North Carolina voters who are blind or have limited mobility will not be able to cast private, independent ballots from home this fall unless the state makes changes, according to a lawsuit filed by the national nonprofit Disability Rights Advocates.
The lawsuit was filed in the U.S. District Court in North Carolina and makes claims that state practices violate two federal laws, the Americans with Disabilities Act and the Rehabilitation Act.
Under both laws, the complaint argues, the state is required to provide an accessible vote-by-mail option for voters with disabilities. The North Carolina State Board of Elections has until Aug. 17 to respond to the lawsuit.
As it stands, voters with disabilities that affect either their vision or mobility need assistance to cast a by-mail ballot. Voters with disabilities can choose someone to assist them or can request assistance from a county Multipartisan Assistance Team. In the end, though, those voters will need to tell another person how to mark the ballot, making the process neither private nor independent, as is assured for voters without disabilities.
To Ricky Scott, a plaintiff in the case, that is a form of discrimination.
“The absentee ballot in North Carolina is not accessible for persons who are blind,” Scott said.
“I’m a blind person and I wish to be able to use an absentee ballot to vote in the fall, just like everyone else. Because with this virus going on, you know, I did plan to vote, but I want to do it in a safe way.”
Using Census data and extrapolating from registration rates among people with vision disabilities, Disability Rights Advocates attorney Rosa Lee Bichell estimates that 150,000 North Carolina voters are not able to mark their by-mail ballots privately.
On June 26, Disability Rights Advocates wrote a letter to the NCSBE describing the problem. The state board, whose director and members are now the defendants in the lawsuit, responded on July 24.
“The State Board is committed to promoting accessibility for voters with disability, including blind voters,” the letter reads.
The letter describes efforts by the NCSBE to make the state website and the absentee-by-mail request process more accessible, to provide accessible in-person voting options and to make provisions for voters with disabilities seeking to vote by mail.
“Regardless of whether in-person voting is accessible, North Carolina is required by law to ensure that our clients and other voters with disabilities have equal access to the absentee voting program on its own,” Bichell wrote in an email to CPP.
“This is even more urgent now under the COVID-19 pandemic, when our clients must choose between forfeiting the privacy and independence of their vote by voting via an inaccessible absentee ballot, or placing themselves at risk of infection by voting in person.”
State law requires ballots to be delivered to civilian voters by mail, which limits the NCSBE’s authority to independently respond to the lawsuit.
Expanded online voting: Pandora’s ballot box?
The state has the option for online voting for overseas and military voters, called UOCAVA voting. To expand that access to voters in-state would require a court’s order or action by the legislature.
Michigan, after being presented with a similar lawsuit, expanded their UOCAVA voting system to people with disabilities in the state. Maryland, New Hampshire, Oregon and Wisconsin have online ballot delivery options, where voters can mark their ballots on their computers, then print them off and deliver them as they would a standard ballot, the litigation describes. West Virginia allows voters to mark and return their ballots online.
Disability Rights Advocates does not call for a single solution in its lawsuit. Several options, including braille and large-print paper ballots, as well as online voting, are mentioned. The proper solution for North Carolina would be found in dialogue with the NCSBE, Bichell said.
Online voting, though, has serious security concerns for election security experts, who have universally panned it as a widespread voting option by election security experts. Federal reviews of online voting systems have also been critical. In addition, it is not possible to vote an online ballot and maintain voter privacy.
Part of the security concerns with online voting is its scope. The fewer voters who use it, the less the potential scope of the vulnerability. The remedy the litigation is seeking, Bichell said, could be limited to voters who demonstrate they have a qualified disability.
Third-party assistance ‘dehumanizing’
For voters with vision disabilities like Kendall Gibbs, another plaintiff in the case, having a third-party fill out the ballot is “dehumanizing,” and seen as a failure of the state to comply with decades-old laws.
“The biggest thing for me is that the Americans with Disabilities Act has been passed for 30 years now,” Gibbs said.
“North Carolina has the ability to vote electronically and accessibly as they’re already using it for the military people who are overseas. I feel that there’s no excuse for why people with disabilities can’t vote this way as well.”
Absentee-by-mail voting as it exists today was passed by the state legislature in 1999.
Between the pandemic driving voters to use vote-by-mail and their inability to privately and independently cast a ballot, voters like Scott and Gibbs are forced to make a choice between the privacy of their vote and the risk to their health.
If this dilemma is not solved by the election, Gibbs, who is 22 years old, said she will vote in person using a ballot-marking machine that can read her the ballot rather than vote by mail. Scott, who is in two higher-risk groups for health complications from COVID-19 as an older, Black man, said he is still considering voting by mail. He’s done it in the past, though he did not like it.
“It certainly makes you feel like a second-class citizen to feel like society looks at you as less there,” Scott said.
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