Voting and Disability Rights

Each election cycle, voters with disabilities from Slovenia to Sudan must navigate countless obstacles to cast their ballots. Such barriers include inaccessible electronic ballots, paper absentee ballots, and election information, to name a few. In the United States, ballot access barriers have long depressed voter turnout by persons with disabilities, despite important gains in recent election cycles.¹ Recent increases in turnout by voters with disabilities are due in part to expanded ballot access measures enacted during the COVID-19 pandemic, which in many places provided voters with disabilities new options for voting by mail, electronically, curbside, and with assistance.

Since the 2020 general election cycle, however, a wave of voter suppression laws have targeted ballot access measures benefiting persons with disabilities. For example, in 2021 Texas passed Senate Bill 1 (S.B. 1), which prevented voter assistants from providing certain kinds of support, such as answering a voter’s questions, explaining the voting process, or paraphrasing complex language. The Western District of Texas held that these provisions violated Section 208 of the federal Voting Rights Act.² Moreover, the court found that S.B. 1 violated the terms of a 2018 injunction that had expressly prevented the state from confining forms of voter assistance to reading the ballot to the voter, directing the voter to read the ballot, marking the voter’s ballot, or directing the voter to mark the ballot. The U.S. Fifth Circuit Court of Appeals had also upheld that injunction, expressly holding that Section 208 "plainly contemplates more than the mechanical act of filling out the ballot sheet."³

The restrictions that S.B. 1 placed on voters with disabilities came under fire again earlier this month. In addition to the above-mentioned limitations on voter assistance, S.B. 1 banned drive-thru voting, prevented polling places from opening on weekends or before 6 A.M., imposed new ID requirements for mail-in voting, and threatened criminal penalties for violating specific rules for providing voter assistance. As foreseen by disability rights advocates who testified before the Texas legislature in 2021 in opposition to S.B. 1, the specter of criminal penalties has had a chilling effect on personal care attendants' and other direct support staff's willingness to provide in-person or mail-ballot assistance to voters with disabilities. At trial, several voter with disabilities' support staff testified that the potential criminal liability under S.B. 1 were their reasons for declining to provide the voter assistance requested by the persons with disabilities they supported.

Fortunately, the Western District of Texas again found S.B. 1's regressive provisions to violate the Voting Rights Act. Other courts have similarly cited Section 208 to overturn state laws imposing overly broad limitations on who can assist voters to request and return absentee ballot.⁴ But similar measures restricting voter assistance remain in other states.⁵ Even if federal voter protections and disability rights laws will ultimately allow voting and disability rights advocates to prevail in court challenges, the enactment of voter assistance restrictions can both generate misinformation and also have a chilling effect on persons with disabilities' participation in the 2024 general elections. To help safeguard against voting restrictions that infringe on voters with disabilities' right to assistance, the National Coalition on Accessible Voting has launched its #RightToHelp Campaign, which aims to ensure legal protections for persons with disabilities’ right to get help to cast their ballots from almost anyone they choose. 

Persons with disabilities the world over have resorted to litigation to vindicate their right to voter assistance. For example, in Givens v. Australia, an individual communication resolved by the United Nations Committee on the Rights of Persons with Disabilities in 2018, a woman with no speech and limited muscle control and dexterity was unable to mark a ballot paper without assistance. Prior to Australia's 2013 federal elections, she requested access to iVote, an electronic voting system that the Electoral Commission had made available only to persons with visual impairments. When that request was denied, she requested in-person voter assistance from a poll worker. But the poll worker replied that she was "too busy" to assist Ms. Givens and directed her instead to obtain assistance from her personal attendant. The Committee ultimately held that both denials resulted in violations of her right to political participation under Article 29 of the Convention on the Rights of Persons with Disabilities (CRPD). 

The Committee has also worked to remove other pervasive barriers to political participation, including voting restrictions faced by persons with intellectual and psychosocial disabilities subject to guardianship orders. Specifically, in Bujdosó et al. v. Hungary⁶ the Committee emphatically held that even where a court predicates a guardianship order on an individualized "capacity assessment" to restrict a person with disability's right to vote, voting restrictions constitute disability-based discrimination that run afoul of States parties' CRPD obligations. Instead of restricting voters with disabilities' rights, governments should provide "all persons with disabilities, including those with more need of support," with "adequate assistance and reasonable accommodation[s]." They must also ensure "that voting procedures, facilities and materials are appropriate, accessible and easy to understand and use, and where necessary, at their request, allowing assistance in voting by a person of their choice."

Despite these advances in international human rights legal protections of persons wtih disabilities' ballot access, recent European Court of Human Rights decisions have eroded legal protections against voter disenfranchisement.⁷ In Kiss v. Hungary, one of the first cases where the Court used the CRPD as an interpretative aid to determine the scope of states' duties under the European Convention on Human Rights, it ruled that states may not restrict persons with disabilities’ right to vote solely on the basis of guardianship orders, "without an individualised judicial evaluation." However, more than a decade later, in Strøbye & Rosenlind v. Denmark and Caamaño Valle v. Spain,⁸ the Court declined to follow the Committee's views in Bujdosó et al. v. Hungary. Instead, the Court carved out problematic exceptions to the rule it had established in Kiss, by allowing states to disenfrachise a person with disability subject to guardianship orders on the basis of an individualized assessment, even if the assessment does not specifically measure the person's capacity to vote. Similarly, in Toplak & Mrak v. Slovenia,⁹ the Court acknowledged the CRPD and the Committee's views in Givens v. Australia, but set very low bars for states' obligations to ensure that polling places are physically accessible to voters with disabilities and to provide voters with disabilities who need assistance readily available means to cast secret ballots. 

Thus, as described by HPOD's Executive Director Professor Michael Stein and Director of Advocacy Initiatives, Hezzy Smith, together with HPOD Associate János Fiala-Butora, disability cause lawyers have a primary role to play in safeguarding all persons with disabilities' full and effective political participation both in the United States and abroad. Importantly, as the above cases show, even following notable ballot access victories, it will be necessary for disability rights advocates to access the courts to push back against new forms of voting restrictions. Moreover, which cases disability cause lawyers choose to bring, as well as how they choose to present their claims, will influence whether local and supranational courts advance or impede the global disability rights movement's aims. In the United States, for example, disability rights groups' intersectional collaborations with other advocacy movements to resist voter suppression laws have proven effective in rolling back measures that disproportionately affect ballot access for cross-cutting swaths of Black voters, Latino voters, and voters with disabilities.

That said, removing the myriad legal, informational, and architectonic ballot access barriers that voters with disabilities face will only do so much to fulfill their human right to full and effective political participation on an equal basis with others. Beyond removing barriers, governments and civil society alike also need to undertake positive measures that facilitate persons with disabilities' political participation, starting with elections. In this vein, mobilization efforts like the American Association of People with Disabilities' REV UP campaign and the Self Advocates Becoming Empowered's GoVoter project are vital strategies to close the gaps between legal protections and the real-world experiences of voters with disabilities. As with so many other rights, persons with disabilities and their allies need to show up early and often to ensure they have equal opportunities to make their voices heard in politics.

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