from www.nysilc.org (the New York State Independendent Living Council)
COMPLAINTS REVEAL WIDESPREAD PATTERNS OF VOTING DISCRIMINATION AGAINST NEW YORKERS WITH DISABILITIES
March 1, 2005
Our country has a checkered history of preaching democracy and equality, while simultaneously practicing voter discrimination against targeted constituencies. Elected officials have achieved these ends by routinely creating barriers to the voting process, which has effectively excluded and disenfranchised individuals from exercising what is the most fundamental right afforded to an American citizen.
Before 1828, politicians in various states used the proof of landownership and/or ability to pay taxes as a way to exclude working class and destitute men from voting. Before 1920, elected leaders used qualification by gender, and the threat of being arrested, jailed, and fined, as a way to prohibit women from voting. Before 1965, political leaders in certain states denied people of color their right to vote through the use of Jim Crow Laws. These laws imposed either poll tax or literacy test barriers. White citizens were grand fathered in from having to comply with the same requirements. Before 1971, politicians ignored the voting rights of young adults between the ages of 18-20, who were eligible to fight in Vietnam, but not to vote in the United States. The indifference, coupled with a military draft, festered into a generation gap and need for social change.
The report, entitled
"Complaints Reveal Widespread Patterns Of Voting Discrimination Against New Yorkers With Disabilities" was developed by the New York State Independent Living Council (NYSILC) following a broad range of voting access complaints by individuals with disabilities.
To this day, New Yorkers with disabilities still face significant barriers to access voting machines, the ballot, and polling places, as well as in their treatment by polling place workers. Elected officials have allowed the situation to persist and have done little to enforce the law. This report will summarize recent events and the results of ninety-two voting discrimination complaints submitted to the New York State Independent Living Council (NYSILC) from Primary or Election Day 2004. The collective complaints reveal widespread barriers related to all aspects of the voting process for people with disabilities.
2005 will prove to be a pivotal year. Our state leaders currently find themselves at a moment in time similar to their predecessors in 1828, 1920, 1965, and 1971. Will they continue to ignore implementation of anti-discrimination statutes and the Help America Vote Act (HAVA) Law and allow voting barriers to persist for New Yorkers with disabilities, or will leadership emerge to guarantee that all citizens of this state have full access to vote privately and independently?
New Yorkers with disabilities were looking forward to the promise of the Help America Vote Act (HAVA), when it was passed in October 2002. Unfortunately, more than two years later, New York State has failed to reach consensus on how to implement voting access requirements. Under HAVA, states must follow new federal requirements including provisional ballots, statewide computer voter lists,
"second chance" voting, and disability access of machines at polling sites, including the ability of persons who are blind or visually impaired to be able to vote independently and confidentially. In addition, all states must comply with Section 504 of the Rehabilitation Act and the Americans with Disabilities Act (ADA) regarding accessibility of polling sites, voting systems and ballots.
Lacking an agreement about ways to amend State Election Law in order to bring it within compliance, the stalemate has frozen the release of almost a quarter of a billion dollars in federal HAVA funds. All states must comply with HAVA by Primary Day 2006. The State has less than eighteen months to act, and prolonged non-compliance could lead to the forfeiture of the federal HAVA monies. In addition, New York has to comply with certain HAVA requirements whether or not they get the federal funding. So the state's failure to act would shift the cost of mandated election reform solely onto the backs of New York State taxpayers.
New Yorkers with disabilities moved early on after HAVA's passage to educate elected officials about the urgency of achieving full voting access after more than 200 years in the history of our state and country. Advocates offered testimony, drafted and proposed bill language, created position papers, tested voting machines, participated at the state HAVA Implementation Task Force meetings, signed on to a minority report of that Task Force, held press conferences, submitted opinion pieces to newspapers across the state, and attended legislative conference committee meetings. However, these efforts were met with stonewalling and delays.
After such a varied and positive approach to participate in a working part of the solution, frustration set in at the end of what was believed to be the last conference committee meeting to resolve differences between Senate and Assembly bills. The reaction to the lack of progress was no different from what had occurred in the build-ups before 1828, 1920, 1965, and 1971. Over seventy advocates engaged in a protest to demonstrate their displeasure with the failure to develop accessibility provisions. Two women were arrested for civil disobedience, using their wheelchairs to block conference committee members into a room for forty minutes.
Shift in Strategy
Given such disappointment, a meeting was arranged in July 2004 with William Brown, the attorney who successfully litigated the Tennessee v. Lane case before the U.S. Supreme Court. In his own words, Brown said,
"What you need is a bunch of George Lanes." Subsequently, the decision was made to identify individual New Yorkers with disabilities denied access to vote privately and independently, as required by HAVA and other federal laws. Each instance of discrimination would be documented in a consistent format. The collective results would then be summarized into a report and submitted to elected officials, as well as disseminated to the public. The initial goal of the report would be to confirm the lack of voting access that exists in New York State. It was hoped that the information would provide compelling evidence to elected officials that they cannot continue to ignore this mandated change on both a moral and legal basis.
Advocates responded by establishing a statewide disability voter discrimination complaint process. A form was created to collect bona fide complaints. The information requested was designed to be consistent with the content required to file voting discrimination complaints with the U.S. Department of Justice (DOJ), if necessary. Informational materials were prepared and distributed with the form to similar statewide disability networks. A training schedule was developed for August and September 2004 to familiarize advocates with the process. Finally, the Catskill Center for Independence (CCFI) agreed to host a link on its website to promote the process. It provided the informational materials, allowed individuals to download the complaint form with instructions, as well as file a complaint electronically to enhance the process.
The results confirmed that voting access problems exist throughout New York State. To date, ninety-two disability voter discrimination complaints have been received through this process from Primary and Election Day 2004. The complaints originated from twenty-one different counties across the state. Each person identified their voting barrier complaints according to four categories:
polling site access
voting machine access
They could select one or more categories, if relevant.
Out of the ninety-two complaints:
52% identified one voting barrier.
37% reported two voting barriers.
10% noted three voting barriers.
1% cited four voting barriers.
Overall, this means that almost half of the complainants experienced two or more barriers to their access to vote.
When the various complaints were considered collectively:
15% were related to polling place access.
41% machine access.
26% ballot access.
18% "other" access.
Comments from the complainants reveal widespread problems related to voting access for New Yorkers with disabilities, and signal that the State is currently not positioned and is ill prepared to ensure that citizens can vote privately and independently by Primary Day 2006, as required by HAVA. They also amplify the need to make very specific changes to state Election Law in order to ensure appropriate, full compliance. Examples are summarized below.
Complainant (#29) was told that she/he could not vote because she/he could not read. She/he attempted to register at a public library. She/he was denied the right to register to vote.
Complainant (#52) had voted, by choice, on an absentee ballot for the past seven years. She/he voted by absentee ballot on Primary Day 2004. She/he called the local Board of Elections on three separate occasions and was promised an absentee ballot in time for Election Day 2004. She/he received the ballot late and was denied right to vote.
Complainant (#31) did not register because voting machines are not accessible. She/he is visually impaired and cannot see the ballot. She/he also uses a wheelchair and cannot pull the lever because it is too high. She/he tried to vote about 10 years ago, but was not successful.
Insufficient notice/change of polling site:
Complainant (#79) received a post card in late August to notify them of their designated polling site. In late October, she/he received a letter to instruct them of a polling site change. She/he immediately called the board of elections. She/he was told to contact someone from their political party to make transportation arrangements to the new site. The complainant informed them that she/he used a wheelchair. No accessible vehicles were available. The late notice made it impossible to arrange a ride to the new polling place and therefore denied him/her the right to vote.
Denied preferred method of voting:
Complainant (#15) inquired about the accessibility of the voting machine and anything she/he might need to cast his/her ballot. She/he was informed by the local board of elections to use an absentee ballot instead of coming to the polling place. She/he was denied the preferred method of voting.
Lack of privacy/affidavit ballot:
Complainant (#45) brought their voting card to the polling site and the poll workers did not have the complainant registered on the books. She/he was offered an affidavit ballot. The affidavit ballot had to be read to the complainant because she/he was blind. This process was conducted in front of everyone at the polling place, instead of in privacy. The poll worker read everything out loud for all to hear, including the complainant's voting choices.
Complainant (#90) went to the polling site with his/her personal care attendant. The poll worker required the personal care attendant to read an oath and sign a form. The complainant wanted to sign under
"registrant" but was told
"no," without being offered any explanation. The personal care attendant felt uncomfortable and the complainant believed that the poll worker was dismissive of his/her concerns. No one explained the purpose of the form to either the complainant or the attendant.
Polling site access:
Complainant (#38) went to his/her assigned polling site and encountered a ramp with a steep incline and no railing. She/he could not access the site and was thus denied their right to vote.
Complainant (#27) could not use a makeshift ramp to enter polling site. The threshold had multiple layers. She/he had to be pulled in backwards. After voting, complainant attempted to leave by another exit and injured their arm in the process.
Complainant (#43) encountered a step at the entrance of the polling site while in their wheelchair. It had a piece of a half-inch thick plywood laid down as a ramp. She/he felt it was too dangerous to attempt to enter and therefore was denied the right to vote.
Lack of machine and ballot access:
Complainant (#1) asked for an accessible voting booth and was sent to a standard booth with levers and curtain. It was too high to reach all levers and read all names on the ballot. They gave the complainant a print out of the ballot. As she/he started to vote, the supervisor came over and offered to lower the machine. It malfunctioned and only lowered about an inch and a half. This did not improve access to the machine or ballot. The poll workers admitted that they learned about the machine, but couldn't remember because they didn't think anyone would need it.
Complainant (#30) could not see top the rows of the voting machine from their wheelchair because the ballot was too large. She/he could not reach the voting levers or pull the large handle to submit their vote. Only one poll worker came into the booth to help them. Upon his/her choice of president, the poll workers tone of voice became noticeably approving.
These complaints reflect pervasive patterns of voting discrimination, which can only be addressed through clear legislative mandate, adequate mandatory poll worker training, guidance and proper enforcement. The legislature must clearly focus on access to voting machines, the ballot, polling places, and training for polling place workers and the public. These long-standing problems identified in the survey process, as well as others, will not be addressed and remedied solely by giving broad discretion to the State Board of Elections to promulgate appropriate regulations at some future date.
The NYS Assembly has introduced and passed two new election reform bills in the 2005 legislative session that relate to voting access for New Yorkers with disabilities. They include many of the recommendations made by the disability community over the past two years.
Assembly Bill A.00120 addresses changes to Election Law regarding polling place access. It clearly states that all polling places must be accessible in accordance with the Federal Americans with Disabilities Act (ADA ), eliminates any waiver process, and directs the NYS Board of Elections to develop or obtain a resource that will provide the technical guidelines necessary to ensure the access of polling places.
Assembly Bill A.00005, the Voting Systems Standards Act of 2005, is comprehensive in its scope. However, it still needs two amendments in order to be fully effective. The first amendment should strengthen the citizens' voting machine selection advisory committee to not only have significant representation from the disability community, but also be involved in the process that selects the machines to be purchased in our state.
The second amendment must ensure that new machines include features to increase the font size of text, change text contrast, and have the ability to navigate the screen in a multi-screen format. In particular, this change is required to accommodate voters with low vision and cognitive disabilities, as well as senior citizens, who have increased difficulty with diminished visual acuity. If elected officials are determined to purchase the more expensive full-face ballot machines, people with disabilities must be able to have options in order to interface with the technology in an independent and private manner of their choice.
The following language must be added to A.00005 to complete the end of the sentence (page two, lines 7-11):
"including the options for the voter to increase font size, change contrast, and view or navigate the ballot in a multi-screen format." As an alternative, the same language could be added to complete the end of the sentence on page seven, lines 36 and 37.
The NYS Senate's election reform bills in the 2004 and 2005 legislative sessions have routinely ignored any significant proposed changes to Election Law which are essential for New Yorkers with disabilities. The two exceptions are the mandatory requirements under HAVA to provide at least one fully accessible voting machine at each polling place and a waiver of voting time limits. The Senate has opted to minimize changes to election law in favor of vesting discretionary power in the executive agency.
The reluctance to amend state election law to ensure access to people with various kinds of disabilities to polling sites, the ballot, and to machines sadly reflects an unwillingness to ensure independent and confidential voting by significant numbers of New Yorkers with disabilities. Instead of upholding federal and state law to accommodate and encourage voter participation as public officials, the lack of substantive change suggests a greater priority to make access and equality issues secondary to the perpetuation of incumbencies and maintenance of a house majority.
The citizens of New York State deserve better. In fact, the widespread history of voting access problems and barriers to voting prove that the current situation only exists because NYS Election Law is not clear and allows for misinterpretations by well-meaning, but poorly trained poll workers, inadequately equipped county officials, and an overall lack of guidance at the state level, which results in inconsistencies in implementation at the local level. When combined with a lack of enforcement, the absence of strong and clear mandates in New York's HAVA implementation legislation allows election officials and poll workers to see voting access issues as merely a courtesy, or an option, instead of being a definite LEGAL MANDATE.