People with disabilities gradually are gaining recognition for their political rights even though there are structural problems preventing disabled people from participating in the electoral process as a candidate.
The ADA, Title II, should have been the last word on disability access for voters and candidates with disabilities, with full access and support to enable participation on an equal footing with non-disabled voters and non-disabled candidates. However, the U.S. Department of Justice has watered down these rights using its technical assistance and regulatory powers.
The Department of Justice ADA Title II Technical Assistance Manual, Section II-3.3000, explicitly excludes help for disabled candidates in gathering signatures. See:
On the other hand, as long as persons with disabilities are afforded an equally effective opportunity to participate in or benefit from a public entity’s aids, benefits, and services, the ADA’s guarantee of equal opportunity is not violated.
A person who uses a wheelchair seeks to run for a State elective office. State law requires the candidate to collect petition signatures in order to qualify for placement on the primary election ballot. Going door-to-door to collect signatures is difficult or, in many cases, impossible for the candidate because of the general inaccessibility of private homes. The law, however, provides over five months to collect the signatures and allows them to be collected by persons other than the candidate both through the mail and at any site where registered voters congregate. With these features, the law affords an equally effective opportunity for the individual who uses a wheelchair to seek placement on the ballot and to participate in the primary election process.
This statement was likely written by someone who is not disabled in the way described. To say that other people can gather the signatures is like saying no handicap parking is required of businesses because disabled people can send their friends and family to shop for them. This type of statement is never even made in the context of handicap parking because it is obviously wrong and outrageous.
But for some reason, the U.S. Department of Justice is imposing an equally wrong and outrageous excuse for not providing ballot access accommodations that are inexpensive and reasonable.
The United Nations Convention on the Rights of Persons with Disabilities (not yet ratified by the United States) includes Article 29, Participation in Political and Public Life:
States Parties shall guarantee to persons with disabilities political rights and the opportunity to enjoy them on an equal basis with others, and shall undertake:
a) To ensure that persons with disabilities can effectively and fully participate in political and public life on an equal basis with others, directly or through freely chosen representatives, including the right and opportunity for persons with disabilities to vote and be elected, inter alia, by:
i. Ensuring that voting procedures, facilities and materials are appropriate, accessible and easy to understand and use;
ii. Protecting the right of persons with disabilities to vote by secret ballot in elections and public referendums without intimidation, and to stand for elections, to effectively hold office and perform all public functions at all levels of government, facilitating the use of assistive and new technologies where appropriate;
iii. Guaranteeing the free expression of the will of persons with disabilities as electors and to this end, where necessary, at their request, allowing assistance in voting by a person of their own choice;
b) To promote actively an environment in which persons with disabilities can effectively and fully participate in the conduct of public affairs, without discrimination and on an equal basis with others, and encourage their participation in public affairs, including:
i. Participation in non-governmental organizations and associations concerned with the public and political life of the country, and in the activities and administration of political parties;
ii. Forming and joining organizations of persons with disabilities to represent persons with disabilities at international, national, regional and local levels.
A state should be forced to allow gathering signatures on the Internet, especially when doing so increases the ability to check whether a petition signer is a registered voter. A state should be forced to allow disabled candidates and their supporters to call voters on the phone to get permission for the disabled candidate to sign for such voters. The phone numbers should be provided to the disabled candidates as an accommodation at no cost by the elections agency of the state. Similarly, getting permission to sign via email should be allowed, especially when contacting emails associated with voters in the official voter roll.
Many states like to compete for the most innovative approaches to these issues, and I have been advocating a technological solution for years. Every state that has a voter registration system online should have a webpage to allow voters to sign in using their voter information and digitally sign petitions for anyone the voter supports. These “signatures” are immediately verified and the candidates can check their level of support. The URL for this system can be used to contact voters via email or text or fax or any other means to encourage signatures.
Instead of making it as hard as possible and resisting request for accommodation, states have an opportunity to create a simple online signing system that uses the data in the voter roll to check each signature as soon as it is authorized by a voter.
Obviously, this makes signature-gathering very easy for anyone, not just disabled candidates. It reduces the possibility of fraud to near zero as well. I don’t know why no state has done this yet.
State laws are too many and too unreliable to address this issue for disabled candidates. The Illinois Human Rights Act obviously covers disabled candidates and the Illinois State Board of Elections, but when I tested this system to ask for accommodations in gathering signatures, I was rejected by the Illinois Human Rights Department and Commission, and the refusal to apply the Act to me as a disabled candidate was affirmed by the Illinois Court of Appeals in Chicago.
It was truly a sad day in Illinois when judges would exclude disability accommodations from the protection of the Illinois Human Rights Act and elections.
Congress has not dealt with this issue adequately either. When Congress attempts to do something, it focuses only on disabled voters and excludes disabled candidates. Every disabled person has an interest in whether disabled candidates can get accommodations, because this is a barrier non-disabled candidates do not face. Non-disabled candidates become non-disabled public servants and this is why legislatures remain resistant. This is why state and federal judges remain resistant and states ban disabled people from the practice of law, blocking the system for legal and judicial change. This is why all public officers and their regulations and practices remain resistant to disability access advances.
The same sorts of barriers once faced women and minorities and this is why we have strong civil rights protections for these groups today, but even these rights can be narrowly construed by a hostile judge. Even the U.S. Supreme Court decided in 1926 that there was no constitutional right to fair housing as a racial matter, even with multiple new constitutional amendments after the U.S. Civil War. This is why we needed the Fair Housing Act, which incidentally also includes disability.
Gathering signatures for ballot access petitions is a rite of passage for many candidates across the United States and there is a laziness and lack of concern for those who find the task easy compared to disabled candidates. Some states such as Tennessee and Hawaii only require a perfunctory number of signatures, only 25 for U.S. House in those states. That should be the national standard, but Congress needs to act first, as it has the power to do under Article I of the U.S. Constitution.
Other states such as Indiana can require a candidate with disabilities to gather nearly 4,000 signatures just to get on the ballot in one U.S. House district. Next door in Michigan, the Sixth Circuit U.S. Court of Appeals has struck down a statewide ballot signature requirement as excessive under the Constitution, making 5,000 signatures the maximum for a statewide race. Graveline v. Johnson.
Until every state reduces the load and makes it easier for disabled candidates, there will be discrimination in elections. Maybe not as much for voters, who continue to experience discrimination, but even voters are affected by the absence of disabled candidates, their policy choices limited by the discrimination of this signature and ballot access system.
The ABA has published about disabled voter discrimination in 2020 prior to the general election. My advocacy efforts at improving American political systems was part of the spotlight the American Bar Association provided for me in 2014.
It is inexpensive to provide most accommodations. It is far cheaper to allow online or phone signature permission gathering than it is to force every business in the USA to have handicap parking. It is cheaper and safer to create a voter registration webpage adjunct URL that allows all registered voters to sign candidate petitions online. The candidates should find it very easy to establish such a petition on that webpage.
If a state wishes to be equal in every way, it could send a universal ballot petition postcard that includes the URL to the online petition, so every voter can participate regardless of disability and be aware of the service. This is no more expensive than sending a ballot to every voter by mail, as some states do, but a postcard for this purpose would be cheaper than a ballot. Congress could help by making postage free for this purpose.
If Americans want to lead the world in disabled candidates and elected public servants, ballot access, and real choices for disabled voters, it needs to start tearing down the attitudes and procedures that serve as barriers. This includes barriers for voters with disabilities and the disabled candidates for whom they should have a choice to vote.
Some think it is enough to “care about disabilities” or have a disability platform, but the disability rights movement has said from the beginning, “nothing about us without us.” I agree with this. Women do not wait for men to speak for them. Blacks don’t wait for whites to decide their civil rights. This is standard fare for human rights work and why it is so wrong for the U.S. Department of Justice, states, and state and federal judges to say our non-disabled friends can effectively run for us. No way.
As a disabled lawyer and political advocate, I say any argument that can be made to expand access to disabled voters can also be made to expand access for disabled candidates. I have provided some inexpensive and innovative ideas for accomplishing this.
I focus on states and Title II of the ADA because in America, unlike other countries, states provide these voting and ballot access services and the ADA regulates those states on its own language, 42 U.S.C. § 12132; 28 C.F.R. § 35.130. When states retaliate, the ADA Title V should provide protection, 42 U.S.C. § 12203; 28 C.F.R. § 35.134. But these laws and regulations need federal judges to be ready and willing to do their part, as Congress did in passing this law. Some judges are hostile, and this is a separate problem that makes it harder to enforce the law and obtain its benefits for all of society. The U.S. Supreme Court has paved the way with several important decisions and it remains to be seen if these will be fully enforced of left to dry up to a state of desuetude. Tennessee v. Lane, 541 U.S. 509 (2004); Barnes v. Gorman, 536 U.S. 181 (2002).