibility, and that disability relevant criteria were not being used for polling place selection and that training for poll workers was inadequate to comply with the law. Plaintiffs prevailed on summary judgment establishing Defendant's liability (disclosure -- I was one of the expert witnesses in this case).

This depresses turnout for people with disabilities. It is a problem that is fixable with adequate preparation, training and foresight. Our system works best when everyone gets to participate. As Representative Steny Hoyer (D-MD) so eloquently explained "[o]ne of our most profound accomplishments since the founding of the United States is the progressive broadening of the franchise to include African-Americans, women and others subject to pervasive discrimination... [A]s more adult citizens become full participants in our polity, the democratic process is enriched for all. We are still in the process of learning this lesson with regard to persons with disabilities."

One related point. The decision of who is qualified to be a voter rests largely in state hands. Many states have laws which take the right to vote away from people with mental disabilities if they have been ruled incompetent in a range of life decisions by the court. Many of these laws, either in design or application, are overly broad, and remove the right to vote too indiscriminately, or with insufficient procedural protections. But mental illness, and incapacity to vote, is not something that gets attention in presidential elections (beyond cursory statements about making sure people with mental illness don't get guns). This is unfortunate; taking the voting rights away from anyone is important and deserves more attention from both political parties.