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A Private and Independent Vote: Still Long Overdue for Persons with Disabilities

By Lisa Tarricone

This past November the New York State Board of Elec tions (NYSBOE) approved preliminary regulations for the purchase of new voting machine s in order to comply with the federal Help America Vote Act (HAVA). The draft New Voting M achine Regulations (reflecting changes in NYS law to comply with HA VA), according to the state, will ensure meaningful access to the democratic process for all New Yorkers.

Well, maybe not all New Yorkers.

Voters with disabilities in New York maintain that the languag e in the proposed regulations is not comprehensive enough to ensure them fu ll access to the voting system or the guarantee of a private and independent vote. Sect ion 301(a)(3)(A) of HAVA requires that voting systems be accessible for individuals with disabilities ... in a manner that provides the same opportunity for access and participation (including privacy and independence) as for other voters. In order to equip polling sites with voting machines that are HAVA-compliant, the NYSBOE must soon decide what type of voting machines local election boards can buy. The state is slated to receive $190 million in federal funds for this purpose.

Although the regulations contain sections on ballot acce ss, machine and paper trail access and polling place requirements, they do not provide provisions for a range of varying disabilities. Ballot access under the current regulations does not incorporate language to address color and contrast or enlarged font size for indiv iduals with vision and cognitive issues . The section on machine access does not include requirement s for fully accessible tactile and audio devices for persons with dexterity and m obility issues. Paper records need to be verified privately and independently by voters with disabilities and as such, need to be provided in audio, large print and Braille, none o f which is mentioned in the draft plan.

Disability rights advocates and organizations across the s tate have worked consistently and conscientiously since HAVA was introduced in 2002 to partner wi th the state Board in mapping out accessibility standards for voters with disa bilities. Advocates tested electronic and optical scan machines and compiled surveys with their recommendations, which were forwarded to state officials. Members of a stat ewide legislative advocacy network attended all the meetings held by the Joint Legis lative Committee on HAVA and repeatedly issued their concerns to legislators that thei r accessibility needs be considered before drafting a final decision. Voting machine accessibil ity issues were given short shrift by the Joint Committee during its proceedings.

In addition, HAVA regulations specify that four members f rom disability rights organizations be appointed by the state Board as part of a bipartisan committee to test voting machines and issue findings. An Article 78 proceedin g was filed against NYS BOE by one of the disability organizations after it failed to appoint one of its members to the Citizen s Election Modernization Committee last October. Earlier this month the state Board finally appointed the designated repre sentative, but only after dismissing one of the prior disability appointees in what appea red to be a retaliation maneuver due to the lawsuit. To date, a fourth disability r epresentative still needs to be appointed to the Committee. All other appointees were formally approved by NYSBOE.

On the local front, a lawsuit was filed in federal court in March of 2004 from two leading disability advocacy organizations against the Westcheste r County Board of Elections (WCBOE) for polling site access violations under the American s with Disabilities Act. Advocates brought the suit after several years of atte mpts to work with the WBOE to help make the county s polling sites accessible to voters with disabilities was ignored. (The county has 440 polling sites over 1000 districts and 50,000 regist ered voters, approximately 20% of whom are registered voters with disabili ties.) The suit is still pending.

Meanwhile the state has been put on notice with the threa t of a lawsuit by the Department of Justice for failure to implement HAVA by the mandated Ja nuary 1, 2006 deadline. According to the letter submitted to the NYSBOE and New York Attorn ey General, it is beyond dispute that New York is not incompliance with the voter regist ration requirements and voting systems standards under HAVA. The letter states: In fact, based on information we received ... its is clear that New York is not close to approaching full HAVA compliance and, in our view, is further behind tha t any other state in the country.

It does not appear likely that New York will have new voting mac hines in place by the September primary. Until the NYSBOE adopts acceptable voti ng machine standards allowing for the certification of new machines to be sold i n New York, counties are stonewalled from beginning the process of negotiating for new machine purchases. And New Yorkers with disabilities will continue to be denied full acc ess to their fundamental right to vote privately and independently.

January 2004
Lisa Tarricone
Coordinator of Systems Advocacy
Westchester Independent Living Center
White Plains, NY

Westchester Independent Living Center, Inc.
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