We cannot deny disabled voters equal protection under the law

New state election laws have prompted debate about whether they will make it more difficult for people to vote. Missing in that national conversation is consideration of equal protection for an often-overlooked class of American voters: the disabled, who have special accessibility needs. Important strides have been made to ensure that Americans with disabilities can exercise their right to vote. Nevertheless, too many disabled individuals face persistent risks and challenges that other voters do not — it’s an untenable situation that may deny them equal protection under the law.

There were more than 38 million disabled voters eligible to cast ballots in 2020, and they were nearly twice as likely as non-disabled voters to encounter problems. Certainly, we do not want to treat disabled voters as second-class citizens whose rights to full participation in our democracy are compromised. 

Unfortunately, there is little financial incentive for the commercial election-technology industry to produce innovations to better serve voters with disabilities. Outmoded policy frameworks that justify providing fewer services to smaller groups of disadvantaged voters are equally at fault. 

Disabled individuals may be required to use voting machines that do not produce regular ballots; to use absentee ballots that are less likely to be counted; or to use computer-assisted, home-voting methods that are neither independent nor private. If they can vote in person, they cannot be sure there will be functioning machines at the polling location, or that they won’t have to wait in absurdly long lines to cast a ballot. Other issues include poor ramps outside of the buildings and a lack of parking spaces for those with disabilities. 

Worse, disabled voters may not enjoy the expectation that their ballots’ integrity will be protected the same as other voters. Further, technical innovations that could improve accessibility dramatically are too often sacrificed in the (necessary) interest of security. Yet, security and accessibility are not mutually exclusive. A functioning democracy requires us to do both. The OSET Institute, a nonpartisan, nonprofit election technology research, development and education organization, laid this out clearly in a paper this past fall.

Recently, OSET announced it is developing an app for digital absentee ballot marking that will support disabled voters who require an at-home solution.

The app, called Mark.It, will be entirely open-source technology for devices used by the disability community to prepare a ballot and attestation document for paper return. The project seeks to provide the convenience of digital ballot preparation with the security of paper ballot return. The software, however, provides a good foundation for a system to support digital ballot return for those situations where returning a paper ballot is impossible. The technology is initially being developed for tablets, with a long-term target of desktop and laptop computing devices with assistive technology where required. 

While the open-source technology is slated for public use as administered by state election officials, the Mark.It project will be as compliant as possible with Section 508 of the 1973 Federal Rehabilitation Act, which requires federal agencies to make their electronic and information technology accessible to people with disabilities. The law applies to all federal agencies and ensures that disabled members of the public have access to the technology that is on par with others’ access. Following Section 508 accessibility guidelines in building technology of this type should meet the accessible voting intentions of the 1965 Voting Rights Act and the 2002 Help America Vote Act.

This work is especially necessary today because of potential threats posed to voting accessibility. Roughly half of people with disabilities cast a vote by mail in 2020. Since then, lawmakers have introduced more than 500 bills in 49 states that would further restrict access to voting for historically disenfranchised populations in our country, and that inevitably would include those with disabilities. 

Efforts such as this are compulsory if there is to be equal participation protection in public elections and should apply to all voting technology meant to serve disabled voters. To get there, we need more investment in transparent, open-source voting solutions, as well as a resolution of policy issues for the types of voters and situations in which digital return is the only private and independent option.

True democracy requires the principle of equal protection: No voter should be compelled to forgo protection of his or her ballot or voting experience in order to exercise a constitutional right. 

William P. Crowell, a former deputy director of the National Security Agency, is a board member of the OSET Institute, a nonpartisan, nonprofit election technology research, development and education organization. He is a partner at Alsop Louie Partners.

Gregory A. Miller is co-founder and chief operating officer of the OSET Institute, a computer engineer, and a non-practicing intellectual property lawyer.