VOTING RIGHTS AND PERSONS WITH DISABILITIES
July 2002

Remarks Delivered to the U.S. Commission on Civil Rights
Miami, Florida - June 20, 2002
By: Peter Manheimer
Appearing on behalf of the American Association of People with Disabilities

Good afternoon and thank you for the opportunity to appear and comment on the important issue of voting rights and persons with disabilities. My name is Peter Manheimer and I am a member of and appear here today as a representative of the American Association of People with Disabilities. I am a university professor, teaching Business Law and Legal Environment of Business at the College of Business Administration at Florida International University. I am a member in good standing of the Florida Bar and frequently serve as a consultant on disability issues in matters being litigated before the United States District Courts. I am currently serving, by virtue of appointment by Governor Bush, as the President of the Florida Independent Living Council. I am also a past Chairperson of the Dade County Commission on Disability Issues.

Persons with disabilities have long been constructively disenfranchised from the voting system. Stereotypes assumed people with disabilities were either incapable of voting, chose not to vote, or were "home bound" and would vote only by absentee ballot. When an independent soul ventured to the voting place on election day, access to the polls was not assured. If one got past the front door, voting equipment often precluded persons with disabilities from casting a secret ballot - a right afforded to all other eligible voters. In spite of the Voter Accessibility for the Elderly and Handicapped Act, Section 504 of the Rehabilitation Act and Title II of the Americans With Disabilities Act, persons with disabilities still remain second class citizens when it comes to the voting process.

As a result of the numerous problems arising out of the 2000 elections, the State of Florida and the Nation were faced with a challenge of reexamining the voting process to assure that it provides access for all Americans. This reexamination led to the recent enactment of Florida's amended voting laws. The State's disability community was instrumental in lobbying for many of the changes. These changes go a long way to correcting the historical patterns of discrimination against persons with disabilities - however, many concerns still exist.

FUNDING

Florida's initiative was passed as an "unfunded mandate". Many of the requirements will be expensive to initiate and may be beyond the fiscal reach of many communities. Section 22 of the new Act provides that many significant sections will not become effective until one year following legislative funding appropriations. However, there is no requirement that such appropriations be made by the legislature. Section 13 and other provisions of the Act specifically refer to the legislative intent that Florida will seek Federal funding to improve accessibility to voting systems and the polling places. At a meeting I attended last week, Secretary of State Harris and several key legislators confirmed that Florida is depending on Federal funding to implement this Act. There is, of course, no guaranty that Congress will fund the states nor is there any assurance that Federal funding will be sufficient to meet the need. While I am certain that Secretary Harris and the Legislature are well intended, we face a significant possibility that these major advances will remain unimplemented because of a lack of funds. If in fact the funds are forthcoming and remitted to the counties, there is insufficient guidance in the Act as to how those funds will be expended. A county could opt to spend the money on physical access to the polling place and still have voting equipment which is inaccessible to persons with disabilities.

ACCESSIBLE EQUIPMENT

While the Act sets forth detailed standards describing what constitutes accessible voting equipment, it states that such equipment must be capable of having such access features installed but does not mandate such installation. It does state that at least one accessible device be available in each precinct. However, as this section would not be effective until one year following the date of legislative appropriations, counties currently obtaining new equipment appear to be allowed, under this Act, to purchase inaccessible equipment. Although following incident preceded the passage of the Act, a pending suit against Duval County illustrates the problem in question. Duval elected to purchase the less expensive optical scanning equipment which is not accessible to persons with visual disabilities or significant limits on manual dexterity. In order to "accommodate" persons who can not use the optical scanners, the County purchased a limited number of accessible voting machines. However, those machines will be located at election headquarters requiring persons who need them to travel far from their neighborhood polling place, a requirement not visited upon anyone else. As persons with disabilities also comprise the most transportation limited segment of the population, the requirement for such traveling once again will relegate the citizens of Duval as second class citizens who, as a practical matter, may vote only by absentee ballot.

Here in Miami-Dade County, we have purchased touch screen equipment, which can be accessed by persons with visual and physical limits, however, problems still remain. I had an opportunity last month to attend a demonstration of this equipment. It quickly became apparent that persons who are blind had some significant difficulty in using the machine. Unlike equipment which is regularly used for other purposes by persons who are blind, voting machines are only used occasionally, making usage unfamiliar and difficult. It appears that staff at the polling sites will have to be extensively trained in how to instruct persons who are blind on the use of the equipment. Without proper assistance the voters will be frustrated and will either decline to vote or elect to revert to the absentee ballot.

As a user of a wheelchair, I immediately noted that the machine was too high and the legs prevented the required clear space to approach. This can be remedied, as is noted in the Act, by moving the machine to an accessible table. When I questioned the representative of the County's Election Department on this point I was told it would be moved on request. Once again, as a person with a disability, I will have to request and wait for assistance when others are not required to do so. When I stated the obvious - why not just set up one of the machines at an accessible table for the entire election?, there was a reluctance expressed in doing so. It appears that because the anticipated limited number of wheelchair users and others needing a lower height machine, this was not deemed practical. I pointed out that if a chair is provided (which will be needed by some who need a lower machine) any voter can use the lower machine. I received no response to this suggestion.

What will happen to those unable to use the new equipment in spite of accessibility features? When viewing the machine last month, it immediately occurred to me that may own father, who turned 94 on Saturday and has voted in every election since Herbert Hoover was President, will not be able to use the equipment. While purely anecdotal, because of his age and disposition, having to use a "computer" as opposed to marking a ballot or pulling a lever will be beyond his ability. In raising this issue, I was told that as an alternative, paper ballots will be available at the polling place. However, I see no provision in the Act mandating this additional access. This made me consider persons with disabilities who will not be able to use the new equipment. People without the use of their hands, people with learning disabilities and other cogitative limits will be effectively be precluded from using the new voting equipment. Other than the touch screen and optical scanners, which are the only two methods approved by the Secretary of State, there is other equipment available which can be used by persons with greater limitations. However, approval of this equipment has not been forthcoming.

PHYSICAL ACCESS TO THE POLLING SITE

This is probably the most frustrating aspect of voting access as there have long been other laws in place mandating physical access. I, like others with disabilities have been faced with arriving at the polls only to find that there is no way to get in. The policy in place here in Miami-Dade County is that if you can't get in, a poll worker will bring a machine outside to the sidewalk. This is not acceptable. The Act requires that county election officials survey polling places by September 2003 and that access standards will be established to be implemented no later than July 2004. The Act further allows individual polling places, upon request, to be exempted from compliance until the 2006 general election. On this point I can only ask WHY? The Americans With Disability Accessability Guidelines have been in place since 1992 and Part 5 of Chapter 553 of Florida Statutes have been in existence in one form or another since before that time. Why are we developing an new access standard for polling sites when current access codes are sufficient to address the issue? While county officials should be required to survey existing polling sites, those sites should be required to be brought up to existing code requirement or other accessible locations should be identified. There should be no exemptions permitted. Even the smallest counties can find locations which meet ADAAG and 553 standards and there is no need to develop new voting site access standards.

I want to again thank the Commission on Civil Right for the chance to express some of the concerns facing the disability community and I will be happy to address any questions you may have.

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