HAVA, State Initiatives And Polling Place Accessibility In 2004 And Beyond
INTRODUCTION
One of the stated goals of the Help America Vote Act ("HAVA") [1] was to ensure the accessibility of the entire electoral process for voters with disabilities. Making elections accessible to voters with disabilities requires two primary changes. Voters must be able to actually cast their vote on the voting system - HAVA is clear on this point - one accessible voting machine is required at each polling place by January 1, 2006. But in order to use these machines, voters must be able to physically get into the polling place so that they can vote (or at minimum have the ballot brought out to them). As the 2004 election approaches, this article examines HAVA's success to date on this less studied area - physical access to the polling place.
Ultimately two factors are central to HAVA's success with respect to polling place access - the level of funding and the efforts of individual states. This article will provide background on the issue of polling place accessibility, evaluate HAVA efforts in this area, and trace some of the state, local, and third-party initiatives that have and have not addressed the issue.
I. BACKGROUND: SCOPE OF THE PROBLEM AND BARRIERS TO RESOLUTION
A. Access Barriers
The effect of disenfranchisement of voters with disabilities is undisputed. People with disabilities make up almost 15% of the U.S. population - the 2000 census estimated that there were 56 million citizens with disabilities and 35 million of voting age. [2] As America ages, this number will only increase. The voting rate for citizens with disabilities is significantly lower than for the general population in large part as a result of the inaccessibility of polling places. In 2000, for example, more than 20 million eligible voters with disabilities failed to cast a ballot, according to United Cerebral Palsy officials. [3] In fact, had America's population of voters with disabilities voted at the same rate as the general population, 3.5 million more votes would have been cast and, given the proportionately larger share of Democrats among people with disabilities and the tight races in several states, Al Gore would have won the 2000 presidential election. [4]
The existence of a crisis of inaccessible polling places is also undisputed. Studies as early as a 1999 New York Attorney General survey found more than 90% of all polling places had some violation of state or federal accessibility laws. [5] Studies in Arkansas and New Hampshire likewise suggest that 40-60% of polling places in those states have significant barriers to access. [6] More recent state surveys also identify problems. For example, 96% of sites in Marion County (Indianapolis) have barriers -- indicative of the level of access throughout Indiana, according to Julia Vaughn, project director for Count Us In, an advocacy group committed to election access with the Indiana Governor's Planning Council for People with Disabilities.[7] Surveys conducted in Chicago, New Jersey, and elsewhere have also consistently found at least 60% of sites inaccessible. [8]
Federal surveys have also identified significant problems. A 1992 Federal Election Commission study found that 14% (21,195) of the nation's 151,396 polling places had major impediments to access for voters with disabilities. [9] A survey conducted by the United States General Accounting Office ("GAO") addressed the problem on a national level with a sample size of 496 polling locations in 100 counties in 33 states during the 2000 election, using standards for accessibility set forth in Title II of the Americans With Disabilities Act ("ADA"), and the Americans With Disabilities Act Accessibility Guidelines ("ADAAG"). [10]
This 2002 GAO Report found that significant barriers to access existed at polling places nationwide. [11] More specifically, the report found major barriers both outside and inside of the polling places, concluding that 67% of all polling/voting centers used in the 2000 election had some major form of impediment to voters with disabilities, that 56% had barriers but offered alternative voting arrangements, [12] and that only 16% had no barriers whatsoever. [13] The study also found that 28% of the locations in the US had at least one impediment and did not offer any sort of alternative. [14]
Jim Dickson, director of the Disability Vote Project for the American Association of People with Disabilities (AAPD) agreed with these findings, stating at the time that, "We have been struggling for years to get local election officials to give us adequate access to polling places. Over one half of all polling places in America are not fully accessible to people in wheelchairs." [15]
Some barriers for voters with disabilities are obvious even to persons unfamiliar with the standards. One obvious impediment is steps at the entrance to a polling site. The GAO Report found that door thresholds with a height of over 1/2 inch that wheelchairs cannot overcome represented 37% of the barriers nationwide. Election officials have historically been most aware of this threshold problem.
But other barriers to access aren't so obvious to the uninformed. For example, for parking to be fully accessible, there must be an accessible spot close to the voting area, upright signage designating the spot, and an "access aisle" in the adjacent parking space to allow a voter to unload from his or her vehicle. [16] Lots must also be paved -- many parking areas at polling places, particularly in more rural communities are unpaved with gravel, grass, or sand and are difficult for a wheelchair to traverse. Likewise, the path of travel from the parking lot to the entrance to the facility must be clear of curbs and other barriers.
Entrances are another common problem, as the GAO found that 59% of entries were non-compliant [17] as a result of not only the obvious barrier of steps, but also as a result of narrow doorways of less than 32 inches (15% of barriers) and doors that would be difficult for a voter in a wheelchair to open (26% of barriers). [18]
This doorway issue is often difficult for officials to understand and is sometimes missed by officials evaluating their sites. The GAO found that 26% of the doors used would be difficult for an individual using a wheelchair to open because they require excessive force. [19] Many doors at polling places such as churches are much heavier and cannot be opened easily by persons with limited upper body strength.
Door handles must also provide a universal means for accommodating individuals with disabilities or, in the alternative, have electric door openers with accessible push plates. ADAAG requires that door handles have a design that does not require any kind of twisting or turning to open the door. Appropriate door handles include U-shaped and push-lever systems. [20] Unfortunately, many polling places have either door knobs, thumb latches, or "panel-style" door handles of which many people with disabilities cannot open. The United States Department of Justice ("DOJ") has developed an intuitive test for evaluating this issue. This "Fist Test" is conducted by determining whether an able-bodied person can open the door with his closed fist - this simulates the abilities of someone with limited manual dexterity. The doors on many polling locations do not pass this test. [21] One Illinois voter explained the issue at a voting site deemed "accessible" by election officials:
The first problem was the entrance door--it stuck and had to be pulled very hard to get it open. Second, there was a doorknob, not a lever, so someone with handgrip problems would not be able to independently open the door. Third, the exit door on the second floor had similar problems to the one on the first floor--it stuck in the frame, and had to be pushed very hard to open, and it had a round doorknob. [22]
Interior access is another problem that is sometimes not addressed. The GAO found that 14% of sites had some barrier between the front door and the voting room such as interior steps, narrow doors, blockage of corridors or inaccessible or heavy interior doors. [23] One New York voter spoke of the "Convoluted accessible route...the universal access sign was placed on a door leading directly through the auditorium. But...the door was locked, no one had the key, and no one responded to knocking." [24]
B. Competing Interests and Limitations - Advocates and Officials
People with disabilities and their advocates consider polling place inaccessibility as an infringement on their fundamental right to vote. United States Representative Jim Langevin (D-RI), who himself uses a wheelchair, told Congress that: "only 41 percent of people with disabilities voted in the November of 2000 elections, far below the national average...we must act now to ensure that our voting system is accessible to all Americans." [25]
The National Voter Independence Project surveyed voters during 1998 and 2000 elections and found that nearly 43% of people with disabilities experienced some type of barrier in getting in to vote. Of those, 13% of those surveyed in the 1998 U.S. election could not enter or gain access to a ballot at all with barriers such as steps at the entrance impeding their entrance. [26] A 2001 Harris interactive survey found that 95% of Americans with disabilities believed that there was a "serious problem" with the electoral process and access. [27]
These legitimate concerns clash directly with the unique barriers that election officials face in resolving access problems at their polling places, including limited resources, rising costs, lack of understanding, and special logistical challenges.
Changing polling sites to other accessible locations is often the first suggestion by advocates. But it's not always that simple. Officials often have only a limited number of possible sites from which to chose, particularly in rural locations. [28] Many owners of accessible facilities don't want to be used - a statistic backed up by GAO survey results that over 26% of counties find it difficult to provide accessible polling places for this reason. [29] This coupled with the desire to allow all voters to vote close to home, makes moving sites a challenge.
Making permanent changes to those sites used as voting facilities is difficult. As authorities don't control most of these sites, they usually cannot mandate changes. [30] Despite the fact that these public polling places have an independent obligation to become accessible, less than half of election officials are permitted to order permanent modifications at these sites. [31]
Private polling facilities pose an even greater challenge. Churches account for almost 18% of polling sites nationally and are not covered by the ADA. It's no surprise that the GAO Report found that 82% had barriers to access. [32] Ion Sancho, election supervisor for Leon County Florida summarized the problem: "[T]he number one place for polling places in Florida is churches. Those don't need to comply with the Americans With Disabilities Act. What will it cost them to be in compliance? Tens of millions of dollars?" [33] Even HAVA provides only limited relief - several states prohibit public monies from being used to improve privately owned facilities - meaning that only temporary access improvements can be made at these sites. [34]
Cost concerns remain central -- accessibility changes, particularly permanent ones are expensive. In one survey, 54% of election officials stated lack of funding as the single biggest obstacle to improvement. [35]
There are alternative solutions to inaccessible sites, such as reassignment of voters to an accessible location, [36] absentee voting, and curbside voting. Advocates for the disabled appreciate these methods as legitimate alternatives to accessible polling places. Advocates argue, however, that when such alternatives are used as a substitute for accessible sites, they present fundamental problems of inequity in that they limit choices and impose extra requirements on voters with disabilities not imposed on the population as a whole. [37] Indeed, while some voters may appreciate the convenience of absentee or curbside voting, others want to vote at the same time and in the same manner as everyone else. Dickson commented that "[v]oting by absentee ballot segregates us. It puts us out of sight, and out of sight is out of mind." [38]
Not surprisingly, this clash has erupted into litigation. Recent cases concerning polling place inaccessibility include 2001 cases filed in Philadelphia [39] and Washington D.C. [40, 41] Prior to the 2002 general election, plaintiffs filed cases against South Florida, [42] Baltimore, [43] and Chicago [44] officials. More may be expected prior to and/or following the 2004 election.
II. POLLING PLACE ACCESS AND HAVA
HAVA set a stated goal of improving the electoral process nationwide in many areas, including for voters with disabilities. Earlier legislation, such as the 1984 Voting Accessibility for the Elderly and Handicapped Act [45] ("VAEHA") and the 1990 Americans With Disabilities Act had failed to adequately address polling place access issues. [46]
Comments made at the passage of HAVA support the intent to require accessibility in the entire electoral process. Sen. Christopher Dodd (D-Conn) praised HAVA as "[t]he first civil rights legislation of the 21st century because it will ensure that all Americans can participate fully in our democracy by being guaranteed the fundamental right to vote." [47] HAVA is explicit on accessible voting machines as a national standard -- every polling place in the country must have at least one voting system that is accessible to the disabled, including the blind and visually impaired by January 1, 2006. [48] But as to polling place access, it's more ill-defined. Initial efforts to incorporate specific accessibility provisions were defeated. [49]
Whether HAVA's 2006 deadline for accessible voting machines also mandates accessible polling places remains unclear. While there is no specific statutory language to this effect, it can be argued that a voting machine isn't truly accessible unless all voters can get into the polling place to use it. This issue remains unanswered today, but developments prior to 2006, litigation, and/or administrative decisions by the newly-formed Election Assistance Commission are sure to resolve it.
What is undisputed and merits further discussion is that HAVA has passed unprecedented authority to state officials in several key areas - particularly concerning site accessibility. Analysis of the bill upon passage noted that "Congress [will] look to states rather than localities to implement federal election reform." [50] States are now positioned to be more accountable for failures in the future and "[a]s a condition of federal funding, states must prepare and certify a state plan for reform." [51] The result to date with respect to polling place access has been a mismatched state-by-state effort that has seen successes in some states and a lack of progress in others.
The central question of what effect the Help America Vote Act has had on polling place accessibility thus ultimately depends on these two interrelated issues - funding and state-by state analysis.
A. Underfunding as a Barrier to Accessibility
Without specific standards for polling place accessibility, HAVA instead set forth to accomplish its accessibility goals through funding improvements. HAVA authorized $100 million for the purpose of effectuating such changes in projected payments of $50,000,000 in FY 2003, $25,000,000 in FY 2004, and $25,000,000 in FY 2005 to be administered by the Department of Health and Human Services with the goal of:
making polling places, including the path of travel, entrances, exits, and voting areas of each polling facility, accessible to individuals with disabilities, including the blind and the visually impaired, in a manner that provides the same opportunity for participation (including privacy and independence) as for other voters. [52]
The reality has been significantly less. John Conyers (D-Mich.), one of the original sponsors of the House legislation pointed out, "Without funding this bill is an empty shell and the president's signature is a cruel and empty promise." [53] Senator Dodd sent out a letter on October 10, 2003, to his Congressional colleagues stating: "The shortfall in funding is threatening to undermine the ability of the States to implement the very reforms that Congress acknowledged were necessary and required the States to implement, in some cases, in time for the federal elections in 2004." [54]
2003 and 2004 funding levels remain well below allocations. Of the $50 million slated to be spent on accessibility of polling places, Congress only appropriated $13 million in 2003. 2004 grants under section 261 of HAVA were $9 million of the $25 million authorized under the law. [55] Thus to date, only $22 million of the $75 million authorized for polling place accessibility has been appropriated. While many election officials have criticized the underfunding of HAVA, it remains noteworthy that the 26% level of funding for these access provisions is far less than the 76% funding level for 2003 HAVA as a whole. [56] 2005 may be worse still. HAVA authorized $650 million in spending for FY 2005 (which began on October 1, 2004). But President Bush has requested only $65 million to date and Congress has not acted on the request. [57]
Compounding the problem has been the slow pace by which the process has operated. While HAVA originally anticipated that Section 261 funds could go directly to local election officials, the Department of Health and Human Services (HHS) determined that it would only take applications from state (and territorial) departments of elections. Funds thus had to pass through Congress, HHS, and state departments of elections before being distributed to local officials.
And HAVA gave no guidance on how these funds were to be distributed by state election departments. Ironically the Help America Vote Act has ultimately placed unprecedented authority in the hands of state officials as the catalysts for ensuring accessibility.
In addition to frustrated local officials, advocates have also addressed this lack of funding. The AAPD, the Disability Rights Education and Defense Fund, and the National Association of Protection and Advocacy Systems all wrote an open letter to Congress stating that full funding is needed to, among other reasons, ensure that HAVA's access mandate be fulfilled.
B. State Initiatives
Thus, despite little Congressional guidance, state departments of elections have become crucial to ensuring polling place accessibility on a national level.
Some states have fully addressed access issues in all areas far beyond HAVA's mandate. For example, Rhode Island's then-secretary of state Jim Langevin made accessible all 433 of its polling places for the 2000 election. [58] Langevin's words at the time are today prophetic: "I would hope other states would look at what we're doing here, and work toward that same goal." [59] Congressional leaders similarly hailed Rhode Island as a model, stating that Langevin "understood [access changes] and went out and did it." [60]
Maryland has also been lauded for its broad-based access initiatives. On October 20, 2003, the AAPD presented the State of Maryland's Election Director, Linda Lamone, with the Accessible Voting/Justice for All award for a statewide effort to have all of its polling places accessible and to have accessible voting machines in each polling place. [61]
Other states, as discussed in more detail below, have similarly shined in particular areas such as funding and surveys. But for these efforts in a handful of states, many states are lacking. The National Organization on Disability addressed these limitations in a 2002 progress report and opined:
[F]ew if any of these state laws appear to address the unequal protection of the laws encountered by so many citizens with disabilities in their efforts to exercise the simple democratic right of voting. Faced with this evidence of state inability, or indifference, only Congress can act to ensure equal protection of the laws... [62]
Addressing polling place access nationwide requires further analysis of state initiatives in several critical areas: surveys of sites, funding, and other initiatives.
1. Surveys
An important precondition to accessibility improvements has been the creation and conducting of polling place surveys. The content and execution of surveys is critical. A survey that is too long may be unduly burdensome and may be difficult to complete for a large number of polling sites. A survey that is too cursory may not provide enough information to effectuate changes. Here there has been wide variation between states.
Some states have been legislated on these issues, irrespective of HAVA requirements. For example, in 2002, Florida passed a law directly addressing accessibility, mandating surveys by September 1, 2003, and full accessibility by July 1, 2004. [63] While exceptions, hurricanes and delays have pushed back this deadline, Florida has been moving forward for some time. Indiana, Utah, and many other states have also passed accessible polling place legislation.
A pitfall of these survey requirements has been the cost and/or the logistical burden. In some cases, limited accessibility funds have been spent on the surveys - leaving little money under Section 261 or elsewhere to actually make polling place improvements. Some have criticized the Florida survey for being too exhaustive and taking too long to complete. Consider what happened with these Florida surveys in Miami-Dade County. According to director of elections Constance Kaplan, the previous administration spent over $440,000 with private firms conducting accessibility surveys without having made any actual improvements. [64] Maine has conducted impressive surveys, but has found the cost to have encompassed a large portion of their Section 261 funds, leaving little money to actually fund improvements. Even the Department of Justice, which has created a checklist for polling places, has provided a 20-page document that some may consider onerous. [65]
Other states have created proactive state survey plans since HAVA's passage that have been both successful and cost-effective. For example, Illinois adopted an unprecedented cooperative model for polling place surveys and successfully surveyed over 1,500 sites throughout the state during the March 16th primary. The Illinois protection and advocacy agency Equip for Equality partnered with the Chicago Mayor's Office for People with Disabilities and the Office of Illinois Attorney General Lisa Madigan to evaluate sites. [66] While in the past New York's attorney general's office and advocates have surveyed sites, the cooperation of the Illinois effort was unprecedented. Additional counties in Illinois are now using these and other similar surveys to conduct their evaluations. New Jersey has had some success by conducting surveys in a similar manner through a partnership of advocates and state election officials with the state attorney general's office. [67]
Indiana has adopted a unique model through its Count Us In project. Count Us In's most impressive accomplishment has been their statewide surveys of polling places for accessibility. In November, 2003 and again during the May, 2004 primary, they orchestrated disability advocates and others to survey over 2,000 polling places throughout Indiana using uniform tools and a uniform checklist at a comparatively reasonable cost. [68]
North Carolina has consistently been a leader in surveys. In the year 2000, officials analyzed over 2,000 polling places statewide and compiled charts and statistics analyzing, by county, the accessibility of polling places statewide on issues such as parking, thresholds, door width, door hardware, and availability of curbside voting. [69] Subsequent surveys in 2002 and 2004 have taken it a step further and required photographs of inaccessible sites. These surveys have been the catalyst for improved access statewide.
Other states have taken different approaches to surveys. Kentucky, Alabama, Hawaii, and others have used or are using state disability advocates in ongoing efforts to conduct evaluations and Delaware has hired an ADA consultant expert. A large number of states such as Michigan, Wisconsin, and Minnesota have created surveys at the state level but have passed responsibility for conducting these surveys onto officials at the local level. [70]
2. State Funding Levels
Through the Department of Health and Human Services under Section 261 of HAVA, states have received between $200,000 (numerous states) and almost $2.3 million (California) in accessibility funding over the last two years. Again, these funds appropriated and/or distributed to date represent only 24% of the authorized total prior to FY 2005. Given the costs of access improvements at polling places, advocates and election officials in some states have wisely determined that these funds must be supplemented by unrestricted HAVA funds. [71]
North Carolina Director of Elections Gary Bartlett, Co-Chairman of the National Task Force on Election Access, has continuously addressed the importance of the issue and wants to ensure that access initiatives were adequately funded despite diminished Congressional appropriation. In 2003, North Carolina decided to allocate $1.2 million to the issue, despite only receiving $339,029 from the department of Health and Human Services. [72]
Georgia likewise determined that additional funding was necessary. The state HAVA plan set to disburse $700,000 in general HAVA funding in addition to the $335,000 received from the Department of Health and Human Services in 2003 for improving disability access. [73]
Illinois director of elections Daniel White also met with advocates and realized that the Section 261 funding would not be sufficient to address the issues. Illinois allocated an extra $1.5 million in addition to the $870,164 provided under Section 261 of HAVA. Illinois then initiated an aggressive program to ensure that many of these funds were actually distributed to election officials prior to the 2004 election so that substantive changes could be made. [74]
Other states have followed these models to appropriate additional funds to the issue. States implementing and/or considering such supplemental funding initiatives for polling place accessibility include Tennessee, New Jersey, and New York.
3. State Funding Models
In addition to analysis of how much funding states have allocated for polling place accessibility, it is also important to determine how states have allocated precious resources and when changes are ultimately being made. Again, states have varied considerably in how they have approached distribution and/or use of these funds and how quickly they have implemented access improvements.
Illinois has established a "Funds Distribution Model" for distribution of HAVA funding for polling place accessibility. The "Illinois Model" consists of distribution of Section 261 (and additional HAVA monies) based upon registered voters. During the summer of 2004, the state sent funds directly to applying counties, which have started to use the funds to improve accessibility at their polling places through the purchase of products or other qualifying access improvement projects. Counties are required to submit invoices and statements to the State Board of Elections demonstrating qualified use. This model is thought to reduce some of the administrative burden of evaluating specific access projects on a statewide level.
The most common strategy for fund distribution regarding polling place access among states is a "Grant Application Model." Funds are requested by local officials from the state department of elections for specific accessibility projects or product solutions. Local election officials are provided with a list of ideas of appropriate products and projects for accessibility. They are then required to submit, to the state, lists of the chosen product solutions or projects with cost estimates. Funds are allocated based on the project or product proposals.
Some states, such as Arizona, North Carolina, Montana, Minnesota, and Arkansas have employed this tactic and distributed significant funds in 2004 in advance of this election and have facilitated changes. This system requires that accessibility purchases be reviewed at a statewide level to ensure that local officials use the funds for appropriate purposes.
Under both of these models, timing remains critical. Some states employing the grant application model may be too late to effectuate significant change for November. California, Pennsylvania, Vermont, Arkansas, Iowa, Colorado, and West Virginia fall into this category, and it is uncertain whether it is too late for these HAVA funds to make meaningful change for the upcoming election. [75] Other states have simply determined that they do not have enough time to implement changes prior to November, 2004, and have instead focused on surveying polling places up to, and during the general election. These states, of which Kentucky, Delaware, Virginia, and Michigan are typical examples, appear farther behind in the process but may want to ensure that surveys are done adequately prior to attempting to implement change. [76]
But even among those states that have made a sincere effort to distribute funds prior to November - to ensure that at least some accessibility changes occur, levels of success vary. For example, many election officials have not taken advantage of grants in Arkansas, where only 16 counties out of 75 statewide were awarded polling place accessibility grants. [77] Some officials believe that the timing of the grants has been rushed and has not given them time to adequately evaluate their needs.
Several states have adopted other unique strategies to ensure access and maximize the effect of their HAVA funding for accessibility. For example, Kansas requested bids and awarded contracts for statewide bulk purchase of several hundred portable ramps for polling place sites, as well as door hardware solutions. Access products were purchased from qualifying vendors and drop shipped directly to counties. This resulted in a major discount for the state, allowed Kansas the most purchasing power for their limited HAVA funds, and also ensured timely delivery prior to the 2004 elections. [78] Hawaii and Maryland are among other states that have followed this lead.
Indiana has set a different strategy to ensure access. Despite an excellent survey, access barriers at polling places in Indiana remain significant. [79] Consequently, the Indiana State Board of Elections has informed local election officials that, before they can receive funding for new voting machines, they must certify that their polling places are accessible to voters with disabilities. Linking these two issues ensures that not only will every polling place have an accessible machine, but that all voters will be able to get to these accessible voting machines, and positions Indiana as a leader on the issue. [80]
4. Other State Initiatives
Beyond surveys and funding initiatives, several other state efforts bear special mention. As far back as 1993 Florida passed legislation tying accessibility in polling places to Title II of the ADA: [81] North Carolina and New Jersey have hosted polling place accessibility seminars, at which election officials, advocates, and state officials have met to discuss polling place accessibility requirements, surveys, and solutions to improve accessibility. [82] And efforts such as the Count Us In project in Indiana go beyond surveys to include education of officials about solutions, a statewide voter registration project, and a get out the vote initiative.
C. Other Initiatives and Lessons for Officials
1. Local Initiatives
While states remain crucial to the implementation of HAVA's access provisions, it is the local election officials who have ultimate responsibility for accessibility. Several extraordinary efforts at the local level merit mention as many officials have decided to go above and beyond state requirements.
For example, Lassen County, California, submitted a "Best Practices" paper to the Election Center in August, 2002, outlining their detailed plan for evaluating the accessibility of all polling places through submission of a uniform form and set of standards to ensure compliance with the VAEHA and ADA Title II. [83]
Several Illinois jurisdictions also bear mention for impressive efforts. Chicago's Director of Elections Lance Gough realized several years ago about the importance of accessibility and put together a blue-ribbon panel of local advocates and representatives of the disability community to meet to discuss accessibility of the electoral process including polling place access, voting machines, voter education, and voter outreach.
Champaign County Clerk Mark Shelden had already surveyed all of his sites by the time the State of Illinois requested that polling places be surveyed for access. The county worked with local advocates to not only ensure that polling places were accessible, but also that the proper tools (magnifiers, signature templates, grip assistive devices, etc.) were in each polling place. When the appropriate tools weren't available, they created them, including a universal training video as well as notecards for communication with voters who are deaf or hard of hearing. Shelden notes that "Our office has always considered access an important issue. We've had a great relationship with our local independent living center [PACE] and have found that communication has been an effective way to ensure that the needs of all voters are met." [84]
2. Other Leaders
Beyond election officials, others have been instrumental to ensuring access. At the local level, independent living centers have helped ensure accessibility through assistance with surveys and/or meetings with officials.
Advocates also continue to shine on the national stage. The AAPD's dedicated disability vote project includes links, outreach, and resources on accessible voting machines, accessible polling places, and get out the vote initiatives. [85] The United Cerebral Palsy Association has launched their "Don't Block My Vote" initiative. This campaign has pushed Congress to approve full HAVA funding of $650 million for FY 2005 with a goal of fully funding accessibility initiatives. As of October, 2004, more than 10,000 letters have been sent to Congress as part of the campaign, according to United Cerebral Palsy officials. [86]
And while there are far fewer players than in the accessible voting machine field, even private industry has stepped in. ADA consultants have helped officials nationwide with surveying their sites, while companies such as Chicago-based Inclusion Solutions have worked with officials nationwide by providing them with solutions to make polling places temporarily accessible. [87]
3. Lessons for Officials
Whether or not a given state is proactive with respect to the issue, there are many things that local election officials can do to remove barriers to voting.
Two prerequisites are crucial. First and foremost is the importance of enlisting assistance. Working with local disability advocates ensures that the input of all interested parties is heard and is also a great way to incorporate the expertise of parties well-familiar with accessibility requirements. Second is ensuring that surveys are complete, accurate, and well-planned. Surveys are the basis upon which changes are to be made.
Next, a wide range of solutions must be considered to address the issue -- no single solution will solve the problem.
Moving polling sites may be an alternative in some cases - outreach to evaluate options and enlist new sites is helpful. Some sites can be permanently changed, particularly those that are at public facilities - and some of these changes, such as door hardware retrofits, are not prohibitively expensive. Letting the operators and managers of public facilities know that they are covered by the Americans with Disabilities Act and have an independent obligation to become accessible may facilitate some changes. Working with these facilities directly can also help bring them into compliance.
Temporary solutions such as door grip retrofits, portable ramps, matting for unpaved lots, temporary parking signs and door hardware alert system alternatives are also great options. Not only are they often more affordable than permanent changes, but they are owned by election officials and removed when not in use - thus avoiding restrictions on spending public funds on private facilities.
Some changes cost almost nothing and require only common sense. Simple changes that make a difference include putting cones out to block access aisles, taping thumb-latch door hardware down, propping open inaccessible doors, posting an official outside to assist voters, or creating simple signs to direct voters to alternative entrances. And some barriers, such as a requirement of accessible bathrooms can be avoided altogether by not allowing any voters to use restrooms - thus removing any discrimination. [88]
Finally, when sites simply cannot be made accessible, other alternatives must be created and provided for voters. Alternatives such as absentee voting, centralized locations, reassignment, and curbside voting plans should all be instituted as alternatives as some voters will prefer each of these choices. It is crucial in implementing these alternatives that voters are well-informed about their options and given dignified choices.
III. CONCLUSION
The 2004 election represents a transition period with respect to polling place accessibility. HAVA has focused attention on the issue, but inconsistent funding from both HAVA and from state departments of elections, and uneasiness about how to approach the issue, polling place accessibility remains very much in flux. The experience of voters with disabilities during the 2004 election, the continued effort at the state and local level and by advocates, and the looming January 1, 2006 deadline for accessible voting machines all suggest that the next 14 months will be critical for the accessibility of the electoral process for voters with disabilities.
*Hollister Bundy is an adjunct professor at John Marshall Law School and is Vice President of Inclusion Solutions, a company that focuses on assisting businesses and election officials with accessibility issues. He is a member of the Illinois HAVA Accessibility Team, is author of "Election Reform, Polling Place Accessibility and the Voting Rights of the Disabled from the Election Law Journal" and is editor of HAVAccess, a bi-monthly newsletter on accessibility issues in elections.
REFERENCES
1 Help America Vote Act of 2002, (( 301(a)(3), 301(d).
2 United States Census Bureau Current Population Reports (Feb. 2001) pp. 9, 11
3 Toledo Blade, September 27, 2004, Disabled pursue ballot-box parity Groups want more funds spent for updates
4 Polls among voters with disabilities showed 56% support for Al Gore and an estimated 4 million additional votes would have been cast in the 2000 election. With 56% of those for Gore, this would have resulted in a net pickup of 480,000 votes for Gore, including several thousand in Florida to have tipped the state, and thus the election. Also see http://www.ncd.gov/newsroom/publications/progressreport_07-26-02.html#chap2
5 The Center For An Accessible Society, More Than 20,000 Polling Places Inaccessible http://www.accessiblesociety.org/topics/voting.
6 U.S. Government, House of Representatives, Special Committee on Election Reform Results http://democraticleader.house.gov/electionreform/results09.htm.
7 Indianapolis Star, September 27, 2004, Access problems still barrier for disabled voters
8 Lafayette Journal & Courier, September 10, 2002, 2002 WL 24207440; Illinois Attorney General's polling place survey of Chicago, conducted March, 2004.
9 U.S. Government, House of Representatives, How America Votes http://democraticleader.house.gov/electionreform/results09.htm.
10 GAO Report, Voters With Disabilities: Access to Polling Places and Alternative Voting Methods, United States General Accounting Office, GAO 02-107, October 2002, hereinafter "GAO Report." Footnote 10. The GAO also used the United States Department of Justice ADA Guide for Small Towns as well as guidelines set forth by the Federal Election Commission, the National Organization on Disability, and the National Task Force on Accessible Elections. The GAO also evaluated 89 additional sites outside of election day and interviewed state and local officials.
11 GAO Report, Voters With Disabilities: Access to Polling Places and Alternative Voting Methods, United States General Accounting Office, GAO 02-107, October 2002, hereinafter "GAO Report."
12 GAO Report, p. 12. Curbside voting is a process whereby voters with disabilities arrive at their designated polling places on election day and have election officials bring ballots out to them. In some cases the voter will directly alert officials from his or her car, and in other situations he or she may need to get to the front door of the polling location to request assistance. An election official will then bring a ballot out to the voter who will then vote outside or "curbside" and make his or her choices. North Carolina's typical curbside policy provides: "Aged and disabled persons allowed to vote outside voting enclosure. In any primary or election any qualified voter who is able to travel to the voting place, but because of age, or physical disability and physical barriers encountered at the voting place is unable to enter the voting place or enclosure to vote in person without physical assistance, shall be allowed to vote either in the vehicle conveying such person to the voting place or in the immediate proximity of the voting place. . ." North Carolina G.S. 163-155.
13 Id. p. 23.
14 See, e.g. Bundy, Hollister; Election Reform, Polling Place Accessibility and The Voting Rights of the Disabled; Election Law Journal Spring 2003, Mary Ann Liebert Press.
15 U.S. Newswire, GAO Report Shows Disabled are Denied Voting Access, October 16, 2001.
16 See, Bundy, citing that Report found that 33% of all voter/polling places failed to comply with the parking and path of travel standards set forth in ADAAG and that 57% of the voting/polling places failed to maintain a path of travel from parking to the entrance free of impediments. Impediments included such things as unpaved and/or poorly maintained walking surfaces or curbs without curb cuts that voters with disabilities cannot traverse.
17 Id. p. 86.
18 ADAAG Section 4.13.5 requiring entrances have at least a 32 inch clearance width.
19 Id.
20 ADAAG 4.13.9 "Door Hardware. Handles, pulls, latches, locks, and other operating devices on accessible doors shall have a shape that is easy to grasp with one hand and does not require tight grasping, tight pinching, or twisting of the wrist to operate. Lever-operated mechanisms, push-type mechanisms, and U-shaped handles are acceptable designs."
21 This discussion is a summary of a more lengthy discussion on this topic from Bundy, p. 219
22 Incorporated from Bundy, citing to National Association of Protection and Advocacy System, Report of the National Voter Independence Project, (1998) http://www.protectionandadvocacy.com/nationv.htm
23 GAO Report, p. 27. For a more detailed discussion of specific barriers to access, see Bundy pp. 217-221.
24 Bundy, citing to Queens Independent Living Center Organization, In Our View: Access-Election 2000 http://www.nycilc.org/viewelection.htm
25 Remarks of Rep. James Langevin (D-RI), debate on Conference Report on Help America Vote Act of 2001, 148 Cong. Rec. H 7836 (October 10, 2001).
26 National Voter Independence Project, http://www.protectionandadvocacy.com/nationv.htm.
27 Harris Interactive Survey, 2001, http://www.harrisinteractive.com.
28 The North Carolina State Board of Elections, for example, advises voters "Unfortunately, some localities do not have the available structures or adequate funding to alter them." See http://www.sboe.state.nc.us/access.htm.
29 GAO Report, p. 33.
30 Id.
31 GAO Report, p.34.
32 Id. p. 29
33 Doug Chapin, Election Reform Since November 2001: What's Changed, What Hasn't and Why, p. 40, Election Reform Project (October 29, 2002) http://www.electionline.org.
34 Illinois and Arkansas are two examples of states that have imposed this restriction.
35 Princeton Survey Research Associates, January 2002.
36 GAO Report, p. 87.
37 Bundy
38 David Cray, Group Seeks More Clout, Access to Polls, The Topika Capital Journal, comments of Jim Dickson, November 3, 2002, http://cjonline.com/stories/110300/new_disabledvoters.shtml
39 National Organization on Disability, et. al v. Tartaglione, 2001 U.S. Dist. LEXIS 16731, filed April 17, 2001.
40 American Association for People With Disabilities, National Federation for the Blind et al v. District of Columbia Department of Elections, filed September 5, 2001(D.C. Cir. 2001), http://www.wcdd.org/dawn/votebackground/aapd_pres_BGcfm#con.
41 Id. See also, Arthur Santana, District to Aid Disabled Voters, Washington Post, August 16, 2002. Settled in 2002 although polling place access issues remain unresolved.
42 Lorraine Lanes, et. al and National Federation for the Blind, Broward Chapter and Access Now, Inc. vs. Broward County Department of Elections, filed September 25, 2002 (complains of physical barriers at polling places, including lack of disabled parking spots, and physical impediments such as steps and hard-to-navigate ramps).
43 Kate Shatzkin, Disabled man claims poll site is inaccessible: Suit filed after problem voting in city primary, Baltimore Sun, October 12, 2002, http://www.sunspot.net/bal-md.vote12oct12.story, Reuter v. Barbara Jackson, Elections Administrator City of Baltimore, filed October 11, 2002.
44 Starck et al v. Board of Election Commissioners For the City of Chicago.
45 Voting Rights Act Of 1965, 42 U.S.C. § 1973 et. seq. (amended 1984).
46 Americans With Disabilities Act, ("ADA"), 42 U.S.C. (12101 (1990) et. seq. For a more detailed discussion of the shortcomings of these law, see Bundy pp. 218-227.
47 Remarks of Sen. Chris Dodd (D-CN), Senate debate on Conference Report on Help America Vote Act of 2002, 148 Cong. Rec. S 10412, October 15, 2002.
48 Help America Vote Act of 2002, (( 301(a)(3), 301(d).
49 See Bundy, p. 232-234 for a detailed discussion of the legislative history of HAVA and efforts to incorporate accessibility provisions.
50 Doug Chapin, Election Reform Since November 2001: What's Changed, What Hasn't and Why, p.12 (October 2002) http://www.electionline.org.
51 Id.
52 HAVA (261(b)(1).
54 Comments of Sen. Chistopher Dodd (D-Conn.) in open letter October 10, 2003.
55 http://www.acf.hhs.gov/programs/add/EAID.htm
56 Generally speaking the access provisions of HAVA have been underfunded far worse than the rest of the bill. Payments to state protection and advocacy agencies were cut and proposed payments under Section 271 of HAVA to public and private entities to "carry out research and development to improve the ...accessibility... of voting equipment, election systems, and voting technology" were cut altogether.
57 Toledo Blade, September 27, 2004, Disabled pursue ballot-box parity Groups want more funds spent for updates
58 Disabled Voters Roused to Action. Rhode Island also became the first state to enable all blind voters to vote without assistance from another person. November 2, 2000, AP Online, 2000 WL 29037052.
59 Id.
60 148 Cong. Rec. H 7836 (October 10, 2002).
61 HAVAccess Volume I Issue 6, November 2003, reprinted from PR Newswire, October 21, 2003
62 National Council on Disability, National Disability Policy: A Progress Report December 2000--December 2001, http://www.ncd.gov/newsroom/publications/progressreport_07-26-02.html#chap2.
63 Fl. Stat. (101.715 (2002) (originally Fla. Sen. 1350, 104th Sess., signed May 24, 2002). If election officials formally request a variance, accessibility does not have to be completed until 2006. Florida is now developing a uniform survey tool to evaluate polling place accessibility.
64 Interview with Constance Kaplan, Miami-Dade director of elections, March 2004.
65 http://www.usdoj.gov/crt/ada/votingck.htm
66 Interview with Lisa Danna, former Bureau Chief, Illinois Attorney General's Office, June 2004.
67 Interview with Ramon DeLaCruz, Director of Elections, State of New Jersey. See also http://www.state.nj.us/lps/elections/access_issues.html for a more detailed discussion of New Jersey access initiatives.
68 Interview with Julia Vaughn, Program Director of Count Us In, May 2004.
69 See, http://www.sboe.state.nc.us/access/access6.htm.
70 States providing surveys include Oklahoma, North Carolina, Wisconsin, and Virginia.
71 http://a257.g.akamaitech.net/7/257/2422/14mar20010800/edocket.access.gpo.gov/2003/03-12699.htm (2003), http://www.acf.hhs.gov/programs/add/EAID.htm (2004)
72 HAVAccess Newsletter, Vol. I Issue 5, September 2003
73 http://www.sos.state.ga.us/hava/state_plan_final.pdf
74 Comments from Director of Elections Daniel White, State Board of Elections Open Board Meeting, June 2004.
75 See, e.g. http://www.ss.ca.gov/elections/hava_eaid_grantprogram.pdf (California); http://www.dos.state.pa.us/sure/cwp/view.asp?a=1207&Q=443565 (Pennsylvania); http://vermont-elections.org/elections1/RFPEAID218.pdf (Vermont); http://www.sos.state.mn.us/HAVA/DGrant.html (Minnesota); http://www.sboe.state.nc.us/ (North Carolina).
76 See Bowman, Rich, Polling Places to Face Scrutiny, Richmond Times-Dispatch, July 4. 2004, http://www.timesdispatch.com/servlet/Satellite?pagename=RTD%2FMGArticle%2FRTD_BasicArticle&c=MGArticle&cid=1031776486333&path=!news%25
77 Interview with Harold Grimmett, Arkansas Secretary of State's Office, April 2004.
78 Interview with Brian Hensen, State HAVA Coordinator. See also http://www.kssos.org/elections/elections_reform_stateplan.html
79 Indianapolis Star, September 27, 2004, Access problems still barrier for disabled voters
80 http://www.in.gov/sos/elections/pdfs/HAVAReimbursementApp.pdf
81 Fl. Stat. (553.501-(553.513 (1993).
82 New Jersey Polling Place Accessibility workshop hosted by State Elections Director Ramon, DeLaCruz, February 22, 2004
83 Julie Bustamante, Professional Practices Paper: POLLING PLACE ACCESSIBILITY, submitted to Election Center, August, 2002, http://clerk.lassencounty.org.
84 Interview with Mark Shelden, September 13, 2004.
85 See http://www.aapd-dc.org/dvpmain/newdvpindex.html
86 Toledo Blade, September 27, 2004, Disabled pursue ballot-box parity Groups want more funds spent for updates
87 See, http://www.inclusionsolutions.com. Author Hollister Bundy is Vice-President of Inclusion Solutions. Among offerings is a full catalog of accessibility products for polling places.
88 Note that officials need to be careful when making bathrooms off-limits. If any election judges have a disability requiring an accessible restroom, they must be posted at a facility that has ADAAG-compliant bathrooms.