Constitutional and Statutory Voting Rights for People with Disabilities

Abstract

Bush v. Gore brought an unprecedented level of attention to the administration of elections. This legal and political spotlight offers an ideal opportunity to reflect on the importance of the voting process, and evaluate how the choices election officials make in administering elections impact the civil rights of different groups.

It is with this goal that this Article examines voting rights for people with disabilities. Part II canvasses the available data and presents the range of barriers that people with disabilities face in exercising their right to vote. Two patterns emerge. First, people with disabilities tend to vote in lower numbers than the general population. Second, when they do vote, their voting experience is fundamentally different than most other voters. Inaccessible polling places force many people with disabilities to vote in other, less public ways (like curbside or absentee ballots). And the voting machines used in federal elections do not allow many people with disabilities to cast their vote secretly and independently. These inequities have developed because of the failure of federal and state law. This is not a technological issue, but the result of choices by lawmakers and election officials.

Part III argues that as a policy matter, this is a grave problem. Denial of a secret and independent vote and polling place access for people with disabilities offends the values of "equal dignity" and "expanded instrumentalism." From an equal dignity perspective, it is troubling when different groups of people are treated differently when exercising a fundamental right. Expanded instrumentalism, in contrast, is concerned with practices and laws that undermine the effectiveness, accuracy, and informed nature of the exercise of a right for a particular group. The lack of secret and independent voting for people with disabilities creates a heightened chance of voter fraud (demonstrated by "volunteers" trying to change votes), and suggests that people with disabilities are not able to function independently. Similarly, non-polling place voting lessens the voting power of people with disabilities, (by forcing them to vote before other citizens, by absentee ballot, or, with curbside voting, denying their right to vote completely in cases of inclement weather), and sends a harmful signal about their inclusion into larger society. For these reasons, I suggest that merely ensuring "the right to vote" for people with disabilities is not enough - they must be guaranteed the ability to vote on the same terms as their fellow citizens.

Part IV explores the structure and viability of an argument for a constitutional right for people with disabilities to vote in their polling places, and to vote in a secret and independent manner. Although, relying heavily on Bush v. Gore's statement that one source of the fundamental nature of the right to vote "lies in the equal weight accorded to each vote and the equal dignity owed to each voter," such an argument is possible, it does not stand a strong chance of success in today's federal courts. More fruitful, suggested in Part V, is a federal statutory model. This Part presents and evaluates the Help America Vote Act (HAVA) as it impacts the voting rights of people with disabilities. While this statute unambiguously provides a federal right for people with disabilities to vote secretly and independently, it is less definite on polling place access. Ultimately, this Part concludes that much of HAVA's success in creating change will depend on how it is funded and administered.

Keywords: Voting, disability, civil rights

JEL Classification: K19, K41, I31, J78