Civil Rights and the Administration of Elections - Toward Secret Ballots and Polling Place Access

Abstract

This Article examines the interaction of two concepts: a civil rights model of disability, focused on providing equality of opportunity; and a renewed academic interest in the machinery of elections as an important part of election law. Specifically, this Article looks at democratic states' laws and practices relating to voting and disability.

Part II of this Article explains the problems people with disabilities face in trying to vote secretly and independently, and in polling places, in the United States. Secret ballots and polling place voting minimize fraud and intimidation. As the only group systematically steered toward third-party assistance or absentee balloting, people with disabilities have their voting power reduced. Similarly, having people with disabilities vote in a non-public manner sends a harmful signal about their full inclusion into society. This situation has developed because of the lack of a clear constitutional or statutory principle guaranteeing secret and independent ballots, and polling place voting, to people with disabilities. The Help America Vote Act takes important first steps toward guaranteeing that people with disabilities are at least guaranteed a secret and independent ballot.

Part III of this Article surveys how democratic countries (states) currently regulate this intersection of voting and disability law and policy. This survey yields three conclusions. First, the voting rights of people with disabilities are on most states' legislative agendas. This supports the proliferation of what some commentators have referred to as the "international force" of the disability civil rights model. Second, states are legislating on this topic in different ways. While nearly every state has laws that attempt to remove some barriers to electoral participation for people with disabilities, the individual approaches vary. Third, this review of states' laws shows that states are not currently conceptualizing the right to vote for people with disabilities as including a secret ballot and polling place access for people with disabilities. A closer look at the regulatory frameworks of three states - the United Kingdom, Ghana, and Peru - confirms and gives context to these three conclusions.

Part IV of this Article argues that the secret ballot/polling place standard should be internationalized. Historically, this standard has not been a clear and consistent part of international law instruments dealing with voting and/or disability. This Part begins the discussion of how this might change. Specifically, this Article suggests incorporating this standard into the United Nations Convention on the Protection and Promotion of the Rights and Dignity of People with Disabilities.

Keywords: voting, elections, people with disabilities, civil rights

JEL Classification: J71, K19, K33