Statement of the NYCLU In Opposition to Continued Barriers to Voter Access

The New York Civil Liberties Union (NYCLU) is grateful for the opportunity to provide comment to the State Board of Elections regarding Chapter 273 of the Laws of 2014, and the impact of the continued exemption of certain local bodies from the requirements of Election Law § 7-202. The NYCLU, a nonprofit, nonpartisan organization with eight chapters and regional offices and nearly 50,000 members across the state, works to defend and promote the fundamental principles, rights and constitutional values embodied in the Bill of Rights of the U.S. Constitution and the Constitution of the State of New York. This includes the right of each and every New Yorker to cast a private, independent, and accurately recorded vote. The NYCLU commends the State Board for its continuing efforts to ensure that access to the vote extends to all New Yorkers, and expresses grave concern over the repeated extension of legislative exemptions from otherwise mandatory migration to accessible voting systems.

For more than a decade, there has been strong consensus that the use of lever voting machines in public elections is problematic, for two primary reasons: inadequate capacity to deliver an accurate and accountable vote, and inability to equip the machines for use by people with accessibility needs. Since 2010, however, the New York state legislature has authorized and re-authorized a compliance exemption allowing the use of lever voting machines in elections held by villages, school districts, fire districts and special improvement districts – on the flimsy justifications that these bodies have a “preference” for using the machines, that it will cost too much to comply with laws requiring adoption of accessible voting systems, and that such laws were not really meant to apply to minor local elections. Every time this exemption is re-authorized, it sends an unconscionable yet unmistakable message to potential voters with disabilities or other accessibility needs: your constitutionally-assured right to vote does not apply in this case, and your participation is neither required nor desired.

Even more broadly, while it is important to acknowledge progress and efforts at progress, we must directly confront the disparity between the real accessibility needs of people with disabilities, and the systems and practices that have to date been deemed sufficiently accessible. People with disabilities constitute a vast portion of the New York state population – nearly three million New Yorkers of voting age. But investigations have shown that poll workers are inadequately trained to interact with voters with accessibility needs, and election locations and materials are not designed with these needs in mind. In fact, the overwhelming array of barriers to voting faced by people with disabilities can amount to an effective bar on participation. The amplified result of this disenfranchisement is reflected in statistical findings: frustrated by lack of access, people with disabilities are less likely to register to vote and less likely to turn out on Election Day, and those who are able to overcome the most basic barriers to participation often arrive at election sites to encounter uninformed staff and unusable equipment.

This attrition is not for lack of interest in civic affairs; it is consistently linked with access-related concerns, ranging from transport needs to inaccessible poll sites and unworkable voting systems to intrusive, humiliating treatment by poll workers. Rather than counteract these barriers with increased outreach, however, political campaigns and election authorities are actually less likely to engage with potential voters with disabilities, and in turn, policymakers are less likely to be aware of or understand disability-related issues. Due to these coinciding forms of exclusion, the public voices of many citizens with accessibility needs are unjustly and systematically muted – a condition that New York cannot continue to abide.

A key factor in facilitating equal access to the private and independent vote is the modernization and equipping of accessible voting systems. New York and federal law guarantee every eligible person the opportunity to exercise his or her right to vote privately and independently. However, despite these guarantees, countless New Yorkers with visual, motor, and cognitive impairments are effectively denied access to the vote, particularly where outdated voting systems remain in use. Absent proper equipment, voters with disabilities and other accessibility needs are often forced to choose between forfeiting their vote, and forfeiting their privacy and independence when they must either rely on others to assist them or wholly entrust another to cast a ballot on their behalf. Continued failure to permanently eliminate these barriers to access directly contradicts core democratic principles – voter privacy, voter autonomy, and equal protection under the law.

Of course, improved machinery can only be an effective accessibility tool if poll workers understand how to use the systems and how to respectfully assist others in using them; likewise, accessible systems can only be useful if those who will benefit from them are aware of their availability, and can be assured that their participation, independence and dignity will be of utmost importance on Election Day. This suggests the need for in-depth, consistent training of election inspectors and poll workers, and ongoing engagement of potential voters with all varieties of accessibility needs.

Ultimately, the shared goal for all stakeholders in New York’s election process must be to establish truly equal access to a private and independent vote for all persons. This means that access and accommodation considerations must cover every step of the electoral process – from engaging potential voters prior to registration, through generating confidence that votes cast by people with accessibility needs will count. With this level of access in mind, and recognizing in good faith that this is the level of access which the State Board intends and expects to establish as the rule in every election statewide, the NYCLU offers a handful of key recommendations, and again expresses sincere appreciation for the opportunity to participate.

• Recommendation: Pursuant to Election Law § 3-102, the State Board should weigh in authoritatively against any further legislative extension of voting system compliance exemptions granted to local bodies including school districts, villages and special districts (as exemplified in Chapter 273 of the Laws of 2014). Voting in New York State cannot justly and accurately be deemed accessible until all forms and occurrences of public voting are fully accessible to voters with disabilities and other accessibility needs.
• Recommendation: Election authorities should establish and maintain advisory groups drawn from all populations that experience systemic barriers to access – chiefly, those with disabilities and those with limited English proficiency. In particular, testing and certification of voting systems and accessibility equipment should never be deemed complete without the input and participation of voters with accessibility needs.
• Recommendation: Election authorities should re-assess available voting systems and assistive technologies, and continue to re-assess as technologies develop and as voter needs are better understood. Even in light of the favorable intentions of laws requiring adoption of accessible voting systems, and the good faith efforts of those implementing the transition, there are always opportunities for improvement. Final decisions about accessible systems have in the past been rendered on marginal grounds, and without adequate input from those with accessibility needs. Further, technological advances can impact both the relative utility and costs of assistive equipment, so periodic re-assessment can potentially yield both improved access and reduced cost.
• Recommendation: Election authorities should make every effort to engage voters with accessibility needs and to inform them of available resources. For some, the greatest barrier to voting may be not having been told about the technologies and assistance available at their local polling place. These efforts must include communication via websites, traditional publication forums, advocacy organizations, common points of contact, and community relationships such as those established via public advisory groups.
• Recommendation: Election authorities must ensure appropriate training of election inspectors and poll clerks, as required by Election Law § 3-412. Current law requires specific information on “assisting voters with disabilities or with limited or no proficiency in the English language” as part of this core training; it also requires that inspectors and clerks be instructed on “use of voting machines, disability etiquette, and [related] duties” as soon as possible following their designation. Building on these elements, election workers should receive specific training on appropriate communication and respectful interaction with people with disabilities, operation of assistive technologies, and the legal rights of voters with accessibility needs.