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Voting While Disabled: Inside the New ACLU Case

A new lawsuit from the American Civil Liberties Union alleges widespread disability discrimination in New Hampshire's absentee process.
A woman receives a sticker after casting her vote at the Immaculate Conception Church on November 8th, 2016, in Penacook, New Hampshire.

A woman receives a sticker after casting her vote at the Immaculate Conception Church on November 8th, 2016, in Penacook, New Hampshire. 

On the day of the New Hampshire primary back in February of 2016, I accompanied Jameyanne Fuller, a blind voter, to the polls in Manchester. I'd been introduced to her by the Disability Rights Center in the state, and she told me she was super excited to vote for the first time entirely by herself. New Hampshire, it turned out, had a new audio and touchscreen voting machine that should have been fully accessible to blind voters. In the past, Fuller had had to vote with an assistant, but now, she could exercise her franchise independently. The machine didn't work at first, but a technician came to solve the problem quickly, and Fuller was able to cast her vote in privacy. For her efforts, she received the New Hampshire "I voted" sticker, in which the white outline of a person in a wheelchair is depicted in front of the "N" in "NH." Disability rights, the sticker suggests, are now fully integrated into the New Hampshire voting process.

Which makes the new American Civil Liberties Union lawsuit alleging widespread disability discrimination in New Hampshire's absentee ballot process all the more troubling. According to the complaint, the state requires signatures on absentee ballots to match those on the application form for the ballot. In the event that the signatures don't match, as determined by untrained election moderators, the state just throws out the ballot without notifying the affected voter. According to the lawsuit, hundreds of ballots are thrown out every election. "Even one disenfranchised voter," the complaint reads, "is too many. And no voter should be disenfranchised simply because of penmanship."

The ACLU's case focuses on Mary Saucedo, a 94-year-old woman who has been voting since the 1940s. Saucedo is blind from macular degeneration, and her husband helped her with the formwork for her 2016 ballot. She didn't even know her ballot had been thrown out until the ACLU contacted her, but, according to ACLU attorney Julie Ebenstein, Saucedo is now fully "devoted to the issue."

Ebenstein tells me that the central issue here is not that signatures are being used to verify identity, but that the statute allows for neither notification nor remedy. There aren't "a ton of missing facts. We know what the statute says and we know how it affects people like Mary." A judge will now have to decide whether the statute violates the Americans With Disabilities Act and whether it's constitutional. "We're not necessarily saying that you can never use a signature for anything," Ebenstein says, but the ACLU's position is that a signature match determined by one person without training (and without possibility of appeal) should not be "the final determinant over whether someone has the fundamental right to vote."

A man casts his vote at Amherst Street Elementary School on November 8th, 2016, in Nashua, New Hampshire.

New Hampshire citizens cast their vote at Amherst Street Elementary School on November 8th, 2016, in Nashua, New Hampshire.

According to Ebenstein, the broader context is not so much about signatures specifically, but rather about the many barriers that keep disabled Americans from voting. According to the United States Census Bureau, Ebenstein notes, illness and disability was the third-most-common reason for not voting (after being too busy or not interested) in the 2012 election. If 14 percent of all non-voters are being restricted thanks to illness or disability, that's a serious problem for people looking to expand the franchise. Moreover, while some states will provide an absentee ballot for any reason, New Hampshire only provides them to individuals who will be out of town or observing a religious holiday, or to people with disabilities. When it comes to that latter group, who, of course, are most susceptible to having their signatures discarded, "We're preventing a vulnerable population from having their votes counted," Ebenstein says. She points out that these are people who are supposed to have extra protections under the law, and says she is optimistic that a notification-and-appeal process, at the very least, should be easy for states to develop.

Signature verification is one of those places where well-intentioned people accidentally create barriers to inclusion for disabled individuals. There's no reason to expect malicious intent here, unlike with voter ID laws, which tend to be motivated by racist partisan agendas seeking to limit the electorate. That's not the case here. It's likely that no one realized the extent to which signature verification would disenfranchise disabled voters, though the state government of New Hampshire isn't commenting. Ann Rice, the deputy attorney general, told me that they will be filing a response in court in due time.

Society is packed with small and large barriers to full participation for people with disabilities. Some emerge when designers cut corners or out of an intention to exclude, but many are just like this signature requirement—thoughtless. Access needs to be built in. You do that by hiring experts with direct experience to assess your systems, especially when it comes to a fundamental right like voting. Every disabled adult American deserves access to the ballot, regardless of whether they can sign on the dotted line.