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Court Victories Deliver Cautious Hope for Voters With Disabilities
Stateline.org - 9/19/2022
Sep. 14—Editor's note: The story has been updated to say a federal judge limited a state court's decision.
Paralyzed from the neck down, downtown Milwaukee resident Martha Chambers has difficulty voting.
She can use a mouth stick to mark her ballot and sign her name on an absentee ballot, but she has no way of folding the ballot, slipping it back in the envelope or returning it to the mailbox.
Driven by its conservative majority, the Wisconsin Supreme Court in July outlawed assistance in the absentee voting process. After that decision, Chambers worried that her caregiver — who also gets her out of bed in the morning, brushes her teeth and puts her clothes on for her — could become a criminal for ensuring she can participate in the democratic process. Chambers said she was effectively disenfranchised.
"It was just sad," she told Stateline. "There were a lot of voters with disabilities saying, 'What do I do?'"
Chambers was one of four voters with disabilities who sued the Wisconsin Elections Commission in July in federal court, asking to reverse the ruling. In late August, Chief U.S. District Judge James Peterson ruled the state Supreme Court's decision violated Chambers' rights guaranteed under federal law.
"Voters shouldn't have to choose between exercising their federal rights and complying with state law," Peterson wrote in his decision.
The ruling in Wisconsin was one of two big legal victories in federal court for voters with disabilities this summer. In June, U.S. District Judge Robert Pitman struck down parts of a Texas law that forbid certain assistance for voters with disabilities and voters with limited English proficiency.
The cases are part of the larger, ongoing battle over voting access. More than 20 Republican-led states enacted a wave of barriers to the ballot process in the past two years, making voting — especially by mail — more difficult in the name of preventing voter fraud, which is rare in the United States and did not affect the results of the 2020 presidential election. Voting rights advocates have challenged many of the laws. Protecting voting rights for people with disabilities is one of the few areas in which they've had success — and even found some consensus.
After many difficult months of voters with disabilities trying to navigate restrictive new voting laws, these legal victories are welcomed, said Rebecca Cokley, program officer for U.S. disability rights at the Ford Foundation, a New York-based philanthropy that provides grants to organizations that lead voting efforts for people with disabilities.
"Anything that maintains the right of disabled people to be able to cast a ballot and to participate in the fundamental cornerstone of democracy is a win," she said.
Cokley, who is a little person, knows that something as simple as the height of tables at polling places can easily hurt her ability to vote. Disabilities are diverse and affect 38 million voters nationally, she said.
Disability rights advocates hope these victories set a legal precedent for residents in other states to successfully challenge new restrictive voting laws.
A Fight for Assistance
The case in Wisconsin stemmed from a lawsuit filed by the conservative Wisconsin Institute for Law and Liberty in 2021 in Waukesha County Circuit Court on behalf of two voters. In 2020, the state's elections commission had issued guidance encouraging the use of ballot drop boxes because of the health threat of voting in person during the COVID-19 pandemic. Third-party assistance for returning ballots for disabled voters had been a precedent in place for decades.
The Wisconsin Institute for Law and Liberty argued there was nothing in state law that allowed anyone other than a voter to return an absentee ballot or that allowed for ballot drop boxes. Allowing others to collect and turn in ballots could open the voting system to fraud, the institute argued. The conservative majority of the court agreed, making it illegal to use most of the state's 528 ballot drop boxes and to receive assistance from others in returning absentee ballots.
"An absentee ballot must be returned by mail or the voter must personally deliver it to the municipal clerk at the clerk's office or a designated alternate site," wrote Justice Rebecca Bradley in the majority opinion in July.
But that is impossible for Timothy Carey, an Appleton, Wisconsin, resident who has Duchenne muscular dystrophy and lives on a ventilator. His nurse assists in most aspects of his life, including helping fill out his absentee ballot. He was one of the four plaintiffs who sued the Wisconsin Elections Commission, represented by Law Forward, a Madison-based litigation firm, after the state Supreme Court ruling.
"That just wasn't right," Carey said in an interview. "I wanted to make sure that we don't have to break the law in order to exercise our right to vote."
By limiting the state court's decision last month, federal Judge Peterson "restored some of the dignity they're due in an open democracy," said Scott Thompson, staff counsel at Law Forward.
"It was truly a defense of the right to vote," he said. "Extreme conspiracy theories are driving policy change. In Wisconsin, voters with disabilities paid the price. They were literally almost disenfranchised."
But the federal ruling did not address the state court's decision to ban the use of drop boxes, effectively keeping them illegal.
Luke Berg, deputy counsel at the Wisconsin Institute for Law and Liberty, said his organization did not disagree with the federal ruling. If a voter is unable to mark their ballot, they should have assistance, he said. But he emphasized that third-party assistance should be granted only for voters with disabilities.
"We want everyone to vote who can and is interested in doing so, but we also want elections to be secure," he said. "I don't think that eliminating drop boxes or requiring people to return a ballot is a real hurdle for anybody. It's really simple to drop a ballot in a mailbox or return it in person."
Since the federal court's decision, the Wisconsin Elections Commission this month issued new guidance to the state's 1,850 municipal clerks saying that any voter who requires assistance with delivering a ballot because of a disability must be permitted that assistance, unless the aid is offered by an employer or officer or agent of the voter's union. Wisconsinites must only self-identify as having a disability to be allowed assistance.
The federal ruling, however, did not satisfy Berg's concerns about what he called the integrity of the election process. The state legislature, he said, should enact a signed certification process for the person assisting the disabled voter, asserting they were given permission to turn in the ballot.
Barbara Beckert, director of the Milwaukee office of Disability Rights Wisconsin, an advocacy and education nonprofit, remains cautious ahead of the midterms. Since the ruling happened so close to the election, she said many clerks have not been able to reprint absentee ballot instructions that may have old ballot return rules.
"I hope that everything will go smoothly, and people will understand their rights and be able to assert them," she said, "but I'm somewhat wary to think how it will move forward based on past experiences."
Preparing for November
In Texas, a federal judge in June struck down parts of the state's wide-reaching 2021 law that restricted several aspects of the mail-in voting process. The judge specifically reversed provisions that limited the types of assistance that voters with disabilities and those with limited English proficiency can receive from others, as well as other limitations on how people can help voters cast their ballot. State officials did not appeal the ruling.
The ruling gave disability rights advocates time to educate voters and poll workers to stave off confusion ahead of the November election, said Molly Broadway, training and technical support specialist at Disability Rights Texas. Broadway has crisscrossed the state to alleviate anxieties brought on by the 2021 law.
"I think it's going to really help people who need the types of assistance that was previously outlawed and hopefully it might ease voters' approach," she said. "But there is still some anxiety."
There are still more challenges for voters with disabilities ahead of November's midterm elections, said the Ford Foundation's Cokley. But to help surmount those barriers, she said, voters with disabilities should not only be prepared with voter protection hotline telephone numbers when they go to the polls, but also to participate as poll workers.
"I don't know of a single disabled voter who goes to the polls and expects not to run into any problems," she said. "But because of that, we're extremely well aware of our right to vote, what can or cannot be asked of us and how to best accommodate our access to the polls."
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