Disabled Californians Challenge Absentee Voting Rules That Deny Them a Secret Ballot

Disability rights groups are suing for an electronic option to return ballots without assistance, which is allowed in a dozen other states, but they face pushback over security concerns.

S.E. Smith | May 10, 2024

Mail-in ballots at the Sacramento County Registrar of Voters in October 2018. (AP Photo/Rich Pedroncelli, File)

Jeff Thom remembers the excitement of finally being able to cast a ballot without help from others. Thom, who is blind, for years had to rely on assistance from friends or poll workers to vote, with a helper describing the ballot and marking it for him. He had no way to verify that his ballot was properly marked and submitted to the poll workers. But by 2002, the law required polling places in California to maintain at least one accessible voting machine, making it possible for Thom to mark and verify his own ballot.

“When I had that first experience of voting (without assistance), emotionally… I can’t even describe how wonderful the feeling was to be able to go in and do it on my own, and it still is, 20 years later,” Thom told Shorelinescripts.

Thom, who is on the board of directors for the California Council of the Blind, is part of a group of disabled Californians and advocacy groups who want all disabled voters to have access to that experience of marking, verifying, and submitting a private ballot, including when they vote remotely. In March, they sued the California secretary of state over absentee ballot rules that they say discriminate against disabled voters and deny their right to a secret ballot.

While voters in California can access ballots and mark them electronically, using a one-time link sent by the state, they must print out and mail in their marked ballot or drop it off at a voting location. Disability rights groups say that raises significant barriers for low-vision voters, cognitively impaired voters, and others with disabilities that make it challenging to print and mail their ballot without assistance.

The lawsuit demands that California let disabled voters submit absentee ballots electronically, which at least a dozen states already allow for voters with disabilities—by fax, email, or through an online portal.

The plaintiffs include voters who are blind or have cerebral palsy, which limit their ability to handle and mail paper documents without assistance. The suit argues that the state is violating federal and state laws guaranteeing equal ballot access for disabled voters. “Forcing voters with print disabilities to seek the assistance of another person deprives them of the right to their political choices without others’ presence or knowledge (that is, a secret ballot)—a hallmark of our electoral process,” the lawsuit states.

“We want to vote the same way that other people do,” Thom, whose organization is one of the plaintiffs, told Shorelinescripts. “That’s on our own without somebody to help us, without someone standing over our shoulders looking at how we vote.”

The California lawsuit is part of a state-by-state fight by disability rights groups to implement electronic voting and ballot return methods for disabled voters, which ratcheted up as the coronavirus pandemic made in-person voting an even greater hurdle for many people with disabilities. A similar lawsuit brought by disabled voters in North Carolina in the summer of 2020 ultimately forced the state to allow online voting for blind people. Another lawsuit by disabled voters led Maine in 2021 to implement a system of electronic voting for people with limited vision, limitations in physical dexterity, learning disabilities or cognitive impairments. Last month, voters with disabilities filed a similar lawsuit against the Wisconsin Election Commission, demanding options for receiving and returning absentee ballots electronically.

Aside from being a fundamental right, disability rights advocates say the ability to vote independently is also critical for ensuring that people vote without coercion or fear of reprisal. For example, someone in an abusive relationship might have reason to fear that their partner would spoil or simply refuse to return a ballot, or might feel pressured to vote for particular candidates or measures. Disabled people are more likely to be in abusive relationships where a partner might withhold access to care, finances, or other basic needs to coerce a vote.

Decades of federal legislation reiterate that people with disabilities deserve equal access to the ballot, and to all options for voting—whether in person or absentee. “If sighted people have both options, we want both options, regardless,” said Claire Stanley, director of advocacy and governmental affairs for the American Council of the Blind. For polling places, this has led to requirements that they be physically accessible for people with disabilities and also provide voting equipment that allows disabled people to vote independently.

Though these rights are clearly spelled out, people with disabilities still regularly encounter difficulties voting. A Rutgers study published last month found that 14 percent of disabled voters reported encountering difficulties casting their ballot during the 2022 midterms, compared to just 4 percent of nondisabled voters. The study also found that overall turnout among disabled voters trailed that of nondisabled people by about 11 percent during the last presidential election.

Around two-fifths of disabled voters used mail ballots in 2022, according to another study prepared for the Election Assistance Commission last year. Disabled people still often report encountering barriers to voting absentee, including ballot collection laws in some states that restrict who can return a ballot on their behalf. Making disabled people print out and mail absentee ballots, as is required in California and many other states, can also force them to involve others in the voting process. “I’m blind. Why would I have a printer?” Stanley wryly remarked.

Gabe Griffith, president of the California Council of the Blind, argued that disabled voters should have the option to privately complete the voting process and cast their ballot from home with the technology they’re already comfortable with and use regularly, especially considering how often disabled voters face barriers at the polls. He says physically going to the polls might require an hour or more resolving issues with an accessible voting machine, rather than simply “popping in and out in 15 minutes.”

“If I’m using a piece of technology on a daily basis, I’m going to know how to fill out and submit my ballot using that piece of technology, rather than going into polling places and using technology that only gets pulled out and dusted off every two years,” Griffith said. Griffith also regularly works with such technology and trains people on how to use it in his work as a tech specialist with LightHouse for the Blind and Visually Impaired. He says his agency, among others, could offer technical assistance to the state on ensuring that low-technology voters would have access to information and equipment to help them vote independently.

Disability rights advocates in California and elsewhere have faced pushback over security concerns raised by electronic voting. A risk assessment conducted ahead of the 2020 election by the National Institute of Standards and Technology stated that electronic ballot return “creates significant security risks to the confidentiality, integrity, and availability of voted ballots,” noting that such risks can occur at scale and affect election results. “Securing the return of voted ballots via the internet while ensuring ballot integrity and maintaining voter privacy is difficult, if not impossible, at this time,” the report said.

A working group of election and cybersecurity experts hosted by the University of California, Berkeley, between 2021 and 2022 came to similar conclusions. In a report they issued in December 2022, the group listed numerous technical problems that would need to be addressed before any widespread adoption of electronic ballot returns—such as protections against malware or targeted denial-of-service attacks. Still, the group acknowledged that electronic voting “can be an important tool for accessibility and ballot access” for overseas and disabled voters, and that eliminating it entirely without reasonable alternatives “could produce an unacceptable risk to those with accessibility needs.”

The California Secretary of State’s office has echoed those security concerns in fighting against electronic ballot returns for disabled voters. In a recent court filing responding to their lawsuit, the office wrote, “The public has a compelling interest in the accuracy and integrity of the forthcoming election that weighs heavily against granting an injunction.” A spokesperson for the office declined to answer questions by Shorelinescripts, saying they couldn’t comment on pending litigation.

In their lawsuit, the California plaintiffs note that the state already has an e-return option for certain military and overseas voters, as do many other states. The lawsuit also points out how the state’s current system of allowing voters to receive and mark ballots electronically is already compatible with assistive technology, such as screen readers or sip-and-puff devices that allow disabled voters to read and mark their devices without outside help.

Disabled voters, like other concerned voters, say they value safe and secure elections, but they also believe it’s necessary to address security risks without abridging personal rights. The “equity concerns of people who are blind or have low vision,” says Thom, are critical to the democratic process in California, a state long known as a pioneer in disability rights. He says the community is tired of fighting the state over the issue. Thom says disability rights activists approached the Secretary of State in 2021 about remote voting options with an interest in collaborating on a secure, accessible solution. In 2022, legislation that would have allowed electronic returns for people with certain disabilities failed after opposition from a variety of groups, including the secretary of state, much to the frustration of the disability community.

“I am not aware of any kind of election interference in the states where they have implemented electronic voting for folks with disabilities,” says Rosie Lee Bichell, a staff attorney with Disability Rights Advocates, a national advocacy group. “Any security concerns that might arise with our request would be no different than those that already exist.”

Chris Danielsen, public relations director for the National Federation of the Blind and a Maryland voter who needs help to mail his ballot, says opponents of electronic returns for disabled voters ignore how existing barriers already impact their ability to securely vote. “I have less assurance with the current system where I’m letting somebody else handle my ballot or help me than I do if I sent it electronically,” Danielsen said.

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