[NFBofSC] Vote by Mail Ballot Now Accessible to Blind Coloradans

[Steve & Shannon Cook]

Vote by Mail Ballot Now Accessible to Blind Coloradans
by Curtis Chong

 

            From the Editor: when many of us think of Curtis Chong, we think
of his stellar work as the director of technology at the National Federation
of the Blind and his longtime leadership of the National Federation of the
Blind Computer Science Division. But Curtis cannot be pigeonholed by
technology. He is a Federationist who participates in every aspect of the
organization, and here is what he has to say about voting in Colorado:

 

            There are four states in this country where elections are held
entirely by mail. These include Oregon (2000), Washington (2011), Colorado
(2013), and Hawaii (2019). Every registered voter receives a ballot in the
mail. The voter marks the ballot, puts it in a secrecy envelope or sleeve
and then into a separate mailing envelope, signs an affidavit on the
exterior of the mailing envelope, and returns the package via mail or by
dropping the package off at an authorized location or drop box. Think of
this as an absentee ballot for everyone.

            A blind Coloradan who cannot see the printed mail ballot must
either find someone to help mark the ballot (hardly a secret ballot in this
case) or travel to a polling facility where the accessible equipment might
or might not work. Even if the equipment at the polling facility does work,
most of us are nowhere as familiar with the voting system's nonvisual access
technology as we are with the technology we use on our smart phones and
computers.

            Following on the heels of Maryland and New Mexico, the National
Federation of the Blind of Colorado determined that the time had come for
the printed mail ballot to be accessible to the blind and other voters with
disabilities. With the incredible help and support of our good friend
Senator Jessie Danielson, SB19-202 was adopted by the Colorado General
Assembly without any opposition, $50,000 was appropriated, and on May 29,
the bill was signed into law by Colorado Governor Jared Polis. SB19-202
states, in relevant part:

 

"The secretary of state shall establish procedures to enable a voter with a
disability to independently and privately mark a ballot or use an electronic
voting device that produces a paper record using nonvisual access,
low-vision access, or other assistive technology in order for the voter to
vote in a mail ballot election.The procedures shall include a method, to be
determined by the secretary of state, by which a voter with a disability may
request such a ballot.A voter with a disability who receives a ballot
pursuant to this subsection.must print the ballot sent by electronic
transmission and such ballot must be received by the election official in
the applicable jurisdiction before the close of polls on the day of the
election."

 

            As any blind person who has worked with websites knows, it is
not a given that a particular site will work well with our screen reading
and magnification technology. Hence, we determined early on that we should
prevail upon the Colorado Secretary of State to involve our members in the
testing of the system before it was rolled out to the public. A number of
our members had a chance to test the system. We identified a few problems,
and most of them were addressed in time for the statewide coordinated
election held on November 5. We are confident that by the time of the
primary election on March 3, 2020, all of the issues we have identified will
be fixed.

            Unlike the online ballot-marking tools in Maryland and New
Mexico, the Colorado system gives voters with disabilities immediate access
to the ballot as soon as printed ballots are sent out in the mail. The voter
goes to a specific website, provides verifying credentials, and is presented
with the online ballot. There is no waiting for a link to the ballot to be
emailed. Once the ballot has been marked and reviewed, the voter prints both
the ballot and the ballot application. While the ballot application is
filled out by the online system, the voter still has to sign it. Some voters
might need help with the signing process, but the secrecy of the ballot is
still maintained.

            For those people who say that there is a problem for anyone who
doesn't have access to a printer, I have found that (at least in Windows)
the printing of the ballot and accompanying ballot application can be saved
as two separate PDF files. These files can then be copied to a flash drive.
You can take the flash drive to a facility with a computer and a printer.

            In conclusion, I would be pleased to share any and all
information with anyone who wants to make the printed mail or absentee
ballot accessible in his/her state. There are financial and technical
considerations involved in doing this, but the overall impact to a state's
budget is, as I see it, negligible. The important principle to keep in mind
is prior testing before implementation. Be sure that real live blind voters
have an opportunity to try the system before it goes live and work actively
with the people who are involved with the design, development, and support
of this new system. In this way, you can ensure that whatever is rolled out
will be both accessible and usable.

----------

Voting Letter to Secretaries of State

by Lou Ann Blake

 

            From the Editor: Lou Ann Blake is the very active and visible
person at our national headquarters who monitors the enforcement of the Help
America Vote Act. From other articles that have appeared here, you will
remember that she is a person with tremendous knowledge about voting options
for blind people and a very passionate advocate to see that we can vote
privately, independently, and anonymously. Here is what she says:

 

            Currently, the majority of states do not provide blind and
low-vision voters with an accessible way to mark an absentee ballot. As an
activity under our Help America Vote Act (HAVA) grant from the US Department
of Health and Human Services, we recently sent a letter to the secretary of
state for these states to remind them of their obligation to provide
accessible absentee voting as required by Title II of the Americans with
Disabilities Act and recent court decisions in cases brought by the NFB in
Maryland and Ohio. The letter is printed here for your information. If you
receive any feedback from your secretary of state or state elections
officials in response to this letter, or if you have questions about
accessible absentee voting, please contact Lou Ann Blake, deputy director of
Blindness Initiatives at lblake at nfb.org or 410-659-9314, extension 2221.

 

September 27, 2019 

 

Dear Secretary: 

 

            The National Federation of the Blind seeks to protect the rights
of blind and low-vision voters, both at the polls and when absentee voting.
It is vital to our democracy that all citizens are able to exercise the
right to cast a secret ballot independently. Unfortunately, the right of
many absentee voters with disabilities to mark their ballots privately and
independently continues to be denied due to the implementation of
inaccessible systems that require them to depend on others to assist them in
the ballot-marking process. In advance of the 2020 elections, I am writing
to remind you of your obligation, as required by federal law and recent
court decisions, to provide voters with print disabilities an accessible way
to privately and independently mark an absentee ballot. 

            Title II of the Americans with Disabilities Act (ADA) requires
states to ensure that voters with disabilities are offered an opportunity to
vote-whether in person or by absentee ballot-that is equal to the
opportunity offered to voters without disabilities. Thus, if all other
voters can vote absentee privately and independently, voters with
disabilities must be offered the same opportunity. Furthermore, Section 504
of the Rehabilitation Act states that public entities that receive federal
financial assistance may not discriminate against people with disabilities
in their programs, services, or activities. The law on this issue,
particularly in the Fourth Circuit, is quite clear. In National Federation
of the Blind v. Lamone, the United States Court of Appeals for the Fourth
Circuit held that the Maryland State Board of Elections violated Title II of
the ADA and Section 504 by providing only a paper absentee ballot that was
inaccessible to people with print and dexterity disabilities, while refusing
to allow access to a ballot marking tool that would grant them the same
opportunity provided to voters without disabilities to mark their absentee
ballot independently (see the attached opinion). Ballot-marking tools allow
voters to mark an electronic version of the absentee ballot on devices such
as computers, tablets, or smartphones. No votes are cast electronically;
voters must still print and mail in their ballots to have their votes
counted. 

            The Fourth Circuit explained that the opportunity to mark an
absentee ballot privately and independently was a benefit that the Maryland
State Board of Elections provided to voters without disabilities but denied
voters with disabilities on the basis of their disability. It was of no
consequence that Maryland made other methods of voting, like in-person
voting, available to voters with disabilities on an equal basis. The right
to vote absentee privately and independently was a distinct benefit, and the
denial of this opportunity was "precisely the sort of harm the ADA seeks to
prevent." Nat'l Fed'n of the Blind v. Lamone, 813 F.3d 494, 506 (4th Cir.
2016). The opinion further states "that by effectively requiring disabled
individuals to rely on the assistance of others to vote absentee, defendants
have not provided plaintiffs with meaningful access to Maryland's absentee
voting program." Id. at 507. 

            The Fourth Circuit also noted that state law, such as a
requirement that voting systems be certified, does not exempt "public
entities from making otherwise reasonable modifications to prevent
disability discrimination" because the "Constitution's Supremacy Clause
establishes that valid federal legislation can pre-empt state laws." Id. at
508. The Sixth Circuit in the recent case, Hindel v. Husted, also found that
certification procedures required by state law could not block enforcement
of the ADA when it comes to the right to vote absentee on an equal basis.
See Hindel v. Husted, 875 F.3d 344, 349 (6th Cir. 2017). 

            Currently, there are a number of accessible absentee
ballot-marking systems available for use in US elections. The Maryland State
Board of Elections makes its accessible ballot-marking tool available at no
charge. Five Cedars, Democracy Live, Dominion Voting, and Prime III are
examples of vendors that can also provide absentee ballot-marking systems.
Many of these systems have now met Ohio and California's certification
requirements for election technology. Given the requirements of the ADA and
Section 504, as well as the wide availability of accessible ballot marking
systems, I strongly encourage you to implement such a system for use in the
2020 elections, and all subsequent federal, state, and local elections in
which absentee voting is available. The National Federation of the Blind
will be monitoring the availability of accessible absentee voting through
our 2020 national blind voter survey, and subsequent surveys following each
presidential general election. 

            Voters with disabilities must be considered as you design and
plan your absentee voting process. Providing an accessible ballot-marking
tool will guarantee that people with disabilities have an opportunity to
cast their ballots privately and independently that is equal to the
opportunity provided to voters without disabilities, as required by the ADA.
The National Federation of the Blind is available as you consider the
accessibility of your current absentee voting system. We welcome an
opportunity to advise you on the development, or in the procurement process,
of an accessible ballot-marking tool. 

            Please do not hesitate to contact us with questions, or if you
need assistance with the implementation of accessible absentee voting. 

 

Sincerely, 

 

Mark A. Riccobono, President 

National Federation of the Blind 

 

 

Steve Cook

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