When Voting In-person is not an Option, the Blind Still Need Their Vote

by Chris Danielsen

From the Editor: The right to vote is crucial to a healthy democracy, and there must be many ways to exercise it. When blind people vote in person, the way we vote should be private and independent. When circumstances require that we vote absentee or by mail, the same standards should apply. Chris Danielsen is our director of public relations, and in this article he describes the efforts we have made to start the process of ensuring that blind people have this right. Here is what he says:

Whatever else may be said about the 2020 presidential election—and a lot is still being said even as this article is being written—its primary significance to blind people is that it was the first election in history in which those of us living in many states could vote privately and independently from the safety and comfort of our own homes. As with all positive changes for the blind, this one is largely due to our own collective action through the National Federation of the Blind, made urgent by the widespread adoption of mail-in ballots—in lieu of or as a supplement to in-person voting at polling places—in response to the COVID-19 pandemic.

That the NFB is the driving force in allowing blind people to vote privately and independently, without the assistance of poll workers or even of trusted friends or family members, is not new. It was our efforts that saw the inclusion of a provision in the Help America Vote Act of 2002 (HAVA) requiring that every polling place used in federal elections have at least one voting machine that is nonvisually accessible. But HAVA, important as it was and is, does not address the question of absentee or mail-in ballots. For this reason, the National Federation of the Blind has worked since its passage to insure that these methods of voting are also accessible, particularly in states where voting by mail is the norm or where a voter need give no justification for wanting to submit an absentee or mail-in ballot other than simple preference.

Because HAVA does not address absentee voting, we have relied on provisions of Title II of the Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act of 1973, both of which broadly require governmental entities to make programs and services available to the blind on an equal basis with the sighted. States that adopted universal voting by mail early, such as Oregon and Washington, also provided practical experience on how that process could be made accessible.

The ideal solution is a remote accessible ballot-marking system, which can be either an accessible file or document or a web page where a blind voter marks his or her election choices. Depending on how the system is adopted and implemented by a given jurisdiction, that marked ballot can then either be submitted electronically or printed out to be returned by mail or by hand-delivery to an election office or ballot drop-box. States and local jurisdictions began implementing systems of this kind in response to 2009 amendments to the Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA), but they are not always accessible to blind voters. As mentioned earlier, however, states like Oregon, where voting by mail is universal, adopted accessible systems early.

The state of Maryland, where the National Federation of the Blind is headquartered, also created an accessible system, but its implementation was initially hampered by the refusal of the Maryland State Board of Elections (SBOE) to certify it for use by blind and disabled voters, even though SBOE’s own staff had created and tested the system. This inaction prompted the National Federation of the Blind of Maryland, along with some individual blind and deafblind people and others with disabilities, to sue SBOE in federal district court in 2014. The district court judge had no difficulty finding that the system would benefit blind, deafblind, and other disabled voters who could not travel to the polls or use the voting machines made available there, and he promptly ordered the system to be implemented for the 2014 midterms and all Maryland elections going forward. The state appealed the district court ruling, arguing that an accessible absentee ballot was not needed, since accessible machines were made available at the polls, and in any event the state Board of Elections had the sole and exclusive right to certify voting systems in Maryland. But the Fourth Circuit Court of Appeals upheld the original ruling, explaining that Maryland was obligated under the ADA and the Rehabilitation Act to make all components of its “voting program” accessible to voters with disabilities and that this federal mandate superseded any certification requirement imposed by state law. With this precedent-setting ruling in hand, the National Federation of the Blind now had a firm legal basis for going forward with other actions to secure the right of blind voters to cast an absentee or mail-in ballot privately and independently. We had another early success in Ohio, where a similar ruling by the Sixth Circuit Court of Appeals prompted Secretary of State Jon Husted to mandate accessible absentee ballots for all Ohio jurisdictions in 2018.

Despite these early victories, by September of 2019 most states still had not implemented remote accessible ballot-marking tools. This was true even though Maryland now makes its solution available to any state that wants it free of charge, and there are several commercial vendors—including Democracy Live, Five Cedars, and VotingWorks—making solutions available as well. So President Riccobono sent letters to all of the leading election officials in the forty or so states that had no such systems, spelling out their obligations to do so and citing the relevant legal provisions and court precedents.

No one had any idea at that time that COVID-19 would make the issue even more urgent. But as the pandemic spread, states, to admittedly widely varying degrees, rushed to make it easier for people to vote from their homes to limit exposure to and spread of the virus. It quickly became clear that many blind and disabled voters would not benefit from newly loosened state restrictions on absentee and mail-in voting unless the Federation acted decisively. Our argument was straightforward: in addition to the existing legal requirements, states could not force blind voters to leave the safety of our homes and risk contracting the virus at the polls—and possibly bringing it back to our families—if other voters were not being required to take that risk. We pointed out that many blind people have other disabilities or medical conditions, such as diabetes, that placed them at particular risk for contracting the virus and experiencing serious or fatal respiratory disease as a result.

All told, we wrote letters, filed suit, published op-eds, or reached out to election officials, or some combination of these, in at least eighteen states, including Alabama, Connecticut, Delaware, Iowa, Kentucky, Maine, Michigan, Minnesota, Nevada, New Jersey, New Hampshire, New York, North Carolina, Pennsylvania, Rhode Island, Tennessee, Texas, and Virginia. In some states where lawsuits were filed, such as Michigan, New York, Pennsylvania, and Virginia, we partnered with state protection and advocacy agencies and/or other organizations of and for people with disabilities, including the American Council of the Blind (ACB).

Through a combination of court orders and agreements reached without formal court action, six states—Delaware, Michigan, Minnesota, New Hampshire, Pennsylvania, and Virginia—implemented commercially available accessible remote ballot-marking tools. Others, including Connecticut, Maine, New York, Nevada, and Tennessee, used non-commercial or homegrown systems, often simply sending fillable PDF’s, with varying degrees of usability and accessibility, to voters who requested them. PDF’s can technically be made accessible, but even then they often present usability barriers, and the proper formatting of ballots as fillable PDF’s proved a particular challenge. In some states with which we interacted, we were unsuccessful in getting a solution in place. In Iowa, for example, state election officials maintained that they could not implement an accessible absentee-ballot system without the approval of the legislature, despite the clear court precedents establishing the supremacy of federal law in this area.

From the information we have so far, the most successful implementation of accessible absentee ballots was in Michigan, where 4,184 people voted using the accessible absentee ballot system provided by Democracy Live, according to a report provided by the state. Eve Hill, an attorney well known to regular Monitor readers who represented the National Federation of the Blind in Michigan and other states, says that this outstanding success was achieved because the state, under close monitoring by us and the court, “had a commercial system in place and working nearly eight weeks before the election, did press and other outreach along with community groups to make sure people knew about it, and included information about how to request an accessible absentee ballot in the same places it gave information about general absentee ballots.” By contrast, Maine, which implemented a homegrown system using supposedly accessible PDF’s late in the game, only had thirty-three accessible absentee ballots completed and returned successfully and forty that were requested but not returned. Similarly, although Virginia implemented a commercially available system, it did not get the word out about the availability of the system, and the responsiveness of some county officials to requests for the accessible solution was patchy. As a result, only forty people successfully requested accessible absentee ballots, and only nineteen of those completed and returned them. The other states mentioned above that deployed some form of remote accessible ballot-marking system had not reported their results as of this writing.

Even though results were not what we might have hoped in all jurisdictions, most of the court cases we brought resulted in either full or partial victories, and accessible absentee or mail-in ballots were available to blind people in more states than ever before. Furthermore, our litigation and other public-facing efforts garnered significant media attention for the issue. An Associated Press article about our national voting-rights campaign was published in at least 150 different news outlets, and an additional eighty stories covered what was happening in individual states. In Iowa, our president, Scott van Gorp co-authored an op-ed with the ACB’s state president that was published in the Des Moines Register. A Washington Post columnist, Theresa Vargas, covered our efforts in Maryland and Virginia. It is probably accurate to say that our fight for the voting rights of blind Americans has not received a similar level of favorable media coverage since the passage of HAVA, if ever. Too often, past media coverage of accessible voting has focused on speculative security concerns raised by some activists, but the narrative leading up to this election was noticeably focused more on our rights than on those concerns.

In the coming weeks, we will receive more information about the 2020 election from reports of the remaining states that implemented accessible ballot-marking tools and from the voter surveys we conducted to assess the experiences of blind people in the election. This year, for the first time, we conducted two separate online surveys: one for voters who went to early voting centers or polling places, and one for voters who used absentee or mail-in ballots. In early 2021, we will therefore have a much fuller picture of our success, as well as of the remaining barriers to full and equal access to voting faced by blind Americans. With the confidence that we can address these barriers, armed with our 2020 data and experience, we will go forward with the fight to ultimately ensure private, independent casting of ballots, by every means available to our sighted peers, in every United States voting jurisdiction.