Braille Monitor                  August/September 2021

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Transforming Advocacy into Votes: The Impact of the Federation on Voting Equality

by Eve Hill

Eve HillFrom the Editor: Eve Hill is a partner at Brown, Goldstein & Levy. She is a longtime ally of the National Federation of the Blind, and she speaks with passion, perseverance, and perceptiveness. I always find her remarks a high point of the convention, and here they are:

All right, I love the walk-on music. Thank you so much, Mr. President, and thank you all for inviting me to speak with you today. It's such an honor and a privilege to be here. I'm a white woman with brownish red hair and freckles, and I'm wearing glasses and a teal jacket and matching necklace. I finally got to get dressed up today.

So some thirty years ago Justin Dart, one of the leaders of the movement to pass the Americans with Disabilities Act, exhorted people with disabilities to vote as if your lives depend on it, because they do. Now voting is the cornerstone of our democracy. It's how we choose our leaders who represent our values. It's how we hold them accountable, how we hold our leaders accountable. It's how we make our voices heard on the issues that are important to us. It's also the center of the major civil rights struggles in this country. As the news shows us every day these days, those struggles are far from over.

Blind people are at the heart of the civil rights struggle for voting equality. Blind people have faced and continue to face massive barriers to voting. Blind people face inaccessible or burdensome registration requirements, and they face inaccessible election websites that prevent them from getting information on elections and candidates. Blind people face transportation and other barriers to even getting to the polls. So the lack of convenient polling places keeps blind people from voting. They face check-in processes that undermine their independence and expose their addresses and party registrations to public scrutiny. They face the absence of accessible voting machines in polling places and poll workers who don't know how to use the accessible voting machines that are there.

As a result, blind people have routinely had to give up the secrecy of their vote and trust that a third party doesn't intentionally or unintentionally spoil their vote or cast their vote incorrectly. Over the years the National Federation of the Blind has steadfastly stood up for the right of blind people to vote and to do so privately and independently just like sighted voters do. The Federation has advocated for requirements to provide accessible ballot-marking devices at polling places, to provide enough ballot-marking devices so blind voter's privacy is maintained, to train and supervise poll workers in their use, and to make election websites accessible.

A few years ago the NFB's legal team took on the inaccessibility of absentee voting, which has traditionally relied upon mail paper ballots that were completely inaccessible to blind people. But because the ADA covers all state and local government programs including voting and requires those programs to be equally accessible to blind people as people without disabilities, the NFB succeeded in both the Fourth Circuit and the Sixth Circuit in establishing that absentee voting is required to be accessible to the blind.

Accessibility requires an accessible, fillable ballot to be delivered electronically to the voter so they can use their assistive technology to fill it out online. Numerous options for accomplishing this are now widely available, including a variety of professional commercial accessible vote-by-mail systems, some of which are appearing in the exhibit hall even now. In 2019 the Federation even went forward and notified every secretary of state in the country of their obligation to make absentee voting accessible to blind people. Then the Federation, its affiliates, its members, and its lawyers advocated for most of 2020 with nineteen states to implement accessible absentee voting in time for the national primaries and November general election. In a few states we didn't have to sue because we were welcomed, and the state moved quickly to incorporate accessibility into their absentee ballot systems. Colorado is one state that responded to NFB's advocacy to improve its voting systems voluntarily, because elections do have consequences. But sadly, most states did not listen.

Then the pandemic hit, and states all across the country limited in-person voting and shifted to absentee voting for everyone, leaving blind people caught between the need to vote as if their lives depended on it, and risking their lives to vote.

As the year went on and the pandemic continued to make people sick and kill over half a million people, the Federation could not wait patiently. We kicked into high gear and engaged in legal advocacy with about a dozen states, and we sued in Michigan, Pennsylvania, New York, New Hampshire, Texas, Maine, and Virginia.

Given the urgency of the upcoming presidential election, we sought the extraordinary remedy of preliminary injunctions, which required us to prove our cases at a hearing very quickly. Many of these states actually fought us. They said it was too hard to make an accessible electronic ballot. They argued they didn't have time to get it done in time for the primaries or the November election. They argued they had to go through slow and complicated procurement processes, even though emergency processes were available. I actually said to one of them, "You just bought a bunch of hand sanitizer, and you didn't have to go through a procurement process." They argued there were security concerns with delivering electronic ballots, which is not true, and they even argued that state law prohibited electronic ballots and that the federal law didn't overrule state law, which is also not true. The ADA tells you to provide accessible ballots, and it doesn't matter what your state law says.

We also faced political pushback, unfounded security hysteria, dirty tricks and falsehoods, and courts unwilling to push states to do the right thing. But in each case except Texas the Federation and its members forced the state to provide some form of accessible electronic ballot for the November general election. As the president said, over 11,000 people used those ballots just in the states we sued. Even though many of those states did not do a good job getting the word out about the accessible ballots or even in some states didn't do a good job of making those ballots really accessible.

In fact, voters with disabilities last year across the board turned out and voted in larger numbers than in previous years. So the Federation has showed that if voting is accessible, blind people will turn out to vote, and every one of those votes mattered. As Barack Obama said, "There's no such thing as a vote that doesn't matter."

So blind people are overcoming the barriers and voting as if your lives depend on it, because they do! But what next? Well, in Pennsylvania and Michigan and Virginia, the states have agreed to implement professional remote accessible vote-by-mail systems. They did it in the November elections, and they're going to do it in future elections. In New York the state was required to provide accessible PDF ballots by email, even though that was not the solution we preferred because of the difficulty of making PDFs accessible across all platforms. Because of the difficulties both the state had and voters had using those accessible PDFs in New York, we're negotiating with New York and trying to get them to implement a professional accessible absentee ballot system in future elections.

In New Hampshire the state implemented a professional system for November, and we're negotiating with them hopefully to make their election website accessible and provide a professional remote accessible vote-by-mail system in future elections. In Maine we sued the state and four major cities, and they have all agreed now to implement an accessible HTML ballot in future elections and to allow voters to return their ballots electronically.

In Texas, the unusual one, the court refused to decide our case at all. So we dismissed it, and we've written a demand letter to a county because now the state says that it has no control over what the counties do, so we have to sue the counties.

But there are still some remaining issues. Too many states continue to offer no method of electronically delivering an accessible ballot to blind voters they can mark on their own computers. Too many states are relying on inadequately accessible PDF ballots, which make the process difficult both for the voter and the state. We're preparing to file complaints with the Department of Justice about those states. Most states don't allow blind voters to electronically return their accessible ballots, so blind voters must purchase a printer, print their ballots, get them in the right envelope, sign the envelope, and return the envelope by mail, usually with the help of another person, which undermines the privacy of their vote. This is not equal access, and mechanisms such as professional accessible vote-by-mail systems as well as email and fax exist to accomplish electronic return. States refusing to allow blind voters to electronically return their ballots are relying on over-blown security concerns that they could overcome. In some states they already have overcome those barriers and allow overseas voters to return their ballots electronically, and the astronauts on the space station returned their ballots electronically last year. But these states won't allow blind people the same access.

Unfortunately, the major voting bill introduced in Congress right now doesn't provide for electronic return of ballots for blind voters, and the NFB has taken this issue on. So instead of us moving forward as voting rights move forward, blind voters are again at risk of being left out of voting rights developments.

Once again it's up to the Federation and all of us to get accessible electronic voting offered on a state-by-state basis. So here's my hope for us. I hope that we will advocate with all of our state and local voting officials to implement professional, remote, accessible vote-by-mail systems and methods of electronic return. I hope all of you will share the stories of your voting experiences trying to use inaccessible voting systems. I hope you'll contact Valerie Yingling if you're willing to take action to challenge your state's inaccessible absentee voting system. Getting an equal right to vote has always been a struggle. It shouldn't be, but it is. But the Federation is up for the challenge, and as Susan B. Anthony once said, "Someone struggled for your right to vote. Use it!"

The Federation and each and every one of you have struggled and continue to struggle for the right of blind people to vote equally, privately, and independently. So above all, I hope you will use that precious right to vote for the things you care about, the candidates you believe in, and the issues that are important to your community and your country. Because when we vote, we are stronger together. Thank you very much.

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