Blueprint for ActionBlueprint for ActionRecommendations of the Voting SymposiumRecommendations of the Voting Symposium

Charlie SabatinoCharlie Sabatino

ABA Commission on Law and AgingABA Commission on Law and Aging

October 10, 2008October 10, 2008

Dual concernsDual concerns

• Where and how to draw the line Where and how to draw the line between enabling voting by those between enabling voting by those who can and preventing voting for who can and preventing voting for those who should notthose who should not– Creatively facilitating voting, especially Creatively facilitating voting, especially

in residential facilities, by those who in residential facilities, by those who cancan

– Protecting election integrity by Protecting election integrity by preventing fraudpreventing fraud

Search for AnswersSearch for Answers• Pacific McGeorge Law School Symposium Pacific McGeorge Law School Symposium

– – March 2007March 2007

– Invited multidisciplinary expertsInvited multidisciplinary experts– Commissioned 6 papers [published at Commissioned 6 papers [published at

38 McGeorge L. Rev. Issue 4 (38 McGeorge L. Rev. Issue 4 (2007)]2007)]

– Facilitated discussionFacilitated discussion– Recommendations of the SymposiumRecommendations of the Symposium

• ABA action – August 2007ABA action – August 2007• See See www.abanet.org/aging/voting/www.abanet.org/aging/voting/

Symposium OrganizationSymposium Organization

Five Working GroupsFive Working Groups1.1. The “Big Picture”: How Aging and The “Big Picture”: How Aging and

Cognitive Impairment Fits into the Cognitive Impairment Fits into the Broader Issues of Access to Voting Broader Issues of Access to Voting

2.2. Defining and Assessing Capacity to Defining and Assessing Capacity to Vote Vote

3.3. Absentee Balloting Absentee Balloting

4.4. Long-Term Care Long-Term Care

5.5. Technology Technology

Major IssuesMajor Issues

• In what ways, if at all, should persons with In what ways, if at all, should persons with impairment be treated differently?impairment be treated differently?

• Who should determine intent, or capacity, to Who should determine intent, or capacity, to vote? How to define?vote? How to define?

• How large is the risk of fraud to the harm of How large is the risk of fraud to the harm of exclusion?exclusion?

• Is absentee balloting the best Is absentee balloting the best accommodation?accommodation?

• What are the barriers, risks, and What are the barriers, risks, and opportunities in long-term care facilities?opportunities in long-term care facilities?

• What opportunities or dangers does What opportunities or dangers does technology offer?technology offer?

Recommendations AddressedRecommendations Addressed

Changes in statute or Changes in statute or regulationregulation

Changes in practiceChanges in practice EducationEducation Further studyFurther study

I. Big Picture PrinciplesI. Big Picture Principles• Society facilitate access while preserving integrity.Society facilitate access while preserving integrity.• PwD should not be held to a different or higher PwD should not be held to a different or higher

standard.standard.• Public & private entities must provide reasonable Public & private entities must provide reasonable

accommodations to ensure access to voting.accommodations to ensure access to voting.

• Goal 1:Goal 1: Prevent unfair &/or unlawful exclusion. Prevent unfair &/or unlawful exclusion.• Goal 2:Goal 2: Maximize access by adequate & Maximize access by adequate &

appropriate assistance. appropriate assistance. • Goal 3.Goal 3. Improve administration to facilitate voting Improve administration to facilitate voting

by all individuals, particularly people with cog. Imp. by all individuals, particularly people with cog. Imp. • Goal 4:Goal 4: Ensure individuals with cog. Imp. have the Ensure individuals with cog. Imp. have the

opportunity to register to vote. opportunity to register to vote.

II. Major Resolutions – CapacityII. Major Resolutions – Capacity

• Persons with cog. imp. should be treated no Persons with cog. imp. should be treated no differently than others (Principle)differently than others (Principle)

• No disqualification on the basis of medical No disqualification on the basis of medical diagnosis, disability status, or residence diagnosis, disability status, or residence

• Presumption of capacity to votePresumption of capacity to vote• If state law permits exclusion based on If state law permits exclusion based on

incapacity, removal only by specific incapacity, removal only by specific determination established by C&C evidence in a determination established by C&C evidence in a full judicial proceedingfull judicial proceeding

• Incapacity standard: only if cannot Incapacity standard: only if cannot communicate, w/ or w/o accommodations, a communicate, w/ or w/o accommodations, a specific desire to participate in the voting specific desire to participate in the voting process process

III. Major Resolutions –III. Major Resolutions –Absentee BallotingAbsentee Balloting

• All jurisdictions should permit voters the All jurisdictions should permit voters the open-ended choice to “vote at home”open-ended choice to “vote at home”

• Default presumption: vote where reside, with Default presumption: vote where reside, with choice by LTC residentschoice by LTC residents

• Signature verification accommodation neededSignature verification accommodation needed• More information – simple and accurate – for More information – simple and accurate – for

voters and those who assist re how to vote at voters and those who assist re how to vote at home and how to assisthome and how to assist

IV. Major Resolutions –IV. Major Resolutions –LTC FacilitiesLTC Facilities

• Long range: Mobile PollingLong range: Mobile Polling• Require election officials, not facility staff, to Require election officials, not facility staff, to

oversee votingoversee voting• Require Facilities to inform/assist residents with Require Facilities to inform/assist residents with

registration, and in absence of mobile polling, to registration, and in absence of mobile polling, to offer assistance with absentee voting.offer assistance with absentee voting.

• Clarify responsibilities of anyone who assists: Clarify responsibilities of anyone who assists: – No authority to assess capacityNo authority to assess capacity– Assistance limited to assisting voter to express intentAssistance limited to assisting voter to express intent– If unable to determine voter’s intent, no voteIf unable to determine voter’s intent, no vote

• Accept facilities’ ID of residents as sufficient Accept facilities’ ID of residents as sufficient verificationverification

V. Major Resolutions –V. Major Resolutions –TechnologyTechnology

• Plain language/multiple formats election Plain language/multiple formats election materialsmaterials

• Assistive technology, universal accessibility & Assistive technology, universal accessibility & design of all polling places & voting machinesdesign of all polling places & voting machines

• Innovative opportunities to register (online)Innovative opportunities to register (online)• Quality development for usability/accessibility of Quality development for usability/accessibility of

technologytechnology• Aim: persons with any disability (physical, Aim: persons with any disability (physical,

sensory, cognitive, intellectual, or mental) can sensory, cognitive, intellectual, or mental) can vote privately and independently on any vote privately and independently on any machine.machine.

More Resolutions –More Resolutions –Research & EducationResearch & Education

• ResearchResearch– Ballot formats, effective communication, & Ballot formats, effective communication, &

technologiestechnologies– Impact of current law & practical barriersImpact of current law & practical barriers– Voting practices of disabled populationsVoting practices of disabled populations– Signature verification procedures & optionsSignature verification procedures & options

• Education of poll workers, judges, facility staff, Education of poll workers, judges, facility staff, family, guardians to address needs of voters family, guardians to address needs of voters with cognitive impairments & how to assistwith cognitive impairments & how to assist

Some Actions to ConsiderSome Actions to Consider• Guidelines for judges in assessing voting capacityGuidelines for judges in assessing voting capacity• Vote at home option (no-excuse/permanent)Vote at home option (no-excuse/permanent)• Review signature verification proceduresReview signature verification procedures• Mobile polling demonstrationMobile polling demonstration• More guidance in NH licensure re facilities More guidance in NH licensure re facilities

obligationsobligations• Educational materials for assisting voters with cog. Educational materials for assisting voters with cog.

Imp. And for voting in LTC facilities.Imp. And for voting in LTC facilities.• Poll worker training re disabilities including cog. imp.Poll worker training re disabilities including cog. imp.