November 25, 2003

Tokaji's take on DRE/disability issue

Law professor Dan Tokaji sends along the following thoughts regarding potential disability rights issues related to the DRE paper trail issue:

    In response to the question posed in your blog, I think the best Americans with Disabilities Act/Section 504 theory is something along the lines that Eve suggests, namely that Shelley's decision will make it very difficult if not impossible for counties to convert to more accessible DRE systems. None of the DREs presently certified can do what he would require. There are apparently some prototypes, but they've not successfully been implemented in a real-world election environment. Thus, I fear it's very likely that the decision will lead counties to either stand pat with their existing paper-based systems (the only ones who can't do this are the 9 pre-scored punchcard counties affected by the consent decree in Common Cause v. Jones) or convert to optical scan systems (they could even go to the still-certified Datavote punchcard machine, though I think this is unlikely). By the time a DRE-with-contemporaneous-paper-replica that actually works is developed, the federal and state money may well have dried up -- even assuming that such a machine isn't prohibitively expensive. There's also a question about whether or not a DRE-with-paper-trail, once it developed and implemented, will accommodate visually impaired voters.

    An ADA/504 claim might draw support from a district court decision in Florida, denying a motion to dismiss ADA and Section 504 claims brought by disabled voters challenging the failure to adopt voting technology accessible to people with visual and manual dexterity impairments. AAPD v. Hood, 278 F. Supp. 2d 1345 (M.D. Fla. 2003). The best targets for ADA claims may be counties that decide to go with optical scan systems rather than DREs as a result of Shelley's decision -- and I suspect that we will see such litigation in California at some point in the not-too-distant future.

    Another possible theory is that the requirement contravenes Section 2 of the Voting Rights Act, because it will lead counties to choose (or stay with) systems that result in a disparity in uncounted votes. There are studies showing that optical scan and punchcard systems lead to a significant black/white disparity in residual votes, a disparity which virtually disappears with DREs. See (Tomz & Van Houweling)

    Incidentally, I'm quoted in the SJ Mercury News as saying that Shelley's decision "could lead to legal challenges under both the federal Americans With Disabilities Act and the federal Help America Vote Act." This is a correct transcription of a quotation taken from a press release opposing Shelley's decision (issued by California Common Cause, Asian Pacific American Legal Center, and Western Law Center on Disability Rights), and the part about the ADA is right. However, the end of this sentence should have read "the Voting Rights Act" rather than "the federal Help America Vote Act."

    I'm curious as to whether there might be a cause of action under the state elections code as well. Looking forward to seeing whether your blog readers who know more than I do about state requirements for certification and decertification of voting systems think about that.

    One final note: Your blog makes reference to a split between the voting rights and disability rights community. I think that split may be more apparent than real. The California voting rights advocates that I know are concerned with, if not outright opposed to, Shelley's decision. That includes groups such as the APALC and California Common Cause, which signed on to the press release the other day, as well as national groups like the League of Women's Voters-US and Leadership Conference on Civil Rights which have previously opposed a VVPAT (although I understand they're now under considerable pressure to change their position). There may be some voting rights advocates who support the VVPAT, but the ones I've been working with don't think it should be required -- and actually believe that the end-result of Shelley's decision will be harmful to the voting rights of people of color and linguistic minorities.

Thanks for writing.

Posted by Rick Hasen at November 25, 2003 09:47 PM