Enfranchising Persons with Disabilities: Continuing Problems, an Old Statute, and a New Litigation Strategy

Despite modern improvements, voting continues to present barriers for persons with disabilities. A 2012 study estimates that voter turnout for persons with disabilities is eleven percent lower than non-disabled voters. Many voting locations are not accessible, deterring voters from the polls. Voting machines are often outdated and present unique difficulties to persons with disabilities. Even if they are able to get to a voting location and inside a voting booth, voters are often forced to rely on the assistance of poll workers or friends to cast a ballot. Although modern voting technology would allow these voters to cast a ballot independently, it is underutilized and not installed at many voting locations.

Many in the disability rights community saw promise on the horizon with the passage of The Help America Vote Act of 2002 (HAVA). HAVA was enacted in response to the election debacle of 2000—where outdated voting machines and procedures caused a national controversy over which Presidential candidate won Florida’s electoral votes. HAVA focused on updating voting machines across the country, and additionally enacted standards for disability access to voting locations. However, HAVA failed to contain a private right of action to remedy violations. As many commentators have discussed, this failure to permit persons aggrieved by violations of HAVA to sue for those violations has left many of HAVA’s promises unfulfilled.

Under-analyzed is the potential for section 504 of the Rehabilitation Act (RA) to enforce voting rights for persons with disabilities post-HAVA. The RA, enacted in 1973, was the first piece of federal legislation aimed specifically at remedying the status of persons with disabilities. The RA’s section 504 prohibits any “otherwise qualified individual with a disability . . . [from] be[ing] excluded from the participation in, be[ing] denied the benefits of, or be[ing] subjected to discrimination under any program or activity receiving Federal financial assistance . . . .” Section 504 is broad in its scope. It is written in general language, and thus can be applied to a variety of different circumstances. Moreover, the RA provides a private right of action, for damages, for parties aggrieved under section 504—an advantage over other applicable federal statutes, namely the Americans with Disabilities Act. This includes suits against state agencies and governments, as section 504 contains a valid exception to the doctrine of sovereign immunity.

Prior to HAVA, section 504 litigants faced difficulty in enforcing voter access through suits against state officials. As a threshold matter, a section 504 litigant must prove that the state agency sued is the recipient of federal funds. It is not enough that the state as a whole has taken federal assistance, rather section 504 will only apply against the particular agency given federal funds.18 This was often difficult to prove since, prior to HAVA, little—if any—federal funding of elections was available to state agencies. Therefore, agencies at the state level responsible for running elections were not often subject to suit under section 504. HAVA remedies this difficulty by creating a wealth of new bodies receiving federal funds. In doing so, it opens a number of state agencies to suit under section 504.21

This Article suggests that section 504 may provide a de-facto private right of action for enforcing the promises of HAVA. Part I reviews Congressional attempts, historically, to remedy the status of persons with disabilities in voting. Part II summarizes modern challenges that confront voters with disabilities. Part III examines the RA, including its history and modern treatment. It additionally compares the RA with the Americans with Disabilities Act (ADA), with special reference to how the two acts deal with sovereign immunity issues. Part IV evaluates HAVA by discussing its standards, and critically assesses its overall effectiveness to date. Part V discusses the potential use of section 504 in enforcing HAVA’s goal to remedy the status of voters with disabilities. This Article concludes that section 504 suits against state agencies can be a viable tool in remedying discrimination against voters with disabilities, and is likely a superior method of enforcement compared to reliance on government enforcement or suits under the ADA.