Electronic voting is the best path for accessible voting

Voting is the heart of our democracy and a quintessential public activity that must be accessible to people with disabilities under Title II of the Americans With Disabilities Act. See 42 U.S.C. §§ 12131 to 12134. Yet, the State of California denies voters with print disabilities (including people who are blind or low vision, or have mobility, dexterity, or other impairments) the ability to submit their ballots when voting privately and independently. That right to fully participate in all areas of life is a central tenet of civil rights disabilities laws, including the Americans with Disabilities Act. There is nothing preventing California from doing the right thing. The answer to this problem is right in front of us: alternate mechanisms for ballot return are already in place for some California voters serving in the military and overseas voters. We should also look to other state ballot return systems to make California the example of excellence in access, justice, and equity in voting rights. With the November election at our doorstep, this is the moment for our Secretary of State, Shirley Weber, to protect this fundamental right and to act now.

Plaintiffs and advocates filed California Council of the Blind, et al. v. Weber condemning California's vote-by-mail procedures, challenging systemic discrimination against people with print disabilities by depriving them of their right to cast their ballots with the same level of privacy and independence that voters without disabilities receive. A "print disability" is one that prevents an individual from reading, marking, holding, handling, or manipulating paper, including blindness, visual impairment, an intellectual or developmental disability, or impairment in dexterity. In the context of voting, people with print disabilities are unable to use and manipulate a paper ballot and unable to return it privately and independently. Yet, the current vote-by-mail program discriminatorily demands that voters submit their ballots in print format regardless of whether that format is accessible to them. For people with print disabilities, this means they must rely on another person without print disabilities to help them submit their ballots. In their Motion for Preliminary Injunction, plaintiffs seek an order from Magistrate Judge Sallie Kim of the Northern District of California to require the Secretary of State to provide voters with print disabilities the same level of access to their vote-by-mail program as nondisabled voters by allowing them to submit their ballots electronically via the facsimile-based ("fax") ballot return system used by military and overseas voters.

The remedies sought by plaintiffs in Cal. Council for the Blind's Motion for Preliminary Injunction would make California's vote-by-mail system more accessible for people with print disabilities. Under Cal. Elec. Code Section 3106, military and overseas voters temporarily living outside the U.S. may return their ballots by fax for the Nov. 5, 2024, Presidential General Election. If this option were extended to people with print disabilities, such voters would be able to use their own devices and their assistive technology to return their ballots electronically without assistance and have the same level of privacy and independence in voting as military and overseas voters. Expanding this process to include people with print disabilities would not cause an undue burden because the State and the county election officials should already have the necessary policies, procedures, technology, and training to accept faxed ballots. Also, allowing people with print disabilities to submit their ballots electronically by fax does not create voter fraud concerns. Rather, this option would be able to use already existing security measures in place for overseas and military voters. The Secretary of State could and should implement the remedies proposed by plaintiffs in Cal. Council for the Blind in time for the November 2024 General Election.

Indeed, more can be done to protect the privacy and equal protection rights of people with print disabilities, including providing more electronic ballot return mechanisms. To allow people with print disabilities equal access to voting, several states have implemented systems that allow the voters to submit electronic ballots either via an online portal or via e-mail. North Carolina, for example, allows qualifying voters with disabilities to request, obtain, and submit an electronic ballot using the North Carolina Absentee Ballot Portal. See Accessible Absentee Voting, N.C. State Bd. of Elect., (https://www.ncsbe.gov/voting/help-voters-disabilities/accessible-absentee-voting). Similarly, Delaware, Hawaii, Indiana, Nevada, Rhode Island, Utah, and Colorado allow people to return their ballots using e-mail. See Del. Code Ann. tit. 15 § 5525; Haw. Rev. Stat. § 15-5; Ind. Code § 3-11-4-6; Nev. Admin. Code § 293.206; R.I. Gen. Laws § 17-20-9; Utah Code Ann. § 20A-3A-201; Colo. Rev. Stat. § 1-5-706.

Electronic ballot return systems further enhance the voting integrity of voters with print disabilities by allowing them to verify and submit their ballots independently and privately using their own devices and the assistive technology of their choice, rather than needing to rely on others to do so and run the risk of having others incorrectly record their voting choices. The California Elections Code currently prohibits these exact systems, to the detriment of voters with print disabilities, but that fact cannot circumvent California's obligation to comply with the federal Americans with Disabilities Act. It is essential for the State of California to evaluate, modify, and amend its current ballot return process for people with print disabilities to not only comply with federal law, but to protect the dignity and rights of people with disabilities.