A Private and Independent Vote: Still Long Overdue for Persons with Disabilities

A Private and Independent Vote: Still Long Overdue for Persons with Disabilities

By Lisa Tarricone

This past November the New York State Board of Elections (NYSBOE) approved preliminary regulations for the purchase of new voting machines in order to comply with the federal Help America Vote Act (HAVA). The draft New Voting Machine Regulations (reflecting changes in NYS law to comply with HAVA), according to the state, “will ensure meaningful access to the democratic process for all New Yorkers.”

Well, maybe not all New Yorkers.

Voters with disabilities in New York maintain that the language in the proposed regulations is not comprehensive enough to ensure them full access to the voting system or the guarantee of a private and independent vote. Section 301(a)(3)(A) of HAVA requires that voting systems “be accessible for individuals with disabilities…in a manner that provides the same opportunity for access and participation (including privacy and independence) as for other voters.” In order to equip polling sites with voting machines that are HAVA-compliant, the NYSBOE must soon decide what type of voting machines local election boards can buy. The state is slated to receive $190 million in federal funds for this purpose.

Although the regulations contain sections on ballot access, machine and paper trail access and polling place requirements, they do not provide provisions for a range of varying disabilities. Ballot access under the current regulations does not incorporate language to address color and contrast or enlarged font size for individuals with vision and cognitive issues. The section on machine access does not include requirements for fully accessible tactile and audio devices for persons with dexterity and mobility issues. Paper records need to be verified privately and independently by voters with disabilities and as such, need to be provided in audio, large print and Braille, none of which is mentioned in the draft plan.

Disability rights advocates and organizations across the state have worked consistently and conscientiously since HAVA was introduced in 2002 to partner with the state Board in mapping out accessibility standards for voters with disabilities. Advocates tested electronic and optical scan machines and compiled surveys with their recommendations, which were forwarded to state officials. Members of a statewide legislative advocacy network attended all the meetings held by the Joint Legislative Committee on HAVA and repeatedly issued their concerns to legislators that their accessibility needs be considered before drafting a final decision. Voting machine accessibility issues were given short shrift by the Joint Committee during its proceedings.

In addition, HAVA regulations specify that four members from disability rights organizations be appointed by the state Board as part of a bipartisan committee to test voting machines and issue findings. An Article 78 proceeding was filed against NYSBOE by one of the disability organizations after it failed to appoint one of its members to the Citizen’s Election Modernization Committee last October. Earlier this month the state Board finally appointed the designated representative, but only after dismissing one of the prior disability appointees in what appeared to be a retaliation maneuver due to the lawsuit. To date, a fourth disability representative still needs to be appointed to the Committee. All other appointees were formally approved by NYSBOE.

On the local front, a lawsuit was filed in federal court in March of 2004 from two leading disability advocacy organizations against the Westchester County Board of Elections (WCBOE) for polling site access violations under the Americans with Disabilities Act. Advocates brought the suit after several years of attempts to work with the WCBOE to help make the county’s polling sites accessible to voters with disabilities was ignored. (The county has 440 polling sites, over 1000 districts and 50,000 registered voters, approximately 20% of whom are registered voters with disabilities.) The suit is still pending.

Meanwhile the state has been put on notice with the threat of a lawsuit by the Department of Justice for failure to implement HAVA by the mandated January 1, 2006 deadline. According to the letter submitted to the NYSBOE and New York Attorney General, “it is beyond dispute” that New York is not incompliance with the voter registration requirements and voting systems standards under HAVA. The letter states: “In fact, based on information we received…its is cleat that New York is not close to approaching full HAVA compliance and, in our view, is further behind that any other state in the country.”

It does not appear likely that New York will have new voting machines in place by the September primary. Until the state NYSBOE adopts acceptable voting machine standards allowing for the certification of new machines to be sold in New York , counties are stonewalled from beginning the process of negotiating for new machine purchases.

And New Yorkers with disabilities will continue to be denied full access to their fundamental right to vote privately and independently.