by Lou Ann Blake
From the Editor: Lou Ann Blake is a very busy woman. She is our go-to person for voting issues, and she is also the deputy executive director for blindness initiatives in the Jernigan Institute. Here is some history about the passage of the Help America Vote Act and what has happened since.
With the passage of the Help America Vote Act (HAVA), blind, low-vision, and other voters with print disabilities have been able to cast a private and independent ballot at the polls. However, the type of accessible voting system used and how it is implemented has changed over the past sixteen years, due in large part to a lack of federal funding once the initial HAVA funds were spent, and increased security concerns surrounding elections in the United States. This article will discuss the transition from a direct recording electronic (DRE) voting system to a paper ballot and optical scan system that the majority of state and local governments have undertaken and the impact this change in voting systems has had on voters with print disabilities. It will also discuss the secrecy of their ballots.
Prior to 2002, when HAVA was signed into law, there was no legal requirement that mandated the right of blind, low-vision, and other people with print disabilities to vote independently. Consequently, before HAVA, voting systems were inaccessible and most voters who were blind or had other print disabilities had to tell their choices to a sighted person and trust that person to mark their ballot as instructed.
HAVA was enacted as a response to the problems that occurred with old mechanical-lever voting machines during the 2000 presidential election. Advocacy efforts led by the National Federation of the Blind (NFB) resulted in HAVA's requirement that at least one accessible voting machine be available in all polling places for federal elections. For the first time in our nation's history, the right of blind and other voters with disabilities to vote privately and independently was guaranteed. However, HAVA only applies to federal elections, and, as a result, there are currently some states that do not provide an accessible voting system for state and local elections. In addition, HAVA does not provide a voter with a disability a right to file a lawsuit when her right to vote privately and independently in a federal election is violated; instead, the US Department of Justice is assigned the authority to enforce HAVA.
Recent changes in US Department of Justice regulations have resulted in the successful application of the Americans with Disabilities Act (ADA) in voting discrimination cases. These regulations extend to state and local elections the rights guaranteed by HAVA to voters with disabilities during federal elections by requiring election officials to provide voters with disabilities an opportunity to exercise their right to vote privately and independently that is equal to the opportunity provided to voters without disabilities. In addition, the ADA provides people with disabilities a private right of action when they have been discriminated against. Therefore, when blind voters in California were not able to vote privately and independently at their polling places because of malfunctioning accessible voting machines, and when blind voters in Maryland were not able to vote absentee privately and independently because of an inaccessible paper ballot, federal courts found that they had been discriminated against under Title II of the ADA.
HAVA authorized the Election Assistance Commission (EAC) to administer $3.9 billion in grants to the states so they could replace outdated lever voting machines by January 1, 2006, with either direct-recording electronic (DRE) touch screen voting machines or an optical scan system that included an accessible ballot-marking device. These first-generation accessible voting systems included the Diebold AccuVote, Election Systems & Software (ES&S) AutoMARK, and the Sequoia Edge.
The advantage of the DRE touch screen voting machine was that all voters used the same system. To make this type of system accessible to a blind voter, poll workers simply had to attach headphones and the user interface keypad. Most DRE systems do not produce a paper ballot but record an image of the voter's ballot on an external drive. Unlike the DRE voting system, an optical scan system uses paper ballots that are marked by hand or an accessible ballot marking device (BMD) and then inserted into the optical scan tabulator.
In 2003, shortly after many states had begun implementing voting systems based on a DRE voting machine, computer security experts at Johns Hopkins University performed a security analysis of DRE voting systems that revealed security vulnerabilities. This analysis was followed by others that also raised security concerns, and nervous state legislators started following the lead of the Nevada legislature, which passed a law in 2004 requiring a voting system that produced a voter-verifiable paper record.
The future of voting was all electronic when HAVA was passed in 2002. However, by 2019 that future has changed, with virtually all of the states requiring a paper ballot or voter verifiable paper record in response to the security concerns surrounding DREs. The security concerns and shift away from electronic ballots by election officials has resulted in the discontinuation of the development and manufacture of DRE voting systems by election technology vendors. Consequently, the second generation of accessible voting systems available to state and local election officials consists only of optical scan tabulators and accessible ballot marking devices. Xx These systems include the ExpressVote BMD from Election Systems & Software, the ImageCast Tablet BMD from Dominion Voting Solutions, the Verity Touch Writer BMD from Hart InterCivic, and the Unity Voting System.
Election technology vendors promote BMDs as universal voting systems because they include a touchscreen, as well as accessibility features that enable the majority of voters with disabilities to vote privately and independently. All BMDs include a headphone jack and a user interface keypad so that blind and other print disabled voters can navigate through an audio ballot and privately and independently mark and print their ballot. In addition, the touch screen font size and contrast can be changed to make the ballot marking process easier for voters with low vision. Devices such as sip and puff and jelly switches can also be used with BMDs to make them accessible to voters with dexterity disabilities. In addition to accessibility features, another important feature of BMDs is that they eliminate the problems of stray marks and over-voting that are frequently encountered with hand-marked ballots.
At the time that many states were abandoning a universal DRE voting system because of security concerns, there was no federal money available to purchase the replacement optical scan systems. Consequently, the replacement system that was implemented by most states and local governments relied on the majority of voters hand-marking their ballot and provided only one accessible ballot marking system per polling place. In addition, the fear that a BMD could be hacked through the computer used by election officials to design the ballot and program the software that are loaded onto the BMD has also prevented BMDs from being deployed as a universal voting system. However, these fears may not justify limiting the use of BMDs to voters with disabilities because the US Department of Homeland Security has developed many tools and services to assist state and local election officials and election technology vendors with managing risk to our election infrastructure.
Limiting the use of BMDs to voters with disabilities creates a separate, unequal system for those voters and jeopardizes the secrecy of their ballots. As shown by the blind and low-vision voter surveys conducted by the National Federation of the Blind, the likelihood that the accessible voting system would be set up and running when a blind voter arrived at her polling place has decreased from 87 percent in 2008 to 66 percent in 2016 and 2018, and the likelihood that poll workers had problems setting-up or activating the system increased from 19 percent in 2008 to 33 percent in 2016 and 2018. This forces blind and low-vision voters to wait while poll workers attempt to figure out how to set-up or activate the accessible ballot marking systems. It too often means voters with disabilities are deprived of their right to vote privately and independently and instead must vote with assistance because of poorly trained poll workers. This does not meet the ADA's mandate to provide people with disabilities an opportunity to exercise their right to vote privately and independently that is equal to the opportunity provided to voters without disabilities. If the accessible ballot marking device was used as a universal voting system for use by all voters, it would be far more likely that the BMD would be set-up and running when a voter with a disability arrived at her polling place and that the poll workers would know how to operate the system.
Finally, the secrecy of the ballots cast by voters with disabilities may be jeopardized when the use of the BMD is limited to disabled voters. The ability to cast a secret ballot is vital to our democracy since it enables a voter to vote for the candidate of her choice without fear. However, many of the BMDs currently in use do not enable a voter with a disability to cast a secret ballot because they produce a paper ballot that is different in size from the hand-marked paper ballot. In addition, many of the BMD paper ballots only list the candidates selected by the voter, as compared to the hand-marked paper ballot, which lists all of the candidates for each contest. When a contest is too close to call at the end of Election Day, the ballots are removed from the ballot box for a recount. When the ballot produced by a BMD is different in size and content from the hand-marked ballot, and its use is limited to voters with disabilities, election workers performing the recount will know that a BMD ballot was cast by a voter with a disability. This is not a secret ballot. The mandate of the ADA to provide voters with disabilities an opportunity to exercise their right to vote that is equal to the opportunity that is provided to voters without disabilities has not been met.
The Protecting American Votes and Elections (PAVE) Act, HR 6093, was first introduced into the House of Representatives on June 13, 2018, and while the bill was never voted out of committee, efforts are currently underway to revive it in the Senate. This bill will amend HAVA to require a paper ballot. In addition, it will not allow funds provided under the PAVE Act to be used to purchase BMDs unless they are to be used by voters with disabilities. States will be provided only enough funds under the PAVE Act to purchase one accessible BMD per polling place. Any legislative effort that mandates a paper ballot and a segregated system for voters with disabilities must be vigorously opposed because it fails to provide blind and low-vision voters with an opportunity to exercise their right to vote that is equal to the opportunity provided to nondisabled voters as required by Title II of the ADA.
There is no data available that quantifies the specific impact that a segregated, paper-based voting system has on the voting experience of blind and low-vision voters. Similarly, there is no data available that focuses specifically on the issues experienced by voters with disabilities on Election Day in 2018 in the twenty states that were using DREs that were more than a decade old and had outlived their useful life. However, national surveys of blind and low-vision voters conducted by the National Federation of the Blind following the elections in November 2008, 2012, 2014, 2016, and 2018 provide insight on the general experience of blind and low-vision voters during these elections. Trends revealed by the 2016 and 2018 surveys may reveal the impact that the changing landscape of accessible voting has had on voters with disabilities.
Data from the 2018 survey indicates that the percentage of blind voters who voted at the polls (85 percent) was consistent with the data from 2012 through 2016. However, the number of blind voters who voted at the polls and who requested or were offered an accessible voting machine declined significantly from 2016 (92 percent) to 2018 (81 percent) as compared to a steady increase reflected in all prior surveys (63 percent in 2008, 79 percent in 2012, and 88 percent in 2014). The percentage of blind voters surveyed who reported that they were able to cast private and independent ballots decreased from 79 percent in 2016 to 68 percent in 2018, and the percentage of voters who cast their ballots with assistance increased from 17 percent to 29 percent.
For blind voters who cast their ballots on accessible voting machines, the majority of voters surveyed indicate mixed results, especially when compared with 2008. As noted earlier in this article, only 66 percent of the blind voters surveyed in 2016 and 2018 who used an accessible voting system said that it was up and running when they arrived at their polling place, as compared to 87 percent in 2008, 63 percent in 2012, and 74 percent in 2014. The percentage of voters who used accessible voting systems and reported that poll workers had problems setting up or activating the machines remained high in 2016 and 2018, at 33 percent. This compared to 19 percent in 2008, 29 percent in 2014, and 33 percent in 2012. In 2018, 21 percent of blind voters who cast ballots on accessible machines said that poll workers did not provide them with clear instructions on how to use the machines, similar to the results from 2016 (20 percent), but a significant increase from 10 percent in 2014. However, 54 percent of respondents said they did not need such instructions in 2016 and 2018. Only 59 percent of blind voters were able to cast their ballots on accessible machines with no problems in 2018, compared to 87 percent in 2008, 62 percent in 2012, 60 percent in 2014, and 66 percent in 2016. The percentage of blind voters who were able to cast their ballots privately and independently using an accessible voting machine declined to 75 percent in 2018, compared to 86 percent in 2008, 75 percent in 2012, 83 percent in 2014, and 85 percent in 2016.
In 2018, 75 percent of blind voters surveyed indicated that they were somewhat to very satisfied with their voting experience, as compared to 89 percent in 2008, 75 percent in 2012, 78 percent in 2014, and 80 percent in 2016. The percentage of blind voters who were somewhat or very dissatisfied with their voting experience has increased from 11 percent in 2008 to 20 percent in 2018 (compared with 19 percent in 2012, 15 percent in 2014, and 17 percent in 2016). The percentage of surveyed blind voters who said their voting experience was better than their previous experience also declined. The 2018 percentage was 28 percent, compared to 35 percent in 2016 (33 percent in 2008, 27 percent in 2012, and 21 percent in 2014). However, the percentage of blind voters surveyed who said that their experience was worse than their previous experience was higher than all previous surveys at 20 percent, continuing the trend of results from 2012, 2014, and 2016 surveys (17 percent, 15 percent, and 15 percent respectively). This compares with only 7 percent in the 2008 survey results. Finally, the percentage of surveyed blind voters who said they would vote again remained high at 98.8 percent.
When asked what would improve their voting experience, only 15 percent of the blind and low-vision voters who responded to this question in 2018 said it did not need to be improved, as compared to 20 percent in 2016. Thirteen percent of the 2016 responses said that poll workers needed better training on the operation of their accessible voting machines, while 6 percent of the responses said that poll workers needed better training on how to interact properly with a blind voter. In 2018, 21 percent said that better training of poll workers on the accessible voting machine and on how to interact with blind voters would improve their voting experience. In 2016 the need to correct machine breakdowns and malfunctions was noted in 9 percent of responses, while a new machine, better machine, or a machine that worked was mentioned in 11 percent of the 2018 responses.
The data from the 2018 survey highlight several issues that should be of concern to blind and low-vision voters. The percentage of all blind voters surveyed who reported that they were able to cast private and independent ballots decreased from 79 percent in 2016 to 68 percent in 2018. In addition, the number of blind voters who were able to cast a private and independent ballot using an accessible voting machine decreased from 85 percent in 2016 to 75 percent in 2018. In both categories these numbers reverse a trend of steady improvement from 2008 to 2016. The same trend reversal is reflected in the percentage of voters who cast their ballots with assistance, which increased significantly to 29 percent in 2018 from a low of 17 percent in 2016. In 2018 the percentage of voters who were able to cast their vote using an accessible voting machine without any problems was only 59 percent. This continues the steady decline in this category from 2008, when a high of 87 percent experienced no problems when they cast their vote using an accessible voting machine. These trend reversals may reflect the unfamiliarity of poll workers--and to some extent of voters with disabilities with the new accessible BMDs that are now in use in most states. Also, the continued use in some states of DREs that are more than a decade old may also be reflected. As poll workers and voters become more familiar with BMDs, and as the remaining DREs are replaced with BMDs, it will be important to note if data from future surveys reflects a reversal of these trends. To read the entire 2018 Blind and Low-Vision Voter Experience report, visit https://nfb.org/programs-services/center-excellence-nonvisual-access/national-center-nonvisual-election-3.
The move by the majority of states to require a paper ballot or some form of paper record has resulted in the loss of a universal voting system, and the resulting segregated system for voters with disabilities has meant the loss of a secret ballot for many blind, low-vision, and other print disabled voters. In 1954 the United States Supreme Court found the separate but equal doctrine unconstitutional in Brown v. Board of Education. Clearly there is inequality when voters with disabilities do not have a secret ballot because their ballot is different in size and content from the hand-marked ballot. Inequality also exists when only 75 percent of blind voters who used an accessible voting system were able to mark their ballots privately and independently because one-third of poll workers do not know how to setup or operate the system or when the system malfunctions because it is old technology. Restoring a universal voting system will help to resolve these inequities because all ballots will be the same size and have the same content, and the necessity for poll workers to know how to operate the accessible voting system will be stronger because everyone will use the same machine. Finally, a universal BMD system will also prevent the over-voting and stray marks associated with the hand-marking of ballots.
It is vital that all blind and low-vision Americans join in opposition to the unequal treatment we currently experience in the exercise of our right to vote. Let your state and local election officials and state and federal legislators know that you oppose a segregated voting system because separate is not equal. As first-class citizens, we deserve nothing less!