opportunities and challenges in - U.S. Senate Special Committee on ...

S. HRG. 110-483
OLDER VOTERS: OPPORTUNITIES AND
CHALLENGES IN THE 2008 ELECTIONS
HEARING
BEFORE THE
SPECIAL COMMITTEE ON AGING
UNITED STATES SENATE
ONE HUNDRED. TENTH CONGRESS
SECOND SESSION
WASHINGTON, DC
January 31, 2008
Serial No. 110-20
Pr<strong>in</strong>ted for the use of the <strong>Special</strong> <strong>Committee</strong> on Ag<strong>in</strong>g
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RON WYDEN, Oregon
BLANCHE L. LINCOLN, Arkansas
EVAN BAYH, Indiana
THOMAS R. CARPER, Delaware
BILL NELSON, Florida
HILLARY RODHAM CLINTON, New York
KEN SALAZAR, Colorado
ROBERT P. CASEY, Jr., Pennsylvania
CLAIRE McCASKILL, Missouri
SHELDON WHITEHOUSE, Rhode Isl<strong>and</strong>
SPECIAL COMMITTEE ON AGING
HERB KOHL, Wiscons<strong>in</strong>, Chairman
GORDON H. SMITH, Oregon
RICHARD SHELBY, Alabama
SUSAN COLLINS, Ma<strong>in</strong>e
MEL MARTINEZ, Florida
LARRY E. CRAIG, Idaho
ELIZABETH DOLE, North Carol<strong>in</strong>a
NORM COLEMAN, M<strong>in</strong>nesota
DAVID VITTER, Louisiana
BOB CORKER, Tennessee
ARLEN SPECTER, Pennsylvania
DEBRA WHIrMAN, Majority Staff Director
CATHERINE FINLEY, Rank<strong>in</strong>g Member Staff Director
(II)

CONTENTS
Page
Open<strong>in</strong>g Statement of Senator Herb Kohl ............................................................. 1
Open<strong>in</strong>g Statement of Senator Gordon Smith ....................................................... 2
Open<strong>in</strong>g Statement of Senator Ken Salazar ......................................................... 71
Open<strong>in</strong>g Statement of Senator Claire McCaskill .................................................. 72
Open<strong>in</strong>g Statement of Senator Ron Wyden ........................................................... 73
PANEL OF WITNESSES
Barbara Bovbjerg, director, Education, Workforce <strong>and</strong> Income Security Issues,
U.S. Government Accountability Office, Wash<strong>in</strong>gton, DC I605 .......................
Accompanied by: William Jenk<strong>in</strong>s, director, Homel<strong>and</strong> Security <strong>and</strong> Justice,
U.S. Government Accountability Office, Wash<strong>in</strong>gton, DC
Deborah Markowitz, Vermont secretary of state, Montpelier, VT ......... ............. 35
Michael Waterstone, associate professor of Law, Loyola Law School, Los Angeles,
CA ............................................................. 41
Jason Karlawish, M.D., associate professor of Medic<strong>in</strong>e <strong>and</strong> Medical Ethics,.
University of Pennsylvania, Philadelphia, PA ................................................... 51
Wendy R. Weiser, deputy director, Democracy Program, Brennan Center for
Justice at NYU School of Law, New York, NY ................................... 58
APPENDIX.
Additional testimony submitted by Wendy Weiser, Brennan Center for Justice
at NYU School of Law .............. ............................................... 87
Testimony submitted by the American Bar Association ................ ...................... 218
(III)

OLDER VOTERS: OPPORTUNITIES AND.
CHALLENGES IN THE 2008 ELECTIONS
THURSDAY, JANUARY 31, 2008
U.S. SENATE,
SPECIAL COMMITTEE ON AGING,
Wash<strong>in</strong>gton, DC.
The <strong>Committee</strong> met, pursuant to notice, at 10:50 a.m., <strong>in</strong> room
SH-216, Hart <strong>Senate</strong> Office Build<strong>in</strong>g, Hon. Herb Kohl (chairman
of the committee) presid<strong>in</strong>g.
Present: Senators Kohl, Smith, Salazar, McCaskill, <strong>and</strong> Wyden..
OPENING STATEMENT OF SENATOR HERB KOHL, CHAIRMAN
The CHAIRMAN. Good morn<strong>in</strong>g to one <strong>and</strong> all. We would like to
welcome all of you to our hear<strong>in</strong>g. Today this <strong>Committee</strong> will focus
on older workers <strong>and</strong> the various barriers they face <strong>in</strong> exercis<strong>in</strong>g
their right to vote.
What sets this topic apart from others on the Ag<strong>in</strong>g <strong>Committee</strong>
is that vot<strong>in</strong>g is not a benefit of our great society, but it is a right.
Th<strong>in</strong>gs like lower drug prices <strong>and</strong> consumer protection are th<strong>in</strong>gs
we would like to afford older Americans, <strong>and</strong> that we certa<strong>in</strong>ly
th<strong>in</strong>k that they deserve. But the right to vote is fundamental <strong>and</strong>
undeniable, <strong>and</strong> it-does not expire with age.
Twenty-four States will hold primary elections on Super Tuesday,
just 5 days from now. Eight of. these States facilitate vot<strong>in</strong>g
<strong>in</strong> long-term care sett<strong>in</strong>gs, either by sett<strong>in</strong>g up public poll<strong>in</strong>g locations
on the premises, send<strong>in</strong>g election officials <strong>in</strong>to the facility to
assist seniors, or help<strong>in</strong>g nurs<strong>in</strong>g home adm<strong>in</strong>istrators obta<strong>in</strong> absentee
ballots <strong>in</strong> advance:
But the other 16 States currently make no accommodations for
voters liv<strong>in</strong>g <strong>in</strong> long-term care sett<strong>in</strong>gs, <strong>and</strong> long-term care adm<strong>in</strong>istrators
are offered no direction from election officials as to how
they should assist their residents with their vot<strong>in</strong>g.
Today I am send<strong>in</strong>g a letter, along with Rules <strong>Committee</strong> Chairman
Dianne Fe<strong>in</strong>ste<strong>in</strong>, to request that the Election Assistance
Commission conduct research on vot<strong>in</strong>g with<strong>in</strong> long-term care sett<strong>in</strong>gs,
<strong>and</strong> develop voluntary guidel<strong>in</strong>es to help States facilitate
such vot<strong>in</strong>g. We hope this will help address barriers to vot<strong>in</strong>g with<strong>in</strong>
these sett<strong>in</strong>gs.
There is also the matter of disabled older voters outside of the
long-term care sett<strong>in</strong>g. Many States, like my own State of Wiscons<strong>in</strong>,
do have laws on the books requir<strong>in</strong>g that all poll<strong>in</strong>g sites
are accessible to disabled <strong>in</strong>dividuals.
Unfortunately, such laws do not always dictate reality <strong>and</strong> vot<strong>in</strong>g
sites are often found to be not <strong>in</strong> compliance. Dur<strong>in</strong>g the 2000 elec-
(1)

2
tions the GAO found that only 16 percent of poll<strong>in</strong>g sites surveyed
nationwide were fully accessible to people with disabilities.
This has a real impact on older voters because, <strong>in</strong> spite of their
tendency to be more engaged politically, older voters with a disability
are almost 50 percent less likely to vote than their peers
without a disability.
Several of my <strong>Senate</strong> colleagues <strong>and</strong> I will ask GAO to follow up
on their previous study <strong>and</strong> monitor the level of accessibility dur<strong>in</strong>g
the 2008 elections. There is no reason for States to fall down on
the job of voter accessibility. We know that <strong>in</strong>novative mechanisms
exist to allow older <strong>and</strong> disabled Americans to vote, regardless of
their physical disabilities.
Rank<strong>in</strong>g Member Gordon Smith, who is sitt<strong>in</strong>g beside me, hails
from Oregon, where all residents vote by mail. As I underst<strong>and</strong> it,
that State has seen an <strong>in</strong>crease <strong>in</strong> vot<strong>in</strong>g between 5 <strong>and</strong> 10 percent.
We will also hear about Vermont's vote-by-phone system
today.
F<strong>in</strong>ally, our hear<strong>in</strong>g today will also touch on the issue of voter
ID. Currently the Supreme Court is consider<strong>in</strong>g whether an Indiana
requirement designed to stem voter fraud will actually result
<strong>in</strong> discrim<strong>in</strong>at<strong>in</strong>g aga<strong>in</strong>st the elderly, m<strong>in</strong>ority, <strong>and</strong> low-<strong>in</strong>come
populations who are less likely to have proper identification. Studies
have found that seniors are more likely to lose their right to
vote when voter ID is implemented.
My State of Wiscons<strong>in</strong> has been battl<strong>in</strong>g over its own voter ID
proposals. A 2005 study by the University of Wiscons<strong>in</strong> found that
23 percent of people age 65 <strong>and</strong> older <strong>in</strong> Wiscons<strong>in</strong> do not have a
driver's license or other photo ID. A Supreme Court rul<strong>in</strong>g on the
Indiana law is expected by late June <strong>and</strong> is sure to have national
implications for current <strong>and</strong> future voter ID laws.
As you listen to our witnesses this morn<strong>in</strong>g, <strong>and</strong> when you leave
this room <strong>and</strong> return to the barrage of nonstop election coverage,
please keep <strong>in</strong> m<strong>in</strong>d the message of today's hear<strong>in</strong>g. If we do not
remove the barriers that prevent elderly <strong>and</strong> disabled citizens from
exercis<strong>in</strong>g their right to vote, then we are for all <strong>in</strong>tents <strong>and</strong> purposes
disenfranchis<strong>in</strong>g them.
So we thank our witnesses who are here today with us.
We now turn to our dist<strong>in</strong>guished Rank<strong>in</strong>g Member, Gordon
Smith, for his open<strong>in</strong>g comments.
OPENING STATEMENT OF SENATOR GORDON SMITH,
RANKING MEMBER
Senator SMITH. Thank you, Mr. Chairman.
To all our witnesses, we welcome you. We thank you for your
time <strong>and</strong> the attention you are giv<strong>in</strong>g to this vital question of how
we make sure that our senior citizens cont<strong>in</strong>ue to enjoy the right
of the franchise <strong>in</strong> an unfettered way.
Mr. Chairman, with your permission, I will put my open<strong>in</strong>g
statement <strong>in</strong> the record. It largely reflects your own. But I would
just make these comments.
Oregon has one way of do<strong>in</strong>g it. It is vote-by-mail. It has been
a success. It is a better success every election because it has gotten
better every election <strong>in</strong> terms of the <strong>in</strong>tegrity of the ballot, <strong>and</strong>

3
shor<strong>in</strong>g up loopholes that somehow add to or dilute the <strong>in</strong>tegrity
of the result.
So, I congratulate both our people for vot<strong>in</strong>g for this, <strong>and</strong> also the
way our State officials have worked hard to implement it. It does
make it easier for the elderly <strong>and</strong> the disabled to vote.
However States choose to devise it, as is their constitutional
right, I would simply say make it as easy as possible but emphasize
the <strong>in</strong>tegrity of it. I feel like the Carter-Baker commission report
as to real ID actually makes a lot of sense because of what
I hear from seniors <strong>in</strong> Oregon.
I know there are different op<strong>in</strong>ions on this, but if you go with me
to a nurs<strong>in</strong>g home <strong>in</strong> Oregon <strong>and</strong> you talk about vot<strong>in</strong>g, one of the
concerns that is often expressed to me by seniors is that somehow
their vote is added to, or taken away from, by those not constitutionally
eligible to vote.
I th<strong>in</strong>k they express that with such vigor because it was their
generation that died <strong>in</strong> the hundreds of thous<strong>and</strong>s defend<strong>in</strong>g the
right to vote, the franchise. They don't want to see it trampled
upon by those who are not constitutionally eligible.
So I feel very strongly about that. I th<strong>in</strong>k Oregon has got it right
<strong>and</strong> I th<strong>in</strong>k we are gett<strong>in</strong>g it better all the time.
But I do th<strong>in</strong>k-you know, obviously as you note, Mr. Chairman,
the Supreme Court will take up this issue. After some of the
memories we have had <strong>in</strong> recent elections with charges <strong>and</strong>
countercharges of fraud, I th<strong>in</strong>k. it is <strong>in</strong>cumbent upon public officials
to do everyth<strong>in</strong>g they can to make sure that votes are accessible,
but that they are lawful. We owe them both of those values
<strong>and</strong> that ought to be our focus.
Thank you.
PREPARED STATEMENT OF SENATOR GORDON H. SMITH
Mr. Chairman, thank you for hold<strong>in</strong>g today's hear<strong>in</strong>g on older voters.
From paper ballots <strong>and</strong> mechanical levers to vote-by-mail, as we do <strong>in</strong> my home
state of Oregon, our nation has experimented with different ways for Americans to
cast their votes. Although some of the mechanics of cast<strong>in</strong>g a ballot have changed
over our country's history, vot<strong>in</strong>g rema<strong>in</strong>s the ultimate demonstration of our democracy
at work. That is why voter access to the polls <strong>and</strong> the preservation of the <strong>in</strong>tegrity
of our vot<strong>in</strong>g system is imperative to ensure maximum voter participation <strong>and</strong>
confidence <strong>in</strong> the system.
America's elderly encounter particular <strong>challenges</strong> when vot<strong>in</strong>g. Many <strong>in</strong>dividuals
lack access to transportation to <strong>and</strong> from poll<strong>in</strong>g locations, while others have physical
impairments that present <strong>challenges</strong> to cast a ballot. Furthermore, alternative
forms of vot<strong>in</strong>g, such as absentee ballot<strong>in</strong>g, often can be complicated <strong>and</strong> confus<strong>in</strong>g
for seniors. I look forward to hear<strong>in</strong>g from our witnesses about how we can properly
address these <strong>challenges</strong> <strong>and</strong> identify <strong>opportunities</strong> for older voters to cast their
votes with ease <strong>and</strong> confidence to ensure they rema<strong>in</strong> engaged <strong>in</strong> elections.
In addition to enhanc<strong>in</strong>g the accessibility of vot<strong>in</strong>g, we also must take measures
to deter <strong>and</strong> detect fraud <strong>in</strong> our vot<strong>in</strong>g system. Several .states have adopted Voter
ID laws that require voters to present identification at the polls. And <strong>in</strong> 2005, the
Carter-Baker Commission recommended states use "REAL ID" compla<strong>in</strong>t cards for
vot<strong>in</strong>g purposes. In large part, I support the recommendations of the bipartisan
Commission to enhance the <strong>in</strong>tegrity of our vot<strong>in</strong>g system. However, we must look
for ways that m<strong>in</strong>imize the impact on seniors <strong>and</strong> persons with disabilities to encourage
their participation <strong>in</strong> our democratic process.
Mr. Chairman, I like you, want to ensure that seniors do not experience barriers
to the vot<strong>in</strong>g booth when Election Day arrives. I look forward to hear<strong>in</strong>g from our
witnesses about <strong>in</strong>novative approaches to ensure elderly voters have appropriate access
to cast a ballot <strong>in</strong> a simple <strong>and</strong> secure manner.
Thank you Mr. Chairman.

4
The CHAIRMAN. Thank you, Senator Smith, for your very outst<strong>and</strong><strong>in</strong>g
comments.
On the witness panel, our first witness today will be Barbara
Bovbjerg. Ms. Bovbjerg is director of education, workforce <strong>and</strong> <strong>in</strong>come
security issues at the U.S. Government Accountability Office.
There, she oversees evaluative studies on ag<strong>in</strong>g <strong>and</strong> retirement <strong>in</strong>come
policy issues. Previously, Ms. Bovbjerg was assistant director
for budget issues at the GAO.
She is accompanied here today by her colleague, William Jenk<strong>in</strong>s,
Jr., who serves as director for Homel<strong>and</strong> Security <strong>and</strong> Justice
at GAO, where he leads GAO's work on emergency preparedness
<strong>and</strong> response, the Federal judiciary <strong>and</strong> elections. I am also pleased
to note that he received his Ph.D. <strong>in</strong> public law from the University
of Wiscons<strong>in</strong>.
Our second witness will be Vermont's Secretary of State Deborah
Markowitz. She is the first woman to be elected secretary of state
<strong>in</strong> Vermont <strong>and</strong> is currently serv<strong>in</strong>g her fifth term <strong>in</strong> office.
As secretary of state, Ms. Markowitz is the constitutional officer
chiefly responsible for Vermont's election <strong>and</strong> for provid<strong>in</strong>g education
assistance to the State's local officials. Dur<strong>in</strong>g her term she
has implemented an ambitious election reform agenda <strong>in</strong>clud<strong>in</strong>g
widespread voter education <strong>and</strong> outreach programs, some of which
we hope to hear about today.
Our third witness will be Michael Waterstone, who is an associate
professor of law at the Loyola Law School <strong>in</strong> Los Angeles. Mr.
Waterstone is a nationally recognized expert <strong>in</strong> disability <strong>and</strong> civil
rights law. He is also a commissioner on the American Bar Association's
Commission on Physical <strong>and</strong> Mental Disability, as well as a
board member of the Disability Rights Legal Center.
Next we will hear from Dr. Jason Karlawish who is an assistant
professor of medic<strong>in</strong>e with<strong>in</strong> the geriatric division at the University
of Pennsylvania. He is also a fellow of the University Center for
Bioethics, <strong>and</strong> the senior fellow on the Leonard Davis Institute of
Health Economics.
Dr. Karlawish's research has <strong>in</strong>cluded the ethical, legal, <strong>and</strong> social
issues raised by persons vot<strong>in</strong>g <strong>in</strong> long-term care sett<strong>in</strong>gs.
F<strong>in</strong>ally, we will hear from Wendy Weiser, deputy director of the
Democracy Program at the Brennan Center for Justice at NYU law
School of Law, where she directs the center's work on vot<strong>in</strong>g rights
<strong>and</strong> elections.
She has authored a number of reports <strong>and</strong> papers on election reform,
litigated ground-break<strong>in</strong>g vot<strong>in</strong>g rights lawsuits, <strong>and</strong> provided
policy <strong>and</strong> legislative draft<strong>in</strong>g assistance to Federal <strong>and</strong>
State legislators <strong>and</strong> adm<strong>in</strong>istrators all across our country.
So we thank you all for be<strong>in</strong>g here today.
We will start with you, Ms. Bovbjerg.

5
STATEMENT OF BARBARA BOVBJERG, DIRECTOR, EDU-
CATION, WORKFORCE AND INCOME SECURITY ISSUES, U.S.
GOVERNMENT ACCOUNTABILITY OFFICE, WASHINGTON, DC
Ms. BOVBJERG. Thank you, Mr. Chairman, Senator Smith.
I am pleased to be here today with my colleague to speak about
access to vot<strong>in</strong>g for older Americans. Vot<strong>in</strong>g is fundamental to our
democratic system, <strong>and</strong> Federal law has generally required poll<strong>in</strong>g
places to be accessible to the elderly <strong>and</strong> to people with disabilities.
Yet, assur<strong>in</strong>g access to the variety of poll<strong>in</strong>g places <strong>and</strong> vot<strong>in</strong>g
methods used can challenge State <strong>and</strong> local election officials. The
Help America Vote Act of 2002 has sought to improve this situation
by requir<strong>in</strong>g accessibility <strong>in</strong> vot<strong>in</strong>g systems <strong>and</strong> provid<strong>in</strong>g fund<strong>in</strong>g
to support it.
Our testimony today focuses on a number of factors that affect
older voters, <strong>in</strong>clud<strong>in</strong>g their ability to travel to poll<strong>in</strong>g places, their
ability to enter poll<strong>in</strong>g places once they get there, their ability to
cast their votes us<strong>in</strong>g available equipment <strong>and</strong> assistance, <strong>and</strong> the
ability to utilize alternative vot<strong>in</strong>g provisions, such as absentee or
early vot<strong>in</strong>g or mail vot<strong>in</strong>g.
Our statement is drawn from a broad range of GAO work, <strong>and</strong>
particularly our onsite observations on accessibility dur<strong>in</strong>g Election
Day 2000. But I will speak first about travel to the poll<strong>in</strong>g place.
Transportation <strong>challenges</strong> become more acute with age <strong>and</strong> can
limit seniors' ability to reach poll<strong>in</strong>g places. While most older
adults drive, their abilities can deteriorate. Each year, roughly
600,000 older people stop driv<strong>in</strong>g <strong>and</strong> become dependent on others
for transportation.
For those who do not or cannot drive, our previous work for this
<strong>Committee</strong> found transportation gaps only partly filled by partnerships
across governments <strong>and</strong> nonprofits. Thus, some older Americans
may not be able to jo<strong>in</strong> their neighbors at poll<strong>in</strong>g places on
election day.
As for those who are able to come to the polls, the immediate vic<strong>in</strong>ity
of the poll<strong>in</strong>g place may pose additional obstacles. In our
Election Day 2000 work we visited 496 poll<strong>in</strong>g sites <strong>in</strong> 100 counties
across the country <strong>and</strong> exam<strong>in</strong>ed each for features that could impede
access.
We looked at the park<strong>in</strong>g areas, the route from those areas to the
build<strong>in</strong>g entrance, the route from the entrance to the vot<strong>in</strong>g room
<strong>and</strong> various other aspects of vot<strong>in</strong>g. These onsite <strong>in</strong>spections revealed
that only about 16-percent of poll<strong>in</strong>g places nationwide were
free of impediments that could prevent elderly or disabled voters
from reach<strong>in</strong>g the vot<strong>in</strong>g room.
Of those sites with impediments, about two-thirds offered
curbside vot<strong>in</strong>g. However, advocates for disabled Americans note
that such measures still do not provide an opportunity to vote <strong>in</strong>
the same manner as the general public.
Our subsequent work on access suggests improvements s<strong>in</strong>ce the
2000 election. In our 2005 survey of all States <strong>and</strong> a sample of local
jurisdictions, State provisions for poll<strong>in</strong>g place access *have <strong>in</strong>creased,
<strong>and</strong> the fund<strong>in</strong>g provided through the new Federal election
law has had an impact. However, until vot<strong>in</strong>g sites are <strong>in</strong>spected
aga<strong>in</strong> we cannot know how much on-the-ground impact these provisions
have had.

6
With regard to vot<strong>in</strong>g itself, that is, the system <strong>in</strong> the vot<strong>in</strong>g
room that allows voters to cast their ballots, our f<strong>in</strong>d<strong>in</strong>gs were
similar. On Election Day 2000 we saw <strong>challenges</strong> posed by the vot<strong>in</strong>g
systems used <strong>and</strong> by the configuration of the vot<strong>in</strong>g booths, although
some form of assistance was usually available <strong>in</strong> the vot<strong>in</strong>g
room.
Forty-three percent of poll<strong>in</strong>g places used paper or scanable ballots,
which was challeng<strong>in</strong>g for voters with impaired dexterity. We
also found that many of the vot<strong>in</strong>g booths were not appropriately
configured for wheelchairs. But most offered assistance, <strong>and</strong> a
small majority provided written <strong>in</strong>structions or sample ballots <strong>in</strong>
very large type. None provided ballots or equipment for bl<strong>in</strong>d voters.
But the situation has improved. Our 2005.survey of State <strong>and</strong>
local jurisdictions reported an <strong>in</strong>crease <strong>in</strong> State provisions for accessible
vot<strong>in</strong>g equipment compared to our 2000 review, although
difficulties <strong>in</strong> assur<strong>in</strong>g reliability <strong>and</strong> security of new vot<strong>in</strong>g systems
is caus<strong>in</strong>g some States to ab<strong>and</strong>on new <strong>and</strong> potentially more
accessible technology.
F<strong>in</strong>ally, let me turn to alternative methods. Federal law has long
required that elderly or disabled voters assigned to an <strong>in</strong>accessible
poll<strong>in</strong>g place be provided with an alternative means for cast<strong>in</strong>g a
ballot. Alternative methods may <strong>in</strong>clude curbside vot<strong>in</strong>g, early vot<strong>in</strong>g,
or absentee vot<strong>in</strong>g, among other th<strong>in</strong>gs.
State provisions allow<strong>in</strong>g alternative methods have generally <strong>in</strong>creased
s<strong>in</strong>ce 2000. For example, the number of States that will
carry ballots to a voter's residence has risen from 21 to 25. In addition,
21 States reported allow<strong>in</strong>g voters to vote absentee without
requir<strong>in</strong>g a reason or an excuse. That is three more than <strong>in</strong> 2000.
Although such accommodation may be more commonly offered
now, our experience <strong>in</strong> 2000 suggested there may be wide variation
<strong>in</strong> implementation.
In conclusion the <strong>in</strong>crease <strong>in</strong> State provisions <strong>and</strong> reports of
practices to improve accessibility is encourag<strong>in</strong>g. The complexity,
though, of the election system <strong>and</strong> the expense of chang<strong>in</strong>g it suggests
that not all such policies will be <strong>in</strong> evidence at poll<strong>in</strong>g places
on Election Day 2008.
Yet, the ag<strong>in</strong>g <strong>in</strong> the American population <strong>and</strong> the concomitant
growth <strong>in</strong> voters need<strong>in</strong>g accommodation will <strong>in</strong>crease the urgency
for policies of this nature to be implemented on the ground. Clearly,
improved access will require susta<strong>in</strong>ed attention from election
officials at all levels of government.
That concludes my statement. I await your questions.
[The prepared statement of Ms. Bovbjerg follows:]

GAO
For Release on Delivery
Eqpcted at 1030 EST
Thursday, January 31,2008
GAo0-442T
7
United States Government Aecountability OMee
Testimony
Before the <strong>Special</strong> <strong>Committee</strong> on Ag<strong>in</strong>g,
United States <strong>Senate</strong>
ELDERLY VOTERS
Some Improvements <strong>in</strong>
Vot<strong>in</strong>g Accessibility from
2000 to 2004 Elections, but
Gaps <strong>in</strong> Policy <strong>and</strong>
Implementation Rema<strong>in</strong>
Statement of Barbara D. Bovbjerg, Director, Education, -
Workforce, <strong>and</strong> Income Security, <strong>and</strong> William 0. Jenk<strong>in</strong>s,
Director, Homel<strong>and</strong> Security <strong>and</strong> Justice

i
8
ELDERLY VOTERS
Some Improvements <strong>in</strong> Vot<strong>in</strong>g Accessibility from
2000 to 2004 Elections, but Gaps <strong>in</strong> Policy <strong>and</strong>
implementation Rema<strong>in</strong>
What GAO Found
Ensur<strong>in</strong>g that older voters or other <strong>in</strong>dividuals with disabilities successfully
cast their votes <strong>in</strong> an election requires that policymakers th<strong>in</strong>k broadly about
access. This <strong>in</strong>cludes access with respect to transportation, poll<strong>in</strong>g places,
vot<strong>in</strong>g equipment, <strong>and</strong> alternative vot<strong>in</strong>g methods. Dur<strong>in</strong>g the 2000 election,
most poll<strong>in</strong>g places we <strong>in</strong>spected had one or more potential imped<strong>in</strong>ents that
might prevent older voters <strong>and</strong> voters with disabilities from reach<strong>in</strong>g vot<strong>in</strong>g
rooms, although curbside vot<strong>in</strong>g accommodations were often made available.
Additionally, our 2000 review of state provisions <strong>and</strong> practices related to
accessible vot<strong>in</strong>g systems <strong>and</strong> accommodations <strong>in</strong> the vot<strong>in</strong>g room revealed
that provisions to accommodate <strong>in</strong>dividuals with disabilities varied from state
to state <strong>and</strong> may vary widely <strong>in</strong> their Implementation. A 2004 GAO report also
found transportation gaps <strong>in</strong> meet<strong>in</strong>g the needs of seniors, which may create a
barrier to vot<strong>in</strong>g for many elderly voters, <strong>and</strong> a lack of data on the extent of
unmet needs.
S<strong>in</strong>ce the passage of HAVA <strong>and</strong> the subsequent 2004 election, we have
identified a number of reported efforts taken to improve vot<strong>in</strong>g access for
people with disabilities. In particular, our 2006 report on election systems
shows a marked <strong>in</strong>crease <strong>in</strong> state provisions address<strong>in</strong>g the accessibility of
poll<strong>in</strong>g places, vot<strong>in</strong>g systems, <strong>and</strong> alternative vot<strong>in</strong>g methods. However, the
degree of change <strong>in</strong> accessibility is difficult to determ<strong>in</strong>e, <strong>in</strong> part because
thous<strong>and</strong>s of jurisdictions have primary responsibility for manag<strong>in</strong>g elections
<strong>and</strong> ensur<strong>in</strong>g an accurate vote count, <strong>and</strong> the complexity of the election
system does not ensure that these provisions <strong>and</strong> reported practices are
reflective of what occurs at poll<strong>in</strong>g places on election day.
Underst<strong>and</strong><strong>in</strong>g <strong>and</strong> address<strong>in</strong>g accessibility gaps represent enormous tasks for
state <strong>and</strong> local election officials who are challenged by the multiplicity of
responsibilities <strong>and</strong> requirements they must attend to with<strong>in</strong> resource
constra<strong>in</strong>ts. At the same time, as the population ages <strong>and</strong> the percentage of
voters with disabilities exp<strong>and</strong>s, the expectation of accommodation <strong>and</strong>
assistance to participate <strong>in</strong> this basic civic exercise will grow, mak<strong>in</strong>g
accessibility a key performance goal for our election community.
Unhfd States GO mmamtt Aeaablflty o0wn
1101111111

A Q A
S GAO
United States Government AceountaHlity Otnce
Wash<strong>in</strong>gton, DO 20548
January 31,2008
9
Mr. Chairman <strong>and</strong> Mernbers of the <strong>Committee</strong>:
We appreciate the opportunity to participate <strong>in</strong> today s hear<strong>in</strong>g on older
Americans access to vot<strong>in</strong>g Vot<strong>in</strong>g is fundamental to our democratic
system, <strong>and</strong> federal law generally requdres poll<strong>in</strong>g places for federal
elections to be accessible to all eligible voters, <strong>in</strong>clud<strong>in</strong>g older voters <strong>and</strong>
voters with physical disabilities. In particular, the Vot<strong>in</strong>g Accessibility for
the Elderly <strong>and</strong> H<strong>and</strong>icapped Act requires that, with a few exceptions,
local election jurisdictions assure that poll<strong>in</strong>g places used <strong>in</strong> federal
elections are accessible, <strong>in</strong> a manner as determ<strong>in</strong>ed by the state, to the.
elderly <strong>and</strong> voters with disabilities These requirements can present a
challenge to state <strong>and</strong> local election officials because achiev<strong>in</strong>g
accessibilty-vhich Is affected by the type of impairment <strong>and</strong> various
barriers posed by poll<strong>in</strong>g place facilities <strong>and</strong> vot<strong>in</strong>g methods-is part of a
larger set of <strong>challenges</strong> they face <strong>in</strong> adm<strong>in</strong>ister<strong>in</strong>g elections on a periodic
basis. Follow<strong>in</strong>g reports of problems encountered <strong>in</strong> the dose 2000
presidential election with respect to voter registration lists, absentee
ballots, ballot count<strong>in</strong>g, <strong>and</strong> antiquated vot<strong>in</strong>g systems, the Help America
Vote Act of 2002 (HAVA) was enacted. Among others, HAVA conta<strong>in</strong>s
provisions to help facilitate vot<strong>in</strong>g for <strong>in</strong>dividuals with disabilities,.many.of
whom are also elderly, <strong>in</strong>clud<strong>in</strong>g requirements for the accessibility of
vot<strong>in</strong>g systems used <strong>in</strong> elections for federal office, effective January 1,
2006, <strong>and</strong> authoriz<strong>in</strong>g the appropriation of fund<strong>in</strong>g for payments to states
to improve the accessibility of poll<strong>in</strong>g places.
Our testimony today will focus on a number of factors that affect the
ability of older voters to travel to poll<strong>in</strong>g places, enter poll<strong>in</strong>g places, <strong>and</strong>
cast their vote once they arrive <strong>in</strong> the vot<strong>in</strong>g room; or to avail themselves
of alternative vot<strong>in</strong>g provisions, <strong>in</strong>clud<strong>in</strong>g absentee <strong>and</strong> curbside vot<strong>in</strong>g, It
will also describe trends <strong>and</strong> changes regard<strong>in</strong>g accessibility of poll<strong>in</strong>g
places <strong>and</strong> alternative vot<strong>in</strong>g muethods-as manifested <strong>in</strong> state provisions
or reported <strong>in</strong> surveys <strong>and</strong> discovered dur<strong>in</strong>g site visits-s<strong>in</strong>ce the 2000
election. As agreed, our statement will draw from the broad array of prior
work that has a bear<strong>in</strong>g on vot<strong>in</strong>g access for older voters, <strong>in</strong>clud<strong>in</strong>g our
2001 report on accessibility of poll<strong>in</strong>g places for election year 2000,' our
'GAO, Votes wir Drabse AOsC to Pol<strong>in</strong> PE.a <strong>and</strong> Aleu.sat Vetfg Method9,
GAO-02-107 (Wash<strong>in</strong>gton, D.C.: Oct. 15, 2001)
0A04644T Md. Vten

10
2004 report on transportation-disadvantaged seniors,' our 2006 report
cover<strong>in</strong>g a range of election issues as of election year 2004,' our 2007
testimony on electronic vot<strong>in</strong>g system <strong>challenges</strong>,' <strong>and</strong> our 2008 report on
bil<strong>in</strong>gual vot<strong>in</strong>g assistance.' The GAO reports on which this testimony is
based were conducted <strong>in</strong> accordance with generally accepted government
audit<strong>in</strong>g st<strong>and</strong>ards. The scope of this testimony will not cover
accessibility for older voters with cognitive impa<strong>in</strong>nents, nor will it cover
registration <strong>challenges</strong> for older voters
Overall, our work prior to the 2004 general election-<strong>in</strong>clud<strong>in</strong>g on-site
Inspections of a national sample of poll<strong>in</strong>g places <strong>in</strong> election year 2000 <strong>and</strong>
a review of transportation issues fac<strong>in</strong>g seniors-has identified a number
of potential barriers to vot<strong>in</strong>g for older Americans. We found
transportation gaps <strong>in</strong> meet<strong>in</strong>g the needs of seniors <strong>and</strong> lack of data on the
extent of unmet needs. Significantly, we found that most poll<strong>in</strong>g places we
<strong>in</strong>spected had one or more potential impediments for people with mobility
impairments-only 16 percent had no impediments-although some
provided for curbside vot<strong>in</strong>g. S<strong>in</strong>ce the passage of HAVA, <strong>and</strong> after the
2004 election, we surveyed state <strong>and</strong> local election Jurisdictions <strong>and</strong>
identified a number of reported efforts taken to improve vot<strong>in</strong>g access for
people with disabilities.' In particular, we found a marked <strong>in</strong>crease <strong>in</strong>
state provisions address<strong>in</strong>g accessibility of poll<strong>in</strong>g places <strong>and</strong> vot<strong>in</strong>g
systems, <strong>and</strong> altemative vot<strong>in</strong>g methods, such as curbside <strong>and</strong> absentee
vot<strong>in</strong>g. However, achiev<strong>in</strong>g accessibility <strong>in</strong> the poll<strong>in</strong>g place <strong>and</strong> with
respect to vot<strong>in</strong>g systems is complicated by the fact that thous<strong>and</strong>s of
jurisdictions have primary responsibility for manag<strong>in</strong>g <strong>and</strong> conduct<strong>in</strong>g
elections <strong>and</strong> ensur<strong>in</strong>g an accurate vote count. We have not exam<strong>in</strong>ed the
extent to which the improvements reported by state <strong>and</strong> local election
Jurisdictions s<strong>in</strong>ce November 2000 have been implemented <strong>and</strong>, thus, do
'GAO, Th peotatso-Duadvantagid Seniors. £ffots to Seuhance SanOrMobiMliJ Could
Banositsam Additonol Guidance <strong>and</strong> hiiomttos, GAO04-9I (Wadwoon, D C Aug.
0, 2004).
' GAO, Electionsu The Nation's Evol<strong>in</strong>g Election Sjstiom as flected <strong>in</strong> Oea Nooenber
2004 Gqenceo Ertoan, GAO-o410 (Washhpno, D.C: u. ne 6, 20W
' GAO, Mecffons, A Lels rd qf GOTvnmet Ars Needed to Address OCOnic Vot<strong>in</strong>g
ftstem Qaoleages, GAO-07-741T (Wash<strong>in</strong>gton, D.C: Apr. 18 20M7r)
'GAO, Si<strong>in</strong>gut Vong Assamstar Selecto Jurisdictio-u'Strategi f-or Idenifyig
Neods ad Prov id<strong>in</strong>gAsistance, GA-08-182 (Washngto, D.C.: Jam 18, 2008).
' Oregon has, s<strong>in</strong>ce 1998, coaduced its elections alost exclasively by mall ballot; tus, It
has no poll<strong>in</strong>g places
BAurr442T EWebVtesa

Background
11
not know the extent to which they have yielded Improved accessibility of
poll<strong>in</strong>g places <strong>and</strong> vot<strong>in</strong>g systems.
The proportion of older people <strong>in</strong> the United States who may face
<strong>challenges</strong> exercis<strong>in</strong>g the right to vote is grow<strong>in</strong>g As of 2003, there were
almost 36 million <strong>in</strong>dividuals aged 65 or older (12 percent of the
population), <strong>and</strong> the majority have at least one chronic health condition.
By 2030, those aged 65 <strong>and</strong> over will grow to more than 20 percent of the
population. Disability <strong>in</strong>creases with age, <strong>and</strong> studies have shown that
with every 10 years after reach<strong>in</strong>g the age of 65, the risk of los<strong>in</strong>g mobility
doubles.' In many ways, lack of mobility <strong>and</strong> other types of impairments
can dim<strong>in</strong>ish seniors' ability to vote without some assistance or
accommodation. With <strong>in</strong>creased age, seniors will become more limited <strong>in</strong>
their ability to get to poll<strong>in</strong>g places by driv<strong>in</strong>g, walk<strong>in</strong>g, or us<strong>in</strong>g public
transportation. Once seniors arrive at the poll<strong>in</strong>g places, they may face
additional <strong>challenges</strong>, depend<strong>in</strong>g on the availability of accessible park<strong>in</strong>g
areas, accessibility of poll<strong>in</strong>g places, type <strong>and</strong> complexity of the vot<strong>in</strong>g
equipment, availability of alternative vot<strong>in</strong>g methods (such as absentee
vot<strong>in</strong>g), <strong>and</strong> the availabilityof vot<strong>in</strong>g assistance or aids.
Responsibility for hold<strong>in</strong>g elections <strong>and</strong> ensur<strong>in</strong>g voter access primarily
rests with state <strong>and</strong> local governments. Each state sets the requirements
for conduct<strong>in</strong>g local, state, <strong>and</strong> federal elections with<strong>in</strong> the state For
example, states regulate such aspects of elections as ballot access,
absentee vot<strong>in</strong>g requirements, establishment of vot<strong>in</strong>g places, provision of
election day workers, <strong>and</strong> count<strong>in</strong>g <strong>and</strong> certify<strong>in</strong>g the vote. The states, <strong>in</strong> -
turn have typically delegated responsibility for adm<strong>in</strong>ister<strong>in</strong>g <strong>and</strong> fund<strong>in</strong>g
state election systems to the thous<strong>and</strong>s of local electionjurisdictionsmore
than 10,000 nationwide-creat<strong>in</strong>g even more variability among our
nation's election systems.
Although state <strong>and</strong> local governments are responsible for runn<strong>in</strong>g
elections, Congress has authority to affect the adm<strong>in</strong>istration of elections.
Federal laws have been enacted <strong>in</strong> several major areas of the vot<strong>in</strong>g
process, <strong>in</strong>clud<strong>in</strong>g several that are designed to help ensure that vot<strong>in</strong>g is
accessible for the elderly <strong>and</strong> people with disabilities. Most importantly,
the Vot<strong>in</strong>g Accessibility for the Elderly <strong>and</strong> H<strong>and</strong>icapped Act (VAEHA),
'SeWa He, MnihagSee -guta, VtartaA. Ve&i, sad Klmbeii DeBanra, 65+ <strong>in</strong> Me
Mated &- 2M, C- Fo--onep--U fteiajSt.. pp 2 s2Wk IS
D.C.: Den B2t
GA0oe442T s.trbvhn

12
enacted In 1984, requires that political subdivisions responsible for
conduct<strong>in</strong>g elections assure that all poll<strong>in</strong>g places for federal elections are
accessible to elderly voters <strong>and</strong> voters with disabilities (with limited
exceptions). Any elderly voter or voter with a disability assigned to an
<strong>in</strong>accessible poll<strong>in</strong>g place, upon his or her advance request, must be
assigned to an accessible poll<strong>in</strong>g place or be provided with an alternative
means for cast<strong>in</strong>g a ballot on the day of the election. Under the VAEHA,
the def<strong>in</strong>ition of 'accessible' is determ<strong>in</strong>ed under guidel<strong>in</strong>es established
by each state's chief election officer, but the law does not specify what
those guidel<strong>in</strong>es shall conta<strong>in</strong> or the form those guidel<strong>in</strong>es should take.
Additionally, states are required to make available vot<strong>in</strong>g aids for elderly
<strong>and</strong> disabled voters, <strong>in</strong>clud<strong>in</strong>g <strong>in</strong>structions pr<strong>in</strong>ted <strong>in</strong> large type at each
poll<strong>in</strong>g place, <strong>and</strong> <strong>in</strong>formation by telecommunications devices for the deaf.
The VAEHA also conta<strong>in</strong>s a provision requir<strong>in</strong>g public notice, calculated to
reach elderly <strong>and</strong> disabled voters, of absentee vot<strong>in</strong>g procedures.
HAVA also conta<strong>in</strong>s a number of provisions designed to help <strong>in</strong>crease the
accessibility of vot<strong>in</strong>g for <strong>in</strong>dividuals with disabilities. For example, under
HAVA, vot<strong>in</strong>g systems for federal elections must be accessible for
<strong>in</strong>dividuals with disabilities <strong>in</strong> a manner that provides the same
opportunity for access <strong>and</strong> participation as for other voters. To satisfy this
requirement, each poll<strong>in</strong>g place must have at least one vot<strong>in</strong>g system
equipped for <strong>in</strong>dividuals with disabilities. In addition, the Secretary of
Health <strong>and</strong> Human Services is required to make yearly payments (<strong>in</strong> an
amount of the Secretary's choos<strong>in</strong>g) to each eligible state <strong>and</strong> unit of local
government, <strong>and</strong> such payments must be used for (1) mak<strong>in</strong>g poll<strong>in</strong>g
places (<strong>in</strong>clud<strong>in</strong>g path of travel, entrances, exits, <strong>and</strong> vot<strong>in</strong>g areas)
accessible to <strong>in</strong>dividuals with disabilities, <strong>and</strong> (2) provid<strong>in</strong>g <strong>in</strong>dividuals
with disabilities with <strong>in</strong>formation about the accessibility of poll<strong>in</strong>g places
The Act also created the US. Election Assistance Commission (EAC) to
serve, among other th<strong>in</strong>gs, as a clear<strong>in</strong>ghouse <strong>and</strong> <strong>in</strong>formation resource
for election officials with respect to the adm<strong>in</strong>istration of federal
elections. For example, the RAC is to periodically conduct <strong>and</strong> make
available to the public studies regard<strong>in</strong>g methods of ensur<strong>in</strong>g accessibility
of vot<strong>in</strong>g, poll<strong>in</strong>g places, <strong>and</strong> vot<strong>in</strong>g equipment to all voters, <strong>in</strong>clud<strong>in</strong>g
<strong>in</strong>dividuals with disabilities. Under HAVA, the EAC is also to make grants
for carry<strong>in</strong>g out both research <strong>and</strong> development to improve various
aspects of vot<strong>in</strong>g equipment <strong>and</strong> vot<strong>in</strong>g technology, <strong>and</strong> pilot programs to
test new technologies <strong>in</strong> vot<strong>in</strong>g systems. To be eligible for such grants, an
entity must certify that it will take <strong>in</strong>to account the need to make vot<strong>in</strong>g
equipment fully accessible for <strong>in</strong>dividuals with disabilities
GoA0o84Wr Mdeft vow

13
The Vot<strong>in</strong>g Rights Act of 1966 (VRA), as amended, provides for voter
assistance In the vot<strong>in</strong>g room. Specfically, the VRA, among other th<strong>in</strong>gs,
authorizes vot<strong>in</strong>g assistance for bl<strong>in</strong>d, disabled, or illiterate persons,
Voters who require assistance to vote by reason of bl<strong>in</strong>dness, disability, or
<strong>in</strong>ability to read or write may be given assistance by a person of the voter's
choice, other than the voter's employer or agent of that employer or
officer or agent of the voteres union.
Other laws also help to ensure vot<strong>in</strong>g access for the elderly <strong>and</strong> people
with disabilities-albeit <strong>in</strong>directly. For example, Thie U of the Americans
with Disabilities Act of 1990 (ADA) <strong>and</strong> its implement<strong>in</strong>g regulations
require that people with disabilities have access to basic public services,
<strong>in</strong>clud<strong>in</strong>g the right to vote. However, it does not strictly require that all
poll<strong>in</strong>g place sites he accessible. Under the ADA, public entities must
make reasonable modifications <strong>in</strong> policies, practices, or procedures to
avoid discrim<strong>in</strong>ation aga<strong>in</strong>st people with disabilities. Moreover, no
<strong>in</strong>dividual with a disabilit may, by reason of the disability, be excluded
from participat<strong>in</strong>g <strong>in</strong> or be denied the benefits of any public program,
service, or activity. State <strong>and</strong> local governments may comply with ADA
accessibility requirements <strong>in</strong> a variety of ways, such as by redesign<strong>in</strong>g
equipment, reassign<strong>in</strong>g services to accessible build<strong>in</strong>gs or alternative
accessible sites, or alter<strong>in</strong>g exist<strong>in</strong>g facilities or construct<strong>in</strong>g new ones.
However, state <strong>and</strong> local governments are not required to take actions that
would threaten or destroy the historic significance of a historic property,
fundamentally alter the nature of a service, or impose undue f<strong>in</strong>ancial <strong>and</strong>
adm<strong>in</strong>istrative burdens. In choos<strong>in</strong>g between available methods of
comply<strong>in</strong>g with the ADA, state <strong>and</strong> local governments must give priority to
the choices that offer services, programs, <strong>and</strong> activities <strong>in</strong> the most
<strong>in</strong>tegrated sett<strong>in</strong>g appropriate.
Title m of the ADA covers commercial facilities <strong>and</strong> places of public
accommodation. Such facilities may also be used as poll<strong>in</strong>g places. Under
Title l, public accommodations must make reasonable modifications <strong>in</strong>
policies, practices, or procedures to facilitate access for <strong>in</strong>dividuals with
disabilities. They must also ensure that no <strong>in</strong>dividual with a disability is
excluded or denied services because of the absence of "auxiliary aids <strong>and</strong>
services,' which <strong>in</strong>clude both effective methods of mal<strong>in</strong>g aurally <strong>and</strong>
visually delivered materials available to <strong>in</strong>dividuals with impairments, <strong>and</strong>
acquisition or modification of equipment or devices. Public
accommodations are also required to remove physical barriers <strong>in</strong> exist<strong>in</strong>g
build<strong>in</strong>gs when it is readily achievable" to do so, that is, when it can be
done without much difficulty or expense, given the entity's resources. In
the event that removal of an architectural barrier cannot be accomplished
GAo0s-44T erldy vo

Transportation Challenges
Become More Acute with
Ag<strong>in</strong>g <strong>and</strong> Can Limit
Seniors' Ability to Reach
Poll<strong>in</strong>g Places
14
easily, the accommodation may take alternative measures to facilitate
accessibility. All build<strong>in</strong>gs newlb consiructed by public accommodations
<strong>and</strong> commercial facilities must be readily accessible; alterations to exist<strong>in</strong>g
build<strong>in</strong>gs are required to the maximum extent feasible to be readily
accessible to <strong>in</strong>dividuals with disabilities
F<strong>in</strong>ally, the Older Americans Act of 1965 (OAA), as amended, supports a
wide range of social services <strong>and</strong> programs for older person. The OAA
authorizes grants to agencies on ag<strong>in</strong>g to serve as advocates of, <strong>and</strong>
coord<strong>in</strong>ate programs for, the older population. Such programs cover areas
such as caregiver support, nutrition services, <strong>and</strong> disease prevention.
Importantly, the OAA also provides assistance to improve transportation
services for older <strong>in</strong>dividuals.
For older adults who wish to vote at poll<strong>in</strong>g places, access to the polls is
highl affected by their ability to travel to the poll<strong>in</strong>g place on election
day. While most older adults drive, their physical, visual, <strong>and</strong> cognitive
abilities can deteriorate, mak<strong>in</strong>g it more difficult for them to drive safely.
One study found that approximately 21 percent (6.8 million) of people
aged 65 <strong>and</strong> older do not drive,' <strong>and</strong> another study found that more than
600,000 people aged 70 <strong>and</strong> older stop driv<strong>in</strong>g each year <strong>and</strong> become
dependent on others for transportation.' Accord<strong>in</strong>g to senior
transportation experts, the -oldest of the old- (those aged 85 <strong>and</strong> older)
are especially likely to be dependent on others for rides, particularly if
they are also In poor health.
For those who do not or cannot drive, our previous work for this.
committee on the mobility of older adults identified other options than
driv<strong>in</strong>g that are available; nevertheless, transportation gaps rema<strong>in</strong>m.
Consistent with the Older Americans Act <strong>and</strong> other legislation, the federal
government provides some transportation assistance, but this is largely to
provide older adults with access to other federal program services-such
as health <strong>and</strong> medical care or employment Tbis has been done through
' U.& D qtraak ofTatwortston, Bureau of Thnqrton 5Aaustec, 2001 National
Housdwid 7havLSuVV.
' Derel J. Fotey, MS, Harley K Hetov, PhD, ha IL Guralt% MD, PhD, <strong>and</strong> Dwig&.tK
rock, PhD, Ddvhg ife EKmedarcy of Persons Aged 70 Yeas sad Older In the Untied
ftkdes,* A law Journal qfPuhic HeaU% vol 92 no 85(200).
' GAO041 m1.
GA0o4e442r nsboVote

15
partnerships with local agences, nonprofits, <strong>and</strong> other organizations that
provide transportation services <strong>and</strong> also contribute their own funds. Such
partner<strong>in</strong>g efforts may afford the opportunity to transport seniors to
poll<strong>in</strong>g places as well. For example, the Montana Council on
Developmental Disabilities partners with other organizations, such as
AARP <strong>and</strong> the Montana Transit Association, to provide election day rides
to older adults <strong>and</strong> people with disabilities. Still, we generally found that
older adults <strong>in</strong> rural <strong>and</strong> suburban areas have more restricted travel
options than do those <strong>in</strong> urban areas. In addition, we have reported that
federally supported programs generally lacked data identif<strong>in</strong>g the extent
to which older adults have umnet needs for mobility. Consequently, we do
not know to what extent older adults are unable to f<strong>in</strong>d transportation to
poll<strong>in</strong>g places.
To address this lack of data <strong>and</strong> improve transportation services, more
than 45 states had utilized the Framework for Action' by 2005," a selfassessment
tool created by the Federal Interagency Coord<strong>in</strong>at<strong>in</strong>g Council
on Access <strong>and</strong> Mobility (CCAM) for states <strong>and</strong> communities to help them
identify exist<strong>in</strong>g gaps <strong>in</strong> transportation services for people with
disabilities, older adults, <strong>and</strong> <strong>in</strong>dividuals with lower <strong>in</strong>comes. Accord<strong>in</strong>g to
the CCAM, communities across the country are now us<strong>in</strong>g this tool as they
establish coord<strong>in</strong>ated transportation plans at the local leveL Vot<strong>in</strong>g access
is one need that might well be identified <strong>and</strong> better met through this
assessment process.
Physical Access to Poll<strong>in</strong>g Our on-site <strong>in</strong>spections of poll<strong>in</strong>g places <strong>in</strong> the 2000 general election
Places Was Uneven dur<strong>in</strong>g revealed many impediments that can limit access for older voters <strong>and</strong>
Election 2000, but May voters with disabilities Through our mail survey of states <strong>and</strong> local
Have Improved s<strong>in</strong>ce electionjurisdictions conducted
HavA
after the
Im
2004 general Erov ed
election,
n200 we
learned of improvements to provisions <strong>and</strong> practices perta<strong>in</strong><strong>in</strong>g to
RAVA Was Enacted <strong>in</strong> 2002 accessibility of poll<strong>in</strong>g places. We did not conduct on-site <strong>in</strong>spections <strong>in</strong>
Ihe Flomework for Acton was developed by what s now kaown as the Federal
lnteragency Coord<strong>in</strong>at<strong>in</strong>g council for ACess <strong>and</strong> Mobility, a body with senior leadersip
humn 11 federal departnents <strong>and</strong> agencies tsat are dcarged with coord<strong>in</strong>at<strong>in</strong>g
tsrnportation services provided by federal pograms <strong>and</strong> pronot<strong>in</strong>g the masxnmu feasbe
coordlnaalon athe 5ar <strong>and</strong> local levels <strong>in</strong> addition, the Deqarneni of Heafth <strong>and</strong> Human
Services' Admznstralon on Ag<strong>in</strong>g <strong>and</strong> the Departmnt of Tansportates Federal
Transortation Adm<strong>in</strong>istratione reed a toolt for state <strong>and</strong> local Warmers tD help them
ass older aditr isanstoan needs mid to coordInate trarLportaton services,
organied around dhe Framework forAction plann<strong>in</strong>g proces.
GAoos-4 El1erlyVote

An Estimated 16 Percent of.
Poll<strong>in</strong>g Places Used <strong>in</strong> the 2000
General Election Had No
Potential Impediments
16
the 2004 general election <strong>and</strong> therefore do not know the extent to which
such Improvements took place at poll<strong>in</strong>g places.
Once older voters reach the poll<strong>in</strong>g place, they generally must make their
way <strong>in</strong>side the build<strong>in</strong>g <strong>and</strong> <strong>in</strong>to the vot<strong>in</strong>g room <strong>in</strong> order to cast their
votea Prior to the 2000 election, very little was known about the
accessability of poll<strong>in</strong>g places-<strong>and</strong> what was known was dated <strong>and</strong> had
significant limitations. To estimate the proportion of poll<strong>in</strong>g places <strong>in</strong> the
country with features that might either facilitate or impede access for
people with mobility, dexterity, or visual impa<strong>in</strong>rents, we visited 496
r<strong>and</strong>omly selected poll<strong>in</strong>g places <strong>in</strong> the United States on Election Day
2000. Our r<strong>and</strong>om sample was drawn by first select<strong>in</strong>g a r<strong>and</strong>om sample of
counties-weighted by population-<strong>and</strong> then r<strong>and</strong>omly select<strong>in</strong>g some
poll<strong>in</strong>g places with<strong>in</strong> those counties. At each poll<strong>in</strong>g place, us<strong>in</strong>g a survey
based on federal <strong>and</strong> nonfederal guidel<strong>in</strong>es on accessibility, we took
measurements <strong>and</strong> made observations of features of the facility <strong>and</strong> vot<strong>in</strong>g
methods that could impede access.' See figure I for the key areas at
poll<strong>in</strong>g places where we conducted our observations. We also <strong>in</strong>terviewed
poll workers who were <strong>in</strong> charge of the poll<strong>in</strong>g place to identify any
accommodations offered.
0
For additional detLws on our methods, see GAO-02-107, app L
GA04O,445T 5drfyVoter

Figu 1: Key Feiures at Pott<strong>in</strong>g Pae
17
So- GAO-02-107. pS 24-25.
GA,08S-42 Eldey Votes.

RWWs &a Insie the bWtICVn no<strong>in</strong>
tthe oot s
E1. fMIwy fteehid ,e no OWd
1i2 if~ 1. hd hl
82. 5*nle onf fOs Of ozanmgs am 3
e. Stp am fCI mqndred fOa f tf
tot. fonldnM 88 eotan 38 irMS
r shbn (may fromo to 32 ifces
brtte rmanS ttl) 2t
es. Sopa fJ loop tO rrsteper than t: t2
18
Fl. otht sations rOnemd for stg
at aoco-m-ndats a weakiajr
* -F2.s l fgored (or og
J:t;ee (omad mnti to loer mom 15 who.s
<strong>and</strong> to highertlh 48 bote
Votgos stti configoed tof sitant
* troro side fteach nO lower than 9 iches
d W higher nt 54 bitohfe
GAOS-442T Eldedry Votef

19
These on-site <strong>in</strong>spections dur<strong>in</strong>g the 2000 election revealed that only an
estimated 16 percent of poll<strong>in</strong>g places were free of imped<strong>in</strong>ents that might
prevent elderly voters <strong>and</strong> voters with disabilities from reach<strong>in</strong>g vot<strong>in</strong>g
rooms,' The rest had one or more likely impediments from the park<strong>in</strong>g
area to the vot<strong>in</strong>g room, although curbside vot<strong>in</strong>g was often made
available where permitted by the state (see fig. 2). These were potential
impediments primarily for Individuals with mobility impairments.
FIgure 2: Pruvalence of Potential Impedienta et Pollt<strong>in</strong>g Places end Avalablty of
Cudbitde Voti- , Noebe 2W00 Elees<strong>in</strong>
Paentaea of ponar pla9 weft no
peAdntege ot pol<strong>in</strong>g places vih
ne or ,woee potntal asopeders
that orl<strong>in</strong>eertda
Percentage of po" lnpavs with eon
or nWe poteta epeThoet em do not
ellarnrbaede wheeg
s n: GAO-a107, G. a;O 5 at0 P ts O. do e ed en Nn. 7,r20 .
Nob: These pta iped-enbt 2X tcan alon t reul. IHm Vt parklag at to Mte VoHng ,no.
Further, many poll<strong>in</strong>g places had more than one potential impediment <strong>in</strong>
2000. impediments occurred at hibly high rates irrespective of the type of
build<strong>in</strong>g used as a poll<strong>in</strong>g place. About 70 percent of all Election Day 2000
poll<strong>in</strong>g places were <strong>in</strong> the types of facilities that are potentially subject to
either Title f or m of the ADA-such as schools, recreational/community
" Sanipl<strong>in</strong>g errors for poll<strong>in</strong>g place data range frorn 3 to 10 percentage po<strong>in</strong>ts, unleas
odwrwise noted <strong>in</strong> tda report.
GooAa-44T Elobmty Voe

20
certers, city/town hails, police/fire stations, iIbraries, <strong>and</strong> courthouses."
However, under the ADA, only new construction <strong>and</strong> alterations must be
readily accessible, <strong>and</strong> we did not determ<strong>in</strong>e the date that polig place
facilities were either constructed or altered. Moreover, due to the number
of possible approaches for meet<strong>in</strong>g ADA requirements on accesibity to
public services <strong>and</strong> because places of pubhc accommodation need remove
barriers only where It is easy to do so, we cannot determ<strong>in</strong>e from our data
whether the potential impediments we found would constitute a failure to
meet ADA requirements.
In addition to <strong>in</strong>spect<strong>in</strong>g poll<strong>in</strong>g places <strong>in</strong> 2000, we also reviewed state
provisions (<strong>in</strong> the form of statutes, regulations, orpolicies) <strong>and</strong> surveyed
state <strong>and</strong> county practices that affect voters' ability to get Into poll<strong>in</strong>g
places <strong>and</strong> reach the vot<strong>in</strong>g room, <strong>and</strong> found significant variations. While
all states <strong>and</strong> the District of Columbia had provisions concern<strong>in</strong>g vot<strong>in</strong>g
access for <strong>in</strong>dividuals with disabilities, the extent <strong>and</strong> manner <strong>in</strong> which
these provisions addressed accessibility varied from state to state. For
example, 43 states had provisions that poll<strong>in</strong>g places must or should be
accessible, but only 20 bad provisions requir<strong>in</strong>g that report<strong>in</strong>g by the
counties to the state on poll<strong>in</strong>g place accessibility. See table I <strong>in</strong> app. I for
additional state provisions concern<strong>in</strong>g the accessibility of poll<strong>in</strong>g places <strong>in</strong>
the November 2000 election.
Our survey of election officials <strong>in</strong> each state <strong>and</strong> 100 counties also.
revealed variation <strong>in</strong> practices for ensur<strong>in</strong>g the accessibility of poll<strong>in</strong>g
plws. 5 For example, while 25 states reported provid<strong>in</strong>g local
goverrenents with tra<strong>in</strong><strong>in</strong>g <strong>and</strong> guidance for assur<strong>in</strong>g polu<strong>in</strong>g place
accessibility, only 6 states reported help<strong>in</strong>g f<strong>in</strong>ance poll<strong>in</strong>g place
modifications to improve access <strong>in</strong> 2000. At least an estimated 27 percent
of local election jurisdictions reported not us<strong>in</strong>g accessibility <strong>in</strong> their
criteria for select<strong>in</strong>g poll<strong>in</strong>g places. While at least an estimated 68 percent
"As noted previously, tlhe IL Subtitle A, widdi apples to state <strong>and</strong> local govemaet
reqUres that public prograua, sevivces, <strong>and</strong> activities be accesible to bnirviduals with
disabiles (42 U.S- c S1213134). ue Ill requires reasonable modeatoa to policies,
pracllces, or procedures to be made by public accamuodations to acidee accessibiliy for
people with disabilities (42 USC. 12182(b)(2XA)(l))Also, new constroctiun <strong>and</strong>
alteration of exst<strong>in</strong>g facilities by slate <strong>and</strong> local governenta public m <strong>and</strong>
comerdal faclities generally must be readilywcessble to IndiVIduals with disabilities
(42 V.QC 1l2183()).
' Sanmpf mgemzo for coun saver data geseratly range fom 4 to 25 perenia po<strong>in</strong>s
We geneyas presented the lower bound of the estimate when the sampl<strong>in</strong>g error was large.
Fbr detalis, see GAO.02-107, app 1.
GA04-445r JMd. voters

New Provisions <strong>and</strong> Practices
May Be Improv<strong>in</strong>g Access to
Poll<strong>in</strong>g Places, although the
Degree of Change Is Difficult to
Determ<strong>in</strong>e
21
of local jurisdictions reported that they <strong>in</strong>spected a poll<strong>in</strong>g places, the
frequency of such <strong>in</strong>spections varied from once a year to only when a
poll<strong>in</strong>g place is first selected or follow<strong>in</strong>g a compla<strong>in</strong>t or remodel<strong>in</strong>g.
After the November 2004 general election, we found signs of improvement
<strong>in</strong> access to poll<strong>in</strong>g places when we surveyed each state <strong>and</strong>
representative sample of locaj election jurisdictions nationwide <strong>in</strong> 2005
about their state provisions <strong>and</strong> practices." While the methods we used to
collect data from states differed between the 2000 <strong>and</strong> 2004 elections, state
provisions related to poll<strong>in</strong>g place accessibility <strong>and</strong> accommodations
nevertheless appear to have <strong>in</strong>creased over time. For example, 32 states
told us <strong>in</strong> 2005 that they required locaijuildictions to report on poll<strong>in</strong>g
place accessibility to the state, an <strong>in</strong>crease from 20 states with such
provisions <strong>in</strong> 2000. At the same time, the number of states requir<strong>in</strong>g poll<strong>in</strong>g
place <strong>in</strong>spections decreased by 1 from 2000 to 2004, although 16 <strong>in</strong>
addition to the 24 requir<strong>in</strong>g <strong>in</strong>spections had provisions <strong>in</strong> 2004 that
allowed for poll<strong>in</strong>g place <strong>in</strong>spections. See Table 2 <strong>in</strong> app. I for additional
<strong>in</strong>formation on state provisions concern<strong>in</strong>g accessibility of poll<strong>in</strong>g places
<strong>and</strong> accommodations for <strong>in</strong>dividuals with disabilities for the November
2004 general election.
In addition to changes <strong>in</strong> state provisions, most states reported that they
had spent or obligated HAVA funds to improve the accessibility of poll<strong>in</strong>g
places, such as by provid<strong>in</strong>g access for voters with mobility or visual
impairments. Respond<strong>in</strong>g to our 2005 survey follow<strong>in</strong>g the 2004 election,
46 states <strong>and</strong> the District of Columbia reported hav<strong>in</strong>g spent or obligated
HAVA funds for this purpose For example, election Officials In a local
jurisdiction we visited <strong>in</strong> Colorado told us they had used HAVA funds to
improve the accessibility of poll<strong>in</strong>g places by obta<strong>in</strong><strong>in</strong>g <strong>in</strong>put from the
disability comuunity, survey<strong>in</strong>g the accessibility of their poll<strong>in</strong>g places,
<strong>and</strong> review<strong>in</strong>g vot<strong>in</strong>g equipment with representatives of the bl<strong>in</strong>d
community.
From our 2005 survey of local election jurisdictions nationwide, we
estimated 83 percent of local jurisdictions nationwide made use of their
state's provisions to determ<strong>in</strong>e the requirements for accessibility at their
X For our2005 local elecdon.isdirtionsurmey, we used astraified r<strong>and</strong>om probability
sample. For details, see GA04e460, appe. m. IV <strong>and</strong> V.
GAO-es- E~eyVet

Election Officials Reported
Challenges to Ensur<strong>in</strong>g Voter
Access That Were Similar to
Those Encountered <strong>in</strong> 2000
22
poll<strong>in</strong>g places.y Dur<strong>in</strong>g our site visits to local jurisdictions <strong>in</strong> 2005, we
asked election officials to describe the steps orprocedures they took to
ensure that poll<strong>in</strong>g places were accessible. Election officials <strong>in</strong> many of
the Jurisdictions we visited told us that either local or state officials
<strong>in</strong>spect each poll<strong>in</strong>g location <strong>in</strong> theirjurisdiction us<strong>in</strong>g a checdist based
on state or federal guidel<strong>in</strong>es. For example, election officials <strong>in</strong> the four
jurisdictions we visited <strong>in</strong> Georgia <strong>and</strong> New Hampshire told us that state
<strong>in</strong>spectors conducted a survey of all poll<strong>in</strong>g locations. Election officials <strong>in</strong>
the two jurisdictions we visited <strong>in</strong> Florida told us that they <strong>in</strong>spected all
poll<strong>in</strong>g places us<strong>in</strong>g a survey developed by the state.
Our <strong>in</strong>formation of provisions <strong>and</strong> practices related to poll<strong>in</strong>g place
accessibility <strong>in</strong> 2004 is based on self-reported data collected, <strong>and</strong> site visits
we conducted, <strong>in</strong> 2005. We did not observe pall<strong>in</strong>g places dur<strong>in</strong>g the 2004
election <strong>and</strong> therefore do not know the extent to which <strong>in</strong>creased state
provisions <strong>and</strong> reported state <strong>and</strong> local practices resulted <strong>in</strong> actual
improvements to the accessibility of poll<strong>in</strong>g places <strong>in</strong> the 2004 general
election.
In prepar<strong>in</strong>g for <strong>and</strong> conduct<strong>in</strong>g the November 2004 general election,
officials reported encounter<strong>in</strong>g many of the same <strong>challenges</strong> to ensur<strong>in</strong>g
voter access that they had encountered <strong>in</strong> 2000, such as locat<strong>in</strong>g a
sufficient number of poll<strong>in</strong>g places that met requirements (such as
accessibility). Accord<strong>in</strong>g to our 2006 mail survey, while 75 percent of small
jurisdictions reported f<strong>in</strong>d<strong>in</strong>g it easy or very easy to f<strong>in</strong>d sufficient number
of poll<strong>in</strong>g places, only 38 percent of large jurisdictions did." Conversely, I
percent of small jurisdictions found it difficult or very difficult while 14
"U''ess ctherwise noted, the maizmum supl<strong>in</strong>g erro for eslimotes of an local election
joPabdicios fO this swq7 is plus or mius 5 peoventage po<strong>in</strong>ts. For more details on tliss
sunvXe, see GAGO-tO, NAs. M aid V.
"We vatted 28 local election jMuotsDM to collect<strong>in</strong>fonnan aboutl te election
adm<strong>in</strong>istration rocess <strong>and</strong> their epersers dur<strong>in</strong>g the November 5104 general electio
For mone detals, see .IV of GAOOt4I0.
" Unless otherwise noted, the maximum sU g wtorfor estimatn for lapopulation
jurisdietions from Otis svey Is plus or m<strong>in</strong>us seven percert po<strong>in</strong>ts, plus ormlnus 7
perentage poInts for medlun populatiojurisdlictions, ad 5 percentage po<strong>in</strong>ts for small
jurisdorn.
OAo0484 ME, V"=

Improv<strong>in</strong>g Accessibility of
Vot<strong>in</strong>g Equipment <strong>and</strong>
Assistance <strong>in</strong> Vot<strong>in</strong>g Room
May Prove Challeng<strong>in</strong>g
Accessible Vot<strong>in</strong>g Systems <strong>in</strong>
the November 2000 General
Election
23
percent of large jurisdictions did" Other chaUenges reported <strong>in</strong>cluded
recruit<strong>in</strong>g <strong>and</strong> tra<strong>in</strong><strong>in</strong>g an adequate supply of skilled poll workers,
design<strong>in</strong>g ballots that were clear to voters when there were many
c<strong>and</strong>idates or issues (e g., propositions, questions, or referenda), hav<strong>in</strong>g
long l<strong>in</strong>es at poll<strong>in</strong>g places, <strong>and</strong> h<strong>and</strong>l<strong>in</strong>g the large volume of telephone
calls received from voters <strong>and</strong> poll workers on election day. In general,
officials <strong>in</strong> large <strong>and</strong> medium jurisdictions-those with over 10,000
people-reported encounter<strong>in</strong>g more <strong>challenges</strong> than those <strong>in</strong> small
jurisdictions.
Once <strong>in</strong>side the vot<strong>in</strong>g room, the type of vot<strong>in</strong>g method can pose particular
<strong>challenges</strong> to some elderly voters, <strong>and</strong> facilitat<strong>in</strong>g vot<strong>in</strong>g may require
further accommodation or assistance. For example, voters with dexterity
impairments may experience difficulty hold<strong>in</strong>g writ<strong>in</strong>g <strong>in</strong>struments for
paper ballots, p<strong>in</strong>po<strong>in</strong>t<strong>in</strong>g the stylus for punch card ballots, manipulat<strong>in</strong>g
levers, or press<strong>in</strong>g buttons for electronic vot<strong>in</strong>g systems. Similarly, visually
impaired voters may experience difficulty read<strong>in</strong>g the text on paper ballots
<strong>and</strong> electronic vot<strong>in</strong>g systems, or manipulat<strong>in</strong>g the h<strong>and</strong>les to operate
lever mach<strong>in</strong>es. All these vot<strong>in</strong>g methods can challenge voters with
disabilities, although some electronic vot<strong>in</strong>g systems can be adapted to
accommodate a range of impairments.
Dur<strong>in</strong>g our on-site <strong>in</strong>spections of poll<strong>in</strong>g places <strong>in</strong> 2000, we Identified
<strong>challenges</strong> posed by the vot<strong>in</strong>g systems used <strong>and</strong> by the configuration of
the vot<strong>in</strong>g booths, although some form of assistance was generally
provided <strong>in</strong> the vot<strong>in</strong>g room. With respect to vot<strong>in</strong>g systems, we found that
either traditional paper ballots or mark-sense ballots (a form of optical
scan paper ballots) were the most widespread-one or the other were <strong>in</strong>
use at an estimated 43 percent of poll<strong>in</strong>g places. This vot<strong>in</strong>g method is
challeng<strong>in</strong>g for voters with impaired dexterity who have difficulty us<strong>in</strong>g a
pen or pencil <strong>and</strong> also for voters with visual impairments who need to
read the text on the ballots. Next <strong>in</strong> prevalence were punch c<strong>and</strong> ballots
(21 percent), electronic vot<strong>in</strong>g systems (19 percent), <strong>and</strong> lever mach<strong>in</strong>es
'For this survey, largejuaisdtions are detned as these with a populat<strong>in</strong> over 100,000,
gnuediamiartsdirtiona have apopulation ofover 10,000 to 100,O00, <strong>and</strong> aeanjbaisdictons
have apopulation of 10,000 or teas. In 2004,7,627 of the naion!s election jurtsdctions had a
population of 10,O00 or lesa. While smalljarisdictions represent the nalorty of lorsl
election jurtawtetions, nearty all are <strong>in</strong> sta that conta<strong>in</strong>ed a snall portion of the UaS
population arcordtng to CeNa 2000. local electionJursdictions with over 10,000 people
coprted 27 percen of all election jurisdiec<strong>in</strong>a <strong>in</strong> the United Stat, but nearly all rem <strong>in</strong>
sts that comprised a large pomton of te popLuaus
GAI0445T =a- Hyv

24
(17 percent)-each of which can be a challenge for voters with certa<strong>in</strong>
impairments. We also found that many vot<strong>in</strong>g booths were not
appropriately configured for wheelchairs, either because vot<strong>in</strong>g stations
configured for sitt<strong>in</strong>g did not have the <strong>in</strong><strong>in</strong>mun dimensions for a
wheelchair or those configured for st<strong>and</strong><strong>in</strong>g had one or more features that
might pose an impediment to a wheelchair. At the same time, nearly all
poll<strong>in</strong>g places allowed voters to be assisted either by a friend or apoll
worker, which is a right granted by the VRA. Moreover, about 51 percent
provided vot<strong>in</strong>g <strong>in</strong>structions or sample ballots <strong>in</strong> 18-po<strong>in</strong>t or larger type
<strong>and</strong> about 47 percent provided a magnity<strong>in</strong>g deviceY None of the poll<strong>in</strong>g
places provided ballots or vot<strong>in</strong>g equipment adapted with audlo-tape or
Braille ballots for bl<strong>in</strong>d voters. -
Our 2000 review of state provisions <strong>and</strong> practices related to accessible
vot<strong>in</strong>g systems <strong>and</strong> accommodations <strong>in</strong> the vot<strong>in</strong>g room revealed
significant gaps, <strong>in</strong>sofar as 27 states lacked provisions that vot<strong>in</strong>g systems
should acconunodate <strong>in</strong>dividuals with disabilities, 18 lacked provisions for
wheelchairs <strong>in</strong> vot<strong>in</strong>g booths, <strong>and</strong> many lacked provisions to provide aides
to the visually imnpaired; for example, 47 states lacked a provision to
provide a large type ballot, <strong>and</strong> 45 lacked a provision to provide a Braille
ballot. (See app. 1, table 1.) On the other h<strong>and</strong>, we found that state
provisions were not necessarily predictors of practice <strong>in</strong>side the poll<strong>in</strong>g
place. For example, we found that half the poll<strong>in</strong>g places we visited
provided vot<strong>in</strong>g <strong>in</strong>structions or sample ballots with large type even though
only 3 of the 33 states whose poll<strong>in</strong>g places we visited had provisions to do
so. Conversely, none of the poll<strong>in</strong>g places we visited provided for Braille
ballots, even though 5 of the 33 states we visited had provisions for do<strong>in</strong>g
so. In addition to many states lack<strong>in</strong>g provisions for vot<strong>in</strong>g room
accommodations, <strong>in</strong> only I1 states did election officials, <strong>in</strong> response to our
state survey, report f<strong>in</strong>anc<strong>in</strong>g improvements to accessibility by help<strong>in</strong>g to
fund new vot<strong>in</strong>g systems
Progress Made to Improve Our 2006 survey of states also revealed an <strong>in</strong>crease <strong>in</strong> state provisions for
Accessibility of Vot<strong>in</strong>g Systems accessible vot<strong>in</strong>g equipment, compared to what we found <strong>in</strong> our review of
after 2000, but Significant state provisions <strong>in</strong> 2000. As of August 1, 2005, 41 states <strong>and</strong> the District of
Challenges Rema<strong>in</strong> Columbia reported hav<strong>in</strong>g laws <strong>in</strong> place or hav<strong>in</strong>g taken executive action.
(though orders, directives, regulations, or policies) to provide each
poll<strong>in</strong>g location by January 1, 2006, with at least one electronic vot<strong>in</strong>g
system or other vot<strong>in</strong>g system equipped for <strong>in</strong>dividuals with disabilities.
GAO-S4r rMeofVetm

25
Eive of the 9 rema<strong>in</strong><strong>in</strong>g states reported plans to promulgate laws or
executive action to provide each poll<strong>in</strong>g location with at least one vot<strong>in</strong>g
system equipped for <strong>in</strong>dividuals with disabillties. This is an <strong>in</strong>crease from
2000, when 24 sates had (<strong>and</strong> 27 lacked) provisions that vot<strong>in</strong>g systems
must or should accommodate <strong>in</strong>dividuals with disabilities.
In response to our survey of local electionjurtsdictions <strong>in</strong> 2005, many
jurisdictions reported hav<strong>in</strong>g at least one accessible vot<strong>in</strong>g mach<strong>in</strong>e per
poll<strong>in</strong>g place <strong>in</strong> the 2004 election, although this vaned by jurisdiction size.
We estimated that 29 percent of ali jurisdictions provided at least one
accessible vot<strong>in</strong>g mach<strong>in</strong>e at each poll<strong>in</strong>g place dur<strong>in</strong>g the 2004 general
elections. In addition, more large <strong>and</strong> medium local election jurisdictions
reported us<strong>in</strong>g accessible vot<strong>in</strong>g mach<strong>in</strong>es than small jurisdictions. In
2005, we estimated that 39 percent of large jurisdictions, 38 percent of
medium jurisdictions, <strong>and</strong> 26 percent of small jurisdictions provided
accessible vot<strong>in</strong>g mach<strong>in</strong>es at each poll<strong>in</strong>g place.
These improvements may be the result of HAVA, which, as noted earlier,
requires each poll<strong>in</strong>g place to have at least one vot<strong>in</strong>g system equipped for
<strong>in</strong>dividuals with disabilities, <strong>in</strong>clud<strong>in</strong>g <strong>in</strong>dividuals who are bl<strong>in</strong>d or visually
impaired. To facilitate the adoption of technology, HAVA authorized
appropriations to provide funds to states to replace punch card <strong>and</strong> lever
vot<strong>in</strong>g equipment with other vot<strong>in</strong>g methods. S<strong>in</strong>ce HAVA's enactment, the
General Services Adm<strong>in</strong>istration (GSA) reported <strong>in</strong> 2003 the distribution of
an estimated $300 million to 30 states for funds to replace old vot<strong>in</strong>g
equipment <strong>and</strong> technology. In addition, states may receive other HAVA
funds that could be used for multiple purposes, <strong>in</strong>clud<strong>in</strong>g replacement or
upgrade of vot<strong>in</strong>g systems. In 2004, the RAC reported that almost $344
million had been distributed to each of the 50 states <strong>and</strong> the District of
Columbia under this multiple purpose fund<strong>in</strong>g category.
HAVA notwithst<strong>and</strong><strong>in</strong>g our surveys <strong>and</strong> site visits <strong>in</strong> 2004 <strong>in</strong>dicated that
significant <strong>challenges</strong> rema<strong>in</strong> for acquir<strong>in</strong>g <strong>and</strong> implement<strong>in</strong>g accessible
electzordc vot<strong>in</strong>g systeom Touch screen direct record<strong>in</strong>g electonic (DRE)
equipment-which can be adapted with audio <strong>and</strong> other aids to
" The osates that repoted hav<strong>in</strong>g plans were Karnsa, Loisiana, Ohla, Oklahan, <strong>and</strong>
Wyong The 4 remanb s that reported ha<strong>in</strong>g no plans or were rOmtgln about
thbe pia Swere Delaware, lassacehuwet M esoori <strong>and</strong> 7ms
5
The dieences between both large ard medlium Jmisdictis <strong>and</strong> Wsall Jrdtons are
.9 4 5 D '
QA r8442T Eldedry Voters

26
acconmmodate a range of impairment5-4s generally more costly than other
types of systems due to software requirements <strong>and</strong> because more units are
required. Based on our mail surveys of local election jurisdictions, the
estimated percentages of predom<strong>in</strong>ant vot<strong>in</strong>g methods used by local
jurisdictions <strong>in</strong> the 2000 <strong>and</strong> 2004 general elections did not change
appreciably. As we noted earlier, more large <strong>and</strong> medium local election
Jurisdictions reported us<strong>in</strong>g accessible electronic vot<strong>in</strong>g mach<strong>in</strong>es than
small jurisdictions. Some election officials represent<strong>in</strong>g small jurisdictions
expressed concerns to us about the appropriateness of HAVA
requirements for accessible vot<strong>in</strong>g equipment for their jurisdictions <strong>and</strong> its
implementation cost. In addition, some elections officials have acted on
concerns regard<strong>in</strong>g the reliability <strong>and</strong> security of electronic vot<strong>in</strong>g systems
by, for <strong>in</strong>stance, decertify<strong>in</strong>g systems previously approved for use with<strong>in</strong>
their states
In 2007, we testified on the range of security <strong>and</strong> reliability concerns that.
have been reported, <strong>and</strong> long-st<strong>and</strong><strong>in</strong>g <strong>and</strong> emerg<strong>in</strong>g <strong>challenges</strong> fac<strong>in</strong>g all
levels of government, with respect to electronic vot<strong>in</strong>g systems. For
example, significant concerns have been raised about vague or <strong>in</strong>complete
st<strong>and</strong>ards, weak security controls, system design flaws, <strong>in</strong>correct system
configurtion, poor security management, <strong>and</strong> <strong>in</strong>adequate security test<strong>in</strong>&
among other issues. Jurisdictions reported that they did not consistently
monitor the performance of their systems, which is important for
determ<strong>in</strong><strong>in</strong>g whether election needs, requirements, <strong>and</strong> expectations are
met <strong>and</strong> for tak<strong>in</strong>g corrective actions when they are not. F<strong>in</strong>d<strong>in</strong>g remedies,
however, is challer given, for example, the distribution of
responsibilities among various organizations, <strong>and</strong> f<strong>in</strong>anc<strong>in</strong>g constra<strong>in</strong>ts
<strong>and</strong> complexitie Given the diffused <strong>and</strong> decentralized allocation of vot<strong>in</strong>g
system roles <strong>and</strong> responsibilities across all levels of government,
address<strong>in</strong>g these <strong>challenges</strong> will require the comb<strong>in</strong>ed efforts of all levels
of government, under the leadership of the PAC
Slates Have Increased Our 2006 survey of state election officials revealed a marked <strong>in</strong>crease
Provisions for Vot<strong>in</strong>g Rooms s<strong>in</strong>ce the 2000 election <strong>in</strong> the numberof state provisions related to
Accommodations, though the accommodations <strong>in</strong> the vot<strong>in</strong>g mom. For example, the number of states
Extent of Such Improvemens that reported havlag provisions for wheelchair accommodation In vot<strong>in</strong>g
Is Unclear areas was 43, compared to33 <strong>in</strong> 200D. Further, the number of states that
'We Iud Sw ldmaisbmtvotaiftnwdld eoatrproesadfula I of
beSet rege of atlm the VOWe ws c an gwal fEdlor DV,<strong>in</strong>a prowui ve,
doft absentee V or, &edmg ary van S GA 4 PP 292 0 tori
delion thene reisas frnm our 2eO5 msaU Mvy.
GA0484U r bdyVfeu,

27
reported hav<strong>in</strong>g provisions to require or allow ballots with large4ype,
magnilwng <strong>in</strong>struments, <strong>and</strong> Braille ballot or vot<strong>in</strong>g methods Increased by
18,20, <strong>and</strong> 8, respectively At the same time, a few states reported hav<strong>in</strong>g
provisions that prohibit certa<strong>in</strong> accommodations, such as ballots <strong>in</strong> Braille
or large typeV (See app. 1, table 2 for details on 2004 state provisions.) it is
important to keep In mnd, however, our f<strong>in</strong>d<strong>in</strong>gs for the 2000 electioni.e.,
that state provisions are not necessarily predictors or <strong>in</strong>dicators of
whether these accommodations will be found at poll<strong>in</strong>g places.
Most recently, we reported on accommodations provided to bil<strong>in</strong>gua
voters, <strong>in</strong>clud<strong>in</strong>g elderly bil<strong>in</strong>gual voters. Under the VRA, when the
population of a 's<strong>in</strong>gle language mmorit with limited English proficiency
is large enough, vot<strong>in</strong>g materials (nclud<strong>in</strong>g ballots, <strong>in</strong>structions, <strong>and</strong>
assistance) must be provided <strong>in</strong> that m<strong>in</strong>ority's language, <strong>in</strong> addition to
English Of the 14 election Jurisdictions we contacted, 13 reported
provid<strong>in</strong>g similar assistance, such as translted voter materials <strong>and</strong>
bil<strong>in</strong>gual poll workers Al 14 reported fac<strong>in</strong>g similar <strong>challenges</strong>, such as.
recruit<strong>in</strong>g a sufficient number of bil<strong>in</strong>gual poll workers, effectively
target<strong>in</strong>g where to provide assistance, <strong>and</strong> design<strong>in</strong>g <strong>and</strong> translat<strong>in</strong>g the
bil<strong>in</strong>gual materials provided. However, GAO found little quantitative data
on the uselness of various types ofb<strong>in</strong>gual vot<strong>in</strong>g assistance.
Jursdictions were challenged to assess the effectiveness of such
assistance, In part because Jurisdictions may be prohibited from collect<strong>in</strong>g
data on who used such assistance. Thus, it is difficult to know the extent
to which elderly voters use bil<strong>in</strong>gual assistance <strong>and</strong> what forms of
assistance they f<strong>in</strong>d most useful."
Our <strong>in</strong>frnston on stDe proveons <strong>in</strong> eion 2004 .sssefrqorted. we did not
le dereOy revew tate laws or policies <strong>in</strong> 2004
'G&O, Biltgaui Vot<strong>in</strong>g AW&IMM &kcaS teiJ ieldo ts'biesfbr Idft<strong>in</strong>ga
Need, ansd PrsvidiV Aswa.rA GAOL01.i2 (Washlon, D.C. Jn. i 205)
While did notapedUlcully asse the enS to whic older voten, w Sie aa mce,
elect<strong>in</strong>fif 11<strong>and</strong> Eon-4 r we ereaced loided edarplestissere<strong>in</strong>e
toD OldFer i FOteXople eMJ~rnIadLtWImzpotd- manm eld voters mm
seed ma thae toreview te eOAted materab s <strong>and</strong> tilo, <strong>and</strong> ath ay preer ote
aibsent
GA049-44T ErbVot

State Provisions for
Alternative Vot<strong>in</strong>g Methods
<strong>and</strong> Accommodations
Generally.Increased s<strong>in</strong>ce
2000, but Implementation
Practices May Vary
28
As noted earlier, the VAEHA requires that any elderly voter orvoter with a
disability assigned to an <strong>in</strong>accessible poll<strong>in</strong>g place, upon his or her
advance request, must be assigned to an accessible poll<strong>in</strong>g place or be
provided with an alternative means for cast<strong>in</strong>g a ballot on the day of the
election. The VAEHA also conta<strong>in</strong>s provisions to make absentee vot<strong>in</strong>gmore
accessible by prohibit<strong>in</strong>g, with limited exceptions, the reqmrement
of a notary or medical certification of disability <strong>in</strong> grant<strong>in</strong>g an absentee
ballot However, states generally regulate absentee vot<strong>in</strong>g <strong>and</strong> other
alternative vot<strong>in</strong>g method provisions.Y Alternative vot<strong>in</strong>g methods may
<strong>in</strong>clude advance notice of an <strong>in</strong>accessible poll<strong>in</strong>g place; curbside vot<strong>in</strong>g;
taldng ballots to a voter's residence; allow<strong>in</strong>g voters to use another, more
accessible poll<strong>in</strong>g location either on or before election day; vot<strong>in</strong>g <strong>in</strong>
person at early vot<strong>in</strong>g sites; or remov<strong>in</strong>g prerequisites by establish<strong>in</strong>g 'no
excuse' absentee vot<strong>in</strong>g or allow<strong>in</strong>g absentee vot<strong>in</strong>g on a permanent
basis.a Disability advocates have told us that while alternative vot<strong>in</strong>g
methods are important <strong>and</strong> needed options for some voters with
disabilities, they still do not provide an equal opportunity to vote <strong>in</strong> the
same manner as the general public <strong>and</strong> therefore should not be viewed as
permanent solutions to <strong>in</strong>accessible poll<strong>in</strong>g places.
Meanwhile, state provisions that allow for alternative vot<strong>in</strong>g methods had,
<strong>in</strong> 2004, generally <strong>in</strong>creased from the 2000 election period. Specifically, the
number of state provisions permitt<strong>in</strong>g curbside vot<strong>in</strong>g <strong>in</strong>creased from 28 <strong>in</strong>
the 2000 election to 30 <strong>in</strong> the 2004 election. The number of states with
provisions that provided for carry<strong>in</strong>g ballots to voters' residences on or
before election day <strong>in</strong>creased from 21 to 26. Additionally, state provisions
regard<strong>in</strong>g notification of voters of lccsble poll<strong>in</strong>g places went up
from 19 to 27. In addition, 21 states reported alow<strong>in</strong>g voters to vote
absentee without requir<strong>in</strong>g a reason or excuse-3 more than for the
November 2000 election.
Although states may offer similar alternatives <strong>and</strong> accommodations, our
review of state provisions <strong>in</strong> 2000 <strong>in</strong>dicated that there may be wide
variation <strong>in</strong> their Implementation For example, <strong>in</strong> accordance with the-
' In our a t report we def<strong>in</strong>e 'ltenative vot<strong>in</strong>gxnetlds asayvn Sniethod other
hn traditional np voft
ngat spoitng place on election day.
" No excwse' absentee vot Is available to all oters-tais, voters do not need to give a
reao to vote absentee. In permanent absentee vot<strong>in</strong>g, the voter may requt thea an -
abeentee ballot be atranat y mWaled to Ahen, ratherthan appy<strong>in</strong>g separately, for each
election. Voters may need to periodically ruapb forpermanent absentee ballot aha
GAo4&2ir SRelyvatere

29
VAEHA, as previously mentioned, all states allowed absentee vot<strong>in</strong>g for
voters with dicailities without notary or medical certification
requirements <strong>in</strong> 2000. However, the dates by which absentee ballots must
be received varied considerably, with some states requitr<strong>in</strong>g that, to be
counted, the ballot must be received before election day. In addition,
where states lacked provisions, or had provisions allow<strong>in</strong>g but not
requir<strong>in</strong>g accommodation or alternative method of vot<strong>in</strong>g county <strong>and</strong>
local government implementation practices can vary. For example, <strong>in</strong>
2000, we found that <strong>in</strong> a number of states without formal provision for -
curbside vot<strong>in</strong>g, some counties <strong>and</strong> local governments reported offer<strong>in</strong>g
curbside vot<strong>in</strong>g <strong>and</strong> some did not. Smilary, <strong>in</strong> anumber ofstat that
lacked provisions for allow<strong>in</strong>g voters to use an alternate vot<strong>in</strong>g place on
Election Day, our 2000 county survey data also showed that some counties
<strong>and</strong> local governments offered this altenive, while others did not.
Exp<strong>and</strong><strong>in</strong>g alternative vot<strong>in</strong>g methods or mak<strong>in</strong>g special accommodations
can provide voters with additional options. Early vot<strong>in</strong>g for example,
asows voters, <strong>in</strong>clud<strong>in</strong>g elderly voters, to choose a day without <strong>in</strong>clement
weather on which to vote. However, the implementation of vot<strong>in</strong>g
alternatives can also present election officials with legal, adm<strong>in</strong>istrative,
<strong>and</strong> operational <strong>challenges</strong>. For example, exp<strong>and</strong><strong>in</strong>g the use of curbside
vot<strong>in</strong>g requires hav<strong>in</strong>g staff tra<strong>in</strong>ed <strong>and</strong> available to assist voters outside
the poll<strong>in</strong>g place. In some states where it is not authorized or <strong>in</strong> practice,
policymakers would need to be conv<strong>in</strong>ced that it would not <strong>in</strong>crease the
risk of fraud with ballots be<strong>in</strong>g taken out of the pol<strong>in</strong>g place facilityI
Similarly, reassign<strong>in</strong>g voters to more accessible poll<strong>in</strong>g places requires
officials to notify the voter, tra<strong>in</strong> the poll workers, <strong>and</strong> provide an
appropriate ballot at the reassigned location Election officials reported to
us <strong>in</strong> 2001 that establish<strong>in</strong>g early vot<strong>in</strong>g sites <strong>and</strong> exp<strong>and</strong><strong>in</strong>g the number of
absentee voters added to the cost <strong>and</strong> complexity of runn<strong>in</strong>g an election.
For example, with early vot<strong>in</strong>g, election officials must set up <strong>and</strong> close
down the poll<strong>in</strong>g place daily, ensure that there are tra<strong>in</strong>ed poll workers at
each early vot<strong>in</strong>g site, <strong>and</strong> update the voter registration lists to be used on
election day to <strong>in</strong>dicate which voters have already voted early. Absentee
vot<strong>in</strong>g <strong>challenges</strong> <strong>in</strong>clude receipt of late absentee voter applications <strong>and</strong>
ballots; adm<strong>in</strong>istrative issues <strong>in</strong>clud<strong>in</strong>g workload dem<strong>and</strong>s <strong>and</strong> resource
constra<strong>in</strong>ts; deal<strong>in</strong>g with potential voter error caused by unsigned or
otherwise <strong>in</strong>complete absentee applications <strong>and</strong> ballot materials; as well -
The nwnber or state provisions peelitttng iorbse vot<strong>in</strong>g went from 4 <strong>in</strong> the 2000
election to 18 <strong>in</strong> the 2004 election.
GAO-0844tr MSertrVe.

Conclusions
30
as guard<strong>in</strong>g aga<strong>in</strong>st fraud. Internet vot<strong>in</strong>g-an alternative that has been
used only on a limited basis to date-could offer voters the convenience of
vot<strong>in</strong>g from their homes or other remote locations, <strong>and</strong> help <strong>in</strong>crease voter
participation. On the other h<strong>and</strong>, numerous election officials <strong>and</strong> others
have expressed concerns about the security <strong>and</strong> reliability of the Internet
<strong>and</strong> lack of widespread access to it. To resolve these issues, studies by
some task forces have suggested a phased-In approach to Internet vot<strong>in</strong>g
Ensur<strong>in</strong>g that seniors or <strong>in</strong>dividuals with disabilities successfully cast their
votes <strong>in</strong> an election requires government to th<strong>in</strong>k broadly about access,
<strong>in</strong>clud<strong>in</strong>g access to transportation, access <strong>in</strong>to build<strong>in</strong>gs, access with
respect to vot<strong>in</strong>g equipment, <strong>and</strong> access to various alternative vot<strong>in</strong>g
methods. The <strong>in</strong>crease <strong>in</strong> state provisions <strong>and</strong> reports of practices to
improve the accessibility of the vot<strong>in</strong>g process is encourag<strong>in</strong>g. At the same
time, the complexity of our election systems is such that we cannot be
assured that these provisions <strong>and</strong> reported practices reflect what actually
occurs at poll<strong>in</strong>g places on election day. Underst<strong>and</strong><strong>in</strong>g <strong>and</strong> address<strong>in</strong>g
accessibility gaps is an enormous task for our state <strong>and</strong> local election
officials who are challenged by the multiplicity of responsibilities <strong>and</strong>
requirements they must attend to with<strong>in</strong> resource constra<strong>in</strong>ts. At the same
time, as our population ages, <strong>and</strong> with it the percent of voters with
disabilities swells, the expectation of accommodation <strong>and</strong> assistance to
participate <strong>in</strong> this basic civic exercise will grow, mak<strong>in</strong>g accessibility a key
performance goal for our election community.
GAo0-4M 4FaVo

31
Appendix I: State Provisions for Accessibility
of Poll<strong>in</strong>g Places <strong>and</strong> Accommodations for
the November 2000 <strong>and</strong> 2004 Elections
Table 1: Sta Provisions Concern<strong>in</strong>g Acceatbillty of Poll<strong>in</strong>g Pm"taor the November 2000 Election
State provisions Number of etates with provisions Number of
stales With
Statute or regulation Policy OnlW no provision
Vot<strong>in</strong>g aocessibitity
Vot<strong>in</strong>g by people with disabilities expliclily addressed 51 0 0
Poll<strong>in</strong>g place accessbility
All pcltng places nmt/should be accessible 3B 7 8
State provisions conta<strong>in</strong> one or more poll<strong>in</strong>g place accessibilly 23 1 9 9
st<strong>and</strong>ards
Inspection at pol<strong>in</strong> places to assess accessIbility Is required 15 14 22
Report<strong>in</strong>g by ceunties to state on poll<strong>in</strong>g place access/Ibliy Is 10 10 31
nquIred
Vot<strong>in</strong>g booth areas <strong>and</strong> equipment
Vot<strong>in</strong>g booth areas must/should ate wheelairs 1t7 18 18
Votwig systems must/should accomnodate <strong>in</strong>divIduals with disabtfiwes 13 1 1 27
Aids for visually impaired voters
Braiie bialot or methods of vot<strong>in</strong>g must/my be provided 3 3 46
Ballots with large type must/may be provided 2 2 47
Mifng <strong>in</strong>srumentas muSImay be provided 7 15 29
P a bar atrarteeer previsiony waeitnfe aiyt sons Wi aot havealtr a rttii or
rerets br Slt rrOidlo.
Qo0464 EMrtyVeto

32
ANpeadla e, b ZOO Sta-te Prod Aeo2albility
of Pailia Pi-.4a Ate-..datdamu 5. the
N-sbab, 1000 <strong>and</strong> 2004 Eleedana
Table 2: Stats Provisans Concern<strong>in</strong>g Acceslbiliy of Poll<strong>in</strong>g Places <strong>and</strong>
Accommodations tor Individual& wit Dilsabilties for ft Noveber 2004 Gral
9ection
Required
Not Not Not or
ProvisIon Required Allowed arlowed addressed asilicabl allowed
Poll<strong>in</strong>g ia 41 6 0 2 1 47
accessbtlty
npectonsot 28 16 0 6 1' 44
poll<strong>in</strong>g p
accessibilty
RepotV gby local 32 8 0 9 2' 40
jurtrikdons to the
state on pog
P- accessiblty
Ac rmodatiors 39 4 0 7 1t 43
of wheekhsks <strong>in</strong>
votng areas
Provision obalot 1 13 2 33 1 14
or methods of
vot<strong>in</strong> In Braille'
ProvIsion o 5 17 3 26 0 22
ballots with Wige
tyoo
Pwvision Of 8 34 0 7 1 42
magn"
iru
13a1 n OfWa hi us da I e ;
t~go as, is votg by mat bt
Sed Oley Cid nol io
provisior posp g ibm aooes t ai nod sppie.
MEMd"nfclab In cm sla di not MesPnd to l astOn
GA0-484r Ebt Voter

Related GAO Products
33
Bil<strong>in</strong>gual Vot<strong>in</strong>g Assistance: Selected Jurisdictions' Strategiesfor
Identify<strong>in</strong>g Needs <strong>and</strong> Provid<strong>in</strong>g Assistance GAO-8182. Wash<strong>in</strong>gton,
D.C.: January 18, 2008.
Elections: AU Levels of Government Are Needed to Address Electrontc
Vot<strong>in</strong>g System Challenges. GAO407-741T. Wash<strong>in</strong>gton, D.C.: April 18,2007.
Older Driver Safety: Knowledge Shar<strong>in</strong>g Should Help States Preparefor
Increase <strong>in</strong> OlderDriver Population. GAO.07413. Wash<strong>in</strong>gton, D.C.: April
11,2007.
Elections: The Nation's Evolt<strong>in</strong>g Election System as Reflected <strong>in</strong> the
Novemnber 2004 General Election. GAO406450. Wash<strong>in</strong>gton, D.C.: June 6,
2006.
Social Security Refonr Answers to Key Questions. GAO 05-193SP.
Wash<strong>in</strong>gton, D.C.: May 2,2005.
Transportation-Disadvantaged Seniors Efforts to Enhance Senior
Mobility Could Benefit. from Addtionatl Guidance <strong>and</strong> Information.
GAO.04-971. Wash<strong>in</strong>gton, D.C.: August 30,2004
Elections: A Frameorfor Evaluat<strong>in</strong>g Reform Proposals. GAO-02-90.
Wash<strong>in</strong>gton, D.C.: October 15,2001.
Blections. Perspectives on Activities <strong>and</strong> Challenges Across the Nation.
GAO402-3. Wash<strong>in</strong>gton, D.C.: October 16, 2001:
Voters with Disabilities: Access to Poll<strong>in</strong>g Places <strong>and</strong> Alternative Vot<strong>in</strong>g
Methods. GAO.02-107. Wash<strong>in</strong>gton, D.C.: October 15, 2001.
Elections: The Scope of Cogressimonal Authority <strong>in</strong> Election
Adm<strong>in</strong>istration. GA.01-470. Wash<strong>in</strong>gton, D.C.: March 13,2001.
GA04r4T EidetyVt

34
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PRITED ON RECYCLED PAPER

The CHAIRMAN. Thank you.
Mr. Jenk<strong>in</strong>s.
35
STATEMENT OF WILLIAM JENKINS, DIRECTOR, HOMELAND.
SECURITY AND JUSTICE, U.S. GOVERNMENT ACCOUNT-
ABILITY OFFICE, WASHINGTON, DC
Mr. JENKINS. I am just here to answer questions about our work.
The CHAmRMAN. Thank you.
Mr. JENKINS. I led the work that did the 2005 survey.
The CHAIRMAN. Ms. Markowitz.
STATEMENT OF DEBORAH MARKOWITZ, VERMONT
SECRETARY OF STATE, MONTPELIER, VT
Ms. MARKOWITZ. Well, I want to beg<strong>in</strong> by thank<strong>in</strong>g you for <strong>in</strong>vit<strong>in</strong>g
me here today.
Vermont is a trade State. You should know, Chairman, that my
family is from Milwaukee. So the Chudnotes from Milwaukee send
their fond regards.
You know, there was a time not long ago when the only people
really concerned about how we ran our elections were those bureaucrats
who actually did the work. We all know that changed <strong>in</strong>
2000 when we saw dramatically how a poorly planned election really
could call <strong>in</strong>to question the legitimacy of our democracy.
I guess my statement today really is that we have an opportunity
to avoid a similar k<strong>in</strong>d of problem <strong>in</strong> the future. You know, there
is no reason that we need to wait for the system to break down <strong>in</strong>
order to th<strong>in</strong>k about ways to fix it.
Accord<strong>in</strong>g to the Census Bureau, we are go<strong>in</strong>g to have a tremendous
ag<strong>in</strong>g of America. I am go<strong>in</strong>g to just give you a few statistics.
There is more <strong>in</strong> my written statement.
But the number of Americans who are' 55 <strong>and</strong> older will nearly
double between 2007 <strong>and</strong> 2030, from 20 percent of the population
to 31 percent. That is tremendous. We don't actually even need to
wait that long to see a real rapid growth <strong>in</strong> what that will mean
for us. By 2015 the number. of Americans ages 85 <strong>and</strong> older is expected
to <strong>in</strong>crease 40 percent.
So we need to be prepared. We need to th<strong>in</strong>k about how we run
elections. Underst<strong>and</strong> that, with medical advances, as people age
they are go<strong>in</strong>g to cont<strong>in</strong>ue to be active, more active than the previous
generation of old folks.
Of course, we also know this older generation, our generationare
a generation of voters <strong>and</strong> they will expect to be able to cont<strong>in</strong>ue
to exercise the franchise. So those of us who are runn<strong>in</strong>g elections
need to th<strong>in</strong>k ahead.
As we plan for future elections, what I would ask this <strong>Committee</strong>
is to keep <strong>in</strong> m<strong>in</strong>d our underly<strong>in</strong>g value that, as a democratic society,
we should facilitate access to vot<strong>in</strong>g the best we can. That
should be our first obligation, is to make sure that people who
want to vote have an opportunity to vote. At the same time, we
have to have <strong>in</strong> place safeguards to ensure its <strong>in</strong>tegrity. So, it is
this balance between access <strong>and</strong> <strong>in</strong>tegrity.
I have got some suggested steps that we take across the country
to prepare for the ag<strong>in</strong>g of America, <strong>and</strong> I would like to just go
through them pretty quickly.

36
One is I th<strong>in</strong>k we have an obligation to make sure that <strong>in</strong> every
State our elderly voters have the option of vot<strong>in</strong>g by mail or by absentee
ballot. It is someth<strong>in</strong>g that you have seen, Senator Smith,
<strong>in</strong> your State as be<strong>in</strong>g a very successful way to reach older voters.
We f<strong>in</strong>d <strong>in</strong> Vermont that is how many of our older voters prefer to
vote. There is no reason why it can't work <strong>in</strong> every State <strong>in</strong> this
country.
We have to ensure that our poll<strong>in</strong>g places are convenient to our
older voters, like they do <strong>in</strong> your State, Senator Kohl, sometimes
hav<strong>in</strong>g poll<strong>in</strong>g places <strong>in</strong> their senior centers. That is a fabulous
idea.
Mak<strong>in</strong>g sure that there is transportation to the poll<strong>in</strong>g places.
That is essential.
We also must reth<strong>in</strong>k our poll<strong>in</strong>g places to make sure that not
only are they convenient for people with disabilities, but we are
th<strong>in</strong>k<strong>in</strong>g about the needs of older Americans.
For example, there needs to be chairs available. Someth<strong>in</strong>g as
simple as chairs, so that when somebody is wait<strong>in</strong>g <strong>in</strong> l<strong>in</strong>e they
don't have to st<strong>and</strong> up. We know that may be one of the most significant
barriers to older folks com<strong>in</strong>g <strong>and</strong> vot<strong>in</strong>g at the poll<strong>in</strong>g
places, not know<strong>in</strong>g how long they are go<strong>in</strong>g to be asked to be on
their feet.
We also have to explore new ways to reach voters who are <strong>in</strong> residential
care facilities to ensure that they are provided an opportunity
to vote, <strong>and</strong> to prevent voter <strong>in</strong>timidation <strong>and</strong> fraud.
One of the th<strong>in</strong>gs that I hear about <strong>in</strong> Vermont is a fear of an
overzealous <strong>and</strong> perhaps over-political activities director <strong>in</strong> a nurs<strong>in</strong>g
home is <strong>in</strong>fluenc<strong>in</strong>g all of the residents to vote <strong>in</strong> a particular
way. We can avoid that. There are th<strong>in</strong>g that we can do today so
that <strong>in</strong> the future we can make sure that there is security <strong>in</strong> that
vot<strong>in</strong>g system <strong>in</strong> our residential care facilities.
F<strong>in</strong>ally, we have to be sure that States that choose to adopt voter
identification requirements do so <strong>in</strong> a way that doesn't disenfranchise
the elderly who no longer have a valid driver's ID license or
government-or other governmental-issued identification. I believe
that is a serious problem, not just <strong>in</strong> Vermont but across the country.
I would like to mention Vermont's approach, some of the th<strong>in</strong>gs
we are do<strong>in</strong>g <strong>in</strong> Vermont to try to get ready for the ag<strong>in</strong>g
Vermonters.
One is we are one of the five States that use the IVS Vote-By-
Phone system to permit voters with disabilities, the elderly <strong>and</strong>
others to vote privately <strong>and</strong> <strong>in</strong>dependently at our poll<strong>in</strong>g place.
With this system voters use a telephone keypad to mark a paper
ballot which is then centrally counted <strong>and</strong> added to the election
count at the end of the night with the rest of the count<strong>in</strong>g of the
ballots.
So far we have deployed this technology <strong>in</strong> our poll<strong>in</strong>g places, but
it has got tremendous opportunity for folks to use at home. There
are some additional security steps that we have to put <strong>in</strong> place <strong>in</strong>
order to fully deploy it so that voters can use the phone at home.
But for an elderly voter, somebody with a disability where they
can't mark their ballot on their own, they shouldn't have to go to
the poll<strong>in</strong>g place to have that privacy <strong>and</strong> <strong>in</strong>dependence <strong>in</strong> their

37
vote that is required under HAVA when there is technology available,
like the vote-by-phone system, to let them have the benefit of
the absentee ballot, but still have the privacy that the technology
<strong>in</strong> a poll<strong>in</strong>g place would offer. So we are hop<strong>in</strong>g that <strong>in</strong> the future,
by the time we have got this demographic, we will have our voteby-phone
ready.
F<strong>in</strong>ally, mobile poll<strong>in</strong>g <strong>in</strong> the 2008 election we plan to implement.
It is a pilot project where tra<strong>in</strong>ed election workers will be
tak<strong>in</strong>g ballots <strong>in</strong>to our nurs<strong>in</strong>g homes, hav<strong>in</strong>g an election day <strong>in</strong>
the nurs<strong>in</strong>g homes, <strong>and</strong> assist<strong>in</strong>g people who need assistance <strong>in</strong> bipartisan
pairs. It is that pair<strong>in</strong>g of election workers that will prevent
collusion, prevent fraud, <strong>and</strong> ensure that people <strong>in</strong> residential
facilities have the opportunity to vote without the opportunity for
fraud.
So I thank you very much <strong>and</strong> I am happy to take questions
later.
[The prepared statement of Ms. Markowitz follows:]

38
U.S. <strong>Senate</strong> <strong>Special</strong> <strong>Committee</strong> on Ag<strong>in</strong>g
Thmrsday, Jnnay 31, 2008 (70:30 AM)
Good morn<strong>in</strong>g. Thank you Chairman Kohl <strong>and</strong> committee members for the opportunity
to offer some <strong>in</strong>sights on the affect of the ag<strong>in</strong>g population <strong>in</strong> the United States on the
adm<strong>in</strong>istration of elections.
I am Vermont Secretary of State Deb Markowitz, also Immediate Past President of the
National Association of Secretaries of State (NASS). I have served as Vermont's
Secretary of State for ten years, <strong>and</strong> I also serve on the Election Assistance Commission's
Board of Advisors. Last year I had the pleasure of participat<strong>in</strong>g <strong>in</strong> a McGeorge Law
Review Symposium address<strong>in</strong>g the <strong>challenges</strong> of vot<strong>in</strong>g as people age.
There was a time not too long ago when the only people who spent much time th<strong>in</strong>k<strong>in</strong>g
about the <strong>challenges</strong> of runn<strong>in</strong>g our nation's elections were the bureaucrats charged with
elections adm<strong>in</strong>istration. But that all changed <strong>in</strong> November of 2000 when the country
experienced a dramatic example of how a poorly managed election could call <strong>in</strong>to
question the legitimacy of our democracy. S<strong>in</strong>ce that time our electoral system has
undergone close scrut<strong>in</strong>y result<strong>in</strong>g <strong>in</strong> public debate, judicial decisions, federal <strong>and</strong> state
legislation <strong>and</strong> unprecedented <strong>in</strong>vestments <strong>in</strong> new technology. One of the lessons we
have learned from this experience is that it is not acceptable to wait until a system breaks
down before we fix it-especially if it <strong>in</strong>volves the fundamental expression of our
democracy - vot<strong>in</strong>g. That is why it is vitally important that we anticipate <strong>and</strong> plan for the
<strong>challenges</strong> our country's vot<strong>in</strong>g systems will face as our nation ages.
The ag<strong>in</strong>g of America. Accord<strong>in</strong>g to the United States Census Bureau, the number of
Americans who are 55 <strong>and</strong> older will nearly double between 2007 <strong>and</strong> 2030, from 60
million (or 20 percent of the population) to 107.6 million (31 percent of the population.)
By 2030, there will be 70.3 million Americans who are 65 <strong>and</strong> older, nearly two times the
34.8 million alive today. This demographic bloc will make up 20% of the overall
population. We don't even have to wait that long to see the effect of the "ag<strong>in</strong>g of
America;" between 2007 <strong>and</strong> 2015, the number of Americans ages 85 <strong>and</strong> older is
expected to <strong>in</strong>crease by 40 percent.
With medical advances not only are Americans liv<strong>in</strong>g longer, but more will be healthy
<strong>and</strong> active. The National Institute on Ag<strong>in</strong>g has reported that the rates of disability <strong>and</strong>
functional limitation among the older population have decl<strong>in</strong>ed substantially over the past
two decades with only one-<strong>in</strong>-five older Americans report<strong>in</strong>g a chronic disability. That
be<strong>in</strong>g said, we can expect an <strong>in</strong>crease <strong>in</strong> long term care needs as more people will live
long enough to develop age-related conditions such as dementia. It is projected that
among Americans who reach age 65, 69 percent will need long-term care at some time <strong>in</strong>
their lives. Indeed, the Congressional Research Service has reported that "[t]wo-thirds of
the people receiv<strong>in</strong>g long-term care are over 65, an age group expected to double by

2030. After 2030, even faster growth rates are anticipated for people over 85, the age
group most likely to need care."
39
As Americans age we do not expect to see a decl<strong>in</strong>e <strong>in</strong> their <strong>in</strong>terest <strong>in</strong> participat<strong>in</strong>g <strong>in</strong>
civic life by vot<strong>in</strong>g. People age 65 <strong>and</strong> older consistently vote <strong>in</strong> higher proportions than
other age groups. In 2004, 69 percent of the older population voted, compared with 52
percent of those ages 25-44. In 2004, of all the votes cast, 19 percent were by people age
65 <strong>and</strong> older. By the 2040 presidential election, people 65 <strong>and</strong> older are projected to cast
41 percent of all of the votes. This means that as we plan for future elections we must
consider the unique <strong>opportunities</strong> <strong>and</strong> <strong>challenges</strong> that will be presented by the ag<strong>in</strong>g of
America.
Plann<strong>in</strong>g for the future. With more Americans liv<strong>in</strong>g longer the challenge of meet<strong>in</strong>gthe
civic needs of older people must be addressed by the <strong>in</strong>dividuals <strong>and</strong> <strong>in</strong>stitutions that
serve this grow<strong>in</strong>g population, <strong>and</strong> by the <strong>in</strong>dividuals <strong>and</strong> <strong>in</strong>stitutions that run our
elections. As we do this we must rema<strong>in</strong> clear about our underly<strong>in</strong>g values: that <strong>in</strong> a
democratic society we should facilitate access to vot<strong>in</strong>g while ensur<strong>in</strong>g that there are
safeguards <strong>in</strong> place to preserve its <strong>in</strong>tegrity.
Maximiz<strong>in</strong>g access to vot<strong>in</strong>g while protect<strong>in</strong>g the <strong>in</strong>tegrity of the election is not as easy
as it sounds. There is a varied body of state <strong>and</strong> federal laws designed to ensure vot<strong>in</strong>g
rights, discourage voter suppression <strong>and</strong> prevent voter.fraud; <strong>and</strong> every state has its own
unique history, tradition <strong>and</strong> legal structure related to the adm<strong>in</strong>istration of elections
with<strong>in</strong> its jurisdiction.
It is important to remember that the issues that arise with ag<strong>in</strong>g voters must be addressed
with<strong>in</strong> the broader political context. Policies that balance the tension between <strong>in</strong>creas<strong>in</strong>g
access <strong>and</strong> preserv<strong>in</strong>g <strong>in</strong>tegrity are hotly debated. We see this particularly as applied to
such issues as voter registration reforms, the need for voter identification, <strong>and</strong> technology
that will permit all voters to cast a private <strong>and</strong> <strong>in</strong>dependent vote. Also, the tension
between vot<strong>in</strong>g access <strong>and</strong> <strong>in</strong>tegrity raise unique <strong>challenges</strong> when applied to people who
need assistance to vote, who are under guardianship or who have cognitive impairment,
as well as to those who no longer have current identification <strong>and</strong> to those who may not
have easy access to the poll<strong>in</strong>g place.
Recommendations. There are steps we can take <strong>in</strong> our states to prepare for the ag<strong>in</strong>g of
America.
1. We must make sure that across the country elderly voters have the option-of vot<strong>in</strong>g by
absentee ballot or by mail.
2. We must ensure that our poll<strong>in</strong>g places are convenient to our oldervoters, perhaps by
plac<strong>in</strong>g poll<strong>in</strong>g places <strong>in</strong> senior centers or by offer<strong>in</strong>g public transportation to the polls.
3. We must make our poll<strong>in</strong>g places easier for the elderly to navigate by hav<strong>in</strong>g clear,
easy to read signs <strong>and</strong> chairs available to make it easier for elders to "st<strong>and</strong>" <strong>in</strong> l<strong>in</strong>e..

40
4. We must cont<strong>in</strong>ue our efforts to develop vot<strong>in</strong>g technology that is easy to use to permit
elderly voters to cont<strong>in</strong>ue to vote privately <strong>and</strong> <strong>in</strong>dependently even as they have a harder
time read<strong>in</strong>g <strong>and</strong> writ<strong>in</strong>g.
5. We must explore new ways to reach voters who are <strong>in</strong> residential care facilities to
ensure that they are provided an opportunity to vote, <strong>and</strong> to prevent voter <strong>in</strong>timidation or
fraud.
6. We must be sure that states that choose to adopt voter identification requirements do
so <strong>in</strong> a way that does not disenfranchise the elderly who no longer have a valid drivers
license or other government issued identification.
Vermont's approach. In Vermont we are address<strong>in</strong>g the challenge of the ag<strong>in</strong>g
population <strong>in</strong> a variety of ways.
1. Vote-by-phone technology. We use the IVS Vote-By-Phone system to permit voters
with disabilities, the elderly <strong>and</strong> others to vote privately <strong>and</strong> <strong>in</strong>dependently at our poll<strong>in</strong>g
places. This system permits a voter to use the telephone keypad to mark a paper ballot
which is pr<strong>in</strong>ted out <strong>in</strong> our Elections Center, <strong>and</strong> which can then be counted with the rest
of the ballots on Election Day. Although we have so far only deployed this vot<strong>in</strong>g option
<strong>in</strong> our poll<strong>in</strong>g places it has great potential for use by older <strong>and</strong> disabled voters who may
wish to vote at home, but who cannot privately <strong>and</strong> <strong>in</strong>dependently mark a paper ballot.
2. Mobile poll<strong>in</strong>g. In the 2008 general election we plan to implement a mobile poll<strong>in</strong>g
project <strong>in</strong> which tra<strong>in</strong>ed election workers will br<strong>in</strong>g ballots to residential care facilities
prior to the election to permit eligible residents to register <strong>and</strong> vote. Residents who
cannot vote <strong>in</strong>dependently will be offered assistance from bipartisan pairs of election
workers who have been tra<strong>in</strong>ed to work with elderly voters, <strong>and</strong> <strong>in</strong> particular, voters who
may have some cognitive impairment. We will be partner<strong>in</strong>g with Dr. Jason Karlawish,
University of Pennsylvania Department of Medic<strong>in</strong>e, Geriatrics Division; Richard J.
Bonnie, John S. Battle Professor of Law, University of Virg<strong>in</strong>ia; <strong>and</strong> Charles P. Sabat<strong>in</strong>o,
Director of the American Bar Association's Commission on Law <strong>and</strong> Ag<strong>in</strong>g to pilot, test
<strong>and</strong> measure the success of mobile poll<strong>in</strong>g <strong>in</strong> Vermont. Mobile poll<strong>in</strong>g has tremendous
potential to enable residents of nurs<strong>in</strong>g homes, assisted liv<strong>in</strong>g facilities <strong>and</strong> other
residential care facilities to freely exercise their rights to vote while m<strong>in</strong>imiz<strong>in</strong>g risk of
voter <strong>in</strong>timidation <strong>and</strong> fraud.
Conclusion. In our states <strong>and</strong> as a nation we must be proactive to ensure that we do not
shut our older Americans out of the vot<strong>in</strong>g process. I thank this committee for tak<strong>in</strong>g the
time to consider how our election laws <strong>and</strong> practices must change <strong>and</strong> adapt to ensure
that <strong>in</strong> the future we are prepared for this new challenge.

41
The CHAIRMAN. Thank you very much.
Mr. Waterstone.
STATEMENT OF MICHAEL WATERSTONE, ASSOCIATE
PROFESSOR OF LAW, LOYOLA LAW SCHOOL, LOS ANGELES, CA
Mr. WATERSTONE. Mr. Chairman, thank you for <strong>in</strong>vit<strong>in</strong>g me.
Vot<strong>in</strong>g is a huge process, rang<strong>in</strong>g from voter registration to
count<strong>in</strong>g. This morn<strong>in</strong>g I will be talk<strong>in</strong>g about one part of that
process: <strong>challenges</strong> faced by older voters when they are actually
vot<strong>in</strong>g.
I will be discuss<strong>in</strong>g older voters <strong>and</strong> voters with disabilities more
or less together. These groups are l<strong>in</strong>ked. As the population ages,
more people develop mobility, cognitive, <strong>and</strong> manual dexterity impairments.
In brief, I will suggest that for older voters with these types of
impairments the way that we have adm<strong>in</strong>istered elections has
cheapened their vot<strong>in</strong>g experience. This has occurred both at the
poll<strong>in</strong>g place <strong>and</strong> with absentee vot<strong>in</strong>g.
I will conclude by discuss<strong>in</strong>g how we can create a better vot<strong>in</strong>g
experience for these voters <strong>in</strong> the 2008 election <strong>and</strong> beyond.
Our goal must be that these voters are treated with equal dignity
<strong>in</strong> the vot<strong>in</strong>g process, that they get assistance when it is truly desired,
but otherwise get to vote secretly <strong>and</strong> <strong>in</strong>dependently like
other citizens, either at the poll<strong>in</strong>g place or by absentee ballot.
We don't need to look any further than next Tuesday to see the
real life significance of this issue. A huge number of voters, <strong>in</strong>clud<strong>in</strong>g
older voters, will go to the polls on Super Tuesday, or have already
done so via absentee-vot<strong>in</strong>g. Why?
The most straightforward answer is to help pick a President. We
should have procedures that protect accurate vot<strong>in</strong>g without fraud
or undue <strong>in</strong>fluence.
But these people also vote to demonstrate their membership <strong>in</strong>
the community. In meet<strong>in</strong>g the <strong>challenges</strong> faced by older voters we
need to focus on both of these parts of the right to vote.
What are the vot<strong>in</strong>g experiences of older voters who may have
physical or mental impairment? At the poll<strong>in</strong>g place, those who use
wheelchairs may encounter high door thresholds, ramps with steep
slopes, <strong>and</strong> a lack of accessible park<strong>in</strong>g.
More than 15 years after the passage of the Americans with Disabilities
Act, <strong>in</strong>accessibility persists. Voters with various types of
impairments who are able to get <strong>in</strong>side the poll<strong>in</strong>g place may not
be able to cast a secret <strong>and</strong> <strong>in</strong>dependent ballot.
Older voters with manual dexterity impairments can have trouble
us<strong>in</strong>g paper ballots. Voters with cognitive or vision impairments
may have difficulty read<strong>in</strong>g. certa<strong>in</strong> ballot, formats.
The Help America Vote Act, which explicitly requires secret <strong>and</strong>
<strong>in</strong>dependent for voters with disabilities, will help older voters. But
although HAVA is still relatively new <strong>and</strong> more study is needed,
<strong>in</strong>itial reports suggest that, like the ADA's accessibility requirements,
implementation <strong>and</strong> enforcement has been slow <strong>and</strong> uneven.
What about absentee ballot vot<strong>in</strong>g? While this can be a useful
tool to br<strong>in</strong>g older voters <strong>in</strong>to the vot<strong>in</strong>g process, it is not a substitute
for accessible poll<strong>in</strong>g places, at least to the extent they exist

42
for other voters. When people who would otherwise travel to the
poll<strong>in</strong>g place are effectively forced to vote <strong>in</strong> private, it sends a
harmful signal about their full <strong>in</strong>clusion <strong>in</strong> the community.
As currently practiced, absentee ballot<strong>in</strong>g is not fully accessible,
mean<strong>in</strong>g that older voters with impairments may have to rely on
the help of others. This can be helpful <strong>and</strong> we should establish
guidel<strong>in</strong>es for appropriate assistance, but it can also <strong>in</strong>crease the
potential for fraud, coercion, or unwarranted capacity assessments.
This is not respectful of the equal dignity of older voters.
What can be done? I actually believe we are at a po<strong>in</strong>t where our
Federal laws are fairly strong, at least on paper. With aggressive
implementation <strong>and</strong> enforcement, comb<strong>in</strong>ed with some law reform
<strong>and</strong> State creativity, great strides can be made. Let me offer three
concrete suggestions, although I have given more <strong>in</strong> my written
testimony.
First, the secret <strong>and</strong> <strong>in</strong>dependent ballot provisions of the Help
America Vote Act must be aggressively enforced. The primary
means of enforcement is with the Department of Justice which has
not made this a priority. I support amend<strong>in</strong>g HAVA to <strong>in</strong>clude a
private right of action, or support<strong>in</strong>g judicial construction of one.
Second, we need heightened enforcement of the ADA's requirement
that poll<strong>in</strong>g places be accessible. It is unacceptable that so
many years after the ADA's passage there are still violations.
Given recent Supreme Court decisions, ADA enforcement has become
more complicated but this must become a priority, ideally
with public enforcement authorities tak<strong>in</strong>g the lead.
Third, we should support improved practices on absentee vot<strong>in</strong>g.
Absentee ballot<strong>in</strong>g should be done <strong>in</strong> a way that supports secret
<strong>and</strong> <strong>in</strong>dependent vot<strong>in</strong>g to the greatest extent possible, affirmatively
provid<strong>in</strong>g people appropriate assistance, yet also m<strong>in</strong>imiz<strong>in</strong>g
chances of undue coercion <strong>and</strong> error.
Suggestions for reform have <strong>in</strong>cluded eas<strong>in</strong>g the application process,
more accessible ballots-<strong>in</strong>clud<strong>in</strong>g HTML ballots <strong>and</strong> phone
vot<strong>in</strong>g, as Secretary Markowitz has discussed-guidance for caregivers,
<strong>and</strong> mobile poll<strong>in</strong>g.
I thank you aga<strong>in</strong> for the fastest 5 m<strong>in</strong>utes of my life <strong>and</strong> I look
forward to your questions.
[The prepared statement of Mr. Waterstone follows:]

43
TESTIMONY
OF
PROFESSOR MICHAEL E. WATERSTONE
OF
LOYOLA LAW SCHOOL (LOS ANGELES)
BEFORE THE
SENATE SPECIAL COMMITTEE ON AGING
January 31, 2008

44
Mr. Chairman <strong>and</strong> dist<strong>in</strong>guished members of the <strong>Special</strong> <strong>Committee</strong> on Ag<strong>in</strong>g,
thank you for <strong>in</strong>vit<strong>in</strong>g me to speak here today. My name is Michael Waterstone. I am a
professor at Loyola Law School <strong>in</strong> Los Angeles. I am also a Commissioner on the
American Bar Association's Commission on Physical <strong>and</strong> Mental Disability. Along with
several of my fellow witnesses at today's hear<strong>in</strong>g, I participated <strong>in</strong> the Symposium on
Facilitat<strong>in</strong>g Vot<strong>in</strong>g as People Age convened by Borchard Foundation Center on Law <strong>and</strong>
Ag<strong>in</strong>g, the American Bar Association, <strong>and</strong> McGeorge Law School. My comments
represent my own personal views <strong>and</strong> are not necessarily those of Loyola Law School or
any other organization with which I am affiliated. 1
I will be testify<strong>in</strong>g today as to <strong>challenges</strong> faced by elderly voters <strong>and</strong> voters with
disabilities when they vote. I will conclude by suggest<strong>in</strong>g how vigorous enforcement <strong>and</strong>
implementation of federal laws, comb<strong>in</strong>ed with some law reform, can <strong>and</strong> should create
more equal vot<strong>in</strong>g <strong>opportunities</strong> for older voters <strong>and</strong> voters with disabilities <strong>in</strong> the
election of 2008 <strong>and</strong> beyond. I note that I will be discuss<strong>in</strong>g both of these groups - older
voters <strong>and</strong> voters with disabilities - together <strong>in</strong> my testimony. Although not identical,
these two groups are very much l<strong>in</strong>ked. As our population ages, 2 more people are
<strong>in</strong>creas<strong>in</strong>gly likely to need mobility assistance, have cognitive impairments, <strong>and</strong> have
decl<strong>in</strong><strong>in</strong>g vision <strong>and</strong> hear<strong>in</strong>g. As I will discuss below, many of the barriers that have
existed <strong>in</strong> vot<strong>in</strong>g exclude people based on these types of impairments. I also note that
although vot<strong>in</strong>g is a comprehensive process rang<strong>in</strong>g from registration to vote tabulation,
my testimony today will focus primarily on only one stage of that process: the actual act
of vot<strong>in</strong>g. 3
This issue has real <strong>and</strong> immediate importance. This Tuesday, February 5th, 2008
is an important day <strong>in</strong> our democracy. In what has been termed "Super Tuesday,"
"Super-Duper Tuesday," <strong>and</strong> even "Tsunami Tuesday," large numbers of people are
expected to go the polls <strong>and</strong> vote, or have already done so us<strong>in</strong>g some method of absentee
vot<strong>in</strong>g. Why do they do so?
The most straightforward answer is to help pick the next President of the United
States. Accord<strong>in</strong>gly, one important vot<strong>in</strong>g policy is to make sure that their vote is
' My writ<strong>in</strong>gs on this topic, from which much of this testimony is drawn, <strong>in</strong>clude Constitutional <strong>and</strong>
Statutory Vot<strong>in</strong>g Rightsfor People with Disabilities, 14 Stan. L. & Policy Rev. 353 (2003); Civil Rights <strong>and</strong>
the Adm<strong>in</strong>istration of Elections - Toward Secret Ballots <strong>and</strong> Poll<strong>in</strong>g Place Access, 8 J. of Gender, Race, &
Justice 102 (2004); Lane, Fundamental Rights, <strong>and</strong> Vot<strong>in</strong>g, 56 Ala. L. Rev. 793 (2005); <strong>and</strong> The Untold
Story of the Rest of the Americans with Disabilities Act, , 58 V<strong>and</strong>. L. Rev. 1807 (2005).
2 Between 2000 <strong>and</strong> 2030, the U.S. population aged sixty-five or older is expected to more than double
from 35 million to 71.5 million. See Adm<strong>in</strong>. On Ag<strong>in</strong>g, U.S. Dep't of Health <strong>and</strong> Human Servs., A Profile
of Older Americans: 2006 3 (2006), http://www.aoa.govIPROF/Statisticslprofile/2006/2006profile.pdf.
3Therefore, other important legal <strong>and</strong> policy issues impact<strong>in</strong>g the rights of older voters, <strong>in</strong>clud<strong>in</strong>g state
statutes that disenfranchise various categories of people with disabilities, see, eg., Doe v. Rowe, 156
F.Supp. 2d 35 (D. Me. 2001) (hold<strong>in</strong>g that Ma<strong>in</strong>e law disenfranchis<strong>in</strong>g any <strong>in</strong>dividual under guardianship
violated Equal Protection Clause, ADA, <strong>and</strong> Section 504 ofthe Rehabilitation Act), <strong>and</strong> capacity
assessments that are made by care-givers who are not qualified nor legally empowered to make them, see
N<strong>in</strong>a A. Kohn, Preserv<strong>in</strong>g Vot<strong>in</strong>g Rights <strong>in</strong> Long-Term Care Institutions: Facilitat<strong>in</strong>g Resident Vot<strong>in</strong>g
While Ma<strong>in</strong>ta<strong>in</strong><strong>in</strong>g Election Integrity, 38 McGeorge Law Review 1079-98 (2007), are not the ma<strong>in</strong> focus of
my testimony.

45
accurately conveyed <strong>and</strong> counted, m<strong>in</strong>imiz<strong>in</strong>g the chance of fraud, coercion, or mistake.
But the strict <strong>in</strong>strumental act of choos<strong>in</strong>g an elected official is unlikely to be the only
reason that people vote. Even after the Bush v. Gore election <strong>in</strong> 2000, it is
extraord<strong>in</strong>arily unlikely that one vote will ever make the difference <strong>in</strong> a large election. 4
So why do people turn out to vote <strong>in</strong> large numbers? Apart from their <strong>in</strong>strumental act of
try<strong>in</strong>g to choose elected officials <strong>and</strong>.policies, vot<strong>in</strong>g is a way by which people assert
their place <strong>in</strong> the community, mak<strong>in</strong>g a symbolic statement that they belong <strong>and</strong> have a
voice <strong>in</strong> the democratic process. 5 For groups like older voters that may be socially
isolated <strong>and</strong> marg<strong>in</strong>alized, this is exceptionally important..
When th<strong>in</strong>k<strong>in</strong>g about <strong>challenges</strong> that any group of voters face, it is important to
focus on protect<strong>in</strong>g a person's actual choice as well as vot<strong>in</strong>g's more expressive <strong>and</strong>
symbolic elements. All too often, older voters with cognitive <strong>and</strong> physical impairments
have not had these two vital elements of the right to vote protected.
Vot<strong>in</strong>g Experiencesfor Older Voters <strong>and</strong> Voters with Disabilities
Vot<strong>in</strong>g at the Poll<strong>in</strong>g Place
Many older voters <strong>and</strong> voters with disabilities want to vote <strong>in</strong> the poll<strong>in</strong>g place <strong>in</strong>
the same way as their fellow citizens. Yet historically, they have had problems do<strong>in</strong>g so.
Despite federal laws <strong>in</strong>clud<strong>in</strong>g the Vot<strong>in</strong>g Rights Act of 1965 (as amended <strong>in</strong> 1982),6 the
Vot<strong>in</strong>g Accessibility for the Elderly <strong>and</strong> H<strong>and</strong>icapped Act, 7 Section 504 of Rehabilitation
Act of 1973,8 <strong>and</strong> the Americans with Disabilities Act (ADA), 9 voters who use
wheelchairs have encountered accessibility barriers at poll<strong>in</strong>g places, <strong>in</strong>clud<strong>in</strong>g high door
thresholds, ramps with steep slopes, <strong>and</strong> a lack of accessible park<strong>in</strong>g.1 0 Older voters <strong>and</strong>
voters with disabilities who are able to actually enter the poll<strong>in</strong>g place have seen their
4
See Samuel Issacharoff, Private Parties With Public Purposes: Political Parties, Associational Freedoms,
<strong>and</strong> Partisan Competition, 101 Colum. L. Rev. 274, 306 n 17 (2001) ("The wonder of it all is that people
do actually turn out <strong>in</strong> massive numbers <strong>in</strong> spite of the unlikelihood that their vote will have any
<strong>in</strong>strumental value.").
5 See Adam W<strong>in</strong>kler, Expressive Vot<strong>in</strong>g, 68 N.Y.U. L. Rev. 330, 368 (1993) ("[By vot<strong>in</strong>g], the <strong>in</strong>dividual
says essentially, 'I am a member of the American community.' Through participation itself, the voter
expresses an identification with the greater community <strong>and</strong> reveals her attachments to <strong>and</strong> associations with
it. In this way, the act of vot<strong>in</strong>g is the <strong>in</strong>dividual's alignment to the greater society; it is the method by
which the <strong>in</strong>dividual 'signs' her name to the social contract <strong>and</strong> becomes herself part of the collective selfconsciousness.").
642 U.S.C. § 1973aa-6 (requir<strong>in</strong>g, <strong>in</strong>ter alia, that a voter who requires assistance to vote by reason of
bl<strong>in</strong>dness or disability may be given assistance by a person of the voter's choice).
7 42 U.S.C. § 1973ee (provid<strong>in</strong>g that state <strong>and</strong> state political subdivisions must assure that poll<strong>in</strong>g places
used <strong>in</strong> federal elections are accessible).
' 29 U.S.C. § 794 (provid<strong>in</strong>g that entities that receive federal f<strong>in</strong>ancial assistance cannot discrim<strong>in</strong>ate on the
basis of disability).
9 Title 11 of the ADA, 42 U.S.C. § 12132, provides that public entities cannot discrim<strong>in</strong>ate aga<strong>in</strong>st qualified
<strong>in</strong>dividuals with disabilities on the basis of disability.
'° See, erg, U.S. Government Accountability Office, Voters with Disabilities - Access to Poll<strong>in</strong>g Places
<strong>and</strong> Alternative Vot<strong>in</strong>g Methods 7 (Oct. 2001) (not<strong>in</strong>g that 84% of poll<strong>in</strong>g places visited <strong>in</strong> study had at
least one impediment), htt://www.e.eao.ov/new.items/d0 1l7.pdf.
2

46
right to cast a secret <strong>and</strong> <strong>in</strong>dependent ballot compromised." People with manual
dexterity impairments can have trouble us<strong>in</strong>g vot<strong>in</strong>g mach<strong>in</strong>es that require them to mark
a paper ballot with a pen or other writ<strong>in</strong>g device. People with cognitive <strong>and</strong> vision
impairments may have difficulty read<strong>in</strong>g certa<strong>in</strong> ballot formats. And people with hear<strong>in</strong>g
impairments may not be able to hear or underst<strong>and</strong> <strong>in</strong>structions from poll workers. All of
these impairments are common to older voters. Until recently, voters fall<strong>in</strong>g <strong>in</strong>to all of
these categories have been directed to vote with the assistance of a poll worker or friend
at the poll<strong>in</strong>g place. While this can be helpful to an elderly voter who truly desires
assistance, it can cheapen the vot<strong>in</strong>g experience for voters who would rather vote like
everyone else - secret <strong>and</strong> unassisted.1 2
Absentee Vot<strong>in</strong>g
The use of absentee ballot<strong>in</strong>g has exp<strong>and</strong>ed greatly <strong>in</strong> the last four decades.' 3
Undoubtedly, this provides an opportunity to reach elderly voters <strong>and</strong> voters with
disabilities for whom it is difficult or impossible to get to the polls on Election-Day. Yet
to the extent that a state still offers some of its citizens an opportunity to vote on Election
Day,' 4 it is unacceptable to use absentee vot<strong>in</strong>g as a substitute for accessible poll<strong>in</strong>g
places. When older voters are directed to vote at home <strong>in</strong>stead of go<strong>in</strong>g to the poll<strong>in</strong>g
place with their fellow citizens, it sends a harmful message about their full citizenship
<strong>and</strong> <strong>in</strong>clusion <strong>in</strong> the community. Moreover, absentee ballots themselves are usually
<strong>in</strong>accessible, mean<strong>in</strong>g that voters with vision, cognitive, or manual.dexterity impairments
may be required to rely on the assistance of another party when complet<strong>in</strong>g their ballot. 5
This <strong>in</strong>creases the potential for fraud or coercion, an especially important concern <strong>in</strong> the
<strong>in</strong>stance of elderly voters <strong>in</strong> long term care facilities who may be reliant on others for
contact with the outside community. 1 6 F<strong>in</strong>ally, absentee ballots typically have to be
received before Election Day, which means that voters can miss the opportunity to base
their decisions on late-break<strong>in</strong>g developments. ' 7 In short, while absentee vot<strong>in</strong>g can be a
useful tool to <strong>in</strong>crease the capability of elderly voters with cognitive or physical
impairments to participate <strong>in</strong> the electoral process, as currently practiced it is not a
panacea.
" id. at 7 ("[T~he types <strong>and</strong> arrangement of vot<strong>in</strong>g equipment used may ... pose <strong>challenges</strong> for people with
mobility, vision, or dexterity impairments).
2 As Jim Dickson, the President of the American Association of Disabilities, who is bl<strong>in</strong>d, expla<strong>in</strong>ed it:
"Twice <strong>in</strong> Massachusetts <strong>and</strong> once <strong>in</strong> California, while rely<strong>in</strong>g on a poll worker to cast my ballot, the poll
worker attempted to change my m<strong>in</strong>d about whom I was vot<strong>in</strong>g for. I held firm, but to this day I really do
not know if they cast my ballot accord<strong>in</strong>g to my wishes. To voters with disabilities, there is always some
level of uncerta<strong>in</strong>ty when another person marks your ballot for you." James C. Dickson, Testimony Before
the N.Y. City Council Comm. On Mental Health, Mental Retardation, Alcoholism, Drug Abuse, <strong>and</strong>
Disability Services (July 22, 2002).
13 See Daniel P. Tokaji <strong>and</strong> Ruth Colker, Absentee Vot<strong>in</strong>g by People with Disabilities: Promot<strong>in</strong>g Access
<strong>and</strong> Integrity, 38 McGeorge L. Rev. 1015, 1020 (2007).
'' The state of Oregon has abolished prec<strong>in</strong>ct-based vot<strong>in</strong>g <strong>and</strong> moved entirely to an all-mail vot<strong>in</strong>g system.
5 See Tokaji <strong>and</strong> Colker, supra note 13, at 1036-1040.
6 See Kohn, supra note 3.
7 For example, <strong>in</strong> the California gubernatorial recall election <strong>in</strong> 2003, there were late-break<strong>in</strong>g revelations
relat<strong>in</strong>g to alleged sexual harassment by one of the c<strong>and</strong>idates that were not publicized until just before
Election Day, but after the absentee ballots were due.

Exist<strong>in</strong>g Law
47
Why, despite several federal laws that address this topic, have the rights of older
voters <strong>and</strong> people with disabilities been allowed to be degraded? I believe there are
several reasons. First, until the recent passage of the Help America Vote Act, no federal
statute explicitly recognized the right to a secret <strong>and</strong> <strong>in</strong>dependent vote. Courts have split
on whether the ADA m<strong>and</strong>ates secret <strong>and</strong> <strong>in</strong>dependent vot<strong>in</strong>g for people with
disabilities) 8 Although Title 11 of the ADA requires programs that are run by public
officials to be accessible when viewed <strong>in</strong> their entirety (which should translate <strong>in</strong>to
accessible poll<strong>in</strong>g places), the ability of private litigants to enforce these provisions have
been undercut by st<strong>and</strong><strong>in</strong>g problems <strong>and</strong> the Court's sovereign immunity decisions.' 9
Nor have public enforcement authorities shown leadership on this issue. 2 ° The
comb<strong>in</strong>ation leads to chronic underenforcement.
The most recent law impact<strong>in</strong>g these issues is the Help America Vote Act
(HAVA). 2 1 HAVA is unique <strong>in</strong> explicitly requir<strong>in</strong>g that people with disabilities be
provided "the same opportunity for access <strong>and</strong> participation (<strong>in</strong>clud<strong>in</strong>g privacy <strong>and</strong>
<strong>in</strong>dependence) as other voters." 22 HAVA's provisions regard<strong>in</strong>g accessible poll<strong>in</strong>g places
are less concrete; rather than any specific requirements, it makes grant funds available for
the purpose of mak<strong>in</strong>g poll<strong>in</strong>g places more accessible. 23 And HAVA does not directly
apply to absentee vot<strong>in</strong>g.
Mov<strong>in</strong>g Forward: Opportunities to Exp<strong>and</strong> Access
Look<strong>in</strong>g ahead, there are <strong>opportunities</strong> to exp<strong>and</strong> more mean<strong>in</strong>gful access to
vot<strong>in</strong>g older voters. In do<strong>in</strong>g so, we need to be m<strong>in</strong>dful of the important values of
ensur<strong>in</strong>g that the vot<strong>in</strong>g experiences of elderly voters who may have cognitive or physical
impairments - particularly the ability to vote secretly <strong>and</strong> <strong>in</strong>dependently, <strong>and</strong> <strong>in</strong> a poll<strong>in</strong>g
place if they so choose - are protected, as well as the importance of <strong>in</strong>tegrity <strong>and</strong>
accuracy <strong>in</strong> elections. I offer several suggestions <strong>in</strong> this effort.
18 Compare American Association of People with Disabilities v. Hood, 310 F.Supp.2d 1226 (M.D. Fla.
2004) (hold<strong>in</strong>g that Florida had violated Title 11 by purchas<strong>in</strong>g vot<strong>in</strong>g system that was not readily
accessible to people with disabilities without third-party assistance); American Association of People with
Disabilities v. Shelley, 324 F.Supp.2d 1120 (C.D. Cal. 2004) (hold<strong>in</strong>g that Title 11 does not provide the
right to a secret <strong>and</strong> <strong>in</strong>dependent vote for people with disabilities). The Department of Justice has taken the
position that curb-side vot<strong>in</strong>g, whereby a poll<strong>in</strong>g place worker will br<strong>in</strong>g a vot<strong>in</strong>g mach<strong>in</strong>e curbside for
voters who cannot get <strong>in</strong>to an <strong>in</strong>accessible poll<strong>in</strong>g place, does not constitute discrim<strong>in</strong>ation under the ADA.
See DOJ Letter of F<strong>in</strong>d<strong>in</strong>g #18 (Aug. 25, 1993), httn://www.usdoi.gov/crt/foia/lofcO I 8.txt; see also DOJ
Letter ofF<strong>in</strong>d<strong>in</strong>g#21 (Sept. 10, 1993), htr://www.usdoi.govfcrt/foia/lofcO2l .tt.
See ,9 Waterstone, UntoldStory, supra note 1, at 1855-56, 1860-65.
20 Id at 1865-67. It should be noted that the Department of Justice has promulgated a checklist for poll<strong>in</strong>g
places relat<strong>in</strong>g to ADA compliance. See htto:/Hwww.usdoi.aov/crt/ada/vot<strong>in</strong>gchecklist.htm.
42 U.S.C. §§ 15301-15545.
22Id at § 15481(a)(3)(B).
23 Id at § 15421 (b).

48
Vigorous Enforcement of HAVA's Secret <strong>and</strong> Independent Vot<strong>in</strong>g Reguirement
On paper, HAVA is a strong law. Although more study is needed, the exist<strong>in</strong>g
reports I have seen <strong>in</strong>dicate that compliance is a problem. A report commissioned by the
Electoral Assistance Commission <strong>in</strong> 2004 found that less than a quarter of poll<strong>in</strong>g places
allowed voters with visual impairments to cast a secret ballot. 24 Although these numbers
had improved by 2006,25 these patterns are troubl<strong>in</strong>g, particularly when seen <strong>in</strong> the light
of systemic underenforcement of predecessor disability rights laws, especially as they
relate to vot<strong>in</strong>g. 2 6 HAVA's enforcement mechanisms-are weak: it provides for no private
right of action for <strong>in</strong>dividuals who are denied their right to a secret <strong>and</strong>.<strong>in</strong>dependent
ballot, <strong>and</strong> the Department of Justice (DOJ) has opposed a judicial recognition of one. 27
The DOJ does have the power to br<strong>in</strong>g "civil actions aga<strong>in</strong>st any State or jurisdiction <strong>in</strong>
an appropriate United States District Court for such declaratory <strong>and</strong> <strong>in</strong>junctive relief as
may be necessary," 2 8 although it appears the it has only brought two such cases (<strong>in</strong> Ma<strong>in</strong>e
<strong>and</strong> New York). This should be made a priority for the 2008 election.
Along with others, I have called for HAVA to be amended to allow <strong>in</strong>dividuals
who are denied a secret <strong>and</strong> <strong>in</strong>dependent vote to sue <strong>in</strong> federal court. 29 This would take
sole enforcement responsibility off the DOJ, <strong>and</strong> create <strong>in</strong>centives for states to take their
compliance efforts more seriously.
Cont<strong>in</strong>ued Efforts to Develop Accessible Vot<strong>in</strong>g Technologv
To realize the goals of provid<strong>in</strong>g vot<strong>in</strong>g experiences to older voters <strong>and</strong> voters
with disabilities that are commensurate, to the greatest extent possible, with other voters,
we need to cont<strong>in</strong>ue to develop expertise <strong>in</strong> vot<strong>in</strong>g technologies that both accommodate
reasonable security concerns <strong>and</strong> create access, <strong>in</strong>clud<strong>in</strong>g a secret <strong>and</strong> <strong>in</strong>dependent ballot.
HAVA takes strong steps <strong>in</strong> this regard: it calls for the Election Assistance Commission
to conduct studies of accessible vot<strong>in</strong>g for people with disabilities, 30 <strong>and</strong> also requires the
National Institute of St<strong>and</strong>ards <strong>and</strong> Technology to report to Congress on the usability of
24 See U.S. Election Assistance Comm'n, A Summary of the 2004 Election Day Survey: Access to Vot<strong>in</strong>g
for the Disabled 14-4 (2005). This report noted that more than half the states failed to even respond to the
survey questions on accessibility.
25 A 2006 survey found some improvement, both <strong>in</strong> terms of states that had reported (nearly 80% of
jurisdictions) <strong>and</strong> percentage of poll<strong>in</strong>g places that allowed voters with disabilities to cast a private ballot
(self reported at 84.5%). See U.S. Election Assistance Comm'n, 2006 Election Adm<strong>in</strong>istration <strong>and</strong> Vot<strong>in</strong>g
Survey 26 (2006).
26 See Michael Waterstone, A New Vision of Public Enforcement, 92 M<strong>in</strong>n; L. Rev. 434 (2007).
21 See Federal Defendants' Opposition to Pla<strong>in</strong>tiff's Motion for Prelim<strong>in</strong>ary Injunction, 2006 WL 1505602,
*2 (argu<strong>in</strong>g HAVA confers no private right of action) <strong>in</strong> Taylor v. Onorato, 428. F.Supp.2d 384 (W.D. Pa.
2006) (hold<strong>in</strong>g that private pla<strong>in</strong>tiffs have no private right of action HAVA access provisions).
2842 U.S.C. § 15511.
29 See Waterstone, Constitutional <strong>and</strong>Statutory Vot<strong>in</strong>g Rightsfor People with Disabilities, supra note 1, at
382; see also Recommendations of McGeorge Symposium on Facilitat<strong>in</strong>g Vot<strong>in</strong>g as People Age, 38
McGeorge L. Rev. 861, 862 (2007).
30 42 U.S.C. § 15381.

49
different types of vot<strong>in</strong>g equipment for <strong>in</strong>dividuals with disabilities. 3 ' This should be
done also with an eye toward the needs of older voters with sensory <strong>and</strong> cognitive
impairments.
Vigorous Enforcement of ADA Accessibility Provisions
Inaccessible poll<strong>in</strong>g places violate the ADA. As discussed above, <strong>in</strong> 2000, the
GAO found that 84% of poll<strong>in</strong>g places that they visited conta<strong>in</strong>ed one or more
accessibility barriers. 32 A 2005 Election Assistance Commission study found that only
70.9% of prec<strong>in</strong>cts from report<strong>in</strong>g states were wheelchair accessible.3 3 As yet another
example, on October 2, 2004, a half-page advertisement <strong>in</strong> the Memphis Commercial
Appeal proclaimed <strong>in</strong> bold letters: "Notice of Poll<strong>in</strong>g Locations That Do Not Meet All
ADA St<strong>and</strong>ards, November 2, 2004, Election." It then listed 139 poll<strong>in</strong>g place locations.
This many years after the ADA's passage, this is unacceptable, <strong>and</strong> leads to too many
older voters <strong>and</strong> voters with disabilities not be<strong>in</strong>g able to get to their poll<strong>in</strong>g places. In
the 2008 election, public enforcement authorities need to take the lead <strong>in</strong> prosecut<strong>in</strong>g
public entities that do not live up to their accessibility obligations.
Improved Practices on Absentee Vot<strong>in</strong>g
As discussed above, current absentee ballot<strong>in</strong>g practices do not provide the
<strong>opportunities</strong> for all older voters or voters with disabilities who wish to <strong>and</strong> are able to
vote unassisted to do so. HAVA does not <strong>in</strong>clude any requirements <strong>in</strong> this regard, nor
has Title II of the ADA been <strong>in</strong>terpreted to require accessibility <strong>in</strong> absentee vot<strong>in</strong>g. 34
This is troubl<strong>in</strong>g, because all of the arguments support<strong>in</strong>g the need for a secret <strong>and</strong>
<strong>in</strong>dependent vote <strong>in</strong> the poll<strong>in</strong>g place context apply equally to vot<strong>in</strong>g at home.
Absentee ballot<strong>in</strong>g, to the extent it is a choice <strong>and</strong> not a substitute for accessible
poll<strong>in</strong>g places, does offer an opportunity to reach out to older voters <strong>and</strong> voters with
disabilities. This needs to be done, however, <strong>in</strong> a way that protects secret <strong>and</strong>
<strong>in</strong>dependent vot<strong>in</strong>g to the greatest extent possible; m<strong>in</strong>imizes chances for fraud, undue
<strong>in</strong>fluence, or unsanctioned capacity screen<strong>in</strong>g; <strong>and</strong> is offered through a process that is
easy for voters to navigate. In a recent article, Professors Daniel Tokaji <strong>and</strong> Ruth Colker
address these issues, <strong>and</strong> offer a "menu of choices for policymakers <strong>and</strong> election officials
to consider." 35 These <strong>in</strong>clude better outreach, eas<strong>in</strong>g the application process, allow<strong>in</strong>g
permanent absentee voter status, more accessible ballots (<strong>in</strong>clud<strong>in</strong>g development of
HTML ballots <strong>and</strong> phone vot<strong>in</strong>g), guidance for caregivers, <strong>and</strong> mobile poll<strong>in</strong>g (whereby
31 Id at § 15383. For one expert's views on creat<strong>in</strong>g vot<strong>in</strong>g systems that are accessible to older voters <strong>and</strong>
voters with disabilities, see Ted Selker, The Technology ofAccess: Allow<strong>in</strong>g People ofAge to Votefor
Themselves, 38 McGeorge L. Rev. 1113 (2007).
32
See supra note 10.
33 See supra note 24.
m This view of the ADA, however, is not <strong>in</strong>evitable. See Tokaji <strong>and</strong> Colker, supra note 13, at 1035-36
(offer<strong>in</strong>g an argument why absentee vot<strong>in</strong>g should be covered by Title II's program access st<strong>and</strong>ard).
'Id. at 1047.

50
election officials br<strong>in</strong>g the accessible poll<strong>in</strong>g technology to voter's homes or facilities <strong>and</strong>
assist them <strong>in</strong> vot<strong>in</strong>g). 6
Conclusion
Currently, the turnout level of voters with disabilities lags beh<strong>in</strong>d other groups. 37
As our population ages <strong>and</strong> additional number of voters develop physical <strong>and</strong> cognitive
impairments, the population of older voters could view the vot<strong>in</strong>g process with a
skeptical eye, potentially depress<strong>in</strong>g turnout among this group. 38 We cannot let this
happen. We need to focus on mak<strong>in</strong>g the vot<strong>in</strong>g experience for older voters as
commensurate with other voters as is possible: namely, focus<strong>in</strong>g on the opportunity to
vote secretly or <strong>in</strong>dependently when possible, <strong>and</strong> giv<strong>in</strong>g older voters the true choice as
to whether they want to do so at the poll<strong>in</strong>g place or at home.
I thank you for the opportunity to address you on this issue, <strong>and</strong> I look forward to
work<strong>in</strong>g with you on it <strong>in</strong> the future. I close with a quote from Representative Steny
Hoyer. It speaks to the need <strong>and</strong> value of creat<strong>in</strong>g real opportunity <strong>and</strong> access for all
voters:
One of our most profound accomplishments s<strong>in</strong>ce the found<strong>in</strong>g of the
United States is the progressive broaden<strong>in</strong>g of the franchise to <strong>in</strong>clude
African-Americans, women <strong>and</strong> others subject to pervasive
discrim<strong>in</strong>ation. In this process, we have learned that few of the rights or
<strong>in</strong>terest of a particular group of Americans can be secure so long as that
group lacks the right.to vote for officials who will become accountable to
them. We have- also learned that, as more adult citizens become full
participants <strong>in</strong> our polity, the democratic process is enriched .for. all. We
are still <strong>in</strong> the process of learn<strong>in</strong>g this lesson with regard to persons with
disabilities. 39
36 Id. at 1047-50; see also Kohn, supra note 3 (offer<strong>in</strong>gs similar ideas).
37 One study found that people with disabilities have lower levels of voter registration than people without
disabilities (62% versus 78%, respectively). See 2000 Nat'l Org. on Disabilities, Harris Survey of
Americans with Disabilities 83 (2000). Another set of researchers found that <strong>in</strong> the 1998 elections, people
with disabilities were about 20% less likely to vote than those without disabilities, even after controll<strong>in</strong>g for
demographics <strong>and</strong> other factors related to vot<strong>in</strong>g. See Douglas L. Kruse et. al., Empowerment Through
Civic Participation: A Case Study <strong>in</strong> the Political Behavior of People with Disabilities 2.(April 1999).
33 Older voters have traditionally voted <strong>in</strong> larger numbers than other age groups. In the 2004 presidential
election, 71.8 % of citizens ages fifty-five <strong>and</strong> older reported vot<strong>in</strong>g, which was the highest percentage of
any age group. See U.S. Census Bureau, Vot<strong>in</strong>g <strong>and</strong> Registration <strong>in</strong> the Elect<strong>in</strong>o of-November 2004:
Population Caracteristics 4 tbl.B (2006), http://www.census gov/prod/2006oubs/p2O-556.odf.
39 H.R. Rep. No. 107-329, pt. 1, at 79 (2001).

51
The CHAIRMAN. Thank you, Mr. Waterstone.
Dr. Karlawish.
STATEMENT OF JASON KARLAWISH, M.D., ASSOCIATE PRO-
FESSOR OF MEDICINE AND MEDICAL ETHICS, UNIVERSITY
OF PENNSYLVANIA, PHILADELPHIA, PA
Dr. KARLAWISH. Thank you.
Let me beg<strong>in</strong> with this hearty thanks to the members of the
<strong>Committee</strong> <strong>and</strong> their excellent staff for hav<strong>in</strong>g this important hear<strong>in</strong>g
<strong>and</strong> for <strong>in</strong>vit<strong>in</strong>g me to speak.
So let me tell you two stories. On Election Day, 2004, my colleague,
Dr. John Bruza, was visit<strong>in</strong>g a patient of his <strong>in</strong> a nurs<strong>in</strong>g
home <strong>in</strong> Philadelphia, <strong>and</strong> she was <strong>in</strong> tears of anger <strong>and</strong> frustration.
She wanted to vote but she couldn't vote. Her poll<strong>in</strong>g place
was at a far away district, <strong>and</strong> she hadn't had the chance to reregister.
She had no way to get there, <strong>and</strong> she had missed the application
for absentee ballot<strong>in</strong>g.
November of 2007 a c<strong>and</strong>idate for the Philadelphia council lost
by just 120 votes. When the mach<strong>in</strong>e count was tallied he had won,
but when absentee ballots were counted he lost. The newspapers
report that he claims improprieties <strong>in</strong> how absentee ballots were
h<strong>and</strong>led at several nurs<strong>in</strong>g homes <strong>and</strong> he has now filed suit <strong>in</strong> Federal
court.
What do those two cases tell us? They tell us that elderly voters,
especially elderly voters who live <strong>in</strong> long-term care sett<strong>in</strong>gs, are
suffer<strong>in</strong>g doubly. First, people decide whether they can vote <strong>and</strong>,
second, people steal their votes.
I th<strong>in</strong>k you all here have a great opportunity to change this. I
want to tell you the nature of the problems with some data that
we have gathered from our research, <strong>and</strong> then suggest a set of solutions.
I want to share with you the results of studies my colleagues <strong>and</strong>
I have done exam<strong>in</strong><strong>in</strong>g vot<strong>in</strong>g <strong>in</strong> long-term care. In particular we
have done two surveys, one <strong>in</strong> Philadelphia after the 2003 municipal
election, <strong>and</strong> the second was <strong>in</strong> 2006 after the general election
<strong>in</strong> the State of Virg<strong>in</strong>ia.
Both Pennsylvania <strong>and</strong> Virg<strong>in</strong>ia share a common feature. Unfortunately,
like 27 other States, they have absolutely no guidel<strong>in</strong>es
for accommodations for residents <strong>in</strong> long-term care facilities.
As you know, the number of Americans with cognitive impairment
is <strong>in</strong>creas<strong>in</strong>g. Many of these people live <strong>in</strong> assisted liv<strong>in</strong>g facilities
or <strong>in</strong> nurs<strong>in</strong>g homes. In these sett<strong>in</strong>gs, staff have substantial
control over how residents live their day-to-day lives; what they
can do <strong>and</strong> what they can't do <strong>and</strong> this <strong>in</strong>cludes vot<strong>in</strong>g.
Unfortunately, election officials have paid limited attention to assur<strong>in</strong>g
the residents have access to the ballot, <strong>and</strong> also prevent<strong>in</strong>g
unscrupulous people from steal<strong>in</strong>g their votes.
Next week, 24 States will be <strong>in</strong> Super Tuesday, as has already
been po<strong>in</strong>ted out by Senator Kohl. Eight of them have policies to
address voter accommodations <strong>in</strong> long-term care sett<strong>in</strong>gs.
But unfortunately, of those guidel<strong>in</strong>es that exist, they are largely
<strong>in</strong>adequate. They lack proactive steps to get people registered, they
rely upon the resident to apply for an absentee ballot, they spr<strong>in</strong>g

52
<strong>in</strong>to effect when certa<strong>in</strong> thresholds are met, like a certa<strong>in</strong> number
of absentee ballots be<strong>in</strong>g ordered, <strong>and</strong> so on.
But the majority of States, as I say, don't have any guidel<strong>in</strong>es
for vot<strong>in</strong>g <strong>in</strong> long-term care. So what does that mean? Well, let me
tell you what we found from our research.
The staff of a nurs<strong>in</strong>g home, typically a social worker or an activities
director, are <strong>in</strong> charge of vot<strong>in</strong>g; not elections officials.
No. 2. There is substantial <strong>and</strong> unnecessary variability <strong>in</strong> registration
<strong>and</strong> vot<strong>in</strong>g procedures, <strong>and</strong> <strong>in</strong> staff attitudes about who
has the right to vote, <strong>and</strong> this variability likely disenfranchised
voters.
In fact, many facilities have reported to us that there were residents
who wanted to vote but were unable to vote, largely because
of remediable procedural problems like failure to order ballots, to
get them registered, or be<strong>in</strong>g unable to get people to the polls.
Much of the vot<strong>in</strong>g <strong>in</strong> long-term care facilities is absentee ballot<strong>in</strong>g.
At some facilities up to 2/3 of the residents voted absentee.
This k<strong>in</strong>d of ballot<strong>in</strong>g is well recognized as the source for voter
fraud.
Most of these residents need assistance vot<strong>in</strong>g, <strong>and</strong> most of that
vot<strong>in</strong>g is provided by one person, the social-the activities director
or the social worker.
F<strong>in</strong>ally, many of the facilities reported to us that the staff assessed
whether a resident is capable of vot<strong>in</strong>g, <strong>and</strong> the methods
they use likely disenfranchise people who arguably were probably
capable of vot<strong>in</strong>g.
I am go<strong>in</strong>g to read you this quote from an <strong>in</strong>terviewee. She said
to us, "You know, the right to vote is such a basic right. To feel
like you are tak<strong>in</strong>g that away from someone, particularly if they
are borderl<strong>in</strong>e, guidel<strong>in</strong>es would help to make sure there are fair
objective applications. Not, 'I am sure she is not go<strong>in</strong>g to vote for
the person I want so I am not go<strong>in</strong>g to take her to the poll<strong>in</strong>g place
or help her with her ballot.' You do have quite a bit of power <strong>and</strong>
authority over folks."
What have we learned? Our studies show that <strong>in</strong> States without
guidel<strong>in</strong>es for vot<strong>in</strong>g <strong>in</strong> long-term care, elections officials play a
very limited role, access to the polls is really determ<strong>in</strong>ed by the
staff <strong>and</strong> the attitudes of that staff <strong>and</strong> these practices are arguably
largely unacceptable.
In the Super Tuesday States that have no guidel<strong>in</strong>es, the residents
of long-term care facilities will likely suffer the very experiences
we have talked about, <strong>and</strong> multiplied over many, many
States.
Mak<strong>in</strong>g a long-term care facility a poll<strong>in</strong>g site is not a solution
to this problem. Exp<strong>and</strong><strong>in</strong>g access to absentee ballots is not a solution
to this problem. I would be happy to discuss <strong>in</strong> the question
<strong>and</strong> answers why that is the case.
The solution is mobile poll<strong>in</strong>g. Mobile poll<strong>in</strong>g means that the
elections officials or their equivalent groups go to the facilities prior
to registration deadl<strong>in</strong>es to encourage <strong>and</strong> solicit registration. Then
<strong>in</strong> the days prior to the election they go back to the facility, they
assist voters <strong>in</strong> gather-complet<strong>in</strong>g their ballots, <strong>and</strong> they gather
the ballots <strong>and</strong> they br<strong>in</strong>g them back. These officials are tra<strong>in</strong>ed to

53
address the unique issues of vot<strong>in</strong>g by the elderly, such as how to
assist a voter.
Models do exist for mobile poll<strong>in</strong>g. In Australia <strong>and</strong> Canada it is
the norm. Maryl<strong>and</strong> has a great set of guidel<strong>in</strong>es, but they are underfunded.
To achieve this goal of universal mobile poll<strong>in</strong>g <strong>in</strong> the United
States of America, I would propose the United States Election Assistance
Commission conduct research to develop a model set of
best practices for mobile poll<strong>in</strong>g, tra<strong>in</strong><strong>in</strong>g for election officials to implement
them, <strong>and</strong> then partner with States to test their feasibility
<strong>and</strong> to ref<strong>in</strong>e them.
Thanks so much for this opportunity to talk to you. Happy to address
questions.
[The prepared statement of Dr. Karlawish follows:]

Karlawish - <strong>Senate</strong> testimony
54
Testimony for <strong>Senate</strong> <strong>Special</strong> <strong>Committee</strong> on Ag<strong>in</strong>g hear<strong>in</strong>g on <strong>opportunities</strong> <strong>and</strong> <strong>challenges</strong> for
older voters.
Prepared by Jason Karlawish, MD, Associate Professor of Medic<strong>in</strong>e <strong>and</strong> Medical Ethics,
University of Pennsylvania.
Institute on Ag<strong>in</strong>g, 3615 Chestnut Street, Philadelphia, PA 19104
Jason.karlawishtuphs.upenn.edu; 215-898-8997.
INTRODUCTION.
On Election Day, 2004, my colleague Doctor John Bruza was visit<strong>in</strong>g a patient at a nurs<strong>in</strong>g home
<strong>in</strong> Philadelphia. She was <strong>in</strong> tears of anger <strong>and</strong> frustration. She wanted to vote but she couldn't.
Her poll<strong>in</strong>g place was at a far away district. She could not get there <strong>and</strong> she had not been able to
re-register at a closer site or apply for an absentee ballot.
In the November 2007 election, a c<strong>and</strong>idate for Philadelphia council lost by some 120 votes.
When the mach<strong>in</strong>e count was tallied, he won. When absentee ballots were counted, he lost. The
papers report that he claims improprieties <strong>in</strong> how absentee ballots were adm<strong>in</strong>istered at several
nurs<strong>in</strong>g homes. He has now filed suit <strong>in</strong> Federal Court.
What do these two cases tell us? Elderly voters - especially elderly voters who live <strong>in</strong> long term
care sett<strong>in</strong>gs -- suffer doubly. People decide whether they can vote <strong>and</strong> people steal their votes.
Your committee has a unique opportunity to change this. I'd like to tell you the nature of the
problems <strong>and</strong> then suggest a set of solutions.
My name is Jason Karlawish. I am an associate professor of medic<strong>in</strong>e <strong>and</strong> medical ethics at the
University of Pennsylvania. My colleagues <strong>and</strong> I have done a series of studies exam<strong>in</strong><strong>in</strong>g vot<strong>in</strong>g
rights for the elderly. You can learn more about these studies by visit<strong>in</strong>g our website at
www.Kennadc.org <strong>and</strong> click<strong>in</strong>g on the l<strong>in</strong>k "Facilitat<strong>in</strong>g vot<strong>in</strong>g as people age." I particularly
want to acknowledge the leadership <strong>and</strong> dedication of Charlie Sabat<strong>in</strong>o at the American Bar
Association <strong>and</strong> Ned Spurgeon at the Borchard Foundation Center on Law <strong>and</strong> Ag<strong>in</strong>g.
Today, I'd like to share with you the results of our studies of vot<strong>in</strong>g <strong>in</strong> long term care: <strong>in</strong> 2003,.
after the Philadelphia municipal election, <strong>and</strong> <strong>in</strong> 2006 <strong>in</strong> Virg<strong>in</strong>ia. Both Pennsylvania <strong>and</strong>
Virg<strong>in</strong>ia share a common feature. They like 27 other states have no guidel<strong>in</strong>es for vot<strong>in</strong>g
accommodations for residents of long term care facilities. This is a problem.
THE SIGNFICANCE OF THE PROBLEM AND THE SHORTCOMING OF THE PRESENT SYSTEM.
As you know, the number of Americans with cognitive impairments is <strong>in</strong>creas<strong>in</strong>g, <strong>and</strong> advanc<strong>in</strong>g
age is the key risk factor for these impairments. Many of these people live <strong>in</strong> long term care
sett<strong>in</strong>gs such as assisted liv<strong>in</strong>g facilities <strong>and</strong> nurs<strong>in</strong>g homes. While cognitive impairment is
prevalent among these residents, the severity of that impairment varies. In these sett<strong>in</strong>gs, staff
have substantial control over residents day-to-day lives: what they can do <strong>and</strong> what they cannot
do. As you shall learn, this <strong>in</strong>cludes vot<strong>in</strong>g.
Unfortunately, election officials have paid limited attention to two key issues: assur<strong>in</strong>g that
residents of long-term care facilities have access to the ballot, <strong>and</strong> prevent<strong>in</strong>g unscrupulous

Karlawish - <strong>Senate</strong> testimony
55
persons from exploit<strong>in</strong>g their vote. Federal long term care regulations oblige nurs<strong>in</strong>g homes to
respect residents' vot<strong>in</strong>g rights, but they do not provide any guidance on how a facility can
satisfy this obligation.
Next week, among the 24 states that will particulate <strong>in</strong> Super Tuesday, only n<strong>in</strong>e of them have
some policies to address voter accommodations <strong>in</strong> long term care sett<strong>in</strong>gs. I've prepared a table
that summarizes this <strong>and</strong> taken the liberty to highlight the states that the members of this
committee represent.
Most of these guidel<strong>in</strong>es are <strong>in</strong>adequate. They lack proactive steps to register residents. They rely
upon the resident to apply for an absentee ballot. They spr<strong>in</strong>g <strong>in</strong>to effect when a facility reaches a
threshold number of absentee ballots, or a voter submits a written request for assistance, or a
voter has an abrupt move to a facility after the close of the time to request absentee ballots.
THE SHORTCOMINGS IN GREATER FOCUS.
But the majority of states have no guidel<strong>in</strong>es. What happens <strong>in</strong> these sett<strong>in</strong>gs? To answer that
question, I will present the key f<strong>in</strong>d<strong>in</strong>gs of our surveys of vot<strong>in</strong>g <strong>in</strong> assisted liv<strong>in</strong>g facilities <strong>and</strong>
nurs<strong>in</strong>g homes. I'm go<strong>in</strong>g to focus on the Philadelphia study, because it is published. But I
emphasize that we found very similar results <strong>in</strong> Virg<strong>in</strong>ia.
We found that long term care staff- typically a social worker or activities director -- were <strong>in</strong>
charge of vot<strong>in</strong>g. Not election officials. Not families.
* There was substantial <strong>and</strong> unnecessary variability <strong>in</strong> procedures used for registration <strong>and</strong>
vot<strong>in</strong>g <strong>and</strong> <strong>in</strong> long term care staff attitudes about who can vote. This variability likely
disenfranchised voters.
* Many facilities reported there were residents who wanted to vote but were unable to vote,
largely due to remediable procedural problems such as failure to order ballots, register or
be<strong>in</strong>g unable to get to the polls.
* Much of the vot<strong>in</strong>g at long term care facilities is absentee ballot<strong>in</strong>g - this k<strong>in</strong>d of
ballot<strong>in</strong>g is well recognized as among the pr<strong>in</strong>ciple mechanisms for voter fraud. Most
residents needed some assistance with absentee ballot<strong>in</strong>g <strong>and</strong> typically, a s<strong>in</strong>gle staff
member provided this assistance.
* Many facilities <strong>in</strong>dicated that the staff assessed whether a resident was capable of vot<strong>in</strong>g
<strong>and</strong> the methods they used likely disenfranchised residents who were actually able to
vote.
I'd like to talk about that last po<strong>in</strong>t <strong>in</strong> greater detail. The most common method staff used to
decide whether someone was able to vote was an assessment of resident cognition, <strong>and</strong> either an
<strong>in</strong>formal assessment of vot<strong>in</strong>g capacity based on familiarity with the resident or ask<strong>in</strong>g the
resident election-related questions. Here is a sample quote from a staff member at a nurs<strong>in</strong>g
home:
"Is this person aware there is an election go<strong>in</strong>g on? What it's for? Is it for the mayor, for
the president, or whatever? The irony is that a lot of people who are able to vote would

Karlawish - <strong>Senate</strong> testimony
56
also fail this test. Would this resident have the capacity to make an <strong>in</strong>formed decision, or
just go 'eenie-meenie-m<strong>in</strong>ie-moe?' It's pretty subjective on my pail."
Let me leave you with this quote from an <strong>in</strong>terviewee who recognized the extent of their
authority over their residents, the consequences of the failure to exercise it properly, <strong>and</strong> the need
for guidel<strong>in</strong>es:
The right to vote is such a basic right-to feel like you're tak<strong>in</strong>g that away from
someone, particularly if they're borderl<strong>in</strong>e-guidel<strong>in</strong>es would help to make sure there are
fair, objective applications-not 'I'm sure she's not go<strong>in</strong>g to vote for the person I like, so
I'm not ask<strong>in</strong>g her to the poll<strong>in</strong>g place.' You do have quite a bit of power <strong>and</strong> authority
over folks.
WHAT WE NEED TO DO.
What have we learned? Our surveys of Philadelphia <strong>and</strong> Virg<strong>in</strong>ia show that <strong>in</strong> states without
guidel<strong>in</strong>es for vot<strong>in</strong>g <strong>in</strong> long-term care, election officials play a limited role, <strong>and</strong> access to the
polls is largely determ<strong>in</strong>ed by the practices <strong>and</strong> attitudes of the long-term care staff, typically
social workers or activities directors <strong>and</strong> those practices are <strong>in</strong>adequate <strong>and</strong> they are
unacceptable.
Your committee has a marvelous opportunity. You have the precedent of Congressional efforts
to facilitate vot<strong>in</strong>g by people with disabilities <strong>and</strong> to promote greater uniformity <strong>in</strong> state electoral
practices. You also have the federal reach <strong>in</strong>to nurs<strong>in</strong>g homes through the regulations that govern
nurs<strong>in</strong>g home <strong>in</strong>spections <strong>and</strong> the quality of care.
In the Super Tuesday states that have no guidel<strong>in</strong>es, the residents of long term care facilities will
suffer the experiences we discovered <strong>in</strong> Philadelphia <strong>and</strong> Virg<strong>in</strong>ia.
Simply mak<strong>in</strong>g a long term care facility a poll<strong>in</strong>g site is not a solution. Voters form outside the
facility show up <strong>and</strong> crowd the l<strong>in</strong>es, some residents cannot leave their rooms. none of the
problems related to registration are solved.
Simply exp<strong>and</strong><strong>in</strong>g access to absentee ballot<strong>in</strong>g is not the solution. People have to order the
ballot, get it, store it <strong>and</strong> then someone has to help. them complete it. Studies of exp<strong>and</strong>ed access
to absentee ballot<strong>in</strong>g show that they generally <strong>in</strong>crease vot<strong>in</strong>g among groups that already have
high rights of vot<strong>in</strong>g, such as community dwell<strong>in</strong>g elderly. In addition, among the elderly,
changes <strong>in</strong> h<strong>and</strong> writ<strong>in</strong>g can lead to the rejection of the ballot. F<strong>in</strong>ally, absentee ballot<strong>in</strong>g without
proper oversight <strong>in</strong> congregate sett<strong>in</strong>gs is one of the chief mechanisms for voter fraud.
What is needed is a model for mobile poll<strong>in</strong>g. Mobile poll<strong>in</strong>g means election officials or
equivalent groups visit facilities prior to registration deadl<strong>in</strong>es to encourage <strong>and</strong> solicit
registration <strong>and</strong> then <strong>in</strong> the days prior to the election, they return to the facility <strong>and</strong> assist voters
<strong>and</strong> gather the ballots. These officials are tra<strong>in</strong>ed to address the unique issues of vot<strong>in</strong>g by the
elderly, such as how to assist a voter.

Karlawish - <strong>Senate</strong> testimony
57
Models do exist. In Australia <strong>and</strong> Canada, mobile poll<strong>in</strong>g is the norm. Maryl<strong>and</strong> has a good set
of guidel<strong>in</strong>es, but they are not adequately funded.
To achieve this goal of universal mobile poll<strong>in</strong>g, I would propose the United States Election
Assistance Commission conduct research to develop a set of best practices for mobile poll<strong>in</strong>g <strong>in</strong>
long term care facilities, tra<strong>in</strong><strong>in</strong>g for election officials to implement then, <strong>and</strong> then partner with
states to test their feasibility <strong>and</strong> ref<strong>in</strong>e them.
Materials submitted with this testimony.
Smith A <strong>and</strong> Sabat<strong>in</strong>o C.P. Vot<strong>in</strong>g by residents of nurs<strong>in</strong>g homes <strong>and</strong> assisted liv<strong>in</strong>g facilities:
state law accommodations. BiFocal (American Bar Association <strong>in</strong> Focus on Ag<strong>in</strong>g <strong>and</strong> the Law).
26(1);2004: 1-2,4-10.
Karlawish J.H.T., Bonnie R., Appelbaum P.S., Lyketsos C., Karlan P., James B.D., Sabat<strong>in</strong>o C.,
Lawrence T., Knopman D., Kane R.M. Identify<strong>in</strong>g the barriers <strong>and</strong> <strong>challenges</strong> to vot<strong>in</strong>g by
residents of long-term care facilities: A study of the 2003 Philadelphia mayor's race. J Ag<strong>in</strong>g <strong>and</strong>
Soc Policy. 2008; 20(1): 65-80.
Sabat<strong>in</strong>o C.P. <strong>and</strong> Spurgeon E.D. Introduction to Symposium "Facilitat<strong>in</strong>g vot<strong>in</strong>g as people age:
Implications of cognitive impairment." McGeorge Law Review. Vol 38(4): 843-860.
Recommendations of the Symposium "Facilitat<strong>in</strong>g vot<strong>in</strong>g as people age: Implications of
cognitive impairment." McGeorge Law Review. Vol 38(4): 861-870.

58
The CHAIRMAN. Thank you very much, Dr. Karlawish.
Ms. Weiser.
STATEMENT OF WENDY R. WEISER, DEPUTY DIRECTOR,
DEMOCRACY PROGRAM, BRENNAN CENTER FOR JUSTICE AT
NYU SCHOOL OF LAW, NEW YORK, NY
MS. WEISER. Thank you very much <strong>and</strong> thank you to the <strong>Committee</strong>
for hold<strong>in</strong>g this important hear<strong>in</strong>g.
As you know, the issue of voter ID is currently before the Supreme
Court <strong>and</strong> it is one of the most important vot<strong>in</strong>g rights
issues fac<strong>in</strong>g Americans today. It could transform how Americans
vote <strong>and</strong> which Americans vote.
Whatever your views are on voter ID <strong>in</strong> general, the k<strong>in</strong>ds of restrictive
voter ID proposals we have seen across the country, like
the Indiana law before the Supreme Court, are unusually harmful
to older Americans. So we strongly urge this <strong>Committee</strong> to take a
serious look at how voter ID requirements affect older Americans
<strong>and</strong> disabled Americans.
I have submitted detailed written testimony. Today I will just
stress three po<strong>in</strong>ts.
First, restrictive voter ID requirements could disenfranchise <strong>and</strong>
burden huge numbers of older Americans. The fact is that millions
of older Americans don't have the k<strong>in</strong>ds of documents that are
called for by these new voter ID laws which are typically Stateissued
photo IDs or proof of citizenship documents.
The Brennan Center recently did a national survey that found
that 18 percent of citizens over 65 don't have current governmentissued
photo IDs, as compared to 11 percent of voters overall.
Other major social science studies have similar f<strong>in</strong>d<strong>in</strong>gs.
It is also especially hard for older Americans to obta<strong>in</strong> these
k<strong>in</strong>ds of IDs. To get a photo ID you typically need ID, <strong>in</strong>clud<strong>in</strong>g a
birth certificate. But many older Americans, as it turns out, don't
have birth certificates <strong>and</strong> they would have to expend money <strong>and</strong>
effort to obta<strong>in</strong> one. For some, these efforts would be futile-like
for one of the pla<strong>in</strong>tiffs <strong>in</strong> the Indiana case, 85-year-old Thelma
Ruth Hunter who, like many other older Americans, was born at
home <strong>and</strong>, thus, there is no record of her birth.
For the typical older American who doesn't drive, who has a disability,
<strong>and</strong> who lives on a fixed <strong>in</strong>come, it is a real burden to have
to travel to a government office <strong>and</strong> pay a fee twice just to be able
to later go to the polls <strong>and</strong> vote.
These laws hurt voters for no good reason. It is hard to imag<strong>in</strong>e
what purpose would be served by disenfranchis<strong>in</strong>g Valerie Williams,
who is one of the Indiana voters who was barred from vot<strong>in</strong>g
<strong>in</strong> the lobby of her retirement home, even though she had an expired
driver's license, a current telephone bill, <strong>and</strong> a Social Security
letter with her address.
Extensive studies show that the one k<strong>in</strong>d of fraud targeted by
these ID laws-commonly called impersonation fraud-almost
never happens. The States already have adequate mechanisms <strong>in</strong>
place to identify voters <strong>and</strong> to protect elections from this k<strong>in</strong>d of
fraud.
While we really must take the fear of the voter fraud that Senator
Smith mentioned very seriously, we should act only on those

59
fears that are based <strong>in</strong> fact <strong>and</strong> make sure that voters are educated
about which ones are not.
The second big po<strong>in</strong>t I would like to make is that this isn't just
an abstract, remote issue. It could actually affect the 2008 elections.
Restrictive ID requirements are now <strong>in</strong> place <strong>in</strong> three States. If
the Supreme Court upholds Indiana's law, we could see stepped-up
efforts to impose these k<strong>in</strong>ds of requirements across the country.
In 2007 there were restrictive ID bills <strong>in</strong>troduced <strong>in</strong> 31 States,
<strong>in</strong>clud<strong>in</strong>g all but three of the Super Tuesday States <strong>and</strong> Georgia,
which already had an ID law. This year already n<strong>in</strong>e States have
<strong>in</strong>troduced new restrictive photo ID bills <strong>and</strong> 13 have restrictive
proof of citizenship bills pend<strong>in</strong>g as well.
This election has generated an unusually high level of <strong>in</strong>terest
among voters <strong>in</strong> both parties, many of whom had not previously
participated. It really would be a travesty if many of these newly
enthusiastic voters were thwarted because of onerous <strong>and</strong> unnecessary
ID requirements.
The third po<strong>in</strong>t that I would like to make is that, regardless of
how the Supreme Court rules <strong>in</strong> the Indiana case, there are a number
of affirmative steps that Congress can take to ensure that ID
requirements don't disenfranchise older Americans <strong>and</strong> Americans
with disabilities. I will go quickly through some of them.
First, Congress should cont<strong>in</strong>ue to resist efforts to impose new ID
requirements at the Federal level.
Congress should also protect voters from disenfranchisement as
the result of State ID requirements such as by barr<strong>in</strong>g the most restrictive
k<strong>in</strong>ds of ID requirements, or at least by requir<strong>in</strong>g reasonable
alternatives for voters without IDs.
Congress can also make it easier <strong>and</strong> less expensive for Americans,
<strong>and</strong> especially older Americans <strong>and</strong> <strong>in</strong>digent Americans, to
obta<strong>in</strong> Federal IDs <strong>and</strong> citizenship documents.
Another step would be to repeal the new onerous provisions of
the REAL ID Act, which is go<strong>in</strong>g to make it much harder <strong>and</strong> more
expensive for people to get State IDs.
F<strong>in</strong>ally, Congress can provide resources for poll worker <strong>and</strong> voter
education on voter ID requirements.
In clos<strong>in</strong>g, there is someth<strong>in</strong>g especially troubl<strong>in</strong>g about tell<strong>in</strong>g
a person who has been vot<strong>in</strong>g <strong>in</strong> her community for her whole life
that she can no longer vote unless she goes through a time-consum<strong>in</strong>g
<strong>and</strong> expensive process that may or may not get her the documents
that she needs to vote.
Older Americans <strong>and</strong> our democracy deserve better than that.
Thank you.
[The prepared statement of Ms. Weiser follows:]

B RE N NAN
CENTER
FOR JUSTICE Bnnan r
60
Testimony of 161 A- Nhe A-6-
12,h Fl-oo
WENDY R. WEISER 212.9. 6730 212o995.4550
Deputy Director, Democracy Program
Brennan Center for Justice at NYU School of Law
Before the
<strong>Senate</strong> <strong>Special</strong> Subcommittee on Ag<strong>in</strong>g
January 31, 2008
wwnbcennanczncer.org
On behalf of the Brennan Center for Justice at NYU School of Law, I thank the <strong>Senate</strong>
<strong>Special</strong> Subcommittee on Ag<strong>in</strong>g for hold<strong>in</strong>g this hear<strong>in</strong>g <strong>and</strong> for provid<strong>in</strong>g me the opportunity to
discuss <strong>opportunities</strong> <strong>and</strong> <strong>challenges</strong> fac<strong>in</strong>g older voters.
My name is Wendy Weiser, <strong>and</strong> I direct the Brennan Center's work on vot<strong>in</strong>g rights <strong>and</strong>
elections. The Brennan Center is a nonpartisan th<strong>in</strong>k tank <strong>and</strong> legal advocacy organization that
focuses on issues of democracy <strong>and</strong> justice. Among other th<strong>in</strong>gs, we seek to ensure fair <strong>and</strong>
accurate vot<strong>in</strong>g procedures <strong>and</strong> systems <strong>and</strong> to promote policies that maximize citizen
enfranchisement <strong>and</strong> participation <strong>in</strong> elections. We have done extensive work on a range of
vot<strong>in</strong>g issues of concern to older Americans, <strong>in</strong>clud<strong>in</strong>g voter identification <strong>and</strong> vot<strong>in</strong>g system
accessibility <strong>and</strong> usability. Our work on these topics has <strong>in</strong>cluded the publication of studies <strong>and</strong>
reports; assistance to federal <strong>and</strong> state adm<strong>in</strong>istrative <strong>and</strong> legislative bodies with responsibility
over elections; <strong>and</strong>, when necessary, participation <strong>in</strong> litigation to compel states to comply with
their obligations under federal law <strong>and</strong> the Constitution. Most recently, we submitted an amicus
brief to the Supreme Court <strong>in</strong> Crawford v. Marion County Election Board, a case challeng<strong>in</strong>g the
constitutionality of Indiana's voter identification law.'
My testimony today will focus pr<strong>in</strong>cipally on voter identification requirements <strong>and</strong> their
impact on older Americans. As set forth below, voter ID requirements-especially the
restrictive photo ID requirements that have been proposed <strong>and</strong> <strong>in</strong>troduced over the past few
years-substantially <strong>and</strong> disproportionately burden the vot<strong>in</strong>g rights of seniors. If restrictive ID
requirements are put <strong>in</strong> place, many older Americans will be deprived of their right. to vote.
' The Brennan Center's webpage devoted to the Crawford case, available at
htto://www.brennancenter.ore/content/resource/crawford v marion county election board conta<strong>in</strong>s all the
Supreme Court fil<strong>in</strong>gs <strong>in</strong> the case <strong>and</strong> a range of other resources. The Brennan Center's brief <strong>in</strong> that case is posted
here: http ://brennan.3cdn.netla465dOf4779ca49726 tim6blaw7.pdf.

61
The impact on our elections would be far-reach<strong>in</strong>g. As the AARP recently noted <strong>in</strong> a
brief before the Supreme Court, older Americans consistently participate <strong>in</strong> the electoral process
at a higher rate than other age groups. 2 Moreover, by 2030, the number of older voters is
expected to double (to 71.5 million 3 ), which means that older voters will likely comprise a much
larger percentage of the electorate. It is vital to the health of our democracy that we ensure that
our electoral systems facilitate, <strong>and</strong> do not impede, the participation of this important segment of
the population.
New Restrictive Voter ID Requirements
Cvcr uhc pas' fe., yoars, there has been a concerted push across the country to impose
new, strict identification requirements on voters. In 2007 alone, bills were <strong>in</strong>troduced <strong>in</strong> more
than thirty states <strong>and</strong> <strong>in</strong> Congress to make voter identification requirements more restrictive by
requir<strong>in</strong>g voters to show photo ID or proof of citizenship. 4
(Those states <strong>in</strong>clude all but four of
the Super Tuesday states.) S<strong>in</strong>ce the beg<strong>in</strong>n<strong>in</strong>g of 2008, restrictive photo ID bills have been
<strong>in</strong>troduced or pre-filed <strong>in</strong> at least n<strong>in</strong>e states, 5 <strong>and</strong> officials <strong>in</strong> at least two other states have
publicly announced their <strong>in</strong>tent to pursue photo ID requirements. 6 More than a dozen states also
have currently pend<strong>in</strong>g bills requir<strong>in</strong>g documentary proof of citizenship to register or to vote.7
Prior to 2005, no state m<strong>and</strong>ated photo ID as an absolute requirement for vot<strong>in</strong>g, <strong>and</strong> no
state required documentary proof of citizenship to register or to vote. The vast majority of states
still use other methods of identify<strong>in</strong>g voters that are far less onerous than photo ID. And <strong>in</strong> most
states that require some form of documentary ID, there is an alternative identification mechanism
for those voters who do not have the required documentation that allows then to vote at the polls.
I attach as an appendix to my testimony a summary of the current voter identification
requirements <strong>in</strong> the states.
In the Help America Vote Act of 2002 ("HAVA"), Congress considered <strong>and</strong> rejected a
photo ID requirement for vot<strong>in</strong>g, opt<strong>in</strong>g <strong>in</strong>stead for a more limited ID provision focused on new
registrants who had not yet been vetted by state election systems, <strong>and</strong> allow<strong>in</strong>g those voters to
2 See Brief Amici Curiae AARP <strong>and</strong> National Senior Citizens Law Center <strong>in</strong> Support of Petitioner, Crawford v.
Marion County Election Bd, No. 07-21 (U.S. 2007) [here<strong>in</strong>after "AARP Brief'), at 7, available at
httn://brennan.3cdn.net/ledc5ab89fbe9edeb8 v6m6bnrlw.odf. For example, accord<strong>in</strong>g to the.U.S. Census Bureau,
<strong>in</strong> the 2004 presidential election, 71.8% of citizens 55 <strong>and</strong> older reported vot<strong>in</strong>g, as compared to 63.8% of all vot<strong>in</strong>gage
citizens. U.S. Census Bureau, Vot<strong>in</strong>g <strong>and</strong> Registration <strong>in</strong> the Election of November 2004: Population -
Characteristics 4 (Mar. 2006), http://www.census.egov/orod/2006oubs/t20-556.rd.
' AARP Brief at 8 (cit<strong>in</strong>g Adm<strong>in</strong>istration on Ag<strong>in</strong>g, U.S. Dep't of Health <strong>and</strong> Human Services, A Profile of Older
Americans: 2006 (last updated July 12, 2007), http://www.aoa.gov/trof/Statistics./rofile/2006/profiles20O6.aso .
'Those states <strong>in</strong>clude: Alabama, Arkansas, California, Colorado, Florida, Georgia, Ill<strong>in</strong>ois, Iowa, Kansas, Ma<strong>in</strong>e,
Massachusetts, Michigan, Mississippi, Missouri, Montana, New Hampshire, North Carol<strong>in</strong>a, New Mexico, New
York, Nevada, Oregon, Oklahoma, Pennsylvania, Rhode Isl<strong>and</strong>, South Carol<strong>in</strong>a, Tennessee, Texas; Utah, Virg<strong>in</strong>ia,
Wash<strong>in</strong>gton, West Virg<strong>in</strong>ia, <strong>and</strong> Wiscons<strong>in</strong>.
5
Those states <strong>in</strong>clude: Colorado, Ill<strong>in</strong>ois, Maryl<strong>and</strong>, Mississippi, Missouri, New Mexico, Oklahoma, Tennessee, <strong>and</strong>
West Virg<strong>in</strong>ia.
'Those states are Texas, which just held a hear<strong>in</strong>g on voter ID <strong>and</strong> fraud on January 25, 2008, <strong>and</strong> Kansas.
7Those states <strong>in</strong>clude: Colorado, Georgia, Kansas, Massachusetts, Maryl<strong>and</strong>, Michigan, Mississippi, Missouri, New
York, Rhode Isl<strong>and</strong>, South Carol<strong>in</strong>a, Tennessee, Virg<strong>in</strong>ia, <strong>and</strong> Wash<strong>in</strong>gton.

identify themselves us<strong>in</strong>g a broad range of documents. 8 Notwithst<strong>and</strong><strong>in</strong>g the compromise
reached <strong>in</strong> HAVA, proponents of voter ID cont<strong>in</strong>ue to strenuously press their cause.
62
To date only three states-Georgia, Indiana, <strong>and</strong> Missouri-have passed laws requir<strong>in</strong>g
voters to present photo ID to vote <strong>and</strong> to have their votes counted, <strong>and</strong> only Georgia <strong>and</strong> Indiana
still have those requirements <strong>in</strong> place. 9 Although four other states also request photo ID of their
voters, voters who do not have photo IDs <strong>in</strong> those states are entitled to cast ballots that will count
without hav<strong>in</strong>g to negotiate significant hurdles. Specifically, Louisiana, Michigan, <strong>and</strong> South
Dakota allow voters who do not have photo IDs to cast regular ballots if they swear an affidavit
to their eligibility. And while Florida law provides that a voter without photo ID may only vote
by provisional ballot, the state must count that provisional ballot so long as the voter's signature
matches the signature on file with election officials.' 0
Although only a few states currently impose strict photo ID requirements, other states
have made their exist<strong>in</strong>g voter ID requirements more burdensome. The most onerous new
requirement beyond photo ID is Arizona's requirement that voters present documentary proof of
citizenship <strong>in</strong> order to register to vote. 1 Like the recently-enacted Georgia <strong>and</strong> Indiana laws,
Arizona's law is currently be<strong>in</strong>g challenged <strong>in</strong> court.
Impact of Voter ID Requirements on Older Americans
Strict voter ID requirements have the potential to disenfranchise millions of eligible
voters. Those requirements fall most harshly on the poor, people of color, youth, <strong>and</strong>-most
significantly for this hear<strong>in</strong>g-senior citizens. Studies consistently show that millions of
Americans do not have government-issued photo IDs, <strong>and</strong> that seniors are disproportionately
represented among those without IDs.
Studies Show That Millions of Older Americans Lack Photo IDs
Accord<strong>in</strong>g to a nation-wide survey by the National Op<strong>in</strong>ion Research Corp. sponsored by
the Brennan Center <strong>in</strong> late 2006, 11% of vot<strong>in</strong>g-age Americans-roughly twenty-one million
citizens-do not have current government-issued photo IDs.1 2 The impact is far more
' 42 U.S.C. § 15483(b) (requir<strong>in</strong>g first-time voters who register by mail <strong>and</strong> whose registration <strong>in</strong>formation the state
is unable to match with an exist<strong>in</strong>g state record to show either a photo ID or one of a variety of non-photo IDs).
9 All three of those laws have been challenged <strong>in</strong> court. The Missouri Supreme Court struck down the Missouri law
under the state constitution, <strong>and</strong> so it is no longer <strong>in</strong> effect. We<strong>in</strong>shenck v. Missouri, 203 S.W.3d 201 (Mo. 2006).
Prior versions of the Georgia law were enjo<strong>in</strong>ed by federal <strong>and</strong> state courts, Common Cause/Georgia v. Billups, 439
F.Supp.2d 1294 (N.D. Ga. 2006); Perdue v. Lake, 647 SE.2d 6 (2007). An amended version of Georgia's law was
upheld by a federal court <strong>and</strong> is now on appeal. Indiana's law is currently be<strong>in</strong>g considered by the U.S. Supreme
Court after be<strong>in</strong>g upheld <strong>in</strong> lower courts.
'° See Ltr. from Christopher Coates, Act<strong>in</strong>g Chief, U.S. Dep't of Justice Vot<strong>in</strong>g Section, to Florida Attorney General
Bill McCullom <strong>and</strong> Assistant General Counsel Mafia Matthews, Jan. 23, 2008, available at
htto://www.brennancenter.ore/naaet-/Democracy/AR-M620U 20080124 1 05007.odf (preclear<strong>in</strong>g Florida's
amended voter ID law with the underst<strong>and</strong><strong>in</strong>g that provisional ballots cast by voters without photo ID will count so
long as the signatures match).
Ariz. Rev. Stat. § 16-579.
12 Brennan Center for Justice at NYU School of Law, Citizens Without Proof: A Survey ofAmericans 'Possession of
Documentary Proof of Citizenship <strong>and</strong> Photo Identification, at 3 (Nov. 2006), htto://www.brennancenter.orglnage/-

63
pronounced for older Americans: 18% of citizens 65 <strong>and</strong> older do not have current governmentissued
photo IDs.'3 Us<strong>in</strong>g 2005 census estimates, that amounts to more than 6 million senior
citizens who could be excluded by strict photo ID requirements.
These f<strong>in</strong>d<strong>in</strong>gs are consistent with the f<strong>in</strong>d<strong>in</strong>gs of the three major social science studies
that have exam<strong>in</strong>ed the rates of ID possession <strong>in</strong> particular states. Most recently, researchers at
the University of Wash<strong>in</strong>gton studied the rates at which vot<strong>in</strong>g age citizens <strong>in</strong> Indiana possessed
the k<strong>in</strong>ds of ID required by the state's photo ID law. They found that age has a "curvil<strong>in</strong>ear
relationship" with access to photo ID, <strong>in</strong> which both younger <strong>and</strong> older voters are less likely to
have access to photo ID.' 4 Accord<strong>in</strong>g to their survey results, 19.4% of registered voters over 70
do not have valid photo IDs, as compared to !6.3%° of t^!a! registered vnters <strong>in</strong> Indiana.' 5
A 2005 study by researchers at the University of Wiscons<strong>in</strong> who exam<strong>in</strong>ed the state's
driver's license <strong>and</strong> photo ID records found that 23% of people aged 65 <strong>and</strong> older (177,399
people) <strong>in</strong> Wiscons<strong>in</strong> do not have a driver's license or a non-driver's photo ID. Of that group,
79% are women. 1 6 Researchers at the University of Georgia similarly found that older citizens <strong>in</strong>
Georgia are significantly less likely than average to have government-issued photo ID.' 7
Surveys by the AARP <strong>in</strong> Indiana <strong>and</strong> Georgia also found that sirificant numbers of seniors do
not have the k<strong>in</strong>ds of photo [Ds required by those states' laws.'
It is not surpris<strong>in</strong>g that so many seniors lack government-issued photo IDs. By far the
most common state-issued photo ID is a driver's license, but many older Americans do not drive.
Indeed, many states make it difficult for seniors to obta<strong>in</strong> driver's licenses.' 9 Relatively few
Americans, <strong>in</strong>clud<strong>in</strong>g older Americans, travel abroad, <strong>and</strong> so few have need for a passport.
/d/download file 39242.0df; cf Robert Greenste<strong>in</strong> et al, Center for Budget <strong>and</strong> Policy Priorities, Survey Indicates
House Bill Could Deny Vot<strong>in</strong>g Rights to Millions of US. Citizens (Sept. 22, 2006), htto://www.cbvy.orV/9-22.
06id.htm.
'' Citizens Without Proof, supra note 12, at 3.
Matt A. Barreto, Stephen A. Nuflo & Gabriel R. Sanchez, The Disproportionate Impact of Indiana Voter ID
Requirements on the Electorate (Work<strong>in</strong>g Paper, Wash<strong>in</strong>gton Institute for the Study of Ethnicity <strong>and</strong> Race), Nov. 8,
2007, at I1, 14, at http:/Ideots.wash<strong>in</strong>gton.edu/uwiser/documents/lndiana voter.0df. The study also found that
21.8% of black Indiana registered voters (<strong>and</strong> when non-registered citizens are <strong>in</strong>cluded, 28.3% of eligible black
Indiana citizens) do not have valid photo IDs.
Id. at 18.
John Pawasarat, Employment <strong>and</strong> Tra<strong>in</strong><strong>in</strong>g Institute, University of Wiscons<strong>in</strong>-Milwaukee, The Driver License
Status of Vot<strong>in</strong>g Age Population <strong>in</strong> Wiscons<strong>in</strong>, at I (June 2005), available at hrto://www.brennancenter.org/oaae/-
/d/download file 50902.odf.
'M. V. Hood Ill & Charles S. Bullock, 111, Worth A Thous<strong>and</strong> Words?: An Analysis of Georgia's Voter
Identification Statute, at 14 fig. I (April 2007) (presented at March 2007 Annual Meet<strong>in</strong>g of the Southwestern
Political Science Association), available at htto://www.brennancenter.org/oase/-/d/download file 50886.pdf.
' Accord<strong>in</strong>g to the Indiana AARP's survey of its registered voters, 3% of those 60 <strong>and</strong> older <strong>and</strong> 6% of those 75 or
older had neither a valid driver's license nor a state-issued identification card. See Indiana Democratic Party v.
Roklita, 458 F. Supp. 2d 775, 824 n.73 (cit<strong>in</strong>g Susan L. Silberman, Indiana AARP, Voter Identification <strong>in</strong> Indiana: A
Demographic Analysis of Impact on Older Indiana Citizens (Oct. 2005)). And accord<strong>in</strong>g to the Georgia chapter of
the AARP, 36 percent of Georgians over age 75 do not have a driver's license. See Deanna Wrenn, Three States
Debate Requir<strong>in</strong>g Voters to Show ID, Ventura County Star, Mar. 31, 2005, at 6.
" See AARP Brief, supra note 2, at 9 (not<strong>in</strong>g that 17 states, <strong>in</strong>clud<strong>in</strong>g Indiana, require older drivers to renew their
licenses more frequently than other drivers; at least 10 states require a special vision screen<strong>in</strong>g for older drivers, <strong>and</strong>
some require a physician's note attest<strong>in</strong>g to the <strong>in</strong>dividual's fitness for driv<strong>in</strong>g; <strong>and</strong> 17 states require older drivers to
appear <strong>in</strong> person at the DMV to renew their licenses).

64
Accord<strong>in</strong>g to the U.S. Department of State Bureau of Consular Affairs, only 25% of Americans
have a U.S. passport. 2 0 And, as discussed below, it is difficult for many older Americans to
fulfill the requirements for obta<strong>in</strong><strong>in</strong>g state-issued photo IDs.
Requirements for Obta<strong>in</strong><strong>in</strong>g Photo ID Are Esvecially Burdensome for Seniors
All current state-issued photo IDs cost money, either directly or <strong>in</strong>directly. Although
some states waive the direct costs of photo IDs for <strong>in</strong>digent citizens, no state waives the costs of
all the underly<strong>in</strong>g documents required to obta<strong>in</strong> a photo ID. An applicant for a state-issued photo
ID <strong>in</strong> Indiana, for example, is required to show several documents, <strong>in</strong>clud<strong>in</strong>g one of the
follow<strong>in</strong>g: a certified copy of a U.S. birth certificate, a passport, naturalization papers, or a U.S.
military or merchant mar<strong>in</strong>e photo ID. For a birth certificate search, Indiana charges $10.00, <strong>in</strong>
addition to applicable county fees; 2 ' the cost <strong>in</strong> other states can run even higher. A U.S. passport
costs $97.00.2 Replacement naturalization papers cost $380.00 <strong>and</strong> can take up to a year to
2 3
obta<strong>in</strong>.
Many older Americans do not have ready access to these documents prov<strong>in</strong>g citizenship.
Accord<strong>in</strong>g to a survey sponsored by the Center on Budget <strong>and</strong> Policy Priorities, <strong>in</strong>dividuals over
the age of 65 are much less likely to have citizenship documents than those under 65.24 The
f<strong>in</strong>ancial costs of obta<strong>in</strong><strong>in</strong>g these documents needed for photo IDs are particularly burdensome to
older voters who live on fixed <strong>in</strong>comes.
In addition to the costs of the underly<strong>in</strong>g documents required for photo ID, applicants for
photo ID must <strong>in</strong>cur the burden <strong>and</strong> costs of transportation to various government offices, often
multiple times. 2 5 This can be a significant burden to the many senior citizens for whom public
transportation is difficult to access. Older Americans are far more likely to have disabilities than
other citizens, 26 mak<strong>in</strong>g it more difficult for them to travel <strong>and</strong> to navigate the procedures
required to obta<strong>in</strong> photo ID.
" u.S. State Dep't, Frequently Asked Questions about the New Travel Document Requirements,
http://www.travel state gov/travel/cbpmc/cbpmc 2225.html#8 (last visited Jan. 28, 2008).
21 Ind. Code § 16-37 -1-l; 16-37-1-11.5.
2
U.S. Dep't of State Bureau of Consular Affairs, Passport Fees,
hnTp://travel.state.eov/passoort./et/fees/fees 837.html (last visited Jan. 28, 2008).
' U.S. Citizenship <strong>and</strong> Immigration Serv., Application for Replacement Naturalization/Citizenship Document,
http://www.uscis.gov/n-565 (last visited Jan. 28, 2008); u.S. Immigration Assistance Cte., Naturalization Frequently
Asked Questions, https://www.immieration-bureau.org/c faq.htm (last visited lan. 28, 2008).
24 Robert Greenste<strong>in</strong> et al., supra note 12, at 3; accord Families USA, Citizens Update: Adm<strong>in</strong>istration Creates
Additional Barriers to Medicaid Enrollment 6 (2006), hnt://www.familiesusa.ore/assets/ndfs.DRA-Citizensh<strong>in</strong>-
Uodate.fdf.
Z For example, the Indiana Bureau of Motor Vehicles turns away 60% of applicants for photo ID because they do
not have the required support<strong>in</strong>g documents. See Brief for Petitioners Indiana Democratic Party etal., Crawfordv.
Marion County Election Bd, No. 07-25, at 13 (U.S. 2007) (cit<strong>in</strong>g record evidence).
"' For example, 72% of Americans 80 <strong>and</strong> older <strong>in</strong> 2002 reported hav<strong>in</strong>g disabilities, as compared to 18% of all
Americans. AARP Brief, supra note 2, at 28 (cit<strong>in</strong>g U.S. Census Bureau, Table 1, Prevalence of Disabilities by
Age, Sex, Race, <strong>and</strong> Hispanic Orig<strong>in</strong>: 2002, available at
htt)://www.census.govlhhes/www/disabilitv/sipp/disabt2/dsO2t 1 .pdf.

65
For some older Americans, especially people of color, it may be extremely difficult or
impossible to obta<strong>in</strong> the documents needed for photo ID. Many m<strong>in</strong>ority citizens born before
<strong>and</strong> dur<strong>in</strong>g the 1960s were born outside of hospitals because of lack of access to health care.27
One study found that three out of four nonwhite <strong>in</strong>fants born <strong>in</strong> December 1939 <strong>and</strong> January
1940 were born at home, <strong>and</strong> that 23% of all nonwhite births outside of hospitals were
unregistered. 2t Thus, older m<strong>in</strong>ority citizens are significantly less likely to have access to a birth
certificate on file with the state.
Older women who have taken their husb<strong>and</strong>s' surnames may face the additional hurdle of
prov<strong>in</strong>g that their citizenship documents refer to them. The Brennan Center's national survey
found that only 48% of vot<strong>in</strong>g-age women with ready access to their U.S. birth certificates have
a birth certificate with their current legal name-as opposed to a name they had before marriage,
divorce, or other name change-<strong>and</strong> only 66% have ready access to any type of citizenship
document with their current legal name.
The Crawford Case Before the U.S. Supreme Court <strong>and</strong> Indiana's Voter ID Law
On January 9, 2008, the Supreme Court heard oral argument <strong>in</strong> Crawford v. Marion
County Board of Elections, a case challeng<strong>in</strong>g the constitutionality Indiana's voter ID law. The
most restrictive voter ID requirement <strong>in</strong> the country, Indiana's law requires all voters at the polls
to present a current government-issued photo ID with an expiration date. Because of its
expiration date requirement, Indiana's law excludes many forms of govemment-issued photo
IDs, <strong>in</strong>clud<strong>in</strong>g veterans' IDs, Congressional IDs, many student IDs, <strong>and</strong> work IDs.
Although many older Americans do not have the forms of ID required by Indiana's law,
its impact on older Americans is mitigated somewhat by the state's absentee ballot<strong>in</strong>g rules.
Like many pend<strong>in</strong>g voter ID proposals, Indiana's voter ID law applies only to voters who appear
at the polls <strong>and</strong> specifically excludes <strong>in</strong>dividuals who vote by absentee ballot. Unlike many
states, Indiana allows all citizens aged 65 <strong>and</strong> older to vote absentee. 3 0 Thus, a senior citizen
without voter ID can cast a valid ballot <strong>in</strong> Indiana if she votes absentee.
Vot<strong>in</strong>g absentee, however, is not an adequate substitute for the right to participate <strong>in</strong> the
political process <strong>in</strong> person. Many older Americans object to be<strong>in</strong>g excluded from the civic ritual
of vot<strong>in</strong>g at the poll<strong>in</strong>g place <strong>and</strong> be<strong>in</strong>g relegated to a second-tier vot<strong>in</strong>g mechanism. Moreover,
unlike those who vote <strong>in</strong> person, those who vote absentee must apply for, receive, <strong>and</strong> complete
their ballots well <strong>in</strong> advance of Election Day. Not only is this an added burden, but it also
deprives those voters of full <strong>in</strong>formation about the elections s<strong>in</strong>ce they must mail their ballots
before late-break<strong>in</strong>g <strong>in</strong>formation about the c<strong>and</strong>idates <strong>and</strong> campaigns. Absentee ballots are
typically less likely to be counted than regular ballots. And absentee voters must navigate
confus<strong>in</strong>g <strong>in</strong>structions without the assistance of poll workers.
2 7 See id. at 23 (cit<strong>in</strong>g S. Shapiro, Development of Birth Registration <strong>and</strong> Birth Statistics <strong>in</strong> the UnitedStates, 4
Population Studies 86,99 (1950) (citation omitted)).
21 See id (cit<strong>in</strong>g same).
2 Citizens Without Proof, supra note 12, at 2.
'°See Ind. Code § 3-11-10-22(c).

66
Indiana's law has one additional feature supposedly designed to reduce its burden on
voters who are <strong>in</strong>digent or have religious objections to photo IDs. Specifically, a voter without
acceptable photo ID may cast a provisional ballot at the polls that will count so long as the voter
travels to the circuit court clerk's office or the county election board with<strong>in</strong> ten days of the
election <strong>and</strong> swears an affidavit that he either has a religious objection to be<strong>in</strong>g photographed or
is an <strong>in</strong>digent who is unable to obta<strong>in</strong> the required ID without pay<strong>in</strong>g a fee. 3 1Indiana does not
allow voters to execute those affidavits at the polls on Election Day.
This provision is of m<strong>in</strong>imal benefit to Indiana's poor citizens, s<strong>in</strong>ce it creates an
overly-<strong>and</strong> gratuitously-burdensome process for them to have their ballots counted. Indigent
voters who do not have state-issued photo IDs do not drive <strong>and</strong> may not be able to afford the cost
of transportation (or the time) to make a second trip to vote. This creates a two-tier vot<strong>in</strong>g
system based on wealth; while most voters need only go to one government office or public
place to vote, <strong>in</strong>digent voters must go to two.
Older Americans Iniured by Indiana's Law
Because Crawford was filed before the 2006 elections <strong>in</strong> an effort to block Indiana's law
from go<strong>in</strong>g <strong>in</strong>to effect, the record <strong>in</strong> the case was developed before the law was <strong>in</strong> effect <strong>in</strong> an
election. Nonetheless, there is evidence that Indiana's law has already harmed older Americans.
First, the pla<strong>in</strong>tiffs <strong>in</strong> the case <strong>in</strong>clude a number of older Americans who do not have <strong>and</strong>
were unable to obta<strong>in</strong> the requisite ID <strong>and</strong> thus could not vote <strong>in</strong> person <strong>in</strong> Indiana. One pla<strong>in</strong>tiff
is Thelma Ruth Hunter, an 85-year-old woman who has resided <strong>and</strong> voted <strong>in</strong> person <strong>in</strong>
Indianapolis her entire life but has no photo ID. She was born at home <strong>in</strong> Tennessee, <strong>and</strong> to her
knowledge, no state record of her birth exists. At the time of the district court hear<strong>in</strong>g, she had
been unable to obta<strong>in</strong> a "delayed certificate of birth" from Tennessee <strong>and</strong> thus could not obta<strong>in</strong>
an Indiana photo ID. 32 Other older pla<strong>in</strong>tiffs <strong>in</strong>clude: Imogene Chapman, an 84-year-old woman
who has worked at the polls <strong>in</strong> Marion County for 15 years <strong>and</strong> has no state-issued photo ID;
Theresa Clemente, a 78-year-old Indiana resident who tried but was unable to obta<strong>in</strong> an Indiana
photo ID after spend<strong>in</strong>g $28.00 for a certified copy of her birth certificate from Boston; David
Harrison, a 75-year-old military veteran who has neither photo ID nor an orig<strong>in</strong>al birth certificate
<strong>and</strong> cannot afford to secure a birth certificate without charitable assistance; Lois Holl<strong>and</strong> a 69year-old
pollworker who has no photo ID <strong>and</strong> no birth certificate; Ernest Pruden, a 74-year-old
former poll worker who has neither the requisite photo ID nor a birth certificate from North
Carol<strong>in</strong>a, where he was born; <strong>and</strong> Barbara Smith, a 71-year-old woman who only has
3 3
government-issued photo ID without an expiration date.
Several older <strong>in</strong>dividuals associated with the Indiana League of Women Voters, who
submitted an amicus brief <strong>in</strong> the case, were also <strong>in</strong>jured by the law. One such <strong>in</strong>dividual is 92year-old
Mary Wayne Montgomery Eble, the daughter of a suffragette with a strong family
tradition of vot<strong>in</strong>g <strong>and</strong> civic participation at the polls. Ms. Eble has no photo ID, <strong>and</strong> she lives <strong>in</strong>
Ind. Code § 3-11.7-5-2.5. A citizen with photo ID but who did not present it at the polls may also have her
provisional ballot counted if she presents it at one of these offices with<strong>in</strong> the ten-day w<strong>in</strong>dow.
2Indiana Democratic Parry v. Rokira, 458 F. Supp. 2d 775, 778 (S.D. Ind. 2006).
33 1d

67
a rural county with no public transportation, forty-five m<strong>in</strong>utes away from the nearest state office
that issues photo IDs, <strong>and</strong> one hour away from the place she would have to go to obta<strong>in</strong> a
certified record of her birth. Ray Wardell, a 78-year-old Korean War veteran, was required to
cast a provisional ballot <strong>in</strong> a recent election because he had no photo ID after his wallet was
stolen <strong>and</strong> the state motor vehicles office refused to issue him a photo ID based on his Medicare
card. 34 For his provisional ballot to count, he would have had to obta<strong>in</strong> a photo ID <strong>and</strong> present it
to the county clerk or the election board with<strong>in</strong> ten days of the election.
In addition to voters fac<strong>in</strong>g the prospect of future disenfranchisement, there is evidence of
older Americans who were actually disenfranchised <strong>in</strong> a recent election. The bi-partisan Marion
County Board of Elections, one of the respondents <strong>in</strong> the case, asserted <strong>in</strong> their brief that at least
32 provisional ballots were not counted <strong>in</strong> a 2007 municipal election <strong>in</strong> Indianapolis because the
<strong>in</strong>dividuals who cast those ballots did not present the required ID. Most of those <strong>in</strong>dividuals had
voted <strong>in</strong> the same prec<strong>in</strong>cts for many elections.35 In a follow up report, the New York Times
identified two of the disenfranchised citizens, <strong>and</strong> both were older. Specifically, Mary-Jo
Criswell, age 71, was unable to vote us<strong>in</strong>g her bank card with a photograph, <strong>and</strong> Valerie
Williams, age 60, was barred from vot<strong>in</strong>g <strong>in</strong> the lobby of her retirement home us<strong>in</strong>g her
telephone bill, a Social Security letter with her address, <strong>and</strong> an expired Indiana driver's license. 36
These affected <strong>in</strong>dividuals are only a small portion of the Indiana citizens <strong>in</strong>jured by the
state's photo ID law. While the parties to the Crawford case disagree on the number of Indiana
citizens affected by the law, even under the state's m<strong>in</strong>imalist <strong>in</strong>terpretation of the evidence, at
least 43,000 Hoosiers lack the photo IDs required to vote <strong>and</strong> thus could be disenfranchised by
the law. (Accord<strong>in</strong>g to the petitioners, the number of Hoosiers without IDs is ten times that.)
The Baseless Justification for Indiana's Law
Like other voter ID proponents, Indiana justifies its restrictive voter ID law as a measure
to prevent voter fraud. But photo ID does not stop vote-buy<strong>in</strong>g, ballot tamper<strong>in</strong>g, absentee ballot
fraud, or even vot<strong>in</strong>g by non-citizens-the types of election misconduct that do occur. The only
type of fraud that photo ID can prevent is vot<strong>in</strong>g <strong>in</strong> the name of another registered voter at the
polls, or impersonation fraud.
The Brennan Center has extensively studied allegations of voter fraud over several years
<strong>and</strong> has found no evidence that impersonation fraud is anyth<strong>in</strong>g but an anomaly. Our recent
report, The Truth About Voter Fraud, conta<strong>in</strong>s the most comprehensive analysis of public
allegations of voter fraud." It f<strong>in</strong>ds that almost all of those allegations-many of which are
repeatedly raised by proponents of voter ID-have either been proved <strong>in</strong>correct or are
unsubstantiated <strong>and</strong> unlikely to reflect voter fraud. Instead, much evidence that purports to
"Brief of League of Women Voters of Indiana, Crawford v. Marion County Election Board, Nos. 07-21, 07-25, at
9-12 (2007), available at http://brennan.3cdn.net/65eaefDb4 1 62702fD6 4xm6iibiv.Pdf.
" Brief of Respondent Marion County Election Board, Crawvfordv. Marion County Election Bd, Nos. 07-21, 07-25,
at 16-I7 (2007), available at htn://brennan.3cdn.net/ebbb2f'ifE3bad24a92 ism6b9ki5.ndf.
16 Ian Urb<strong>in</strong>a, Voter ID Laws Are St to Face a Crucial Test, New York Times, Jan. 7, 2008, at Al 1.
(review<strong>in</strong>g allegations of voter fraud cited by state <strong>and</strong> federal courts, multipartisan <strong>and</strong> bipartisan federal
commissions, political party entities, state <strong>and</strong> local election officials, <strong>and</strong> authors, journalists, <strong>and</strong> bloggers).

eveal voter fraud can be traced to far more common causes-<strong>in</strong>clud<strong>in</strong>g clerical <strong>and</strong>
typographical errors, computer match<strong>in</strong>g errors, jump<strong>in</strong>g to unwarranted conclusions from
3 8
<strong>in</strong>formation <strong>in</strong> the voter rolls or from mail<strong>in</strong>gs, <strong>and</strong> voter errors.
68
Over the years, there have been only a h<strong>and</strong>ful of substantiated cases of <strong>in</strong>dividual
<strong>in</strong>eligible voters attempt<strong>in</strong>g to defraud the election system. But by any measure, impersonation
fraud is extraord<strong>in</strong>arily rare. That is not surpris<strong>in</strong>g, because it is irrational. Each voter fraud <strong>in</strong>
connection with a federal election risks five years <strong>in</strong> prison <strong>and</strong> $10,000 <strong>in</strong> f<strong>in</strong>es, <strong>in</strong> addition to
state penalties. 3 9 In return, the fraud-feasor st<strong>and</strong>s to ga<strong>in</strong> only one marg<strong>in</strong>al vote.
The conclusion that impersonation fraud is extremely rare is supported by the record <strong>in</strong>
the Crawford case. Indiana conceded that that it had never prosecuted a case of <strong>in</strong> person voter
fraud <strong>and</strong> that it was not aware of any actual <strong>in</strong>cidents of <strong>in</strong> person voter fraud <strong>in</strong> Indiana. What
is more, there was no show<strong>in</strong>g that Indiana's exist<strong>in</strong>g procedures or less draconian rules
elsewhere were <strong>in</strong>adequate to address any exist<strong>in</strong>g problem.
. In fact, <strong>in</strong> all the briefs submitted before the Supreme Court, the law's supporters did not
cite a s<strong>in</strong>gle proven <strong>in</strong>cident anywhere <strong>in</strong> the country of a fraudulent vote that could have been
prevented by photo ID. 4 0 Despite the fact that the Department of Justice has had a program
dedicated to voter fraud s<strong>in</strong>ce 2002, out of the more than 400 million votes that were cast s<strong>in</strong>ce
2000, the law's supporters cited only n<strong>in</strong>e unproven allegations of impersonation fraud. 4 ' These
paltry numbers make clear that impersonation fraud is not a serious problem, <strong>and</strong> they suggest
that the exist<strong>in</strong>g measures <strong>in</strong> the states to protect aga<strong>in</strong>st such fraud are sufficient to prevent
threats to election <strong>in</strong>tegrity.
Recommendations for Congress
The Supreme Court's decision <strong>in</strong> Crawford is likely to reverberate far beyond Indiana. A
decision to uphold Indiana's voter ID law will bolster efforts across the country to enact new ID
restrictions. For the reasons I have provided, that could harm the vot<strong>in</strong>g rights of millions of
older Americans.
Fortunately, the Supreme Court does not have a monopoly on protect<strong>in</strong>g vot<strong>in</strong>g rights.
Where the Constitution has been <strong>in</strong>sufficient to protect vot<strong>in</strong>g rights <strong>in</strong> the past, Congress has
stepped <strong>in</strong> <strong>and</strong> achieved excellent results. 4 2 Regardless of how the Supreme Court rules <strong>in</strong>
Crawford, there are steps that Congress can do to protect all Americans, <strong>and</strong> especially older
Americans, from disenfranchis<strong>in</strong>g voter ID requirements. These steps <strong>in</strong>clude:
3 1d. at 7-l.
3942 U.S.C. § 1973i(c), (e); 42 U.S.C. § 1973gg-10.
0 This conclusion is based on the Brennan Center's detailed analysis of all 250 alleged reports of fraud described <strong>in</strong>
all the briefs support<strong>in</strong>g <strong>in</strong> the case. See Just<strong>in</strong> Levitt, Analysis ofAlleged Fraud <strong>in</strong> Briefs Support<strong>in</strong>g Crawford
Respondents, Dec. 31, 2007, htto://wvww.truthaboutfraud.orj/Ddf/CrawfordAllegations.pdf.
4 1 id.
"' Most notably, the Vot<strong>in</strong>g Rights Act of 1965 provides more protections for m<strong>in</strong>ority voters than the Constitution.

69
* Resist restrictive ID <strong>and</strong> proof of citizenship requirements. First <strong>and</strong> foremost,
Congress should resist any attempt at the federal level to make photo ID <strong>and</strong> proof of
citizenship a pre-condition of vot<strong>in</strong>g or voter registration.
* Prohibit onerous state documentation requirements. Congress should also enact
protections to guard aga<strong>in</strong>st voter disenfranchisement as a result of restrictive stateimposed
photo ID or proof of citizenship requirements.
* Reduce the costs <strong>and</strong> burdens associated with photo IDs. Congress should make it
easier for <strong>in</strong>digent <strong>and</strong> older Americans to obta<strong>in</strong> federal photo IDs <strong>and</strong> citizenship
documents.
* Repeal onerous provision of REAL ID Act. The REAL ID Act of 2O05,43 which is
scheduled to go <strong>in</strong>to effect this year for states that do not obta<strong>in</strong> extensions, imposes a
series of burdensome federal requirements on state photo ID cards. Among those is a
requirement that each citizen show documentary proof of citizenship <strong>and</strong> that the state
verify that documentation with the Department of Homel<strong>and</strong> Security before the
<strong>in</strong>dividual is issued a driver's license or other photo ID. This will make it
substantially more difficult for older Americans to obta<strong>in</strong> state-issued photo ID cards.
The National Governors Association, the National Council of State Legislatures, <strong>and</strong>
the American Association of Motor Vehicle Adm<strong>in</strong>istrators have estimated that it will
cost states at least $1 1 billion to implement the REAL ID Act over the first 5 years.44
And a number of states have rejected the Act. To prevent a disaster, Congress should
repeal the onerous requirements of the REAL ID Act.
* Resourcesfor voter <strong>and</strong> poll worker education on ID. A significant number of voters
are asked to provide photo ID at the polls even though such ID is not required by state
law. While there has been no reliable empirical research <strong>in</strong>to how many of these
Americans have been disenfranchised as a result, the potential foruproblems is huge.
Congress should provide resources for state <strong>and</strong> local election officials to educate,
their voters <strong>and</strong> poll workers about what ID is necessary as well as what ID is not
required to vote <strong>and</strong> should require states to post accurate <strong>in</strong>formation about ID
requirements at every poll<strong>in</strong>g place. 45
Accessibility <strong>and</strong> Usability of Vot<strong>in</strong>g Systems
Although my testimony today addresses only voter identification, the Brennan Center has
also done extensive work on two other issues of significant concern to older Americans:.the
accessibility <strong>and</strong> usability of electronic vot<strong>in</strong>g systems.
3 Mak<strong>in</strong>g Emergency Supplemental Appropriations Act for Defense, the Global War on Terror, <strong>and</strong> Tsunami
Relief, 2005, Pub. L. No. 109-13, 119 Stat 231 (codified <strong>in</strong> relevant part at 49 U.S.C. § 30301 note (2005)).
USeehtto://www.ncsi.oreltr<strong>in</strong>t/statefedlReal ID Impact Rewort FINAL Seotl9.pdf.
"For more <strong>in</strong>formation, see Wendy R. Weiser <strong>and</strong> Jonah Goldman, An Agendafor Federal Election Reform (2007),
at http://www.federalelectionreform.com/odf/Federal/20Aeenda%/.20Policvoh2OPascer.pdf

70
Accord<strong>in</strong>g to the 2000 Census, there were 19.1 million Americans of vot<strong>in</strong>g age who
have trouble see<strong>in</strong>g; 30.8 million who have trouble hear<strong>in</strong>g; <strong>and</strong> 28.3 million who have physical
difficulty, <strong>in</strong>clud<strong>in</strong>g trouble grasp<strong>in</strong>g or h<strong>and</strong>l<strong>in</strong>g small objects. Not surpris<strong>in</strong>gly, the elderly are
disproportionately represented <strong>in</strong> this group. All of these disabilities make it more difficult to
vote privately <strong>and</strong> <strong>in</strong>dependently on any vot<strong>in</strong>g system.
In 2006, the Brennan Center released a four-part series of studies provid<strong>in</strong>g a
comprehensive empirical analysis of the electronic vot<strong>in</strong>g systems used <strong>in</strong> the United States. I
have submitted copies of two of those reports-one deal<strong>in</strong>g with vot<strong>in</strong>g system accessibi lity 46
<strong>and</strong> one deal<strong>in</strong>g with vot<strong>in</strong>g system usability 47 -with my testimony.
With respect to the technologies currently <strong>in</strong> use, those reports found that none of the
current vot<strong>in</strong>g systems fully satisfies HAVA's requirement that disabled voters be able to vote
privately <strong>and</strong> <strong>in</strong>dependently. They also found that all of the current vot<strong>in</strong>g systems could be
improved to ensure that voters' choices are accurately recorded. Many features that would make
vot<strong>in</strong>g systems more accessible are new to the market or still <strong>in</strong> development.
With respect to the way <strong>in</strong> which vot<strong>in</strong>g mach<strong>in</strong>es are used, the reports found that,
regardless of the specific technology used, there is still much each jurisdiction can do to ensure
that elderly voters' choices are accurately recorded <strong>and</strong> counted. The reports laid out a number
of basic usability <strong>and</strong> accessibility pr<strong>in</strong>ciples that officials should adopt when mak<strong>in</strong>g decisions
about us<strong>in</strong>g vot<strong>in</strong>g mach<strong>in</strong>es, rang<strong>in</strong>g from where mach<strong>in</strong>es should be placed <strong>in</strong> the poll<strong>in</strong>g place
to the type of ballot design that should be employed.
Just as important, election officials should work with older voters <strong>in</strong> their communities to
assess how accessible <strong>and</strong> usability their mach<strong>in</strong>es are, <strong>and</strong> what might be changed to ensure that
voters can use them. Good usability <strong>and</strong> accessibility test<strong>in</strong>g of that <strong>in</strong>cludes older Americans is
essential to ensure that their <strong>in</strong>tended votes are accurately recorded.
Thank you very much.
46 Lawrence Norden et al., The Mach<strong>in</strong>ery of Democracy, Vot<strong>in</strong>g System Accessbility, Oct 10, 2006, at
http://www.brennancenter.ora/contenttresource/the mach<strong>in</strong>ery of democracy vot<strong>in</strong>g svsterl accessibility
7 Lawrence Norden et al., The Mach<strong>in</strong>ery of Democracy: Usability of Vot<strong>in</strong>g Systems, Aug. 28, 2006, at
http://www.brennancenter.orglcontent/resource/the mach<strong>in</strong>ery of democracy vot<strong>in</strong>p system usabilit .

71
The CHAIRMAN. Thank you very much.
Before turn<strong>in</strong>g to questions for the panel, we would like to ask
our two Senators, Senator Salazar, Senator McCaskill, for any comments
they wish to make.
OPENING STATEMENT OF SENATOR KEN SALAZAR
Senator SALAZAR. Thank you very much, Chairman Kohl <strong>and</strong>
Rank<strong>in</strong>g Member Smith, for giv<strong>in</strong>g this <strong>Committee</strong> the opportunity
to hear from this excellent panel of witnesses.
The right to vote we all know <strong>in</strong> this Capitol is fundamental to
our democracy. In the past few weeks we have seen Americans vote
<strong>in</strong> primaries <strong>and</strong> caucuses from Iowa to Florida. As we know, next
Tuesday we will see them vot<strong>in</strong>g <strong>in</strong> an additional 24 States. Accord<strong>in</strong>g
to all these polls Americans are vot<strong>in</strong>g <strong>in</strong> record numbers.
Too often, follow<strong>in</strong>g an election stories beg<strong>in</strong> to emerge regard<strong>in</strong>g
the long l<strong>in</strong>es at the poll<strong>in</strong>g places, lack of access for disabled <strong>in</strong>dividuals,
or issues with vot<strong>in</strong>g mach<strong>in</strong>es. Reports show-<strong>and</strong> we
know from our own experiences-that senior voters are particularly
impacted.
As we move forward with the 2008 election <strong>and</strong> beyond, there are
a few pr<strong>in</strong>ciples that should never be forgotten.
First, every American that is eligible <strong>and</strong> registered to vote must
have access to the ballot box.
Second, elections must be transparent <strong>and</strong> exhibit the highest
level of security.
Third, m<strong>and</strong>atory requirements that are burdensome <strong>and</strong> may
<strong>in</strong>advertently disenfranchise voters should be avoided.
Fourth, every vote must count.
I believe these pr<strong>in</strong>ciples will enhance American confidence <strong>in</strong>
the election system <strong>and</strong> alleviate some of the barriers that seniors
face <strong>in</strong> the election process.
Colorado's senior population has grown 26 percent s<strong>in</strong>ce 1990.
The 2000 census counted almost half a million persons over age 65
<strong>in</strong> my State of Colorado. I am proud to say- that more than 80 percent
of these seniors are registered to vote, higher than the na-.
tional percentage.
Still, seniors <strong>in</strong>-my State of Colorado face <strong>challenges</strong> similar to
those faced by seniors across the country. Accord<strong>in</strong>g to the Colorado
Legal Center for People with Disabilities, several reports were
filed follow<strong>in</strong>g the 2006 election claim<strong>in</strong>g that seniors were unable
to cast votes due to long l<strong>in</strong>es at the poll<strong>in</strong>g place. Other reports
claim that many seniors .were unable to vote due to lack of transportation
<strong>and</strong> difficulty read<strong>in</strong>g the ballots.
Myself was <strong>in</strong> some of those very long l<strong>in</strong>es at several poll<strong>in</strong>g
places <strong>in</strong> Colorado, where seniors had to st<strong>and</strong> outside sometimes
until 10 or 11 o'clock at night when the poll<strong>in</strong>g places had closed
at 7. It was an impos<strong>in</strong>g <strong>and</strong> undue hardship on many of them <strong>and</strong>,
<strong>in</strong>deed, some of them had to leave their poll<strong>in</strong>g l<strong>in</strong>e <strong>and</strong> forego
their right to vote. I th<strong>in</strong>k this is wrong.
There are many efforts underway <strong>in</strong> Colorado to try to address
some of these concerns. For example, the Colorado Legal Center for
People with Disabilities is work<strong>in</strong>g with the State parties. The Centers
for Independent Liv<strong>in</strong>g <strong>and</strong> the Colorado Cross-Disabilities Coalition
to <strong>in</strong>crease <strong>and</strong> improve transportation assistance for sen-

72
iors on election day. These efforts are <strong>in</strong>credibly important <strong>and</strong> I
encourage other groups to jo<strong>in</strong> the cause.
The <strong>in</strong>creas<strong>in</strong>g number of seniors across the country support the
need for policy solutions to the problems that seniors face vot<strong>in</strong>g.
I want to thank Chairman Kohl <strong>and</strong> Senator Smith for putt<strong>in</strong>g
a focus on this particular issue. I would hope that one of the outcomes
of the hear<strong>in</strong>g is that we might be able to take some concrete
action to try to make sure that we have a good election <strong>in</strong>
this November.
For example, Mr. Karlawish, your comment about universal mobile
poll<strong>in</strong>g places is someth<strong>in</strong>g that perhaps we could do, Chairman
Kohl, with a letter that we might author out of this <strong>Committee</strong>
as a result of this hear<strong>in</strong>g that we could send over to the
Election Advisory Commission, ask<strong>in</strong>g them to look at how we
might be able to implement some of those solutions.
So aga<strong>in</strong>, I thank you very much for this hear<strong>in</strong>g <strong>and</strong> I thank
the witnesses for their great testimony this morn<strong>in</strong>g.
The CHAIRMAN. Thank you.
Senator McCaskill.
OPENING STATEMENT OF SENATOR CLAIRE MCCASKILL
Senator MCCASKILL. Thank you very much. I also thank you <strong>and</strong>
the Rank<strong>in</strong>g Member for this hear<strong>in</strong>g. It is very important.
You know, I have k<strong>in</strong>d of been confused by this massive effort
<strong>in</strong> our country for voter ID laws. They passed one quickly <strong>in</strong> Missouri,
immediately preced<strong>in</strong>g the November 2006 general election.
I am, I hope, not one around here to resort to ugly partisan politics.
I th<strong>in</strong>k we need to get away from that.
But the facts are the facts. I know who pushed this law <strong>in</strong> Missouri
<strong>and</strong> I know why they pushed it. It was very similar to the
Indiana law <strong>and</strong> our Missouri Supreme Court threw it out of court,
threw the law out before the election so it did not go <strong>in</strong>to effect.
If <strong>in</strong> fact these laws have been <strong>in</strong>troduced <strong>in</strong> 31 States, you
would th<strong>in</strong>k there would be a massive amount of evidence that
fraud by misidentification is rampant <strong>in</strong> this State, <strong>in</strong> this union,
<strong>in</strong> this country. I have yet to see any evidence that there is a significant
amount of fraud <strong>in</strong> this country based on misidentification
at the polls.
When I was the State auditor I actually did an audit of one of
the election boards <strong>in</strong> St. Louis. We did f<strong>in</strong>d a few problems, but
it was more likely someone vot<strong>in</strong>g that had a felony record that
shouldn't have, not that they had somebody else's ID or they
weren't who they said they were. Or someone who actually-they
hadn't cleaned up the rolls <strong>and</strong> somebody who had used their IDs
to vote two different places on one day. Inf<strong>in</strong>itesimal amount.
But we didn't f<strong>in</strong>d-<strong>and</strong> I am not aware of anywhere where there
has been found, that people are go<strong>in</strong>g to the polls <strong>and</strong> pretend<strong>in</strong>g
they are somebody they are not to try to vote.
Now on the other h<strong>and</strong>, we can all tell lots of stories about people
who want to vote who do not have this ID. Frankly, are go<strong>in</strong>g
to be confused <strong>and</strong> discouraged by the requirement that they get
it. Most of those are seniors.
The most important po<strong>in</strong>t I want to make <strong>in</strong> this open<strong>in</strong>g statement
is one out of five African-American seniors <strong>in</strong> this country do

73
not have the documentation because their mothers were not allowed
to deliver them <strong>in</strong> a hospital.
Now really, do we want to make these men <strong>and</strong> women whose
parents were not allowed to give birth <strong>in</strong> a hospital because of the
color of their sk<strong>in</strong>, do we really want to make it harder for them
to go <strong>and</strong> cast their vote <strong>in</strong> this gr<strong>and</strong> <strong>and</strong> glorious democracy? I
do not th<strong>in</strong>k we do.
I th<strong>in</strong>k we should be do<strong>in</strong>g the opposite of what many of these
laws are do<strong>in</strong>g, mak<strong>in</strong>g it easier <strong>in</strong> nurs<strong>in</strong>g homes, easier for those
who have been disenfranchised.
The idea that we are revert<strong>in</strong>g to some k<strong>in</strong>d of public policy that
is go<strong>in</strong>g to put stumbl<strong>in</strong>g blocks between those who are least advantaged
<strong>in</strong> our society <strong>and</strong> the ballot box is absolutely repugnant
to me.
I appreciate all of your testimony <strong>and</strong> I appreciate the hear<strong>in</strong>g
today.
Thank you, Mr. Chairman.
The CHAIRMAN. Thank you.
Senator Wyden.
OPENING STATEMENT OF SENATOR RON WYDEN
Senator WYDEN. Thank you very much, Mr. Chairman.
I th<strong>in</strong>k Senator Smith may have touched on it, but I guess it is
fair to say the two of us are the country's first mail-<strong>in</strong> United
States Senators.
What has been so strik<strong>in</strong>g <strong>in</strong> this discussion is, at the outset,
people said vote-by-mail would be beneficial. to Republicans. Then
I happened to w<strong>in</strong> the-election so Democrats thought it was a good
idea <strong>and</strong> Republicans didn't th<strong>in</strong>k it was a good idea.
F<strong>in</strong>ally, the people of our State basically <strong>in</strong>dicated that they had
enough of all the nonsense, put it on the ballot <strong>and</strong> Democrats <strong>and</strong>
Republicans alike said this works, this makes sense, it saves
money, it is convenient, it is accessible, there is essentially only upside
<strong>and</strong> downside.
Now, I gather-<strong>and</strong> I may have not picked up on all of your testimony.
Dr. Karlawish.
Dr. KARLAWISH. Karlawish.
Senator WYDEN. I underst<strong>and</strong> you had a reservation about- voteby-mail
because you were <strong>in</strong>terested <strong>in</strong> a more mobile k<strong>in</strong>d of system
where, <strong>in</strong> effect, you' could get out <strong>and</strong> see people.
Now, provision was made <strong>in</strong> the Oregon system through the
county elections department for people from the elections department,
one Democrat, one Republican, to <strong>in</strong> effect go <strong>and</strong> see those
k<strong>in</strong>ds of <strong>in</strong>dividuals. We have found that there has not been any
particular controversy associated with either side of the system, the
vote-by-mail system nor the go<strong>in</strong>g to visit people.
Does that help address the concern that you have that people
from the counties have done an objective k<strong>in</strong>d of fashion so as to
ensure <strong>in</strong>tegrity for the franchise is addressed?
Dr. KARLAWISH. So your State presents a unique situation which
is there is no poll<strong>in</strong>g place to go to. Wrapp<strong>in</strong>g around that fact, <strong>in</strong>
a long-term care sett<strong>in</strong>g what you want to make sure is, given the
nature of the residents there <strong>and</strong>. their disabilities, that their ability
to get their absentee ballot is facilitated.

74
That when it arrives it arrives with election officials it isn't
stored <strong>in</strong> a box somewhere so it can be stolen. That assistance with
complet<strong>in</strong>g it is available by elections officials, <strong>and</strong> that election officials
take it away from the long-term care facility.
Short of that, what you have is a setup for either not gett<strong>in</strong>g
your absentee ballot or hav<strong>in</strong>g someone else get your absentee ballot,
or unscrupulously assist you with it or otherwise destroy it, et
cetera. So-
Senator WYDEN. On that count we have had no problem with
anyth<strong>in</strong>g resembl<strong>in</strong>g an <strong>in</strong>stitutional sett<strong>in</strong>g. In other words the
people, say, at a long-term care facility-I was director of the Gray
Panthers for a long time <strong>and</strong> know those folks-have helped make
this really flow seamlessly from an <strong>in</strong>stitutional sett<strong>in</strong>g.
I thought your po<strong>in</strong>t with respect to older <strong>and</strong> disabled folks by
themselves was an <strong>in</strong>terest<strong>in</strong>g one because, there, someone might
have a question about whether they were gett<strong>in</strong>g a ballot, whether
they needed assistance. That is why the provision that I described
seemed to be particularly useful for them.
Does that affect your judgment?
Dr. KARLAWISH. The ideal system is one where people who we
trust go out <strong>and</strong> deliver ballots. Deliver them, assist people who
want assistance, <strong>and</strong> take them back for count<strong>in</strong>g. That is the ideal
system.
Senator WYDEN. I th<strong>in</strong>k we have got every one of those features.
For purposes of tak<strong>in</strong>g back for count<strong>in</strong>g, that is essentially the
postal system. That is essentially what older people have found the
most convenient to them, that they can put a stamp on someth<strong>in</strong>g
if they are <strong>in</strong> a senior hous<strong>in</strong>g project or someth<strong>in</strong>g of that nature.
Dr. KARLAWISH. But <strong>in</strong> a nurs<strong>in</strong>g home-I am not kidd<strong>in</strong>g you,
but the average resident is not keep<strong>in</strong>g a set of stamps <strong>and</strong> keep<strong>in</strong>g
their mail.
So what you would like is a system where at the nurs<strong>in</strong>g home
they show up <strong>and</strong> say we have got all the absentee ballots here for
all the residents here who are registered. OK? We be<strong>in</strong>g two people
from the Oregon State Electoral Commission are go<strong>in</strong>g to be <strong>in</strong> a
room <strong>and</strong> those who want to come to this room to fill out their ballots,
come one, come all. Or those who can't come to this room we
will go to your room <strong>and</strong> help you fill it out.
We will do this a couple days before election day so that there
is time to catch people who missed that day. We will then take
those filled out ballots back to the Oregon Electoral Count<strong>in</strong>g Commission
<strong>and</strong> count them.
Senator WYDEN. We are talk<strong>in</strong>g past each other. We have virtually
every one of those features-
Dr. KARLAWISH. That is fantastic.
Senator WYDEN [cont<strong>in</strong>u<strong>in</strong>g.] In the Oregon vote-by-mail system.
So you will back it <strong>in</strong> the future when we want to take it nationwide?
Dr. KARLAWISH. I th<strong>in</strong>k that-I actually like-your system as it
is essentially like Australia's system, because its paper ballots, et
cetera.
If you can assure that elections officials are go<strong>in</strong>g to facilities
without triggers like there has to be more than 20 absentee ballots
or a request to come, et cetera, <strong>and</strong> do<strong>in</strong>g what I described other-

75
wise, that is a great system. Put a stamp on it <strong>and</strong> let us get it
out there.
Senator WYDEN. Any of you other panelists want to comment on
it? We have had it for a decade. No allegations of fraud <strong>and</strong> abuse.
I th<strong>in</strong>k Senator Smith will recall <strong>in</strong> our first campaign, particularly
low-key, quiet, you know,. affair that-when I prevailed by 18,220
votes. We always say who is count<strong>in</strong>g <strong>in</strong> these k<strong>in</strong>ds of <strong>in</strong>stances.
Senator Smith was constantly accosted about whether there was
fraud <strong>and</strong> the like. To his great credit, he said there wasn't any.
The system worked well.
So we have got 10 years worth of history. I th<strong>in</strong>k it is f<strong>in</strong>e to debate
what to do <strong>in</strong> the future, but my view is if the country had
this November what has worked for Oregon for a full decade we
could take care of this problem.
I know this November, for example, there are people who are
go<strong>in</strong>g to show up at various poll<strong>in</strong>g places once aga<strong>in</strong>, after this debate
has gone on <strong>and</strong> on <strong>and</strong> on, <strong>and</strong> they are go<strong>in</strong>g to be told, no,
they don't vote there. They are registered somewhere else. They are
go<strong>in</strong>g to be traips<strong>in</strong>g all. around, hither <strong>and</strong> yon. At some po<strong>in</strong>t
after you go through this for several hours you give up.
With our vote-by-mail system you don't have any of that. If you
have any confusion about where you live or any k<strong>in</strong>ds-of questions
with respect to the <strong>in</strong>itial contact you have got several weeks to
work it out.
So I want to give you other panelists to weigh <strong>in</strong> with-an opportunity
to weigh <strong>in</strong> with a r<strong>in</strong>g<strong>in</strong>g endorsement of the Oregon voteby-mail
system.
I see my Chairman has his light, on <strong>and</strong> I probably have taken
more than my share of time. Would any of you other panelists or
members like to weigh <strong>in</strong>? I would be <strong>in</strong>terested <strong>in</strong> your thoughts
as well.
Ms. MARKOWITZ. Well, the Secretary of State of Vermont, <strong>and</strong>
also the immediate past president of the National Association of
Secretaries of State. I will tell you that, you know, nationally we
are really look<strong>in</strong>g closely at vote-by-mail.
There are other States that are beg<strong>in</strong>n<strong>in</strong>g to experiment with it
more broadly. Like I know <strong>in</strong> Wash<strong>in</strong>gton State there are some
counties there who are conduct<strong>in</strong>g all mail elections.
In Vermont <strong>in</strong> particular we are not quite ready for it. In part
it is because we need to wait until our voter rolls are cleaned up.
The Help America Vote Act for the first time required us to put <strong>in</strong>
place a State-wide voter registration data base.
Because of the rules of the Federal Motor-Voter laws, many of
the towns that had kept the list had voter checklists, people who
hadn't been taken off because they hadn't given-hadn't notified
the town that they had moved to a new place <strong>and</strong> registered <strong>in</strong> a
new place.
So until those vot<strong>in</strong>g rules are clean, it actually is expensive for
us. We have looked at it. We would be send<strong>in</strong>g out a lot of ballots
to people who are moved.
I suspect though that as time goes on <strong>and</strong> the Help America Vote
Act really comes <strong>in</strong>to k<strong>in</strong>d of fruition-you know, it takes some
years of <strong>in</strong>vestment before you get the return-that vote-by-mail
will become more realistic for more places.

76
Right now the way I look at it <strong>in</strong> Vermont is we make it very
easy for people to vote by mail, to ask to be sent a ballot by mail
<strong>and</strong> return it by mail. It is one of the choices <strong>in</strong> our bag of tricks
to make it easy <strong>and</strong> convenient for voters.
I have been work<strong>in</strong>g with Jason on-Dr. Karlawish, excuse meon
develop<strong>in</strong>g a pilot project to br<strong>in</strong>g mobile poll<strong>in</strong>g to Vermont
this next election to see if that is another tool that will make a significant
difference, both <strong>in</strong> access to vot<strong>in</strong>g <strong>and</strong> the <strong>in</strong>tegrity of the
process.
Senator WYDEN. Other panelists? Vote-by-mail?
Well, thank you all very much. I hope that we will go beyond
model projects <strong>and</strong> demonstration exercises.
I th<strong>in</strong>k the country says to itself, at a time when we seem to be
capable of chang<strong>in</strong>g our Blackberries <strong>and</strong> gett<strong>in</strong>g an updated, you
know, model every 60 days, how can it be that we haven't figured
out a way to preserve someth<strong>in</strong>g that our country is all about, that
the found<strong>in</strong>g fathers felt was so sacred.
We th<strong>in</strong>k we have found it <strong>in</strong> Oregon. Certa<strong>in</strong>ly there are some
logistical questions about communities that may not have the vot<strong>in</strong>g
rolls up to date <strong>and</strong> the like. That will be true for any system.
That will certa<strong>in</strong>ly be true for any system that once aga<strong>in</strong> this fall
is go<strong>in</strong>g to have people, you know, turned away, ballots not counted,
th<strong>in</strong>gs of this nature.
But when you have someth<strong>in</strong>g where the fundamentals are
sound, where it is convenient, you save money, people feel that it
preserves the paper trail, which I know all of you feel so strongly
about, it just seems to me to be a shame that we don't put it <strong>in</strong>
place for the country.
So I thank you.
Thank you for the extra time, Mr. Chairman.
The CHAIRMAN. Thank you, Senator Wyden.
Senator Smith.
Senator SMITH. Thank you, Mr. Chairman.
I would echo Ron's views on vote-by-mail. It does work for Oregon
<strong>and</strong> it is a good model for other States as they look for ways
to get elections better.
You know, I generally agree with what Senator McCaskill said,
that we are argu<strong>in</strong>g around the edges. We don't want to <strong>in</strong> any way
prohibit lawful, constitutionally liv<strong>in</strong>g people from vot<strong>in</strong>g.
I am rem<strong>in</strong>ded, though, that this really is a problem <strong>in</strong> terms of
underm<strong>in</strong><strong>in</strong>g confidence <strong>in</strong> the governments that are elected <strong>in</strong>
close elections where evidence exists that somebody did someth<strong>in</strong>g
wrong.
Recently <strong>in</strong> a neighbor<strong>in</strong>g State to Oregon there was a gubernatorial
election that one c<strong>and</strong>idate had won the first two recounts.
In the third recount the current Governor won by I believe 150
votes.
There was an <strong>in</strong>escapable fact that <strong>in</strong> one county there were
more votes cast than there were registered voters. Not by a little,
but by a lot. I hear people groan about that all the time. That is
not fair to the w<strong>in</strong>ner or the loser, frankly. It does underm<strong>in</strong>e the
ability then to go <strong>and</strong> govern.
As I th<strong>in</strong>k, Wendy, about some of your comments, I don't know
of any issue s<strong>in</strong>ce I have been a U.S. Senator that has been more

77
divisive <strong>in</strong> this body than the issue of illegal immigration. I don't
want an impediment to someone vot<strong>in</strong>g to require documents that
makes it impossible for them to vote.
But there is a practical issue. I am really ask<strong>in</strong>g for your knowledge
of the law <strong>and</strong> someth<strong>in</strong>g that I am hop<strong>in</strong>g to learn from you.
We have Motor-Voter. We have many States who give driver's licenses
to illegal aliens without any proof of their legal, right to vote.
Or is there someth<strong>in</strong>g <strong>in</strong> the State law that requires, before you go
to Motor-Voter, that they have to prove that they are legally <strong>in</strong> the
United States?
I ask this question because seniors regularly say to me, "I am
outraged at the thought that my vote will be diluted or added to
by someone who is not here constitutionally, lawfully vot<strong>in</strong>g."
Ms. WEISER. I th<strong>in</strong>k the answer is simple: Federal law-actually
the Motor-Voter law itself-prohibits States from register<strong>in</strong>g people
who aren't lawfully eligible to vote, <strong>in</strong>clud<strong>in</strong>g noncitizens,.as do
other Federal crim<strong>in</strong>al laws.
Senator SMITH. So Motor-Voter doesn't automatically register
driver's license applicants to vote.
Ms. WEISER. That is right. They must actually affirmatively
choose to register to vote at the motor vehicles office. It is not an
automatic registration. They are prohibited from fill<strong>in</strong>g out the
voter registration form unless they are citizens <strong>and</strong> eligible to vote
<strong>in</strong> the State.
Senator SMITH. They have to produce the documents you say that
they can't produce to get to register.
Ms. WEISER. To register to vote there is no documentation requirement,
except <strong>in</strong> one State, <strong>in</strong> Arizona, which has recently required
proof of citizenship <strong>in</strong> order to register to vote. This has
been caus<strong>in</strong>g huge problems <strong>in</strong> Arizona <strong>and</strong> is currently <strong>in</strong> the
courts. But everywhere else, you are supposed to swear to your eligibility
before an election official or on your registration form.
Senator SMITH. But swear<strong>in</strong>g <strong>and</strong> prov<strong>in</strong>g may be two different
th<strong>in</strong>gs. I mean, it is a crime to swear to a falsehood. I acknowledge
that. It is a serious Federal offense. But it doesn't mean they are
prov<strong>in</strong>g they are constitutionally lawfully vot<strong>in</strong>g then.
Ms. WEISER. It is true that there is no proof of citizenship required
<strong>in</strong> order to register to vote across the country. Photo ID requirements
that are be<strong>in</strong>g put <strong>in</strong> place across the country also don't
require proof of citizenship, <strong>and</strong> so they don't do anyth<strong>in</strong>g to prevent
this problem that you are suggest<strong>in</strong>g people are afraid of, of
noncitizens vot<strong>in</strong>g.
Senator SMITH. Do you have a suggestion for how we strike this
balance? Because I don't know that we will ever get it perfect, but
we need to get it nearly perfect for the sake of the <strong>in</strong>tegrity of our
democracy.
MS. WEISER. Well, right now there has been a pretty good balance
struck by Congress <strong>and</strong> across the country <strong>and</strong> we can see the
results. We actually don't have any proven cases, or almost any
proven cases of <strong>in</strong>-person voter fraud, the k<strong>in</strong>ds of fraud targeted
by these ID laws.
Of the about 250 allegations of voter fraud that were submitted
before the Supreme Court-we <strong>in</strong>vestigated all of them-most of
them were either debunked or otherwise were unsubstantiated. I

78
th<strong>in</strong>k there were only n<strong>in</strong>e unsubstantiated allegations <strong>and</strong> all the
other allegations were not reflective of <strong>in</strong>-person voter fraud.
So whatever problems you are seek<strong>in</strong>g to address do not get addressed
by these k<strong>in</strong>ds of ID bills.
Senator SMITH. That is very helpful. Thank you.
Another legal question I would like to ask, I th<strong>in</strong>k to you, Michael.
You talk about mental <strong>in</strong>capacity. If someone cannot express
their volition, is there a legal po<strong>in</strong>t at which they don't vote? They
don't get to vote or someone doesn't get to vote for them?
Mr. WATERSTONE. Practically or legally?
Senator SMITH. Legally.
Mr. WATERSTONE. Actually, Secretary Markowitz <strong>and</strong> Dr.
Karlawish, I th<strong>in</strong>k have actually done more work <strong>in</strong> this area than
I have
Senator SMITH. Any of you. I am just really curious because this
would be a rare <strong>in</strong>stance. But I mean, if somebody has mental <strong>in</strong>capacity-
Mr. WATERSTONE. Yes.
Senator SMITH [cont<strong>in</strong>u<strong>in</strong>g.] They cannot manifest their volition,
their choice, what do you do?
Mr. WATERSTONE. There are
Senator SMITH.Do they not vote?
Mr. WATERSTONE. There are a number of States that expressly
disenfranchise certa<strong>in</strong> categories of people with mental disabilities.
Some States provide that people that under guardianship are automatically
disenfranchised.
Actually, <strong>in</strong> one case a federal district court <strong>in</strong> Ma<strong>in</strong>e held that
this violated both the Equal Protection clause <strong>and</strong> the Americans
with Disabilities Act. There was recently a case <strong>in</strong> the Eighth Circuit
that came out the other way on that.
So that is the legal frontier at which that occurs, States that attempt
to disenfranchise certa<strong>in</strong> categories of people. In terms of
how that capacity assessment can <strong>and</strong> should be done correctly <strong>and</strong>
what questions should be asked, that is really an area that Dr.
Karlawish has researched.
Dr. KARLAWISH. Yes. I th<strong>in</strong>k the issue of the capacity to vote is
one that its assessment resides, <strong>and</strong> should reside if a State wants
to deal with that issue, <strong>in</strong> the courts <strong>in</strong> the context of, say, guardianship
hear<strong>in</strong>gs <strong>and</strong> here is why.
Canada, the entire country, has no provision for what it means
to be competent to vote. The State of Ill<strong>in</strong>ois as well has no provision
for what it means to be competent to vote. You th<strong>in</strong>k, well,
what is go<strong>in</strong>g on here, you know, <strong>in</strong> Canada.
Well, the answer is is that vot<strong>in</strong>g capacity actually is ultimately
a performative capacity. What I mean by performative capacityit
is a weird statement-is it is someth<strong>in</strong>g that someone ultimately
has to do.
So someone says, you know, "I want to vote" <strong>and</strong> then proceeds
to pick. If somebody needs to assist them pick<strong>in</strong>g, they read the
ballot to them <strong>and</strong> they say, "Which is your choice?" If they can't
perform that act <strong>and</strong> make a choice they can't vote. So it works
itself out functionally.

79
As for the issue of deem<strong>in</strong>g someone not competent to vote, that
is I th<strong>in</strong>k a separate matter for the courts if the courts <strong>in</strong> a State
choose to want to do that. In this country it is State by State.
But I want to aga<strong>in</strong> rem<strong>in</strong>d. Ill<strong>in</strong>ois has no provision for that.
Canada dropped it <strong>in</strong> the 1980's.
Senator SMITH. They have had problems <strong>in</strong> Chicago with that
very issue, I th<strong>in</strong>k. Just kidd<strong>in</strong>g.
I appreciate that <strong>and</strong> your answers have been great. I th<strong>in</strong>k you
all very much for your be<strong>in</strong>g here.
I ask these questions <strong>in</strong> part because these are-as many of you
have noted, this is an issue that is go<strong>in</strong>g to grow as our society
ages. The more of the blanks we can fill <strong>in</strong> <strong>and</strong> get it right, the
more valid will be election results <strong>in</strong> terms of a day of decision <strong>and</strong>
a mov<strong>in</strong>g forward <strong>in</strong> another chapter <strong>in</strong> our democracy.
But if our elections are filled with loopholes <strong>and</strong> allegations of
fraud, which I suppose will always happen <strong>in</strong> some place, some corner
of the country, it does get <strong>in</strong> the way of we the people manifest<strong>in</strong>g
our will.
I just thank you all for your service <strong>in</strong> this area <strong>and</strong> for your contribution
today.
The CHAIRMAN. Thank you very much.
Senator McCaskill.
Senator MCCASKILL. Thank you, Mr. Chairman.
I want to tell the secretary of state that my son goes to college
<strong>in</strong> Vermont, but he did go with me <strong>and</strong> vote absentee for next
Tuesday before he came back to college. So if he shows up when
you all have your primaries-
Ms. MARKOWITZ. We will watch for him.
Senator MCCASKILL [cont<strong>in</strong>u<strong>in</strong>g.] Put him <strong>in</strong> jail.
I am-it was <strong>in</strong>terest<strong>in</strong>g to hear from you, Ms. Weiser, that what
you said <strong>in</strong> response to a question was essentially what I have
found. That is that this myth, this mythical problem that is out
there about <strong>in</strong>-person voter ID just simply isn't happen<strong>in</strong>g, that
someone is fraudulently us<strong>in</strong>g an ID or try<strong>in</strong>g to be someone they
are not.
Does anyone on the panel-do they know of any example that
has occurred <strong>in</strong> this country, where someone has showed up without
a picture ID <strong>and</strong> tried to pretend they are someone else <strong>and</strong>
tried to vote?
Ms. MARKOWITZ. Well, <strong>in</strong> Vermont we had one <strong>in</strong>stant.
Senator MCCASKILL. One. I found one.
Ms. MARKOWITZ. It was-<strong>and</strong> actually, when you hear it you will
chuckle because it wasn't nefarious. It was a fellow who came <strong>and</strong>
voted <strong>in</strong> the morn<strong>in</strong>g <strong>and</strong> then he went. home.
It turns out his dad wasn't feel<strong>in</strong>g so well so he went out to do
some chores for his father. He was go<strong>in</strong>g to pick up his prescriptions
<strong>and</strong>, you know, some groceries <strong>and</strong> then stop to vote for him
<strong>and</strong>-because he wasn't go<strong>in</strong>g to be able to make it down.
A fellow came <strong>in</strong> to check <strong>in</strong> <strong>and</strong> he said, "Well, I am just go<strong>in</strong>g
to vote the way my father told me to for him." He just didn't get
it, that you can't vote for somebody else. It is true, that is not, you
know, logical to everybody.
The Attorney General's office did not prosecute <strong>in</strong> that case. He
didn't actually cast the ballot. He was recognized after he had gone

80
<strong>in</strong>to the ballot box, though, <strong>and</strong> so the ballot he had taken was
spoiled.
Senator MCCASKILL. I want to ask if any of you are aware of
cases like this. I do th<strong>in</strong>k that when someone comes <strong>in</strong>to a nurs<strong>in</strong>g
home <strong>and</strong> tries to prey on the members <strong>and</strong> cast their ballots, there
are mechanisms with<strong>in</strong> the system that catches that.
I happen to have lived a real life. When I was a very young assistant
prosecutor <strong>in</strong> Kansas City back <strong>in</strong> the late 1970's there was
an owner of a very large senior center nurs<strong>in</strong>g home that came to
the prosecutor's office <strong>and</strong> said I want you all to prosecute this
man. He comes around every election <strong>and</strong> goes up <strong>and</strong> down the
hall <strong>and</strong> votes everyone <strong>and</strong> the nurs<strong>in</strong>g staff <strong>and</strong> everyone realizes
he is do<strong>in</strong>g them.
He is <strong>in</strong> fact mark<strong>in</strong>g the ballot or tell<strong>in</strong>g them who to vote for.
He is prey<strong>in</strong>g on these elderly people. Most of them don't know
what is happen<strong>in</strong>g. He is, you know, he was do<strong>in</strong>g it <strong>in</strong> a massive
way. I mean, he was not just go<strong>in</strong>g to one or two people. He was
try<strong>in</strong>g to get at least 20 or 30 votes out of every nurs<strong>in</strong>g home.
So the owner of the nurs<strong>in</strong>g home came to the prosecutor's office
<strong>and</strong> guess who got the file? I actually did a jury trial <strong>in</strong> the courtroom
of voter-absentee voter. fraud aga<strong>in</strong>st this man who had
made a career out of deliver<strong>in</strong>g so many votes for his party every
election <strong>in</strong> nurs<strong>in</strong>g homes.
It was an <strong>in</strong>terest<strong>in</strong>g case. It was a jury trial. He pled not guilty.
In fact there were two of them, he <strong>and</strong> his partner, who was a
woman who did this. Unfortunately, half of our witnesses died before
we could get the case to trial. But they were convicted <strong>and</strong>
they were disenfranchised. These were big activists <strong>in</strong> the party of
their choice.
So I have seen first h<strong>and</strong>.that if there is abuse there are mechanisms
out there <strong>in</strong> the community that br<strong>in</strong>gs it to the attention
of the authorities, particularly if it is be<strong>in</strong>g done <strong>in</strong> a methodical
way.
So I really believe that if-now, are there other <strong>in</strong>stances that
you all are aware of? Doctor, are you aware of <strong>in</strong>stances like that
where that is ongo<strong>in</strong>g <strong>in</strong> some of these nurs<strong>in</strong>g homes <strong>and</strong> senior
centers?
Dr. KARLAWISH. Yes. I would say if you just type <strong>in</strong>to Lexus-
Nexus long-term care/nurs<strong>in</strong>g home election election fraud, <strong>and</strong>
make it a broad search of all newspapers, you will f<strong>in</strong>d a ream of
local newspaper reports of just the k<strong>in</strong>d of stuff you are talk<strong>in</strong>g
about.
If you go to our Web site, pennadc.org, <strong>and</strong> click on Facilitat<strong>in</strong>g
Vot<strong>in</strong>g as People Age-we have a reference to several of those stories.
Whether they are true or not is, I th<strong>in</strong>k, really not the issue. The
issue is that the local nurs<strong>in</strong>g home becomes the lighten<strong>in</strong>g rod for
accusations of fraud, usually by a disgruntled loser of a close local
race.
I cited that, for example, earlier <strong>in</strong> my testimony, just <strong>in</strong> Philadelphia
a guy lost by 120 votes for a council race. He cites a bunch
of absentee ballots where they all bear similar mark<strong>in</strong>gs that look
like one person filled them all out at a local long-term care facility.
He cites fraud. He wants redress. He is angry. Whether he is right

81
or wrong isn't the issue. The po<strong>in</strong>t is that nurs<strong>in</strong>g homes are this
lighten<strong>in</strong>g rod for fraud.
Personally <strong>and</strong>, well, conceptually, I don't th<strong>in</strong>k that wait<strong>in</strong>g for
accusations of fraud <strong>and</strong> an <strong>in</strong>vestigation of it is the way to prevent
that fraud. Because really, the ability to get to trial, such as you
so skillfully did, is really tough to do. If that is the-.
Senator MCCASKILL. No, I was just the low assistant on the
totem pole. I got the file because I was not gett<strong>in</strong>g homicides <strong>and</strong>
burglaries <strong>and</strong> robberies.
Dr. KARLAWISH. Look where it got you.
Senator MCCASKILL. Well-.
Dr. KARLAWISH. You know, when I look at that-<strong>and</strong> I th<strong>in</strong>k
though-<strong>and</strong> if you then look at that problem, the problem is that
it is only one side of the problem. If that is your only focus it tends
then to lead to ways that, ultimately I am afraid, could stigmatize
<strong>and</strong> disenfranchise nurs<strong>in</strong>g home residents. Because the other side
is the story of the people who wanted to vote who didn't make it
<strong>in</strong> time for registration
Senator MCCASKILL. Right.
Dr. KARLAWISH [cont<strong>in</strong>u<strong>in</strong>g.] Never had the chance to get their
absentee ballot ordered. When the ballot showed up they weren't
helped to fill it out. Or they weren't registered for an absentee ballot,
because most States are not like Oregon, <strong>and</strong> they couldn't get
to the poll<strong>in</strong>g site that is on the other side of town where their
nurs<strong>in</strong>g home-you know, because they are <strong>in</strong> a nurs<strong>in</strong>g home that
is on the other side of the city.
So that is why I th<strong>in</strong>k a system that addresses both the fraud
that you prosecuted successfully, as well as the people who went
to vote. A third of the nurs<strong>in</strong>g homes <strong>in</strong> both the entire State of
Virg<strong>in</strong>ia <strong>and</strong> the city of Philadelphia, one-third of the nurs<strong>in</strong>g
homes reported that there were some residents who wanted to vote
but could not vote because of these k<strong>in</strong>d of mistakes <strong>and</strong> errors.-
I want a system that addresses both issues. That model is out
there. It is done <strong>in</strong> Australia. It is done <strong>in</strong> Canada. There are setups
<strong>in</strong> the State of Maryl<strong>and</strong>. Sounds like Oregon may have someth<strong>in</strong>g
like that, although that is fairly recent because we didn't capture
that <strong>in</strong> our search of the laws that went back a few yeas ago
done by Charlie Sabat<strong>in</strong>o <strong>and</strong> colleagues at the American Bar Association.
That system is a system of mobile poll<strong>in</strong>g, where we don't rely
on a well-mean<strong>in</strong>g person who wants to come <strong>in</strong> <strong>and</strong> gather the
votes, <strong>and</strong> potentially steal the votes, or an overworked busy social
worker or activities director who has got a lot of other th<strong>in</strong>gs on
"typically" her plate to deal with <strong>in</strong> addition to gett<strong>in</strong>g people registered
<strong>and</strong> voted. Gett<strong>in</strong>g them to the polls if they happen to be
registered at another part of town.
I want a system where we come <strong>in</strong>, we get them registered, we
help them cast their ballots, we br<strong>in</strong>g those ballots back <strong>and</strong> we
count them. That is the system we need <strong>in</strong> this country.
Senator MCCASKILL. Well, that certa<strong>in</strong>ly makes sense. I th<strong>in</strong>k if
we could do that, <strong>and</strong> especially as my generation ages <strong>and</strong> we
have more <strong>and</strong> more <strong>and</strong> more <strong>and</strong> more <strong>and</strong> more <strong>and</strong> more people
that are <strong>in</strong> these assisted liv<strong>in</strong>g centers <strong>and</strong> long-term care facilities
it is important.

82
By the way, we can f<strong>in</strong>d out where they all are because most of
them are gett<strong>in</strong>g some k<strong>in</strong>d of services-
Dr. KARLAWISH. Right.
Senator MCCASKILL [cont<strong>in</strong>u<strong>in</strong>g.] Through the government <strong>in</strong> one
way or another.
So I th<strong>in</strong>k the work that we are do<strong>in</strong>g here is very important,
Mr. Chairman, <strong>and</strong> I appreciate the hear<strong>in</strong>g <strong>and</strong> I appreciate your
opportunity to allow me to ask questions.
Thank you very much all of you.
Mr. WATERSTONE. Mr. Chairman, just one po<strong>in</strong>t-
The CHAIRMAN. Go ahead.
Mr. WATERSTONE [cont<strong>in</strong>u<strong>in</strong>g.] I want to make. I would hope that
the efforts to develop mobile poll<strong>in</strong>g are not tied to efforts to have
States adopt universal absentee ballot<strong>in</strong>g or postal vot<strong>in</strong>g. The reason
simply is that universal postal vot<strong>in</strong>g, there is a whole other
set of issues which I am not at all accomplished or skilled to talk
about.
But my underst<strong>and</strong><strong>in</strong>g just as a citizen is that some people have
strong views that they shouldn't do it. People have to go to the poll<strong>in</strong>g
place. I wouldn't want to get this important issue lost <strong>in</strong> the
other issue of is it good to have all postal vot<strong>in</strong>g or not. In other
words sort of a-baby-bathwater problem.
The CHAIRMAN. The issues are separate. They are very separate,
right. We shouldn't confuse one with the other.
Mr. WATERSTONE. Right.
The CHAIRMAN. We talked this morn<strong>in</strong>g about the Oregon system
now quite often. I th<strong>in</strong>k you, Ms. Markowitz, said you didn't th<strong>in</strong>k
your State was ready for it. I didn't quite underst<strong>and</strong> what you
were say<strong>in</strong>g.
Ms. MARKOWITZ. In order for an all vote-by-mail system to
work-the way it works <strong>in</strong> Oregon is everyone on the checklist gets
a ballot. That means that your voter checklist has to be very accurate
<strong>and</strong> up to date.
Frankly, <strong>in</strong> Vermont we are still gett<strong>in</strong>g up to speed there. It is
go<strong>in</strong>g to take some years of-the way that the Federal Motor-Voter
law works is that when somebody moves, unless they have given
you written permission or verbal permission to take their name off
of your checklist, or unless you get a notification that they registered
<strong>in</strong> a new location, they have to stay on your checklist until
they have missed two general elections. OK? So that is a long time.
But pretty soon we are go<strong>in</strong>g to be there. You know, we are go<strong>in</strong>g
to be able to drop off these folks who we know have moved. So <strong>in</strong>
some of our larger communities that have a lot of transient population,
they might have, oh, 5,000 on the voter registration rolls
that they know have lived somewhere else.
Now, under our new Help America Vote Act statewide voter registration
data base all new registrants aren't go<strong>in</strong>g to have that
problem. We have a system <strong>in</strong> place so that there is sort of an
email notification with<strong>in</strong> the State when somebody registers <strong>in</strong> a
new place. There is a duplicate check capacity. But it is the backlog
of old stuff that was imported <strong>in</strong>to our fancy new system.
So for the moment it is not practical. I don't have a town clerk
who will-because we run our elections by town-who would feel
confident <strong>in</strong> send<strong>in</strong>g out ballots on the exist<strong>in</strong>g checklist because

83
they all know that we haven't yet cleaned up our rolls. We have
got folks on the checklist who they knew moved, but who they are
not under Federal law able to take off the checklist yet.
The CHAIRMAN. So you are suggest<strong>in</strong>g that while it may work <strong>in</strong>
a State like Oregon with its particular geography <strong>and</strong> demographics,
all across our country it would not be practical today.
Ms. MARKOWITZ. Well, every State has its own unique history,
practices, traditions <strong>and</strong> laws. So it is very successful <strong>in</strong> Oregon.
I th<strong>in</strong>k we can all learn from that. There probably are places where
it would work quite well, but not everywhere.
The CHAIRMAN. Anybody disagree with that?
Mr. WATERSTONE. If I could just add one po<strong>in</strong>t to that. When we
are talk<strong>in</strong>g about absentee vot<strong>in</strong>g or mail-<strong>in</strong> vot<strong>in</strong>g, it is also important
to remember that absentee ballot<strong>in</strong>g or ballots that people
fill out at home are not <strong>in</strong>herently <strong>in</strong> <strong>and</strong> of themselves accessible.
The ability to cast a secret <strong>and</strong> <strong>in</strong>dependent ballot, to the extent
someone can <strong>and</strong> wants to, is a value that is protected <strong>in</strong> the poll<strong>in</strong>g
place. If we are talk<strong>in</strong>g about vot<strong>in</strong>g <strong>in</strong> less traditional places,
that is someth<strong>in</strong>g we need to th<strong>in</strong>k about also, even <strong>in</strong> the absentee
format. There is work be<strong>in</strong>g done on that, experiment<strong>in</strong>g with
HTML vot<strong>in</strong>g, <strong>in</strong>ternet vot<strong>in</strong>g. I know <strong>in</strong> Europe they have worked
on text message vot<strong>in</strong>g.
So as we are look<strong>in</strong>g ahead <strong>in</strong> this <strong>and</strong> th<strong>in</strong>k<strong>in</strong>g about perhaps
chang<strong>in</strong>g the traditional role of the poll<strong>in</strong>g place, I th<strong>in</strong>k we need
to remember that secret <strong>and</strong> <strong>in</strong>dependent ballots are someth<strong>in</strong>g
that many people who vote absentee are able to do. We need to
th<strong>in</strong>k about extend<strong>in</strong>g that value to the extent we can to all citizens.
The CHAIRMAN. Anybody have any strong arguments with respect
to Dr. Karlawish <strong>and</strong> what he talked about mobile vot<strong>in</strong>g. I
th<strong>in</strong>k we all underst<strong>and</strong> what it is <strong>and</strong> he went <strong>in</strong>to it <strong>in</strong> some
great detail. Is that the place we really want to get to?
Ms: BOVBJERG. If I may just jump <strong>in</strong> on disability <strong>and</strong> vot<strong>in</strong>g
more broadly. What we heard from advocates for disabled people
was this sense that the American th<strong>in</strong>g to do, the th<strong>in</strong>g that the
general population does, is what they want to be able to do, too.
So <strong>in</strong> th<strong>in</strong>k<strong>in</strong>g about different ways of provid<strong>in</strong>g access, <strong>in</strong>clud<strong>in</strong>g
alternative methods, it is just important to remember that if the
general population is go<strong>in</strong>g to the polls, those polls are supposed
to be accessible to all Americans, <strong>in</strong>clud<strong>in</strong>g people with some form
of impairment.
So if vot<strong>in</strong>g by mail is done-if the general population is vot<strong>in</strong>g
by mail as <strong>in</strong> Oregon, that is a little different. But that is not necessarily
what disability advocates would see as be<strong>in</strong>g full access.
The CHAIRMAN. I see.
Senator SMITH. If I may just add one th<strong>in</strong>g, that I th<strong>in</strong>k from our
work that we have done after the 2000 <strong>and</strong> 2004 elections, one of
the issues that I haven't heard discussed here is that voters themselves
want alternatives. Older voters want alternatives. They
don't want to be able to vote only at the polls or only absentee.
They want some alternatives.
Early vot<strong>in</strong>g, for example, that goes on for 20 days or someth<strong>in</strong>g,
allows them to choose a day with good weather to go vote. Whereas
they don't have a choice on election day as to what the weather is

84
like. If it is icy <strong>and</strong> snowy they may not go. So that gives them options.
So that they want the alternatives. They want the alternatives
that exist for everybody else. But it is not-for example, we just
f<strong>in</strong>ished some work on bil<strong>in</strong>gual vot<strong>in</strong>g, particularly elderly Ch<strong>in</strong>ese
vot<strong>in</strong>g. Voters <strong>in</strong> Boston <strong>and</strong> Los Angeles actually prefer to do
absentee vot<strong>in</strong>g because it gives them more time to go over the ballot
<strong>and</strong> they sometimes have translation issues. So they really
don't-I mean their preference is to get an absentee ballot, not to
go to the polls <strong>and</strong> vote.
So I th<strong>in</strong>k the issue here is the alternatives that are available
<strong>and</strong> people have choices that they themselves can exercise.
The CHAIRMAN. I have a bill-I would like your comment on itthat
would establish weekend vot<strong>in</strong>g as preferable to vot<strong>in</strong>g on a
Tuesday. You all are somewhat expert on elections, but <strong>in</strong>terested
<strong>in</strong> your op<strong>in</strong>ion on that.
Would we get a much higher participation <strong>in</strong> this country if we
had weekend vot<strong>in</strong>g as opposed to vot<strong>in</strong>g on the first Tuesday <strong>in</strong>
November?
Ms. MARKOWITZ. You might have an easier time gett<strong>in</strong>g poll
workers.
The CHAIRMAN. Easier time what?
Ms. MARKOWITZ. Gett<strong>in</strong>g poll workers.
The CHAIRMAN. Yes. Poll workers. But-
MS. MARKOWITZ. This is someth<strong>in</strong>g that we have heard
The CHAIRMAN. [cont<strong>in</strong>u<strong>in</strong>g.] In terms of the
MS. MARKOWITZ [cont<strong>in</strong>u<strong>in</strong>g.] A lot about-
The CHAIRMAN [cont<strong>in</strong>u<strong>in</strong>g.] In terms of our participation <strong>in</strong> this
country <strong>and</strong>, you know, where we are <strong>and</strong> where we want to get
to, without respect now to disabled or people <strong>in</strong> long-term care sett<strong>in</strong>gs.
If we had weekend vot<strong>in</strong>g, you know, the argument be<strong>in</strong>g the
first Tuesday <strong>in</strong> November is no longer a time when everybody can
get out to vote. They are all too busy, or so many people are too
busy. Would weekend vot<strong>in</strong>g <strong>in</strong> your op<strong>in</strong>ion significantly <strong>in</strong>crease
participation <strong>in</strong> this country?
MS. MARKOWITZ. I believe it has that potential. What is <strong>in</strong>terest<strong>in</strong>g
<strong>in</strong> Vermont is we hold our local elections <strong>in</strong> March, the first
Tuesday <strong>in</strong> March <strong>and</strong>-but the way we do it is <strong>in</strong> town meet<strong>in</strong>g,
where people come <strong>and</strong> they stay for most of the day <strong>and</strong> debate
issues <strong>and</strong> vote on issues <strong>and</strong> on the local issues.
Some years ago we permitted communities to move town meet<strong>in</strong>g
to Saturday or Sunday before that Tuesday. We did f<strong>in</strong>d an <strong>in</strong>crease
<strong>in</strong> some towns, but <strong>in</strong> some towns we saw no change at all.
The difference though between our experience of town meet<strong>in</strong>g
<strong>and</strong> this proposal is the commitment of time. You know, when you
come to town meet<strong>in</strong>g you have to be prepared to stay 4 hours or
more. When you go to vote you are go<strong>in</strong>g <strong>in</strong> <strong>and</strong> out.
I th<strong>in</strong>k a weekend election would help with election adm<strong>in</strong>istration.
I th<strong>in</strong>k it is true it would make it easier to f<strong>in</strong>d volunteer poll
workers. But there are a lot more people who aren't work<strong>in</strong>g, <strong>and</strong>
so it would make it more convenient.
It might spread the work out. You know, the other challenge, you
know, when you see the l<strong>in</strong>es at the end of the day because every-

85
body is cluster<strong>in</strong>g to come to vote when they are done with work.
There are slower times, you know, 10 <strong>in</strong> the morn<strong>in</strong>g, 2 <strong>in</strong> the
afternoon. Weekend vot<strong>in</strong>g might help smooth out some of those
issues as well. So I th<strong>in</strong>k it is a f<strong>in</strong>e idea.
The CHAIRMAN. Ms. Weiser.
Ms. WEISER. If I may just add one more item on the table. We
have talked about a range of barriers to older Americans <strong>and</strong>
Americans with disabilities. One that isn't on the table is voter registration
<strong>and</strong> the voter registration system.
I did want to flag that the Motor-Voter law was <strong>in</strong>tended also to
make it easier for the many Americans who use disability agencies
<strong>and</strong> other social service agencies, to register to vote. That has not
been implemented very well across the country. There are really a
range of other steps that can be taken to make registration more
accessible for many older Americans, too.
The CHAIRMAN. Any other comments from the panel? Or anyth<strong>in</strong>g
at all with respect to our discussion this morn<strong>in</strong>g?
You have been very, very helpful. It has been a very <strong>in</strong>formative
panel <strong>and</strong> we thank you so much for com<strong>in</strong>g.
Mr. WATERSTONE. Thank you.
Ms. BOVBJERG. Thank you.
With that, the <strong>Committee</strong> is adjourned.
[Whereupon, at 12:16 p.m., the <strong>Committee</strong> was adjourned.]

ID Requirements Discourage Voters
No Vote Without Photo ID: . . '
Voters without photo ID receive
provisional or challenged ballot, must show
photo ID to have ballot counted
No Vote Without Non-Photo ID: Voters without
photo or non-photo ID receive provisional or challenged
ballot, must show photo or non-photo ID to have ballot counted
No Regular Ballot Without Photo ID: Voters without photo ID
receive provisional or challenged ballot, ballot counted if voter is
eligible
No Regular Ballot Without Non-Photo ID: Voters without
photo or non-photo ID receive provisional or challenged
ballot, ballot counted if voter is eligible
Source: Brennan Center for Justice, 2008
= ID Requested, Not Required: Photo ID
may be requested but is not required to
vote a regular ballot; either non-photo
ID or affidavit accepted, depend<strong>in</strong>g on
junsdiction
W HAVA requirements only: HAVA requires
photo or non-photo ID at the polls for firsttime
voters who did not provide verification
by mail registrahon
z4
I-1

Summary
88
CITIZENS WITHOUT PROOF:
A SURVEY OF AMERICANS' POSSESSION OF DOCUMENTARY
PROOF OF CIT17ENSHIP AND PHOTO IDENTIFICATION
VOTING IIGHTS1 &
ELECTIONS SERIES
A recent national survey sponsored by the Brennan Center for Justice at NYU School of
Law reveals that millions of American citizens do not have readily available documentary
proof of citizenship. Many more -prmarily women -do not have proof of citizenship
with their current name. The survey also showed that millions of American citizens do
not have govemment-issued photo identification, such as a driver's license or passport.
F<strong>in</strong>ally, the survey demonstrated that certa<strong>in</strong> groups - primarily poor, elderly, <strong>and</strong>
m<strong>in</strong>ority citizens - are less likely to possess these forms of documentation than the
general population.
From November 16-19, 2006, the <strong>in</strong>dependent Op<strong>in</strong>ion Research Corporation conducted
a telephone survey of 987 r<strong>and</strong>omly selected vot<strong>in</strong>g-age American citizens. The survey
<strong>in</strong>cluded several questions sponsored by the Brennan Center, ask<strong>in</strong>g whether respondents
had readily available documentary proof of citizenship or government-issued photo
identification, <strong>and</strong> if so, whether it conta<strong>in</strong>ed current <strong>in</strong>formation:
I) Do you have a current, unexpired government-issued ID with your picture on
it. like a driver's license or a military ID?
2) If yes, does this photo ID have both your current address AND your current
name (as opposed to a maiden name) on it?
3) Do you have any of the follow<strong>in</strong>g citizenship documents (U.S. birth
ccrtificate/U.S. passportlU.S naturalization papers) <strong>in</strong> a place where you can
quickly f<strong>in</strong>d it if you had to show it tomorrow?
4) If yes, does [that document] have your current name on it (as opposed to a
maiden name)?
Scholars recognize ihat many telephone surveys underrepresent low-<strong>in</strong>corne mid m<strong>in</strong>ority households.
See. eg., Stephen J. Blumberg et aL., Telephone Coverage <strong>and</strong> Health Survey Est<strong>in</strong>ates: Evaluat<strong>in</strong>g the
Need for Concern About Wireless Substitution. 96 AM. I. PUBLIC HEALTH 926 (2006); US. BUREAU OF
THE CENsUs, STATIsTIcAL BRIEF: PHONELESS IN AMERICA(1994),at
htto:./wsw.wcensus.rsov/assdwwsv siatlhief/sb94 16.pdf Although the resuli of this survey vere
weighted to account for underrepresentation of race, they were not weighted to account for a likely skew
toward higher-<strong>in</strong>come households. Because the survey fo<strong>in</strong>d that low-<strong>in</strong>come households were less likely
to have documentary proof of citizenship or photo ID. it is theretore likely that the survey results actually
underestimate the total number of American citizens who do not have readily asailable documeitation.
Bremnan Center for Justice at NYU School Of Law
161 Avenue of the Americas, 12" Floor * New York. NY 10013
212-998-6730 * wwvw brenmancenter.org v, orem ber 2006

89
Survey results: proof of citizenship
As many as 7% of United States citizens - 13 million <strong>in</strong>dividuals - do not have ready
access to citizenship documents. Seven percent of the American citizens surveyed
responded that they do not have ready access to U.S. passports, naturalization papers, or
birth certificates. 2 Us<strong>in</strong>g 2000 census calculations of the citizen vot<strong>in</strong>g-age population,
this translates to more than 13 million American adult citizens nationwide who cannot
easily produce documentation prov<strong>in</strong>g their citizenship. 3
Citizens with comparatively low <strong>in</strong>comes are less likely to possess documentation
prov<strong>in</strong>g their citizenship. Citizens earn<strong>in</strong>g less than $25,000 per year are more than
twice as likely to lack ready documentation of their citizenship as those earn<strong>in</strong>g more
than S25,000.4 Indeed, the survey <strong>in</strong>dicates that at least 12 percent of vot<strong>in</strong>g-age
American citizens earn<strong>in</strong>g less than $25,000 per year do not have a readily available U.S.
passport, naturalization document, or birth certificate. 5
Documentation prov<strong>in</strong>g citizenship often does not reflect the citizen's current name.
Many of those who possess ready documentation of their citizenship do not have
documentation that reflects their current name. For example, survey results show that
only 48% of vot<strong>in</strong>g-age women with ready access to their U.S. birth certificates have a
birth certificate with current legal name 6 - <strong>and</strong> only 66% of vot<strong>in</strong>g-age women with
ready access to any proof of citizenship have a document with current legal name.
Us<strong>in</strong>g 2000 census citizen vot<strong>in</strong>g-age population data, this means that as many as 32
million vot<strong>in</strong>g-age women may have available only proof of citizenship documents that
do not reflect their current name.
2 Unless otherwise <strong>in</strong>dicated, the marg<strong>in</strong> of error for these survey results, to a 95% confidence level, is 12%.
3We note that 135 respondents <strong>in</strong>dicated that they had both a U.S. birth certificate <strong>and</strong> U.S. naturalization
papers. This most likely <strong>in</strong>dicates confusion on the part of the respondents, who might not have understood
what a "naturalization certificate" is. Because these 135 <strong>in</strong>dividuals most likely do possess some
documentary proof of citizenship, whether birth certificate or naturalization papers, they have been
<strong>in</strong>cluded for purposes of these results with survey respondents who <strong>in</strong>dicated that they do possess
citizenship documents. If these 135 respondents were excluded from the total sample, the rema<strong>in</strong><strong>in</strong>g
population would have revealed an even larger portion (n<strong>in</strong>e percent) without documentary proof of
citizenship.
4The survey did not yield statistically significant results for differential rates of possession of citizenship
documents by race, age, or other identified demographic factors.
5 The marg<strong>in</strong> of error for this particular result, to a 95% confidence level, is ±5%.
6 The marg<strong>in</strong> of error for this particular result, to a 95% confidence level, is ±5%.
7 The marg<strong>in</strong> of error for this particular result, to a 95% confidence level, is ±4%.
Brennan Center for Justice November 2006
at NYU School Of Law

90
Survey results: photo identification
As many as 11 percent of United States citizens - more than 21 million <strong>in</strong>dividuals - do
not have government-issued photo identification. Eleven percent of the American
citizens surveyed responded that they do not have current, unexpired govermnent-issued
identification with a photograph, such as a driver's license or military ID.! Us<strong>in</strong>g 2000
census calculations of the citizen vot<strong>in</strong>g-age population, this translates to more than 21
million American adult citizens nationwide who do not possess valid government photo ID.
Elderly citizens are less likely to possess government-issued photo identification.
Survey results <strong>in</strong>dicate that seniors disproportionately lack photo identification. Eighteen
percent of American citizens age 65 <strong>and</strong> above do not have current government-issued
photo ID. 9 Us<strong>in</strong>g 2005 census estimates, this amounts to more than 6 million senior
citizens.
M<strong>in</strong>ority citizens are less likely to possess government-issued photo identification.
Accord<strong>in</strong>g to the survey, African-American citizens also disproportionately lack photo
identification. Twenty-five percent of African-American vot<strong>in</strong>g-age citizens have no
current government-issued photo ID, compared to eight percent of white vot<strong>in</strong>g-age
citizens. ° Us<strong>in</strong>g 2000 census figures, this amounts to more than 5.5 million adult
African-American citizens without photo identification. Our survey also <strong>in</strong>dicated that
sixteen percent of Hispanic vot<strong>in</strong>g-age citizens have no current government-issued photo
ID, but due to a low sample size, the results did not achieve statistical significance.
Citizens with comparatively low <strong>in</strong>comes are less likely to possess photo identification;
Citizens earn<strong>in</strong>g less than $35,000 per year are more than twice as likely to lack current
government-issued photo identification as those earn<strong>in</strong>g more than $35,000. Indeed, the
survey <strong>in</strong>dicates that at least 15 percent of vot<strong>in</strong>g-age American citizens-earn<strong>in</strong>g less than
$3 5,000 per year do not have a valid government-issued photo ID.' 2
Photo identification often does not reflect current <strong>in</strong>formation. For many of those who
possess current, valid government-issued photo ID, the documentation does not reflect their
current <strong>in</strong>formation. For example, survey results show that ten percent of vot<strong>in</strong>g-age
citizens who have current photo ID do not have photo ID with both their current address
<strong>and</strong> their current legal name. The rate is higher among younger citizens: as many as 18
percent of citizens aged 18-24 do not have photo ID with current address <strong>and</strong> name; us<strong>in</strong>g
2004 census tallies, that amounts to almost 4.5 million American citizens.' 3
8 This figure is consistent with official government estimates. The 2005 Carter-Baker Commission, for
example, cited the U.S. Department of Transportation <strong>and</strong> the U.S. Census Bureau <strong>in</strong> f<strong>in</strong>d<strong>in</strong>g that
approximately twelve percent of the national vot<strong>in</strong>g-age population does not possess a driver's license.
Commission on Federal Election Reform, Build<strong>in</strong>g Confidence <strong>in</strong> U.S. Elections, at 73 n.22 (2005).
9 The marg<strong>in</strong> of error for this particular result, to a 95% confidence level, is +6%.
mhenarg<strong>in</strong> of error for this particular result, to a 95% confidence level, is +8%.
The marg<strong>in</strong> of error for this particular result, to a 95% confidence level, is +7%.
12 The marg<strong>in</strong> of error for this particular result, to a 95% confidence level, is +4%.
3 The marg<strong>in</strong> of error for this particular result, to a 95% confidence level, is +7%.
Brennan Center for Justice
at NYU School Of Law
November 2006

91
B RE N NAN
C E N T E R
FOR JUSTICE
Brennan Center for Justice at New York University School of Law
THE TRUTH
ABOUT
VOTER FRAUD
Just<strong>in</strong> Levitt

92
ABOUT THE BRENNAN CENTER FOR JUSTICE
The Brennan Center for Justice at New York University School of Law is a non-partisan public policy <strong>and</strong> law
<strong>in</strong>stitute that focuses on fundamental issues of democracy <strong>and</strong> justice. Our work ranges from vot<strong>in</strong>g rights
to redistrict<strong>in</strong>g reform, from access to the courts to presidential power <strong>in</strong> the fight aga<strong>in</strong>st terrorism. A s<strong>in</strong>gular
<strong>in</strong>stitution-part th<strong>in</strong>k tank, part public <strong>in</strong>terest law firm, part advocacy group-the Brennan Center
comb<strong>in</strong>es scholarship, legislative <strong>and</strong> legal advocacy, <strong>and</strong> communications to w<strong>in</strong> mean<strong>in</strong>gful, measurable
change <strong>in</strong> the public sector.
ABOUT THE BRENNAN CENTER'S
VOTING RIGHTS AND ELECTIONS PROJECT
The Vot<strong>in</strong>g Rights <strong>and</strong> Elections Project works to exp<strong>and</strong> the franchise, to make it as simple as possible for
every eligible American to vote, <strong>and</strong> to ensure that every vote cast is accurately recorded <strong>and</strong> counted. The
Centers staff provides top-flight legal <strong>and</strong>.policy assistance on a broad range of election adm<strong>in</strong>istration issues,
<strong>in</strong>clud<strong>in</strong>g voter registration systems, vot<strong>in</strong>g technology, voter identification, statewide voter registration list
ma<strong>in</strong>tenance, <strong>and</strong> provisional ballots.
© 2007. This paper is covered by the Creative Commons 'Attribution-No
Derivs-NonCommercial" license (see http://creativecommons.org).
It may be reproduced <strong>in</strong> its entirety as long as the Brennan Center for
Justice at NYU School of Law is credited, a l<strong>in</strong>k to the Center's web page
is provided, <strong>and</strong> no charge is imposed. The paper may not be reproduced
<strong>in</strong> part or <strong>in</strong> altered form, or if a fee is charged, without the Center's
permission. Please let the Center know if you repr<strong>in</strong>t.

TABLE OF CONTENTS
93
About the Author 2
Acknowledgments 2
1. Introduction 3
11. What Is Voter Fraud? 4
Ill. The Research L<strong>and</strong>scape 5
IV. Voter Fraud <strong>and</strong> the Press for Photo ID 6
V. The Truth About Voter Fraud 7
Clrical or Typographical Erron 7
Bad Match<strong>in</strong>g- 8
Jump<strong>in</strong>g so Conclusions 9
Voter Mitaokes 11
VI. Types of "Voter Fraud" 12
Allegasions of Double Vot<strong>in</strong>g 12
Alegatons of Dead Voters 14
Allegations of Fraudulent Addresses 15
Alegations of Voter Fraud by Persons with Felon Convictions 16
Allegations of Voetr Fraud by Noncitizens 18
Alegations of Registration Fraud 20
Algations of Voter Fraud by Dog 21
Alegations of Vote-Buy<strong>in</strong>g 22
Alegaions of Fraud by Eklcion Oifcials 22
VII. Appendix: Selected Case Studies 23
Missouri 24
Newjsem 27
Wiscons<strong>in</strong> 29
Endnotes 33

ABOUT THE AUTHOR
94
Just<strong>in</strong> Levitt is counsel for the Democracy Program at the Brennan Center for Justice, work<strong>in</strong>g on election
adm<strong>in</strong>istration, redistrict<strong>in</strong>g, <strong>and</strong> other vot<strong>in</strong>g rights concerns. Before he jo<strong>in</strong>ed the Center, Mr. Levitt served
as <strong>in</strong>-house counsel to America Com<strong>in</strong>g Together, the largest voter mobilization campaign <strong>in</strong> history, <strong>and</strong>
as Director of Strategic Target<strong>in</strong>g for a national presidential campaign. He is the author of Mak<strong>in</strong>g the Lim
Datahase Match<strong>in</strong>g <strong>and</strong> Verification Prlritesfor Voter Registration (Brennan Center 2006), <strong>and</strong> a number of
other scholarly <strong>and</strong> popular publications on election law.
ACKNOWLEDGMENTS
The author would like to thank his Brennan Center colleagues for their contributions to this paper-particularly
Deborah Goldberg <strong>and</strong> Wendy Weiser of the Brennan Center for their helpful comments <strong>and</strong> Margaret
Chen for her extraord<strong>in</strong>ary research assistance. The Center thanks the Carnegie Corporation of New
York, Educational Foundation of America. Ford Foundation, JEHT Foundation, Open Society Institute,
Rockefeller Family Fund, <strong>and</strong> an anonymous donor for the generous support that made this paper possible.
The statements made <strong>and</strong> views expressed <strong>in</strong> this paper are solely the responsibility of the Brennan Center.

95
THE TRUTH ABOUT VOTER FRAUD
1. INTRODUCTION
Allegations of election-related fraud make for entic<strong>in</strong>g press. Many Americans remember vivid stories of
vot<strong>in</strong>g improprieties <strong>in</strong> Chicagol<strong>and</strong>. or the suspiciously sudden appearance of LBJ's alphabetized ballot box
<strong>in</strong> Texas, or Governor Earl Long's quip: 'When I die, I want to be buried <strong>in</strong> Louisiana, so I can stay active
<strong>in</strong> politics.' Voter fraud, <strong>in</strong> particular, has the feel of a bank heist caper roundly condemned but technically
fasc<strong>in</strong>at<strong>in</strong>g, <strong>and</strong> sufficiently lurid to grab <strong>and</strong> hold headl<strong>in</strong>es.
Perhaps because these stories are dramatic, voter fraud makes a popular scapegoat. In the aftermath of a close
election, los<strong>in</strong>g c<strong>and</strong>idates are often quick to blame voter fraud for the results. Legislators cite voter fraud as
justification for various new restrictions on the exercise of the franchise. And pundits trot our the same few
anecdotes time <strong>and</strong> aga<strong>in</strong> as proof that a wave of fraud is imm<strong>in</strong>ent.
Allegations of widespread voter fraud, however, often prove greatly exaggerated. It is easy to grab headl<strong>in</strong>es
with a lurid claim ("Tens of thous<strong>and</strong>s may be vot<strong>in</strong>g illegally!"); the flslow-up - when any exists - is not
usually deemed newsworthy. Yet on closer exam<strong>in</strong>ation, many of the claims of voter fraud amount to a great
deal of smoke without much fire. The allegations simply do not pan out.
These <strong>in</strong>flated claims are not harmless. Cry<strong>in</strong>g 'wolf" when the allegations are unsubstantiated distracts attention
from real problems that need real solutions. If we can move beyond the fixation on voter fraud, we
will be able to focus on the real changes our elections need, from universal registration all the way down to
sufficient park<strong>in</strong>g at the poll sire.
Moreover, these claims of voter ftaud are frequently used to justify policies that do not solve the alleged.
wrongs, but that could well disenfranchise legitimate voters. Overly restrictive identification requirements
for voters at the polls - which address a sort of voter fraud more rare than death by lightn<strong>in</strong>g - is only the
most prom<strong>in</strong>ent example.
The Brennan Center for Justice at NYU School of Law carefully exam<strong>in</strong>es allegations of fraud to get at the
truth beh<strong>in</strong>d the claims. The Brennan Center has analyzed purported fraud cited by state <strong>and</strong> federal courts;
multipartisan <strong>and</strong> bipartisan federal commissions; political party entities; state <strong>and</strong> local election officials;
<strong>and</strong> authors, journalists, <strong>and</strong> bloggers. Usually, only a t<strong>in</strong>y portion of the claimed illegality is substantiated
- <strong>and</strong> most of the rema<strong>in</strong>der is either noth<strong>in</strong>g more than speculation or has been conclusively debunked.
This paper seeks to distill our f<strong>in</strong>d<strong>in</strong>gs: the truth about voter fraud. It first offers a straightforward.def<strong>in</strong>ition
to avoid the common trap of discuss<strong>in</strong>g election irregularities that <strong>in</strong>volve neither voters nor fraud as if they
showed voter fraud. Is then discusses different alternative reasons more credible than voter fraud to expla<strong>in</strong>
many of the recurr<strong>in</strong>g allegations. The paper then analyzes, scenario by scenario, some of the more common
types of alleged voter fraud <strong>and</strong> their more likely causes <strong>and</strong> policy solutions. Fmally, the paper presents
<strong>in</strong>dividual case studies of notorious <strong>in</strong>stances of alleged voter fraud, <strong>and</strong> f<strong>in</strong>ds those allegations to be grossly
<strong>in</strong>flated. For more <strong>in</strong>formation, analysis, <strong>and</strong> op<strong>in</strong>ion about voter fraud, by the Brennan Center <strong>and</strong> others,
please see wwwtrudhaboutfraud.org.

II. WHAT IS VOTER FRAUD?
'Voter fraud' is fraud by voters.
96
More precisely, 'voter fraud' occurs when <strong>in</strong>dividuals cast ballots despite know<strong>in</strong>g that they are <strong>in</strong>eligible to
vote, <strong>in</strong> an attempt to defraud the election system.'
This sounds straightforward. And yet, voter fraud is ofren conflated, <strong>in</strong>tentionally or un<strong>in</strong>tentionally, with
other forms of elecrion misconduct or irregularities.
There are many such problems that are improperly lumped under the umbrella of "voter fraud." Some result
from technological glitches, whether s<strong>in</strong>isrer or benign: for example, vot<strong>in</strong>g mach<strong>in</strong>es may record <strong>in</strong>accurate
tallies due to fraud, user error, or technical malfunction! Some result from honest mistakes by election
officials or voters: for
example, a person with a
conviction may honesrly
IT IS MORE LIKELY THAT AN INDIVIDUAL WILL believe herself eligible to
BE STRUCK BY LIGHTNING THAN THAT HE WILL votewhen the conviction
renders her temporarily
IMPERSONATE ANOTHER VOTER AT THE POLLS. <strong>in</strong>eligible' or an election
official may believe that
certa<strong>in</strong> identification
documents are required
to vote when no such requirement exists. 4 And some irregularities <strong>in</strong>volve fraud or <strong>in</strong>tentional misconduct
perpetrated by actors other than <strong>in</strong>dividual voters: for esample, flyers may spread mis<strong>in</strong>formation about the
proper locations or procedures for vot<strong>in</strong>g; thugs may be dispatched to <strong>in</strong>timidate voters at the polls; miss<strong>in</strong>g
ballot boxes may mysteriously reappear. These are all problems with the election adm<strong>in</strong>istration system ...
but they are not 'voter fraud."
Conflat<strong>in</strong>g these concerns is not merely a semantic issue. First, the rhetorical slopp<strong>in</strong>ess fosters the misperception
that fraud by voters is prevalent. That is, when every problem with an election is attributed to 'voter
fraud," it appears that fraud by voters is much more common then is actually the case.
This, <strong>in</strong> turn, promotes <strong>in</strong>appropriate policy. By <strong>in</strong>flat<strong>in</strong>g the perceived prevalence of fraud by voters, policymakers
f<strong>in</strong>d it easier to justify restrictions on those voters that are not warranted by the real facts.
Moreover, mislabel<strong>in</strong>g problems as "voter fraud" distracts attention from the real election issues that need
to be resolved. It draws attention away from problems best addressed, for example, by resource allocation
or poll worker education or implementation of longst<strong>and</strong><strong>in</strong>g statutory m<strong>and</strong>ates, <strong>and</strong> <strong>in</strong>stead improperly
focuses on the voter as the source of the problem.

97
111. TIHE RESEARCH LANDSCAPE
It is easy to f<strong>in</strong>d op<strong>in</strong>ion pieces <strong>and</strong> legislative statements daim<strong>in</strong>g that voter fraud is a substantial concern.
But aside from a trickle of news stories of low-grade fraud <strong>in</strong> a few isolated elections, there are surpris<strong>in</strong>gly
few sources recount<strong>in</strong>g specific <strong>in</strong>cidents of alleged voter fraud.
The most notorious such sources are docunsents prepared by the American Center for Vot<strong>in</strong>g Rights
('ACVR"), a controversial organization established <strong>in</strong> early 2005 <strong>and</strong> apparently defunct just over two years
later.' 'The ACVR produced two reports - one compil<strong>in</strong>g allegations of fraud <strong>in</strong> Ohio <strong>in</strong> 2004, <strong>and</strong> another
compil<strong>in</strong>g allegations of fraud <strong>in</strong> 2004 nationwide.' The ACVR has also repeated these <strong>and</strong> other allegations
<strong>in</strong> amicus briefs filed <strong>in</strong> litigation related to voter identification provisions.'
Former Wall Street Journal editorial board member <strong>and</strong> weekly columnist John Fund has also recounted
several specific allegations of voter fraud <strong>in</strong> his 2004 book Steal<strong>in</strong>g Ekairanr' two other books by academics.
Dirty Litre Sec-ets <strong>and</strong> Deliver the Vote, address allegations of fraud from a historical perspective.' Hans
von Spakovsky, a commissioner on the Federal Election Commission <strong>and</strong> a former Counsel to the Assistant
Attorney General for Civil Rights <strong>in</strong> the Department of Justice, has similarly recounted allegations of voter
fraud <strong>in</strong> several policy papers <strong>and</strong> presentations.'"
F<strong>in</strong>ally, there are a few newspaper artides that seem repeatedly cited <strong>in</strong> discussions. of voter fraud - for
example, a 2000 article <strong>in</strong> the Atlanrajiurnal-Canstirurion
<strong>and</strong> a 2004 article <strong>in</strong> the New York Daily News."
These articles review attempts to match voter rolls to other large lists <strong>in</strong> an effort to f<strong>in</strong>d allegedly <strong>in</strong>eligible
voters; the limitations of such studies arc discussed later <strong>in</strong> this paper.
Similarly, there are surpris<strong>in</strong>gly few sources of <strong>in</strong>formation specifically analyz<strong>in</strong>g the allegations of alleged
voter fraud to determ<strong>in</strong>e the extent to which they show relable evidence of fraud. In two studies, both focus<strong>in</strong>g
more heavily on the political <strong>and</strong> legal contest of voter fraud alegations, Professor Lorra<strong>in</strong>e M<strong>in</strong>nite has
reviewed several <strong>in</strong>cidents.' Profiessor Spencer Overton, a former commissioner on the 2005 Commission
on Federal Election Reform, has also reviewed several <strong>in</strong>cidents of alleged fraud <strong>in</strong> his book Steal<strong>in</strong>g Demrcraq."
After careful analysis, both authors f<strong>in</strong>d the claims largely overblown.
Among its other work on the subject," 4 the Brennan Center for Justice has developed a methodology for review<strong>in</strong>g
allegations ofvoter fraud,'s <strong>and</strong> cont<strong>in</strong>ues to coUcCt analyses of noted allegations at ww.truthaboutfraud.org.
This paper distills the results of that work, compil<strong>in</strong>g for the first time the recurr<strong>in</strong>g methodological
flaws that cont<strong>in</strong>ue to spawn allegations of widespread voter fraud where it does not exist.

IV. VOTER FRAUD AND THE PRESS FOR PHOTO ID
98
The most common example of the harm wrought by imprecise <strong>and</strong> <strong>in</strong>flated daims of 'voter fraud" is the
call for <strong>in</strong>-person photo identification requirements. Such photo ID laws are effective onl <strong>in</strong> prevent<strong>in</strong>g
<strong>in</strong>dividuals from impersonat<strong>in</strong>g other voters at the polls - an occurrence more rare than gett<strong>in</strong>g struck by
lighm<strong>in</strong>g."
By throw<strong>in</strong>g all sorts of election anomalies under the 'voter fraud' umbrella, however, advocates for such
laws artificially <strong>in</strong>flate the apparent need for these restrictions <strong>and</strong> underm<strong>in</strong>e the urgency of other reforms.
Moreover, as with all restrictions on voters, photo identification requirements have a predictable detrimental
impact on eligible citizens. Such laws are only porentially worhxvhile if they dearly prevent more problems
than they create. If poicymakers dist<strong>in</strong>guished real voter fraud from the more common election irregularities
erroneously labeled
as voter fraud, it would
THE VOTER FRAUD PHANTOM DRIVES POLICY becomeapparent that the
limited benefits of laws
1-HAI' DI.ENFRANCHISES ACTUIAL LEGITIMATE like photo ID require
VOTERS, WI IHOUL
BENEFIT.
A CORRESPONDING ACTUAL
ments are simply
worth the cost.
nor
Texas, concisely tied all of these str<strong>and</strong>s together <strong>in</strong> a 2007 Houston Chronicl
Royal Masse", the former
political director for
the Republican Party of
article concern<strong>in</strong>g a highly
controversial battle over photo identification legislation <strong>in</strong> Texas. Masser connected the <strong>in</strong>flated furor over
voter fraud to photo identification lawvs <strong>and</strong> their expected impact on legitimate voters:
Among Republicans it is an "article of religious faith that voter fraud is caus<strong>in</strong>g us to lose elections,"
Masset said He doesn* agree with that, but does believe that requir<strong>in</strong>g photo IDs could cause
enough of a dropoff <strong>in</strong> legitimate Democratic vot<strong>in</strong>g to add 3 percent to the Republican vote."
Ihsis remarkably c<strong>and</strong>id observation underscores why it is so critical to get the acts straight on voter fraud.
The voter fraud phantom drives policy that disenfranchises actual Sr<strong>in</strong>age voters, without a correspond<strong>in</strong>g
actual benefit. Virtuous public policy should st<strong>and</strong> on more reliable supports.

99
v TI-TE TRUTH ABOUT VOTER FRAUD
There have been a h<strong>and</strong>ful of substantiated cases of <strong>in</strong>dividual <strong>in</strong>eligible voters attempt<strong>in</strong>g to defraud the
election system. But by any measure, voter fraud is extraord<strong>in</strong>arily rare.
In part, this is because fraud by <strong>in</strong>dividual voters is a s<strong>in</strong>gularly foolish <strong>and</strong> <strong>in</strong>effective way to attempt to
w<strong>in</strong> an election. Each act of voter fraud <strong>in</strong> connection with a federal election risks fve years <strong>in</strong> prison <strong>and</strong>
a $ 10,000 f<strong>in</strong>e, <strong>in</strong> addition to any state penalties." In return, it yields at most one <strong>in</strong>cremental vote. That
s<strong>in</strong>gle extra vote is simply not worth the price.
Instead, much evidence that purports to reveal voter fraud can be traced to causes far more logical than fraudby
voters. Below, this paper reviews the more common ways <strong>in</strong> which more benign errors or <strong>in</strong>consistencies
may be mistaken for voter fraud.
CLERICAL OR TYPOGRAPHICAL ERRORS
In the course of millions of recorded votes <strong>and</strong> voters, it is virtually certa<strong>in</strong> that there will be derical errors.
Often, what appears to be voter fraud-a person attempt<strong>in</strong>g to vote under a false name, for example - can
be traced back to a typo.
nra rk t t{'
1 bs^l. In a jurisdictionofanysignificantsire, it is unfortunateyeasytomakeanentry<strong>in</strong>
the poll book next to the wrong voter's name. For example, despite hav<strong>in</strong>g died <strong>in</strong> 1997, Alan J. M<strong>and</strong>el was
alleged to have voted <strong>in</strong> 1998; upon fiurther <strong>in</strong>vestigation, Alan J. M<strong>and</strong>ell (two I'ls). who was very much
alive <strong>and</strong> vot<strong>in</strong>g at the time, expla<strong>in</strong>ed that local election workers simply checked the wrong name off of the
list." 'The same problem may occur when <strong>in</strong>formation from a poll book is entered <strong>in</strong>correctly <strong>in</strong>to a counrys
computer system, as <strong>in</strong> Milwaukee <strong>in</strong> 2004.' Or voters - legitimate voters - may make a mistake: a 1994
<strong>in</strong>vestigation of fraud allegations <strong>in</strong> California, for example, revealed that voters accidentally signed the poll
books on the wrong l<strong>in</strong>es, next to the names of deceased voters. 2 "
EDors ril <strong>in</strong> muration recmrAs. Simple typos may also <strong>in</strong>fect voter records, chang<strong>in</strong>g a name or an identify<strong>in</strong>g
number or an address <strong>in</strong> a way that <strong>in</strong>terferes with attempts to validate the voter's <strong>in</strong>formation aga<strong>in</strong>st some
other source. For example, <strong>in</strong> Wash<strong>in</strong>gton State <strong>in</strong> 2006, Mar<strong>in</strong>a Perrienko tried to register to vote for the
first time, but a county official mis-typed the year of her birth, enter<strong>in</strong>g '1976' <strong>in</strong>to the database, <strong>in</strong>stead
of the year on her form: '1975."22 First-time Ill<strong>in</strong>ois voters Mike <strong>and</strong> Sung Kim 'had been mistakenly registered
with Kim as their first names" <strong>in</strong> 2004.? And <strong>in</strong> Milwaukee, Victor Moy was listed on the rolls as
liv<strong>in</strong>g at 8183 W. Thurston Avenue, but actually resides at number 8153.2' Because such typos may prevent
registrations from be<strong>in</strong>g externally validated by <strong>in</strong>formation <strong>in</strong> other sources, officials <strong>and</strong> observers may
believe that registrations are fraudulent when they are, <strong>in</strong> reality. entirely legitimate.

BAD "MATCHING
100
The most common source of superficial claims of voter fraud, <strong>and</strong> the most common source of error, probably
<strong>in</strong>volves match<strong>in</strong>g voter rolls aga<strong>in</strong>st each other or aga<strong>in</strong>st some other source to f<strong>in</strong>d alleged double
voters, dead voters, or otherwise <strong>in</strong>eligible voters.
[grors~ is, Lht u,-zei'tr<strong>in</strong>rgdats- Some such matches fail to account faorerrors ordefault entries <strong>in</strong> the underly<strong>in</strong>g
data. In New Jersey <strong>in</strong> 2005, for example, exam<strong>in</strong>ers alleged fraud by <strong>in</strong>dividuals on the voter rolls <strong>in</strong> two different
places whose first <strong>and</strong> last names <strong>and</strong> birthdates matched, <strong>in</strong>clud<strong>in</strong>g a woman named Mary Johnson. 25
Closer exam<strong>in</strong>ation, however, showed that some of the match<strong>in</strong>g birthdates <strong>in</strong> question wereJanuary 1, 1880,
which was simply a system default for miss<strong>in</strong>g <strong>in</strong>fbrmation.`6 In reality, the exam<strong>in</strong>ers had found only two
different women named 'Mary Johnson," with no relevant birthdate <strong>in</strong>formation at all.
PAr.si ma;, hes. Other matches neglect middle names or suffixes: <strong>in</strong> the same New Jersey procedure de-
scribed above, for example. James A. Smith <strong>and</strong> James G. Smith were presumed to be the same person, as
werej. T. Kearns <strong>and</strong> J. T Kearns, Jr."' Similarly, <strong>in</strong> New Hampshire, 22 pairs of people who shared the same
first <strong>and</strong> last names wvere flagged for possible double-vot<strong>in</strong>g; <strong>in</strong> fact, all of the flagged voters had different
middle names.'" And <strong>in</strong> one of the more <strong>in</strong>famous examples of <strong>in</strong>appropriate match<strong>in</strong>g, a vendor prepar<strong>in</strong>g
a set of voters to be purged <strong>in</strong> Florida <strong>in</strong> 2000 found 'matches" <strong>in</strong> the first name if the first four letters were
the same on twvo different lists, <strong>and</strong> "marches" <strong>in</strong> the last name if 80% of the letters were the same. 29 The
f<strong>in</strong>al set of voters to be purged, of course, conta<strong>in</strong>ed the names of many <strong>in</strong>dividuals whose records had been
falsely matched.
3 0
7he bir;Ihdate'urbh',%. Even given an exact match, however, two entries with the same name <strong>and</strong> birehdate
may not represent the same <strong>in</strong>dividual. Statistics students are often surprised to discover that <strong>in</strong> a group of
23 people, it is more likely than not that two will share the same month <strong>and</strong> day of birth; <strong>in</strong> a group of 180,
two will probably share the same birthdate. In any group of significant size, statistics teaches that there will
be many with the same first <strong>and</strong> last names - <strong>and</strong> it is likely that at least two such voters will be born on the
same day. 3 ' It should not therefore be surpris<strong>in</strong>g, for example, that "Kathleen Sullivan" was most likely listed
twice on the rolls of 2004 Nerv Jersey voters not because one woman drove the length of the state to cast a
3 2
second ballot, but because two women named Kathleen Sullivan happen to share the same birthdate.

JUMPING TO CONCLUSIONS
101
Those search<strong>in</strong>g for fraud - politicians, pundits, <strong>and</strong> even occasionally prosecutors - sometimes jump to
unwarranted conclusions with a limited amount of <strong>in</strong>formation. The birthdate problerr' above - mistak<strong>in</strong>g
two diffierent people with the same name <strong>and</strong> birthdate - is one example. But there are many other
circumstances <strong>in</strong> which observers draw illicit conclusions from data that <strong>in</strong> fact have a benign explanation.
Dua! ngi.stasi. Register<strong>in</strong>g twice - or mistakenly leav<strong>in</strong>g an old registration on the rolls - is not mean<strong>in</strong>gful
evidence of an <strong>in</strong>tent to commit fraud by vot<strong>in</strong>g twice. There is no requirement that citizens <strong>in</strong>form
their local election officials before they move, <strong>and</strong> with approximately 14% ofAmericans mov<strong>in</strong>g each year,
it is not surpris<strong>in</strong>g to f<strong>in</strong>d that many voters are registered under multiple addresses - but vote only once
In New Hampshire <strong>in</strong> 2004, for example, local officials found 67 <strong>in</strong>dividuals on the rolls <strong>in</strong> both Dover <strong>and</strong>
Durham; each of the 67 had moved from one town to the other, <strong>and</strong> each voted only once.4
It may seem significantly
more suspicious to registertwiceonthesameday
FRAUD BY INDIVIDUAL VOTERS IS A SINGULARLY
- but even then, two FOOLISH WAY TO ATTEMPT TO WIN AN ELECTION.
registrations do not necessarily
yield two votes.
In 2004, fir example,
federal prosecutors charged Wiscons<strong>in</strong>ite Cynthia Alicea with double-vot<strong>in</strong>g. Wiscons<strong>in</strong> allows residents to
register on Election Day, which Alicea did. Poll workers found an error on the form, <strong>and</strong> asked Alicea to fill
out another, which she also did - but the first form was never discarded. Although Alicea completed two
registration forms, follow<strong>in</strong>g poll worker <strong>in</strong>structions, she voted only once, Her <strong>in</strong>nocence was eventually
proven, but not before prosecutors forced the 23-year-old through an unwarranted trial. 35
Deatr recrn, Vot<strong>in</strong>g from the grave offers salacious headl<strong>in</strong>es, <strong>and</strong> <strong>in</strong>vestigators often attempt to match
death records to voter rolls <strong>in</strong> an attempt to produce purported evidence of fraud. Yet <strong>in</strong> addition to the
problems with <strong>in</strong>accurate match<strong>in</strong>g identified above, a simple match of death records to voter rolls may
conceal citizens who voted before dy<strong>in</strong>g, <strong>in</strong> quite ord<strong>in</strong>ary fashion. In Maryl<strong>and</strong> <strong>in</strong> 1995. for example, an
exhaustive <strong>in</strong>vestigation revealed that of 89 alleged deceased voters, none were actually dead at the time the
ballot was cast. The federal agent <strong>in</strong> charge of the <strong>in</strong>vestigation said thar the nearest they came was when
they "found one person who had voted then died a week after the election:." Similarly, <strong>in</strong> New Hampshire,
postcards were sent to the addresses of citizens who voted <strong>in</strong> the 2004 general election; one card was returned
as undeliverable because the voter died after Election Day, but befoire the postcard arrived at her home."'
Cri.m<strong>in</strong>al recond. Reports of votes by persons with convictions have often fed claims of voter fraud. Yet without
more <strong>in</strong>formation, such reports may be deceptive. Many, if not most, convictions are misdemeanors,
which <strong>in</strong> most states do not affect the defendant's vot<strong>in</strong>g rights. Wallace McDonald. for example, was purged
from the Florida voter rolls <strong>in</strong> 2000 because of a conviction. Yet Mr. McDonald's crime was not a frlony, for
which many Floridians forfeit vot<strong>in</strong>g rights forever - but merely a misdemeanor, which should not affect
vot<strong>in</strong>g tights at all. Indeed, Mr. McDonald had been convicted only of fall<strong>in</strong>g asleep on a bench.-" Similarly,
<strong>in</strong> Wash<strong>in</strong>gtons 2004 gubernatorial election, hundreds of citizens were alleged to have voted illegally because
of convictions that were actually juvenile dispositions - which do not disqualify voters."

102
Other claims of fraud rely solely on the fact that someone was convicted but never look to see whether the
accused person had his vot<strong>in</strong>g rights restored. Even <strong>in</strong> Florida, where, until 2007, most persons with felony
convictions lost their vot<strong>in</strong>g rights permanently, not every person convicted of a felony was <strong>in</strong>eligible to vote.
Reverend Willie Dixon, 70, was purged from the Florida voter rolls <strong>in</strong> 2000 because of a felony conviction
- but Reverend Dixon had already been pardoned for his crime <strong>and</strong> his vot<strong>in</strong>g rights had been restored.0 In
most other states, persons with convictions rega<strong>in</strong> the franchise after release from either <strong>in</strong>carceration, probation,
or parole. Allegations of fraud that rely on a past crim<strong>in</strong>al conviction but fail to <strong>in</strong>vestigate whether
vot<strong>in</strong>g rights were restored will likely prove unfounded.
Re~etryed mail. Voter "cag<strong>in</strong>g" is a tactic <strong>in</strong>volv<strong>in</strong>g a mass mail<strong>in</strong>g to registered voters to sniff out mail<strong>in</strong>gs
that are returned undelivered; these undelivered mail<strong>in</strong>gs are then used to compile a list of voters allegedly
enrolled under <strong>in</strong>valid addresses. But for many reasons, undelivered mail need not be an <strong>in</strong>dication that a
person registered at the given address is not entitled to vote there. 4 ' A voter may be away from home for
work, like a Louisiana Congresswoman challenged because she received her mail <strong>in</strong> Wash<strong>in</strong>gton;' 2 or for
military service, like an Ohio servicewoman challenged because she received her mail where she was stationed,
<strong>in</strong> North Carol<strong>in</strong>a; 4 " or for an extended vacation, like an Oregon woman rendered <strong>in</strong>active because
she was out of the country for a few months." A voter may live with others but be unlisted on the mailbox.
Or, like Ohio resident Raven Shaffer, he may receive mail at a post office box or other mail service, <strong>and</strong> not at
his registered residence. 4 '5 Moreover, some mail is simply not delivered, through no fault of the voter. <strong>in</strong> the
1990 census, for example, 7hc News York 7imes reported that "[alithough at least 4.8 million [census] forms
were found to be undeliverable by the Postal Service, 1.8 million of those were later delivered by h<strong>and</strong>.'"
And recent reports found that government records used by Chicago postal workers to deliver mail conta<strong>in</strong>ed
more than 84,000 errors. 47
Mail sent to a listed registration address may also be returned as undeliverable because the voter has moved
- even though the citizen rema<strong>in</strong>s wholly eligible to vote without re-registration. Each state has different
rules determ<strong>in</strong><strong>in</strong>g when a voter who has moved must <strong>in</strong>form election officials of her new address. At a m<strong>in</strong>imum,
however, federal law provides that if a voter has moved with<strong>in</strong> the same area covered by a given poll<strong>in</strong>g
place - if, for example, a voter moves from one apartment to another with<strong>in</strong> the same apartment complex,
as a 2000 Oregon voter did 4 " - she may legitimately vote at that poll<strong>in</strong>g place even if she has not yet notified
a registrar of her move."' Similarly, a voter who has moved with<strong>in</strong> the same registrar's jurisdiction <strong>and</strong>
Congressional district may return to vote at her former poll<strong>in</strong>g place without re-register<strong>in</strong>g.' Especially <strong>in</strong>
urban areas where there is high mobility with<strong>in</strong> a particular neighborhood, undeliverable mail may simply
reflect the recent move of a voter who rema<strong>in</strong>s fhlly eligible to vote.
's.nwial addroses. In most states, voters must register at a residential address; those look<strong>in</strong>g for fraud may
therefore flag addresses zoned for bus<strong>in</strong>ess use as an <strong>in</strong>dication of fraudulent activity. Broad zon<strong>in</strong>g restrictions,
however, do not account for many less traditional-but legitimate-residences. Barbara Taylor was
among hundreds of Wash<strong>in</strong>gron voters challenged <strong>in</strong> 2005 for this reason. While it is true that the address
on her registration wvas the address of a public storage facility, Taylor expla<strong>in</strong>ed that she is 'a manager for
the company <strong>and</strong> has lived <strong>in</strong> an apartment on the site for 12 years.'5S In other cases, transient or homeless
<strong>in</strong>dividuals have registered - as they are legally entitled to do - at shelters or government build<strong>in</strong>gs." 2

103
kre-ads co'anpdalJot dd.n'rpuplosc. In St. Louis <strong>in</strong> 2000. officials compared the voter rolls to city property re-
cords <strong>and</strong> alleged that some voters fraudulently registered from vacant lots."5 The property records, however, were
orig<strong>in</strong>ally compiled for a purpose other than <strong>in</strong>dividual identification; an address with multiple plots of l<strong>and</strong> was
apparently deemed entirely "vacant' if only one of the plots had no build<strong>in</strong>g. Further <strong>in</strong>vestigation by local re-
porters revealed that the supposedly vacant lots where voters were registered <strong>in</strong> fact conta<strong>in</strong>ed valid residences."
VOTER MISTAKES
Even after account<strong>in</strong>g for the false.conclusions above, <strong>in</strong>vestigations reveal that <strong>in</strong>eligible voters do some-
times cast votes. It is important, however, to dist<strong>in</strong>guish those cases <strong>in</strong> which voters know they are <strong>in</strong>eligible
but vote anyway - real voter fraud - from cases <strong>in</strong> which <strong>in</strong>eligible voters mistakenly believe themselves to
be eligible. Both scenarios are unquestionably of concern. But it is likely to be more productive to address
mistakes with remedies different from those often proposed for fraud.
Of the relatively small number of <strong>in</strong>eligible voters who mistakenly cast ballots, most arc citizens rendered
<strong>in</strong>eligible by crim<strong>in</strong>al conviction. The laws concern<strong>in</strong>g eligibility vary from state to state <strong>and</strong> can be confus-
<strong>in</strong>g: different voters are disenfranchised for different convictions for different lengths of time.55 Moreover, the
process of restor<strong>in</strong>g a citizen's right to vote varies as well, from automatic restoration upon release from prison
<strong>in</strong> states like Pennsylvania, Indiana, Ohio, Ill<strong>in</strong>ois, <strong>and</strong> Michigan," to the excruciat<strong>in</strong>gly burdensome applica-
tion process <strong>in</strong> Kentucky-which requires all would-be voters to submit a written application accompanied
by three character references, an essay expla<strong>in</strong><strong>in</strong>g why they should be eligible to vote, <strong>and</strong> a fil<strong>in</strong>g fee.' 7
These rules are not merely difficult for voters to navigate: election officials with special tra<strong>in</strong><strong>in</strong>g <strong>in</strong> the rules
<strong>and</strong> regulations govern<strong>in</strong>g eligibility rout<strong>in</strong>ely get the law wrong. A 2004 survey, for example. found that
43% of NewJersey's county election offices did not follow stare law <strong>in</strong> restor<strong>in</strong>g citizens' right to vote.5 8
In
New York, a much-publicized 2003 survey found that more than half of the local election officials did not
follow state law; when the survey was repeated just two years later, 38% of the local boards of elections still
got the law wrong.5s
It is difficult to expect disenfranchised voters to navigate the election laws successfully when so many election
officials with expertise do not. Indeed, <strong>in</strong> Milwaukee, one voter asked to present identification at the polls
showed his Department of Corrections ID card, with 'OFFENDER' pr<strong>in</strong>ted <strong>in</strong> bold letters across the face
- but he was not <strong>in</strong>formed by any poll worker that he might be <strong>in</strong>eligible to cast a ballot.0 Such cases show
confusion ... but not voter fraud.

104
VI. TYPES OF "VOTER FRAUD'
Allegations of voter fraud' seem to fall <strong>in</strong>to one of several recurr<strong>in</strong>g categories. Some would represent actual
fraud if the allegations proved true, though the allegations are often unsupported. Some would nor actually
represent fraud even if they were true. This paper reviews some of the more common assertions of 'fraud'
below, to substitute more careful analysis for overeager <strong>and</strong> salacious headl<strong>in</strong>es.
ALLEGATIONS OF DOUBLE VOTING
Allegations of double vot<strong>in</strong>g are among the most common assertions of voter fraud. Consider one set of
agitated headl<strong>in</strong>es: 'More Double Vot<strong>in</strong>g Bled to '04 Election.,"' Double Vot<strong>in</strong>g Be<strong>in</strong>g Investigated."
'Double Vot<strong>in</strong>g Fear Rises,"'. Hundreds Might Have Double-Voted,"' 'Exposed: Sc<strong>and</strong>al of Double Voters."st
Most of these reports are hypothetical - hundreds 'might" have double voted-<strong>and</strong> further research
shows reason to question the condusion that widespread double vot<strong>in</strong>g occurred. Other reports appear more
certa<strong>in</strong> but are actually more <strong>in</strong>correct.
There are a h<strong>and</strong>ful of known cases <strong>in</strong> which admissions. poll book entries, absentee ballots, provisional
ballot stubs, or other documentation <strong>in</strong>dicate that one <strong>in</strong>dividual has actually voted twice." These cases
are extremely rare - not because such documentation is hard to come by (many states require that such
documents be reta<strong>in</strong>ed), but because actual double vot<strong>in</strong>g is itself extremely rare. Moreover, the scarcity is
expected, given the severity of the penalty (crim<strong>in</strong>al prosecution), <strong>and</strong> the meager nature of the payoff (one
<strong>in</strong>cremental vote).
Instead, it is far more
common to see allega-
ALICEA VOTED ONLY ONCE, BUT BASED ON TWO tions ofepidemic double
REGISTRATION FORMS, PROSECUTORS TOOK HER vot<strong>in</strong>g-thatare unfounded.
Such claims are usu-
TO TRIAL. SHE EVENTUALLY WON HER CASE BUT. ally premised on march-
BECAUSE OF THE ORDEAL. 'SHE'S INCLINED NOT <strong>in</strong>g lists of voters from
one place to another
TO VOTE EVER AGAINW. upon closer <strong>in</strong>spection,
the match process shows
------ ~--~-~ ~ ~-.---- -~-~-~~~~~~---~--~~--'- …~--~-- ~~------- error. Sometitsmes the
<strong>in</strong>terpretation is flawed:
two list entries under the same name - even the same name <strong>and</strong> birthdare - <strong>in</strong>dicate different <strong>in</strong>dividuals,
as with two Kathleen Sullivans confused for each other <strong>in</strong> New Jersey <strong>in</strong> 2004.6Y The opportunity for error
<strong>in</strong>creases with the size of the attempted match: when allegations of fraud <strong>in</strong> 2000 were based on a nariornwide
attempt to match names <strong>and</strong> birthdares, it is not surpris<strong>in</strong>g that 3,273 alleged double voters were found
-<strong>and</strong> not surpris<strong>in</strong>g that many, like those attributed to Martha Alex<strong>and</strong>er. the chair of the North Carol<strong>in</strong>a
legislature's panel on election laws, were based on flawed assumptions that two people with the same name
<strong>and</strong> birthdare were the same <strong>in</strong>dividual." Moreover, sometimes the lists themselves are flawed: because of the
occasional derical error by overworked <strong>and</strong> undertra<strong>in</strong>ed election workers, an <strong>in</strong>dividual is marked as vot<strong>in</strong>g
when she did not <strong>in</strong> fact cat a ballot, as Missouri <strong>in</strong>vestigators discovered <strong>in</strong> 2004.6

105
Sometimes, merely follow<strong>in</strong>g a poll worker's accurate <strong>in</strong>structions can l<strong>and</strong> legitimate voters <strong>in</strong> unwarranted
hot water. In 2004, for example, federal prosecutors were especially attuned to claims ofvoter fraud, <strong>and</strong> fixed
the weight of the federal government on 23-year-old Cynthia Alicea. Alicea, an eligible resident of Wiscons<strong>in</strong>,
registered on Election Day, as permitted under Wiscons<strong>in</strong> law. Poll workers found an error on the form, <strong>and</strong>
asked Alicea to fill out another, which she also did. The poll workers, however, never discarded the first form.
Alicea voted only once, but based on the two registration forms, prosecutors took the young woman to trial.
Though she eventually won her case, because of the ordeal,"she's <strong>in</strong>d<strong>in</strong>ed not to vote ever aga<strong>in</strong>."rs
Exaggerated or unfounded allegations of fraud through double vot<strong>in</strong>g <strong>in</strong>dude the follow<strong>in</strong>g:
* In Missouri <strong>in</strong> 2000 <strong>and</strong> 2002, hundreds of voters were alleged to have voted twice, either with<strong>in</strong>
the state or once <strong>in</strong> Kansas <strong>and</strong> once <strong>in</strong> Missouri. The same analysis acknowledged that the
computer files conta<strong>in</strong> many errors that show people vot<strong>in</strong>g who did not acuallyvote."I Of 18
Kansas City cases that reporters followed up, 13 were affirmatively shown to result from clerical
errors.' We are aware of public sources substantiat<strong>in</strong>g only four cases (amount<strong>in</strong>g to six votes
with<strong>in</strong> the state), yield<strong>in</strong>g an overall documented fraud rate of O.0003%."
* In New Hampshire <strong>in</strong> 2004, citizens were alleged to have voted twice. In fact, on further <strong>in</strong>vestigation,
many of the voters who were allegedly listed multiple times on the rolls actually represented
different people with identical names; others were listed with multiple registrations, but
voted only once. We are not aware of any public materials substantiat<strong>in</strong>g the claims of double
vot<strong>in</strong>g."
* In New Jersey <strong>in</strong> 2004,4.397 voters were alleged to have voted twice with<strong>in</strong> the state, <strong>and</strong> 6,572
voters were alleged to have voted once <strong>in</strong> New Jersey <strong>and</strong> once elsewhere. 73 Many of these alleged
double votes were actually flawed matches of names <strong>and</strong>/or birthdates on voter rolls.76 Only
eight cases were actually documented through signatures on poll books; at least five signatures
appear to match.7' Even if all eight proved to reveal fraud, however, that would amount to an
overall double vot<strong>in</strong>g rate of 0.0002%.7' ,
* In New York <strong>in</strong> 2002 <strong>and</strong> 2004, between 400 <strong>and</strong> 1,000 voters were alleged to have voted once
<strong>in</strong> New York <strong>and</strong> once <strong>in</strong> Florida. These allegations were also prompted by-a flawed attempt to
match names <strong>and</strong> birthdates.'7 We are aware of public sources substantiat<strong>in</strong>g only two cases.
yield<strong>in</strong>g an overall documented fraud rate of 0000009%.'
* In Wiscons<strong>in</strong> <strong>in</strong> 2004, dozens of voters were alleged to have voted twice. After further <strong>in</strong>vestigation,
the vast majority were affirmatively deared, with-some attributed to clerical errors <strong>and</strong> confusion
caused by flawed attempts to match names <strong>and</strong> birthdares. There were 14 alleged reports
of voters cast<strong>in</strong>g ballots both absentee <strong>and</strong> <strong>in</strong> person; at least 12 were caught, <strong>and</strong> the absentee
ballot was not counted. There were no substantiated reports of any <strong>in</strong>tentional double vot<strong>in</strong>g of
which we are aware. 8 '

ALLEGATIONS OF DEAD VOTERS
106
Allegations of dead voters" are also popular, not least for the enterta<strong>in</strong><strong>in</strong>g pop culture references to be fund
<strong>in</strong> the headl<strong>in</strong>es: 'Among Voters <strong>in</strong> New Jersey, G.O.P Sees Dead People,"2 for example, or 'Dead Man Vot<strong>in</strong>g.'13
After further <strong>in</strong>vestigation, however, these allegedly dead voters often turn up perfecly healthy.
There are a h<strong>and</strong>ful of known cases <strong>in</strong> which documentation shows that votes have been cast <strong>in</strong> the names of
voters who have died before the vote was submitted.4
It is far more common, however, to see unfounded allegations of epidemic vot<strong>in</strong>g from beyond the grave,
with a chuckle <strong>and</strong> a reference to Gov. Earl Long's quip ('When I die - if I die - I want to be buried <strong>in</strong>
Louisiana, so I can stay active <strong>in</strong> politics.') or Rep. Charlie Rangel's update (same idea, but takes place <strong>in</strong>
Chicago). 5 "
Here, too, flawed matches of lists from one place (death records) to another (voter rolls) are often responsible
for mis<strong>in</strong>formation. Sometimes the <strong>in</strong>terpretation is flawed: two list entries under the same name <strong>in</strong>dicate
different <strong>in</strong>dividuals." Sometimes the lists themselves are flawed: as Hilde Stafford discovered <strong>in</strong> 2006, <strong>in</strong>dividuals
who are <strong>in</strong> fact quite spry are occasionally listed as deceased on the Social Security Adm<strong>in</strong>istration's
master files." And sometimes, because of derical error by election workers or voters or both, an <strong>in</strong>dividual
is marked as vot<strong>in</strong>g when she did not <strong>in</strong> fact cast a ballot, or is marked as vot<strong>in</strong>g under the wrong person's
name. For example, despite hav<strong>in</strong>g died <strong>in</strong> 1997, Alan J. M<strong>and</strong>el was alleged to have voted <strong>in</strong> 1998. On
further <strong>in</strong>vestigation, Alan J. M<strong>and</strong>ell (two aI's), who was very much alive <strong>and</strong> vot<strong>in</strong>g at the time, expla<strong>in</strong>ed
that local election workers simply checked the wrong name off of the list.u Indeed, a 2007 <strong>in</strong>vestigation of
about 100 "dead voters" <strong>in</strong> Missouri revealed that every s<strong>in</strong>gle purported case was properly attributed either
to a match<strong>in</strong>g error, a problem <strong>in</strong> the underly<strong>in</strong>g data, or a clerical error by elections officials or voters."
In other circumstances, the match is accurate but reveals noth<strong>in</strong>g illegal about the vote: the voter has died,
yes, but ajter cast<strong>in</strong>g her ballot. In Maryl<strong>and</strong> <strong>in</strong> 1995, for example, an exhaustive <strong>in</strong>vestigation revealed that
of 89 allegedsdeceased voters, none were actually dead at the time the ballot was casL The federal agent <strong>in</strong>
charge of the <strong>in</strong>vestigation said that the nearest they came was when they 'found one person who had voted
then died a week after the election."9
Exaggerated or unfounded allegations of fraud by dead voters <strong>in</strong>clude the follow<strong>in</strong>g:
* In Georgia <strong>in</strong> 2000, 5,412 votes were alleged to have been cast by deceased voters over the past 20
years." The allegations were premised on a flawed match of voter rolls to death lists. A follow-up
report clarified that only one <strong>in</strong>stance had been substantiated, <strong>and</strong> this s<strong>in</strong>gle <strong>in</strong>stance was later
found to have been an error the example above, <strong>in</strong> which Alan J. M<strong>and</strong>el was confused with Alan
J. M<strong>and</strong>eWl.' No other evidence of fraudulent votes was reported.
* In Michigan <strong>in</strong> 2005, 132 votes were alleged to have been cast by deceased voters." The allega-
tions were premised on a flawed match of voter rolls to death lists. A follow-up <strong>in</strong>vestigation
by the Secretary of State revealed that these alleged dead voters were actually absentee ballots
mailed to voters who died before Election Day; 97 of these ballots were never voted, <strong>and</strong> 27

107
were voted before the voter passed away.94 Even if the rema<strong>in</strong><strong>in</strong>g eight cases all revealed substantiated
fraud, that would amount to a rate of at most 0.0027%."
* In New Jersey <strong>in</strong> 2004. 4,755 deceased voters were alleged to have cast a ballot. The allegations
were premised on a flawed match of voter rolls to death hats. No follow-up <strong>in</strong>vestigation publicly
documented any substantiated cases of fraud of which we are aware, <strong>and</strong> there were no reports
that any of these allegedly deceased voters voted <strong>in</strong> 2005.9"
* In New York <strong>in</strong> 2002 <strong>and</strong> 2004, 2,600 deceased voters were alleged to have cast a ballot, aga<strong>in</strong>
based on a match of voter rolls to death lists. Journalists follow<strong>in</strong>g up on seven cases found derical
errors <strong>and</strong> mistakes but no fraud, <strong>and</strong> no other evidence of fraud was reported.' 7
ALLEGATIONS OF FRAUDULENT ADDRESSES
Those claim<strong>in</strong>g voter fraud also po<strong>in</strong>t to allegations that voters have been registered at fraudulent addresses
such as vacant lots, storage units, or government build<strong>in</strong>gs. As with the allegations above, there
are a few cases <strong>in</strong> which charges that votes have been improperly cast from illegitimate addresses have been
substantiated."
More often, however,dthe allegations are either unsupported or further <strong>in</strong>vestigation reveals that the allegedly
flawed addresses turn out to be legitimate.
These sorts of claims are often based on postcards that are returned undelivered orundeliverable - but the
postcards are an unreliable <strong>in</strong>dicator. Typos dur<strong>in</strong>g the registration process, like the one list<strong>in</strong>g Victor Moy
at 8183 W Thurston Avenue <strong>in</strong> Milwaukee <strong>in</strong>stead of 8153," may cause mail to be misdirected. Or, like the
post office box used by Raven Shaffer <strong>in</strong> Ohio, <strong>in</strong>dividuals may receive mail at an address different from the
legal residence they list as their registration address."'°
Other unsupported claims are based orn attempts to screen registration addresses aga<strong>in</strong>st lists of vacant lots.
or aga<strong>in</strong>st zon<strong>in</strong>g regulations to f<strong>in</strong>d locations dedicated to non-residential use. Here, too, typos may.cause
legitimate addresses to be flagged as suspicious."' Or the underly<strong>in</strong>g lists may be flawed: <strong>in</strong> Missouri <strong>in</strong> 2000,
lots that were supposedly vacant actually held.houses."0 2 Sometimes the fists are simply overly broad, <strong>and</strong>
capture voters who list less traditional - but entirely legitimate - residences. Barbara Taylor, for example,
was among hundreds of Wash<strong>in</strong>gton voters challenged <strong>in</strong> 2005 for this reason. While it is true that the
address on her registration was the address of a public storage facility, Taylor - a manager for the storage
company - 'has lived <strong>in</strong> an apartment on the site for 12 years."" 3 Though her address appeared superficially
questionable, her address was <strong>in</strong> fact entirely legitimate.
F<strong>in</strong>ally, a variant of the above claims concern allegations that large numbers of votes are all tied to-one address.
There is, however, noth<strong>in</strong>g <strong>in</strong>herently suspect about multiple votes from one address if multiple eligible
voters live there, whether the address is a college dormitory or nurs<strong>in</strong>g home or any other group hous<strong>in</strong>g arrangement.
In New Hampshire, for example, a citizen apparently became concerned because 88 <strong>in</strong>dividuals
had registered with residences on property owned by Daniel Webster College; on further <strong>in</strong>vestigation, the 88
registrations were revealed to be from students at the college - <strong>and</strong> unsurpris<strong>in</strong>gly, entirely legitimate."'0

108
Exaggerated or unfounded allegations of fraud by voters with <strong>in</strong>valid addresses <strong>in</strong>clude the follow<strong>in</strong>g
* In Missouri <strong>in</strong> 2000, 79 voters were registered from addresses alleged to be vacant lots, but
further <strong>in</strong>vestigation found that properties classified as vacant <strong>in</strong> fact conta<strong>in</strong>ed legitimate resi-
dences, <strong>and</strong> that at least one of the voters was apparently the victim of a typographical error.' 0 '
We are aware of no public reports substantiat<strong>in</strong>g claims that any votes were cast by <strong>in</strong>dividuals
fraudulently registered at <strong>in</strong>valid addresses.
* In New Hampshire <strong>in</strong> 2004, based on undelivered postcards sent after the election, citizens were
alleged to have voted from <strong>in</strong>valid addresses. Many actually lived at the addresses daimed, butreceived
their mail esewhere. Others moved after the election but before the postcards arrived. We
are aware of only two substantiated cases (<strong>in</strong>clud<strong>in</strong>g one domestic violence victim, who voted
from an old address <strong>in</strong> order to avoid disclos<strong>in</strong>g her current domicile), with two more under <strong>in</strong>-
vestigation. Even if all four revealed fraud, that would amount to an overall rate of O.000 6 %."°
* In Wiscons<strong>in</strong> <strong>in</strong> 2004, after an attempt to match voters' addresses to a postal service list, 1,242
votes <strong>in</strong> Milwaukee were alleged to be fraudulent; many of these allegations were later traced to
data entry errors or to legitimate residences that were presumed to be bus<strong>in</strong>ess addresses.' 07 5,800
additional Election Day registrants were sent undeliverable postcards, but many of these postcards
were returned because the voters legitimately moved after the election."09 We are aware of no
substantiated reports of any votes cast by <strong>in</strong>dividuals fraudulently registered at <strong>in</strong>valid addresses.
ALLEGATIONS OF VOTER FRAUD BY PERSONS WITH FELONY CONVICTIONS
Many dose elections have also featured allegations that waves of <strong>in</strong>eligible people with feony convictions have
deliberately overtaken the vot<strong>in</strong>g system. There are, however, only a h<strong>and</strong>ful of known cases <strong>in</strong> which people
rendered <strong>in</strong>eligible by convictions cast ballots despite know<strong>in</strong>g that they were not permitted to do so." 9
More frequently - though still quite rare - <strong>in</strong>dividuals who are <strong>in</strong>eligible because of convictions have re-
portedly registered or voted without realiz<strong>in</strong>g that they were <strong>in</strong>eligible. In Wash<strong>in</strong>gton <strong>in</strong> 2004, for example,
there were reports of vot<strong>in</strong>g by <strong>in</strong>eligible persons with convictions, <strong>in</strong> substantial part because of significant
confusion about the circumstances under which civil rights were taken away or restored." 5 At the time.
citizens convicted of a felony were disenfranchised both while <strong>in</strong> prison <strong>and</strong> after they had returned to the
community on parole or probation. In order to rega<strong>in</strong> the right to vote, these citizens had to complete their
sentence - <strong>in</strong>clud<strong>in</strong>g repayment of all restitution, fees, <strong>and</strong> f<strong>in</strong>es."' Confusion abounded. Many citizens
with convictions thought they could vote aga<strong>in</strong> once theywere released from probation." 2 Some <strong>in</strong>dividuals
rendered <strong>in</strong>eligible by conviction were allegedly told by corrections officers that they could vote-, other probationers
were apparently mailed ballots they thought they could (<strong>in</strong>deed, should) cast."' At least one county
elections office provided mistaken <strong>in</strong>formation on its website."
4
Similar confusion was not conf<strong>in</strong>ed to Wash<strong>in</strong>gton. A 2004 survey <strong>in</strong> New Jersey, for example, found that
43% of election offices got the law wrong; the error rate by election officials <strong>in</strong> New York was 38%. "5 When
mote than a third of tra<strong>in</strong>ed election officials do not know the rules, it is nor hard to imag<strong>in</strong>e that persons
with convictions are also poorly <strong>in</strong>formed. Moreover, given the ease with which poll book entries can be

109
double-checked aga<strong>in</strong>st lists of convictions to f<strong>in</strong>d <strong>in</strong>eligible voters, it seems unlikely that <strong>in</strong>eligible citizens
would take the substantial risk of a return to prison for just one <strong>in</strong>cremental vote. On the rare occasions
when citizens rendered <strong>in</strong>eligible by conviction do vote, it is fir more sensible to believe that they do so by
mistake than that they do so with <strong>in</strong>tent to deceive.
The few examples above concern actual votes - <strong>in</strong>tentional or un<strong>in</strong>tentional - cast by people who are <strong>in</strong>eligible
because of a conviction. More common are allegations of such activity that prove unfounded. Such
reports are often based on comparisons of voter rolls with lists of people who have been convicted. Yet these
matches" are subject to the same errors mentioned repeatedly above: typos, clerical errors, <strong>in</strong>dividuals who
superficially appear to be the same person but are actually different. The notorious 2000 purge of purported
felons <strong>in</strong> Florida is a good example: a system that found roughly similar names <strong>and</strong> birthdates on voter rolls
<strong>and</strong> conviction records ended up disqualify<strong>in</strong>g thous<strong>and</strong>s of voters who were perfectly eligible to vote, but
who were deemed <strong>in</strong>eligible by the 'match."" 6 For example, because of the <strong>in</strong>accurate match<strong>in</strong>g protocol,
eligible citizen Matt Frost was prevented from vot<strong>in</strong>g because state officials <strong>in</strong>correctly l<strong>in</strong>ked him with a
similar alias of <strong>in</strong>eligible voter Shawn Chadwick." 7
Even when the match<strong>in</strong>g system is not to blame, allegations of <strong>in</strong>eligible vot<strong>in</strong>g may be <strong>in</strong>flated. As with at
least some names on the 2000 Florida purge list, convictions may be mislabeled as disenfranchis<strong>in</strong>g felonies
when <strong>in</strong> fact a voter has been convicted only of a misdemeanor."' As <strong>in</strong> Wash<strong>in</strong>gton <strong>in</strong> 2004, citizens may
be accused of <strong>in</strong>eligible vot<strong>in</strong>g due to juvenile dispositions - which do not affect their vot<strong>in</strong>g rights."9 Or
as with at least seven cases <strong>in</strong> Waukesha, Wiscons<strong>in</strong>, <strong>in</strong> 2004, accusations may fail to account for voters who
are convicted ajfer cast<strong>in</strong>g a legitimate vote.`2
Moreover, even when the <strong>in</strong>dividual <strong>in</strong> question has actually been convicted of an offense that renders him
<strong>in</strong>eligible, few such voters are <strong>in</strong>eligible to vote <strong>in</strong>def<strong>in</strong>itely. Some, like Reverend Willie Dixon of Florida,
have been pardoned, <strong>and</strong> their vot<strong>in</strong>g rights restored.' 2 ' Other convictions may be overturned on appeal.
Still others, depend<strong>in</strong>g on the state, rega<strong>in</strong> the franchise automatically or upon petition, after release from
<strong>in</strong>carceration, probation, or parole. Allegations of faud that look to convictions without account<strong>in</strong>g for the
restoration of vot<strong>in</strong>g rights often miss the mark."'
Exaggerated or unfounded allegations of fraud by persons rendered <strong>in</strong>eligible by conviction <strong>in</strong>clude the
follow<strong>in</strong>g:
* In Florida <strong>in</strong> 2000, a large-scale purge became justifiably notorious for its <strong>in</strong>accurate, even
haphazard, discard<strong>in</strong>g of the rights of eligible citizens. Despite recogniz<strong>in</strong>g the flawed nature
of the purge lists, however, reporters used similar lists to claim that 5,643 <strong>in</strong>eligible persons
with convictions actually voted <strong>in</strong> 2000. These reports used slightly more rigorous match criteria
than were used to create the purge lists, but still acknowledged that the underly<strong>in</strong>g data
<strong>in</strong>cluded eligible citizens with misdemeanors, citizens with convictions after their valid vote,
<strong>and</strong> convicted persons with names <strong>and</strong> birthdays that matched eligible citizen voters. It is true
that some votes were cast by <strong>in</strong>eligible citizens, some of whom were told by election officials
that they were eligible. We are not aware of any reports of citizens vot<strong>in</strong>g despite know<strong>in</strong>g that
they were <strong>in</strong>eligible.' 2 '

110
* In Wiscons<strong>in</strong> <strong>in</strong> 2004, after an attempt to match voters to Department ofCornections records, 376
people with allegedly disenfranchis<strong>in</strong>g convictions were said to have voted. A follow-up <strong>in</strong>vestigation
revealed that several were found to be convicted only afoer they voted;'24 one was convicted of
a misdemeanor," 2 <strong>and</strong> <strong>in</strong> another case; a woman's vote was improperly recorded <strong>in</strong> her <strong>in</strong>eligible
husb<strong>and</strong>'s place." Still another presented an identification card boldly labeled aOFFENDER,"
but was not told that he might be <strong>in</strong>eligible.'" We are aware of sources document<strong>in</strong>g seven cases
<strong>in</strong> which the voter know<strong>in</strong>gly voted while <strong>in</strong>eligible, yield<strong>in</strong>g a fraud rate of 0.0002%.d3
* In Wash<strong>in</strong>gton <strong>in</strong> 2004, evidence submitted <strong>in</strong> vigorously prosecuted election contest proceed<strong>in</strong>gs
showed 1,401 votes by <strong>in</strong>dividuals rendered <strong>in</strong>eligible due to convictions. Some of these voters
were apparently mis<strong>in</strong>formed by official county election <strong>in</strong>formation or corrections officers;
most were apparently sent ballots <strong>in</strong> the mail by the state. We are not aware of any reports that
any of these <strong>in</strong>dividuals voted know<strong>in</strong>g that they were <strong>in</strong>eligible'9
ALLEGATIONS OF VOTER FRAUD BY NONCITIZENS
We are not aware of any documented cases <strong>in</strong> which <strong>in</strong>dividual noncitizens have either <strong>in</strong>tentionally registered
to vote or voted while know<strong>in</strong>g that they were <strong>in</strong>eligible. Given that the penalty (not only crim<strong>in</strong>al
prosecution, but deportation)"ss is so severe, <strong>and</strong> the payoff (one <strong>in</strong>cremental vote) is so m<strong>in</strong>imal for any
<strong>in</strong>dividual voter, it makes sense that extremely few noncitizens would attempt to-vote, know<strong>in</strong>g that do<strong>in</strong>g
so is illegal.
Although there are a few recorded examples <strong>in</strong> which noncitizens have apparently registered or voted, <strong>in</strong>vestigators
have conduded that they were likely not aware that do<strong>in</strong>g so was improper. In one highly publicized
case, for example, noncitizens were given voter registration forms by a group help<strong>in</strong>g them through the naturalization
process, immediately after successfully complet<strong>in</strong>g citizenship <strong>in</strong>terviews with federal officials <strong>and</strong>
receiv<strong>in</strong>g letters beg<strong>in</strong>n<strong>in</strong>g 'Congratulations, your application for citizenship has been approved."" Though
the actual swear<strong>in</strong>g-<strong>in</strong> ceremonies were still up to 90 days away, these <strong>in</strong>dividuals most likely mistakenly
thought it their obligation <strong>and</strong> privilege to complete the paperwork, <strong>and</strong> did not <strong>in</strong>tentionally fabricate their
citizenship status <strong>in</strong> front of federal officials who knew that they were noncitizens.' 55
Far more common than these <strong>in</strong>cidents of noncitizen vot<strong>in</strong>g are allegations of noncirizen vot<strong>in</strong>g that prove
wholly unfounded. These claims are often premised on match<strong>in</strong>g lists of voters from one place to another,
but as with each of the examples above, upon doser <strong>in</strong>spection, the march process shows error.- The <strong>in</strong>terpretation
may be flawed, as when two list entries under the same name <strong>in</strong>dicate different <strong>in</strong>dividuals. Or the
lists themselves may be flawed, with an <strong>in</strong>dividual marked due to a clerical error as vot<strong>in</strong>g when she did not
<strong>in</strong> fact cast a ballot.
Government citizenship records - as the government itself acknowledges - are also replete with errors or
<strong>in</strong>complete <strong>in</strong>formation. Naturalization documentation may f<strong>in</strong>d its way <strong>in</strong>to the government files slowly,
or not at all, leav<strong>in</strong>g outdated or <strong>in</strong>accurate <strong>in</strong>formation for <strong>in</strong>vestigators look<strong>in</strong>g for fraud. And-this, <strong>in</strong>
turn, leads to flawed accusations that noncitizens have been vot<strong>in</strong>g, when the voters <strong>in</strong> question have <strong>in</strong> fact
become fudly naturalized American citizens.

Exaggerated or unfounded allegations of fraud by noncitizens <strong>in</strong>dude the follow<strong>in</strong>g:
ill
* In Wash<strong>in</strong>gton <strong>in</strong> 2005, an <strong>in</strong>dividual asked county offices to <strong>in</strong>vestigate the citizenship status of
1,668 registered voters based on their "foreign-sound<strong>in</strong>g names." There are no reports of which
we are aware that any <strong>in</strong>dividual on the submitted list was actually a noncitizens.'
* In Wash<strong>in</strong>gton <strong>in</strong> 2004, documentation appears to show that two votes were cast <strong>in</strong> K<strong>in</strong>g County
by noncitizens. There are no reports of which we are aware that either of these noncitizens know<strong>in</strong>gly
voted illegally, although one did ask to resc<strong>in</strong>d his vote shortly after the election. Given
these votes, the rate of documented noncitizen votes - without proof of fraud - <strong>in</strong> K<strong>in</strong>g
County was 0.0002%.'Im
* In Milwaukee <strong>in</strong> 2001, journalists analyzed 370,000 vot<strong>in</strong>g records from 1992 to 2000, <strong>and</strong>
found four <strong>in</strong>stances <strong>in</strong> which voters' names matched a list of naturalized city residents, but appeared
to have voted before their naturalization dates; there is no <strong>in</strong>dication ofwhikh we am aware
thatanyof these four know<strong>in</strong>gly voted illegally. Even if all four of the matched records accurately
represented noncitizen votes, the rate of noncitizen vot<strong>in</strong>g among the city records exam<strong>in</strong>ed
would have been 0.001%."5
* In Hawaii <strong>in</strong> 2000, 553 apparent noncitizens were alleged to have registered to vote. On further <strong>in</strong>vestigation,
144 documented that they had become citizens. At least 61 <strong>in</strong>dividuals affirmatively
asked to cancel their registration; the others were stopped at the polls <strong>and</strong> specifically asked about
their citizenship before vot<strong>in</strong>g. There are no reports of which we are aware that any noncitizen
actually voted. To the extent that noncitizens were actually represented on the rolls, officials attributed
the registrations to mistake rather than fraud.'36
* In Hawaii <strong>in</strong> 1998, four years after an INS <strong>in</strong>vestigation <strong>in</strong>to more than 10,000 names identified
fewer than twelve noncitizens whose names matched those on the voter rolls, the INS aga<strong>in</strong>
<strong>in</strong>vestigated claims of extensive noncitizen vot<strong>in</strong>g. The agency exam<strong>in</strong>ed 1,200 noncitizens suspected
of vot<strong>in</strong>g, but found no evidence that any had voted. A separate proceed<strong>in</strong>g uncovered
three noncitizens who had <strong>in</strong>deed voted <strong>in</strong> 1998, <strong>and</strong> three others who were reported to be under
further <strong>in</strong>vestigation. There are no reports of which we are aware that any noncitizens voted
know<strong>in</strong>g that they were <strong>in</strong>eligible. But even if all six had voted, the overall noncitizen vot<strong>in</strong>g rate
would have been 0.001%.'"'
* In California <strong>in</strong> 1996, 924 noncitizens allegedly voted <strong>in</strong> Orange <strong>and</strong> Los Angeles Counties,
<strong>in</strong>clud<strong>in</strong>g 624 allegedly <strong>in</strong>eligible voters identified by the Task Force of the U.S. House of Represenratives
<strong>in</strong>vestigat<strong>in</strong>g the Doman/Sanchez election. The allegations were based largely on attempts
to match immigration lists to voter rolls, but only 71 voters matched name, date of birth,
<strong>and</strong> signature; other matches were less reliable. Most of the identified voters were processed by one
nonprofit group register<strong>in</strong>g <strong>in</strong>dividuals proceed<strong>in</strong>g through the naturalization process; many were
registered immediately after pass<strong>in</strong>g an INS citizenship <strong>in</strong>terview, <strong>and</strong> after receiv<strong>in</strong>g a letter <strong>in</strong>dicat<strong>in</strong>g
that they had become naturalized At least 372 of the voters were apparently officially swom
<strong>in</strong> before Election Day. There are no reports of which we are aware that any noncitizens registered
or voted know<strong>in</strong>g that they were <strong>in</strong>eligible. Even assum<strong>in</strong>g there were no match<strong>in</strong>g errors, <strong>and</strong>

112
leav<strong>in</strong>gaside the critical question of <strong>in</strong>tent, if all 552 rema<strong>in</strong><strong>in</strong>g <strong>in</strong>dividualswere <strong>in</strong> fact noncitizens
when they cast their votes, the overall noncitizen vot<strong>in</strong>g rate would have been 0.017%."13.
ALLEGATIONS OF REGISTRATION FRAUD
There have been several documented <strong>and</strong> widely publicized <strong>in</strong>stances <strong>in</strong> which registration forms'have been
fraudulently completed <strong>and</strong> submitted. But it is extraord<strong>in</strong>arily difficult to f<strong>in</strong>d reported cases <strong>in</strong> which <strong>in</strong>dividuals
have submitted registration forms <strong>in</strong> someone ese's name <strong>in</strong> order to impersonate them at the polls.
Furthermore, most reports of registration fraud do not actually claim that the fraud happens so that <strong>in</strong>eligible
people can vote at the polls. Indeed, we are aware of no recent substantiated case <strong>in</strong> which registration fraud
has resulted <strong>in</strong> fraudulent votes be<strong>in</strong>g cast.
Instead, when registration fraud is alleged, the allegations generally fall <strong>in</strong>to one of four categories:
The first type of allegation concerns <strong>in</strong>dividuals <strong>in</strong>tentionally submitt<strong>in</strong>g forms <strong>in</strong> the name of someone (or
someth<strong>in</strong>g) <strong>in</strong>eligible <strong>in</strong> order to have some fun or - more often - to make a po<strong>in</strong>t.' 3 9 Most of the <strong>in</strong>famous
stories of dogs on the rolls fall <strong>in</strong>to this category, <strong>in</strong>clud<strong>in</strong>g a recent <strong>in</strong>cident <strong>in</strong> Wash<strong>in</strong>gron State-" 0
Most of the time, these forms are discovered <strong>and</strong> <strong>in</strong>vestigated by local officials before they make it onto the
rolls. There are no reports that we have discovered of votes actually cast <strong>in</strong> the names of such registrants.
The second type of allegation concerns "fraud" that is.not actually fraud at all. This <strong>in</strong>dudes registration
forms submitted by eligible voters, but with errors or omissions. 4 ' Such mistakes are relatively common,
but do not represent fraud. Similarly, there are many jurisdictions <strong>in</strong> which the registration rolls are <strong>in</strong>flated
with the names of eligible voters who have moved or died or otherwise become <strong>in</strong>eligible.41 These l<strong>in</strong>ger<strong>in</strong>g
entries also do not represent fraud; furthermore, as states build <strong>and</strong> improve the statewide voter registration
databases now required by federal law, it will become easier to remove <strong>in</strong>eligible voters from the rolls while
ma<strong>in</strong>ta<strong>in</strong><strong>in</strong>g safeguards for eligible registrants.
The third type of allegation concerns registration drive workers, who may be paid for their time or on the
basis of how many forms they submit," 3 <strong>and</strong> who <strong>in</strong>tentionally submit fraudulent forms. The allegations
may <strong>in</strong>volve forms submitted <strong>in</strong> the names of fictional voters, as <strong>in</strong> the case of "live Turkey,"'" or with the
names of actual voters but a false address or a forged signature." 5 Most of the cases of registration fraud
that are prosecuted fill <strong>in</strong>to this category'1" If voter registration drives have enough time <strong>and</strong> are allowed
by law to review the forms submitted by their workers, they can often catch these forms <strong>and</strong> draw them to
the attention of local elections officials." 7 These forms actually defraud the voter registration drives, which
compensate workers on the expectation that their time will be spent register<strong>in</strong>g new <strong>and</strong> eligible citizens; the
worker herself is <strong>in</strong>terested not <strong>in</strong> defraud<strong>in</strong>g the government, but <strong>in</strong> gett<strong>in</strong>g credit for work she didrt do. 1'
When drives are able to flag these forms for elections officials, the forms are <strong>in</strong>vestigated, not processed, <strong>and</strong>
the worker can be <strong>in</strong>vestigated <strong>and</strong> prosecuted. There are no reports that we have discovered of votes actually
cast <strong>in</strong> the names of such registrants.
F<strong>in</strong>ally, the fourth type of allegation <strong>in</strong>volves <strong>in</strong>dividuals who-change or manipulate-the registration of an
eligible voter to frustrate her ability to vote.'" Like the deliberate destruction of forms,"' 4 these <strong>in</strong>cidents are

113
rare <strong>and</strong> most often committed by partisan actors. Most states crim<strong>in</strong>alize the <strong>in</strong>tentional destruction of registration
forms or fraudulent submission of forms. Like tie allegations of fraud by election officdals, these <strong>in</strong>cidents
do not concern allegations of fraud by <strong>in</strong>dividual voters, <strong>and</strong> we do not address them <strong>in</strong> detail here.
Exaggerated or unfounded allegations of voter fraud due to fraudulent registration forms <strong>in</strong>clude the
follow<strong>in</strong>g:
* In Florida <strong>in</strong> 2005, a registration drive was alleged to be submitt<strong>in</strong>g thous<strong>and</strong>s of fraudulent registration
forms <strong>and</strong> withhold<strong>in</strong>g valid ones, with a box of 179 complete but unsubmitred forms
produced as evidence. The charges later proved groundless, <strong>and</strong> the disgruntled former worker
who produced the box was found to have defamed the drive. There are no reports of which we
are aware that any votes were cast us<strong>in</strong>g any fraudulent registration connected to the drive."'
* In Georgia <strong>in</strong> 2004, 3,000 allegedly fraudulent registration forms - with the same h<strong>and</strong>writ<strong>in</strong>g
<strong>and</strong> with numerous errors - were submitted by a registration drive. Procedures apparently
meant to protect the forms from <strong>in</strong>terference seemed to <strong>in</strong>terfere with the group's ability to
perform quality control on the forms that were submitted. There are no reports of which we are
aware that any votes were improperly cast us<strong>in</strong>g the name of any fraudulent registration form.'"
* In Missouri, <strong>in</strong> a departure from dear Department of Justice policy, four <strong>in</strong>dividuals were federally
<strong>in</strong>dicted on the eve of the 2006 election for alleged registration fraud <strong>in</strong> Kansas City. At least
1,492 other allegedly questionable voter registnrion forms were submitted to St. Louis, prompt<strong>in</strong>g
the Board of Elections for the City of St. Louis to send mislead<strong>in</strong>g notices to a wide swath of
voters who had registered through the same group.'5 Yet the wrongdoers were an isolated few
registration workers, <strong>and</strong> despite the skepticism of some that registration fraud occurs only to let
<strong>in</strong>eligible people vote fraudulendy, there are no reports of which we are aware that any votes were
cast us<strong>in</strong>g any fraudulent registration connected to the drive.'5'
ALLEGATIONS OF VOTER FRAUD BY DOGS
Popular media seem especially drawn to allegations that dogs are vot<strong>in</strong>g. These stories have a compell<strong>in</strong>g
'news of the bizarre" feel, <strong>and</strong> offer particular pleasure to punsters: 'Prank L<strong>and</strong>s Voter <strong>in</strong> the Doghouse.'"
'Woman Registers Her Dog to Vote; Prosecutors Growl. '"56 The fact, however. is that the voter rolls have not
been overrun by can<strong>in</strong>es. We are aware of only n<strong>in</strong>e specific reports of dogs found on the voter rolls, <strong>in</strong>dud-
5 7
<strong>in</strong>g the registration card of 'Ritzy Mekler" made <strong>in</strong>famous by Senator Kit Bond of Missouri.'
At least six of the n<strong>in</strong>e can<strong>in</strong>e registrants were placed on the rolls by <strong>in</strong>dividuals try<strong>in</strong>g to make a po<strong>in</strong>t about
the fact that it is possible, if one risks prosecution, to place a dog on the voter rolls.' 5 ' WVich is to say, if
people no longer registered dogs to show that dogs are on the rolls, dogs would no longer be on the rolls.
We are aware of only two cases - ever - <strong>in</strong>volv<strong>in</strong>g ballots actually submitted <strong>in</strong> die name of a dog the ballors
cast by "Duncan MacDonald" <strong>in</strong> 2006 <strong>and</strong> 2007 (but labeled "VOID" <strong>and</strong> signed with a paw pr<strong>in</strong>t),"'
<strong>and</strong> the ballot cast by "Raku Bowman' <strong>in</strong> 2003 <strong>in</strong> the Grass Roots Venice Neighborhood Council elections
<strong>in</strong> Venice, CaliforniaL. Only Bowmans vote - <strong>in</strong> a local election run by volunteers, rather than state or

114
federal election officials - was counted. Moreover, <strong>in</strong> order to cast these votes, both owners had to go to
significant lengths: swear fadsely on a voter registration form, forge a signature there, forge proof of identity,
swear falsely aga<strong>in</strong> on the absentee ballot request form, forge a signature there, swear falsely aga<strong>in</strong> on the
absentee ballot envelope itself, <strong>and</strong> forge a signature there. In an election or federal c<strong>and</strong>idates, that could
subject a defendant to up to thirty years <strong>in</strong> prison on federal charges alone.
ALLEGATIONS OF VoTE-BUYING
We also briefly mention allegations of vote-buy<strong>in</strong>g, which are often lumped together with "voter fraud,"
though they do not usually <strong>in</strong>volve allegations that the voters <strong>in</strong> question are <strong>in</strong>eligible. Instead, these <strong>in</strong>cidents
<strong>in</strong>volve illegal agreements by eligS citizens to buy or sell their votes.
Vote-buy<strong>in</strong>g schemes may <strong>in</strong>volve agreements to buy or sell votes for particular c<strong>and</strong>idates, or they may
simply <strong>in</strong>volve payments for vot<strong>in</strong>g - c<strong>and</strong>idate unspecified - <strong>in</strong> get-out-the-vote efforts targeted at communities
thought more likely to support a particular c<strong>and</strong>idate."' Usually, the monetary value of the reward
is fairly small: a small amount of cash, for example, or cigarettes, or food. And <strong>in</strong> virtually every case, a
c<strong>and</strong>idate or campaign staff are directly <strong>and</strong> centrally <strong>in</strong>volved <strong>in</strong> broker<strong>in</strong>g the illegal deal.
We mention such schemes specifically because they do still occur,"5 2 <strong>and</strong> are often used to buttress daims
that widespread fraud <strong>in</strong>fects the election system.`3 However, for most purposes, it is necessary to dist<strong>in</strong>guish
vote-buy<strong>in</strong>g from the voter fraud that more typically captures the attention of the public. Because the.
<strong>in</strong>dividuals <strong>in</strong>volved <strong>in</strong> vote-buy<strong>in</strong>g schemes are almost always citizens who are eligible. to vote, vote-buy<strong>in</strong>g
cannot possibly be addressed by most of the remedies proposed to confront voter fraud: photo identification
rules, restrictions on registration, <strong>and</strong> the like. In support<strong>in</strong>g the need for policies that address alleged fraud
by <strong>in</strong>eligible voters, then, it is mislead<strong>in</strong>g to <strong>in</strong>clude vote-buy<strong>in</strong>g <strong>in</strong> the list of wrongdo<strong>in</strong>g.
ALLEGATIONS OF FRAUD BY ELECTION OFFICIALS
Similarly, reporters <strong>and</strong> analysts should be wary of attempts to bootstrap fraud by election officials or other
<strong>in</strong>siders <strong>in</strong>to compendiums of alleged "voter fraud." Election fraud by <strong>in</strong>siders has been an issue s<strong>in</strong>ce Senators
wore togas. Sadly, there are still occasional reports of wrongdo<strong>in</strong>g by those who are employed to safeguard
the process. For example, <strong>in</strong> 2004, election judge Le<strong>and</strong>er Brooks was convicted of cast<strong>in</strong>g at least
twenty ballots <strong>in</strong> others' names <strong>in</strong> 2002 <strong>in</strong> East St. Louis, Ill<strong>in</strong>ois; his cous<strong>in</strong> Michael Coll<strong>in</strong>s, a former city
councilman, had been convicted of register<strong>in</strong>g acqua<strong>in</strong>tances from outside his prec<strong>in</strong>ct to vote fraudulendy
from a neighbor's address <strong>in</strong> 1995.'"6
Like the allegations of vote-buy<strong>in</strong>g above, fraud by election officials should be condemned, <strong>and</strong> documented
acms of such fraud should be prosecuted. But also like the allegations above, such <strong>in</strong>cidents should be dearly
dist<strong>in</strong>guished from voter fraud. Most remedies aimed at prevent<strong>in</strong>g alleged fraud by <strong>in</strong>eligible voters depend
on honest enforcement of the law by election officials. Conversely, if as above, election officials are will<strong>in</strong>g to
pervert the law, policies aimed at polic<strong>in</strong>g voters will not be able to stop <strong>in</strong>siders from corrupt<strong>in</strong>g the system.

VI1. APPENDIX
SELECTED CASE STUDIES
115
Allegations of widespread fraud by malevolent voters are easy to make, but often prove to be <strong>in</strong>accurate. 'The
Brennan Center has analyzed public materials <strong>in</strong> some of the areas br<strong>and</strong>ed as notorious election fraud 'hot
spots,' f<strong>in</strong>d<strong>in</strong>g that various election irregularities led to <strong>in</strong>flated daims of widespread fraud.
In many of these cases, proposals to require restrictive identification documents of voters at the polls were
under debate at the time of the election-or were proposed as a result The cries of"voter fraud" were often
used to support the call for restrictive ID.
We exam<strong>in</strong>ed each of the allegations of fraud by voters to uncover the truth beh<strong>in</strong>d the assertions. Further
case studies are available at our website devoted to the topic, www.truthaboutfraud org.
Missouri In some ways, the recent hunt for voter fraud began <strong>in</strong> Missouri <strong>in</strong> the 2000 election, the
crucible that proved formative for Attorney General John Ashcroft <strong>and</strong> Senator Kit Bond,
among others. Yet despite all the frenzy, the allegations yielded only six substantiated cases
of Missouri votes cast by <strong>in</strong>eligible voters, know<strong>in</strong>gly or unknow<strong>in</strong>gly, except for those
votes permitted by court order. The six cases were double votes by four voters-two across
state l<strong>in</strong>es <strong>and</strong> two with<strong>in</strong> Missouri-amount<strong>in</strong>g to an overall rate of 0.0003%. None of
these problems could have been resolved by requir<strong>in</strong>g photo ID at the polls.
New Jersey just before the 2005 election, partisan actors attempted to probe the accuracy of New
Jersey's voter rolls by compar<strong>in</strong>g election records for 2004 with death records <strong>and</strong> with the
rolls of other states. The allegations yielded only eight substantiated cases of <strong>in</strong>dividuals
know<strong>in</strong>gly cast<strong>in</strong>g <strong>in</strong>valid votes that counted-eight voters who voted twice. Given the
number of votes cast <strong>in</strong> these elections, this amounts to a rare of 0.0004%. None of these
problems could have been resolved by requir<strong>in</strong>g photo ID at the polls.
Wiscons<strong>in</strong> The 2004 election was hotly contested <strong>in</strong> Wiscons<strong>in</strong>, <strong>and</strong> various irregularities led to <strong>in</strong>flated
daims of widespread fraud. The allegations yielded only seven substantiated cases
of <strong>in</strong>dividuals know<strong>in</strong>gly cast<strong>in</strong>g <strong>in</strong>valid votes that counted-all persons with felony conviactions.
This amounts to a rate of 0.0025% with<strong>in</strong> Milwaukee <strong>and</strong> 0.0002% with<strong>in</strong> the
state as a whole. None of these problems could have been resolved by requir<strong>in</strong>g photo ID
at the polls.

MISSOURI
116
The 2000 election was hotly contested <strong>in</strong> Missouri, <strong>and</strong> various irregularities led to <strong>in</strong>flated claims of widespread
fraud. Many of these fraud claims were later used to support the call for restrictive ID requirements.
We exam<strong>in</strong>ed each of the allegations of fraud by <strong>in</strong>dividual voters - the only sort that ID could possibly
address - to uncover the truth beh<strong>in</strong>d the assertions.
THE ALLEGATIONS:
Invalid addresses: 79 <strong>in</strong>dividuals listed as vot<strong>in</strong>g <strong>in</strong> St. Louis City were registered from addresses alleged to be
vacant lots. Further <strong>in</strong>vestigation found that properties that were wrongly dassified by the dry assessos office
as vacant <strong>in</strong> fact conta<strong>in</strong>ed legitimate residences. Only 14 voters were found to be listed as registered from vacant
lots, at least one of whom was apparently victim of a typographical error, <strong>and</strong> three more ofwhom moved
with<strong>in</strong> St. Louis City <strong>and</strong> may not have been required to re-register with a new address before vot<strong>in</strong>g.' 65
14 addresses <strong>in</strong> St. Louis City were allegedly 'drop sites" where fraudulent registrations might have been processed."s
The 14 alleged "drop sites" <strong>in</strong> St. Louis City were addresses that were determ<strong>in</strong>ed to be locations
other than apartment build<strong>in</strong>gs, nurs<strong>in</strong>g homes, or recognizable group homes where more than eight people
were registered at each location. Seven of these addresses were actually visited by reporters, <strong>and</strong> all seven visits
revealed that more than 5 7
eight people properly lived at the address noted.'
Ineligible by conviction: 62 <strong>in</strong>dividuals listed as vot<strong>in</strong>g <strong>in</strong> St. Louis City <strong>and</strong> County matched the name.
dare of birth, <strong>and</strong> Social Security number of <strong>in</strong>dividuals listed on federal court records of felony conviction,
<strong>and</strong> 52 <strong>in</strong>dividuals listed as vot<strong>in</strong>g <strong>in</strong> ,St. Louis County matched the name <strong>and</strong> date of birth of <strong>in</strong>dividuals
listed on county records of felony conviction. It is not dear whether there was any overlap between the list
of 62 <strong>and</strong> the list of 52, nor is it clear whether any of the <strong>in</strong>dividuals had had their rights restored before the
election. We are not aware of any public reported analysis of poll records to determ<strong>in</strong>e whether <strong>in</strong>dividuals
listed as vot<strong>in</strong>g actually voted <strong>and</strong> were not listed as vot<strong>in</strong>g due to a clerical error or mistakenly listed <strong>in</strong>stead
of an eligible voter with the same name <strong>and</strong> birthdated.s
* Double voters: 23 <strong>in</strong>dividuals listed as vot<strong>in</strong>g on the voter rolls ma<strong>in</strong>ta<strong>in</strong>ed by St. Louis City <strong>and</strong> County
matched thename, dateofbirth,<strong>and</strong> Social Securitynumberofanother<strong>in</strong>dividual listedasvot<strong>in</strong>g 45 <strong>in</strong>dividuals
matched the name <strong>and</strong> date of birth ofanother voter. We are not aware of any public reported analysis ofthesc
poll records to determ<strong>in</strong>e whether <strong>in</strong>dividuals listed as vot<strong>in</strong>g actually voted twice <strong>and</strong> were not listed as vot<strong>in</strong>g
due to a clerical error or mistakenly confused with another eligible voter with the same name <strong>and</strong> birthdate.'o
Based on a computer match of names <strong>and</strong> dates of birth on voter rolls, 150 <strong>in</strong>dividuals from St. Louis
-presumably <strong>in</strong>clud<strong>in</strong>g the <strong>in</strong>dividuals above - were listed as vot<strong>in</strong>g twice <strong>in</strong> 2000 or 2002, <strong>and</strong> 150 other
<strong>in</strong>dividuals from across the rest of the state were alleged to have either voted twice with<strong>in</strong> the state or once <strong>in</strong>
Kansas <strong>and</strong> once <strong>in</strong> Missouri. The same analysis acknowledged that the "computer files conta<strong>in</strong> many errors
that show people vot<strong>in</strong>g who did not actually vote.""l Of 18 Kansas City cases that reporters followed up, 13
were shown ro result from clerical errors, 2 were uncerta<strong>in</strong>, <strong>and</strong> 3 appeared to show double vot<strong>in</strong>g <strong>in</strong> Missouri
<strong>and</strong> Kansas - 2 <strong>in</strong> 2000 <strong>and</strong> I <strong>in</strong> 2002. (At least two of these were convicted <strong>in</strong> federal court.) One other
case of double vot<strong>in</strong>g with<strong>in</strong> Missouri <strong>in</strong> 2000, <strong>and</strong> one <strong>in</strong> 2002, were substantiated us<strong>in</strong>g poll records.1' 7

117
* Dead voters: 14 votes <strong>in</strong> St. Louis City <strong>and</strong> County were cast <strong>in</strong> the names of allegedly dead people, based
on a computer match of names, dates of birth, <strong>and</strong> Social Security numbers on the vot<strong>in</strong>g rolls aga<strong>in</strong>st <strong>in</strong>formation
<strong>in</strong> Department of Healrh records.'" It is not dear whether any of these <strong>in</strong>dividuals died after the
election. We are not aware of any public reported analysis of poll records to determ<strong>in</strong>e whether <strong>in</strong>dividuals
listed as vot<strong>in</strong>g actually voted <strong>and</strong> were not listed as vot<strong>in</strong>g due to a clerical error.'"
ADDITIONAL ALLEGATIONS OF IRREGULARITIES UNCONNECTED TO INDIVIDUAL
VOTER FRAUD:
* 'Inactive" purge: In St. Louis, approximately 49,589 eligible voters were removed from the active voter rolls
<strong>and</strong> placed on an '<strong>in</strong>active list" after postcards allegedly sent to them were returned as undeliverable. At
many poll<strong>in</strong>g places, the '<strong>in</strong>active lists" were not made available, <strong>and</strong> these voters were allegedly unlawfully
<strong>in</strong>structed that they could not vote at their regular precnct. but <strong>in</strong>stead had to travel to the central city office
to wait on lengthy l<strong>in</strong>es to affirm their registered status, <strong>and</strong> then return to their orig<strong>in</strong>al poll<strong>in</strong>g places to
vote. Some voters were still on l<strong>in</strong>e at the central office when the polls dosed, <strong>and</strong> were not able to return
to their poll<strong>in</strong>g places to vote.' 7 '
* Poll<strong>in</strong>g place time: In St. Louis, the polls were kept open by court order until 7:45pm, 45 m<strong>in</strong>utes past the
orig<strong>in</strong>al dos<strong>in</strong>g time. The lead pla<strong>in</strong>tiff request<strong>in</strong>g this order was allegedly deceased, although later review
showed that the pla<strong>in</strong>tiff's name had been typed with an <strong>in</strong>correct middle <strong>in</strong>itial; the legal fil<strong>in</strong>gs also stated
that this pla<strong>in</strong>tiff had been unable to vote when he had <strong>in</strong> fact voted. The effort to keep the polls open was
alleged to have been conceived before Election Day. The delayed dos<strong>in</strong>g time allowed at least 100 voters to
vote who otherwise would have arrived at the polls too late to cast a vote."' 7
* Court order Ar least 342 voters <strong>in</strong> St. Louis City <strong>and</strong> 891 voters <strong>in</strong> St. Louis Countywere allegedly improperly
granted a court order allow<strong>in</strong>g them to vote. The effort to seek court orders was also alleged to have been
conceived before Election Day. Most of these voters allegedly gave <strong>in</strong>sufficient reasons for obta<strong>in</strong><strong>in</strong>g a court
order, although the report arriv<strong>in</strong>g at this conclusion stated an <strong>in</strong>accurately high threshold for obta<strong>in</strong><strong>in</strong>g a
court order' 7 ' 143 of these voters allegedly had not been registered by the voter registration deadl<strong>in</strong>e; it is
not dear if any of the other voters were <strong>in</strong>eligible to vote.'"
* Improper election judges: 45 election judges <strong>in</strong> St. Louis City allegedly not registered to vote were later
found to be validly registered; all were thought <strong>in</strong>valid because of typographical errors."'
* Inflated voter rolls: St. Louis City had more names registered on the vot<strong>in</strong>g rolls than the vot<strong>in</strong>g-age population
of the city, <strong>and</strong> 24,000 names were also listed as registered elsewhere <strong>in</strong> Missouri."'
* Cha<strong>in</strong> of custody: BlaDot boxes were allegedly leht unartended at 29 predncts. '

118
THE RATE OF SUBSTANTIATED VOTER FRAUD:
* The allegations of fraud related to the 2000 general election, <strong>in</strong> which 124,752 votes were cast <strong>in</strong> St. Louis
City, 497,577 votes were cast <strong>in</strong> St. Louis County, <strong>and</strong> 2,361,586 votes were cast <strong>in</strong> all of Missouri."'
* There were 6 substantiated cases of Missouri votes cast by <strong>in</strong>eligible voters, know<strong>in</strong>gly or unknow<strong>in</strong>gly, except
for those votes permitted by court order. These six cases were double votes by four voters - two across
state l<strong>in</strong>es <strong>and</strong> two with<strong>in</strong> Missouri. This amounts to a rate of 0.0003%. None of these problems could have
been resolved by requir<strong>in</strong>g photo ID at the polls.
e Even given allegations that were unsubstantiated. the rate of possible fraud rema<strong>in</strong>s low. The analysis
above lays out the allegations, reasons to question each, <strong>and</strong> the facts that we now know. But assum-
<strong>in</strong>g that all 278 of the rema<strong>in</strong><strong>in</strong>g questionable allegations-<strong>in</strong>clud<strong>in</strong>g 14 voters with allegedly <strong>in</strong>valid
addresses, 114 allegedly <strong>in</strong>eligible persons with felony convictions, 68 allegedly double voters (at two
votes apiece), <strong>and</strong> 14 votes <strong>in</strong> the names of allegedly deceased <strong>in</strong>dividuals-<strong>in</strong> fact represent <strong>in</strong>eligible
votes, that would amount to a rate of 0.045% with<strong>in</strong> St. Louis City <strong>and</strong> County <strong>and</strong> 0.012% with<strong>in</strong>
the state as a whole. If all 14 votes <strong>in</strong> the names of allegedly deceased <strong>in</strong>dividuals <strong>in</strong> Fact proved fraudulent
<strong>and</strong> were cast <strong>in</strong> person, these votes-0.002% with<strong>in</strong> St. Louis City <strong>and</strong> County <strong>and</strong> 0.0006%
with<strong>in</strong> the state as a whole-might possibly have been resolved by requir<strong>in</strong>g photo ID at the polls.
Note: this analysis does not <strong>in</strong>clude 228 unsubstantiated cases of alleged double vot<strong>in</strong>g across the state re-
ported by the Kansa Cay Star, because they did not dist<strong>in</strong>guish between votes cast <strong>in</strong> 2000 <strong>and</strong> 2002. In the
2002 general election. 1,877,620 votes were cast <strong>in</strong> Missouri."
COVERAGE BY EXISTING LAW:
* Proper implementation of the federal Help America Vote Act (HAVA), which was passed after (<strong>and</strong> to some
extent, because of) the 2000 election, would have addressed most of these allegations. HAVA requires stases
to create statewide electronic voter registration lists with each eligible voter listed uniquely to remove duplicate
registrations, <strong>and</strong> to coord<strong>in</strong>ate those computerized lists with agency records on death <strong>and</strong> conviction <strong>in</strong>
order to remove <strong>in</strong>digible voters. Altbough the obligation to ma<strong>in</strong>ta<strong>in</strong> these deaned lists predated HAVA,
the computerized registration rolls - if implemented with suitable controls for accuracy - offier a new <strong>and</strong>
efficient means to do so statewide. Like most states, Missouri did not have a statewide computerized database
up <strong>and</strong> runn<strong>in</strong>g <strong>in</strong> 2000, but now that it does, the database should allow the state to sharply reduce even
the small number of alleged <strong>in</strong>valid votes due to allegedly improper registrations.

NEW JERSEY
119
Just before the 2005 elections, partisan actors attempted to probe the accuracy of New Jersey's voter rolls
by compar<strong>in</strong>g them with death records <strong>and</strong> with the rolls of other states. The reports led to <strong>in</strong>flated daims
of widespread fraud <strong>in</strong> the 2004 election, of the sort commonly used to support restrictive identification
requirements for voters at the polls. We exam<strong>in</strong>ed each of the allegations of fraud by <strong>in</strong>dividual voters-the
only sort that ID could possibly address-to uncover the truth beh<strong>in</strong>d the assertions.
THE ALLEGATIONS:
* Dead voters: 4,755 votes were alleged to have been cast <strong>in</strong> the names of dead voters <strong>in</strong> 2004, based on an
attempt to match the first <strong>and</strong> last name <strong>and</strong> date of birth from vot<strong>in</strong>g records to death records."' No followup
<strong>in</strong>vestigation appears to have been published on the number of votes actually cast <strong>in</strong> the names of dead
voters <strong>in</strong> 2004, if any. None of the allegedly dead voters actualy voted <strong>in</strong> 2005. '
* Double voters: 4,397 <strong>in</strong>dividuals allegedly voted twice <strong>in</strong> New Jersey <strong>and</strong> 6,572 <strong>in</strong>dividuals allegedly voted
both <strong>in</strong> New jersey <strong>and</strong> <strong>in</strong> either New York, Pennsylvania, Florida, North Carol<strong>in</strong>a, or South Carol<strong>in</strong>a, based
on an attempt tomatch the first <strong>and</strong> last name<strong>and</strong> dareofbirth fromone set of vot<strong>in</strong>grecords to another."'
Analysis of the list of alleged double voters with<strong>in</strong> New Jesey showed that 2,305 of the entries had different
middle names or suffixes, or an error <strong>in</strong> the date of birth.'" Daa errors <strong>in</strong> Middlesex county, <strong>and</strong> the serastical
likelihood of f<strong>in</strong>d<strong>in</strong>g; two different <strong>in</strong>dividuals with the sam1e name <strong>and</strong> birthdate, call <strong>in</strong>to question much
of the rema<strong>in</strong>der of the list."' Ultimately, the existence of eight double voters was substantiated through
orig<strong>in</strong>al signatures on poll book materials.'"
THE RATE OF SUBSTANTIATED VOTER FRAUD:
* The allegations of fraud related to the 2004 general election, <strong>in</strong> which 3,611,691 votes were cast <strong>in</strong> New
Jersey.)9
* There were eight substantiated cases of <strong>in</strong>dividuals know<strong>in</strong>gly cast<strong>in</strong>g <strong>in</strong>valid votes-eight voters vot<strong>in</strong>g
twice. This amounts to a rate of 0.0004%. None of these problems could have been resolved by requir<strong>in</strong>g
photo ID at the polls.
* Even given allegations that were unsubstantiated, the rate of possible fraud rema<strong>in</strong>s low. The analysis above
lays out the allegations, reasons to question each, <strong>and</strong> the facts that we know. But assum<strong>in</strong>g that all 13,419
of the rema<strong>in</strong><strong>in</strong>g cases <strong>in</strong> fact <strong>in</strong>volved voter fraud-which is highly unlikely, given the methodological errors
revealed <strong>in</strong> the study of double-vot<strong>in</strong>g-that would amount to a rate of 0.61%.

COVERAGE BY EXISTING LAW:
120
* The federal Help America Vote Act (HAVA) requires states to create statewide dectronic voter registration
lists, <strong>and</strong> to coord<strong>in</strong>ate those computerized lists with agency records on death <strong>in</strong> order to remove <strong>in</strong>eligible
voters. Although the obligation to remove deceased voters from the rolls predated HAVA, the computerized
registration rolls - if implemented with suitable controls for accuracy-offer a new <strong>and</strong> efficient means to
do so statewide. Like most states, New Jersey did not have a HAVA-ready statewide database up <strong>and</strong> runn<strong>in</strong>g
<strong>in</strong> 2004, but once it does, the database should allow the state both to elim<strong>in</strong>ate duplicate registrations-with<strong>in</strong>
the state <strong>and</strong> co cut down on the number of deceased citizens who are still on the rolls.

WISCONSIN
121
The 2004 election was hotly contested <strong>in</strong> Wiscons<strong>in</strong>, <strong>and</strong> various irregularities led to <strong>in</strong>flated claims of widespread
fraud. At the same time, Wiscons<strong>in</strong> citizens were debat<strong>in</strong>g a proposal to require restrictive identification
of each voter at the polls, <strong>and</strong> the fraud claims were used to support the call for ID. We exam<strong>in</strong>ed each
of the allegations of fraud by <strong>in</strong>dividual voters-the only sort that ID could possibly address-to uncover
the truth beh<strong>in</strong>d the assertions.
THE ALLEGATIONS:
* Invalid addresscs: Based on an attempt to match voter roll entries to the U.S. Postal Service's database of
street addresses, 37,180 people <strong>in</strong> Milwaukee were alleged to have registered from <strong>in</strong>valid addresses. Of
these, 31,500 listed accurate street addresses, but had problems with an apartment number. Further review
of the rema<strong>in</strong><strong>in</strong>g allegedly <strong>in</strong>valid addresses revealed cases <strong>in</strong> which the list was corrupted: digits were
dropped on some entries, mak<strong>in</strong>g otherwise valid addresses appear fictitious. This review also showed typos
turn<strong>in</strong>g valid addresses <strong>in</strong>to <strong>in</strong>valid ones. Though reporters follow<strong>in</strong>g up on the story could not locate 68
listed addresses, at least 400 addresses were affirmatively proven to be valid. The bipartisan Milwaukee Elec-
tion Commission ultimately threw out a challenge lodged to 5,619 of the entries, cit<strong>in</strong>g <strong>in</strong>sufficient evidence
that the registrations were <strong>in</strong>valid. Still, poll workers were specifically <strong>in</strong>structed to ask challenged voters for
proof of residency, so every voter on the list of 5,619 should have been asked for proofof proper residency.
1,242 Milwaukee votes were cast from allegedly <strong>in</strong>valid addresses, based on another computerized match;
this match paired voter rolls with U.S. Postal Service <strong>and</strong> City of Milwaukee property lists, with spot checks
of 40 specific addresses. "' A sample of 300 of the entries showed that about 20% of the <strong>in</strong>valid addresses
were attributed to data entry errors (e.g., '3130 S. 15"' Place' became "3130 S. 15"' SLtY <strong>and</strong> 's. 68"' St."
became 'S. 63'" St."). At least two other addresses ostensibly deemed bus<strong>in</strong>ess locations were found to be
valid residences after an <strong>in</strong>dividual spot-check. Furthermore, 75% of these votes were from Election Day
registrants, who were required to show proof of residence at the polls.' 55
* Faulty registration cards: In Milwaukee, 10,921 voter registration cards from Election Day voters were allegedly
unable to be processed. This allegation turned out to be an error; <strong>in</strong> fact, 1,305 Election Day registration
cards from Milwaukee could not be processed. 548 of these listed no address, <strong>and</strong> 48 cards listed no name,
but voters had to show both proof of name<strong>and</strong> proof of residence to register on Election Day. 236 cards had
miss<strong>in</strong>g or <strong>in</strong>complete dares of birth, 28 had no signature, 141 listed addresses outside of the city limits, <strong>and</strong>
23 were deemed illegible. 155 cards were not processed because they had not been given a voter number by
the city. It is unclear why the rema<strong>in</strong><strong>in</strong>g 126 cards could not be processed.' t '
3,600 address verification cards mailed us<strong>in</strong>g <strong>in</strong>formation entered from these Election Day registrations were
returned as allegedly undeliverable. 'S We are not aware of any further public <strong>in</strong>vestigation of these cards.'"
2,200 address verification cards from outside of Milwaukee, mailed us<strong>in</strong>g <strong>in</strong>formation entered from Election
Day registrations, were also returned as allegedly undeliverable."9 313 of these were from Rac<strong>in</strong>e: 207 were
returned because the voter moved after the election, <strong>and</strong> at least 24 addresses were entered <strong>in</strong>correctly by
election workers." 7 Of the 1,887 returned address verifications of Election Day registrations from elsewhere
around the state, 1,198 were returned because the voter moved after the election or was temporarily absent

122
when the card arrived; 610 showed a valid address but the <strong>in</strong>dividual could not be found there; 36 had an
<strong>in</strong>correct street number, 2 had an <strong>in</strong>correct street name, 9 had a miss<strong>in</strong>g apartment number; 9 were sent to
an address with no mailbox; 2 were sent to vacant addresses; <strong>and</strong> 21 were returned for some other reason.' 3
* Ineligible by conviction: The organizers of one pre-elecsion jailhouse absentee ballot drive conducted a records
check on 400 <strong>in</strong>mates who had signed up, found 18 <strong>in</strong>eligible, <strong>and</strong> alerted election offciac,; no votes were cast
by these <strong>in</strong>eligible persons.'"
376 <strong>in</strong>dividuals allegedly rendered <strong>in</strong>eligible by felony conviction cast ballots, based on an attempt to match
vorerrolls <strong>and</strong> <strong>in</strong>formation from the DepartmentofCorrections.' 96<strong>in</strong>dividuals listed asvot<strong>in</strong>g<strong>in</strong> Milwaukee
matched name, address, <strong>and</strong> birthdare aga<strong>in</strong>st Department ofCorrection records, <strong>and</strong> 182 <strong>in</strong>dividuals listed as
vot<strong>in</strong>gmawchedonlyname<strong>and</strong> address. Atleastoneappears to have been erroneouslylisted asvot<strong>in</strong>g; be is listed
as vot<strong>in</strong>g but claims that he did not, while his wife is not listed as vot<strong>in</strong>g, but did cast a ballot. Another 98 people
listed as vot<strong>in</strong>gelsewhere around the state matched name, address, <strong>and</strong> birthdate aga<strong>in</strong>st Depattment ofCorrecdon
records, but at least 7 were convicted after the election, <strong>and</strong> were eligible at the time they cast their ballot...l
13 voters have been formally charged with fraudulendy vot<strong>in</strong>g while <strong>in</strong>eligible-, of these, 7 have been convicted,
I voter was acquitted, I case was dismissed upon evidence that the voter was eligible when vot<strong>in</strong>g, 2 cases
were dismissed for other reasons, <strong>and</strong> 2 cases were dismissed despite evidence that the voter was <strong>in</strong>eligible. In
one of the latter cases, the voter provided his Department of Corrections identification card at the polls, which
had 'OFFENDER' pr<strong>in</strong>ted <strong>in</strong> bold letters across the face, but was not told that he was <strong>in</strong>eligible to vote.4t
3 others were documented as vot<strong>in</strong>g while <strong>in</strong>eligible but have not been charged. An additional voter documented
as <strong>in</strong>eligible was found <strong>in</strong> 20 0 6 ."r
* Double voters: Acomputerglitch<strong>in</strong>Milwaukeecausedatlest 3l4voterswho re-registeredbeforeoron Election
Daytobelistedtwiceontherolls,withanotationofvot<strong>in</strong>gnexttoeachlist<strong>in</strong>g. Eachwasgivenonlyas<strong>in</strong>gleballoc.>
83 people allegedly voted twice; 14 allegedly voted both absentee <strong>and</strong> <strong>in</strong> person, 9 allegedly voted <strong>in</strong> Milwaukee
<strong>and</strong> other tdies, 59 allegedly voted twice <strong>in</strong> Milwaukee, <strong>and</strong> I allegedly voted twice <strong>in</strong> Madison. 5 ' Of the 59
voters alleged to have voted tice <strong>in</strong> Milwaukee, most registered twice but voted only once. 51 were cleared by
<strong>in</strong>vestigators, I was acquitted at trial, I received noverdict at trial, <strong>and</strong> 1 was found <strong>in</strong>competent tost<strong>and</strong> trial. F<strong>in</strong>ally,
anothervoter named Gloria Bell believes thatshewasconfusedwith awoman named GloriaBell-Piphus.'a
Of the 9 voters alleged to have voted both <strong>in</strong> Milwaukee <strong>and</strong> <strong>in</strong> another city, all 9 were cleared of wrongdo<strong>in</strong>g.
clerical <strong>and</strong> scann<strong>in</strong>g errors by poll workers accounted for 6 of the voters, 2 were fathers <strong>and</strong> sons
alleged to be the same person, <strong>and</strong> I had a different middle name <strong>and</strong> birthdate from his alleged double.
Of the 14 voters alleged to have voted both absentee <strong>and</strong> <strong>in</strong> person, <strong>in</strong> at least 12 cases, after compar<strong>in</strong>g
absentee records to poll records, the absentee ballot was not counted. '
* Dcad voters: 4 votes were cast <strong>in</strong> the names of allegedly dead people.'5 These were all absentee ballots, cast
by <strong>in</strong>dividuals who died with<strong>in</strong> two weeks of the election; it is not dear whether the ballots were cast before
the <strong>in</strong>dividuals died.3"

123
* Impersonation: I vote was alegedy casr <strong>in</strong> the name of an <strong>in</strong>dividual who did not vote. 2 "° Further <strong>in</strong>vestigation
of the alleged vote cast <strong>in</strong> the name of another was determ<strong>in</strong>ed to be a clerical error by a po 11 worker."'
* Fictitious voters: 2 votes were allegedly cast <strong>in</strong> the name of an <strong>in</strong>dividual who could not be verified as an
actual <strong>in</strong>dividual. 2 ' 2 These votes were cast <strong>in</strong> the name of Marquis E Murff, who could not be verified by a
reporter as an actual <strong>in</strong>dividual. We are not aware of any further public <strong>in</strong>vestigaion."
* Underage voter. One ballot was cast by a 17-year-old voter. us<strong>in</strong>g his real birthdatem'
* Noncitizen: One columnist reported that a ballot was allegedly cast by a Canadian legal permanent resident.
We are not aware of any further public <strong>in</strong>vestigation. 2 "
* Faulty registration: Four <strong>in</strong>dividuals allegedly submitted false voter registration applications. 2 0 6 2 Milwaukee
residents were convicted for submitt<strong>in</strong>g FE2se voter registration applications; I person alleged to have supervised
two others who rurned <strong>in</strong> fise forms was also convicted, but that conviction was overturned. The trial
of one other <strong>in</strong>dividual accused of submitt<strong>in</strong>g false registration applications is still pend<strong>in</strong>g. No votes were
alleged to have been cast under these registrations."'
ADDITIONAL ALLEGATIONS OF IRREGULARITIES UNCONNECTED TO INDIVIDUAL
VOTER FRAUD:
* 'Extra" ballots: In Milwaukee, there were allegedly 8,300 more ballots cast than <strong>in</strong>dividuals processed as
vot<strong>in</strong>mg the gap was later narrowed to 4,609. The discrepancy was later antributed to adm<strong>in</strong>istrative error <strong>in</strong>
reconcil<strong>in</strong>g poll book logs with ballots, <strong>and</strong> at least one typographical error <strong>in</strong> report<strong>in</strong>g results. 2 t '
* Election Day <strong>in</strong>terferen=c In Milwaukee, tires on 20 ger-out-the-vote vans were allegedly slashed.Y
* Uncounted ballots: 238 valid absentee ballots from Milwaukee were counted late.'e
* Uncounted votes: 600 valid votes were allegedly not counted <strong>in</strong> Medford due to a computer error.'
* Unprocessed registration cards: Eight boxes of valid registration cards were allegedly not processed <strong>in</strong> order
to put voters on the rolls by the time <strong>in</strong>dividuals arrived at the polls.w
THE RATE OF SUBSTANTIATED VOTER FRAUD:
* The allegations of voter fraud related to the 2004 general elections, <strong>in</strong> which 277,565 votes were cans <strong>in</strong>
Milwaukee, <strong>and</strong> 2,997,007 votes were cast <strong>in</strong> all of Wiscons<strong>in</strong>."o
* There were 7 substantiated cases of <strong>in</strong>dividuals know<strong>in</strong>gly cast<strong>in</strong>g <strong>in</strong>valid votes-all persons with felony convictions.
This amounts to a rate of 0.0025% with<strong>in</strong> Milwaukee <strong>and</strong> 0.0002% with<strong>in</strong> the state as a whole.
None of these problems could have been resolved by requir<strong>in</strong>g photo ID at the polls.

124
* There werc II substantiated cases of votes cast by <strong>in</strong>eligible Milwaukee votets-all persons with felony convictions There
are 8 substantiated cases of votes cast by <strong>in</strong>eligible voters from other parts of the state -2 persons with fdony convictions,
I foreign national. I 17-year-old voter, <strong>and</strong> 4 absentee ballots cast by deceased voters. That amounts to a rate of 0.004%
with<strong>in</strong> Milwaukee <strong>and</strong> 0.0006% <strong>in</strong> the state as a whole. None of dtese problems could hav been resolved by requir<strong>in</strong>g
photo ID at the polls.
* Even given allegations that were unsubstmatiated, the rare of possible fraud rema<strong>in</strong>s low. The analysis above lays out the
allegations, reasons to question each <strong>and</strong> the facts that we now know. But assum<strong>in</strong>g that all 6.877 of the remnass<strong>in</strong>g questionabke
allegations-<strong>in</strong>dud<strong>in</strong>g 1. 150 voter registration cards not processed, 5,356 allegedly flawed addresses, 353 other
allegedly <strong>in</strong>eligible persons with convictions, 8 allegedly double voters (for a total of 16 votes), <strong>and</strong> 2 votes from the allegedly
fictitious <strong>in</strong>dividual-<strong>in</strong> fact represent <strong>in</strong>eligible votes, that would amount to a rate of 2.2% with<strong>in</strong> Milwaskee <strong>and</strong>
02% with<strong>in</strong> the state as a whole. None of these votes could have been resolved by requir<strong>in</strong>g photo ID at the polk.
COVERAGE BY EXISTING IAW:
* The vast majority of these allegations would have been addressed by adcquate implementation of exist<strong>in</strong>g law. Electionsofficials
should have been able to correct <strong>in</strong>complete or illegible registration canrs on site; the requirement of proof'of residence
for Election Day registrasts should have caught <strong>in</strong>valid addresses on Election Day. Addresses of voters register<strong>in</strong>g
before Election Day could have been carefully <strong>in</strong>vestigated before Election Day - by an <strong>in</strong>vestigation more thorough than
a computer mnatch, <strong>and</strong> amtuned to the possibility of data entry errors. If the <strong>in</strong>vestigation reveaed questions, as occusred
hem the questioned votemS could have been validly challe<strong>in</strong>ged by election officias, <strong>and</strong> asked to verify their reidence. if
an <strong>in</strong>vestigation revealed fraud rather thn error or a valid change of residence. the case could be referred for prosecusorial
follow-through. Similarly, as occurred herem absentee ballots should have been matched aga<strong>in</strong>st poll records to determ<strong>in</strong>e
if a duplicate had been cast.
* Proper implementation of the feeral Help America Vote Act (HAVA) would have addressed most of the rema<strong>in</strong><strong>in</strong>g allegarions.
HAVA requires states to create satewide electronic voter registration lists with each eligible voter listed uniquely so
remove duplicate registrations, <strong>and</strong> to coord<strong>in</strong>ate those computerized lists with agency records on death <strong>and</strong> conviction <strong>in</strong>
order to remove <strong>in</strong>eligible voters. Although the obligation to ma<strong>in</strong>ta<strong>in</strong> these cleaned lists predated HAVA. the computerized
registration rolls - if implemented with suitable controb for accuracy - offer a new <strong>and</strong> efficient means to do so
statewide Like most states, Wiscons<strong>in</strong> did not have a HAVA-ready statewide database up <strong>and</strong> runn<strong>in</strong>g <strong>in</strong> 2004. but once it
does, the database should allow the state to sharply reduce even the small number of alleged <strong>in</strong>valid votes due to allegedly
improper registrations.

EN()NOTES
125
I Sct also MINNITE. THE POUTICS OF VOTER FRAUD, supra note 12, at 6 (offer<strong>in</strong>g a similar def<strong>in</strong>ition).
2 See Sec'y of State Rob<strong>in</strong> Carnahan, Voters First: An Exam<strong>in</strong>ation of the 2006 Midterm Election <strong>in</strong>
Missouri 8, 9 (W<strong>in</strong>ter 2007), at http:I/wwwsos.mo-govlelctdonslVotersFirst/VorersFirst-FINALpdf
(technical malfunction. user error); Greg Borowski, A New Push to Repair Ekctions, MILWAUxEE J. SEN-
TINEL, May 15, 2005 (technical malfunction); Arakawa Lynda, Recount Confirms Results HONOLULU
ADVERTISER, Mar. 16, 1999, at Al (technical malfunction).
3 See. e.g., Jan<strong>in</strong>e Anderson, 4 Men Face Voter Fraud Charges, JouRNAL-TIMEs (Rac<strong>in</strong>e, Wis.), Sept. 11.
2007; Scores ofFelons Voted legaly, SEATTLE TIMES, jan. 23, 2005.
4 See, eg., Jake Wagman, Secretay of Stare Blasts County on IDs, ST. LOUIS POST-DISPATCH, Nov. 9, 2006,
at DI.
5 See Richard L Hasen, The Fraudulent Fraud Squad, SLATE, May 18, 2007; Rep. John Conyers. Jr.,
The GOP; Attack on Vot<strong>in</strong>g Rights, TOMPA1NE.COM, May 13, 2005, http://www.tompa<strong>in</strong>e.com/artides/2005/05/13/the-gops..attack.onvot<strong>in</strong>g-rights.php.
See abo Jo Mannies, Vot<strong>in</strong>g Rights Group
Disappears From Web, ST. LouIs POsT-DIsPATcH, June 14, 2007.
6 AMERICAN CENTER FOR VOTING RIGHTS, OHIO ELECTION AcTIVITIES AND OBSERVATIONS, Mar. 21,
2005, htp://web.archive.org/web/20050425104337/www.ac4vrcom/news/OhioElectionReport.pdf,
AMERICAN CENTER FOR VOTINC RIGHTS, VOTE FRAUD, INTIMIDATION & SUPPRESSION IN THE 2004
PRESIDENTIAL ELECTION, Aug. 2, 2005, http:l/wwwfoxnews com/projects/pdfNote..Fraud-Intimida-
don-Suppression-2004-Pres-Election..v2.pdLf
7 See sources cited <strong>in</strong> Brennan Center for Justice, Litigation, http://www.rruthaboutfraud.orgllitigation/.
8 See, e.g., JOHN FUND, STEALING ELEcTIONs: How VOTER FRAUD THREATENS OUR DEMOCRACY (2004);
John Fund, Democracy Imperiledk Americas Election Probhms, NATL REv., Sept. 13, 2004.
9 TRACY CAMPBELL, DELIVER THE VOTE: A HISTORY OF ELECTION FRAUD, AN AMERICAN POUTICAL TRA-
DITION - 1742-2004 (2005); LARRY J. SABATO & GLENN R. SIMPSON, DIRTY LITTLE SECRETS: THE
PERSISTENCE OF CORRUPTION IN AMERICAN POLITICS (1996).
10 Hans A. von Spakovsky, The Effect of Identification Requirements on M<strong>in</strong>ority Voter Turnout, 8 ENGAGE:
THE JOURNAL OF THE FEDERAUST SOCIETY PRACTICE GROUPS 87 (2007), available at http://www.fedsoc.orgidoclib/20070322_Engage81
Feb2007.pdf; Publius, Secur<strong>in</strong>g the Integrity of American Elections:
7he Needfor Change, 9 TEX. REV. L. & POL. 2 (2005); see also Dan Eggen, Official siArtic4e on Vot<strong>in</strong>g Law
Spurs Outcry, WASH. Pos-r, Apr. 13, 2006, at A1 9.
11 J<strong>in</strong>gle Davis, Even Death Can't Stop Some Voters, ATLANTA J.-CONST., Nov. 6, 2000; Russ Buertner, Evposed
Sc<strong>and</strong>al of DouhL Voters, DAILY NEWS (N.Y.), Aug. 22,2004.
12 LORI MINNITE & DAVID CALLAHAN, SECURING THE VOT: AN ANALYSIS OF ELECTION FRAUD 39-43
(2003), at http://wwwdemos.org/pubs/EDR- Secur<strong>in</strong>g.thhe-Vote.pdf, MINNITE, supra note 1, AT 22-
35; see also Lorra<strong>in</strong>e C. M<strong>in</strong>nite, An Analysis of Voter Fraud <strong>in</strong>d the U.S. (2007) (adapted from SECUR-
ING THE VOTE, sUp1ra). Professor M<strong>in</strong>nite has exam<strong>in</strong>ed the <strong>in</strong>cidence of fraud specifically <strong>in</strong> states
that permit Election Day Registration; this analysis confirms the lack of widespread voter fraud, but
discusses few <strong>in</strong>dividual <strong>in</strong>flared allegations. Lorra<strong>in</strong>e M<strong>in</strong>nite, Election Day Registration: A Study of

126
Voter Fraud Allegations <strong>and</strong> F<strong>in</strong>d<strong>in</strong>gs on Voter Roll Security (2007), at http:lwww.demos.orglpubsl
edr_fraud_v2.pdf. Professor M<strong>in</strong>nite is also work<strong>in</strong>g on a forthom<strong>in</strong>g book on the politics of electoral
rules, tentatively tited The Myth of Voter Fraud See Current Feill. http://www.demos.org/page247.
cfn (lest visited Oct. 4. 2007).
13 SPrENcE OVERTON, STEALING DEMOCRACY- THE NEa PoLuxcs OF VOTB SuPPtESSION (2006); see also
Spencer Overton, Voter Idensstion, 105 MICH. L. REV. 631 (2007); BRENNAN CENTR FOR JUSTICE
AT NYU SCHOOL OF LAW & SPENCER OVERTON, RESPONSE TO THE RErOito OF THE 2005 COMMISSION
ON FEDERAL ELEcTON REFORM (2005), at httpd/www.brennanrenterorg/dynamictsubpages/down-
loacLfie_47903.pdf.
14 See sources cited at Brennan Center for Justice at NYU School of Law, Voter Fraud Resources, htrp-l/
wwwv.ruthaboutfraud org/analysis-reportst.
15 BRENNAN CENTER FOR JUSTICE AT NYU SC1OOL OF LAW, INvESTGATORas GUIDE TO 'VOTER FRAUD'
(2006), http://wwwrruthabourfraudcorglpdfflnvestigator%27s%20Guide%20to%20Voter%2OFraud.
pdf.
16 Most proposals to require photo identification of voters do not address the absentee vot<strong>in</strong>g process,
where fraud through forgery or undue <strong>in</strong>fluence, often directly implicat<strong>in</strong>g c<strong>and</strong>idates or their dose as-
sociates, is far more of a threat. See, eg., COMMISSION ON FEDERAL EECnON REFORM, BUILD1NG CON-
FIDENCE IN U.S. ELECTIONS 46 (2005), available at htrp:l-//wwmerican.edulia/cferlreporttfulf-report.
pdtF BeckyJohnson, Swa<strong>in</strong> VoterFraudInvestigation Sentto Feds, SMOKY MOUNWN Nws (N.C.), Sept.
19,2007; Stephanie Taylor, 2Acued of Voter Frasd<strong>in</strong> Hak County, TuscALOosA NEWs (Ala.), Aug. 18,
2007; Laura B. Mart<strong>in</strong>ez, Potenial ForFraud, BRowNsviLLE HERAL (Tex.), July 22, 2007; Gary McEl-
roy, Former Czndidate Facts Charges ofVorerFria4 PRESS-REGIsTER (Ala.), July 13, 2007; Rex Bowman,
Sentenc<strong>in</strong>g Postponed for Former Appalachia Mayor, RICHMOND TWuas-DisPA1cH, Jan. 19, 2007; Bill
Theobald, Faire Counts, INDIANAPOLIS STAR, Nov. 5, 2000, at IA; Marylynne Pitz, Murph Arra<strong>in</strong>ed on
Vote-Fraud Chares, PrITsBuRGH PosT-GAzETTE, May 25, 1999, at Bl. See also M<strong>in</strong>nite, An Analysis of
Voter Fraud <strong>in</strong> the U.S., tupra note 12.
17 Kristen Mack, In Try<strong>in</strong>g to W<strong>in</strong>, Has Dewhurst Lost a Friensd?. HOUSTON CHRoN., May 17, 2007.
18 42 U.S.C. S 1973i(c). (e); 42 U.S.C. § 1973gg-10.
19 Greg Palant, The Wrong Way o Fix the Vote, WASH. POST, June 10, 2001, at B1; see also Marcia Myers,
Election 7heft Raded Out, BALT. SUN, Aug. 24, 1995, at IA.
20 Greg J. Borowsli, Noth<strong>in</strong>g Po<strong>in</strong>ts to Fraud <strong>in</strong> 9 Double Vot<strong>in</strong>g GUs MILWAUKEE J. SENTINEL, Aug. 22,
2005; see also Roger Roy & Beth Kassab, Doubl Votes Ta<strong>in</strong>t Florida, Recoris Show, ORLANDO SENTNEL,
Oct. 22, 2004, at Al (f<strong>in</strong>d<strong>in</strong>g clerical error improperly show<strong>in</strong>g vote for alleged double-voter).
21 Lou Cannon, Editorial, Huff<strong>in</strong>gtoni Caims of a Stolen Election Prtposterous, SEATTIE POsTr-INu-
GENCER, Jan. 23, 1995, at A7.
22 Declaration of Mar<strong>in</strong>a S. Petrienko, Wash. Ass'n of Churches v. Reed, 492 ESupp.2d 1264, (WD.
Wash. 2006) (No. C06-0726RSM, Doc. 58), 2006 WL 4604854.
23 Burt Constable, Ist-time VotersJo<strong>in</strong> Immigrant Turnout, CHI. DAILY HERALD, Nov. 5, 2004, at 1.
24 See e.g., Greg. J. Borowski, GOP Fails to Get 5.619 Names Removed From Vot<strong>in</strong>g Lists, MILWAUKEE J.
SENTINEL, OC. 29, 2004, at Al.

127
25 Exhibits to Letter from Mark D. Sheridan to Peter C. Harvey, N.J. Att'y Gen. (Sept. 15, 2005), htrp:/l
brennancenter.org/dynamicdsubpages/downloacLfile_..48319.pdf (on file with author).
26 Brennan Center for Justice at NYU School of Law & Michael McDonald, Prelim<strong>in</strong>ary Analysis of the
September 15, 2005 Report Submitted to the New JerseyAttorney General by the New Jersey Republican
Party 6-7 (2005) [here<strong>in</strong>after NewJersey Fraud Analysis], hrtp:-/www.brennancenter.org/dynamic/
subpages/download_file_35010.pdf.
27 Id
28 Memor<strong>and</strong>um from Bud Fitch, Deputy Att'y.Gen., N.H. Dep't of justice, to Robert Boyce. Chairman,
N.H. Sen. Internal Affairs Comm., at al (Apr. 6, 2006), hep://wwwrnh.gov/nhdoj/publications/nreleases/pd0O40606wrongfulvot<strong>in</strong>g.pdf.
29 Greg Palmat, The Wrong Way to Fir the Vote, WASH. PosT, June. 10, 2001, at B 1.
30 Scot Hiaasen etaL,FelnPpurgSacficedlnnocentVoters, PAM BEALH PosT, May27,2001, atAl. See
generallyTed Selker & Alex<strong>and</strong>re Buer, Voter Removal from Registration List Based on Name March<strong>in</strong>g
is Unreliable (2006) (unpublished manuscript), available at http://www.vote.caltech.edu/reports/purg<strong>in</strong>g-vrdb-06.pdf
31 Michael P McDonald & Just<strong>in</strong> Levitt, See<strong>in</strong>g Double Vot<strong>in</strong>g 11 (2007) (unpublished manuscript, presented
at the 2007 Conference on Empirical Legal Studies), aailabkl at http://papers ssm.com/sol3/.
Delivery.cf<strong>in</strong>lSSRNID997888_code69832 l.pdPabstracdd=997888&rmirid= 1.
32 Id; see al Dobrovolny v. Nebraska, 1 00 F.Supp.2d 1012,.1021'n.9 (describ<strong>in</strong>g two registered <strong>in</strong>dividuals
with the same name <strong>and</strong> birth date); Brad Shannon, 704 Felon Vote;Skill In the Air, THE OLYMsiAN
(Wash.), Nov. 8,2005, at IA (describ<strong>in</strong>g separate <strong>in</strong>dividuals with the same name <strong>and</strong> birthdate accused
of double-vot<strong>in</strong>g); Roy & Kassab, supr.note 20Q(same).
33 Jason P Schachter, Current Population Reports, U.S. Census Bureau, Geographical Mobility:. 2002 to
2003 (2004), httrp://wwwcensus.gov/prod/2004pubs/p20-549.pdf.
34 Memor<strong>and</strong>um from Bud Fitch, rupra note 28.
35 Gregory Stanford, Op<strong>in</strong>ion, Eletion Fraud Witch Hun Disilluions Young Voter, MLWVAUxEE J. SENTI-
NEL, Jan. 8, 2006, at J4.
36 Marcia Myers, Election Thbft Ruled Out, BLT. SuN, Aug. 24, 1995, at IA.
37 Memor<strong>and</strong>um from Bud Fitch, supra note 28.
38 Greg Palast, Er-con Ganee: How Forida! 'Welon Voter-Purg rvst Iref fWlonio HARP&s MAG., MNA 1.
2002, at 48.
39 David Postman, GOPs Felon list May Be Way 0C, SEAmE TIMES, Mar. 17, 2005.
40 Palast, supra note 38.
41 Just<strong>in</strong> Levitt & Andrew Allison, A Guide to Voter Cag<strong>in</strong>g, June 2007, at http:lr/wwbrennancenter.
org/srac-detail-asp.key,348csubkey.496058ititkey-9803.
42 Jon Margolis, GOPSued OverVoern Tactic, CHm. TRBUNE, Ocm 8,1986, at C9.
43 Robert Vitale, GOP Mifiled Some Voter Chalmenges, Bard Ssy,.CoLuMus DtsPrAXc, Oct. 24, 2004,

128
at IA; see alse S<strong>and</strong>y Theis, Frad-hustrn Busted, CLEVELAND PLAIN DEALa. Oct. 31, 2004, at H I .
44 Steve Suo, Some lInacive Voters Aren't, THE ORauONILN, Aug. 27, 2000, at CI.
45 Theis, supra note 43.
46 Felicity Barr<strong>in</strong>ger, Cities Seek Bushs Back<strong>in</strong>g to Avert Census 'Crisis, N.Y. TIMES, Apr. 18,1990, at A17;
see Dayne L Cunn<strong>in</strong>gham, Who Are To Be the EkctorsA election on the History of Voter Registrntion <strong>in</strong>
the United States, 9 YALE L. & PoL'Y REV. 370, 393-94 & nn. 134-35 (1991); see also Mark J. Konkol,
Local Mail Delivery 'Worst Its Ever Been', CHI. SuN-TuMEs. Mar. 11, 2007 (review<strong>in</strong>g problems with
Chicago mail delivery).
47 Alexa Aguilar, Postal Problens Stanr With Records, CHI. TaSEUNE, June 1, 2007.
48 Steve Suo, supra note 44.
49 42 U.S.C. § 1973gg- 6 (e)(1).
50 2 U.S.C. § 1973gg-6(e)(2)(A)(i).
51 Gregory Roberts, GOP Challnges Rights of Hundreds of Voters, SEAtILE Posr-INTELutGENcmt, Nov. 5,
2005, at Al.
52 Theis, supra note 43; Miller v. Blackwell, Case No. 1:04CV735 (S.D. Ohio, Oct. 27,2004) (declaration
of Rick Taylor).
53 Secretary of State Matt Blunt, M<strong>and</strong>ate for Reform: Election Turmoil <strong>in</strong> St. Louis 9, 27, July 24, 2001,
at http:l/bond senate.gov/m<strong>and</strong>ate.pdf.
54 MINNITE & CALLAHAN, SECuruNG THE VoTE, supra note 12, at 49 & n.88.
55 Brennan Center fiorJusrice at NYU School of Law, Crim<strong>in</strong>al Disenfranchisement Laws Across the United
States, May 3, 2007, hntp://www.brennancenrer.org/dynamicdsubpages/download-file_48642.pdf;
see also Sentenc<strong>in</strong>g Project, Felony Disenfranchisement Laws <strong>in</strong> the United States, April 2007, hntp://
www.sentenc<strong>in</strong>gproject.org/pdfs/1046.pdf. Project Vote, Restor<strong>in</strong>g Vot<strong>in</strong>g Rights to Former Felons,
Jan. 5,2007,http:11projectvote orglfilesdm<strong>in</strong>/ProjectVore/PolicyBriefs/ProjectVotePolicyBrief 12_
Restor<strong>in</strong>gVot<strong>in</strong>gRights.pdf.
56 ILLu CONST. art. 1II, § 2; 10 Iu.. CoMP. STAT. 5/3-5; 730 IuLL COMP. STAT. 5/5-5-5; IND. CoNST. art.
II, § 8; IND. CODE § 3-7-13-4; MICH. CONST. art. lI, § 2; MICH. COMR. LAWs § 168.758b; OHIO REV.
CODE ANN. § 2961.01; 25 PA. CONS. STAT. §§ 2602(w), 3146.1; United States v. Essig, 10 F.3d 968 (3d
Cir. 1993); Ray v. Pennsylvania, 263 F. Supp. 630 (W.D. Pa. 1967).
57 Ky. CONST. § 145(1); Ky. REV. STAT. § 116.025; Margaret Colgate Love, Re.nsutky, <strong>in</strong> Relief from the
Collateral Consequences of a Crim<strong>in</strong>al Conviction: A State-By-State Resource Guide (2007), http:/l
www.sentenc<strong>in</strong>gproject.org/tmp/File/Collateral%20Consequences/Kentucy(l).pdf; f Ky. REV. STAT.
§ 196.045.
58 ACLU of New Jersy. ACLU-NJ Announces Results of County Elections Survey, May 9, 2005, at
hrtp://www.adu-nj.org/pressroom/aclunjannouncesresultsofco.htm.
59 Brennan Center firJustice at NYU School of Law <strong>and</strong> Demos, Boards of Elections Cont<strong>in</strong>ue lflegally to
Disfranchise Voters with Felony Convictions, March 2006, at http://www.brennancenter.org/dynamicd
* subpages/downloadfile_34665.pdf.

129
60 G<strong>in</strong>a Barton, A Felon But Not a Ftaud No Chargesfor Voter with Pison LD., MILwAUKEE J. SENTrNEL,
Mar. 16,2006.
61 More Double Vot<strong>in</strong>g ed to '04 Election, Wis. STATE J., Aug. 10, 2005, at C3.
62 David Decamp, Double Vot<strong>in</strong>gBe<strong>in</strong>gInvestigated FLA. TMES-UNION, Jan. 25, 2005, at B1.
63 Arthur Kane & Jeffrey A. Roberts, Double Vot<strong>in</strong>g Fear Rises, DENVER POST, Oct. 27,2004, at Al.
64 Roger Roy & Beth Kassab, Hudres Might Have Doubl-Voted FT. IAUDERDALE SUN-SENTINEL, Oct.
22, 2004; se also Roy & Kassab, supra note 20 (with alternate title).
65 Buetrtr, supra note I1.
66 Bruce Cadwallader, Immigrant Plad Guilty to VoterFraud COLUMBUS DISPATCH, Oct. 5,2007; Derrick
Nunnally, Man Convicted of Double Vot<strong>in</strong>g, MILWAUKEE J. SENTINEL, Aug. 22, 2007; Greg Reeves, One
Person. One Vote?, KANSAS CITY STAR. Sept. 5, 2004, at Al; Greg Reeves, Votes Raise Qustion of Fraud,
KANSAS CITY STAI. Oct. 17, 2004, at BI; Exhibits to Letter from Mark D. Sheridan to Peter C. Harvey,
supta note 25; Buettner, supra note 11.
67 New Jersey Fraud Analysis, supta note 26; see also Shannon, supra note 32. tegenerally McDonald &
Levitt, supra note 31.
68 Jim Dr<strong>in</strong>kard, Dems Bhst GOP Eflrts on Voter FrauA USA TODAY, Oct. 24, 2002, at 8A
69 Reeves, One Person, One Vote?, supra note 66; see alo Roy & Kassab, supra note 20 (Georgia 2002).
70 Stanford, supra note 35.
71 Reeves, One Person, One Vote?, p<strong>in</strong>a note 66.
72 Id
73 Id; Raeves, Votes Raise Question of Fraud supra note 66; United States v. Scherzer, No. 04-401 (W.D.
Mo. Mar. 28, 2005); United States v. Goodrich, No. 04-402 (W.D. Mo. Jan. 7, 2005); Office of Secretary
of State, Election Night Reporn<strong>in</strong>g7 November 7, 2000 General Election, at http:l/wwwvsos.
mo.gov/enrweb/lectionseect.aspeid= 189; Office of Secretary of State, Election Night Report<strong>in</strong>g: November
5, 2002 General Election, http://www.sos.mo.gov/enrweb/dectionselect asp?eid=189.
74 Memor<strong>and</strong>um from Bud Fitch, supra note 28.
75 Letter from Sheridan, supra note 25.
76 New Jersey Fraud Analysis, srpna note 26.
77 Exhibits to Letter from Sheridan, supmn note 25.
78 New Jersey Office of the Attorney General, Division of Elections, 2004 General Election Results, hnp://
www.state.nj.usflpsldeectionsl2004resultsl2004-gencralelectionresults.htnl.
79 Buettner, supia note 11.
80 Fla. Dep't of State, Division of Elections, Election Results, at httpJdection.dos.statefl.us/leectionsl
resultsarcive/; N.Y. State, Board of Elections, Election Results, http//wwew.dections srate.ny.uslportal/
pagepageid=35,1.35_8301 :35_8306&..dad=portal.

130
81 Greg Borowski & Tom Kertscher, Double Trouble <strong>in</strong> Voter Inquiry, MILWAUKEE J. SENTINEL. Feb. 9.
2005; Letter from U.S. Attorney Steven M. Biskupic to Rick Wiley, Executive Director of the Republican
Party of Wiscons<strong>in</strong>, Aug. 22, 2005, http:/lwwwiwispolitics.com/10061050822dbIvot<strong>in</strong>g.pdf;
Borowski, supra note 20; G<strong>in</strong>a Barton, Mistrial Declred <strong>in</strong> Voter Case, MILWAUKEE J. SENTINEL, Sept.
22, 2005; Steve Schultze, No Vote Fraud Plot Founs MILwAUKEE J. SENTINEL, Dec. 5, 2005; STATE OF
WISCONSIN, LE IsIATrvE AUmrr BUREAu, VOTER REGISTRATION: AN EvALuAION, Report No. 05-12. at
6, 50 (Sept. 2005), available at http://www.legis.wiscons<strong>in</strong>.gov/Iab/reports/05-12Full.pdf.
82 David W. Chen, Among Voters <strong>in</strong> New Jerse), G.O.P Sees Dead People, N.Y. TIMES, Sept. 16, 2005, at
B5.
83 Bruce Rushron, Dead Man Vot<strong>in</strong>g, RIVERFRONT TIMES, Apr. 24, 2002.
84 Borders v. K<strong>in</strong>g County, No. 05-2-00027-3 (Wash Super. Ct. Chelan County June 24, 2005), at 19,
hrtp:l/www.secstare wa.gov/documenmvault/694.pdf; Gregory Roberts, Six More Charged Wsih Omese
<strong>in</strong> 2004 Election. SFrnLE POST-INTELUGENCER, June 22, 2005, at Bl .
85 See Francis X Cl<strong>in</strong>es, The Election, N.Y. TIMES, Nov. 12, 2000, § 4, at 1; Francis X Cl<strong>in</strong>es, Th5e Democrsts,
N.Y. TIMES, Aug. 27, 1996, at All; see also Hear<strong>in</strong>g on 'You Don't Need Papers to Vote?" Non-
Citizen Vot<strong>in</strong>g <strong>and</strong> ID Requirements <strong>in</strong> U.S. Elections: Hear<strong>in</strong>g Before the Comm. on H. Adm<strong>in</strong>.,
109th Cong. 11 (2006) (statement of Sen. Hyde).
86 Waite David, Review Turns Up No Signs OffFraid HONOULU Arivnrmsans Mar. 16.1999. at Al.
87 John Ferro, Deceased Residents on Statewide Voter L44 PouGHKEEPsiE J., Oct. 29, 2006; see a'so Joel
Burgess & Michael McGlone, Dead Voters <strong>in</strong> Cisy Were Still Reistere ASHEVILLE CrnzEN-TImEs
(N.C.), Aug. 26,2007; Van Smith, Election Nights of the Liv<strong>in</strong>g Dead BALT. CTY PAst. June 22,2005;
David, supra note 86.
88 J<strong>in</strong>gle Davis, State Plans to Update Voter Listr, ATANrA J.-CONSr., Feb. 10, 2001, at 4H; Secretary of
State Cathy Cox, The 2000 Election: A Wake-Up Call For Reform <strong>and</strong> Change 11 n.3 (Jan. 2001),
available at htp:l/www.sos.smte gaus/acrobaldections/2000election-repom pdf.
89 Steve Chamraz, "Ihe Dead List" Backstory . . ., News 4 Daily Brief<strong>in</strong>g, May 7, 2007, at http:l/www.
beloblog.comnlKMOV Blogs/n4idailybrief<strong>in</strong>gl2007l05/theickadjistbacstory.html.
90 Marcia Myers, Election Theft Ruled Out, BALT. SUN, Aug. 24, 1995. at IA.
91 Davis, supra note 11.
92 1d; Cox, supra note 88.
93 Lisa M. Coll<strong>in</strong>s, In Mich., Even Dead Vote, DETRWrT NEws, Feb. 26, 2006.
94 Kelly Chesney, Op<strong>in</strong>ion, Clims That the Dead` Vote! Were Wrong, DErRorr NEXs. Mar. 5,2006.
95 See Election Results: Detroit, Detroit News, Nov. 22, 2005, hItp:llwww.demews.co/nl2005/politics/
generallderroit.htm; Univ. of Mich. Gov't Docs. Ctt., Selected Michigan Mayors: 2005 Elections, Dec.
12, 2005, http://www.lib.umich.edu/govdocs/dec2005/elec2005<strong>in</strong>dex5.html.
96 Cynthia Burton, No Beyond-the-Grave Ballot<strong>in</strong>g Cited, PHILA. I NQUrER Nov. 9. 2005.
97 Ferro, supma note 87.
98 Memor<strong>and</strong>um from Bud Firch, supra note 28.

99 Borowski supm note 24.
100 Vitale, sup note 43; Theis, supm note 43.
131
101 Greg J. Borowski, Over 1,200 Voters Addres Found <strong>in</strong>valiA MILWAUKEE ). SErrNtL., Jan. 25. 2005;
Greg Borowski, GOPDem<strong>and</strong>s
Is of37,000 <strong>in</strong> City, MILWAUCEE J. SENINEL, Oct. 30,2004.
102 BLUNT, supra note 53, at 27; Jo Mannies & Jennifer LaFleur, City Mifdabeled Doaes as Vot<strong>in</strong>gfrit
Vacant Lots, ST. Louis PosT-DisPATc; Nov. 5, 2001, at Al.
103 Roberts, supra note 51.
104 Memor<strong>and</strong>um from Bud Fitch, supra note 28; see also Rushton, suprm note 83 (visit<strong>in</strong>g residences with
multiple voters <strong>and</strong> hnd<strong>in</strong>g multiple voters resid<strong>in</strong>g there).
105 BLUNT, spo note 53, at 27; Mannies & LaFleur, smpra note 102.
106 Memor<strong>and</strong>um from Bud Fitch, sipra note 28; State of New Hampshire, Elections Division, State General
Election -November 2, 2004, at http:llvwww.sosnh.gov/general%202004/sumpresO4.htm.
107 Borowski, supra note 101; Borowski & Kertscher, npra note 81; Jim St<strong>in</strong>gl, Column, Mysterious Phantom
Voters Turn Out to Be Se<strong>in</strong> R eA=y
NiJ'eopl, MILWAUKEE J. SernmNEL, Jan. 30,2005.
108 Greg Borowski & Stacy Forster, SskAditDifgs Up Wider Vote Prbklems, MILWAuKnEJ. SErnNEL, Sept.
16, 2005; Hear<strong>in</strong>g on the Conduct of Elections <strong>and</strong> Proposals for Reform: Hear<strong>in</strong>g Before the Comm.
on H. Adm<strong>in</strong>., 109th Cong. 101 (2006) [here<strong>in</strong>afer Wiscons<strong>in</strong> House Hear<strong>in</strong>g]; Tom Kertscher, 296
ofRat<strong>in</strong>te Voteregtrtion Cok RenueA MILWAUXEE J. SENTINEL, Feb. 18,2005; LEGIsLATIvE AUDrr
BUREAU, Jupra note 81, at 34-35.
109 See, e.g., Felon Says He Votedlleally, MiLWAUKEE J. SENTIEL, Sept. 16,2005.
110 See aso Barton, npa note 60.
111 WAsH. REV. CODE § 9.94A.637 (2004).
112 Jeffrey Mize, GOP: 33 Felons Voted <strong>in</strong> Clark County, THE COLUMBIAN (Vancouver, Wash.), Mar. 10,
2005, at Al.
113 Toss Out Felon Vots, Gegoire Still Wns, SEarrs. TImis, May 22, 2005, at Al [here<strong>in</strong>after Toss Our Felon
Votr]; Jim Camden, Swme Voters Surprised to Be On List ofFelons, S aosrlMAN REvEW (Spokane, Wash.),
Mar. 5, 2005, at Al; Stores of Felons Voted Illegally, supra note 3.
114 Brad Shannon, Felon Voter Wonm Be Chaxged, THE OLYMPIAN (Wash.), Man 30,2006, at 1B, Shannon,
supra note 32.
115 ACLU of New Jersey, supra note 58; Brennan Center for Justice at NYU School of Law <strong>and</strong> Demos,
supra note 59.
116 Palast, supra note 19.
117 Hiaasen t aL, supra note 30.
118 Palast, supra note 38, ar 48; see alo Laurel Walker, Column, Bucher Strik<strong>in</strong>g Out So Far on Voter FPaud,
MILWAUXEE J. SENTINEL, Nov. 30, 2005; Toss Out Felon Vote, supra note 113; David Postman, GOP
Felon-Voter Liist Inspsres Range of Reactions Stateude SEATrLE TlMeS, Mar. 27, 2005, at Bl; Becky Sisco,
"Dear Convicted Flon, TvECRAPH HERALD (Dubuque, Iowa), Oct. 30, 2004.

132
119 David Postman, GOP Felon List May Be Way Off SEALE TiMES, Mar. 17, 2005, at Al.
120 Bomwski & Forster, supsa note 108; see also Jim Camden, One Felon May Have Voted lLegally, SPoKEs-
MAN REvtEw (Spokane. Wash.), Mar. 20, 2005, at B4.
121 Palast, supra note 38.
122 See, e.g., Tess Out rFlon Vote. supma note I 1 3 (not<strong>in</strong>g voters who 'had received a Certificate <strong>and</strong> Order of
Discharge signed by a judge, which restored their right to vote-); Camden, szsqra note 113.
123 Scott Hiaasen et aL, Thow<strong>and</strong>s of Felons Voted Despite Purge, PALM BEACH PoST, May 28, 2001, at 1A;
Hiaaaen et aL, supra note 30; Mary McLachl<strong>in</strong>, 191 Improper Votes <strong>in</strong> Councy Counted, PALM BEACH
Posr, Feb. 1, 2001, at 1A.
124 Borowski & Forster, supra note 108.
125 Walker, supra note 118.
126 Greg Borowski, 82 Felons Voted <strong>in</strong>Nov. 2Elserion, MiLWAuIEEJ. SEmnNEL, Mar. 18,2005.
127 Barton, supra note 60.
128 Wiscons<strong>in</strong> State Election Board, ResultsofFall General Election -- 11/02/2004, http://165.189.88.185/
docview.asp?docid=1429&locid=47.
129 Court's Oral Decision, Borders v. K<strong>in</strong>g County, Case No. 05-2-00027-3 (Chelan Sup. Ct. June 6,
2005), at 9; see also Amy Goldste<strong>in</strong>, Justice Dept. Recognized Prosecutor; Work on Ekction Fraud Befere
His Fir<strong>in</strong>g, WAsH. PosT, Mar. 19, 2007; David Bowermaster, McKay 'Sosuned' By Report On Bush,
SEArrLE TIMEs, Mar. 13, 2007; Neil Modie, Who Won Illegal Vores of Ffelons SEA4mLE PoST-INrrw-
GENCER, Feb. 23, 2005; Chris McGann, State GOP Gets Specific About Fleron Charges, SEATSLE Pos-r-
INTrELLIGENcES, Jan. 19, 2005.
130 8 U.S.C. § 1227 (a)(3)(D), (a)(6).
131 Michael G. Wagner & Nancy Cleel<strong>and</strong>, DA Drops Voter Probe After Indictments Reject, LA TIMES,
Dec. 20,1997, at Al; Peter M. Warren,Jones:. 5,087Registrants 'PoentnalNoncitizens, LA. TIMEs, Oct.
14,1997, at Bl; Nancy Cleel<strong>and</strong>, Hermntndad Blames INS For Confis<strong>in</strong>g legal Voters, LA. TIMEs, Jan.
3. 1997, at Bl.
132 Patrick J. McDonnell, INS Knew of Voter Sign-Ups, Workers Say, LA TIMES, Jan. 16, 1997, at Al.
133 Editorial, A Nasty Turn <strong>in</strong> Elecion Challenge, SEA.rLE Tniss. Apr. 5, 2005. at B6.
134 Kenneth P. Vogel, K<strong>in</strong>g to Challenge 110 More Votes, NEWS TRIBUNE (Tacoma, Wash.), April 29, 2005.
at B2; Brad Shannon, Rossis Case Enters Key Phase, OurMI'ImN (Wash.), May 1, 2005, at IC; Stefan
Sharhansky, The Non-Citizen Vote, Sound Politics, http://soundpoliticscofn/archives/003976.hrnl
(Mar. 15,2005); Stefan Sharkansky, Non-Citizens Voted <strong>in</strong> K<strong>in</strong>g County, Sound Politics, http://soundpolidcs.comlarchives/003930.htmnl
(Mar. 8, 2005); 2004 General Election Voter Turnout, Wash. Sec'y
of State, at htsp://ww.vote.vwa.gov/Elections/Results/Turnout.aspxe.-a3501711-c318-45f4-8a03ld926ac839b7
(last visited Oct. 7, 2007).
135 Jessica McBride & Dave Umhoefer, 12 VotesAttributed to Dead Peopk, MILWAUKEE J. SENTINEL, Jan. 22,
2001; Elections & Results Archives, Wiscons<strong>in</strong> State Elections Board, at hrtp://elections.state.wi.us/secrion-archive.aspl<strong>in</strong>kid=155&locid=47
(last visitedJune 12,2007).

133
136 Clerk! OfficeeALlous 153 NountlizsedCitizens to Vote <strong>in</strong> Primary, AP State & Local Wire; Honolulu, Sept
27, 2000; Lshikawa Scott, lIrgal Voters, HoNoLuW ADVERTLSSE. Sept. 9, 2000, at Al: Dayton Kev<strong>in</strong>,
City Steps Up Search for Itgal Voters, HONoLuLu ADvEnsERs, Sept. 8, 2000, atAl-; Ishikawa Scott, Isle
Officials Seek Way to Prewnt lgal Vot<strong>in</strong>g, HONoLuw ADVErrsE Sept. 7,2000; at Al.
137 Dayton Kev<strong>in</strong>,lftgaIVoters Uncvre, HoNoWLUADvEnrssm June29, 1999, atAI; David, sgpra note
86; General Election Results 1998, Office of Elections, Hawaii Votes, at httrl/wwwhawaii.govldectionslresulmsl
I 998lgenerall98swgen.pdf.
138 Wagner & Cleel<strong>and</strong>, supm note 131; Warren, supras note 131; Cleel<strong>and</strong>, supra note 131; Report of
the <strong>Committee</strong> on House Oversight on H.R. 355, Dismiss<strong>in</strong>g the ElectionmContest Aga<strong>in</strong>st Loretta
Sanchez, February 12, 1998, at 15, 35-39, 1032-38, aaiable at http:Ilfrwebgate access gpo.gov/cgib<strong>in</strong>/getdoc.cgi?dbname-105-eong.reports&docid=fhr4l6.105.pdf,
Los Angeles County's Past Election
Results Download, County of Los Angles, Registrar-Recorder/County Clerk, Presidential General
- November 5, 1996. at http://ffcc.co.laca.us/dlect-results/genov96.ets Presidential Election Results
Orange County 1952-2004, at http:/liwwwocalmnansc com/Elections/eIO5.hrm.
139 See, eg., Mark A. Uhlig, Reporter Risks Inquiry Wlth Vote-Fraud Story, N.Y. TIMEs, Apr. 21, 1988.
140 Keith Erv<strong>in</strong>, Woman Registers Her Dog to Vote Prosecutors Growl, SEATTL TIMES, June 22, 2007.
141 See, e.g., Greg Borowski, City OK'd 1,305 Flaed Voter Cards, MILVAUKEE J. SENTINEL, Jan. 28, 2005.
142 U.S. Election Assistance Comm'n, The Impact of the National Voter Registration Act of-I 993 on the
Adm<strong>in</strong>istration of Elections for Federal Office 2005-2006(2007) tbIs. Ia, lb, Ic, http://wwweac gov/
docslEACNVRAtpr2006.pdf.
143 Many states now prohibit compensat<strong>in</strong>g registration workers per registration form submitted. See, e.g.,
COLO. REV. STAT. 5 1-2-703; Fi.A. STAx. S 104.012(3); GA. CODE S 21-2-602; IOWA CODE S 48A.25;
Ky. REV. STAT. § 119.207; Mo. ANN. STAT. S 115.203; NEV. REV. STAT. 5 293.805; OHIO REV. CODE
5 3599.11 1; 25 PA. CONS. STAT. 5 1713; S.D. CODIFIED LAWS % t2-4-52, -53; WASH. REV. CODE S
29A.8 4 .13o;WIS STAT. § 12.13(ze).
144 Ian Urb<strong>in</strong>a. New Registration Res Stir Voter Debate <strong>in</strong> Ohio, N.Y. TIMS, Aug. 6, 2006, § 1, at 16.
145 See, e.g., Richard Burgess, St Mart<strong>in</strong>vilk Ekenons Troubed For Many Years, THE ADvocATE (La.), Feb.
28, 2006, at B7 (councilwoman registered friends at false address <strong>in</strong> district); Richard Burgess, Ex-Offiial
F<strong>in</strong>d Sentencedj<strong>in</strong> Vote FrasudTHEADvocATE (La.), Jan. 19,2006, atB7 (same); HollyJ. Wolcott,-
Grime Watch: Femal Deputies to be Honored, LA TIMES, Nov. 6, 2000, at Bl (woman registered her
daughters <strong>and</strong> fictitious others).
146 This is not to say that most of the cases of election irregularity that are prosecuted have anyth<strong>in</strong>g to
do with registration fraud. Of the 95 cases brought by the Department of Justice's Ballot Access <strong>and</strong>
Vot<strong>in</strong>g Integrity Initiative between October 2002 <strong>and</strong> September 2005, for example, 47 concerned alleged
vote buy<strong>in</strong>g schemes, 21 concerned alleged noncitizen registration <strong>and</strong>/or vot<strong>in</strong>g, I I concerned
vot<strong>in</strong>g by people allegedly rendered <strong>in</strong>eligible because of conviction, 8 concerned alleged double votes,
3 concerned an attempt to jam- phone l<strong>in</strong>es of.get-out-the-vote operations, 2 concerned allegedly
fraudulent registrations, <strong>and</strong> I concerned ballot-box stuff<strong>in</strong>g by an election judge. See-U.S. Dept.
of Justie, Crim<strong>in</strong>al Division, Public Integrity Section, Election Fraud Prosecutions & Convictions,
Ballot Access & Vot<strong>in</strong>g Integrity Initiative, October 2002- September 2005 [here<strong>in</strong>after DOJ Election
Fraud Prosecutions], at http://www.truthaboutfraud.orgtpdf/doj%20eectdon%20fraud%20prose
cutions.pdf. As of October 2007. the government had secured convictions <strong>in</strong> 66% of these cases.

134
We note that none of the crimes prosecuted <strong>in</strong> this period could possibly have been prevented by requir<strong>in</strong>g
photo identification at the polls.
147 David Mart<strong>in</strong>, With Friends Like 7hes..., PITCH Wsax v, Nov. 23, 2006; Greg Gordon, 2006Mfimossrii
Eleion Was Ground.Zerofer GOP, McCLrcAtY NEwSPAPERS, May 2,2007, at http://www.mcclatchydc.com/reports/usamtornegs/tory/16224.htmL
148 See. eg., Preserv<strong>in</strong>g Prosecutorial Independence: Is the Department of Justice Politiciz<strong>in</strong>g the Hir<strong>in</strong>g
<strong>and</strong> Fir<strong>in</strong>g of U.S. Attorneys? -- Part V: Hear<strong>in</strong>g Before the S. Comm. on the Judiciary. 110th Cong.
- (June 5, 2007) (statement of Bradley J. Schlozman, former Interim U.S. Attorney for the Western
District of Missouri) (TfIhey [(ACORN)] were actually the victims <strong>in</strong> this case.").
149 In California <strong>in</strong> 2005 <strong>and</strong> 2006, for example, one group registered voters <strong>in</strong>to a political party either
without the knowledge of, or aga<strong>in</strong>st the wishes of, the voters themselves. Ser Christ<strong>in</strong>e Hanle, Pair
Get Probation <strong>in</strong> O. C Voter Suwitc, LA TMums, Jan. 4, 2007, at B5; Christian Berthelsen & Christ<strong>in</strong>e
Hanley, 11 Voter Recruiters Face Chalpga, L.A. TIMEs, Oct. 27, 2006, at Bl; Larry Welborn & Tony
Saavedra. 12 Chaged <strong>in</strong> Voter Sc<strong>and</strong>4a ORANGE CouNTY REGIS rER Oct. 27, 2006; Secretary of State to
Probe Alleged Fraud by GOP Signature Gathere <strong>in</strong> Drive fer Voters, L.A. TIMEs, Sept. 2, 2006, at B6;
Tony Saavedra et aL, O. C Voters Were Duped Into GOP Registrtion, ORANGE CouNnw REGISTER, Apr.
1, 2006.
150 See. e.g., Ed Vogel, Democratic Couple From Sparks, Who Alleged Forns Datroye, Allowed to Vote, LAS
VEGAC REv.-J., Nov. 3, 2004, at 5A.
151 MINNIrTE, THE PoiLrscs OF VOTER FRAuD, supra note 12, at 24; Joni James, Voter Fraud Charges Collapse,
S-t. PETERsBuRG TImES, Dec. 15, 2005, at I B; Paige St. John, Rumors of Vote Fraud Rampant, FLA.
TODAY, Oct. 2, 2004, at 12.
152 Alan Judd, BogusAddreaer Cloud Voter Rol. ATANTrAJ.-CONsnr., Jan. 10, 2006, at Al; Carlos Campos,
Bogus VoterFornmsPop Up <strong>in</strong> Fultn,ATLANTAJ.-CoNST., Oct. 21, 2004. at IA.
153 CRAIG C. DoNsANTo & NANCY S. STEwART, FEDERAL PsossCrrToN OF ELECTION OFFENSES I, 60-61
(6th ed. 1995); Jo Mannies, ACORNSrs to 'Clean Up the Mes."<strong>in</strong> its Chapter Here, ST. Louis POST-
DISPATCH, Nov. 30, 2006, at C3; Jo Mannies, Second Letter Sent to Newly Regisered Voten, ST. Louis
POST-DIsPATCH, Nov. 1,2006, at B5; GroupAccused of VterFraud, COWM8IA DAtLYTRIBUNE, Oct. 12,
2006; Jo Mannies, Suspect Voter Cards Found, ST. Louis PosT-DisPATcH, Oct. 11, 2006, at Al; Mart<strong>in</strong>,
supra note 147.
154 See We<strong>in</strong>schenk v. Missouri, 203 S.W.3d 201,228 (Mo. 2006) (Limbaugh, Jr., J., dissent<strong>in</strong>g) (But why
else does voter registration fraud occur if not to vote persons fraudulendy registered?').
155 Raymond McCaffrey, Prank L<strong>and</strong>s Voter <strong>in</strong> the Dohouse, WASH. POST, June 17,2001, at Cl.
156 Keith Erv<strong>in</strong>, Woman Regitrs Her Dog to Vote; Prsecutoar Growl, SEATTLE TIMES, June 22, 2007.
157 Deirdre Shesgreen. Spaniel Makes <strong>Senate</strong> Appearance <strong>in</strong> Support of Bondi Rerm Efomrts, ST. Louis POST-
DISPATCH, Mar. 1, 2002, at Al.
158 See Marc Caputo, Cocoa Made News as Legal Voter Owner <strong>in</strong> Doghousefor Register<strong>in</strong>g Pet, PALu BEACH
POST, Dec. 13, 2001, arAl (Cocoa Fern<strong>and</strong>ez); Brooke Bryant, Man Who Registered His Dog to Vote
Dies, CONTRA COSTA TIMES, Jan. 5, 2007 (Barnabas Miller); Index, NC Facts, RAI1IGH METRO MAGAznNE,
Sept. 2000, at htrp://www.metronc comlarticelid=604 (Parker Carroll); McCaffrey, supra note

135
155 (Holly Briscoe); Erv<strong>in</strong>, supra note 156 (Duncan MacDonald); Martm Evry, Letter to Grass Roots
Venice Neighborhood Council Elections <strong>Committee</strong>, July25, 2003, at httpJ/www.missvenicebeach.
com/rakulmevrycompla<strong>in</strong>t.html (Raku Bowman).
159 Erv<strong>in</strong>, supra note 156.
160 Evry, supro note 158.
161 These payments are sometimes known as a'walk<strong>in</strong>g-around money.' See, e.g., Marc Caputo, What Did
Masilot/i ConGm ant Fees Bu.y, PAim BEACH PosT, Feb. 26, 2003, at IA. Others use "walk<strong>in</strong>g~around
moneyw to refer not to voter bribes, but to klgal payments to campaign workers <strong>and</strong> get-out-the-vote
volunteers to cover expenses on election day. See, eg., Ted Sherman <strong>and</strong> George E. Jordan, Newark Race
Hits the Striee; NEwsvuc STAR-LEDGER, May 13, 2002, at 1.
162 See, eg., Beth Musgrave, Tree Sentenced <strong>in</strong> Bath Vote Fraud, LExINGTON HERAI -LEADER, Sept. 25,
2007; Nicklaus Lovelady, nvesigation Into Vote Fraud <strong>in</strong> Benton County Nets 14th Aest, Miss. CLAR-
ION-LEnGER, Aug. 31, 2007; Tom Searls, Six To Learn Fate <strong>in</strong> L<strong>in</strong>coln Vote Buy<strong>in</strong>g Case, CHARLESToN
GAzETTE (W.Va.), May 3, 2006, at IC; Michael E. Ruane, FBs Sham C<strong>and</strong> Crawled Under W Vas
Poliffat Rock, WASH. PoSr, Dec. 2, 2005, at Al; Maimon Alan, KnotJtdgi-Execativ, Imprironed For
Vote Buy<strong>in</strong>g; Ga<strong>in</strong>sRelease, CouRiER-JouRNAL (Lex<strong>in</strong>gton, Ky.), Jan. 26,2005, at IB; Activist to Pay F<strong>in</strong>e
<strong>in</strong> Vote-For-Smokes Case, CAPrrAL TIMES (Madison, Wis.), May 5, 2001, at 3A; see alo DOJ Election
Fraud Prosecutions, supma note 146. .
163 Cf. U.S. Department of Justice, Fact Sheer. Department of Justice Ballot Access <strong>and</strong> Vot<strong>in</strong>g Integrity
Initiative, July 26, 2006, http:/lwww.usdoj.govlopalpr/20061Julyl06/..crn468.htrnl.
164 Michael Shaw, Ex-ElectionJudge Gets Prionjor Vote Faud, ST. Louts PosT-DisPATCH, Sept. 25,2004, at
14; Michael Shaw, Vot<strong>in</strong>g Fraud isAleged <strong>in</strong> EastS. Louss Elc on, ST. Louts PoSr-DSPXstCH, Oct. 25,
2003, at 12; Robert Goodrich, Ex-Councihnan <strong>in</strong> E Sr. Louis Ges Probats<strong>in</strong> fr Vote Fraud ST. Louws
PosT-DjssercH, Apr. 26,2001, at B I.
165 BwNT, saipra note 53, at 27;.Mannies & LaFleur, supra note 102.
166 BLUTr, stqpia note 53, at 9.
167 Id at 28-29; Rushton, sspma note 83.
168 BLuNT, supns note 53, at 8-9, 24-25.
169 BLUNT, supra note 53, at 25-26.
170 Reeves, One Person, One Vote?, tspra note: 66.
171 Id; Reeves, Votes Raise Question of Fraud, spra note 66; DOJ Election Fraud Prosecutions, supra note
146.
172 BLuNTr, nqpt note 53. at 9,26..
173 BWsNT, supra note 53, at 26.
174 Statement of Rep. 'William Lacy Clay, Hear<strong>in</strong>g on Federal Election Practices <strong>and</strong> Procedures: Hear<strong>in</strong>g.
Before the Sen. Comm. on Govt Affairs, 107th Cong. (May 3, 2001), at hrtp:1/wwwvwnate-gov/-govtaff7050301_clay.ht<strong>in</strong>;
ADVANCEMENT PROJECT. AmEs,4acs MODERN -PoLL TAx 16-18, Nov. 7, 2001,
http:/Iwww.advanoementproject.org/AMPT.pdfi, Editorial, How America Deant Vote, N.Y. TimS, Feb.

136
15. 2004; Editorial: Our Motto: 7himnk, ST. Louts PosT-DIsPATcH, Nov. 1 .2002; Karen Branch-Brioso
& Doug Moore, Boar dDeniedVoerfghs, US. Says, ST. Louis PoST-DIsPATcH May23,2002, ar CI;
Rushton, supra note 83.
175 Jo Mannies <strong>and</strong> Mark Schl<strong>in</strong>kmann, Democrats Attempted Vote Fraus Report Saps, ST. Louis PosT-Dis-
PATCH, Feb. 9, 2001; Stephanie Simon. In St. Louis. DXad Am Caus<strong>in</strong>g Lively Debate With 7heir Votes,
LA TIMES, Feb. 28, 2001, at Al; BLuNT, supra note 53, at 10, 29-35; Safir Ahmed, Slim<strong>in</strong>'the City,
RitVEosRNT TIMES, Nov. 15, 2000; Carolyn Tuft, GOf' Democrts May Seek Investigation Over City
Vot<strong>in</strong>g, ST. Lows PosT-DIsPATCH, Nov. 9, 2000; Missouri ex rel. Bush-Cheney 2000, Inc. v. Baker. 34
S.W.3d 410 (Mo. Cc. App. 2000).
176 BLrNT, supra note 53, at 8, 16-23.
177 Simon, supra note 175; Jo Mannies, FBI Subpoenas Records from Fkction Board, ST. Lows PosT-Dis-
PATCH, Apr. 17, 2001, at Al; Jo Mannies, Probekms <strong>in</strong> City Didn't Affecst Flerion, Report Says, ST. Louis
PosT-DispArcH, Dec. 29, 2000, at Cl.
178 BLuNT, supra note 53, at 9, 27-28; Rushton, supre note 83.
179 Statement of Sen. Christopher Bond, Hear<strong>in</strong>g on Federal Election Practices <strong>and</strong> Procedures Hear<strong>in</strong>g
Before the Sen. Comm. on Gov't Affairs, 107di Cong. (May 3, 2001), htcp://www.senate.gov/-govtaff/050301_Bond.htm;
Rushton, supra note 83.
180 Carolyn Tuft, Bond Wants Federal Investigation of Problemsat City PoLs, ST. Lows PosT-DIsPATCH, Nov.
10, 2000.
181 St. Louis County Board of Election Commissioners, St. Louis County Election Results, November
2000, http://wwwco.st-louis~mo.us/dlections/ERESULTS/elI 100/dlectionimhtm; Office of Secretary of
State, Election Night Report<strong>in</strong>g: November 7,2000 General Election, http://www.sos.mo.gov/enrweb/
electionselect.aspeid= 189.
182 Office of Secretary of State, Election Night Report<strong>in</strong>g: November 5, 2002 General Election, http://
www.sos.mo.gov/enrweb/elecrionselect.aspeid= 189.
183 Letter from Sheridan, supms note 25.
184 Burton, supra note 96.
185 Letter from Sheridan, supn note 25; Chen, spra note 82; Joe Donohue, GOP Clims Voter Fraud Wdespread,
NEWARXc, STAR-LaDGrE, SepL 16,2005; Bonnie Pfister, Review Elceion Rolls, GOP Urges, PHIuA.
INQUIRER, Sept. 16. 2005.
186 New Jersey Fraud Analysis, supra note 26; McDonald & Levitt, supra note 31.
187 New Jersey Fraud Analysis, supra note 26; McDonald & Levitt, supra note 3 1; James A. Quirk, Local
County Boards Question GOP Voter-Fraud Study, AsauRa PARK Pts, Sept. 17, 2005.
188 Exhibits to Letter from Sheridan, supra note 25.
189 Nevw~ersey Office of rheAttorney General, Division of Elections, 2004 General Election Results, hrrp:l/
www.srate.nj.usAps/elections/2004results/2004-genera~lcecdon-results.htmL
190 Borowski, supra note 24; Greg Borowski & Steven Walters, Vote Inquiry Sharpens F&cus, MILwAUKEE J.
SENatnEL, Oct. 29, 2004; Borowski, GOP Dem<strong>and</strong>s IDs of 37,000 <strong>in</strong> a, ispra note 101; Editorial,

137
Protect Voter Rkghb Today, MILWAUKEE J. SENrIn.L, Nov. 1, 2004.
191 Borowski, GOP Dem<strong>and</strong>; IDs of37,000 <strong>in</strong> City, supra note 101: Borowski, Over 1.200 VotersAddresses
FoundInvalid, supra note 101.
192 Borowski, Over 1,200 Vosrrs'Addrus Found lnvalJ, supra note 101; Borowski, supma note 141; St<strong>in</strong>gl,
suprn note 107; Borowlsi & Kertscher, supra note 81.
193 Borowski. supra note 141.
194 Greg Borowski, Unsent Voter Grss Don't Signal Fraud Officil Sis, MILWAUKEE J. SENTINEL, Jan. 19,
2005; Borowski, supma note 141; Greg Borowvski, Fraud or Bumbl<strong>in</strong>g. Voter Problems Stsil Unnervng to
PNbli, MlWAUKrEE J. SENTINEL, Jan. 30, 2005; Prelim<strong>in</strong>ary F<strong>in</strong>d<strong>in</strong>gs of Jo<strong>in</strong>t Task Force Investigat<strong>in</strong>g
Possible Election Fraud (2005) [here<strong>in</strong>after Prelim<strong>in</strong>ary F<strong>in</strong>d<strong>in</strong>gs], at http:/Iwww.wispoliticscorom/1006/
elecdonfraudpdif Borowski & Forster, ssnra note 108; Wiscons<strong>in</strong> House Hear<strong>in</strong>g, supra note 108.
195 Borowski & Forster, supra note 108; Wiscons<strong>in</strong> House Hear<strong>in</strong>g, supra note 108.
196 Kertscher, supma note 108; LEGIsLATIvE AUDrT BUREAU, suprm note 81, at 5.
197 Kertscher, supra note 108.
198 LEGIsLATivE AuDTrr BUREAU,. snm note 81, at 34-35.
199 Dave Umboefer, FBI Questions Offiial <strong>in</strong> Milwaukee CountyJailbouse Voter Drive, MILWAUKEE J. SEN-
TINEL, Ocr. 28, 2004.
200 Borowski, supra note 126; Greg Borowski & Mark Maley, Review Indicates 278 Felons Cast Baloss llleglly
<strong>in</strong> State, MILWAUKEE J. SENTINEL. Mar. 18,2005; Prelim<strong>in</strong>ary F<strong>in</strong>d<strong>in</strong>gs, sUpns note 194; LEGISLA-
TVE AUDIT BUREAU, supra note 81; Borowski & Forster, supra note 108.
201 Borowski, sutpm note 126; Borowski-& Maley, suprs note 200; LEGIsLATrVE AuDrT BUREAU, supqa note
81, at 50-51; Borowski & Forster, supra note 108. .
202 Derrick Nunnally, federal Charges Filed Aga<strong>in</strong>st Three Vters MILWAUKEE J. SENTrNEL, June 23, 2005;
Felon Says He Voted llegally. supra note 109; Reid J. Epste<strong>in</strong>, Woman Accused of Voter Fraud <strong>in</strong> Waukesha
Coenty, MILWAUKEE J. SENTINEL, Oct. 14, 2005; DOJ Election Fraud Prosecutions, supm note 146;
Walker, supra note 118; Schultre, supra note 81; Steve Schultze, Vote FraudCharge Dismissed, .MILWAU-
KEEJ. SENTINEL, Dec.8.2005; DerrickNunnally,2 Pklad Guilty to Ekction Crimes, MILWAUKEEJ. SEN-
TINEL, Feb. 13,2006; Barton, supra note 60; Eric Lipton & Ian Urb<strong>in</strong>a, In 5-Year Eff, Scant Evidence
of Voter Fm us N.Y. TIMES, Apr. 12, 2007.
203 Borowski, supra note 126; Borowski & Maley, supma note 200; Derrick Nunnally, Felon Charged <strong>in</strong> Vot<strong>in</strong>g
Case, MILWAUKEE J. SENTINEL, NOv. 1, 2006.
204 Greg Borowski, Police, FBI Jo<strong>in</strong> Investigation <strong>in</strong>to Possibk Election Fraud, MILWAUKEE J. SENTINEL, Jan.
27,2005.
205 1i; Borowki & Kcrtscher, supra note 81; Prelim<strong>in</strong>ary Fmd<strong>in</strong>gs, s pra note 194; Greg Borowski, 9May
Hav Voted <strong>in</strong>2Citia, MILWAUKEEJ. SE-MNEI.Aug. 10,2005; LEGISLATnVE AUDrr BUREAU, sipm note
81, at 6, 50; Borowski & Forster, svpm note 108.
206 Borowski & Kertscher, suprs note 8 1; Nunnally, Federal Charges Filed Aga<strong>in</strong>st 7hire Vetm, supns note
202; Borowski. s51pm note 20; Barton, suprm note 81; Schultze, supra note 81; Sranfird, supma note 81.

138
207 Greg Borowski, Loophoks <strong>in</strong> Vot<strong>in</strong>gSystem a Symptom ofirs Openness, MILWAUKEE J. SENTINEL, Jan. 26,
2005; Borowski, supra note 205; Letter from Biskupic, supra note 81; Borowski, supra note 20; LEGISLA-
TrvE AUDIT BUREAU, supra note 8 1, at 50.
208 Prelm<strong>in</strong>ary F<strong>in</strong>d<strong>in</strong>gs, supra note 194; LEGISLATIVE AuDrr BUREAU, supranote 81, at 6; Borowski &
Forster, supra note 108.
209 Borowski & Forster, supm note 108; LEGISLATIVE AUDtT BUREAU, supra note 81, at 50.
.210 Borowski, supra note 207; Prelim<strong>in</strong>ary F<strong>in</strong>d<strong>in</strong>gs, supra note 194.
211 Borowski, supra note 207.
212 Borowski & Kertscher, supra note 81.
213 Borowski & Kertscher, supra note 81.
214 LEutsLATvE AUDIT BUREAU, supra note 81, at 6; Borowski & Forster, supra note 108.
215 Walker, supra note 118.
216 Tom Kertscher, Deputy Registrar May Hatse Vtoazzed Stae Election Law, MILWAUKEE J. SENTINEL, Sept.
30. 2004; Tom Kertscher, Ra<strong>in</strong>e, Kenosha Voter Appfication Fraud AfUged. MILWAUKEE J. SENTNEL,
Oct. 28, 2004; Prelim<strong>in</strong>ary F<strong>in</strong>d<strong>in</strong>gs, supra note 194; Borowski, supra note 2.
217 Rachel McCormick. judge 7brows Out Pea Agreemne <strong>in</strong> Voter Aegistration Fraud Case, RACINE JOURNAL
TIMES, June 22, 2005; Nunnally, 2 Plead Guily to Elecion Crime, supra note 202; Derrick Nunnally,
Woman Gens Probation <strong>in</strong> Fraud Case, MILWAUKEE J. SENTINEL, Oct. 23, 2006; Kev<strong>in</strong> Murphy, ELecrion
Fraud Conviction Oveturned. RACINE JOURNAL TIMES, Apr 25, 2007.
218 Borowski, supra note 204; Borowski, supra note 141; GregBorowski. Some Sites Sbow Huge Vote Gaps,
MILWAUKEE J. SENTINEL, Feb. 2,2005; Prelim<strong>in</strong>ary F<strong>in</strong>d<strong>in</strong>gs. supra note 194; Greg Borowski, Error Nets
Bush 100 Extra Votes, MILWAUKEE J. SENTINEL. June 8, 2005; WIscons<strong>in</strong> House Hear<strong>in</strong>g, supra note
108, at 59, 76-79, 92-95, 217-18.
219 David Doege, Two Morr Arreted <strong>in</strong> Tire Slsh<strong>in</strong>g Case, MtLwAuKEE J. SEN1TNEL, Nov. 7, 2004.
220 Greg Borowski, Ardson Resigns as Elecdon Director, MILWAUKEE J. SENTINEL, Mar. 2, 2005.
221 Borowski, supra note 2.
222 Wiscons<strong>in</strong> House Hear<strong>in</strong>g, supra note 108, at 174.
223 Prelim<strong>in</strong>ary F<strong>in</strong>d<strong>in</strong>gs, supra note 194; Wiscons<strong>in</strong> State Election Board, Results of Fall General Election
- 11/02/2004, at hrtp://165.189.88.185/docview.aspdocid=1429&locid=47.

139
SELECTED BRENNAN CENTER PUBLICATIONS
The Genius ofAmerica: How the Constitution
Saved Our Country <strong>and</strong> Why It Can Aga<strong>in</strong>
ERIC LANE AND MICHAEL ORESKES
(Bloornbuiy USA. 2007)
Ten Th<strong>in</strong>gs You Should Know About Habeas Corpus
JONATHAN HAFETZ
(2007)
The Mach<strong>in</strong>ery of Democracy: Protect<strong>in</strong>g Elections <strong>in</strong> an Electronic World
LAWRENCE NORDEN AND ERIC LAZARUS
(Academy Chicago Publishes, 2007)
Unregulated Work <strong>in</strong> the Global City
ANNETrE BERNHARDT, SIOBHAN MCGRATH AND JAMES DEFIUPPIS
(2007)
Unchecked <strong>and</strong> Unbalanced Presidential Power <strong>in</strong> a Time of Terror
FREDERICK A.O. SCHWARZ, JR. AND AZIZ Z HUQ
(New Press, 2007)
Midwest Campaign F<strong>in</strong>ance Serus: Ilitnois, Wiscons<strong>in</strong>,
Michigan, M<strong>in</strong>nesota <strong>and</strong> Ohio
SUZANNE NOVAK ETAL
(2007)
Access to Justice. Open<strong>in</strong>g the Courthouse Door
DAVID UDELL AND REBEKAH DILLER
(2007)
An Agendafor Election Reform
WENDY WEISER AND JONAH GOLDMAN
(2007)
Mak<strong>in</strong>g the List: Database Match<strong>in</strong>g <strong>and</strong> Verification
Processes for Voter Registration
JUSTIN LEVITT, WENDY WEISER AND ANA MUNOZ
(2007)
For more <strong>in</strong>formation, please visit
www.brennancenter.org or call 212-998-6730

ACCESSIBILITY
140
ABOUT THE AUTHORS
Lawrence Nnrden is an Associate Counsel with the Brennan Center, work<strong>in</strong>g <strong>in</strong>
the areas of vot<strong>in</strong>g technology, vot<strong>in</strong>g rights, <strong>and</strong> government accountability For
the past year, Mr Norden has led the Brennan Center's vot<strong>in</strong>g technology assessment
project, <strong>in</strong>clud<strong>in</strong>g the production <strong>and</strong> creation of this report. He is a contributor
to Routledge's forthcom<strong>in</strong>g Ivypedia of Ameicaz Civil Libertis. MIe.
Norden edits <strong>and</strong> writes for the Brennan Center's blog on New York State,
www.RcformNY.blogspot.com. He is a graduate of the University of Chicago
<strong>and</strong> the NYU School of Law. Mr. Norden serves as an adjunct faculty member
<strong>in</strong> the Lawyer<strong>in</strong>g Program at the Benjam<strong>in</strong> N. Cardozo School of Law. He may
be reached at lawrence-nordenlnyutedu.
Jeremy M. Credlan is an associate <strong>in</strong> the law firm Jerner & Block's New York
office. Mr. Creclan jo<strong>in</strong>cdJenner & Block aftcr serv<strong>in</strong>g as Deputy Director of the
Democracy Program at the Brennan Center forJustice at NYU School or Law.
At the Brennan Ccnter, he developed <strong>and</strong> prosecuted numerous high-profile electon
law cases to protect voters' rights, <strong>in</strong>dud<strong>in</strong>g Iapez Trrs v Ne rok Stae Board
of Elcions, a constitutional challenge to New York State's judicial convention system
of select<strong>in</strong>g Supreme Court justices. Mr. Creelan is also the lead author of a
comprehensive analysis of sis legislative process that formed the basis for reforms
to the roles of the New York State Assembly <strong>and</strong> <strong>Senate</strong>. Mr. Creelan graduated
from Yale Law School <strong>in</strong> 1996, <strong>and</strong> from Yale College <strong>in</strong> 1991, where he received
a B.A s.umna awn mode aid Phi Beta Kappa He was the Editor-<strong>in</strong>-Chief of the
Sha Law & Pebiy Revirm He may be reached at jcreelan jennercom.
Ana Muflorz is Field Coord<strong>in</strong>ator for the Brennan Center's efforts to restore the
franchise to people with crim<strong>in</strong>al convictions. Previousl1 she conducted research
on vot<strong>in</strong>g rights <strong>and</strong> election adm<strong>in</strong>istration with the Center's Vot<strong>in</strong>g Rights <strong>and</strong>
Elections project Before com<strong>in</strong>g to the Brennan Center, she worked on voter registration
<strong>and</strong> mobilization efforts <strong>in</strong> suburban communities <strong>in</strong> Oregon <strong>and</strong> low<strong>in</strong>come
Lat<strong>in</strong>o communities <strong>in</strong> Arizona. She served as a coord<strong>in</strong>ator of
2004ward, a national program to recruit <strong>and</strong> tra<strong>in</strong> college students to work as
community <strong>and</strong> political organizers, <strong>and</strong> has also worked on state <strong>and</strong> municipal
campaigns support<strong>in</strong>g campaign f<strong>in</strong>ance reform <strong>and</strong> labor rights. She received a
B.A. <strong>in</strong> History from Yale College <strong>in</strong> 2004. She may be reached at
ana.munozenyu.cdu.
Whitney Quesenbcry is a user researcher, user experience practitioner, <strong>and</strong>
usability <strong>and</strong> accessibility expert <strong>and</strong> pr<strong>in</strong>cipal consultant for Whitney Interactive
Design (wwwwwqusability.com) where she works with companies around the world
to develop usable web sites <strong>and</strong> applications. As a pr<strong>in</strong>cipal at Cognctics
Corporation for 12 years, she was the design leader for many design <strong>and</strong> usability
projects. She has worked with companies such as Novacts, Deloitte Consult<strong>in</strong>g.
Lucent, McGraw-Hill, Siemens, Hewlett-Packard, <strong>and</strong> Dow Jones. Ms.
Quesenbcry is chair for Human Factors <strong>and</strong> Privacy on the Technical Guidel<strong>in</strong>es

141
Developmcnt <strong>Committee</strong>, an advisory committec to the Elections Assistance
Commission. She has scrved as president of the Usability Professionals'
Association <strong>and</strong> manager of the STC Usability SIG. She may be reached at whitncyq(,wqusability.com
CONSULTING EXPERTS
The Brennan Ccnter assembled a Task Force of consult<strong>in</strong>g experts on vot<strong>in</strong>g system
accessibility to assist <strong>in</strong> develop<strong>in</strong>g, writ<strong>in</strong>g <strong>and</strong> edit<strong>in</strong>g this reportI. We are
grateful to them for their <strong>in</strong>sight <strong>and</strong> many hours of work. They are:
Georgette Asherman, <strong>in</strong>dependent statistical consultant <strong>and</strong> founder of Direct
Effects.
Lillie Coney, Associate Director, Electronic Privacy Information Center (EPIC).
Diane Golden, PhD, Director of Missouri Assistive Technology <strong>and</strong> former
chairperson of the Association of Tech Act Projects (ATAP).
Richard Douglas, Usability Experience Group, IBM Software Group/Lotus
Software
Jim Dickson. Vice President for Governmental Affairs of the American
Association of People with Disabilities (.AAPD).

CONTENTS
142
Introduction ... ................ . ................. I
The Nced for Al cc-stiblc Xlotiztg S\tem'
Legal Accessibility Requirements for Vot<strong>in</strong>g Systems. 2
The Help America Vote Act. 2
The Americans wvith Disabilities Act <strong>and</strong> the Rehabilitation Act. 3
The "Voluntary Guidel<strong>in</strong>es.. ................................. 4
Disability Demographics 5
M clthcxtlolan, .... y. . .. . . . . . . ... . . . . . . 7
Vot<strong>in</strong>g Archit"cture Analcd .9
Analvsis . .......................... 0
Computer-Based Systems .10
Paper-Based Systes. .15
Hybrid Systems .20
Overview of BMD .20
Analysis of BNID .21
Overview of DRE w/ VVPT .22
Analysis of DRE w/ VVPT................................ 24
Overview of Telephone-Based Systems .27
Analysis of Telephone-Based Systems .28
Kev~ F<strong>in</strong>d<strong>in</strong>g.........3
Fy;9lndngs .. . ..................... .. . .... ... ... ...... 3
Computer-Based Systems: DREs <strong>and</strong> BMDs .31
Accessibility of Computer-Based Systems .31
Audio <strong>and</strong> Enhanced Visual Display Capabilities for Voters
with Visual Impairments .31
Alternative Input Devices for Voters
with Motor/Coord<strong>in</strong>ation Impairments .31
Paper-Based Systems .32
PCOS ............................................ 3 2
Limited Flexibility to Meet <strong>Special</strong> Needs .32
Tactile Ballots for Voters with Visual Impairments .32
Inaccessible Auditory Instructions .32
Paper Ballots Inaccessible to Voters
with Motor/Coord<strong>in</strong>ation Impairments .32
Scanners Inaccessible to Manv Voters
with Visual, Mobility, or Motor/Coord<strong>in</strong>ation Impairments
Vote-by-Mlail Systems .32
32
Hybrid Systems. 33
DREs w/ VVPT.......................................... 33
BMDs .33
Telephone-Based Systems....33

143
Rccomencnl d .... i<strong>in</strong>s
35
Endnotes .. . . . . . . . . . . . . ... . . . ... . . . . .3
I'ables <strong>and</strong> 1igu[( c
Table Al. U.S. Voot<strong>in</strong>g-Age Population
With Disabilities <strong>and</strong> Language Needs ............................. 6

INTRODUCTION
144
Traditionally, many voters with disabilities have been unable to cast their ballots
without assistance from personal aides or poll workers. Those voters do not possess
the range of visual, motor, <strong>and</strong> cognitive facilities typically required to operate
common vot<strong>in</strong>g systems. For example., some are not be able to hold a pen or
stylus to mark a ballot that they must sec. <strong>and</strong> read. Thus, the vot<strong>in</strong>g experience
for citizens who cannot perlbrm certa<strong>in</strong> tasks - read<strong>in</strong>g a ballot, hold<strong>in</strong>g a po<strong>in</strong>ter
or pencil has not beets equal to that of their peers without disabilities
The IlcIp America Vote Act of 2002 took a step forward <strong>in</strong> address<strong>in</strong>g this longst<strong>and</strong><strong>in</strong>g
<strong>in</strong>equiry Accord<strong>in</strong>g to HAVA, tiew vot<strong>in</strong>g systems niust allow voters with
disabilities to complete <strong>and</strong> cast their ballots "<strong>in</strong> a manner that provides the sante
opportunity for acvess <strong>and</strong> participation (<strong>in</strong>cluditg privacy axsd <strong>in</strong>dependence) as
for other voters." In other words, as jurisdictions purchase new technologies
designed to facilitate vot<strong>in</strong>g <strong>in</strong> a range of areas, they must ensure that news systems
provide people with disabilities with an experience that mirrors the experience
of other voters.
This report is designed to help state asid local jurisdictiots improve the accessibility
of their votitg systems. We have not conducted any ditect accessibility testuig
of existent technologies. Rathie, ve set forth a set of cridcal qiiestionis for
election officials <strong>and</strong> voters to use when assess<strong>in</strong>g available sot<strong>in</strong>g systems, <strong>in</strong>dicate
whether vendors have prosided any st<strong>and</strong>ard or custom features designed to
answer these accessibility concerns, <strong>and</strong> offer an evaluation of each architecture's
limitations <strong>in</strong> provid<strong>in</strong>g an accessible vot<strong>in</strong>g experience to all voters.
The report thus provides a foundation of knowledge from which election officials
can beg<strong>in</strong> so assess a vou<strong>in</strong>g system's accessibility. The conclusions of this report
arc <strong>in</strong>ot presented as a substitute for the evaluation <strong>and</strong> test<strong>in</strong>g of a specific manufacturer's
vot<strong>in</strong>g system to determ<strong>in</strong>e hos accessible a systcm is <strong>in</strong> conjunction
with a particular jurisdiction's election procedurcs <strong>and</strong> system conliguration. We
urge election officials to <strong>in</strong>clude usability <strong>and</strong> accessibilitv testitug ii their product
evaluation process.

145
THE NEED FOR
ACCESSIBLE VOTING SYSTEMS
There are manv reasons fnr election officials to bc concerned about crcat<strong>in</strong>g fully
actessible vot<strong>in</strong>g systems. Not least of thcsc is that such systems are long ovcrduc:
even today. millions of Americans cannot vote <strong>in</strong>dependently on secret ballots
us<strong>in</strong>g the votisig mach<strong>in</strong>cs <strong>in</strong> their prec<strong>in</strong>cts.2 For this reason, many of these citizens
havc found vot<strong>in</strong>g to bc an 'cmharnass<strong>in</strong>g. demean<strong>in</strong>g <strong>and</strong> timc consum<strong>in</strong>g"
experience.' It should surprnsc no one that the majority of such citizens do not
vote.'
In addition to reasons of fundamental ftirness, there are practical reasons for
election officials to ensure that their systems are accssible. First, it is legally
required. Second, disabled voters represent a very Largc <strong>and</strong> grow<strong>in</strong>g segment of
the poptlation. Put pla<strong>in</strong>ly, no matter where theirjurisdictions are located, election
officials are likely to f<strong>in</strong>d that a significant percentage of the citizens they
serve are disabled, <strong>and</strong> the numbers of such citizens will cont<strong>in</strong>ue so grcov for the
foreseeable future.
r LEGAL ACCESSIBILiTY REQUIREMENTS
FOR VOTING SYSTEMS
Current accessibility st<strong>and</strong>ards reflect evolv<strong>in</strong>g st<strong>and</strong>ards <strong>in</strong> federal legislation
<strong>and</strong> an cssentially private certification regime formerly led by the National
Associatiots of State Election Directors ("NASED") <strong>and</strong> now overseen by the
Eleetion Assistasice Commission ('EAC").' This sectiots sutonsarizes those
rvcquiensccnis <strong>and</strong> their role <strong>in</strong> state selection decisions.
=t4 The Help America Vote Act
Congress has only recently passed ats explicit Lawv requir<strong>in</strong>g a private <strong>and</strong> <strong>in</strong>dependetit
vot<strong>in</strong>g experience for people with disabilities. Under the federal Help
America Vote Act ('I-lAVA"), at least one vot<strong>in</strong>g system "equipped for <strong>in</strong>dividuals
with disabilities" mssst be used at each poll<strong>in</strong>g place for federal electiotts held on
or afterjanuary I, 2006.' HAVA requires that such vot<strong>in</strong>g systems:
be accessible for <strong>in</strong>dividuals with disabiliuies, <strong>in</strong>clud<strong>in</strong>g son-visual accessibility for the
bl<strong>in</strong>d antd svisually-impaired, hi a niat<strong>in</strong>ner that provides the same opporn<strong>in</strong>ity for
access <strong>and</strong> parucipation (<strong>in</strong>cud<strong>in</strong>g privacy <strong>and</strong> <strong>in</strong>dependence) as for other voters.i
Specifically. every poll<strong>in</strong>g place shall hase "at least one direct record<strong>in</strong>g electronic
vot<strong>in</strong>g system or other vot<strong>in</strong>g system equipped for <strong>in</strong>dividuals with disabilities."
t In addition, all vot<strong>in</strong>g systems "putchased with funds made available under
[HAVA] on or aftcrJanuary 1, 2007" must meet the statute's st<strong>and</strong>ard for disability
access.9 HAVA also requires that the vot<strong>in</strong>g system provide alternative language
accessiblity as adrtady required by section 203 of the Vot<strong>in</strong>g Rights Act.'

A S.t i.. l'Y: iE . fOi.A.I:cq VO'G S.S-.4}
146
tM% The Axnsricans' withe Disabiliti's Act <strong>and</strong> the Rtehabilitation Act
While lLMNA is thc first Congressional statute explicitly to require a private <strong>and</strong>
<strong>in</strong>dependent vot<strong>in</strong>g cxperiencc for people with disabilities earlier statutes
cemented a strong foundation for equal access to the polls fbr voters stith disabilitics.
The Americans with Disabilities Act of 1990 ("ADA') <strong>and</strong> the Rehabilitation
Act of 1973 prohibit exclusion of the disabled from governmem servieces, programs,
or activities, <strong>in</strong>clud<strong>in</strong>g vot<strong>in</strong>g <strong>and</strong> elections. Tide 1I of the ADA provides
that "no qualified <strong>in</strong>dividual with a disability shall, by reason of suds disability,
be excluded from participation <strong>in</strong> or he denied the benefits of the scrvices, progianis,
or activities of a public entity, or be stibjected to discriu<strong>in</strong>ation by any
such entity"" Siunilarly, Section 504 of the Rehabilitation Act provides that "[njo
othersvise qualified <strong>in</strong>dividual with a disability, shall, solely by r eason of her oi
his disability, be excluded from the participation <strong>in</strong>, be dctnied tht benefits of, or
be sub ected to discrimn<strong>in</strong>atio<strong>in</strong> t<strong>in</strong>der any program trr activity receiv<strong>in</strong>g Federal
f<strong>in</strong>ancial assistanec..2
Under both the ADA <strong>and</strong> the Rehabilitation Act. Congress m<strong>and</strong>ated promulgation
of implement<strong>in</strong>g regulations. Federal regulations proride:
- Design <strong>and</strong> coastruction. Each facility or pars of a fadlity constructed by. on
behalf ol; or for the tise of a public entity shall be designed <strong>and</strong> constrocted
<strong>in</strong> such manner that the facilitc or part of the facility is icadily accessible to
<strong>and</strong> usable by mdividuals with disabilities, if the construction was commented
afterJanuary 26, 1992
- Aii rats<strong>in</strong>i Each facility or part of a facility altered by, on behalf of, or for the
use of a public entity <strong>in</strong> a manner that affects or could affect the usability of
the facility or part of the facility shall, to the maximum extent feasible, be
altered <strong>in</strong> such manner that the altered portion of the facility is readily accessible
to atid usable by <strong>in</strong>dividuals sith disabilities, if the alteration syas commenced
aftcrJanuary 26, 1992."
vot<strong>in</strong>g equipment has been found to fal svith<strong>in</strong> the expansixee def<strong>in</strong>ition of "facilily"
conta<strong>in</strong>ed <strong>in</strong> the regulation&s. 4 Accord<strong>in</strong>gly, election officials must employ
means that m.at vot<strong>in</strong>g equipmeit "readilv accessible to <strong>and</strong> usable by <strong>in</strong>dividuab
stith disabilities."" Howsevcrc exist<strong>in</strong>g precedents do not require elect<strong>in</strong> officials
to provide x'o<strong>in</strong>g equipmeit "that would enable disabled persons to vote <strong>in</strong>
a manner that is comparable <strong>in</strong> every ssay with the vot<strong>in</strong>g nghts enjoyed by persons
without disabilities." t5 The next few years will likely darify the precise
requirements of both HAVA <strong>and</strong> these earaier statutes with respect to the accessibility
of vot<strong>in</strong>g systems, as cotirts hear <strong>challenges</strong> to the various'choices made
by electiotis officials across the country.

The Access Board is a federaI agency
eommitted to p*rcmutgatiog aecessible
design,
147
r'!t ThC-ERY Oi unMLt i ACr : VudlQiE SV." EM Si:URI IV. AC!:iS Id, L F;%iiL-,. Co$)
iltV The "'Voluntary Griideii<strong>in</strong>e~s"
In thc meantiumt federal agencies hac issued nro scts of voluntary guidel<strong>in</strong>es for
vot<strong>in</strong>g systren design. In 2002, the Fiederal Elections Commission ( 'FEC") <strong>in</strong> conjunction
with the United States Access Board issued a set of tcchnical st<strong>and</strong>ards
<strong>and</strong> recommendations called the 2002 Voluntary System St<strong>and</strong>ards ("VSS").`
The 'Accessibility" provisions (Section 2.2.7) of the VSS were divided <strong>in</strong>to two
categories: those that apply to all vot<strong>in</strong>g syrtems <strong>and</strong> those that apply only to
direct record<strong>in</strong>g electronic (DRE") vot<strong>in</strong>g systems. The 'Common St<strong>and</strong>ards"
section (2.2.7.1) <strong>in</strong>dudes six requirements that address the appropriate height of
the vot<strong>in</strong>g system, the maximum distance the voter should have to reach to be
able to use the system, <strong>and</strong> the accessibility of the controis to the voter."'
The "DRE St<strong>and</strong>ards" section f2.2.7.2'") <strong>in</strong>cludes requirements for accessible
vot<strong>in</strong>g systems that can be summarized as follows:
T'he voter shall not have to br<strong>in</strong>g <strong>in</strong> his or her own assistive technology <strong>in</strong>
order to tote priv-ately attd effectively us<strong>in</strong>g the DRE system.
sThe system shall provide an audio output that accurately communicates the
Contspletc coitrnt of the hallot <strong>and</strong> <strong>in</strong>structions: supports writc-<strong>in</strong> vot<strong>in</strong>g;
enables the voter to edit, review, <strong>and</strong> confirm his or her selections: allows the
voter to request repetitioti of <strong>in</strong>formation; supports the use of exterisal headphties;
atid provides adjustable volume cot<strong>in</strong>ros.
t When a system uses a telephone-style h<strong>and</strong>set to provide audio <strong>in</strong>formation,
it should provide a swireless coupl<strong>in</strong>g for assistive devices used by people who
are hard of hear<strong>in</strong>g.
a The system should avoid electromagnetic <strong>in</strong>terference wsith assistive heariig
devices.
B5 The system should allow for adjustments to be made to the display image,
specifically the image's contrast ratio, colors, <strong>and</strong> FiZe of u-Xt.
B If the system uses a touch-scren, it should aiso provide an alternative tactile
<strong>in</strong>put option that -sill be easy to operate for <strong>in</strong>dividuals with limited motor
slills (i.e., lighnscight, tactilely disecrnible, requir<strong>in</strong>g little force <strong>and</strong> dexterity
operable sith one haud).
If the system requires a response from the voter with<strong>in</strong> a set period or time,
it <strong>in</strong>ust alert the voter before time is up <strong>and</strong> allow the voter to have additional
time if necessary.
' If the system uses an audio cue to alert the voter of an error or confirmation,
it must also provide a visual cue for voters to accommodaic voters with hear<strong>in</strong>g
impairments

148
A.'..^.'..i31:i:', * Ai 4[''LCL .5' £!,c t ^5s.LL 5 NGsb Sc trc%
If the svstcm's primary means or voter authentication uses biometric technology
that requires the voter to have certa<strong>in</strong> biological characteristics n seeondarv
means of voter authentication must be made available.
In December 2005. the E\C issued a nev set of st<strong>and</strong>ards for votuig systems, the
2005 Voluntary Vot<strong>in</strong>g System Guidel<strong>in</strong>cs ("VVSG`). These guidel<strong>in</strong>es rcallirm
criteria set Forth <strong>in</strong> the 2002 VSS <strong>and</strong> push certa<strong>in</strong> st<strong>and</strong>ards a step further by
<strong>in</strong>sist<strong>in</strong>g that a st<strong>and</strong>ard "shall, rather than ishould," be followed. In addition.
the VVSG's requiremenLs apply to all vot<strong>in</strong>g systcms, not just DRFs, <strong>and</strong> csttblish
detailed parameters for each recommendcd accessibility feautrc. The most
important new specifications can be summarized as follows:
s Mach<strong>in</strong>es shall be capable of display<strong>in</strong>g text <strong>in</strong> at least two font si7es, (a) 3-4
millimcters, <strong>and</strong> (b) 6.3-9.0 millimeters.a' Sans-scrif fonts are preferable to
stylizecd fonts."'
Z All mach<strong>in</strong>es must be capable of display<strong>in</strong>g <strong>in</strong>formation tts<strong>in</strong>ga high-contiast
display with a ratio of at least 6: L'
9 Any buttons atsd controls on a vot<strong>in</strong>g system must be discernible by both
shape <strong>and</strong> color.3
ri Mach<strong>in</strong>es must provide an auidio-tactile <strong>in</strong>terface that replicates a st<strong>and</strong>ard
visual ballot <strong>and</strong> allows voters to acecss the full range of features <strong>and</strong> capabilities
<strong>in</strong> a st<strong>and</strong>ard visual ballot. In addition, systems must allow a voter to
pause anid resume an audio presentation atsd tn res<strong>in</strong>d the presentation to a
previous contest."
-R Default volume level for mtach<strong>in</strong>es should be set between 40 <strong>and</strong> 50 dB.
'otcers shotld be able to adjust volume up to a maximum lesde of 100 dB <strong>in</strong>
<strong>in</strong>crements no greater than 10 dB.'5 In addition, mach<strong>in</strong>es must be programmed
to allow voters to 5-ary the speed of an audio presrntation.AA
3Voters should be able to watch <strong>and</strong> listen to a ballot at die sanme timc.2'
i For optical scan systems. "if voters normsally Feed their own optical scan ballots
<strong>in</strong>to a reader, bl<strong>in</strong>d voters should also be able to do so."'
a DISABILITY DEMOGRAPHICS
A large proportion of the vot<strong>in</strong>g-age population would bencfitfrom avot<strong>in</strong>g system
accessible to people with disabilities. Accord<strong>in</strong>g to the 2000 Census, at least
44.5 million adult residents of the United States (ages 21 <strong>and</strong> above) have some
form of disability " Moreover, because many disabilities arc associated with
advanced age, a rapidly ag<strong>in</strong>g population st<strong>and</strong>s to produce dramatic <strong>in</strong>creases
<strong>in</strong> the number of soters 'with disabilitics."' 'he statistics is Table Al confirns the

149
Till MACIBIER. 0b U0OP5,0 !V: 5oTiQG 5YS-ENl !CS-igTY. SC StKr.CTe, ;!S . COSi
magnitude of thc vot<strong>in</strong>g-age population with disabilities <strong>and</strong>/or special languagc
necds.
TASLE Al
~~~~~~~~~~~~. .......
._ _.____._._._.___._.._____....
...
U.S. VOTING AGE POPULATtON WtTH DISABILITtES AND LANGUAGE NEEDS
rr lar 03W.
_ __. os15wo__ _ __ _ _ __________ ____ _ _ _
M91irms of peorpk
.. _ _ __olpe~l
Have trouble see<strong>in</strong>g" t
19.1
Have trouble hear<strong>in</strong>g 3' 30.8
Experience physical difficulty. <strong>in</strong>clud<strong>in</strong>g trouble
grasp<strong>in</strong>g or h<strong>and</strong>l<strong>in</strong>g small objects 33
Speak English less than 'very well3'1 17.8
Live <strong>in</strong> 'l<strong>in</strong>guistically isolated households"' 9.2
In addition, the accessibility of vot<strong>in</strong>g systems affects ttot only those with pet-manent
disabilities, but also thi millions of voters 'sith temporary disabilities or conditions
that wostld not folrmally be considered disabilities. For example, a voter
with a broken arm who has limited use of her h<strong>and</strong>, or who has forgotten his
read<strong>in</strong>g glasses <strong>and</strong> cannot read small text, or who has m<strong>in</strong>imal read<strong>in</strong>g skills can
vote more easily <strong>and</strong> effectierJy as a result of more accessible vot<strong>in</strong>g systems. With
this impact <strong>in</strong> m<strong>in</strong>d, the VVSG <strong>in</strong>clude maany requirements for all vot<strong>in</strong>g systems
(not jUSL those considered 'acecssiblc') that <strong>in</strong>crease case of access for people who
are already fully able to vote without assissance.
At the same time, a vot<strong>in</strong>g system may provide accessibility to voters with various
disabilities, yet still tot be easy to use. For <strong>in</strong>stance an audio system may provide
accessibility to voters with vision impairments, but if the system's audio jack is
hidden on the back of the mach<strong>in</strong>e, the system cannot be considered very usable.
Similardy. shen creat<strong>in</strong>g vot<strong>in</strong>g systems for <strong>in</strong>dividuals with vision impairments,
considerations of accessibility alone are not enough. As Mary Thcofanos <strong>and</strong>
Janice Redish have described with respect to ssebsite accessibility, "the diversity of
svisioit needs <strong>and</strong> the rcsultuig adaptations that low-vtsion users require mean that
there are tso simple solutions to mak<strong>in</strong>g web sites work for cvcrvonc."> For the
ssame reasons, it is difficult to snake vot<strong>in</strong>g sysents that work for all voters with
vision impairtments. Vot<strong>in</strong>g mach<strong>in</strong>es must enable voters with vision impairments
to easily adjust the system to their paruicular needs to take full advantage of accessibility
features."
28.3

METHO DO LOGY
150
To assess thc various vot<strong>in</strong>g system architectures, the Brennan Center's team of
consult<strong>in</strong>g experts created a set of accessibility criteria drawn from exist<strong>in</strong>g accessibility
guidel<strong>in</strong>es (<strong>in</strong>clud<strong>in</strong>g both those specific to vot<strong>in</strong>g systems <strong>and</strong> general
<strong>in</strong>formation technology guidel<strong>in</strong>es), such as the VSS 2002,' Scetion 508 of the
Rehabilitation Act, 5 ' <strong>and</strong> the VVSG (2005),'° as well as additional considerations
dceeloped through team discussions. These criteria are posed as questions that
can help election officials <strong>and</strong> adsocates compare specific systems for usc on
Election Dav.
Next, through a comb<strong>in</strong>ation of group discussions <strong>and</strong> one-on-one <strong>in</strong>terviews
with the authors, the team of consult<strong>in</strong>g experts provided their impressions of
systems' accessibility, which are reflected <strong>in</strong> this report. Experts considered not
only how an <strong>in</strong>di-idtual feature might affect accessibility, but also how a system
works as a whole. Many vot<strong>in</strong>g systems are only accessible if jurisdictions implement
certa<strong>in</strong> procedures or modify systems <strong>in</strong> specific ways. In evaluat<strong>in</strong>g systems,
the team cotssidered whethet certa<strong>in</strong> modifications or procedures are necded
to render an otherwise itacccssiblc system accessible.
In addition, each system was first considered as a self-conta<strong>in</strong>ed product that did
not require the voter to In<strong>in</strong>g her owsn special adaptive technology If healdsets arc
needed to hear an audio vcrsion of the ballot, for example, those headsets would
need to be provided at the poll<strong>in</strong>g place <strong>in</strong> order for that vot<strong>in</strong>g 5ystem to be considered
accessible without effort on the part of the voters. This assumrption mirroes
the Access Board's def<strong>in</strong>ition of a 'sclf-conta<strong>in</strong>ed product" from 1194.25(a)
of the Section 508 St<strong>and</strong>ard.
Self-conta<strong>in</strong>ed products shall be usable by people sith disabilities without requir<strong>in</strong>g
an cud-uscr to auach asstisfi technologs to the product. frsonal headsets for prisatc
lihten<strong>in</strong>g are not a-sistise technology`
Bcvotid the most basic accessibility features of a system, however some observers
beliess that a vot<strong>in</strong>g system should allow a voter to use her own assisaLrt technologv.
if desired (rg., by supplh<strong>in</strong>g st<strong>and</strong>ard ports to connect this equipment to the
sot<strong>in</strong>g systetn). Others have raised three arguments aga<strong>in</strong>st such an approach.
FErst, some experts argue that vot<strong>in</strong>gsystemsare <strong>in</strong>tentded to be self-cotsta<strong>in</strong>ed, atd
voters should not be required to br<strong>in</strong>g any special equipment to the poll<strong>in</strong>g place.
Second, seer few <strong>in</strong>dustry st<strong>and</strong>ards presently govern the design of connections
for assistive technology. At this time, the only st<strong>and</strong>ard jacks <strong>in</strong>cluded <strong>in</strong> federal
statndards (either tie VSS or WSGC) are audiojacks for personal headsets Third,
security conterns exist about <strong>in</strong>cltd<strong>in</strong>g ports to connect uncertified eqttiptcmnt to
a vot<strong>in</strong>g system, <strong>and</strong> the risks issolsed <strong>in</strong> <strong>in</strong>stall<strong>in</strong>g the drivers or other software
usually needed to allow assistive technology to operate. Without attempt<strong>in</strong>g to
resolve this debate. sue assessed the extent to which each system allosus a voter to
make use of personal assistive technology to reduce barriers to access.

- ------ __
151
'.:t 't(Ath'tC5V 0' £tt;.)G~iACY. C.T!IJG St'St5b '.~'C .^C EbI..i'. ,A';f S: O
Last, we offcr an <strong>in</strong>troductory sketch of accessibility features currently provided
by vendors <strong>and</strong> an analysis of how those features might help cnsur r compliance
with our accessibility criteria. To obta<strong>in</strong> this <strong>in</strong>formation, we first culled <strong>in</strong>formation
from any available product <strong>in</strong>formation published by vendors. We thets
conducted <strong>in</strong>itial telephone <strong>in</strong>teriews with vendors <strong>and</strong> usability experts on the
status <strong>and</strong> utility of available feature-s. Next, we sent each vcndor a written summary
or all compiled research on their mach<strong>in</strong>es. Vendors commented upon
those reports, <strong>and</strong> their changcs or comctsts are reflceted here.

152
VOTING ARCHITECTURE ANALYZED
This chapter analy-zes the follow<strong>in</strong>g six vot<strong>in</strong>g system architectures:
Direct Record<strong>in</strong>g Elcctronic ("DRE")
*. Prec<strong>in</strong>ct-Count Optical Sean ("PCOS")
Ballot Mark<strong>in</strong>g Desice ("BMD")
DRE urith Voter-Verified Paper Trail ('DRE with VVPT")
Vote-by-mail
'A'Xc-bv-Phonc
The specific design of these systems varies greatly vith each manufacturer's models.
With respect to the voter's experience, however. the systems can be categorized
based upon the primacy medium through which thcsoter <strong>in</strong>teracts with the
system to mark <strong>and</strong> cast the ballot. We consider the features of each type of svstem
<strong>in</strong>tdividually but group the systems based on their primary <strong>in</strong>terface as follows:
I . Computer-Based Interface:
zO3 DRE
2. Paper-Based Interface:
t PCOS
C Vote-by-Mail
3. Hvbrid Interface:
BMD
DRE w/ 'VPT
4. Telephone-Based Interface:
Q \bVot-by-Phone

ANALYSIS
153
:9 COMPUTER-BASED SYSTEMS
With certa<strong>in</strong> cxccptions, computcer-based vot<strong>in</strong>g systems provide greater accessibility
to all disabled voters than do paper-bascd systems. As discussed <strong>in</strong> greater
detail below, the flexibility <strong>in</strong>herent <strong>in</strong> computer-based systems allows voters to
choose <strong>and</strong> mix features, a capacity that dynamically <strong>in</strong>crcascs accessibiliry for
voters with disabilities. In particulac: computer-based systems racilitatc vot<strong>in</strong>g for
people With visual impairusents: The size of text can, for example, be cIcctronically
esslarged. Display screens can be set at a high contrast that clariftes <strong>and</strong>
cmbioldens *words <strong>and</strong> images. Computer-based systems can provide audio sermons
of <strong>in</strong>structions for vot<strong>in</strong>g <strong>and</strong> of the ballot hself. Other voters can also reap
the benefits of computer-based systems. Voters who are not comfortable readissg
English can choose to read or hear their ballots <strong>in</strong>stantly its a different language.
Voters with limited motor capacity need not h<strong>and</strong>le paper or pencil. Often, voters
with disabilities can access these features <strong>and</strong> vote on their own without the
assistance of a poll worker or personal aide.
Computer-based systems permit voters to use a range of visual, auditory, <strong>and</strong> tactile
options simultaneously For example, a voter who cannot read well may
choose to hear <strong>in</strong>structions read out loud, but can reta<strong>in</strong> the ability to select a c<strong>and</strong>idate
visually from the screen based ott her recognition of a c<strong>and</strong>idate's name.
Drafters of the VVSG have recognized the potetidal of mix<strong>in</strong>g modes <strong>in</strong> this
fashion <strong>and</strong> <strong>in</strong>clude a requirement that acccssible systems allowv visual <strong>and</strong> audio
streamrs to be used simultaneously'" If designed to do so, computer-based systems
can fullill this requirement with relative case.
Despite these cotssiderable advantages,. computer-baseed systems can present certa<strong>in</strong>
barriers for people with disahilitics. Navigation of comisputer screens often
requires that voters use controls that require liatd-eve coord<strong>in</strong>ation -a touchscreen
or'a mouse - to selc their dhoices. To operate these controls successfully,
voters usust have the visual facility to see a cursor move across a screen or to dist<strong>in</strong>guish
betweent virtual buttons on a display <strong>and</strong> the complementary motor-control
necessary to move a mouse or press distant areas on a touch-screen.
The most popular computer-based DRE systems already provide an auxiliary
control pad for voters with visual or mobility <strong>and</strong> coorditation impairments. In
thcorv, voters can discern each parn of these auxiliary controls us<strong>in</strong>g ossly their
settue of touch. ThIe controls' utility varies from machite to mach<strong>in</strong>e. Designers
cats vary the shape of each coitrol mcchanism to allow voters to disenim<strong>in</strong>atc
betvween controls without look<strong>in</strong>g at them. Voters can activate such conitrols with
m<strong>in</strong>imal force <strong>and</strong> without f<strong>in</strong>e motor control. Moreover, a button similar to a
computer tab key can allow voters to click their cursor between one selection <strong>and</strong>
another wvihout hav<strong>in</strong>g to movc a mouse or touch a screen

154
The follow<strong>in</strong>g questions should be considered <strong>in</strong> assess<strong>in</strong>g the accessibility of
computer-based vot<strong>in</strong>g systems:
1. Can the system be physically adjusted
to meet a voter's ccess needs?
The ans scrs to this question depend on the ease wish which a votcr or poll workcr
can: (a) adjust the height or the computer screen, (b) tilt or rotate the screen, or
(c) remove the sreens <strong>and</strong> <strong>in</strong>pstt conitrols from a tabletop surface so that a voter can
hold the system <strong>in</strong> her lap <strong>and</strong> cven vote outside the poll<strong>in</strong>g place, i, "curbside."
DREs fall <strong>in</strong>to tsso categories: Certa<strong>in</strong> systems. <strong>in</strong>cludisg Avantc's Vote Trak-ker,
Sequoia's AVC Edge." <strong>and</strong> Accupoll's Vot<strong>in</strong>g System l000.4 sit stautionary ot a
table or st<strong>and</strong>, Voters cannot readily adjust a st<strong>and</strong>'s or table's height, <strong>and</strong> such
mach<strong>in</strong>es arc only accessible to voters <strong>in</strong> wheelchairs if preciticts set sonse surfaces
at lowscr heighits before polls open. Some of these systems. <strong>in</strong>clud<strong>in</strong>g
Sequoia's AVC Edgc," also addicss height concerns by allow<strong>in</strong>g their screets lo
ilt upward <strong>and</strong> downward. With the exception of Avanic's" mach<strong>in</strong>es <strong>and</strong> the
systems once manufactured by Arcupol," such ssstems are sufficiently portable
for a poll worker Lo set them stp curbside if necessaryv
Other systems, such as Hart Intereivic's eSlate,3' FS&S, Inc.'s iotaronic,;t <strong>and</strong>
Diebold's AccuVoec-TSX unit," do not need to rest on a table. Thesc systems can
be set up to provide a lightweight tablet (rang<strong>in</strong>g from roughly 10-15 lbs.) that the
voter can place on her lap or other suitable sutface. This portable. modsle
<strong>in</strong>cludes the screen <strong>and</strong> all of the ncressary <strong>in</strong>put controls. These systems arcs also
sutliciesstly portable to allow for curbside vot<strong>in</strong>g
2. Does the systernt allow voters to adjust tie visual presentation
of <strong>in</strong>fortaution conta<strong>in</strong>ed <strong>in</strong>t the ballot or <strong>in</strong> vot<strong>in</strong>g <strong>in</strong>structiosts?
Although all computcr-based systems could oll'er a rangr of malleable view<strong>in</strong>g
options. each DRE model differs <strong>in</strong> the alter<strong>in</strong>atives it provides for sssers with
vision impairments. The VVSG require that certified systens comply with *crta<strong>in</strong>
requiremsents concemnitg the presentation <strong>and</strong> adjustabilisy of visual outputs.
In particular, the VVSG require that certified systems proside an enhanced -isual
display that <strong>in</strong>clucies a high-tostrast presentation, a black-assd-swlite display.
opuon, <strong>and</strong> at least two fornt size options of a m<strong>in</strong>imtun size.'
Many msodels have alread) met the requirements prescribed <strong>in</strong> the VVISG. DREs
produced bv Sequoia," Dicbold,5; Hart Intercivic; ES&S, <strong>and</strong> Accupoll. 3 have
high-cosstrasn electronic image displays with a contrast ratio of 6:1 or greater.
DREs manufactured by Accupollw Avantc?2 Sequoia," <strong>and</strong> ES&S` have electronic
display options that allow for either a black-<strong>and</strong>-white-only display or a
color display that provides the voter with a means to adjust colors. These features
can be made available to votess us<strong>in</strong>g mach<strong>in</strong>es made by Dicbold't <strong>and</strong> Hart

155
;_(iAC5t.Y o5 ri-. OCQArN. VOItI.5 5 ST."M ACC*'. E$SC 5SR::Y. tS.5E7I. COST
Intercivien but elections officials must ensure that they are <strong>in</strong>corporated <strong>in</strong> the
ballot's design whlni is is <strong>in</strong>itially developed.
DREs made by Accupoll'" anid Avantc' pmrvide at least two font sizes - one with
Capital leutcrs of at least 6.3 mm <strong>and</strong> our with capital letters of between 3.0 <strong>and</strong>
4.0 mm - us<strong>in</strong>g a satts-scrir or similar font. Models pixiduccd hsy Dicbold,'
Scquoia,"' Hart Intercivic'i' <strong>and</strong> ES&S"R can also vary font size. but officials mtsst
request that this feature be implemented dur<strong>in</strong>g <strong>in</strong>itial ballot design.
3. Does the systern allow voters to adjust the audio presentations
of <strong>in</strong>formation conta<strong>in</strong>ed <strong>in</strong> thie baliot or <strong>in</strong> vot<strong>in</strong>g <strong>in</strong>strsuctions?
Audio outputs can be adjusted <strong>in</strong> four ways. First, systems can allow voters to
adjust the volumc of the audio playback. Indeed, the VVSG requires systems to
do so. DREs produced by Sequoia,"' Diebold,' Hart Intercivic." FS&.S. 0
Asante" <strong>and</strong> AccupollE provide volume adjustabihity as a st<strong>and</strong>ard feature: Volume
can be amplified up to a max<strong>in</strong>um of 105 dB SPL <strong>and</strong> automatically resets
to a default level alter each voter cotupletes her ballot.
Second, auditory outputs can be recorded <strong>in</strong> either digitized or computer-synthesized
speech. Digitized speech is produced by record<strong>in</strong>g one or more human
snices <strong>and</strong> then play<strong>in</strong>g such record<strong>in</strong>gs back through the computer's digital system.
This type of speech is reportedly casier to underst<strong>and</strong> than synthesized
speech, a rendertig that can sound flat <strong>and</strong> uttfamitliar." Digitized speech is
alrcadv available on DRE systems manufiuctured by Sequoia, ' Dicbold,'
Accupoll,"' Hart Intercivic" <strong>and</strong> FS&S. 5 r
'fhird, ccrta<strong>in</strong> systems allow the voter to control the rate of speech <strong>in</strong>Ustie audio
ottput, as recommetsded <strong>in</strong> tie VVSG33 People who are accustomed to <strong>in</strong>teract<strong>in</strong>g
with technology through an audio <strong>in</strong>terface can "listen faster" <strong>and</strong> thus
expedite the othenrise potentially lengthy \ot<strong>in</strong>g process. This feature is available
<strong>in</strong> Avantes,"' SequoiaPsi <strong>and</strong> Dicbold's 5 DRPE systems Accorditsg to experts,
speech control has until now been associated with systems that use systhesized
speech. However technologies are now available to allow digitally recorded
human speech to be played at different speeds without chang<strong>in</strong>g the tone or crcat<strong>in</strong>g
a high-pitched, chipmunk effect. t '
F<strong>in</strong>allh; the use of different voices for <strong>in</strong>structions <strong>and</strong> for ballot selections f- or
example, a c<strong>and</strong>idate's name -- allows some vosers to expeditc the votiig proccss
Voters accustomed to us<strong>in</strong>g audio <strong>in</strong>terfaces can speed up audio record<strong>in</strong>gs so
that they ran skim text for breaks or keyssords that <strong>in</strong>dicaue a nesv contest. In this
way, voters "scan with their ears" <strong>in</strong> the same manier that readers quickly scan
<strong>and</strong> review a page of text.
'isia feature can be made available on systems manufactured by Avantc.3
Sequoia, t Dirboll,' Accupoll,' lart Interciview <strong>and</strong> eIS&S,' 3 but must bc
requested by election officials dur<strong>in</strong>g ballot design.

156
4. Does the qysstsens prnvide an <strong>and</strong>io output/taetilp <strong>in</strong>put alternative
access option to nseet the needs of <strong>in</strong>di-iduals vwith vi-tal
<strong>in</strong>ipai rtnents or oither difficruitiAs read<strong>in</strong>g?
Voters who cannot see or read <strong>in</strong>formation presented on a visual display need an
alternate, non-visual wsay both to receive <strong>and</strong> to <strong>in</strong>put <strong>in</strong>formation <strong>in</strong>to DREr. All
major manufacturers of DREs (Avanica Sequoia,' 5 Diebold,"' Aecupoll,'s iiart
Intercivic' <strong>and</strong> ES&S") address this issue by provid<strong>in</strong>g a version of their ballots
through an Audio Tactile Interface ("ATI'1. A1ls allow voters to hear- c<strong>and</strong>idate
choices via an audio ballot. isther thass see<strong>in</strong>g them on a display screen, <strong>and</strong> to
make their choices wsithout any cursor or touch-screen by us<strong>in</strong>g separate, tactilely
discernible controls.
The 2002 VSS conta<strong>in</strong>ed detailed criteria for audio ballots, all of which have
been reiterated <strong>in</strong> the VX7SGl The audio ballots were required to communicate
the complete contents of the ballot via a device affixed to an <strong>in</strong>dustry st<strong>and</strong>ard
connector of a AtW jack, provide <strong>in</strong>structions to the voter, enable the voter to
review <strong>and</strong> edit ser <strong>in</strong>put, pause <strong>and</strong> resume the playback, confirm that the edits
reflect her istent, asid allowv the voter to request repetition of any <strong>in</strong>formation
provided by the sxstem . Stull, those systems manufactured under the V.SS have
produced compla<strong>in</strong>ts of badly worded prompts, poorly recorded or poorly digitized
spcech, <strong>and</strong> poor navigation options, any of which can make an audio ballot
difficult to underst<strong>and</strong> or follow.' t Where possible, election officials should
conduc test<strong>in</strong>g with voters with visual disabilities to assess the audit) ballots available
on dilrerenit tsach<strong>in</strong>es prior to purehase
5. Does, the systens provide cont-ols suitable for soters vith l<strong>in</strong>ited
l<strong>in</strong>e snoctr silla'
The touch-screen navigation that is required by most DRE systems poesssignificant
barriers to access fos persons vith limited fGne motor skills. Becausc die
boundarics of selcrtions ots the screen ate sot taciciley discernible, atd it is n-latisely
easy to make an etrotteous selection by touch<strong>in</strong>g the screen outside the
boundanes of shc <strong>in</strong>tended "button," voters who can usc their hIads but have
limited l<strong>in</strong>e motor control face significant diffieculties iu vot<strong>in</strong>g successfully asid
<strong>in</strong>dependently iFor example, <strong>in</strong>dividuali wish tremors or other mosnimcnt disorders
that require them to brace their h<strong>and</strong> when po<strong>in</strong>t<strong>in</strong>g or press<strong>in</strong>g a bttton
may encounter difficulues with tsuch-scremns because they cannot rest their h<strong>and</strong>
on the sz-cen to osake selections If a touch-screen requires direct sotich from the
human body rather than a push from any object made of assy material, then <strong>in</strong>disiduals
who use head sticks or mouth sucks would be unable to use the touchscreen.
Thus, for votcrs svithout the use of their hantds, the Louch-screen cannot
be used to make selectionis at all. I]t ail these cases there must be ass altersatise,
<strong>in</strong>put control available.
Manufacturers sohe this problem by allow<strong>in</strong>g s oters to <strong>in</strong>put selections us<strong>in</strong>g the
auxiliary control passel origuually designed for ATIs. Voters can usc the alternate

157:
sr. M'C5ER; , ir CEM3'AC. V a5.5rEM'.tCSiS 5,'Ui51 1. OSAMUi' 5 Uo.
controls on this devicc to <strong>in</strong>dicatc their choices <strong>and</strong>, <strong>in</strong> certa<strong>in</strong> mach<strong>in</strong>es, reta<strong>in</strong>
the ability either to see their ballot on a display screen or to hear their ballot
through earphones. Hart Intercivic's eSlate goes a step beyond <strong>and</strong> makes its
st<strong>and</strong>atd control panel accessible to voters with limited f<strong>in</strong>e motor skills: Voters
move between selections on an electronic screen by turn<strong>in</strong>g a dial; separate buttons
cxist for select<strong>in</strong>g a certa<strong>in</strong> c<strong>and</strong>idate or response <strong>and</strong> for cast<strong>in</strong>g a completed
baIJotL
Certa<strong>in</strong> voters cannot <strong>in</strong>put selections witl their h<strong>and</strong>s at all. howvever, <strong>and</strong> must
use a separate device to <strong>in</strong>put <strong>in</strong>formation. Sotsse mach<strong>in</strong>es, <strong>in</strong>cludisig those manufactured
by Accupoll,u" Sequoia," 4 Hart lntcrciviclai <strong>and</strong> Avante,'I <strong>in</strong>clude a
"dual switch <strong>in</strong>put option," ajack for a voter to <strong>in</strong>sert such a device. Voters can,
for example, attach a sip-<strong>and</strong>-puff device, which allows them to <strong>in</strong>dicate choices
by apply<strong>in</strong>g vary<strong>in</strong>g amounts of pressure to a straw <strong>in</strong>serted <strong>in</strong> the mouth. Other
users may use a bl<strong>in</strong>k switch that allows them to operate one or two switches by
bl<strong>in</strong>k<strong>in</strong>g their eves. In both cases the switches can be used to control the vot<strong>in</strong>g
mach<strong>in</strong>e if it is set up to he controled with one or two switches.
Switch <strong>in</strong>put devices can present their own usability concerns for certa<strong>in</strong> voters.
Such devices require voters to use a control that can comnunicate a limited numbcr
of messages for two types of actions, ballot navigation <strong>and</strong> selection. A voter
us<strong>in</strong>g a s<strong>in</strong>gle, rather than dual, switch <strong>in</strong>put devicc may not have the ability to
scroll backward <strong>and</strong> forward to revisit earlier answers <strong>and</strong> might have to restart the
ballot completely to change. a choice. For this reason, voters benefit fbom vot<strong>in</strong>g
systems that can <strong>in</strong>terpret switches tha. transmit at least two discrete messages forward/select
<strong>and</strong> backsvard/sclcct 'This flexibility can <strong>in</strong>crease the speed <strong>and</strong>
usability of the vot<strong>in</strong>g system for voters us<strong>in</strong>g auxiliary devices Election officials
should cnsure that dual switch <strong>in</strong>put devices cats be used on the systehi chosen.
6. Does the systesm allow sisnsultaaseoas use of audio <strong>and</strong> visual
outputs, <strong>in</strong> other words. can a soter to see <strong>and</strong> he-ar a ballot at
the sane t<strong>in</strong>se?
Many voters, particularly those with low literacy levels, limited English skills, or
mild vision <strong>in</strong>spairments, can benefit from both hear<strong>in</strong>g <strong>and</strong> see<strong>in</strong>g a ballot- For
that reason, the VN'SG has required that all audio ballots <strong>and</strong> ATls be synchronized
with a st<strong>and</strong>ard visual output." l'his feature is presemtly available on systems
manufactured by Accupoll,' ES&S,` Diebold"' <strong>and</strong> Hart Intercivic."'
Accord<strong>in</strong>g to its representatives, Sequoia plans to implement this Feature sometime
<strong>in</strong> 2006."'
7. Does the system allow voters to <strong>in</strong>put <strong>in</strong>formation us<strong>in</strong>g a
tactile control device while still receiv<strong>in</strong>g visual. rather than
audio, output?
Voters with limited f<strong>in</strong>e motor control may not need to listen to an audio ballot
<strong>and</strong> may prefer to enter their selections usiug an auxiliary tactile controsl device,

Acces'- .: *, 'Y .E_95is
158
whilc still receiv<strong>in</strong>g their ballot through a st<strong>and</strong>ard visual display. This fcature
currently exists on thc DRE systems manufactured 1y Hart Intercivic,"I
Diebold"' <strong>and</strong> Accupoll."' Accord<strong>in</strong>g to its representatives, Sequoia plans to
implement this feature sometimce <strong>in</strong> 2006)."'
8. Can a voier choose antd change aeceessibltv <strong>and</strong> language
options withour the tscistartce of a poll worler?
One of the advantages of a computcr-based ixterfacc is that it can provide a
range of options <strong>and</strong> can allow those options to be selected by the voter privately
<strong>and</strong> <strong>in</strong>dependently Similarly; the votcer should be able to correct her un<strong>in</strong>tended
selection of a feature <strong>in</strong>dependently For example, if a voter who has already
tisade some hut isos all of her selections decides that she would prefer a larger text
size, but most return to a prelim<strong>in</strong>ary screen to alter the sizc of the text to cont<strong>in</strong>uc
vot<strong>in</strong>g successfully, such a transition may be prohibitively confusiig, require
assistance from a poll aorker, or lead to failure.
Some vendors have anticipated the need for flexibiliy <strong>and</strong> have designed systems
that allow voters to choose <strong>and</strong> switch between features with ease. Accupoll allows
voters to switch languages. adjust volume, <strong>and</strong> magnify or shr<strong>in</strong>k text size at any
1
time."' Avante isers can change visual <strong>and</strong> audio sett<strong>in</strong>gs at any time."' Diebold
users can select <strong>and</strong> change visual features at any time, but cannot change audio
features without poll worker assistance."3 ES&S's <strong>and</strong> Hart Intercivic's systems
ask voters to select their preferred feattires at the beg<strong>in</strong>n<strong>in</strong>g of the ballot. but do
not allow voters so change fesaiures later <strong>in</strong> the vot<strong>in</strong>g proecss 51 '5 Accord<strong>in</strong>g to
Sequoia's reprsentatives. the updated version of the AVC Edge will allow voters
to choose <strong>and</strong> manipulate all features at all firuess 2 ' Wtlh tste exceptiotn of Hart
Inicrcivic's cSlatc <strong>and</strong> ES&Ss iVotrosic, cotimputer-bascd systcms require. that
ATIs be <strong>in</strong>itialized by a poll worker each time a voter requests a change <strong>in</strong> the Sett<strong>in</strong>gs
<strong>in</strong> use.'22
9. Is thc ser's audit function aecessihle to all 'oters?
AlU DREs allos voters so review an electronic record of their cast ballots. Those
records can also be read back via audio <strong>in</strong>puts to bl<strong>in</strong>d voters <strong>and</strong> can be presented
<strong>in</strong> an cishanced visuial display to voters with vision impairments.
a PAPER-BASED SYSTEMS
Paper-based systeoss, which <strong>in</strong>clude systems that use optical scan ballots <strong>and</strong>
Vote-by-Mail ballots, create barriers to voicrs with disabilitics that arc not as casily
remedied as those presented by computer-based systems The bartiers
imposed by these systems result pr<strong>in</strong>cipally fiom four features of the vot<strong>in</strong>g experience.
First, with both optical seas <strong>and</strong> Vote-by-Mail systems, the paper ballot
itself must be pr<strong>in</strong>ted prior to Election-Day <strong>and</strong> cannot be adjusted to address the
needs of a particular voter. For voters with visual impai ments, tequest<strong>in</strong>g <strong>and</strong>
us<strong>in</strong>g la-ge-pr<strong>in</strong>t paper ballots may sacrifice a measure of their privacy: officials

159
Tl!MC H7.'COi~t' QF C-M0(.qAt:t *r-o*sr su:-:;gss!rvA:SYcr0s1
know who request large-pr<strong>in</strong>t ballots 5 <strong>and</strong> if only a small number of <strong>in</strong>dividuals
do so, officials can disccrn votcrs' personal sdlcctions aftcr polls have closed. Like
voters with vision impairments, voters who require alternate languages may nced
to requcst a differcnt ballot pre-pr<strong>in</strong>ted <strong>in</strong> their language <strong>and</strong> may encounter a
similar privacy concern. In sum, despite the use of largc-pr<strong>in</strong>t ballots <strong>and</strong> assistie
devices like magnilx<strong>in</strong>g glasses, many voters with vision impairments may still
have greascr dillietltics read<strong>in</strong>g the paper ballot than they would read<strong>in</strong>g an
cnhanced electronic visual display."'
Second, paper-based syncnts require voters to read the ballot. Some jurisdictions
provide record<strong>in</strong>gs of the ballot to facilitate vot<strong>in</strong>g for those with visual impairments.
"' Even whest matk aai'lable, auditory <strong>in</strong>structions for papcr-based systems
arc presently producAd by a cassette mach<strong>in</strong>e rather than by a computerbased
audio system, amtd voters cannot change the speed of the audio record<strong>in</strong>g
nor skip forward or backward with case. More importantly voters with visual'
impairments cannot review their ballots for accuracy once they have been
marked witbout another person read<strong>in</strong>g the contents to them because no paperbased
systems allow an auditory review of voters' <strong>in</strong>put. For sonic voters with
visual impairments this barrier can mean an absolute loss of privacy <strong>and</strong> <strong>in</strong>dce-
pcndetice,
Third, paper-based systems require voters to marki the ballot manually. 'Voters
with coord<strong>in</strong>ation or vision problems may require significant assistance to complete
this task. In addition, voters with cognitive disabilities have an especially difficullt
time mark<strong>in</strong>g ballots that ask voters to follow an aross across a page <strong>and</strong>
select a c<strong>and</strong>idate. Many voters with learn<strong>in</strong>g disabilities may struggle to perform
this k<strong>in</strong>d of visual track<strong>in</strong>g successfully.
F<strong>in</strong>ally manypaper-based systems require voters to feed their marked ballots <strong>in</strong>to
a wanner, <strong>and</strong> voters with impairments relat<strong>in</strong>g to vision, mobility, or coord<strong>in</strong>atiost
will experience dilficultcs <strong>in</strong> complet<strong>in</strong>g these tasks. To <strong>in</strong>itiate <strong>and</strong> complete
searuu<strong>in</strong>g, soters must have the visual <strong>and</strong> physical facility to grasp a ballot, walk
across a poll<strong>in</strong>ig station, <strong>and</strong> hiser their ballot <strong>in</strong>to a scanncr. Maity voters will
r<strong>in</strong>d their privacy <strong>and</strong> <strong>in</strong>dependence threatened as they seek the assistance of
another person <strong>in</strong> order to complete the scann<strong>in</strong>g process.
The follow-<strong>in</strong>g questions should be considered <strong>in</strong> assess<strong>in</strong>g the accessibility of
paper-based sot<strong>in</strong>g systems:
1. 0 an the sys-tem he~ physically adtjusted to nse,'t
a -oter s access neseds?
For those voters with disabilities that do not preclude them from h<strong>and</strong>l<strong>in</strong>g or see<strong>in</strong>g
paper, paper ballots arc easy to position so that they can be secn <strong>and</strong> marked.
The poll<strong>in</strong>g place nted only <strong>in</strong>clude a selection of writ<strong>in</strong>g surfaces set atm vay<strong>in</strong>g
heights.

160
llowcvcr. svitcms that rcquirc a votct to physically h<strong>and</strong>le papcr arc fuMy miacccssible
to thosc voters v ho ha.v such profound motor coord<strong>in</strong>ation disabilities
that they arc unable to grasp or otherwise manipulate a paper ballot. Such voters
cannot clutch a ballot h<strong>and</strong>ed to them by a poll worker or operate a pen or mark<strong>in</strong>g
device. Nor can these votcrs transport a ballot across a poll<strong>in</strong>g station atid
feed the banlot <strong>in</strong>to a tabulator Bccausc they ate unabic to execute the basic
mechanics of paper ballot vot<strong>in</strong>g without considerable assistance, voters with significant
motor control impairments arc unable to vote <strong>in</strong> a private <strong>and</strong> <strong>in</strong>depcndent
manner
Voters with significant visual disabilities have equally prohibitive difficulties with
papct ballots. Without assistance, such voters arc unable to read <strong>in</strong>structions <strong>and</strong>
c<strong>and</strong>idate choices or to mark their selections. No currently available physical
adjustmetit to the paper ballot sufficienttly losers these batriers.
In addition, paper-based systems may pose specific barriers to certa<strong>in</strong> sotcrs who
use wheclchairs. Most optical scan systents <strong>in</strong>clude a prec<strong>in</strong>ct-baswd scanncr <strong>in</strong>to
which the votcr must <strong>in</strong>sert her ballot to be counted, <strong>and</strong> these scanners can be
<strong>in</strong>accessible to voters sith high sp<strong>in</strong>al cord <strong>in</strong>juries, Scanners, <strong>in</strong>clud<strong>in</strong>g thosc
manufacttired by Avante,tS" Diebold,"e Scquoia,27 attd FS&S,'7a often sit atop a
solid ballot box that st<strong>and</strong>s at waist height. The scanner's feeder is situated at the
front of the bo'x, <strong>and</strong> no ballot box provides space ultder this feedet for a ssheelchair
Tius, voters <strong>in</strong> wlheelchairs cannot roll up to a scamter <strong>and</strong> face it. Instead.
votcrs <strong>in</strong> wheelchairs must roll up beside a scanner, rotatc their torsos, atid place
the ballot <strong>in</strong>to the feeder slOt. Many voters witih high sp<strong>in</strong>al cord <strong>in</strong>jstries cannot
move <strong>in</strong> this fashion <strong>and</strong> thus cannot vote without third-party assistance.
Though they present many of the accessibility, coner-ns <strong>in</strong>herent <strong>in</strong> any paperbased
system, Vote-by-Mail systems provide unique, physical benefits for voters
sith certa<strong>in</strong> disabiittics. particularly mobility impairments. These arc the only
systems that do not require travel to a poll<strong>in</strong>g place. The soter completes the vot<strong>in</strong>g
process <strong>in</strong> her own physical ens ironment with more accessible writ<strong>in</strong>g surfaces
or assistisa devi-s tailored to <strong>in</strong>hat voter's specific nccdcs
2. Does the Systern alIlos voters to adjnst the visual presentations
of <strong>in</strong>formatiun conta<strong>in</strong>ed <strong>in</strong> the ballot or <strong>in</strong> vot<strong>in</strong>g <strong>in</strong>structions?
Once the paper ballot is prirted. the size <strong>and</strong> contrast of the text can no longer
be adjusted To circumvent this l<strong>in</strong>ikatiotn, jurisdictions can pr<strong>in</strong>t ballots sith a
range of visual presentations, as aisy vote tally<strong>in</strong>g sysettII can be programmed to
count ballots sith enlarged pt<strong>in</strong>t, dilfetent colors <strong>and</strong> contrast ratios, multiple
languages, or other special options Scanners must be programmed to read such
ballots, <strong>and</strong> the jurisdiction must pr<strong>in</strong>t ansy special ballots <strong>in</strong> advance <strong>and</strong> make
thetis available upon request In addit<strong>in</strong>t, though Votc-by-Matil systems proside
certa<strong>in</strong> advantages fstr voters ssith phystical limitations. voters with visual impairments
may struggle to complete the vot<strong>in</strong>g pOrcCss without assistance I'hcse

161
Stil M.acSIsesL Or vC-SC~AC' ShitSlr 5;CTLM, 5.h;l,x,., .'_X '5.El5l:h USV u551 S '. CC'.$
voters may not be able to read ballot <strong>in</strong>structions <strong>and</strong> c<strong>and</strong>idate choices, or know
what they hase marked. <strong>and</strong> may need to sacrifice their privacy <strong>and</strong> <strong>in</strong>dependence
to cast their ballots <strong>in</strong> a Votc-by-Mail system."'
'3 Does the system allow voteem to adijust the audio presentation of
<strong>in</strong>forma~ition conta<strong>in</strong>ed <strong>in</strong> the ballot or <strong>in</strong> vot<strong>in</strong>g <strong>in</strong>structiorai?
Thc advent of BNIDs which allow votcrs with vision disabilities <strong>and</strong> voters with
limited motor skills to mark a ballot us<strong>in</strong>g an auxiliary tactile control has effec-
Lively supcrseded most efforts to otake paper ballots more accessihle through
audio record<strong>in</strong>gs. i' Without the k<strong>in</strong>d of <strong>in</strong>terface provided by a BMD, many votcrs
with scvere visual or motor coord<strong>in</strong>ation impairmcnts cannot mark a paper
ballot without assistance from another person. The use of "tactile ballots" with
PCOS systems seeks to address this barrier as discussed belov, but such devices
do not allow voters to review their marked ballots.
4. Does the systern provide an audio ottputi'tactile <strong>in</strong>put
alternative access optims to meet tbe needs of <strong>in</strong>dividuals wvith
visnal impaimient- or other difficulties read<strong>in</strong>g?
Paper-based systems do not have audio output or tactile <strong>in</strong>put, <strong>and</strong> without sonie
additional component added to tie system, cannot provide it. This is true for all
of the systems - PCOS <strong>and</strong> Votc-by-Mail - that require the voter to mark a paper
ballot. However, certa<strong>in</strong> small-scale <strong>in</strong>novations have been developed to help people
with visual disabilities to mark paper ballots, <strong>in</strong>clud<strong>in</strong>g "tactile ballots." In
such systems, a paper ballot is accompanied by at, overlay with tactile mark<strong>in</strong>gs
<strong>and</strong> an audiotapc with a description of the ballot so guide the voter <strong>in</strong> mark<strong>in</strong>g
her ballot. The advantage of usitg such add-ons is that the marked ballot is <strong>in</strong>disu<strong>in</strong>guishable
from all of the others <strong>and</strong>, once cast, can be counted <strong>in</strong> the same
mannser.
The International iFoundation for Elemtion Systems has developed a tactile ballot
template that can be used to accommodate voters with visual impairments."'
These templates are curremtly <strong>in</strong> use <strong>in</strong> Rhode Isl<strong>and</strong>, wshich uses optical scan sysic<strong>in</strong>s,
for bl<strong>in</strong>d <strong>and</strong> visually-<strong>in</strong>mpaired voters.'" XWhen used vith a Braille <strong>in</strong>struction
sheet, tactile ballots alows some voters who are both bl<strong>in</strong>d <strong>and</strong> dcaf to mark
their ballots witloti third-party assistanice.
There arc, hoscevcr, sevcral disadvantages. The -sequential audiotapcs force soters
to proceed through the ballot at the raue of the recorded playback, render<strong>in</strong>g
the vot<strong>in</strong>gfpircess slower for voters us<strong>in</strong>g these systems than for voters us<strong>in</strong>g a digital
audio playback. More importantly; bl<strong>in</strong>d <strong>and</strong> ccrta<strong>in</strong> low-vision voters cannot
review the marked ballot, <strong>and</strong> must trust that it is marked correctly or obta<strong>in</strong> thc
assistance of another person so do so, with a consequent loss of <strong>in</strong>dependence
<strong>and</strong> privacy

162
Becausc Votc-by-Mail ballots ane marked <strong>in</strong> the voter's home, she must have any
special assistice systems already available if she wsishcs to vote without assistaocc
For example, a votet might have a ysterm to scane a paper form <strong>and</strong> have it read
back to them. But, as with tactile ballots, voters with severe visual impairments
may not be able to revicts their marked ballots For voters without any assistive
dcvices moreoer, it may be impossiblc to vote without assistancc.
S. Does the system provide controls suitable for voters
wsith liunied f<strong>in</strong>e motor skiilts?
Paper-based systems do not hase cotntols to mark the ballot <strong>and</strong> <strong>in</strong>stead require
the soter to use a pen or pencil to mark it- Such systems are thus <strong>in</strong>accessible to
stiany votets with limited f<strong>in</strong>e motor skills. In additiots, all or these svstems
(ittclud<strong>in</strong>g BMD systems) require the voter to place the marked ballot <strong>in</strong>to alt
optical scanner. Vot<strong>in</strong>g systems tlat require a ballot to be gmasped. tratspolted
across a poll<strong>in</strong>g place, aid fed <strong>in</strong>to a scanner create obsious difflcultics for voters
without f<strong>in</strong>e motor skills.
6. Does the s&,stevt allow s<strong>in</strong>multaneus r uce of audio <strong>and</strong> vi isul
outputs. <strong>in</strong> other syords. for a voter to see <strong>and</strong> hear a ballot
at the Sme tisu e?
Theoretically, lelctiott adm<strong>in</strong>istrators could proside voters seith a scanncr of
some kund that could convert ballot text <strong>in</strong>to audible speech. No such scanier is
currently on the market, hosscver; perhaps because BMI)s secse the same csscnlial
purpose at a lower cost.
7. Does the system allowv voters to <strong>in</strong>put <strong>in</strong>formation usiug a
tactile control device while still receiv<strong>in</strong>g visual, rather than
audio, output?
Unless a votcr can use a tactile paper ballot, this feature is essentially <strong>in</strong>applicable
to papet-based systess sihich atc not amenable to fully tactile controls.
;. Cat, a voter choose <strong>and</strong> chanrge accessihility <strong>and</strong> langs-age
t
options wsithout the assistance of a pol worker?
Unlike a cornputer display, paper ballots cannot be dynamicailv altcred to chattge
the size, color, or language of the text at the toie 'shen a vote is cast.
Aith respect to latiguage options, howecver; if all of the languages used <strong>in</strong> the
prec<strong>in</strong>ct are pr<strong>in</strong>ted on cach ballot, the voter can snake use of any of these
options it a PCOS ot Vote-by-Maii system. If not. she must request her desired
language either at the poll<strong>in</strong>g place (PCOS or BMD) or <strong>in</strong> advance (tVotc-by-
Mail). Large text or other special versions tttust also be requested <strong>in</strong> the same
nsatner

163
! I.is (1'1r5` Q; i':. ItfZ' C -.. V I . Si:G *t, tU- , J5A5 '1 -. cYst
Similarly, if a voter needs to change the format of the paper ballot hc is us<strong>in</strong>g
dur<strong>in</strong>g the vot<strong>in</strong>g pisseess, <strong>in</strong> most cascs he must request a new, blank ballot. For
example, a voter who discovers that she is hav<strong>in</strong>g trouble read<strong>in</strong>g the ballot might
reqtucst a large-pr<strong>in</strong>t vcrsion, if one is available. Similarly. if the voter has already
marked the ballot cnroncously, she must ask for a new balloL Unlike most compurer-based
systems. paper-hased systems require a voter to seek <strong>and</strong> obta<strong>in</strong> such
assistance <strong>and</strong> to discard all work on the orig<strong>in</strong>al ballot.
In a Vote-by--Mail system, request<strong>in</strong>g a new or diflerent ballot can <strong>in</strong>volve a trip
to the elections office, requir<strong>in</strong>g significant effort ott the part of the voter. In
Oregon, howevet; the only state that currently uses such a system, replacement
ballots cait he requested by call<strong>in</strong>g a Loll-free hod<strong>in</strong>e or a County Board of
Elections Office."' 5 If a voter calls more than five days before an election, her ballot
will be sent to her <strong>in</strong> the mail. If a voter calls with<strong>in</strong> five days of an election,
she must travel to a County Board of Elections Offic to pick up her ballot. Such
a trip could prove prohibitive for some disabled voters without transportation.
9. Is the system's auidit function accessib le to all votersW?
Any voter who can see <strong>and</strong> read a paper ballot cats audit the ballot simply by
lookitig at it. Voters with vision disabilities or touble read<strong>in</strong>g may need a
mach<strong>in</strong>e to translate mark<strong>in</strong>gs on a paper ballot <strong>in</strong>to an enhanced visual display
or audible read<strong>in</strong>g of those mark<strong>in</strong>gs. No such sear<strong>in</strong>er. other than the BNID systems
described belosw currently exists.
X HYBRID SYSTEMS
To determ<strong>in</strong>e the accessibility of both hybrid systems analyzed <strong>in</strong> this section
BD antId DRE sw/ VVPT it is best to th<strong>in</strong>k of each bybrid svstem <strong>in</strong> terms of
the systemn architectures they comb<strong>in</strong>e. BMID systems <strong>in</strong>tegrate a computer-based
system with a def<strong>in</strong><strong>in</strong>g feature of paper-bascd Systeimts: namely, oters use a computer
to mark a paper ballot they feed <strong>in</strong>to a scanner to be processed <strong>and</strong> counted.
Similadr, DREs w/ VVPf make use of both computer. <strong>and</strong> paper-based
systems. DREs w/ ''VPFT <strong>in</strong>corporate a paper-based system as a means by which
a voter can verify her selections prior to cast<strong>in</strong>g her vote.
A OVERVIEW OF BMD.
Like a DRE, BMD systems allow a voter to make her selections on a computcr.
BMD systems pr<strong>in</strong>t the marked ballot for the voter, who imust then feed it <strong>in</strong>to a
scanner to he counted BMDs thus provide the significant accessibility features of
a DRE, but still require that voters overcome tte barriers ilherent <strong>in</strong> scann<strong>in</strong>g
paper ballots. Indeed, if the mark<strong>in</strong>g process were the end of the vot<strong>in</strong>g process,
the use of paper ballots coupled sith BMtDs would present no greater barriers to
voters with disabilitics than DREs.

n ANALYSIS OF BMD
164
1. Can the system be physically adjusted to meet
a voter's tecees sueeds?
Onme a BMD pr<strong>in</strong>ts a marised ballot, the system poses unavoidable <strong>challenges</strong> to
voters who cannot transport a ballot across a poll<strong>in</strong>g station. Prior to that po<strong>in</strong>t
<strong>in</strong> the vot<strong>in</strong>g process, hosvsver. soters <strong>in</strong>tcract with a BMD exactly as they would
with a computer-bascd DRE system. The votcr has the same <strong>opportunities</strong> to (a)
adjust the height of thc compuiter screen. (b) Lit or rotate the screen, or (c) remove
the scren <strong>and</strong> <strong>in</strong>put controls from a tabletop surface to hold the system <strong>in</strong> her
lap. ES&S's Automartk <strong>in</strong>cludes a screen that can be tilted upward aid downwasd
, <strong>and</strong> Populex's BMiD svstem. at 15 lbs., can test <strong>in</strong> a voter's lap or bc easily
transported to allow for curbside vos<strong>in</strong>g_"3
2. Does the system allo w voters to sd jnlS the visual presentation
of <strong>in</strong>formation contaissiei its the ballot or <strong>in</strong> vw<strong>in</strong>ss- <strong>in</strong>s tasi tions?
BMDs present all ballot <strong>in</strong>formation <strong>in</strong> an electronic format. In theory, voters can
adjust this electronic ballot <strong>in</strong> all the ways' one can adjust a DRE's presentation
to allow greater access. Both the Automarit <strong>and</strong> Populex B.MDs have high-contiast
clectrontic image displays with a coistrast ratio of 6:1 or greaser a In addition,
both mach<strong>in</strong>es allow for either a black-<strong>and</strong>-white display or a color display
that provides the voter with a means to adjust colors "' Populex provides two font
sizes, one with capital letters of at least 63 mm <strong>and</strong> one with capital letters or
betwcen 3.0 <strong>and</strong> 4.0 mm, both <strong>in</strong> a saiss-serif or similar font.i" The Automark's
screen supports large-font displass <strong>and</strong> foni sizes can be varied by the soter if
elections officials request that this feature be implemented dur<strong>in</strong>g <strong>in</strong>itial ballot
design."' Populex <strong>and</strong> Automark users can also magnifR atty pars of their ballots
by press<strong>in</strong>g a zoom hutton at any time."
3. Does sthe system allow voters to adjust the audio presentation of
<strong>in</strong>fformation cossta<strong>in</strong>cd <strong>in</strong> tshe bllot or <strong>in</strong> vsotisng <strong>in</strong>structions?
Users can adjust the wilume of the Automark <strong>and</strong> Populex BMDs to a maximum
of 105 dIB SPL..'" Volume is automatically reset to a default level after each voter
completes her hallot.'" The Automark BMD also allows soters to accelerate its
asidio record<strong>in</strong>g its order to expedite the eot<strong>in</strong>g process. t0
4. Does the system provide an audio ouetput/tactile <strong>in</strong>put
alternative acces'. option to mneet the needs of <strong>in</strong>diviluals with
vistral impairments or other difficulties read<strong>in</strong>g?
Both the Automark <strong>and</strong> the Populex RMIs come with ATIs <strong>and</strong> have dual switch
<strong>in</strong>put capabiiitics." Ott the Automark's All, four blue arross keys are used to
mow. between choices <strong>and</strong> surround a blue square button that is used to make
selectiots. All buttons ate also labeled <strong>in</strong> Braille.4' Populex provides a modified

165
r '.Ml:R.,::> oN St (55s, rS , JSASJIITV. COSY
45
calculator keypad as its A For Fo.' voters who cannot usc a st<strong>and</strong>ard ATI, thc
Automark also provides dual switch <strong>in</strong>put capacity."'
5. Does the systemt provide controls suitable for voters
with liuited f<strong>in</strong>e motor skill,?
BMDs allow voters with himited motor skills to mark their ballots withotit the
assistance of an aide or poll worker. Still, voters who need BMDs to mark their
ballots ofien Lack the dexterity necessary to complete the vot<strong>in</strong>g process <strong>in</strong>dcependently
once the ballot has been marked. Voters must retrieve their ballots
front a BMD. tavel Lo a scumn<strong>in</strong>g station, <strong>and</strong> feed their ballots <strong>in</strong>to a scanner.
Thus, many voters with limited motor skills may require a poll worker or aide to
h<strong>and</strong>le these tasks, amd this assistance could dim<strong>in</strong>ish their privacy <strong>and</strong> <strong>in</strong>depcndence.
BMD manufacturers have attempted to address the privacy concern by provid<strong>in</strong>g
a cover sleeve that is placed over the, ballot.so If a voter cannot dutch a ballot
well enough to place it <strong>in</strong> a plastic sleeve, another person can <strong>in</strong>sert the blank ballot
ilsto a privacy slve for the voter at the start of the vot<strong>in</strong>g prncess The top
two <strong>in</strong>ches of the ballot protrude from the cover. The person who provides such
assistance can then proceed with the voter to the BEID, <strong>in</strong>sert the two-<strong>in</strong>ch overhang
<strong>in</strong>to the fecder slot, <strong>and</strong> allow the mach<strong>in</strong>e to draw <strong>in</strong> the unmarked ballot.
The prisacy sleeve is left hang<strong>in</strong>g off the lip of the feeder slot <strong>and</strong>, once a voter
has f<strong>in</strong>ished mark<strong>in</strong>g the ballot, the BlfD automaiucally <strong>in</strong>serts the marked ballot
back <strong>in</strong>to the privacy sleevc.
At that po<strong>in</strong>t, the person who is assist<strong>in</strong>g the voter can transport the covered ballot
across the poll<strong>in</strong>g place to a scanner, <strong>in</strong>sert the, front two <strong>in</strong>ches of the ballot
<strong>in</strong>to the scanner, <strong>and</strong> allow die scanner to draw <strong>in</strong> <strong>and</strong> count the voter's ballot.
Accord<strong>in</strong>g to ES&S <strong>and</strong> Vogue's representatives, at no po<strong>in</strong>t will that person sce
any of the mark<strong>in</strong>gs on the voters ballot. ' Although cover sleeves may safeguard
a voter's privacy such protection could come at a stiff price for jurisdictions-
Manag<strong>in</strong>g the usc of privacy sleeves places a high btrden on poll workers. Not
only must workers manage the distribution of sleeves, but they must also shadow
any voter who needs a skleve through every step of the vot<strong>in</strong>g process. Nor does
the privacy slmve restore the <strong>in</strong>dependence lost by the voter who cannoL complete
the vot<strong>in</strong>g process without assistance.
S. Does the system allow siulnstaneous use of audio <strong>and</strong> visual
outputs, <strong>in</strong> other ivords, for a voter to see <strong>and</strong> hear a ballot at
the same time?
This feature is asailahle on the Automark <strong>and</strong> Populcx BMID systems. "

166
7. Does the systexat allow voters to <strong>in</strong>put <strong>in</strong>formation
us<strong>in</strong>g a tactile control deviec while still receiv<strong>in</strong>g visual,
rathec than audio, outpaet?
This feature is available on die Automanrse'
8. Can a v-ter choose <strong>and</strong> change accessibility <strong>and</strong> language
options <strong>in</strong>depeusdesitiy vitshott the assistance of a pill svorker?
Tbe Populex system allows the voter to magnifv text <strong>and</strong> adjust the audio
presCttation at any timc."' The Atotomark allows voters to adjust the audio presentation
at any time, <strong>and</strong> a hutton on its touch-sceten allows voters to switch
betwecn two font sizes or magnifv tecxt."
9. Is the systenm's -audit function accessible to all voters?
Both the Automark <strong>and</strong> Populex BMDs allos' voters to review the marks on their
ballots. Accord<strong>in</strong>g to Vogue <strong>and</strong> ES&S representatives. the Automark BMD is
sold with a st<strong>and</strong>ard scanner that reviews the darkened hubbles on the ballot's
face atd translates those marks <strong>in</strong>to an enhanced visual display or an audio retsderitg
of a voter's choices.`' A soter need only re<strong>in</strong>sert her ballot to activate this
featurc.' 5 ' The Populex BMD pr<strong>in</strong>ts its marked ballots with a barcode that reflects
a voter's selections."" Voters cats swipc this barcode ussder a scanner that conserts
its contents <strong>in</strong>to an audio outplt that can be revirwed with headphones or on an
enhanced sisual display. To activate thcsc featuress, a votcr needs only the visual
<strong>and</strong> physical dexterity to swipe her marked ballot uttder Populex's scatsser. For
voters with limited vision or limited f<strong>in</strong>c osotor control this F<strong>in</strong>al step may prove
difficult <strong>and</strong> require assistanee to accomplish when citler system is used.
Mt OVERVIEW OF DRE w/ VVPT
While DRFs s/ VV'PT provide the accessibility benefits of a compttter-based
system, the votcr must be able to read (or hear) the contests of the VWVPT to verify
her seiectiots prior to cast<strong>in</strong>g her vote For a votcr with limited vision, the
VVPT cannot be easily pr<strong>in</strong>ted <strong>in</strong> a large-font for two psiteiple reasons. First, <strong>in</strong>
cena<strong>in</strong> models, a VVPT pr<strong>in</strong>ts itto a hard case of a lixcd size that may not
accommodate a V\VPT made larger by a larger font size. Second, hallots pr<strong>in</strong>ted
<strong>in</strong> a large-font by mach<strong>in</strong>es like the ones once manufactured by Accupoll. wshich
pr<strong>in</strong>ted out the VVPT on loose paper from an <strong>in</strong>sijet pr<strong>in</strong>tcr are, by def<strong>in</strong>itioss,
longer than othlr ballots' This may sacrifice the privacy of the voter's ballot selections
because the large-font ballot's length would render it immediately distdnguishable
from other ballots. ' For these reasons, voters with sisual impairments
may benceit from reviesw<strong>in</strong>g the VVPT sia audio or on an enhattced electrotsic
visual display so as to avoid the pitfalls of a large-pr<strong>in</strong>t ballot.

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Of ZMtOC..A.C: 0r;J St 5 STE C . Ct5 552~i Y.r: UiSJTLItrV. CSl
As discussed below, technologies arc just nowv be<strong>in</strong>g made available to allow bl<strong>in</strong>d
votcrs to read such VVPTs by translat<strong>in</strong>g their text <strong>in</strong>to audio. In the spr<strong>in</strong>g of
2005, Accupoll relcased its version of a barcode scanner that *was tnounted beside
the DRE, read the VVPT barcodc produced by the pr<strong>in</strong>ter attached to the
Accupoll DRE, <strong>and</strong> translated it <strong>in</strong>to audio. iS Accord<strong>in</strong>g to its representatives,
Sequoia plans to release a similar mechanism early <strong>in</strong> 2006. ' Scann<strong>in</strong>g tcchnology
ror VVPTs is still <strong>in</strong> its nascent development phase; it will be several years
before thorough usability test<strong>in</strong>g determ<strong>in</strong>es the cefficacy of these scanners <strong>and</strong>
their technology is f<strong>in</strong>e-tuned.
gmn ANALYSIS OF DRE wl VVPT
1. Can the svstem be physically adjusted to meet
a voter's aceess needs?
To voters with disabilities that do not relate to their vision, DREs w/ VVT providc
essenitially the same physical adjustability as DREs, discusscd already It is
iMportartl to note, however, that if the paper record (iL., the VVPT) must be read.
beh<strong>in</strong>d a transparent cover as <strong>in</strong> most models, the position of that paper often
cannot be changed. A voter with a narrow field of vision may need to reposition
herself to see the paper record, plac<strong>in</strong>g the computer screcn <strong>and</strong> possibly the controls
out of reach for a time.
2. Does the system allow voters to adjust the sisual presentation
of irtformation conta<strong>in</strong>ed <strong>in</strong> the ballot or <strong>in</strong> vot<strong>in</strong>g <strong>in</strong>structionss?
As with physical adjustments, DREs w/ VVPT systems can be adjusted just as
DRE systems, except it that portion of the vot<strong>in</strong>g process that <strong>in</strong>volves verification
by the voter of her ballot. In all models, the pr<strong>in</strong>t on the VV'TT record is of
a fiLed size <strong>and</strong> appearance <strong>and</strong> is not subject to modificatiots by the voter at any
timc. One system, Accupoll's AVS 1000, used to pr<strong>in</strong>t the voter's selections on a
ful-sized sheet of paper (rather thatt a small strip) that a voter could h<strong>and</strong>le <strong>and</strong>
br<strong>in</strong>g closer to her facc,"
VV'PT systems matnfactured by Diebold, <strong>and</strong> ones once manufactured by
Accupoll, offer an additional display option that may be helpful to voters with
cognitive or learn<strong>in</strong>g disabilities. In those systems, the sallot screen atsd the
'VPT arc displayed simultaneously on a DRE's screen to allow Ibr a sidc-by-sidc
visutal comparison of the two images, thereby simplify<strong>in</strong>g veriftcation Ibr voters
who have difficttlties readitg rows of itsformation on a pr<strong>in</strong>ted page.
3. Does the system allow voters to adjust the audio presentaion of
<strong>in</strong>forrnation conta<strong>in</strong>ed hi the ballot or <strong>in</strong> vot<strong>in</strong>g <strong>in</strong>structions?
Last spr<strong>in</strong>g, Accupoll <strong>in</strong>troduced an electronic scanner that, accord<strong>in</strong>g to company
representatives, cosuld read back the text of a WFVPT to a voteris" Voters
could adjust tde speed <strong>and</strong> volume of the Accupoll scanner's playback. The ceec-

168
tronic scanncr rested next to a DRE. Each vVPrT pr<strong>in</strong>tcd by the Accupoll DRE
conta<strong>in</strong>ed a harcodc of the voter's selections, as well as a text version of thosc
selections. A voter thus had to grasp the NVPT <strong>and</strong> swipe it under thc scanncr lo
serify her vote. Accupoll asserted that given the proximity of the scanner to the
vot<strong>in</strong>g mach<strong>in</strong>e, bl<strong>in</strong>d votcrs should have had no trouble detect<strong>in</strong>g the existence
of a scanner with their h<strong>and</strong>s <strong>and</strong> suecessfuily complet<strong>in</strong>g the swip. In theory,
the only voters who ssould not htase beett able to verify their votes without assistance
would have been voters with both physical <strong>and</strong> sisual impairments. As of
now, the barcodc scanners otice offered by Accupoll <strong>and</strong> promised by Sequoia are
the only means for a voter to hear, rather than see, the contets of their VVPTt.
or course, only rigorous tisability test<strong>in</strong>g will be able to verify these predictiois.
4. Does the systera provide usw audio output/tactile <strong>in</strong>put
alternataie access option to meet the needs of isidividuals ssith
visual iunpa<strong>in</strong>snents or other difficulties read<strong>in</strong>g?
Fvcry DRE w/ X'VPV' can be outfitted with an rTI. If a voter must take action
<strong>in</strong> response to rcview <strong>in</strong>g a VVFT, she can do so by usiug such an ATI.
5. Does the swstcrm provide controls suitable for voters
with limited fuie notor- skilN?
As long as voters have the visual facility to see a ballot <strong>and</strong> aue provided svithl an
ATI. DRFs sw/ 5VI'Ps are idly accessible to sich voters
tl. Does the system allow simniultaeous use of audio <strong>and</strong> visual
outputs, itn other words, for a votcr to see aid hear a ballot at:
the sarne tiene?
DREs s8 VYPT allos the voter to see <strong>and</strong> hear the selections simultaneously
dur<strong>in</strong>g the ittitial phase of the vot<strong>in</strong>g process. Once the voter reaches the po<strong>in</strong>t at
svhich she must vcrify her vote by resiew<strong>in</strong>g the NVVPT. however, the audio
optiotas are l<strong>in</strong>sited. As noted already, Accupoll offers audio render<strong>in</strong>g of VVPTs.
<strong>and</strong> Sequoia usight soon follow suit
7. Does the system allow s<strong>in</strong>mtltaneous use of visual displays <strong>and</strong>
taiCtile <strong>in</strong>sput ConIrols?
As long as a DRE w/ VVPT <strong>in</strong>cludes a set of auxiliary tactile controls, <strong>and</strong> the
controls are programmed to <strong>in</strong>put responses dur<strong>in</strong>g the VVP'T reviess process,
VVPT systems cats facilitate the simultaneous use of visual displays <strong>and</strong> tactile
iupstt controls
8. Can a voter choose antd change accessibility <strong>and</strong> language
options <strong>in</strong>dependentrlv without the assistance of a poll iorker?
For DREs w/ VVIPT, features selected for the <strong>in</strong>itial conmputer-based portion or
the vot<strong>in</strong>g process (eg. largc-p<strong>in</strong>tt or language optitns as well as audio options)

OCR fonts are st<strong>and</strong>ard
monospaeed fonts desgned for
'optical character recognition'
on electronic devices.
such as scanners
169
51 M5t.5~.5' C~vS Lta S;AS. Sr., .Ci5 SrMVI i S SiSrt QOi;55,
are not carried over <strong>in</strong>to the voter's verification of the paper record. In the latucr
stage of the process, as diucussed alrsady. the only accessibility feature that has
been on the markct <strong>and</strong> may be <strong>in</strong> the future is a barcode reader that translates
the paper record's contents <strong>in</strong>to audio speech lor verification.
-VVPT could also encroach on the priacy of those voters wsho choose a language
other than English to vote. In order for a voter to verify her ballot, the paper trail
may need to be produced <strong>in</strong> her language of choice. This woltd reveal a special
languiage choicc o ithe pr<strong>in</strong>tout names ol' raccs would not be pr<strong>in</strong>ted <strong>in</strong> English
- <strong>and</strong> if dte selection of a latnguage other than English is rare <strong>in</strong> a particular
prec<strong>in</strong>ct, a %oter's privacy could be compromnised should ollicias review ballots
dur<strong>in</strong>g a recount. Electiot officials could request that mach<strong>in</strong>es be cotifigured to
pr<strong>in</strong>t ecery VVIIl' with labels written <strong>in</strong> both Etiglish <strong>and</strong> all other available latguagcs.
but this could require a sharp <strong>in</strong>crease <strong>in</strong> paper use <strong>and</strong> cost <strong>and</strong> may be
<strong>in</strong>leasible for other reasons. To date, tic company has preeprogrammcd a
machiie to do so.
9. Ishc s lhan", audit fitnctiem arcessible to all oters?
Any voter that can read a VVPT is likely able to v-crify the accuracy of its text.
As noted abovc, voters with uisual impairments may require an rnhanced visual
display or audio render<strong>in</strong>g or their VVPTs <strong>in</strong> order to verify theti. Ideally,
enhanced visual <strong>and</strong> audio render<strong>in</strong>gs of `'V'PTs would be derived from the same
vritten text available to sighted voters. The o<strong>in</strong>ly audio scanner once available For
MVPTs, Amrripoll's, read a barcodc, not pr<strong>in</strong>ted text." It is possible that the barcode.
rather than the text, could be counted as dte official ballot <strong>in</strong> the event of
a recount. In states where this proves true, soters with visual impairments who
use a scanier likc AccupolJ's will avoid verify<strong>in</strong>g selectiots that do not reflect the
ballot of record <strong>in</strong> an election.
Accessibility experts have suggested two alternatives to Accupoll's barcodc scannecr
First, certa<strong>in</strong> scanners can read text pr<strong>in</strong>ted <strong>in</strong> OCR fonts, <strong>and</strong> these scantiers
could prove helpful <strong>in</strong> read<strong>in</strong>g VVPTs to voters. Scanners underst<strong>and</strong> each
Icttet; convert letters <strong>in</strong>to words <strong>and</strong> create a spokcn version of a written word.
VVPI' pr<strong>in</strong>ters could be programmed to use OCR fbnls - <strong>in</strong>deed Arcupoll's
pr<strong>in</strong>ters once did <strong>and</strong> OCR scanners could be provided, 1 Second, some pritiers
can read the words they produce, <strong>and</strong> VI-PTs could be outfitted with such
pr<strong>in</strong>ters. Pr<strong>in</strong>ters Lake note of each character they write <strong>and</strong> can sound out those
characters <strong>in</strong>to wvords. The accuracy of these audio rendenrhgs improves when
there arc l<strong>in</strong>ited options for what a vord could be, such as a when a prititer is
choos<strong>in</strong>g between two c<strong>and</strong>idates <strong>in</strong> a racec'°

E1 OVERVIEW OF TELEPHONE-BASED SYSTEMS
170
In telcphone-based vot<strong>in</strong>g systems, voters use a touchtonec phone to dial a phone
number that connects voters to an audio balloL Voters press specific telephone
keys to <strong>in</strong>dicate their sclcections, <strong>and</strong> the system's softwvare <strong>in</strong>terprets the tones of
those keys to record choices," Telcphone-based systems can be designed <strong>in</strong> two
ways. In one scenario, states can configure their Vote-by-Phonc l<strong>in</strong>es to accept
calls from any phone so that votcrs can cast ballots from home us<strong>in</strong>g their own
equipment. Alternatively, states can limit <strong>in</strong>com<strong>in</strong>g calls to a discrete set of
phones housed at poll<strong>in</strong>g places In this case, voters must travel to the polls to vote
<strong>and</strong> use phones provided by the state. Unless carefully designed. these telephotes
can be Large <strong>in</strong>accessible to voters with disabilities
'lhc only existent Votc-by-Phone systems, Ness Hampshire's <strong>and</strong> Vermont's. followv
the latter modcL"' Thc great accessibility promise of Vote-by-Phone systems,
however, lies <strong>in</strong> the possibility of allow<strong>in</strong>g voters to vote from home on Election
Day. At home, voters could use customized phones already configured with an)'
special keypads or other features the)' might need. Perhaps most importantly vot<strong>in</strong>g
from home would save voters fro<strong>in</strong> travel<strong>in</strong>g to a poll<strong>in</strong>g place. Many disabled
votess cannot drive <strong>and</strong> could escape the eumbersome task of arrang<strong>in</strong>g for
transportation on Election Day if they could vote from home. In addition, if all
voters voted by telephone, states ssould not need to <strong>in</strong>vest <strong>in</strong> render<strong>in</strong>g old poll<strong>in</strong>g
places accessible to votcrs <strong>in</strong> whecechairs. Thus, when comb<strong>in</strong>ed -with a XVotc-by-
Mail system for voters with hear<strong>in</strong>g impairments. Vote-by-Phone systems could
level the play<strong>in</strong>g field by' giv<strong>in</strong>g all voters the same remote vot<strong>in</strong>g experience.
Unfortunately; all telephone-based systems present significant barriers to votcrs
with hear<strong>in</strong>g impairments First, the voter's abilirt to vote by phone depends
upon the quality <strong>and</strong> nature of their adaptisv equipment that facilitates full use
of the telephon.c Although many voters ,with hear<strong>in</strong>g impairments possess such
technology, many voters do not. In theory; jurisdictions us<strong>in</strong>g Votc-by-Phonc systems
that require voters to oire firom home could obta<strong>in</strong> Text Telephottes
("'FMs" or "TDDs") to connect wsith voters that have 'I'TYs <strong>in</strong> their homes."'
Only a small proportion of voters who have trouble hear<strong>in</strong>g have access to 'I-lAs,
however, <strong>and</strong> Votc-by-Phone systems would need to be used <strong>in</strong> conjunction with
Votc-by-Mail systems to accommoclate many of these sotres.
At present, Votc-by-Phonc systems do not offer TY'-capabilitics as an option on
their vot<strong>in</strong>g systems."' For now, lItspire's Vote-by-Phone system thus comes vith
"a full-featured Election Managemesit System (EMS) wshich enables the jurisdiction
to configure <strong>and</strong> pr<strong>in</strong>t blank paper ballots. Thcse blank ballots could be
mailed to. or made available at the poll<strong>in</strong>g sites for, those who are deaf <strong>and</strong> cannot
use the telephone."'0 'Ibhis option may not, hoswever. aid those voters with
sight <strong>and</strong> hear<strong>in</strong>g dtfftculltics.

171
i~ -41 4;.Ry<strong>in</strong>: IN C' ro- NOCP.Cf: VOT!::'.~' ,STE M -IiCUX~P'. CCt[S~Si!;' U< ABLIl f . CO SI
Second, whilc Votc-by-Phone systems may provide significant accessibility benclits
to bl<strong>in</strong>d voters accustomed to respond<strong>in</strong>g to audio output us<strong>in</strong>g a st<strong>and</strong>ard
phone keypad. this mtchaanisrn may prove cumbersome <strong>and</strong> unfamiliar for other
voters with other accessibility needs: older voter', who haws vision impairments
<strong>and</strong> arc also hard of hear<strong>in</strong>g may not be able to navigate a phonc system with
case. Voitcrs with limited mobility may not be able to use thc telephone keypad
unless it is specially designed for stich voters.
tl ANALYSIS OF TELEPHONE-BASED SYSTEMS
1. Can the systemn he physirally adjusted to meet
a oter's acress nerds?
St<strong>and</strong>ard telephones have a fixed cord length or range of operation, fixed keypad
configuration, <strong>and</strong> fixed keypad size. If states <strong>in</strong>sist that voters use telephones provided
at a poll<strong>in</strong>g place, they may not be physically adjustable unless asosiliary
I-atures are provided. If voters east ballots from their homes, however, they can
use their personal phones. In all likelihood, these telephones will already be configured
to accommodate the voter's needs <strong>and</strong> would not require physical adjust-
menits.
2. DIoeis the system allow voters to adjust the visual presentation
of <strong>in</strong>sfoenation conta<strong>in</strong>ed <strong>in</strong> the bailot or <strong>in</strong>- vot<strong>in</strong>g <strong>in</strong>strsserions?
All tcecphonc-based svstemss use ass audio, not a visual, ballot
3. Does the s-stemn allow voters to adjust the audio preesentation of
<strong>in</strong>sor'mation conta<strong>in</strong>ed <strong>in</strong> the ballot or <strong>in</strong> vot<strong>in</strong>g iusstructions?
Although existent Vote-by-Phonse systems <strong>in</strong> Vermont <strong>and</strong> New lanspshire do
not allow voters to adjisst the ballot's volume <strong>and</strong> speed, designiers could program
audio ballots to do so. In addttion. many phones allow users to adjust a receivcr's
volutne levels.
4. Does the system provide an audio outpultfttle <strong>in</strong>put
aiternative access optios to meet the neeths of iodi,,iduals with
visual impairments or other difficulties read<strong>in</strong>g?
All Vote-by-Phone systems transmit <strong>in</strong>formation <strong>in</strong> audio form <strong>and</strong> ask voters to
<strong>in</strong>put ittformation us<strong>in</strong>g tactilely discerrible controls. However, Votc-by-Phone
sy-stems allosw voters to access atsd enter <strong>in</strong>formation <strong>in</strong> ossly one way. Voters mnstt
enter their selectors us<strong>in</strong>g a st<strong>and</strong>ard telephone keypa tt " t Accord<strong>in</strong>g to represenitatives
of IVS, muakers of Vermont's Vote-by-Phone system, if a voter cannot
use a st<strong>and</strong>ard teclphonc for some reason, no altcrnativc systcm cxists for
<strong>in</strong>putt<strong>in</strong>g ballot <strong>in</strong>formation tis<strong>in</strong>g melephonesm'"

172
S. Does the system provide controls suitable for voter,
with limited l<strong>in</strong>e motor skilL..?
A Vote-by-Phone system could be designed <strong>in</strong> two ways. In one scenario, a voter
casts her ballots from home us<strong>in</strong>g her personal phone. In this case, the <strong>in</strong>tcrfacc
for a phone system is, by def<strong>in</strong>ition, the voter's own equipment <strong>and</strong> should be
accessible to her.
In a second scenario, curremtly <strong>in</strong> practice <strong>in</strong> Vermont, the voter uses a phone to
cast the ballot at a poll<strong>in</strong>g station where phones have been provided. Many voters
with limited motor skills need a specially designed phone with an <strong>in</strong>terface
that is more accessible than a st<strong>and</strong>ard 12-key keypad. Indeed, these voters may
need telephones to have an altemrnatie twitch <strong>in</strong>put available or telephone end
units adapted to their particular needs. As long a voter can access the unit, any
adaptive technology which is able to replicate the tones of a keypad should be
able to operate the Vote-by-Phoric system. Accord<strong>in</strong>g to IVS, some of these adaptive
technologies cannot meet this requirement, however; because they do not
replicate the "dist<strong>in</strong>ct sounds generated by the telephone when its buttons are
pressed.""'
6. Does the systeen allow sirltaneosis use of audio <strong>and</strong> visual
outputs, its other words, for a voter to see <strong>and</strong> heat- a ballot at
tise -same timed?
hleephone-based systems cannot currently provide surh a feature
7. Does the asystens allow si ttultaneous use of visual displays
ansd tactile <strong>in</strong>put cottrols?
Telephone-based systems cannot currently provide such a feature.
8. Can a voter choose accessibility <strong>and</strong> langguage options
it'depesidently without the assistance of a poll wvorker?
Vote-by-Phonc systems have a limited range of acceibility options because they
do not have a visual display atid are only as accessilse as the telephone system
used by the voter. Aus discussed already. this can be prohibiie for voters with
hear<strong>in</strong>g impairments who must, <strong>in</strong> massy cases, vole by mail. Nevertbeless, these
systems do protect the pri%-acy <strong>and</strong> <strong>in</strong>dependenice of those voters who can use the
telephone through assismcv desires or other mcans.
Like a computer <strong>in</strong>terface, language options can be made a part of the <strong>in</strong>itial
steps of the vot<strong>in</strong>g process <strong>in</strong> telephone-based systems, allow<strong>in</strong>g <strong>in</strong>dependent <strong>and</strong>
private seleesion. Elction officials should ask that this flexibility be implemented
dur<strong>in</strong>g <strong>in</strong>itial ballot design.

173
711 (.''Si I;.'. ', n r t r >a vo:,w v:r srm.i 5'tt'-r; %.-Sr,,1< vsA El IL YCsr ;c
9. Is the systern's audit function accessible to aU voters?
Votc-by-Phonc systems produce a papar ballot, <strong>and</strong> audit<strong>in</strong>g thi% ballot presents
manvy of the same accessibility concerns as NIIPTs. Once a voter has fitished
cntrr<strong>in</strong>g her choices, thc systcnm pr<strong>in</strong>ts a marked paper ballot cithcr to a central
location, such as the Secretary or State's oflice, or at thc prec<strong>in</strong>ct itself This paper
ballot is trcatcd as the ballot of record.'
In the central location scenario, the voter cannot sec her marked ballot. However;
ballots are pr<strong>in</strong>ted with a barcodc that conta<strong>in</strong>s a votcr's selections. ''his barcode
can be scanned as it pr<strong>in</strong>ts at the central office, translated <strong>in</strong>to an audio ballot,
<strong>and</strong> read back to the voter over the telrphone. The voter can either reject or
accept tier ballot after hear<strong>in</strong>g the barcode's contents. It jurisdictions where
paper ballots, not barcodcs, arc the ballot of record, voters would review a proxy
for a ballot, tatiher than the physical test that would be counted <strong>in</strong> ats election.
By contrast, when ballots are pr<strong>in</strong>ted at pirc<strong>in</strong>cts, sighted voters cali read the tcet
pr<strong>in</strong>ted on their ballots <strong>and</strong> ecrify its accuracy Like wvih barcodc scanners used
with VVPIs, voters with sision impairments must have the visual <strong>and</strong> motor
facility to use a barcode scatnner to translate their ballots <strong>in</strong>to an audio record<strong>in</strong>g.

KEY FINDINGS
174
Our report reached several conclusions about the accessibility of cach system:
3 COMPUTER-BASED SYSTEMS: DRES AND BMDS
Aec- iuility of nt opuLer-liased Systeris. Because computcr-based <strong>in</strong>tcrfaces
allow voters to tailor a range of features to their <strong>in</strong>dividual needs
<strong>in</strong>stantly <strong>and</strong> without assistance from another person, DREs <strong>and</strong> BIIM0 offer
the greatest acecssibility to voters with disabilitics, particulariy those witb
visual impairments.
Autdio assd Enrhatedl Vkiusal Di~play Capabilities firr Voter- %sith Visusal
hliqpsqunnwLi: Unlike paper-based sotisg systems that do not provide any
means for voters to hear rather than see <strong>in</strong>structions or ballot <strong>in</strong>formation,
most DREs <strong>and</strong> BMDs allosw voters to bear such <strong>in</strong>formation through headphones
<strong>and</strong> to adjust the volume <strong>and</strong> rate of the audio output. In addition,
several systems provide digitized (ir. real recorded human voice), rather than
consputer-svnthesiaed, speech, <strong>and</strong> use different voices for <strong>in</strong>structions <strong>and</strong>
ballot selections to expedite comprehension <strong>and</strong> thus the vot<strong>in</strong>g process itself.
For voters with mnild vision impairments who nsight not need an audio ballot,
computer <strong>in</strong>terfaces provide an enhanced visual display that uses bigger <strong>and</strong>
bolder ECXL
R Al-rnativr Input Desices R r VoteSrs iLh Niotir/CG-ord<strong>in</strong>at<strong>in</strong>n lmrpairnicns:
Navigation of computer screens often requires that voters use controls that
require haud-ey-coord<strong>in</strong>ation - a touch-screen or a mouse - to select their
choices. For voters without the use of their h<strong>and</strong>s or with severe motor
impediments. a touch-screen cannot be tued to make selections at all. In both
cases, there must be an alternative <strong>in</strong>put control availablc 'I'he most popular
computer-based systems already provide tactilely discernable <strong>in</strong>put conitrols,
often as part of the Audio Tactilc Interface designed for voters who cannot
sce. Frqu-ntdy these tacetile controls can be used by <strong>in</strong>dividuals with mobility
<strong>and</strong> coord<strong>in</strong>ation disabilities so long as the visual display rema<strong>in</strong>s active
wshen those contmrols are engaged. For those voters who cannot use their h<strong>and</strong>s
at all to <strong>in</strong>put selections, certa<strong>in</strong> mach<strong>in</strong>es <strong>in</strong>dude a -dual switch <strong>in</strong>put
option," a jack for a voter to <strong>in</strong>sert their own dual switch <strong>in</strong>put devicc. Voters
can, for example, attach a sip-<strong>and</strong>-pufr de-ice, which allows the voter to <strong>in</strong>dicate
choices by apply<strong>in</strong>g pressure to a straw or any other dual switch comrpatible
with the scann<strong>in</strong>g of the vot<strong>in</strong>g system.

175
5' St ikV C'! :!i'-. CN;.i i 5 5 i '. ,VCV S5ii 5Y 05450.0. Csict
iS PAPER-BASED SYSTEMS
twa PCOS
lmitcd Flhxibilise io MWet Spr- ial Needs: First, with PCOS <strong>and</strong> Voic-by-
Mail systems, the paper ballot itself must be pr<strong>in</strong>ted prior to Election Day
<strong>and</strong> thus cannot be adjusted to address the needs of a particular voter. In
addition, despite magnify<strong>in</strong>g lenses <strong>and</strong> other assistive devices provided by
elections officials, voters with vision impairmcnts still may have grcater diffictiltics
read<strong>in</strong>g the paper ballot than they wouldI read<strong>in</strong>g a computer screen
that allows fune contrast <strong>and</strong> size adjustments to be made, Paper-based systems
do not hascatidio otttput or tactile <strong>in</strong>put, <strong>and</strong> without some additional
component added to the system, cannot provide iL
: '1s. tis alaloi- tbor XLmcrs wish \Viual impair<strong>in</strong>cus. CGertait small-scale <strong>in</strong>tovations
have been developed to help people with visual disabilities to mark
paper ballots, <strong>in</strong>clud<strong>in</strong>g "tactile ballots.' However, many sioters with visual
ttipairments still cannot irview the marked ballot <strong>and</strong> must trtst that it is
marked correcty or obtait the assistance of another person to do so, with a
consequent loss of <strong>in</strong>dependence <strong>and</strong> privac.s
; bieCessible n
\llillht' 11Ist1 s1 iUnts' If madc available at all, auditory <strong>in</strong>structions
Ior paper-based systems are presently produced by a cassete tuach<strong>in</strong>e.
ratlher tlats b y a computer-based audio system In practice, voters witlh visual
impairments can scitier change the specd of the audio nor skip forward
or backward dur<strong>in</strong>g the votitg process. More utiportantly, such svoers cannot
revicw their ballots once thevy have been marked wvithout another person
read<strong>in</strong>g the consents to them.
5l lapct Balmcts Ina(ccessibIc to Voltrs with Motor (: oat<strong>in</strong>n nmrpatirnionos:
Paper-based systcms that require voters to mark the ballot manually present
significant <strong>challenges</strong> to voters with either or both coord<strong>in</strong>ation <strong>and</strong> vision
problems. Paper-bascd systems do not have "controls" to mark the ballot <strong>and</strong>
<strong>in</strong>stead rcquuc the vot.r to usc a pen or pencil to mark it. Such sys ems arr
thts <strong>in</strong>accessible to many soters with limited fuie motor skills.
SCesriost- Isiucessiblc io fifn) 5n \iters istit Visualm N.obiliy, or 5louir
Coord<strong>in</strong>stiliOn Insp1IIrni unts: Systems that require voters to feed their marked
ballots <strong>in</strong>to a scanner present barriers not only for voters with impairments
relatitg to vision, titobility or coord<strong>in</strong>atiot, but even to noni-disabled voters
swho have coord<strong>in</strong>ation dilliculties.
OtS Vote-by-hNil Systems
Vote-by-vIail systemi providc unique benefits for voters with itobilityitmpait -
mcnits. These arc the only systetis that do not require travel to a pol<strong>in</strong>g
place: the votet cotupletes the votitg process <strong>in</strong> her ossn physical cnviron-

176
ment with more accessible writ<strong>in</strong>g surfaces or assistive devices tailored to that
voter's specific needs. Nevertheless, voters with visual or motor coord<strong>in</strong>ation
impairments still may be unable to vote <strong>in</strong>dependently us<strong>in</strong>g a paper ballot
of any k<strong>in</strong>d, <strong>in</strong>clud<strong>in</strong>g a mail-<strong>in</strong> ballot.
G HYBRID SYSTEMS
DRl:,s ,' W'PT
a' Whilc DREs w/ VVTT prosidc thel accessibility benefits of a computerbased
system, voters with visual impairmeists are. presently unable to review
<strong>and</strong> verily the contents of die VVPT prior to cast<strong>in</strong>g their votes. Vot<strong>in</strong>g system
manufacturers hase just started to release scanners that read back the
text of a VVPT to a votet; <strong>and</strong> those technologies are as yet unproeis. In
addition, despite assuraltces from the manufacturer that visually-impaired
voters should have iso trouble detect<strong>in</strong>g the existence of a scanner with their
h<strong>and</strong>s <strong>and</strong> successfully scann<strong>in</strong>g their VVPTs, voters who have both visual
<strong>and</strong> motor impairments are likely to need assistance <strong>in</strong> us<strong>in</strong>g such technology
to trad their marked ballots, Of course, only rigorous usability test<strong>in</strong>g will
be asle to verify these predictions.
t BMIlb
B BMDs greatly augment the accessibility of paper-based systems. Indeed, if
the mark<strong>in</strong>g process were the cnd of the vot<strong>in</strong>g process, the use of paper ballotS
coupled with BMDs would present no grcater barriers to voters with disabilities
than DRiE Moreover, both the Automark <strong>and</strong> Populex BMDs allow
visually-impaired voters to res icw the marks on their ballots ott an etthanced
visual display or <strong>in</strong> audio Format. To activa these features, a voter neceds
only thc visual <strong>and</strong> physical dexterity to use the scanner For voters with limited
vision or limited f<strong>in</strong>e motor control, this may prove difficult <strong>and</strong> require
assistance to accomplish.
s TELEPHONE-BASED SYSTEMS
0 Prec<strong>in</strong>ct-based Votc-by-Phone systems provide no greater accessibility than
DREs or B1MDs, <strong>and</strong> such systems may remail <strong>in</strong>accessible to many voters.
In particular, telephone-based systems may provc cumbersome for people
with limited f<strong>in</strong>e motor control <strong>and</strong> hear<strong>in</strong>g impairments, especially thosc
swho have poor speech discr<strong>in</strong>itiatiot, or who rely ott lip-read<strong>in</strong>g, text. or
other visual cues. lb make a telephone vot<strong>in</strong>g system accessible for these <strong>in</strong>dividuals,
audio signal enlhancemetit <strong>and</strong> a text altcrnative would need to be
availablc Moreover, none of the currently available Votc-by-Photne systems
allows the use of adaptive technologies to assist hear<strong>in</strong>g-impaired voters, such
as TTY phones. F<strong>in</strong>ally. it is unclear to what extent othcr adaptive telephone
end tunis could hc used with current systcrms.

177
,C ACHtINERlY 0; OC :. V(STISC Svrtst 5CtCU'- ACCESSiMU!'. .iiAI M '. (Ss
st The future promise of Votc-by-Phone systems lics <strong>in</strong> the possibility of allow<strong>in</strong>g
Election Day vot<strong>in</strong>g from home, were votcrs could use, customized
phones already conliquird wish any special keypads or other features they
might need. Vot<strong>in</strong>g froto homc would save voters from travel<strong>in</strong>g to a poll<strong>in</strong>g
place. Thus, when comb<strong>in</strong>ed with a Votc-by-Mail system for voters with
hear<strong>in</strong>g impairments. %4ote-by-Phone systems could level the play<strong>in</strong>g rield by
givitng all voters the same remote vot<strong>in</strong>g experience. But the only existent
Vote-by-Phonc systcms, New Hampshires <strong>and</strong> Vermont's, reqitire voters to
vote as a poll<strong>in</strong>g place.

RECOMMENDATIONS
178
This report provides a templatc of key questions <strong>and</strong> prelim<strong>in</strong>ary answcrs to
assess the accessibility of the various types of vot<strong>in</strong>g systems. More significant
test<strong>in</strong>g must be performed to provide fuller answers. Its such assessments, ccctions
officials should keep <strong>in</strong> m<strong>in</strong>d five general po<strong>in</strong>ts:
a Assessments must take <strong>in</strong>to account the specific needs of citizens with multipIe
disabilities. For example, solutions that solve barriers faced by voters with
vissial impairments by provid<strong>in</strong>g an audio ballot do not help a voter who is
both bl<strong>in</strong>d <strong>and</strong> dcaf
'5 To determ<strong>in</strong>e accessibility; officials <strong>and</strong> advocates should exam<strong>in</strong>e each step
a vot<strong>in</strong>g system requires a svoter to perform, start<strong>in</strong>g with ballot mark<strong>in</strong>g <strong>and</strong>
end<strong>in</strong>g with ballot submission. Systems that may pros-ide enhanced accessibiuity
features at one stage of the vot<strong>in</strong>g process may be <strong>in</strong>accessible to the
same voters at another stage <strong>in</strong> that proress.
Accessibility tests must take <strong>in</strong>to acrount a full range of disabilities. When
select<strong>in</strong>g participants for system tests, officials <strong>and</strong> advocates should <strong>in</strong>clude
people with sensory disabilities (eg. vision <strong>and</strong> hear<strong>in</strong>g impairments), peopic
with physical disabilities (c., sp<strong>in</strong>al cord <strong>in</strong>juries <strong>and</strong> coord<strong>in</strong>ation dilficultics),
<strong>and</strong> people with cognitive disabilities (eg.. learn<strong>in</strong>g disabilities <strong>and</strong> developmental
disabilities). Given the ris<strong>in</strong>g number of older voters, officials
should take pa<strong>in</strong>s to <strong>in</strong>clude older voters <strong>in</strong> their participant sample.
0 Al accessibilistv tests should be carried out vith full ballots that reflect the
complexity of ballots used <strong>in</strong> elections. A simplified ballot with only a few
races or c<strong>and</strong>idates may produce mislead<strong>in</strong>g results
z Many features that ensure accessible vot<strong>in</strong>g are new to the market or still <strong>in</strong>
devclopment. As election officials purchase systems today they should obta<strong>in</strong>
contractual guaantees rom vendors that vendors will retrofit their systens
with new accessibiliry features as such technology becomes available, <strong>and</strong> that
these adjustments will be made at little or no extra cost.

ENDNOTES
179
IHp H nrkja VW. Ad, 42 USC. § 1548(.a)(3§(A) (2002).
-e Tmioono of Jamer C. Ickon. Elmtion Atnimcan Centmission , May S. 20014 salble aj
http f/'scat gOn'/dl)c/F'AC 20TnntilOllypdf.
3Id.
Ekction Atsoanme Cornriuion. 1 blir"n Iit; 5Snn Gaidrtntrr mt 4 (2005), ri, t
ltop/1/tct ~ctct./V \.SGfi%20(A tc_1 pdtt. [hrcr<strong>in</strong>idfn ,AG r L VASC f tlat it<strong>in</strong>td May 31.
2060)
6 RAMVA, J2 USC § 5451t(a)43i(.)
? 1AVA, 42U.S.C. §1546 at(3X2).
9 HAVA. 42 UsC. 15l4a318C).
9 HAVA. 42 US.C. 154f1i.l
II Atctrima wilh Ditabililks Act. 12 ;SC. §12132(1990). Tortablitsh avioladtio of T-itl
11 of thy ADA, a pla<strong>in</strong>tiff ttt dntntttmott- tOu: (11 hc or shc is . qUalihid imlihidtroa tR t a dih -
abilityz (2) he or nht is br<strong>in</strong>g racldcd firom partkipuion <strong>in</strong>, or br<strong>in</strong>g denied b fls of . p blic
,nti"le'rncer, p -grano. or- atisitit or io tteroix br<strong>in</strong>g diot<strong>in</strong>t<strong>in</strong>ated aos<strong>in</strong>t Iy a pltie enity.
<strong>and</strong> (2) snuch -xduswi, tlnial of bneits, or discrsot<strong>in</strong>oaion is by teason of his or har d<strong>in</strong>abiliot;
12 Nondi-r<strong>in</strong>tioation Uttd lRdacalGrantAd Programt 29 USGC. § 794(a) (1998)
13 Nodicrisn<strong>in</strong>anion on thi BOoist f Dabililty <strong>in</strong> Stata .nd I-lal Gototoment , Servic,, 28
C.ER § 351l(izt bl(19931.
14 An t ,fn .re
2004,
f 0 stiLd, Diiiihrt a lloo, 310 E Spp. 2d 1226, 12V> (D PtM
15 Id.
16 -t
2004).
4 A iet. of Apk -ti DoabTKSti u .ht,4I 324 E Slpp. 2d 1120, 1126 (D. C.
I7 Fetlr Fal -con Conttia 2002 lie $strnt .0ai s a 1-2, unif al htrp1/
wweaar.gfi--/ctae on~rn /tn most. lhtrrtoalta 2012 VSSJ (Lent citiudjne- 24. 2006).
8 Idp.rn noot 17 w 2. 10 -Ž212
19 id
20 EAC VNSG, n.n ote 5 at 54.
21 Id., q ntnot 5 at D-4-
22 Id.. qpm no S au 54
23 Id.
2 4 M. ,o noteS at 55.
25 Uidr . -t 5 it 56.
26 Uf, s r 5r S .1t 57.
27 id., Omwi noo, 5 L,,+.

28 Id.. Os ante 5 at 57.
180
29 U.S. Ceoas Burcau, Nfilr q' &S ,cl rid ni Tib Tl6 DP-2: 2000, tt httc//
faclfi dre censasgos /scl ci/QTTable?-b v=,&-eo-id=D&-q,-na.o=DEC-2000-
edjaoe 26. 200fi).
30 GDegg C. V dheihlen, Tnb 6
r-.&av? AiMn 5htd Thg y f, Ewpe? 32 HuxtxN
FctltRts 383 (1990). -oia ze htF//paLoegl/Ge trce/pasiln/30.s nme.htm.
3 1
Nwimnal COeae, for Heatth Staistic, .fionntas/ S)It frCJle U&S A tateial JIM/
Inwr<strong>in</strong> &.,A c 222 Vrrst. AND Hasl:ta STArTsilcs at 36. Table
9
hoip //orsecrl.gl/neheldast/serho/a I /sr1 _22accpdf.
32 ML
I1, artOthite at
33 qwwtay HAt7 n nme 31 at p 50A Tahble l
4C a B a, Sce-se" Tao* QJTPl7: AW7& t Sa k EVk mmY, at hitp./I
facifiodce c-rsus.gm-/drct lt/Ql ha blebm=y&go-id=olIOOOu;&.qe-nanic=DEC_2000_
SF3_L:_QrPl7&of, ann
2000y)
l)E('.20t)05F3_U&-_la vgn&-_sse~oo (Last ciied Jane 20.
35 Id.
36 Thenfao,, NC. F <strong>and</strong> RsIJhJ. C.. 205. -hiag La'- Hnti <strong>and</strong> *re U=n, trfl 11 Stia
dat Ueat /Trit. Am/aI f~ Si.fi k.lfl Fra?'- 52 Socotur roa Tccn.c.su. CowMQst.cxnE 1t 9
(Fcbs 2005) ,o~i.LaMc t h tFe//nvi~enltnt,/catnwlcnt/stdstc
37 lcd, thc T-ace R asrcl <strong>and</strong> Deloprtent Center at the UriWsiry of VMo<strong>in</strong> has
lseted that 'by cotend<strong>in</strong>g <strong>and</strong> erhaner<strong>in</strong>g the -abilty of manisutrmo sol<strong>in</strong>g mah<strong>in</strong>es iay be
possible to addtes the tareds of as much as 99% of so ." Gtg, C. V<strong>and</strong>crheiden, UsiqE tAd
d atEd- U ly 6A ,s .4.rct 0 Afa-,an EReka, 1ia M-o-, 10 INITRNiATION
TRCHasNoucy aN.NI DIsARILMRS qDCC. 2004), aiaibI di hnp://eac.
cot<strong>in</strong>g/ixOkxe.htns.erd./docs/2005-EEU-
38 2002 VSS.9i tote 17.
39 U.S. Access Board, Striaw 508 formp :t E ai,- r md If a 'rioet at
bnptp//.vwvaces^-baatnlgnr/5t58.hn (Last stitrd Jane 24~ 2006).
4 0 EAC WSG, sp.Tawo 5.
4
1 Sbptna C -Fnctional lPaIfotanee Ciicit
1194.31 Funct<strong>in</strong>dal perfso.atc cr a.i.
J.) At least onc mnde of operation <strong>and</strong> <strong>in</strong>formatio. ntreical that does not require t0er iolon
shal be pMided. or saiWptn for sat tholopa-gy asd by people ho ae bl<strong>in</strong>d or itA
itpXnaid thal Ipiaoided. be
(b) Al ltt -ne nltxc of Ope-afon <strong>and</strong> <strong>in</strong>robtation tetrita that doo flat Ieqair. siiaa ac.ity
glcater th-t 20/70 shall be pts-sidd <strong>in</strong> adi. <strong>and</strong> ealaaged piot osopat ,oneag togehr or
todpendmdy, or smvpon far assitr technology uod hs people wh. ate *isally irnpaird Ohall be
pt-dcd.
(e) At least one mode of opermaio <strong>and</strong> <strong>in</strong>feaSion retricsal that docs not teatne, anee hearnrg
shIl be pmvixed, or soppone For <strong>in</strong>ise technology toed IN people sol, ace deaf or hard of
h-armg shal be pnxided.
(d) II7rce audio irianoaaniaso <strong>in</strong> importan for dtIc or f a rndact, at le.at oar mode of npxratio
<strong>and</strong> toforonation rtrieal shall be peotided im <strong>in</strong> enhancrd azdktoey 'ashion. or sappote for
aIstish heartag drrict shall be prsoidedl.

181
''it V'A. !ttEttttty t O'F.Sf(RiACV. VO3ItPt 301C ft -:e~5 oCtit>Sy,!i, 'S$AblttT' ;OS!
e At least one moctd of operation <strong>and</strong> <strong>in</strong>fotnation retrieval that does not qutjre aures speth
shall be proided, or urppor for amistnr sehrtlogv u-ed by people with disabihties shall bh poe
sided.
(Ij As least one snde of operatton <strong>and</strong> ifonsation retrieval that doe, not rqui fiue rtnor
cnrond r dsitth.tetrt o-tirtos atid that is opetle, titih limited nrach <strong>and</strong> stregth ssaIl be pnm
tided.
42 EAC VVSG .s nert 5 at S 3.2.2.11.
43 Email fmn Dts Ala..pi, Avunte Itenttationsl Teehologv Inx., Gan. II, 2006) (on filt
rith the BrmEDn Center).
44 Email Gnnun Miihvlle ShaWer. Vice President of Conuranticatisru aud Ewunrnal Affair
Seqaori \bttng SysCtes, (Jan. 23, 2006) (on Ml sith the Brtnnan Center.
45 Entail frostn Pat Gorman, Vie P.rsidt sf Opel-tions ttl Deplomsnat, Areupoll Ito.,
jan. 5 2006) (on file with the Breunta Center). (Nos: Ace,,oll Inc. filed for Chapter 7 bankttpscy
onwJa.ttay 30. NMl1. To da
4 6
5 d.
x no puny ha, boutghr the righto ts shoe tethnolge
47 Email fDow lavr Alunpit, oro4note 43.
4Enail horn Pat Gonnan, tppr. notc 45.
49 The VVSG rect-ststd that the stie <strong>and</strong> weight of thre qys almlow oer porability <strong>and</strong>
cuobsile s-6og By the st<strong>and</strong>ard set ot <strong>in</strong> the guidel<strong>in</strong>es the DEE moxdhl manLahetared by
Settoia. icbrold, Hrt <strong>and</strong> ES&S am all portable for curbsidn vot<strong>in</strong>g.
50 Telephone Inteiew itth Phillip Braithesaie, \Sce Pretsdent of Sale <strong>and</strong> IMarhet<strong>in</strong>F.
Har httcn
IB ik. Ja 18 2006).
51 Email Irm REAv Pal-te. Dnctlor of 3tlarLetig <strong>and</strong> Conmtniist, EleMtion Sytems
<strong>and</strong> Softwamr 5Jan. 16, 2006).
52 Email from David Beart Spoetrstm, Diebold Electious Systems, (Jan- 16, 200ff.
53 EAC VVSG, spm note S at § 5.7- 2 Ibhd).
54 Etoad rnom Michelle Shafc su note 44.
5c5 Email from David Ba trpea note 52.
55I Tephone Inteviro with Phillip Braiisht-iaie, SlpM note 50.
57 Enanil frnm Pat Cortssaa, tpra noxte 45.
c'3 Etnail frrns Pat G-enat, spra note 45.
5 Email Ghon Dave AnT pi Sas nowte 43.
0 Email from Michelle Shfer. atp note *.
61 Ematilftrom PtstPalner, tfasnote 51.
62 Entil fGon Doid Beat nrar tnote 52.
63 Tlcphootm loeitteve with Phillip Bliithewaire, sas note 50.
6 4
EmalO hmnt Pat Coenust .pta note 45.
65 Emal from Date Alanpi soas note *3.
n6 Erma il font Dot id Be ar . taste 52
67 Ermail hoot Michelle Shafe, tspwa note 44.

_ .S~ __. . .N. .,
fd Tcklphone Bltete I ttmi s-th Phillip Brntthot-aite. .,upa note 50.
'9 E.mail frm Rob Pa<strong>in</strong>-e wPt/m nou 51.
70 Vonl trts Vot<strong>in</strong>g Set- Guicelitest ot/prat note 5 at 58. -
71 Em.i tiom Mlihellc Shafbe ntp/to notw 44.
72 Etila from Dtid Btl -at oqtw notc 52.
182
73 Telephone l:eron i ,thihl Phillip Beotehettane .r. tote .0
74 Email fion Rob Paltmer. rupa note 51.
75 Etnaii rrom D-ecALwitpi, rpw wnel 43.
76 Rnt Fri m<strong>in</strong>t Pat Ct-ntan. tqt note *IS.
77 lo Maech of 2003, Mitanthwan Bomugh Pmeident C Vtot<strong>in</strong>ia Fteldt <strong>and</strong> the Center for
Itdep-denct-tf the Dilied ti New York aetd 130 ditlsabtid -oter o <strong>in</strong> tt eight titlem DRFE
<strong>and</strong> cnmnemton the mtachiac'saccetsibility. Acend<strong>in</strong>g to the repOiL testers tnmmetttee that computtr
gorntited so-, wri< tifttilt to -tcd-rttati. wlui no tener tited diftlhty uttde-sta-tlittg
the human twice htailon" ODlice of the Peeident of the lBoroogh of Manhattan, it lqTe.Aw<strong>in</strong>abf r
fhpae a-tub Diobdtttt at itt (Apnil 3, 2ft31) atlie at htpltetoourllotglActivism/E.
* tt<strong>in</strong>g/Bcttaswlea /200405 1 -benaeiiero- AntwcuE shC Cptl
Ent.il fronNti M-ittlit- Shaft.: atp/e ttot 44.
9 Fmail fnom D-attd Becaretr. r noer 52
s 1mail f<strong>in</strong>e, Pat Giorniat,, sepm tote 45.
81 Tiephouc itimetie- with Phillip Brittho-aut, nitr_ a itote 50.
82 Fmad from Rob Panirt. tp0a note SI.
83 &n EAC VSG. mtto note Sat § 3.2.2.2(c) Ut.
84 Enail font Dave Alatopt t.spt tttc 43.
85 Etail fen Mirheilt, Shtfrt. ,*tw note 44.
16 Er.atl meom i):-iel Hat sapta note 52.
87 Emaa froat Ge-gg V<strong>and</strong>erhrkn (Ee e 213. 006).
8d Email Cn Date Aian-pi. .tpw tote 43.
8S Inril shliehi Sitf-: smet haf n' rot it.
9I E.mail from Dartid Beat. tpro note 52'
91 FanaI frot Ptt Cormnan wirno trote 45.
92 Telephtttt lrtt-rie titth Phillip Blt.ethettatir, sr/te lot, 50.
9 F.ma_ from Rob Pialmer baer note 51.
94 Email from 1)iate Alansptip.nt/to tte 43.
95 FEmail ftnot Michelle Shafie, nt/pt nat, 44.
96 Eitail hfotn i)aid Peso, anoto note 52.
97 Email fron Pat Go-nan. natmra note 45.
98 Telephotte t shh Phtllip Biahhtewite. ta/te note 5.
99 Email from Rob Palmer na/too note 5).

183
M.r bMt,0illy 0F WC.M AC. V OrW: '-'oLdF SCt::'ij'!Y, AC,.t Sal,14iY. USAOUL rCt, Cyns
10 Sor FAC VVSCG, st note 5 at §§ 3.222 ib)-(.
101 Ardn<strong>in</strong>e soa0M tps bIry bt-rnitr, for esopi. "the Driebold Tpwees qualiry <strong>and</strong>
respo-rs toe rt. to poor that leltllv otcr <strong>and</strong> otherr ith hcnog pobkrss totd hbs seriousrdlici
oie sdenrtao<strong>in</strong>ig th peeth of the s<strong>in</strong>ore." Simtilaedl <strong>in</strong> a letto to the engosir of ctocrs
of Satta Cla;U ('onty, ose-obent of the Sliton Vallcy Cotriil of the Bl<strong>in</strong>d criticiacd Scq-ioa;
DRE usqirg -m hiors, ciotig pontrsond qoaht, delard-eorrt<strong>in</strong>ote, <strong>and</strong> a nclh-ositioti.d
Brawie. Tlt, ontersbUitc nopon alo cted cotplaisos that Aatc'sb synthetic test-to-speech system
s car dif-cols for many torts to ondeetwans Vubts Unitc!. Aftdd-Aas Fort s Ji rM n Fbdioi
ot 59 ovolailsr at http://Ysessrvttresaoiss'.oerg/itl]2.pdf (Las visiecd Jsase 20, 2000).
102 Telephone loter ies- vith Phillip Bl.eithevsaitt, nprm nont 50.
1
03 -lephong Inervi- sit Frank Wfrebe. Chief COprt<strong>in</strong>g Olfrerr. Acsrpoll Inc. (Oct. 19,
2005).
104 Enail f<strong>in</strong>s Michelle ShafeerO. etose 44
105 'kph Inthress, sic h Philip Braithsite, arn note 50.
ltlTeephottelott is ith aeo Alnrpi. Sas antl Market<strong>in</strong>gaat Avirc(Ocl. 21, 2005).
107 So FAC. wsr. .srre nose S at 56.
IO Eanail from Pat Goresos. .pea note 45.
1 l'iephborc IntcesictY ith Rob Pa<strong>in</strong>ter Diretor of Markct<strong>in</strong>g <strong>and</strong> Conntanirations.
EMS&S
Mot<strong>in</strong>g Syste. (OCL 20, 20051.
110
lekphonc Inceiess nith Daied Bea. Spokhspeson, Dkbold Election Sytenss. (Oct. 25,
2003).
" Telephone lotesrirs, i with Phillip rocnra mRprta note 50.
11 2 Telephton leevir - essi nth Alie lh.h-lus, Media PR -iravt Seq-i.a Vot<strong>in</strong>g Syntem- Oes.
18 200S).
11" In its dkfiault etrt<strong>in</strong>g, the eSlate qtirce all orrs to tee a stwlard sc of tatilelv distcntilk
cmnsrs to iptt lctienonso shic hisual iessisea valltA.
114 Telephone Itte -6sess sctt Dasid Bear. ~pr note 110.
115 Emna fom Pat Germ , npr note 45.
1
1T'lkphonen lteries ith.lfi Chares, ne note 112.
117 Emai fanm Pat Gi rman. a onto 45.
Emnil frnto Da -rMn aospra not 43.
Entail firam Daid Bear. rno tIC 52.
121! Entril fmm Rob Pahitr nPrm noec 51.
121 F.i.li fram Mihle Shafre, "ra ,towte 41.
122 F..a ron Rob Palnter, .pra noic 51; Email from Pat Gorman,. n ornte 45; Etna fitn
Dal e Alanpi, spw note 43; Etmail ban, Dsoid BCar. nOesnote 52: Fmail f6s-os Mihelle Shafet:
,rra .otc 44; Telephone Isite tier snuith Phillip Branthetaitc P.nnote 50.
12:3 Asconsi<strong>in</strong>g to epcrs, the e ofrar magno(tiig lese highlights the trlets certaw <strong>in</strong>fl-ibke
asistis device, coat ploe on both electitn olticiab <strong>and</strong> the tote Ienss are sade <strong>in</strong> dilfenetn
sotigibh. OlriciacaT ay dtl to match k-no, ts a toes iios di.abilitr arid any unremtt gla(sse
theq are tort.g& Once gi-cn to de voter , he .soit place ho lens as a pppriate dwsarce from
her evs <strong>and</strong> hbus the faclity <strong>and</strong> cte.ostsatiosi to adjost the kJs' placeownnt :t the reads.

ACteSI'- tAt ;T a ak1x
184
1 _t eea -mlanple, Rhndc Ih<strong>and</strong>'s roung -ienisiotc optiona at GuzSmsoft dBmUc id TaMJ !
BaloS naisodaldes http I/asoosen~tats nnu/eleetoioi/so<strong>in</strong>g/btnldvmdis ahledotrsJBraic facuti
BallorGidrltnei ht-n (n l issited Jt-te 20. 200th
125 Entail rhm Di. Abmnpi. _opt note 4 t
126 Telephone Inieeciesi-nh Daid Bear. sapra note 110.
127 Soc a photo of the Sequni: scasnor et ns oquoiaotr.ocn/photophp'photr
Irtightrert'Vi,,,ijpg &6tLeo=Tiglno200Fr tri%2ON'io
128 'elephone. latrvirs, wioh Rob Ptalmr. Director of Market<strong>in</strong>g ald Comnauticjanso at
llreti i )scst.nt <strong>and</strong> Sofsi.rrr (let. 28. 2181Sf
129 In Oregon, Inr camplc. wherr ate-s-Mad systemr hae been <strong>in</strong> e s<strong>in</strong>c 1998 h is
nErfrn diffltub For In wt- r ih usual <strong>in</strong>t'atrncttiu tot tite Ipi-wtcly <strong>and</strong> <strong>in</strong>mdhedenly At ondiog to
a 2002 speech by OregonX seeretay of Sttrm Bill Bradhne to the Arsciatio-i of thc Bar of he
2
Chay of Nci' Yor. the ia, n i's ohs un .oll(Tice, rid biuraitisa tea,, m to dh Iarnes of s-trs ridh
snual <strong>in</strong>pa<strong>in</strong>nentn to penide assistace ,ith the Vote-by-Mail proces. As oa 2002, one woany
ofTened balee, <strong>in</strong> Braillt <strong>and</strong> thbsy-6se -itittis offr-td bedh the Insitruedon Papqhlet -nd ballot
oca iltdiotape. Howoser, secsslig <strong>in</strong> a eeai to assist thes tcro drpeis thom of thea ability to voir
porcatcly At the atim of tde spteh, Scecary Bradbhr)y stacd that Oregon oat orluni far lsi ay.
to solar thies pr<strong>in</strong>cy toncs. "Imtead of sendig a teran LO assist a OCtee. st coadd send a pKea=ti
<strong>and</strong> seniett<strong>in</strong>g as s-all as a Patbi Pilot The m-c cor-ld par on easphoatrs <strong>and</strong> rec-id thcia baet
clectenticall; arrhcr than hat<strong>in</strong>g o tell ekcion oflicras hew they aani to stc.> Seetrcy
Beadb-r s speech w asailabir at htp: // sIsssisos sta eoar u/exccutniIspeechrrl It 1802.htnt.
130 Of course. epre note. not afl . otoe c) siu sation nniations ore comfortable, oreert able.
Lo st. tnt audio ht.dlor. They nray tipl xe tfnitiar ssiih this k<strong>in</strong>d of ttchtiologs; ar Ya5 hoar
dilitcly peocesurmg imtrcfons h-oator an tudio rccrdithg
131 Fise a fall drst-iptio f ilt tactile hallot are ihe Bruetotiosnal Fmrtirn fIr Eletion
SysttsW iteb site at hitpf/.scsirlcetioisaeennssorg/Bp/Bal<strong>in</strong>cenplairo htn (Ltast sited Juie
26, MG0,
132 5
c Fcti.ra <strong>and</strong> Chics Diision of the Off0-c of tha Sbectars tf State of Rhtde Islond.
hn I E lb to ar bv (hAimag Beria ro, T ea aiBa., at hup:losiso-we.seire.n aololecurs/(cq/
bratilk-e otactile he (list etitedj we 26 2(06)
t33 State of Oregoti Election itioui. Rrqrtilag a4 Rplbosrra4 Bellat es http://-siiuha.a
vote sirg/eh-ct q.a/ hallnts/iahlrtotep ltttl lIt -,ted jourt 26, 20061.
134 Email lIom Rob Paotmer. orpra note 5t.
135 Sa l'oputec Digital Ihiper Ballot SOsCue Ot-vcies eJ htp://ss-s-pop.lc-..c-mo
136 Esnail fwrms Rob Pal.nee. otpea note St; Enail fomt S<strong>and</strong>y loeganate<strong>in</strong> Pr-sideot <strong>and</strong>
ritmndia Papales Coerp uon (Jait. 13. 2006).
137 Tolphtne lnitoteissth Lit Millet Pablic.Ula<strong>in</strong>s lisots. Popoles Corporaion(OcL 26,
2005), Email fomus Rob Pealer. qs tieeot: 5 1.
138 Fnold h-too S<strong>and</strong>y Moraou<strong>in</strong>. tapes note 136.
139 Email fnom Rob PalEmer Owrn otc 51.
I It° A photo of the Atito asi tni. is available at http://-s~.automantcLsom is(Ut \ittied
uot: 20. 20061. Entail Ioto Satid\ Sloegateis. s tote 136
141 Tclephnc Interiicv nith Rob Palmaec sroD nate 128: Entai from S<strong>and</strong>y Morgansre<strong>in</strong>,
rq4r otto 136.

185
142 Email frsm Rob pmpr note I51: Email bfom Sndy NIormnstc<strong>in</strong>,..oaraaott 136.
1-4 Eaall from Rob Flann-, ra p-snote 51.
44 Emnail frn Rob Palmer, W.ns nowe 51 Fntal from S<strong>and</strong>y hlotgaticn spea not, 136.
145 Emnail tno Rob Pabncr rrprroto, SI.
If, Entol - efm Sondy Nlnnamstnlneapt amos 136.
147 Entail fom Rob Palner. oqm noct SIl.
1486 Flephonc Inteia, with Richard Vqgel, Paictlnaa of Vogue Eleaion Sytcms (N M.N I .
200-j); Entalfrom Rob Iahner atpa noc 51. Entail frto .Sady MNorgantcatem. o notw 136.
149 Telephonc l-iaco w ith Rich<strong>and</strong> Vogel, a.aya note 148; Entoil tIo Rob Palma. n4MP
now S l.
50
) Fnail from Rob hatmca, atp now Sl : Fnail ficno San*ly Moaganme<strong>in</strong>. .O. now 136.
131 'lelqehone Itntni- oth Rob PRmit snpra now 128.
1.52 Email bntm So<strong>and</strong> M.nraaaac<strong>in</strong>, upra notw 136.
1I3 Emal Int-ie- aith Rikhard Vogel, Preidena, XogaaeFledtonSna, a an 11. 2Iltbi.
154 'elephone ha-tiew with Richard V'ogel. anpo lnow 148; Email from Rob Palmer. rtpra
155 Eaeil fmm. Rob Pawle, r. note 5 1.
15Gitlcphonr Inw-tiac with LiU Miller, aaptaoot 137.
157 TdIphoto Intecvew with Ftalk kat-he, ton aotc 103.
150 Id,
1511 'laphane l-rao kw iAlfir th Choanec, rpta note 112.
160 From p .eact aemo, mnaktw htep-//aoeaccopolizrnt/Yncwoaaaton/ 10.
i61 Tcephton Iticnti v htea roakit-bck at-proata 103.
162 Acctotall ma<strong>in</strong>ta<strong>in</strong> tht it banode soanersnlcs a VV.,'\a'cT anallea tobnl b nirv hlt
Accopoll yno s, a VVPTa tcmn n lerissl f6nm Int bhancode pr<strong>in</strong>ted on it, tot ranm telactiots
stocd <strong>in</strong> then tnotry cata itnide a DRE 'rhuo -tcont<strong>in</strong>g to Accupoll reprcp otat-a-t aU -otet,
at arvaed tqually laa.ttts sigblad Oter.n at-d Lht: Iamodct's .nlt-oe atad -otem taith i-uad benitatons
tear il. lejphont Inmensict sith Faralnk Wicba- ,tipa now 103.
163 hl!cephone Inma-nerie th Grcgg C, Sattderhlnids, Diretor, Trtace Centar Uneesitv of
1iosnts-<strong>in</strong>-Xad<strong>in</strong>on (Naov 9. 5005).
164 ,t
165 Tdcphone Inaceetw acith Gail Hat. Vic Pamati-na of Coanmatoicat<strong>in</strong>a <strong>and</strong> Zoteanad
Afiirs IVS LLC (Nas 3. 2003). Se alo the "nan by Photst rect<strong>in</strong> on the I VS enbte -oaNoil/a at
http //owasilt cant,
16i l'sr a dleaciptitn of Nasv lInltphuthn's ovte-by-phone systwm n Xe- Hampdliet PabtiI
Rat-oh At, T.s& 'Ab, A trceratIb a Jhsm letcti (March 21. 200fi) at http://eattldaprorg/aaode/
1039 Foe a dexrtpt<strong>in</strong>ta of \eSm tya-tm atlBdiogtaon FPnr P-, (Au, 11a 2005! at hrtp://
towa:burnul<strong>in</strong>gt wempa coatt/altppspbesrdl/aeaiekAIDw/
I00)dltha-oe.
2005031 /NES'WSOI/ 300 10314/

186
IC' In the mid- lO6s. their weic ocer 4 million rI'sI ti-ers 3 mnlihn of han had some -net
of hcanng unpairnen <strong>and</strong> I milio- of .i hon had some sort of speech <strong>in</strong>pedi<strong>in</strong> I H lows-s .this
is osdly 133L ur die M0 ntlilltio ailols scito rqoxntd hasuig tIssail& hco<strong>in</strong>g Mlichignii Sucts
ltu ctity, Vto In a Tr tr o ht1tpc// esssi tions consiti hook (LssisitJesLa "Ic. 20061.
I 6B Enmail from Gail Hat. i5ce Po.sidet of C(oosomcatioies <strong>and</strong> Emiernal Ailair- 1[VS LLC
an. 18, 200600
169 la IVS' sebsn 01 http://,-ssi slc.oo (auss isiteedljne 26. 20(61.
170) Emiail from Gail Han, sos noe 16d.
171 Tiliphonc Iotsro ssili h GaI Iant, ei-Vw note 65.
172 eathe "Vote hv Phon" ection of IVS wehsitc t http:/A-s.isssflc.coos
173 Erail from Gail Host ns tote I 68f

USABILITY
187
ABOUT THE AUTHORS
LawTence Nordcn is t<strong>in</strong> Associate Counsel with the Brennan Center, work<strong>in</strong>g <strong>in</strong>
the areas of vot<strong>in</strong>g technology, vot<strong>in</strong>g rights. <strong>and</strong> government accountability. For
the past year, Mr. Norden has led the Brennan Center's vot<strong>in</strong>g tcchnology assessment
project, <strong>in</strong>clud<strong>in</strong>g the production <strong>and</strong> creation of this report. He is a contributor
to Routledgc's forthcom<strong>in</strong>g Encyclopedia of American Civil Liberties.
Mr. Norden edits <strong>and</strong> arites for the Brennan Center's blog on New York State,
wvw.RcformNY.blogspot com. He is a graduate of the University of Chicago
<strong>and</strong> the NYU School of Law. Mr. Norden serves as an adjunct faculty member
<strong>in</strong> tie Lawyct<strong>in</strong>g Program at the Benjam<strong>in</strong> N. Cardozo School of Law. lie may
he reached at lawrcncc.nordenesnyu.edu
Jeremy M. Creclan is an associate <strong>in</strong> the law fsrm Jenner & Block's Ness York
office. Mr. Creelan jo<strong>in</strong>sedJenner & Block after serv<strong>in</strong>g as Deputy Director of the
Densocracy Program at the Brennan Center forJustice at NYU School of Lauw
At the Brennass Center. he developed <strong>and</strong> prosecuted numerous high-profile elecdon
law cases to protect voters' rights, <strong>in</strong>clud<strong>in</strong>g Lopez Torres a. New rork State Board
of Elictios, a constitutional challenge so New York State'sjudicial convention systcm
of select<strong>in</strong>g Supreme Court justices. Mr. Creclan is aiso the lead author of a
comprehensive analysis of the legislative process that formed the basis for reforms
to the rules of the New York State Assembly <strong>and</strong> <strong>Senate</strong>. Mr. Creelan graduated
from Yale Law School <strong>in</strong> 1996 <strong>and</strong> from Yale College <strong>in</strong> 1991, where he received
a B.A. asn<strong>in</strong>sa ont saude <strong>and</strong> Phi Beta Kappa. Hc was the Editor-<strong>in</strong>-Chief of the
rtae Low & Policy Review. He can be reached at jcreclanrajrnssercom
David Kimball is as Associate Professor of Political Science at the University of
Missouri-St. Louis. His primary research <strong>and</strong> teachixig <strong>in</strong>terests <strong>in</strong>clude American
elections, vot<strong>in</strong>g behavior, public op<strong>in</strong>ion, Congress, <strong>in</strong>terest groups, <strong>and</strong> research
methods. Dr. Kimball received his Ph.D. <strong>in</strong> Political Science front Ohio State
University. He co-authored 07y Ameriauns Split Their Thkets: Campaigns, Competition,
<strong>and</strong> Divided Goverytnetd (University of Michigan Press 2002). Prof. Kimball has also
authored numerous articles <strong>in</strong>clsd<strong>in</strong>g Baltot Initiatives <strong>and</strong> Residual Votes <strong>in</strong> Lie 2004
Presidential Election (with Martha Kropf) presented at the Southern Political
Science Association conference, Atlanta, Jansary 7, 2006 <strong>and</strong> Ballol Design <strong>and</strong>
Unrecorded lbnes on Paper-Based Ballots (with Martha Ksopl) published <strong>in</strong> Psblic
Op<strong>in</strong>ion Quarterly <strong>in</strong> 2005. He can be reached at dk<strong>in</strong>balleurnsl.edu.
Whitney Quesesthry is a user researches; user experiessce practitioner, <strong>and</strong>
usability astd accessibility expert <strong>and</strong> prnscipal consultant for Whiutey Interacsise
l)csign (wawwqusabilitycom) where she works with companies around the world
to develop usable web sites <strong>and</strong> applicatioss. As a pr<strong>in</strong>cipal at Cognetics
Corporation for 12 years, she was the design leader for many desigst <strong>and</strong> usability
projects. She has worked with companies such as Novartis, Deloitte Consult<strong>in</strong>g,
Lucent, McGraw-Hill, Siemens. Hewlett-Packard, <strong>and</strong> DowJones. Ms.

188
Quescnbcry is chair for Human Factors <strong>and</strong> Pri-vacy on the Technical Guidcl<strong>in</strong>es
Dcvelopment Comm1litlCc, an advisory committce to the Elections Assistancc
Commission. She has served as presidert of the Usabililv Professionals'
Association <strong>and</strong> manager of the STC Usability SIG. She may be, reached at
whitneyq(lwqusabilitycom
CONSULTING EXPERTS
The Brennan Center assembled a Task Force of consult<strong>in</strong>g experts on vot<strong>in</strong>g
svstem usability to assist <strong>in</strong> develop<strong>in</strong>g, writ<strong>in</strong>g <strong>and</strong> edit<strong>in</strong>g this report. WVc arc
grateful to them for their <strong>in</strong>sight <strong>and</strong> many hours of work. They are:
Georgette Asherman, <strong>in</strong>dependent statistical consultant <strong>and</strong> founder of Direct
Effects.
Lillic Concy, Associate Director, Electronic Privacy Infirmation Ccnter (EPIC).
Jim Dickson, Vice President for Governmental Affairs, American Association of
People with Disabilities (AAPD).
Richard Douglas, Usability Experience Group, IBM Softwvare Group/Lotus
Software
Diane Golden, PhD, Director of Missouri Assistive Technology <strong>and</strong> former
chairperson of the Association of Tech Act Projects (ATAP).

CONTENTS
189
I' trodu Ct ion . ... ........... ... ......................... I
Def<strong>in</strong><strong>in</strong>g Usability . ................................
Analysis ................................ I
Usability Pr<strong>in</strong>ciples ........... ..................... I
Usabilitiy Recommendations ................................. I
Tielilurng 1.sahilitv.3.......................... 3
Analvksis ......................... 4
Eflectiveness (or Correctness) .................................... 4
Methodolog ...................... 4
Residual Vote Rates ...................... 5
Direct Record<strong>in</strong>g Electronic ("DRE") Systems ...... .......... 5
DRE Systems with Voter-Verified Paper TrIails ("VVIPT") ....... 8
Prec<strong>in</strong>ct-Count Optical Scan Systems ................. ...... 8
Vote-by-Mail Systems ............ ..................... 9
Other Systems . 10
Limits of Residual Vote Rate Studies ........... ........ 10
Key F<strong>in</strong>d<strong>in</strong>gs. 1......................
0
Eflicieney <strong>and</strong> Voter Confidence . .................... I I
DREs ........................ 11....
DREs w/ VVPT ............................ 12
Prec<strong>in</strong>ct-Count Optical Scan Systems ....... 13 3.................
Other Systems. ............................ 13
Usabilit' Pr<strong>in</strong>cipkc.. ............... .,. , 14
Do Not Assume Familiarity with Technology .. ..................... 14
Follow Common Design Conventions ................. ........... 15
Use Pla<strong>in</strong> Language <strong>in</strong> Instructions <strong>and</strong> Messages ................... 16
Locate Instructions So They Will Be Clear ....... ................. 17
Elim<strong>in</strong>ate Extraneous Information .... ......................... 17
Provide Clear Mlechanisms for Record<strong>in</strong>g <strong>and</strong> Review<strong>in</strong>g Votes ..... ... 17
Create Clear Closure .......................................... 20
Reduce Memorv Load . ........................................ 0
Notify \Voters of Errors . ........................................ 20
Make It Easy to Correct Errors . ............................... 2 1
Reeommnerndation'S ................. ........... 2"
Endntute5 .,.. . ..... ... ..................... ....
- "4

190
Tabiles <strong>and</strong> I'igures
'1'ablc U I. Residual Vote Rates by Type of Vot<strong>in</strong>g Txchnology 5
Table U2. Residual Vote Rates by Scroll<strong>in</strong>g DRE Br<strong>and</strong>,
2004 Presidential Election .. 6
Table U3. Racial <strong>and</strong> Economic Disparity <strong>in</strong> Residual Votes
by \Jot<strong>in</strong>g 'echlnology, 2004 Presidential Election. 7
Table U4. Residual Vote Rates by Prec<strong>in</strong>ct-Count Optical Scan Br<strong>and</strong>,
2004 Presidential Election. 8
Table U5. Residual Votes <strong>in</strong> Optical Scan Ballots by Type of Vot<strong>in</strong>g Mark,
2004 Presidential Election ... 9
Figure Ul. Punch Card Ballot Used <strong>in</strong> 2000 .18
Figure U2. Ballot Design Used <strong>in</strong> 2002 . .... 19
Figure U3. Votcs Cast for Cook County RetentionJudges, 1982-2004... 19

INTRODUCTION
191
The performance of a vot<strong>in</strong>g system is socasured <strong>in</strong> part by its success <strong>in</strong> allow<strong>in</strong>g
a toter to cast a salid ballot that reflects her <strong>in</strong>tended selections stithout
undlue delays or burdens. This system quality is known as "usahility."' ollow<strong>in</strong>g
several high-profile cottroscrsies <strong>in</strong> thc last few elecions - <strong>in</strong>cluditg, most
notoriously, the 2000 controversy ovcr thc "butterfly ballot" <strong>in</strong> Palm Beach -vos<strong>in</strong>g
system usability is a subject of utlost concerts to both voters anid clerton
officials.
Def<strong>in</strong><strong>in</strong>g Usability. In this chapter, ste cxamitic the usability of various vot<strong>in</strong>g
svstems <strong>and</strong> discuss several \ays that clecuion offimials can maximize the usabili-
Iy of these systemst By msaximiz<strong>in</strong>g t1e usability of a system, we nean ensur<strong>in</strong>g,
to as great a degree ats possiblc, that votitg svstems: (a) effectisely (cotTectly)
record soters' <strong>in</strong>tended selections, (b) complete thse otisg process <strong>in</strong> alt efficieit
<strong>and</strong> LimdyV manner, <strong>and</strong> (c) providt sotcrs with colfidence <strong>and</strong> satisfaction <strong>in</strong> the
vot<strong>in</strong>g process.
Analysis. Our dissussion of vot<strong>in</strong>g systetir usability proceeds is twso stages.
nz Ef-tc re ess ' ,01r Corecltss'ues. We review orig<strong>in</strong>al retsarch conducted b;la Dr.
David Kimball, wlhichl quantifies the extent to which curent votiig Systems
correctly record vosers' <strong>in</strong>teided selections, ie., the systems' "effcetivettess."
Specifically, Dr. Ksitball looks at dte residual vote rate for each major vot<strong>in</strong>g
system <strong>in</strong> the 2004 prcsidential election. The "residual vote rate," thc diffcrence
between the number of ballots cast atid the number of valid votes cast
<strong>in</strong> a partictlar contest, is viessed by many experts as the s<strong>in</strong>gle best measttre
of the cffecttieness of a tot<strong>in</strong>g system. Based ott the research on votisg systent
attd gesteral ttsability st<strong>and</strong>ards, see extract four key Fitd<strong>in</strong>gs about the
elfectivetess of various vot<strong>in</strong>g systems Ihe futl<strong>in</strong>gs may he found on pages
10 11.
-E I.Dtcic t<strong>in</strong>d V \ oter tConltettce. We summarize the limited reseurch available
on the efficicncy of antd voter coilsiricc <strong>in</strong> the various systems.
Usability Pr<strong>in</strong>ciples. Fronn this sork <strong>and</strong> other rescarch <strong>in</strong>to usability, se then
ide<strong>in</strong>tily a series of usability prittciples applirable to vot<strong>in</strong>g systems shich clections
offickils <strong>and</strong> adsocates should usc to assess atsd improve the usability of votisg
systems <strong>in</strong> their jttrisdictionis. Ihe pritcipics mnay bh found on pages 14+ -21.
Usability Reconnunersdations. F<strong>in</strong>ally we providc recommendations to assist
election officials <strong>in</strong> maximiz<strong>in</strong>g the usability of their vot<strong>in</strong>g systems itt the areas
of ballot design aisd systerm <strong>in</strong>st uctions. A full disciussion of the rccommnendations
may be fostnd on pages 22 23. They are stummarized beloss:

192
ratk .MhC~atasEIIssO .-VC.Ctsr ab Ot 5:!.C SsT, rit , -UaTY '.rCESS is!-.rrt U:;w16: i C I
z Do not assume familiarity with technolog,.
. Conduct usability test<strong>in</strong>g on proposed ballots btforc GInaliz<strong>in</strong>g their design.
Create pla<strong>in</strong> language <strong>in</strong>stssctions <strong>and</strong> messages <strong>in</strong> both English <strong>and</strong> other
languages comnossly used hi Lhcjurisdiction.
Locate <strong>in</strong>structions so they are not confus<strong>in</strong>g or ignored.
For both ballots <strong>and</strong> <strong>in</strong>structions, <strong>in</strong>corporate st ndard conventions used <strong>in</strong>
product <strong>in</strong>terfaces Lo communicate a particular type of <strong>in</strong>formation or message.
Do not create ballots where c<strong>and</strong>idates for the same ofTice appear <strong>in</strong> multiple
columns or on multiple pages.
Use fllU-<strong>in</strong>-the-oval ballots, not connect-the-arnow ballons, for optical sean sys-
Lems.
s Ensure that ballot <strong>in</strong>structions make clear that voters should not cast both a
ssile-<strong>in</strong> <strong>and</strong> normal vote.
2 Provide mechanisms for record<strong>in</strong>g <strong>and</strong> review<strong>in</strong>g votes.
Make clear when she voser has completed each step or task <strong>in</strong> the vot<strong>in</strong>g
process.
.. Elim<strong>in</strong>ate excraneous <strong>in</strong>formation on ballots.
s M<strong>in</strong>imize the memory load on the voter by allow<strong>in</strong>g her to review, rather
than remember, each of her choices dur<strong>in</strong>g the vot<strong>in</strong>g process.
Ensure that the vot<strong>in</strong>g System pla<strong>in</strong>ly notifies the voter ol her errors.
Make it easy for voters to correct their errors.

193
DEFINING USABILITY Any usability benefits of
a particular type of vot<strong>in</strong>g
In Dccember of 2005 the Election Assistance Commission ("EAC") released the system may be eclipsed partially,
Volumiary Vot<strong>in</strong>g Systems Guidel<strong>in</strong>es ("V'VSG 2005"). which <strong>in</strong>clude the lirs set if not entirely, by a poor ballot
of usability requirements applicable to vot<strong>in</strong>g systems <strong>in</strong> this country. As pars of design or confus<strong>in</strong>g <strong>in</strong>structions.
this work, the National Institute of St<strong>and</strong>ards <strong>and</strong> Technology ("NIST") has
undertaken Lo develop a set of precise performance citeria <strong>and</strong> test protocols to
measure the usability of specific vot<strong>in</strong>g systems.
A consensus among rypecns as to the def<strong>in</strong>itiont of usability of vot<strong>in</strong>g systems has
developed omt of usability rescareh <strong>in</strong> other areas of technology. The
Intct national Orgasmizattom for St<strong>and</strong>ardization ("ISO") def<strong>in</strong>es isability as "the
estent to sshich a product can be vised by specified isers to achievespecified goals
with ffeteclnisiesa
efffeimny <strong>and</strong> satfadlir<strong>in</strong> <strong>in</strong> a specified cotstext of user."'
Both the d-aft vot<strong>in</strong>g systems of the Institute of Electrical <strong>and</strong> Electronics
Eng<strong>in</strong>eers ("IEEE")' <strong>and</strong> the VVSG 2005; echo these st<strong>and</strong>ards. not<strong>in</strong>g that
usable vot<strong>in</strong>g systems will djictsieiv <strong>and</strong> correcdly record voters' <strong>in</strong>tended choices.
operate efirienttly, <strong>and</strong> <strong>in</strong>still uonjildre <strong>in</strong> the votci that her choice was correctly
recorded <strong>and</strong> that her privacy was assured.
Before reviesv<strong>in</strong>g the performance of the various vot<strong>in</strong>g systems utider the usability
guidel<strong>in</strong>es, it should be noted that usability is affected not solely by the typeC of
vot<strong>in</strong>g Systelis at issue, but also by the Iallot <strong>and</strong> <strong>in</strong>structionss desigised by the scndoes
or elections officials fbr a particular jurisdiction. Imideed, any usability benc-
fits of a particular type of sotiisg system stay be eclipsed partially, if not entirely,
by a poor ballot design or confus<strong>in</strong>g <strong>in</strong>structions. For this reason, the recent public
debate over the strengths atid sscaknesses of sarious sot<strong>in</strong>ig systems may hare
uniduly obscured the importance of what should occur to improve the vot<strong>in</strong>g
process after electiots. oflicials have made their choice of system. Altioughi we do
iot yet have sulftcient data to piescribe a siigle "best" or "issost sisable" ballot
design for each sStnscn. there is a substantial body of research on the usability of
forms (both paper <strong>and</strong> clectronici. <strong>in</strong>structions, <strong>and</strong> other signage that call be
used as guidatice. In addition, given the variations <strong>in</strong> local lasus <strong>and</strong> practices,
elections officials should conduct their owit usability test<strong>in</strong>g suhere possible on
their chosets systcnt to limit design flavs that lead to voter errors.

194
The failure of a vot<strong>in</strong>g system ANALYSIS
to protect aga<strong>in</strong>st residual votes
is likely to harm low-<strong>in</strong>come
<strong>and</strong> m<strong>in</strong>ority voters <strong>and</strong> their O EFFECTIVENESS (OR CORRECTNESS)
communities more severely There arc few published studies of usability test<strong>in</strong>gs that have compared the
than other communities. eftectiveness of different votissg systems <strong>in</strong> accurately record<strong>in</strong>g voter <strong>in</strong>tention <strong>in</strong>
a controlled cnvironment.
Absent such test<strong>in</strong>g, one of the most reveal<strong>in</strong>g available measures of vot<strong>in</strong>g system
effectiveness is swhat is referred to hu the political scir<strong>in</strong>ce literature as the
residual vote rate. The "residual vote rate" is the difference betseen (he number
of ballots cast <strong>and</strong> the nunber of valid votes cast <strong>in</strong> a particular contest. Residual
votes thus occur as the result of undervotes (where voters <strong>in</strong>tentionally or un<strong>in</strong>tentionally
record no selection) or coervotcs (where voters select too many c<strong>and</strong>idates,
thus spoil<strong>in</strong>g the ballot for that consest).' Exit polls <strong>and</strong> other electiots surveys
<strong>in</strong>dicate that slightly less tdtan 1% of voters i<strong>in</strong>entionally absta<strong>in</strong> from mak<strong>in</strong>g
a selection <strong>in</strong> presidential elections.i Thus, a residual vote rate significantly
higlser thanI °% <strong>in</strong> a presidential election <strong>in</strong>dicates the extent to wvhich the vot<strong>in</strong>g
system's design or the hallot's design has produced un<strong>in</strong>tentional voter errors
Signific<strong>and</strong>y seseral studies <strong>in</strong>dicate that residual rote rates are, higher <strong>in</strong> low<strong>in</strong>come
asid amnonty comnsuniutcs <strong>and</strong>, iD addition, that improvements <strong>in</strong> vot<strong>in</strong>g
equipment <strong>and</strong> ballot design produce substantial drops <strong>in</strong> residual vote rates <strong>in</strong>
such communities. As a result, the failure of a vot<strong>in</strong>g system to protect aga<strong>in</strong>st
residual votes is likely to harm loss-<strong>in</strong>come <strong>and</strong> m<strong>in</strong>ority voters <strong>and</strong> their cornmunitics
more sescrcls than other communities.
This section reviews research previously published by Dr. Kimball. <strong>and</strong> research
that he is publish<strong>in</strong>g here for the first time, on the residual vote rates for varions
vot<strong>in</strong>g systems <strong>in</strong> the 2004 elections.
0tt METHODOLOGY
For the most par, Dr. Kimball used a crow-scctional analysis to generate the
research f<strong>in</strong>d<strong>in</strong>gs discussed below. In a cross-sectional analysis, a particular characteristic
is consparced arrossjurisdictions. Hler, lor a given election, rcsidual vote
rates arc compared across jurisdictions us<strong>in</strong>g a nmultivariaie statistical analysis to
control for factors other than vot<strong>in</strong>g system (such as demographis, the level of
competition <strong>in</strong> the election, arid other features of the local electoral cotext).
Because of the decentralized nature of election adm<strong>in</strong>istration <strong>in</strong> the United
States, local elections offGciais generally make their own decisions about purchas<strong>in</strong>g
vot<strong>in</strong>g technology; as well as design<strong>in</strong>g <strong>and</strong> pr<strong>in</strong>t<strong>in</strong>g ballots. As a result, sVt<strong>in</strong>g
*cmhnolngy<strong>and</strong> ballot dcesigis vaiy from oncjurisdiction to the next, often cven
with<strong>in</strong> tie same state. This report also reviews a smaller number of studies
exam<strong>in</strong><strong>in</strong>g residual votes <strong>and</strong> vot<strong>in</strong>g technology over tite to takc advantage of
local chaiges <strong>in</strong> vot<strong>in</strong>g equipment. Exam<strong>in</strong><strong>in</strong>g both types of studies allowss a

Yikit i. AN AL tVi
195
differcnec-<strong>in</strong>-differcnce research design to provide a more rigorous cstimate of
the iipacrt of vot<strong>in</strong>g technoloigN:
tst RESIDUAL VOTE RATES
fable Ul sunimarizes she rates of rcsidual soICs for the relevant votnag systems
found by Dr. Kimball <strong>in</strong> the clection results fbr president (2000 <strong>and</strong> 2004) <strong>and</strong>
governor (2002):
toh,.oigy EDO-ipft.O
RESIUAL VOT. RA.ES St ------- O.. VO ------- TCN -
RESIDUAC VOTE RA7ES BY TYPE OF VOTING TECHNOLOGY
Full-face ORE C<strong>and</strong>idates listed on a full-face
computerized screen - voter pushes
button next to chosen c<strong>and</strong>idate.
Mach<strong>in</strong>e records <strong>and</strong> counts votes.
R200i.dv Vote Ry- 111
1.6% 2.2% 1.2%
Scroll<strong>in</strong>g C<strong>and</strong>idates listed on a scroll<strong>in</strong>g - 1.2% 1.0%
DRE computer screen - voter touches screen
next to chosen c<strong>and</strong>idate. Mach<strong>in</strong>e
records <strong>and</strong> counts votes.
Central-Count Voter darkens an oval or arrow next to 1.8% 2.0% 1.7%
Optical Scan chosen c<strong>and</strong>idate on paper ballot.
Ballots counted by computer scanner
at a central location.
Prec<strong>in</strong>ct-Count Voter darkens an oval or arrow next to 0.9% 1.3% 0.7%
Optical Scan chosen c<strong>and</strong>idate on paper ballot.
Ballots scanned at the prec<strong>in</strong>ct, allow<strong>in</strong>g
voter to f<strong>in</strong>d <strong>and</strong> fix errors.
Mixed More than one vot<strong>in</strong>g method used. 1.1% 1.5% 1.0%
._ _ .._ .... _ ., ..,,, .. _ .......... ._ .._ .____. ..___
Nationwide Residual Vote Rate 1.8% 2.0% 1.1%
8s-ed -o 17 5Rantes m . nti ed e. 20,to
127o co-nstes .islyed <strong>in</strong> 2002, .od 2215 -eMi. s anaitysd <strong>in</strong> 255
04M DIRECT RECORDING ELECTRONIC (-DRE-) SYSTEMS
Full-face DRE systems produce significartily higher residual vote rates (1.2%)
than both scroll<strong>in</strong>g DRE systems (1.0%) <strong>and</strong> prec<strong>in</strong>ct-count optical scan
( PCOS') systems (0.7%). "Full-face" DRE systems employ a ballot that displaNs
all of the ifllices <strong>and</strong> c<strong>and</strong>idates ott a s<strong>in</strong>gle screen, rather Itan <strong>in</strong> conscciuiser.
separate sc-reens that the voter touches to select her preferred c<strong>and</strong>idates. As

196
5-' ..S'Ii.:?.1R. '.' ". :AU ' 5.:. 5.s-sM '.' A..C S5.:." } '.S_.5I.!-V' sTY COs"
shown <strong>in</strong> Table Ul2, however, two scroll<strong>in</strong>g DRE systems produced a residual votc
rate of 0.7% --
the sante as the nationwide average rate for PCOS systens.
TABLE U2:
RESIDUAL VOTE RATES BY SCROLLING ORE BRAND
2004 PRESIDENTIAL
ELECTION
Brood of VoIN M.0<strong>in</strong>e, Betidut Vote Rote
UniLect Patriot (17 counties) 6.8%
Vn1 VotWare (1 county) 4.1%
Eidlar-Doubleday EV 2000 (8 counties) 2.3%
Hart InterCivic eSlate (8 counties) 1.8%
MicroVote Inf<strong>in</strong>ity (20 counties) 1.6%
Advanced Vot<strong>in</strong>g Solutions W<strong>in</strong>Vote (10 counties) 1.1%
Diebold AccuVote-TSX (1 county) 0.9%
Sequoia AVC Edge (24 counties) 0.8%
ES&S iVotronic (54 counties) 0.7%
Diebold AccuVote-TS (190 counties) 0.7%
Sequoia DRE with WPT (17 counties <strong>in</strong> Nevada) 0.3%
Nationwide Scroll<strong>in</strong>g DRE Residual Vote Rate 1.0%
Bned 00 303 toUntien wg rmol<strong>in</strong>g CRS <strong>in</strong> 2004
The performance of full-fare <strong>and</strong> scroll<strong>in</strong>g DRE systems diverges even more as
the <strong>in</strong>conme level of the voters decl<strong>in</strong>es. Stated diffecrentlyh relative to scroll<strong>in</strong>g
DRI systems, ftll-face DR£ systems produced particularly high residual vote
rates among s'oters with <strong>in</strong>comes of less than $25,000 <strong>in</strong> 2004. Similady. full-face
DREs tend to produce higher residual vote rates than scroll<strong>in</strong>g DREs it counties
wsith large Hispanic or African American populations. Indeed, only punch card
systems produced a higher icsidual sole rate than full-lac, DREs <strong>in</strong>jurisdictions
seith a IHispanic poptlation of over 300o. &e Table U3.
While the residual sote rates protuced by both scroll<strong>in</strong>g <strong>and</strong> full-face DREs
de.rease slightly as the percentage orAfrican American voters <strong>in</strong>crcases (1.0% to
0.8°%), such rates uvarase signiicantly as the percentage of Hispatuic voters
<strong>in</strong>creases beyond 30% of the population (0.9% to 1.4% for scroll<strong>in</strong>g DREs)O The
reasons for these tretids are not clear, but they suggest that additional analysis
should be conducted by elections officials <strong>and</strong> vendors to determ<strong>in</strong>e whether <strong>and</strong>
hosw DREs could be programmed to address the language needs of Spanishspeak<strong>in</strong>g
voters more effectivehl.

TAStE U3:
197
RACIAL AND ECONOMIC DISPARITY IN RESIDUAL VOTES BY VOTING TECHNOLOGY
2004 PRESIDENTIAL ELECTION
Votontk Optial Opticil FoEl-
Ptnch Scot Sca Face SasoSi
Conpornioo of Counts Cards Centrml FtPirt DRE DRE
RacialUEthnic
Less than 10% black 1.8% 1.5% 0.8% 1.3% 1.0%
Between 10% <strong>and</strong> 30% black 1.7% 1.7% 0.5% 1.2% 0.9%
Over 30% black 2.4% 4.1% 0.9% 1.2% 0.8%
Less than 10% Hispanic 1.8% 1.7% 0.6% 1.1% 0.9%
Between 10% <strong>and</strong> 30% Hispanic 1.8% 1.1% 0.9% 1.1% 0.6%
Over 30% Hispanic 2.4% 1.9% 1.2% 2.0% 1.4%
Median Income
Less than $25,000 4.0% 3.3% 1.4% 2.8% 1.3%
Between $25,000 <strong>and</strong> $3Z499 2.3% 1.7% 0.8% 1.3% 1.2%
Between $32,500 <strong>and</strong> $40,000 2.0% 1.6% 0.7% 1.3% 1.0%
Over $40,000 1.5% 1.2% 0.7% 0.9% 0.8%
Easd -n 2377 coontre anatyied a 2004
Researchers at the Institutc for Social Rescarch at the University of Michigan
have released prelim<strong>in</strong>ary f<strong>in</strong>d<strong>in</strong>gs from usability test<strong>in</strong>g dthy conducted ont snveml
DRE systens's. Their carly f<strong>in</strong>d<strong>in</strong>gs suggest that specific model <strong>and</strong> ballot
design features may lead to diffcrcnt <strong>in</strong>cidenccs of voter error produced by different
manufacturers' DREs In a laboratory comparison between the Hart
InterCisvic eSlate <strong>and</strong> Dicbold AccuVotc-TS, for examplr, the authors obund that
the two massufacturers' approaches to provid<strong>in</strong>g the voter with an opportunity to
review her selections before cast<strong>in</strong>g her volc produce different error rates.
Both mach<strong>in</strong>es present the voter with a two-pagc "revietw" screen prior to cast<strong>in</strong>g
the sote. Accord<strong>in</strong>g to the researchers, the eSlate's "review" screen appears more
dist<strong>in</strong>ct <strong>in</strong> both color <strong>and</strong> format from the earlier pages that the voter secs than
does the AccuVotc-rS res iew screen. In addition, if the c.Slatc voter activates the
control to "cast" the ballot prior to review<strong>in</strong>g both screens, tsat mach<strong>in</strong>e then
shows the votrr the secotsd review screen rather than cast<strong>in</strong>g the ballot immcdiately.
By contrast, the AccuVote-TS allows the 'oter to circumvent the review,
process midstream by touch<strong>in</strong>g thr screen to "cast" her ballot.
The researchers wsho conducted this test<strong>in</strong>g hypothesize that these two design differences
may be responsible for a greater <strong>in</strong>cidence of tn<strong>in</strong>tended voter errors
from the AccuVotc-'l'S DRE, as voters do not dcvote as much attention to review-.

198
'EMDCA ti .KtAC' VOTO S.I 5i'TM c SCCIR '.'. ACCESS:i 5:
Prelim<strong>in</strong>ary f<strong>in</strong>d<strong>in</strong>gs <strong>in</strong>g <strong>and</strong> correct<strong>in</strong>g their selections." Although prelim<strong>in</strong>ary <strong>in</strong> nature, such f<strong>in</strong>ddemonstrate
the critical <strong>in</strong>gs demonstrate the critical importance of usability test<strong>in</strong>g of specific models
importance of usability test<strong>in</strong>g with<strong>in</strong> a type of vot<strong>in</strong>g system to reduce unnecessary voter crrors. Although both
of specific models with<strong>in</strong> a type of these systems arc DREs, such differences <strong>in</strong> ballot design produce very differof
vot<strong>in</strong>g system to reduce cut <strong>opportunities</strong> for voter error <strong>in</strong> each of the two mach<strong>in</strong>es.
unnecessary voter errors.
ia; ORE SYSTEMS WITH VOTER-VERiFIED PAPER TRAILS (VVPT-)
COS)
Only one state, Nevada, used a DRE system with \'VPT <strong>in</strong> the 2004 election. In
addition, Ncvada is the o<strong>in</strong>ly state <strong>in</strong> the country that <strong>in</strong>dudes a "none of the
above" opuon on the ballot for federal <strong>and</strong> statewide elections. This option
reduces undervotes, regardless of the vot<strong>in</strong>g system be<strong>in</strong>g used, because is allows
voters who wish so cast a protcst vote to do so without register<strong>in</strong>g a "lost" vote.
Because no other states used conmparable systems or ballot options, the data are
too limited to drawo any conrlusions regard<strong>in</strong>g residual vote rates. The 17 Nevada
counties registered a m<strong>in</strong>iscule residual vote rate of 0.3% <strong>in</strong> the 2004 elections,
but this figure is not directly comparable to that produced by otherjurisdictions
with different ballot options.
MO PRECINCT-COUNT OPTICAL SCAN SYSTEMS
With the exccption of Nevada's DRF system,' 2 the speciftc vot<strong>in</strong>g systems that
produced the lowest residual vote rate <strong>in</strong> the country <strong>in</strong> 2004 - both at 0.6% -
wcre the AccuVote-OS atid ES&S Ml 00 prec<strong>in</strong>ct-count optical scan systems. Sce
Table U4. In addition, the nationwide average residual vote rate for PCOS systems
vas lower <strong>in</strong> 2004 than she average rate for either type of DRE system.
,ABLE u-1
WMed of VoiNs mad ix
RESIDUAL VOTE RATES BY PRECINCT-COUNT OPTiCAL SCAN GRANO
ES&S Optech 3P Eagle (220 counties)
ES&S M100 (102 counties)
Diebold AecuVote-OS (264 counties)
Nationwide PCOS Residual Vote Rate
f8etd CT 630 tOInes h PCOS a 204
2014 PRESIDENTIAL ELSCTION
Rrid'Ii Vot. qte
0.9%
0.6%
0.6%
0.7%
Unlike for scroll<strong>in</strong>g DREs <strong>and</strong> cenual-count optical scan sysiems, residual vote
rates for PCOS systems do not appear to correlate significanly with the percentage
of African American voters with<strong>in</strong> the jurisdiction. See Table U3. But residual
s ote rates for both PCOS <strong>and</strong> DRE systems <strong>in</strong>crease significantly writh the
percentage of' Hispanic volers This conclusion suggests that neither PCOS nor

199
DRE systems suscced <strong>in</strong> clim<strong>in</strong>at<strong>in</strong>g the impact Of voters'l <strong>and</strong>guagc nceds on the
extent of residual voaes. When compared wish other vot<strong>in</strong>g systems, however,
PCOS systems <strong>and</strong> scroll<strong>in</strong>g DR Es appear most successful at m<strong>in</strong>imiz<strong>in</strong>g the corrclation
between residual votes <strong>and</strong> the racial, ethnic, or economic composition
of a county.
PCOS systems <strong>and</strong> scroll<strong>in</strong>g DREs
appear most successful
at m<strong>in</strong>imiz<strong>in</strong>g the correlation
between residual votes <strong>and</strong>
the racial, ethnic, or economic
Diffierences <strong>in</strong> ballot design for optical scan systems producc significant diflercnccs
<strong>in</strong> residual vote rates. First <strong>and</strong> foremost, ballots that reqtsired voters to
darken an oval produced a residual vote rate of 0.6% <strong>in</strong> the 2004 election, while
those that required voters to connect aln arrow with a l<strong>in</strong>e to a c<strong>and</strong>idate produced
a rate of 0.9%. See Table US. Pla<strong>in</strong>ly, the former design is preferabic to
av aid spoiled ballots. In addition. other ballot design features have been found to
affeci ersor ratcs <strong>in</strong> optical scam systems.
composition of a county
-IA9LE US:;
REStOUALVOTES IN OFTICAt SCAN BALLOTS BY TYPE OF VOTiNG MARk
2054 PRESIDENtSAS EtECTION
Ty" Of WA
!tM 111!~~~~~Aft 1~~~nl~~~ 0. Sm.atMA
Wh¢ sanrfi Aq Cozr~~~~~d
Wie Sa _Ar...
rawt
_as.__ __.......__
Conneit^=
_, O..at...an....... . . ......
Prec<strong>in</strong>ct-Count (641 counties) 0.6% 0.9%
Central-Count (767 counties) 1.4% 2 3%
Nationwide Optical Scan Residual Vote Rate 1.0%
A recent pilot study or ballots from 250 counties <strong>in</strong> five states identified seven
design recommendations for paper-based optical scat ballots, many of which
could apply to other vot<strong>in</strong>g systems as well.' These rectommcndatiots arc listed
later <strong>in</strong> this report along with the usabilty pr<strong>in</strong>ciples they support.
sikF3V0TE-BY-MAIL SYSTEMS
At present, the state of Oregon is the only jurisdiction with<strong>in</strong> the United States
that uses a Votc-byv-Mail system (-VBM") as its pr<strong>in</strong>cipal sot<strong>in</strong>g system.
Accord<strong>in</strong>gly, def<strong>in</strong>Litiv conclusions about the residual vote rates of VBM systems
must await additional studies of that state <strong>and</strong> of jurisdictions outside the United
States, such as Great Brita<strong>in</strong>. Studies of Oregon's experience <strong>in</strong>dicate that the
adoption of a statewide VBM system <strong>in</strong> 2000 had no substantial impact either on
voter participation or residual vote rates <strong>in</strong> Oregon elections. For exanipic, the
residual vote rate <strong>in</strong> Oregon <strong>in</strong> the 1996 presidential election (before adoptiot of
VBIN) was 1.5%, while the residual vote rate <strong>in</strong> Oregon <strong>in</strong> 2000 was 1.6%."
These figures do suggest that VBMN systems may produce significantly higher
residual vote rates than either PCOS or scroll<strong>in</strong>g DRE systens.

200
t N V or.* tl , n soors-s SYS-FM 're m sctsslsrY, USASLJT'. cos!
Although further rescarch must be conducted to determ<strong>in</strong>e precise causes of this
discrepancy, it may stem fron the fact mail-<strong>in</strong> ballots arce scanned <strong>and</strong> counted
us<strong>in</strong>g the same technolog) as the centrally counted optical scan systems used <strong>in</strong>
other jurisdictions. As showvn <strong>in</strong> Table U I, the residual vote ratc for such systems
<strong>in</strong> the 2004 elections was 1.7%. By def<strong>in</strong>ition, such systems do notrallow the soter
to be notified of or to correct, any under- or overeotes she toay havc tn<strong>in</strong>tentionally
<strong>in</strong>dicated on her ballot. Therefore, sshile vBM systems may hase other
benefits, these systems are not as effective <strong>in</strong> m<strong>in</strong>imnizig residual sotes as DRE or
PCOS systcml.
~IFU3 OTHER SYSTEMS
Typicalty, a BUD is an accesible
computer-bas~ed st<strong>in</strong> System ~nfortunately no data are yct available conctrn<strong>in</strong>g the actual residual vote rates
The ballot is marked as the result for Ballot Mas<strong>in</strong>g Devices ("BMADs") or Vote-by-Phone systems because few of
of roter <strong>in</strong>teraction with visual or thesc systems have yet been used <strong>in</strong> elections <strong>in</strong> this country.
audio prompts. Some jurisdirtions
use BMDs <strong>in</strong>stead of aeeestibte DREs
LIMITS OF RESIDUAL VOTE RATE STUDIES
Mcasur<strong>in</strong>g the residual vote. rates of top-of-thsticket races <strong>in</strong>dicates how often
voters itteract with a particular vot<strong>in</strong>g system ou Election Day <strong>in</strong> such manner as
to produce an <strong>in</strong>correct (or <strong>in</strong>effcctiec) vote tiat does not reflect their <strong>in</strong>tended
selections. But residual sote rates reflect only the frequency of voter errors; they
do not provide any basis to determ<strong>in</strong>e the reason for the voter errors ott a particular
type of vot<strong>in</strong>g systen. Moreover, fes if any jurisdictions gather data con-
cem<strong>in</strong>g the number or nature of requests for assisttace by voters on Election
Day, how long it takes for voters to vote, or any other <strong>in</strong>formation that swould help
to assess ths efficiency or confidetice produced by particular votuig systems. For
this reasot. election oflicials should consider ways to gather such <strong>in</strong>formation on
Election Day <strong>in</strong> selected prec<strong>in</strong>cts <strong>in</strong> order to facilitate future imprvetsments <strong>in</strong>
vot<strong>in</strong>g system <strong>and</strong> ballot design. In the meantime, election results provide an
important but limited way to assess the usability of a particular vot<strong>in</strong>g systetti.
oz KEY FINDINGS
Key f<strong>in</strong>d<strong>in</strong>gs from the l<strong>in</strong>ited available research on the ellectiveness of various
vot<strong>in</strong>g technologies are as followvs:
s. With few exceptions, PCOS systems <strong>and</strong> scroll<strong>in</strong>g DREs produce lower rates
of residual votes than central-coutst optical scan, Full-face DRE, or mixed
vot<strong>in</strong>g systems.
V' Residual vote rates are signiftcantly higher on DREs with a full-face ballot
design than on scroll<strong>in</strong>g DREs with a scrollitug or consecutive screen format.
The negative <strong>in</strong>spact of full-face ballot design <strong>in</strong> terms of lost votes is even
greater <strong>in</strong> low-<strong>in</strong>come <strong>and</strong> m<strong>in</strong>ority communities than <strong>in</strong> other communities.

201
5t PCQOS systems produce significantly lower residual vote rates than ccntralcount
optical scan systems because the former systems allow the voter to correct
ceta<strong>in</strong> of her errors prior to cast<strong>in</strong>g her ballot.
53 VBM systems produce higher residual votc rates than PCOS or DRE svstes.XVBM
V systems arc comparablc it) this regard to central-count optical
scan sysLems, which employ the samc technology <strong>and</strong> count<strong>in</strong>g proecss. Likc
central-count optical scan systems. VBM systems provide no opportuniry for
the voter to be notified of, or to correct, any under- or overvotes on her ballot
prior to its be<strong>in</strong>g counted.
> EFFICIENCY AND VOTER CONFIDENCE
The exisu<strong>in</strong>g research concernitg the time each systent requires so complete the
vot<strong>in</strong>g process, the hurdents imposed upon voters. atid the coisfidenre eacch systn
<strong>in</strong>spires among voters rema<strong>in</strong>s cstrec<strong>in</strong>ly limited. WVC sutmmarize that research
below.
xtx DREs
Several studies of DREs s<strong>in</strong>ce 2000 have provided an overview of potential
usability concems based ott limited test<strong>in</strong>g <strong>and</strong> expert riews, but scholars havc
only recently started to cotiduct fuller usability tests with statistical <strong>and</strong> analytical
significatsce."' In addition, two ecottomists recendy analyzed voter turnout it the
State or Georgia <strong>in</strong> 2002 <strong>and</strong> found a positive relationship between the proportion
of cederly voters <strong>and</strong> a decrease it voter turnout from 1 99 8 levcls: the
authors hypothesize tflat this evidence suggests that elderly volers were "apprehcnsivc"
about the statesside change <strong>in</strong> sot<strong>in</strong>g sechnology to DRF~s. 15
Dr. Frederick G. Conrad of the University of Michigan, <strong>and</strong> collaborators Paul
Herrnson, Ben Bederson, Dick Nicni <strong>and</strong> Mike Traugou, havc recently cotnpleted
one of the first major usibility tests on electronic vot<strong>in</strong>g systems other thats
vecndor test<strong>in</strong>g. They analyze the steps required to complete vot<strong>in</strong>g <strong>in</strong> a s<strong>in</strong>gle
clection <strong>and</strong> suggest that certa<strong>in</strong> DREs require substantially mote- actions by a
Loter.- re, touches to the serecti, turns to a navigatiotn sheel, at -usclect a c<strong>and</strong>idate
or ballot ttteasure thasu ot ier DREs. Not surpris<strong>in</strong>gly. they have fouttd that
more actions mean more timce to complcet the voI<strong>in</strong>g procss. as isll as lower
voter satisfaction with the DRE <strong>in</strong> question. In particulau; Hart hliterCisic's eSlate
required 3.92 at-tions per task <strong>and</strong> 10.56 m<strong>in</strong>utes on average for a voter to compleLe
the vot<strong>in</strong>g process while Diebold's AccuVotc-TS required only 1.89 actions
per task <strong>and</strong> only 4.68 m<strong>in</strong>utes to complete the process. Out of the six systems
analyzed, participants <strong>in</strong> that study <strong>in</strong>dicated that thev vvere most comfortable
us<strong>in</strong>g the AccuVote-TS <strong>and</strong> least comfortable us<strong>in</strong>g the cSlatc.'
The same researnct suggests, hosever, that desigit elements that decrease elftciency-
or voter conlidence may actually <strong>in</strong>crease the accuracy of votcrs' selections.
Fou example, eSlatcs approach to facilitat<strong>in</strong>g the voter's review of her selections

202
--c is'ls- C *a..ER ..s : -ssu; S SSr,, sN M 5, 5 ,. -V s.C ,C
SAS!L:T.1 COST
Usability test<strong>in</strong>g may be most prior to vot<strong>in</strong>g both adds time to the vot<strong>in</strong>g process <strong>and</strong> <strong>in</strong>creases the likelihood
valuable <strong>in</strong> evaluat<strong>in</strong>g the that a voter will catch her crrors <strong>and</strong> correct thetn prior to cast<strong>in</strong>g her ballot.
oerformrance of a system as Accord<strong>in</strong>gly. usability test<strong>in</strong>g nsay be most valuable not <strong>in</strong> clim<strong>in</strong>at<strong>in</strong>g any onc
a whole <strong>and</strong> is mak<strong>in</strong>g Cear problematic fcature of' a system. but <strong>in</strong>stead <strong>in</strong> evaluat<strong>in</strong>g the pe.formane of a
the tradeoffs elections officials system as a whole <strong>and</strong> its mak<strong>in</strong>g clear the tradeoffs election officials must conmust
consider. sider <strong>in</strong> slecit<strong>in</strong>g a ystem <strong>and</strong> <strong>in</strong> design<strong>in</strong>g the ballot <strong>and</strong> <strong>in</strong>structions.
In a rcsearch project sponsored by the Brennan Center forJustice <strong>and</strong> conductcd
bv MIT Professor Ted Selkcr, the authors conducted a one-day simulated
election test at a YMCA regularly used as a poll<strong>in</strong>g place. The test compared the
sot<strong>in</strong>g experiences or people with <strong>and</strong> swithout read<strong>in</strong>g disabilities on full-faced
vot<strong>in</strong>g mach<strong>in</strong>es <strong>and</strong> a st<strong>and</strong>ard screen-by-screen vot<strong>in</strong>g machsite. Three
machitses were tested: one DRE with a full-facc ballot (ES&S's V2000 LED); one
DRE seith a scrll<strong>in</strong>g ballot design <strong>and</strong> an LCD display (ES&S's iAounonic LCD);
<strong>and</strong> a prototype DRE with a full-face ballot displayed on a lecer mach<strong>in</strong>e-sizcd,
high-rcsolution screen (iVotuonic LS Full Faced DRE). 48 of 96 participants had
been prcviously diagnosed with a read<strong>in</strong>g disability, <strong>and</strong> researchers attempted to
catch undiagnosed read<strong>in</strong>g disabilities by test<strong>in</strong>g all participants prior to the vot<strong>in</strong>g
simulation. The results hase implications for all voters. Notably voters with
utsdiagnosed read<strong>in</strong>g disabilities <strong>and</strong> voters witb no disabilities had much higher
-ates of undervottes on full-faced machuies than on scroll<strong>in</strong>g vot<strong>in</strong>g mach<strong>in</strong>es.
Tlhis populatioi also had fcscr erroi s on thc commmercial DR-E than on full-faced
sot<strong>in</strong>g machises. People svho had been diagnosed seith read<strong>in</strong>g disabilities were
able to compeisate fsor their difliculties <strong>and</strong> had fewer than other panticipants on
full-faced uotsig mach<strong>in</strong>es. All voters took nsore than 3 m<strong>in</strong>utes to sote but all
read<strong>in</strong>g disabled people took loniger to vote on the scroll<strong>in</strong>g DRE than the ftulfaced
DRE.'" These conclusions confirm the evidence of higher <strong>in</strong>cidence of
"roll off' produced by full-face lcver <strong>and</strong> DRE vot<strong>in</strong>g systems <strong>in</strong> real clections&9
tm DRES w/ VVPT
Professor Selker <strong>and</strong> his team at -iTs Media Lab have attempted to assess the
extent to which svotrs swho use such mach<strong>in</strong>es actually rciese the XTVPT prior to
cast<strong>in</strong>g their votes. In their test<strong>in</strong>g, the authors found that no VVPT users repol ted
alsy errors dur<strong>in</strong>g the vot<strong>in</strong>g process though two existed for each ballot they
used. AL the end of the vot<strong>in</strong>g process, testers asked \-VPT users wvhcther they
believed any errots existed on their paper record cmcn if they did not report them.
Only 8% answered yes. It, contrast, users of an audio-based verification system
reported errors at higher rates. 14% of users reported errors dur<strong>in</strong>g the sot<strong>in</strong>g
process. aisd 85% of users told testers that they believed errors existed <strong>in</strong> the
ricord although they did not all report them.' Additional research needs to be
conducted to measurc thc efficiencs of <strong>and</strong> voter confidence <strong>in</strong> these systems. But
Dr. Sellker's research suggests that WVPTs may present significant usability problcmR
that can prevent voters from identify<strong>in</strong>g ermrs readily

ms PRECINCT-COUNT OPTICAL SCAN SYSTEMS
203
No availahle research has measured the efficiency of or soter confidence <strong>in</strong> optical
scan systems. T'his is a significant gap <strong>in</strong> the literature that hampers sound
comparisons betxveen DREs <strong>and</strong> optical scan systems <strong>and</strong> aLo limit public scruu<strong>in</strong>y
or ballot design <strong>in</strong> these systems.
JIta OTHER SYSTEMS
Unftortunately, no research is yct aailable that has measurel the efficiency of or
satcr conlfidence <strong>in</strong> BMDs or Vote-by-Phoue systems because fews of these, systems
have yet been used <strong>in</strong> elections <strong>in</strong> this country. In addition, no studies have
measured these variables fisr XIBM systems, as used presently <strong>in</strong> Oregon. 2 '

204
USABILITY PRINCIPLES
As this chapter establishes. the rescarch <strong>in</strong>to the usability of vot<strong>in</strong>g systems
described <strong>in</strong> this chapter desonssrates that scroll<strong>in</strong>g DREs <strong>and</strong> PCOS systems
protect voters aga<strong>in</strong>st their own errors more consistcntly than other types of sysems.
Still, only a few studies have compared different ballots directly or def<strong>in</strong>itihcly
determ<strong>in</strong>ed what makcs onie fonr of ballot more usable than another - ie.
less prone to produc<strong>in</strong>g errors, more efficient, <strong>and</strong> more conlldencc-<strong>in</strong>spir<strong>in</strong>g.
To be sure, usability experts have provided valuable guidel<strong>in</strong>es for elections officials
<strong>and</strong> the FAC that promise to improve the basic usability of vot<strong>in</strong>g systems.
StilL until new research correlates specific design elements svih measurable accuracy.
efficiency, <strong>and</strong> voter cotifidence, such usability guidel<strong>in</strong>es for vot<strong>in</strong>g systems
will rema<strong>in</strong> a iroek <strong>in</strong> progress. In addition, new rcscarch should reflect the perfoniiancc-based
thrust of the EAC's evolv<strong>in</strong>g vot<strong>in</strong>g system certification st<strong>and</strong>amds
<strong>and</strong> study the relationships betsveeon specific features <strong>and</strong> the comb<strong>in</strong>ed
effects of the design choices cmtbodied <strong>in</strong> a system, rather than just one facet of
a design.
For this project, we hase assembled the most significant lessonis drawsn not only
from our vwork with vot<strong>in</strong>g systems, but also from other areas <strong>in</strong> which usability
has improved the <strong>in</strong>teraction between humans mid technology We provide the
folloit<strong>in</strong>g diseussion of specific aieas of concern to assist elections officials its
design<strong>in</strong>g both the ballots for elections <strong>and</strong> the protocol for usability test<strong>in</strong>g that
should be conducted prior to complet<strong>in</strong>g such ballot design.
% DO NOT ASSUME FAMILIARITY WITH TECHNOLOGY.
Vot<strong>in</strong>g systems should rely as little as possible upon a voter's prior experience or
familiaciy with a particular type of technology or <strong>in</strong>terface. Consipuiter-based systems
present the most obvious concerns for elderly or marg<strong>in</strong>alixed voters who
may be unfamiliar sith ATMs, computers, or other similar technologies. E'en
optical scan systems that rely upon the voter's familiarity with "SAT-style" bubbes
to fill <strong>in</strong> prescist parallel problems. W'here feasible, elections officials should
address this concen <strong>in</strong> usability testng among likely voters to determiste the precise
effects of differeLti design elements upon voters with limited familiarity with
the techtsology <strong>in</strong> question. The results of such test<strong>in</strong>g msay also <strong>in</strong>form the design
of voter ediucation <strong>and</strong> outreach atid poll sorker trail<strong>in</strong>g prior to the clectiot.
Evet<strong>in</strong> without usability test<strong>in</strong>g, elections officials should select their jurisdiction's
ot<strong>in</strong>g systems <strong>and</strong> design the ballots Ior those systems with the recognition that
many voters, particularhs elderly voters. arm not fully famsiiar with technologies
used <strong>in</strong> AT qs <strong>and</strong> computcrs. The VVSG 2005 echoes this general rcconmtendation
<strong>in</strong> one of its specific requirements: "Vot<strong>in</strong>g systems with electronic displays
shall Hat require pqae strtlbt by the voter frg., with a scroll bar as aga<strong>in</strong>st a clearer
"ielXt page' buionI."n

USA,4 t. iS' .,'USE'iV¢ ':liNC-Pi E
205
a FOLLOW COMMON DESIGN CONVENTIONS.
Ballots <strong>and</strong> <strong>in</strong>stnuctions should <strong>in</strong>corporate st<strong>and</strong>ard consentions used <strong>in</strong> product
<strong>in</strong>terfaces to communicate a particular type OF <strong>in</strong>formation ot message <strong>and</strong> to
avoid conlusion.' For example. the color red is typically used to <strong>in</strong>dicate an r<strong>in</strong>ergency
or crror <strong>in</strong> need of attention, while green <strong>in</strong>dicates a selection to movc rorward
or activac the function <strong>in</strong> question. Consistent use of such generic conventions
throughout the vot<strong>in</strong>g process allows the voter to rely upon her exist<strong>in</strong>g
expericnce with those conventions to strml<strong>in</strong>e the process <strong>and</strong> clarify otherwvisc
ambiguous <strong>in</strong>structions, but does so without makitg her success depend upon any
specific prior knowledge or experience. Elections oflicials should be aware of
such contentions if they arc called upon to select color schemes <strong>in</strong> design<strong>in</strong>g the
ballot for an elcction <strong>in</strong> their jurisdictions All usabilty guidel<strong>in</strong>es draw on comnmonly
accepted typographic pr<strong>in</strong>ciplrv For example. D)rs. Kimball <strong>and</strong> Kropf
suggest us<strong>in</strong>g text bold<strong>in</strong>g to highlight certa<strong>in</strong> <strong>in</strong>formation on the balot:
r Ballots shotld use boldfaced text to help voters differentiate bcetwees office
titles <strong>and</strong> response options (c<strong>and</strong>idate names).2
The Plait Language Guidelites also <strong>in</strong>clude typogtaphic pr<strong>in</strong>ciples, such as:
r' Use -but don't ocruse -- highlight<strong>in</strong>g techniques.
a Use 8 to 10 po<strong>in</strong>t type for text (ie., larger than that used <strong>in</strong> ost goverttment
forms at tile time).
Avoid l<strong>in</strong>es of type that air too long or too short.
a Lrse white space <strong>and</strong> iusag<strong>in</strong>s between sections.
Use ragged right marg<strong>in</strong>s.
2 Avoid usitsg all capitals.
The VAvSG 2005 also <strong>in</strong>cludes design guidel<strong>in</strong>es that address cotmnon desigsn
issues such as color, size <strong>and</strong> contrast for <strong>in</strong>forniation:
* The use of color should agree with common conventions, eg. red should be
used to itdicate errors or problems requir<strong>in</strong>g immediate attention.
i The m<strong>in</strong>imum font size for text <strong>in</strong>tended for the voter shall be 3.0 mm, <strong>and</strong>
should be <strong>in</strong> a sans-serif font.'
'5 The misimum "f'gure-to-grottd ambient contrast ratio' for text <strong>and</strong> graphics
sshall
bc 3:1.M

206
$5.E t5R 0; M11C5ACV VOT!NO sYrsTE s'C

ORAMOafI . .. " 5..! ' '.
207
ta LOCATE INSTRUCTIONS SO THEY WILL BE CLEAR.
Proper <strong>in</strong>structions must be presented <strong>in</strong> a manner that is helpful to voters, rather
than confus<strong>in</strong>g or overwhelm<strong>in</strong>g. Accord<strong>in</strong>g to geiseral guidel<strong>in</strong>es, <strong>in</strong>structions
should be placed ncar the process they describe. When a procedstrc requires several
steps, <strong>in</strong>structions should be provided at each step, rather than only at the
beg<strong>in</strong>n<strong>in</strong>g3Y In addition, research <strong>in</strong>to the impact on usability of different formats
for pnesent<strong>in</strong>g on-lite <strong>in</strong>formation has demonstrated that, particularly lor users
with l<strong>in</strong>ited literacy, <strong>in</strong>formation should be presented its a s<strong>in</strong>gic-colu<strong>in</strong> format
rather than a multi-column format to improve readability' Accord<strong>in</strong>g to
research cottducted by Drs. Kimball <strong>and</strong> Kropf, voters us<strong>in</strong>g optical scan ballots
ofteen ignored text that spanscd the top of a multi-column ballot Accord<strong>in</strong>gly,
they recommend that:
Vot<strong>in</strong>g <strong>in</strong>structions should be located <strong>in</strong> the sop left corner of the ballot, just
abovc the first contest. That is where people <strong>in</strong> Western cultures beg<strong>in</strong> read<strong>in</strong>g
a pr<strong>in</strong>ted page <strong>and</strong> where respondents will look for ittstructions on the
fuim task'
Where possible, elections officials should design stsability test<strong>in</strong>g that will identify
the best approach to provide cleart readable <strong>in</strong>structions to voters throighosut the
vot<strong>in</strong>g process.
<strong>in</strong> ELIMINATE EXTRANEOUS INFORMATION.
Ballot design should elim<strong>in</strong>ate all extraneous <strong>in</strong>formation from the votels fleld of
vision auld m<strong>in</strong>imize visual or audio distractions from the task at h<strong>and</strong>-r Voters
may become overwhelmed or cotifused by such unnecessary material. This phcnomenon
may cxpla<strong>in</strong> <strong>in</strong> part the higher levels of "roll off" produced by vot<strong>in</strong>g
systems that present the voter vish all of the races <strong>and</strong> ballot questions at once
ott a s<strong>in</strong>gle stirface.' Even for paper ballots, Drs. Kimball <strong>and</strong> lKropf suggest that
designers elim<strong>in</strong>ate <strong>in</strong>formation not immediately necessary to vote:
n Ballots should avoid clutter around c<strong>and</strong>idate names (such as a c<strong>and</strong>idate's
occupation or hometown).C,
Es PROVIDE CLEAR MECHANISMS
FOR RECORDING AND REVIEWING VOTES.
Votng systems should clea ly <strong>in</strong>dicate where a voter should mark her selections,
<strong>and</strong> provide ongo<strong>in</strong>g feedback to the voter to ensure that she knows which selections
she has already ntade <strong>and</strong> whtich rema<strong>in</strong>. This <strong>in</strong>formation orients the voter
to avoid confusion or lost votes due to such confusion. Des. Kimball <strong>and</strong> Kropf
suggest a specific guidel<strong>in</strong>e to help ensure that a system offers clear <strong>and</strong> unambiguous
feedback to the voter as ssh marks her ballot:

208
.v To m<strong>in</strong>imrize ambiguity about where voters should mark their votcs, ballots
should avoid locat<strong>in</strong>g response options on both sides of c<strong>and</strong>idate names (this
is a common problem on optical scan ballots. where tho or three columns of
offices <strong>and</strong> c<strong>and</strong>idate names are listed on a s<strong>in</strong>glc pagr).'
Thc VVSG 2005 also <strong>in</strong>cludes requirements that address this issue:
r "There shall be a consistent relationship bctwccn the name of a c<strong>and</strong>idate
atid dhe mechanism used to votc for that c<strong>and</strong>idate," ag, the button fbr select<strong>in</strong>g
c<strong>and</strong>idates should ahvays be on the lefi of thc c<strong>and</strong>idatcs&
Vot<strong>in</strong>g systems shsal provide unambiguous feedback to <strong>in</strong>dicate the voter's
selection (e.&, a checktnark becide the chosen c<strong>and</strong>idate).'
'-<strong>in</strong>put mechanisms shall be designed so as to tn<strong>in</strong>imize accidental activadon."''
A recent study of ballot design changes <strong>in</strong>iplemetited <strong>in</strong> Ill<strong>in</strong>ois betweets 2000
<strong>and</strong> 2002 underscores this po<strong>in</strong>t."l In Ill<strong>in</strong>ois, voters must cast judictal retention
votes <strong>in</strong> each election, us<strong>in</strong>g long lists of sitt<strong>in</strong>g judges for which voters must vote
either "yes" or 'no." In 2000, Cook County sssitched to a butterfly design for
their punch cared system, atid the percentage of people who cast votes <strong>in</strong> the judicial
retetiton elections dropped significantly
FIGURE Ul
PUNCH CARD BALLOT USED IN 2000
In 2002 Marcia Lauscn, of Design for Democracy, <strong>and</strong> the county election
department redesigned the county's ballot. Lausen <strong>and</strong> her colleagues clarified

209
where voters should mark their ballots by stack<strong>in</strong>g all of the resemionl c<strong>and</strong>idates
<strong>in</strong> s<strong>in</strong>gle columns on lefi-h<strong>and</strong> pages only
FIGURE U2
BALLOT DESIGN USED IN 2002
M' ~ v
T'he improtement -as dramatic. In the 2002 <strong>and</strong> 2004 elections even whilc
reta<strong>in</strong><strong>in</strong>g the smaller-hole punch card, judicial retention vot<strong>in</strong>g returned to its
pte-2000 levcls with no abnormal loss of voters. Figurc 3 shows the votes cast <strong>in</strong>
sequence for Cook County retention judges before, dur<strong>in</strong>g attd afier 2000. Note
the pWaks <strong>and</strong> vwallevs that correspond to page changes on the 2000 ballot. Before
the change, soters would repeatedly beg<strong>in</strong> aga<strong>in</strong> after turn<strong>in</strong>g the page, <strong>and</strong> then
give up.
FIGURE U1
110%
90%
90%
... ~~~~~~~~~~~~~~~~~~~~~~~~~~~~. .. _. _.. . _._. _. _... ._.______.___.._.__
VOTES CAST FOR COOK COUNTY RETENT1ON JUDGES, 1982-2004
Si I~~~~~~~~~~~~~~~9ii2-195d
-eqp:
i 0 s~~~~~~~~~~~~~~~~~<strong>and</strong>esi
oud
B \.udansd uf4
70%
60%,,
70 ti ;i ;6 i; 26 Si 36' 4i 46 I, I 5 . 6 I
tBllot iPo,,Uosi

Systems that allow voters to
reviewv their choices <strong>in</strong> a clearly
presented format, rather than
simply ask<strong>in</strong>g if they are ready
to cast their ballots, can reduce
un<strong>in</strong>tentional eororm
210
'il 4,4-.,''! 04 O`i'i.CSAC' : !C S:5it U S;'.UV . > i ii5i1: U £I:I'g' COS,
i.4 CREATE CLEAR CLOSURE.
Where applicable, the ballot presentation should make clear when the voter has
completed each step or taskk <strong>in</strong> the vot<strong>in</strong>g process. Wvhcther through clear organizatiton
of the ballot or through express messages on a screen, the system should
seek to reduce the likelihood of voter confusion or error by <strong>in</strong>struta<strong>in</strong>g how to
complete each task <strong>and</strong> then mak<strong>in</strong>g clear ,,hen each task has been sucessfully
completed. This pr<strong>in</strong>ciple should apply as Niel to mak<strong>in</strong>g clear to the voter when
she has completed the vot<strong>in</strong>g process iby cast<strong>in</strong>g her votc. Drs. Kimball <strong>and</strong> Klopf
suggest that dcsignecs use shad<strong>in</strong>g to separate sections of the ballot:
Ballots should use .shad<strong>in</strong>g to help votcrs identify separate vot<strong>in</strong>g tasks <strong>and</strong>
differentiate between ofitces."
a REDUCE MEMORY LOAD.
Vot<strong>in</strong>g systems should m<strong>in</strong>imize the memory load on the voter, allow<strong>in</strong>g her to
reviess, rather than remcmber, each of her choices diu<strong>in</strong>g the vot<strong>in</strong>g process
Undue memory burdens may confiuse voters <strong>and</strong> lead to errors or delays. For
txatisplc, systems that allow voters to review their choices <strong>in</strong> a clearly presented
format, rather than simply ask<strong>in</strong>g if they arc ready to cast their ballots, can
reduce ut<strong>in</strong>tentiotal crror. At least one requirement <strong>in</strong> the X'VVSG 2005 addresses
the problem of memory load <strong>and</strong> possible confusion if the vo ter is required to
u-ack a contest froeit one part or IIe ballot to anotter
is Vot<strong>in</strong>g systems "should not visually present a s<strong>in</strong>gle contest spread over two
pages or two columns.-'
Elections officials shottld consider this pr<strong>in</strong>ciple <strong>in</strong> seleet<strong>in</strong>g a vot<strong>in</strong>g system, <strong>in</strong>
develop<strong>in</strong>g usability test<strong>in</strong>g to improve ballot design, atid <strong>in</strong> design<strong>in</strong>g the ballot
<strong>and</strong> <strong>in</strong>structions for theirjurisdiction.
o NOTIFY VOTERS OF ERRORS.
The vot<strong>in</strong>g system should pla<strong>in</strong>ly notify the voter of her errors <strong>and</strong> provide a
clear <strong>and</strong> easy opportunity to correct such crrors. In particular, a voter should be
<strong>in</strong>formed of any under- or overvotes prior to cast<strong>in</strong>g her sote. In paper-based systems
such as optical scaan systems. this requirement means that the scanner must
be programmed to return immediately to the voter for correction any ballot that
itcludes such an error. In DREs, the system should notify the voter of any such
cror <strong>and</strong> provide an opportunity <strong>and</strong> <strong>in</strong>structions to correct it. Drs. Kimball <strong>and</strong>
Kropf's guidel<strong>in</strong>es <strong>in</strong>clude:
Ballot <strong>in</strong>structions should ws'arn
about the consequences of cast<strong>in</strong>g a spoiled
ballot <strong>and</strong> expla<strong>in</strong> hosw to correct a spoiled ballot (required by the Help
America Vote Act of 2002).'

L'SD55:IIY - i5A5OF.S3: S
..........
211
The VVSG 2005 also requires noLificaion of errors, stress<strong>in</strong>g the importance of
not<strong>in</strong>g any under- or orvotes. The gtidel<strong>in</strong>es also recommend that all warn<strong>in</strong>sgs
function <strong>in</strong> a similar nmanner. not ottly stat<strong>in</strong>g the problem, but do<strong>in</strong>g so <strong>in</strong> a cornprchensible
manner <strong>and</strong> oferrisg options to address it:
'3 Warn<strong>in</strong>gs to the voter should clearly state the natsre. of the problem <strong>and</strong> the
responses available to the voter. 5
e MAKE IT EASY TO CORRECT ERRORS.
The federal Help America Vote Act requires that voters have an opportuttity to
correct errors on their ballots.A But if correct<strong>in</strong>g errors dur<strong>in</strong>g the vot<strong>in</strong>g process
imposes a sigtsificant burden ott voters, the number of voters who choose not to
make correcwions <strong>in</strong>creases, lead<strong>in</strong>g to higher residual vote rates. Accordl<strong>in</strong>gly, the
mechanism for correct<strong>in</strong>g errors must be casy both to underst<strong>and</strong> <strong>and</strong> to exersstc.
In their laboratory rTsearch on DREs. Dr. Conrad et al. found that the Diebold
AccuVoie-TS required the voter to de-sclect an erroneous c<strong>and</strong>idate selection
before touch<strong>in</strong>g her preferred c<strong>and</strong>idate on the screen: this extra step caused confusion
among participants <strong>and</strong> led to at least one error.' By contrast, other DREs
under study did not require that extra step <strong>in</strong> the error correction process. The
NAXSG 2005 <strong>in</strong>cludes sevcral requirements to provide <strong>opportunities</strong> for error correction
<strong>and</strong> ensure that voters can extend a warn<strong>in</strong>g period if they need more
n<strong>in</strong>e:
5 DREs 'shall allow the voter to change a vote with<strong>in</strong> a contest before advanc<strong>in</strong>g
to the next contest."'
S Vot<strong>in</strong>g systems "shall provide the voter the opportunitv to correct the ballot
for either an undervote or overvote before the balot is cast <strong>and</strong> counted" <strong>and</strong>
"shalD allow the voter . . .to submit an undervoted or overvoted ballot.""'
a If the vot<strong>in</strong>g system requires a response by the voter with<strong>in</strong> a specified period
of time, it shall issue. an alert at least 20 seconds bcfsore this period
cxpires.,l

212
RECOMMENDATIONS
Our review of usability research on various technologies, <strong>in</strong>clud<strong>in</strong>g but not limited
to vot<strong>in</strong>g systems., po<strong>in</strong>ts us to sevcral recomnmcndations <strong>in</strong> the areas of ballot
design <strong>and</strong> system <strong>in</strong>strucLions. These recommncticdations should assist election
officials <strong>in</strong> mak<strong>in</strong>g purchase decisions <strong>and</strong> <strong>in</strong> nsaximiz<strong>in</strong>g a vot<strong>in</strong>g system's usability
onec it is purchased <strong>and</strong> beforc ballot designs <strong>and</strong> <strong>in</strong>structions are f<strong>in</strong>alized.
s Do tsoit 11ssutniLc familialits wish te-cnioloem Where feasible, clcctions officials
should address this concerts <strong>in</strong> usability test<strong>in</strong>g ansong likely voters to determ<strong>in</strong>e
the precise effects of different design elements upon voters with limited
fatiliarits with the technology <strong>in</strong> question .1he results of such test<strong>in</strong>g should
also <strong>in</strong>sform the design of voter education <strong>and</strong> outreach <strong>and</strong> poll worker traits-
<strong>in</strong>g prior to the election.
Coniduct usability stsng nt iposed btllots before f<strong>in</strong>sliz<strong>in</strong>ig their design.
Usitbilitv test<strong>in</strong>g of specific models with<strong>in</strong> a -pe of vot<strong>in</strong>g sysicm is critical if
chiction officials are to redtice unnecessary voter errors. Election officials
should not assunse familiarity with technology or a particular voter <strong>in</strong>terface.
tCirat. pla<strong>in</strong> <strong>in</strong>sesiass ills tilill; isi tng sages <strong>in</strong> bnths Englih a.nd thiltr
<strong>in</strong>gnaage~s romsmonls it-nd <strong>in</strong> the jisisidieion. Use of pla<strong>in</strong> language that is
easy to underst<strong>and</strong> quickly is critical to avoid<strong>in</strong>g voter error. Boil DREs <strong>and</strong>
optical scan systems produce substantially higher residual vote tsates <strong>in</strong> ju<strong>in</strong>sdictions
with a Hispanic population of at least 30", This suggests that pla<strong>in</strong>
language <strong>in</strong>structions <strong>in</strong> both Entglish anid Spanish are critical to reduce voter
errors, even wherc Spanish language ballots are not required under the
Vot<strong>in</strong>g Rights Act
Locate iist-nictions so the are not confus<strong>in</strong>ig or igsontl. Instructions should
be placed <strong>in</strong> the top left of the frame, where possible. In addition, <strong>in</strong>formation
should be presented <strong>in</strong> a s<strong>in</strong>gle-c-olumn format rather than a multi-oluntil
format uo improve readability
- For bi'th balloti <strong>and</strong> ils<strong>in</strong>ictiomS, uissvrporasc stasndrard coon nso uils <strong>in</strong>
pltxtu iislcrt siet to s nommitlslcas a particuiau typc of islifrrniatioss or niessa<strong>in</strong>
Consistesst use of gencic conventions (eSg red = warn<strong>in</strong>g or error)
throughout the vot<strong>in</strong>g process allows the soter to rcly on her exist<strong>in</strong>g experi-
-ciec to streamlisse the process <strong>and</strong> clarify otherwisc ambigitosts <strong>in</strong>structions.
' Do not creats hlmlloss s hbr t-atsdid;avts lir the saute ofllic appt-ar <strong>in</strong> iultiple
coltsnwn r
oi sr) multipsl paFnS. List<strong>in</strong>g c<strong>and</strong>idates for the same office <strong>in</strong> multiple
columns or on multiple pages (as <strong>in</strong> the <strong>in</strong>famous "butterfly ballot" used
<strong>in</strong> Pahtn Beach County llotida <strong>in</strong> 2000. or <strong>in</strong> optical scan ballots that allowv
a contest to cont<strong>in</strong>ue fiom one column toi another) produces higher sates of
residisal votes (both overvotes atsd usdervotes).

213
59 Usc fill-<strong>in</strong>-bte-ocal ballots, not onoitnet-the-arros ballnts. for optical scan sovtcrns.
In optical scan systems, residual votes (<strong>and</strong> especially ovcrvotes) are less
common on fill-<strong>in</strong>-tec-oval ballots thani ott connect-the-arrow ballots. The
latter design should not he used.
'T Flim<strong>in</strong>ate cxlratsncts. <strong>in</strong>for<strong>in</strong>ition ott hllos. Ballot desigit should elim<strong>in</strong>atc
all extraneous <strong>in</strong>formation from the voter's fiecld of vision antI m<strong>in</strong>imize visuai
or audio distractions from the task at h<strong>and</strong>. Voters may become overwhelmed
or confused by such unnecessary material.
Ia Ensure bttat ballot <strong>in</strong>strmrsions make clear that voice- sbhould itot cast both a
xsvtitc-it <strong>and</strong> normal vote. Write-<strong>in</strong> l<strong>in</strong>es are a source of many oVervotes, as
many soters seJct a c<strong>and</strong>idate. whose name is ponted on the ballot <strong>and</strong> then
-rite the same name on dite write-<strong>in</strong> l<strong>in</strong>e. Election oliScials should make surc
that <strong>in</strong>structions clearly state voters should not cast votes <strong>in</strong> both areas of the
ballot. At the same time. state laws should be amended to require that sucl
ballots be. counted rather thatt set aside as spiziled. as long as both the write<strong>in</strong>
vote <strong>and</strong> the normal votc are clearly cast for the same c<strong>and</strong>idate. 52
D5 Provido. mcrhanistus ler ccorel<strong>in</strong>g <strong>and</strong> rviess<strong>in</strong>g votes. Vot<strong>in</strong>g systetls
should provide ongo<strong>in</strong>g feedback to the voter to ensure that she knows swhich
selections she has already made <strong>and</strong> which rema<strong>in</strong>. This <strong>in</strong>formation orients
the voter to avoid confusion or lost sotes due to such contusion.
cY Make clear shelen lie so- has completed casths step or sask <strong>in</strong> the vrs~lg
proec5s WXhethcr thmumgh clear organization of the ballot or through excpress
messages on a screen, the system should rnduce the likelihood of co<strong>in</strong>fusioit
or error by <strong>in</strong>struct<strong>in</strong>g voters hosw to complete cach task <strong>and</strong> theit mak<strong>in</strong>g
clear wshen each task has been stircessfully completed.
t2 i<strong>in</strong>liieC tihe meTnorv load on the s-nsa. allosw<strong>in</strong>g her to rr.sisv, rather than
recmenber, caih of bc- choirces dur<strong>in</strong>sg the, v*t<strong>in</strong>g prosess. Undue memory
burdens reduce accuracy, <strong>and</strong> may confuse suters u<strong>and</strong> lead to errors or
delays.
12 En1Sr the vothitg is ste<strong>in</strong> plaitly notifies the w)tste of her errors. Its particular,
a voter should be iofonned of any under- or overvotes prior to cast<strong>in</strong>g her
vote. In paper-based systems such as optical scan systems, this requirement
means that the scanner must be programmed so that the ballot is immcdiatcly
returtied to the voter fbr correction of either of these k<strong>in</strong>ds of error.
5 ltake it caisa
for sotcrs to correct their rrrors. If soters f<strong>in</strong>d it difficult to correct
their ossn errors dur<strong>in</strong>g the vot<strong>in</strong>g prcess. then the number of voters
who choose not to make corrections <strong>in</strong>creases, lead<strong>in</strong>g to higher residual vote
rates. Accord<strong>in</strong>gly, the mechanism for correctiitg crrors niust be easy both to
understaned <strong>and</strong> to execute without any unncecssa y, extra steps to complete.

ENDNOTES
214.
I Ahhoogh dh e is no frmn conDsst on pn -isc belrohtark, to measure the usability of vot<strong>in</strong>g
synenn acadtnsics <strong>and</strong> <strong>in</strong>thorey rescanhers hae deceloped detign goiddnses <strong>in</strong> other aa,,
must amporu<strong>and</strong>y <strong>in</strong> wd-rser deign, thut can irenno. rability. Se Sa.ayJ Koyanl er al., UIS
Dept. of Heahh <strong>and</strong> Hunan Resounces, Rt S-Bsd W6id Drum <strong>and</strong> Usraii Cwrir (Sept.
2003). rrria rat htptI/u/ sbDistgn/ /pi kgs/ld<strong>in</strong>esjsoA.pdC
2
For a faD mmemary of the VVSG usability nqrviremnnts rrAppendb, A.
3
atnerational Organiatrion for St<strong>and</strong>oanlimauon, Erosmar Rqa-r)n5sr Off- Itiek trilA
Ihul Dtispla Ta-d-a& at I 1, ISO 9241 (1997); -r Sharon Iaskoaski et W., National Iasmrite of
St<strong>and</strong>ards <strong>and</strong> Technology, I/p g <strong>in</strong> U6 a rrrny adl AIrs/l 9f Itag ekrrss <strong>and</strong> Pdtis uw 8
(20W). ,uudalde as htrp://sore.ni4.g-/Fnal%201lan%20FacuRcpon%20%205-04.pd
4 Thc IEEE h.s tbf<strong>in</strong>ed a nsabie tmaig spstrn as one that allows soeer to cast a ballot:
a Ca.sreccdv -cnoers emrn tly oa- the .stiasg to -sgs n-tr thm* imtended secltions with
tn<strong>in</strong>i-31 -rra
n ElRicntiy - strttle ctter, thc ot<strong>in</strong>g pascas <strong>in</strong> a tidntly mann <strong>and</strong> nithoo unpruducuti,
unanted untercaaion- with the systenI.
o Confukmly -oters arc confid . (1 )i <strong>in</strong> what actions they had to perfonn <strong>in</strong> oWet to vote,
(2) that their
*aured.
ots we correcy ncorded by the s+ste-, <strong>and</strong> (3) that their peviac es
Itnsttc of Elecuical <strong>and</strong> Electonirs Ennres Uabt,- <strong>and</strong> r
htop: //g upre .icg/gro.psa/-r38/ 1583/documnens-_p 5
dsitra Sisdrdr §§ 5.3, at 3. at
t.S=sios%203 3%20Utabistv
Aeccasibil<strong>in</strong>y%20(tarchl201i,%202003).DOC. (Mae Itt, 2003); trJohn M. O'Haa, Imstiute of
Electrical <strong>and</strong> Eletrnnics Ena<strong>in</strong>ees, .4 P.Prd Apn4rh to Earig do IiEFE rhi//Aersii//(a
Sl<strong>and</strong>rads, at htp: //gcoupce.ieec.o-g/g-oaps/scc38/158,3/docnent_-_pI583/Stmd-trdh%20
Testng%20W 'hite%2oPaper%20%Rr%201 dce (Apr 3. 2I003.
5 The 2005 VVSG mirror thc IEEE defitti<strong>in</strong>o of a wable ou<strong>in</strong>g eorna. csla<strong>in</strong>itg that
ansog the banic mretass for 3sability ar-
* Low- n csc fur I tmarikg the ballot (the xOter clectiou is corrcty or.nered so <strong>and</strong> rtcp
sented with<strong>in</strong> the st<strong>in</strong>g -sstm!
* Eicicit pecaion (tioe required to vote is nou e-cessive)
D Samisfcrtion (-ottr esperteace issat-, cf-oaslde, tlee of stress <strong>and</strong> <strong>in</strong>suills confidence).
Eleet<strong>in</strong>tt Assistance Conuision. i/ant<strong>in</strong> . Cideas, Vohume I Vrenaio 1.0 at §§ 3.1
0)5} a/h/, at hotp //ssw.e.ac ga /vSG%2(lVlu-ceLpdS (her<strong>in</strong>after EAC VAVSGJ.
0
rThe rsidual vosC rauc does not irwlttdc ballots that are not cotued Cor nusos hlattng uo a
voters <strong>in</strong>rhplity us vot.c
7 Stephen K.nack snd Martha K<strong>in</strong>pt Ra°D Offal thr Top f , Ba//ot: hJIsrnkita l kdenor et
.4rnaiean /SssdorluElefi, 31 Pcit'IT.Mt & Pot.tc 57:r594 (2)03); Niehacl Tsna & Rtdert P. Van
Honsel<strong>in</strong>- luwe Dl) li<strong>in</strong>g Epfrorp .AU/feel do Raasal Cup is lhIdd Baae'. 47 AmE rucctNJou-RrNs,
or POltmtcT. SCtFACee 46,57 (Jan. 20031
Cep. RaPbeas DSary <strong>and</strong> Anne Schrrerr. C~attug Baa M ats, -Off ad 'I- B.ek oIk, 42
V.SFIT.*N Potrtc*I. QumtrtyrL 347 (19I9i,; Srephrn ! .Nkhoi3 S5e RrJ-.h itb aa Rwa -
of rnd thFftol f.1 ire Uasl Rulkr. 30 St sit ANDt lc.ctx GOsTyNeuscr Rcvati. 106-1 17
( Stel,; Stephens Knack <strong>and</strong> Manha Kropf, Itrdias BaUa im do 1996 Pnsed/al Eerlte A
(Srar-Lrvd Adjusa, 65 JouRxt oF Pot rtcs 881 (lMa 200i) at/aa at http://-ssosttetsh.edu/medi/doeuscnus/ik.cic-kmop(32.pdf
Mlichacl C. Hcrrnn <strong>and</strong> Jwieret & Sekhrmo
OCmol.ttg ae/d RsPtatt Au4r. E--ruaa of O.Yndcd PidadW BY ua Bui <strong>and</strong> erd- , -Dade
CAuuu.,, 22 EitrmcmLst. STntcrs 21 (Sept. 2001) , at latp.//rions.helsley.tda/vleetf<strong>in</strong>200/H-.rnSeckhwoi.prDf
Dasid C. iimhball e el., Laerd lts ad Ibk Rpata, i
CO!:NTING. VoetMs: I F'S ,ONN F<strong>in</strong>cOt nrrF. 2000 PRtsiDtoren.st ErxcnOr oCNi- nRsm.% at 13 SSobt P

_ .. ,............ ._..__.......... __.. .___
.Isalt: f ! ;eNNOUts
215
'aso.,nn. cd.. 2004) ofath.' cl httR'f/s frkunblld/iumsp pdf; R. Michacl Alrmz,
d al.. Caotiq Ba <strong>and</strong> tI, 2000 !o i- ltrsat Ityo1 Witmqg? (FRb. 21X34i .A
http://sessshsisealtech cIhI-betsy/pap rs/Chltpa'l.pdf;.ljstia Btthklr I al, Pati Cro
Teitaehy sad Wt Rhrial Gcp it Rendno I;let, 2 ttePimc.s Or, ftu.ctcn 517 :.20i04j aert!tat ot
httpi//jourtnbedge-ambidg/aettio/tbsplayAbisttracfitsmm .Nsonlitte&tiidO246i00.
9 7he data as.titlbk wto -as<strong>in</strong>e residalnotes <strong>in</strong> Amerian elections m still limited. Sertral
states still do nom collet data oe th1e numbr of balblot <strong>in</strong>st itotteleti anc n heat h arc estlettcdo tcorputt
esiual ote mrtc; <strong>in</strong>stead. thesestats nepo the nsabee of sotes rectied for the contm at
the wtp or the ballot. ThiB pratsic recq<strong>in</strong>se rcsranchrs Eo seek data itrm htmal jurisdicioaiw (Croaties
or t-as). ihich do not gather scuh data it tomr cases In additioo, no statc atid local elotsimt
oftfcials dn not gather <strong>and</strong> .e.au data on the nuoterr of o .eccotes astd tdest.
Ideally, elion officials .ould colkct data on the nautie of otet's who sign the poll book.
the olnier of ballots cJSt, os-oes. <strong>and</strong> undests foe each contest o the baltn as the prec<strong>in</strong>ct
ksel (ic the Dts lesel of aggregatiot posmible). Bcgsnniog it 2004, the. Cdenrd Election
Assistarce CottmtLsstosn enqttesttd chat stats beg<strong>in</strong> to report th <strong>in</strong>strheation foe each lkcal juridiedon,
<strong>and</strong> the EAC piblishcd the iest Electits Day S.e-y <strong>in</strong> September 2005.
Fonrhe, data on poll<strong>in</strong>g place coselitio.t <strong>and</strong> pecetisanc ate entedy n hmitnd. It the last rto
yeas;, nescarches has surted organiz<strong>in</strong>g teanms of obsenrn t measno poll<strong>in</strong>g plac accestsibiity
<strong>and</strong> other cottiiots, Is, additson to the hoig cost of thcsx snudies. hoses, legl bahimes lisnit their
eacnh. Itt se l states. iic Claiornia. sutae lav. eplicitly aloies research teams to hserse poll<strong>in</strong>g
places dur<strong>in</strong>g electens t. other stairs lle Mis.somit slate bLo prohibt researchers font ciidoctimg
n seanh li poll<strong>in</strong>g ploes These liotitoion, make it diliorul to cotonl the duTcorenos itt poljl<strong>in</strong>g
place cnnditons ,then assss<strong>in</strong>g the peEfronce of stiog systems
10 The Insdiutcs ertarh hm, been cowd.ated <strong>in</strong> associaion uth -seathets at the
Uniestity of Rosheatr the Usisesity of Ml1uod, Geosgeniwn Usisertity, <strong>and</strong> the Marylattd
State Boaod of Ekltits.
II Strnd Conrad l A, A L toy Ecla<strong>in</strong>if Sc Ekltoir. l*6 Afahits. Jly 2,2005) (A
presentation gien to the Uvahility Professionals Assocration) aerti-aU, t http://ssws.upasrootrg/
snahiiirlstvjntase/essnfrssce/7005/C.'oorad ppL
12 As noted a.eadsj the hesut fDonn Ns.tdo may eflect duu state's un'tqe ballot options
iithee than tte soizn syesn used.
13 Dasid C. Kitoball <strong>and</strong> Martha Knpf tt Dei d Utmedot Iit o Pape -iad Marot
69 PLUotJc OtntotN QjMAneTRLY 50R (7002), cnrdobk ru htip:/s/ss-.tarbLcd./--bdalld/kkpoq
05.pdf
14 MicharlJ. Hanmer <strong>and</strong> Michael WY 'rttgon, rte ota ?f ihieg he Mions lie e Bha;
32 A5w5.RICAN Posnctro REACcstt 375, (ttO).
15 Eer earlier studics that depended psicipaly on saewy Of sof ers, emTper enies ad limtited
fltd 1stitg, - PauI S. Hcertoa C A, EDIP .4ptsI of Eksic 1 23 Soctti. SctENCZ
Comspumit Rlcv. 274 (200) sunsmariig limited pass netrareh <strong>and</strong> psent<strong>in</strong>g -esls, of analysis
of Dihcods Aect ,~tc-TS DRE) tosal t hatqc/ftheorvks.sis.-da/-nses iog/eeportol
Eaels'AppmaisabOFEleemencX bot<strong>in</strong>gpdf; Beejan<strong>in</strong> B. Bedseoo. ad G roni 1I6 Vstoo istutir
Iso, ClH 2003, at 145-1lf2 (Paper frson the Confesenc on Human acuts <strong>in</strong> Compuiung
Systems sponsonrd by the Assocrmiout lbc Cntspatiog hslach<strong>in</strong>eey's <strong>Special</strong> Interest GCop on
Comspuuee-lona. Isloteection) (Apr. 5-10. 21(13) seiess <strong>in</strong>g eqxe atid non-espen sultctitc clmt-ts
ot <strong>in</strong>ability of lecronic cotisig ysrto toed <strong>in</strong> IMrylaud, Diebolds A-etXtiae-'St,
etsna<strong>in</strong><strong>in</strong> B. Bederson & PattI S fienso, UOkii Risac of IAe Dieb Syavmf aDR? / r n
tN Mtm Slile of A1erA Unai of M-l<strong>and</strong> (20031 G hupt//tsseapc.utd.edo/rpts/SIDE'ote
Mfach.pdL Centrr for A<strong>in</strong>eresrc Politics, <strong>and</strong> Citnimnship, .4 F t of Marstod's .e Aise If ti
M1aofies (Dee. 2, 2002 (stunariz<strong>in</strong>g -estdt of exit poll sures' it tWO Maeylatd costletis, ailsde
at hstp: //sssss-capet<strong>and</strong>.edtt/rpts/MD EVtcE,.l).pdf.

216
'.A" ',H? I 6#If'{ *ZW iNMO

217
3ti David C. K<strong>in</strong>ftal, .IArivg lka Aflb it 2002 (pton ntMd at the Miid-ttst Pobtical
Sieoeo Asosiat/on Annual Mer<strong>in</strong>g) (Apr. 2003) e http://-mt,-l.cdt/-ki- oaltd/
dkop.-2.pdC.
37 Eof LDet i,. tpa notc 13. at 518: Richard G Nitmi amd Ptau S. icrnratn. IRowd L
I&Tvrf: Tho Co;p1mip, ef (ZS . Malle, I fluisttcmivt otN Pour>,i 317-32G (PM03) aieatr at
hsap://w.tpoaeorg/ upappmjvonagc.tssgsaa t/ brhily/ orkshop? 200t/pol%2S(perp%?O20
pgcS20cproofS.polf
38
tagt tr*Lt Ot ntott 13, at 517.
39 EAC VSG, sgta note 5, at § 3.1.4(c;i .
4( Id. at § 3. I.G(b) (rropharts addd).
41 Id at S 3. I.fgt (empler akd).
42
Alte4 I KIumpp, jadkiia Rwimat/t Iortoaa it Cot CostIs/ E .r rJ Dmx rt%;r Ewotesa at
Fattbo (2005) (aop,,Wi/ed MhU d.aat-taLios, Un'lasitly Of lffitoja at Chicagno (ott fk nith (he
Uttierstiy of ll/no/ at Chicago Liblt,).
43 Balkt .Otaitot note 13. at 517. Dtem/n for Dcoaeyrac, a onsa-profit d"abaltd so itptsviog
ballot derig., h., echoed Koball <strong>and</strong> Kapf5' adeirc <strong>in</strong> their FEctiots Dtitgtt Sp rm. &5
Matc<strong>in</strong>a tsaucn, Dcsig. fiar Dcotocracy, Ias 1/-g ModA/aJho IEA,,oetatl (oachpit PI'm. 2006).
44 EAC VrVS, G afo onto 5, aS 3- 1.4(cX,)
45 UIta/t Dot/go, a. .nte 13. at 5 16.
46 EAC VVSG. o 6(
noot 5. at S 3.1 .4(d
47 42 US.C. § t'S4gl(aXIXA>.-/)
48 : "nlra_ r&a/aho rf S3i Ekthisc ITf/ Af.di e, s6(oo nmte I. at 14.
49 SC NiVSG. pre ntoe 5, at 3 1.).
50 Id at § 3. 1.2(d), it.a
51 Id. at § 3..1 0/S.t.
52 Cettt<strong>in</strong>n t~as alraty pnn kk thia pIratcsoo for wotton mAno m/isakctlv cast bagon oith
both a -it/e.<strong>in</strong> aont i<strong>and</strong> a normaal ote for the ttr c<strong>and</strong>idatc. &r, er>, Wt. Stat. Aor. § 7.0(2Xd)
(20)04Y

218
Statement
of the
AMERICAN BAR ASSOCIATION
to the
SPECIAL COMMITTEE ON AGING
UNITED STATES SENATE
on the subject of
Older Voters - Opportunities <strong>and</strong> Challenges
January 31, 2008

219
Mr. Chairman, Rank<strong>in</strong>g Member Smith <strong>and</strong> Members of the <strong>Committee</strong>:
The American Bar Association commends the <strong>Senate</strong> <strong>Special</strong> <strong>Committee</strong> on Ag<strong>in</strong>g for
undertak<strong>in</strong>g an exam<strong>in</strong>ation of issues related to vot<strong>in</strong>g <strong>and</strong> disability as Americans age <strong>and</strong>
particularly issues aris<strong>in</strong>g from cognitive impairment We appreciate this opportunity to share
our views on these important issues.
The need to address vot<strong>in</strong>g by ag<strong>in</strong>g citizens who face some level of cognitive or other
bra<strong>in</strong> impairment has emerged from the relative shadows <strong>and</strong> <strong>in</strong>to the light of day because of
fbur salient, <strong>in</strong>tersect<strong>in</strong>g realities:.
* Elections may be decided by very small marg<strong>in</strong>s. In 2000, George W. Bush officially
won the Florida vote over Al Gore by a marg<strong>in</strong> of 930 votes (out of six million), a virtual
statistical tie.
* Older persons vote. Persons over 65 have a higher rate of participation than any other age
group. In the 2004 presidential election, 71.8 percent of citizens age 55 <strong>and</strong> older
reported vot<strong>in</strong>g. The next highest vot<strong>in</strong>g group were those age 45 to 54 years old, with
68.7 percent reported vot<strong>in</strong>g. Even <strong>in</strong> the oldest age category tracked, age 75 <strong>and</strong> older,
68.5 percent reported vot<strong>in</strong>g.
* The number of older persons is grow<strong>in</strong>g rapidly. Between years 2000 <strong>and</strong> 2030, the over
age 65 population <strong>in</strong> the United States is projected to more than double from 35 million
to 71.5 million, with the cohort of persons age 85 <strong>and</strong> over <strong>in</strong>creas<strong>in</strong>g at the highest
percentage rate.
* The number of older persons with dementia <strong>and</strong> other disabilities will similarly exp<strong>and</strong>.
The prevalence of disabilities significantly <strong>in</strong>creases with <strong>in</strong>creas<strong>in</strong>g age. The total
number of people with dementia <strong>in</strong> the United States is not known with certa<strong>in</strong>ty, but a
recent statistical report of the Alzheimer' Association estimates that, as of 2007, 4.9
million people age 65 <strong>and</strong> over had Alzheimer's disease, with another 200,000
<strong>in</strong>dividuals younger than 65 with early onset Alzheimer's. By 2030, those numbers are
expected to <strong>in</strong>crease by more than 50 percent Alzheimer's disease comprises 50 percent
to 70 percent of all cases of dementia, so estimates of the total population with dementia
of any type could be as much as double the above figures.

220
The convergence of these numbers br<strong>in</strong>gs <strong>in</strong>to focus a variety of questions about the
disenfranchisement of persons with bra<strong>in</strong> impairments who have a fundamental right <strong>and</strong> the
threshold ability to vote, although they may need assistance. What k<strong>in</strong>d of assistance may be
needed <strong>and</strong> what k<strong>in</strong>d is appropriate? Can technology help? And who makes decisions about
capacity to vote, <strong>and</strong> by what criteria? Conversely, concerns abound about the potential for
fraudulent exercise of the franchise by unscrupulous persons or political organizations tak<strong>in</strong>g
advantage of groups with<strong>in</strong> this population, especially those liv<strong>in</strong>g <strong>in</strong> group sett<strong>in</strong>gs such as
nurs<strong>in</strong>g homes.'
Both failure to ensure proper access to the polls <strong>and</strong> failure to protect aga<strong>in</strong>st the
fraudulent manipulation of the vote of vulnerable populations compromises the <strong>in</strong>tegrity of
elections. And as the above demographic trends cont<strong>in</strong>ue, so the danger <strong>in</strong>creases.
To address these issues, the ABA Commission on Law <strong>and</strong> Ag<strong>in</strong>g jo<strong>in</strong>ed together with
the Borchard Foundation Center on Law <strong>and</strong> Ag<strong>in</strong>g.<strong>and</strong> the Capital Government Center on Law
<strong>and</strong> Policy at the Pacific McGeorge School of Law to host a work<strong>in</strong>g symposium of <strong>in</strong>vited
national experts <strong>in</strong> law <strong>and</strong> ag<strong>in</strong>g, medic<strong>in</strong>e, long term care, vot<strong>in</strong>g technology, <strong>and</strong> elections
adm<strong>in</strong>istration on the topic Facilitat<strong>in</strong>g. Vot<strong>in</strong>g As People Age: Implications of Cognitive
Impa<strong>in</strong>nent The impetus for the symposium began with the work of Dr. Jason Karlawish <strong>and</strong>
others who took the first steps <strong>in</strong> rais<strong>in</strong>g the questions posed above. 2 The Symposium convened
from March 21-24, 2007 to address five key facets of these issues: (1) how ag<strong>in</strong>g <strong>and</strong> cognitive
impairments fit <strong>in</strong>to broader issues of access to vot<strong>in</strong>g; (2) issues <strong>in</strong> absentee ballot<strong>in</strong>g; (3) vot<strong>in</strong>g
<strong>in</strong> long term care sett<strong>in</strong>gs; (4) def<strong>in</strong><strong>in</strong>g <strong>and</strong> assess<strong>in</strong>g.capacity to vote; <strong>and</strong> (5) the implications of
voter technology for those with cognitive impairments. Prior to the symposium, the sponsors
had commissioned six background papers that provided the start<strong>in</strong>g po<strong>in</strong>ts for discourse <strong>and</strong>
analysis of each of the key facets.
'See, e.g., Glover v. South Carol<strong>in</strong>a Democratic Party, No. C/A 4.04-CV-2171-25, 2004 WL 3262756 (D.S.C.
2004), aord by Reaves v. S. Carol<strong>in</strong>a Democratic Party, 122 Fed. Appx. 83 (4th Cir. 2005) (allow<strong>in</strong>g an
unsuccessfil c<strong>and</strong>idate for the South Carol<strong>in</strong>a state senate to successfully challenge the results of a democratic
primary race by alleg<strong>in</strong>g vot<strong>in</strong>g irregularities <strong>in</strong>clud<strong>in</strong>g vot<strong>in</strong>g fraud with regards to the absentee ballots of nurs<strong>in</strong>g
borne residents); State v. Jackson, 102 Ohio St3d 380 (Ohio 2004) (consider<strong>in</strong>g an evidentiary issue <strong>in</strong> a crim<strong>in</strong>al
case of an Ohio election board employee who allegedly marked nurs<strong>in</strong>g home residents ballots contrary to
residents' wishes). Also see, David Josar & Lisa M. Coll<strong>in</strong>s, State Targets Detroit Ballots, DEmorr NEws, Nov. 1,
2005 (report<strong>in</strong>g on a Detroit City Council c<strong>and</strong>idate who <strong>in</strong>itiated a lawsuit aga<strong>in</strong>st the Detroit City Council clerk
alleg<strong>in</strong>g that election officials assisted legally <strong>in</strong>capacitated persons to vote at a Detroit nurs<strong>in</strong>g home).
' Jason H. Karlawish et al., Address<strong>in</strong>g the Ethical, Legal <strong>and</strong> Social Lssues Raised by Vot<strong>in</strong>g By Persons with
Dementia, 292 JAM.A 1345 (2004).

221
The symposium culm<strong>in</strong>ated with the adoption of a number of recommendations <strong>in</strong>tended
to protect vot<strong>in</strong>g rights of people with legal capacity <strong>and</strong> provide necessary assistance <strong>in</strong> vot<strong>in</strong>g,
while protect<strong>in</strong>g the <strong>in</strong>tegrity of the vot<strong>in</strong>g process. They are published <strong>in</strong> a special symposium
issue of the McGeorge Law Review, Volume 38, Issue 4 (2007), along with several background
articles.
The ABA reviewed the results of the symposium <strong>and</strong>, <strong>in</strong> August 2007, adopted as policy
a careful distillation of the symposium recommendations. These recommendations supplement
numerous exist<strong>in</strong>g ABA policies related to improv<strong>in</strong>g election adm<strong>in</strong>istration <strong>and</strong> ensur<strong>in</strong>g
access to the polls, <strong>and</strong> highlight the critical need to address issues impact<strong>in</strong>g the vot<strong>in</strong>g rights of
a significant, <strong>and</strong> often vulnerable, segment of our society.
First, the ABA recommends four broad cross-cutt<strong>in</strong>g actions that would benefit not only
voters with cognitive or other impairments but all voters: (I) the study <strong>and</strong> development of best
practices for ballot design; (2) the use of "mobile poll<strong>in</strong>g"; (3) the use of communications
accessible to those with disabilities; <strong>and</strong> (4) the acceptance of alternative forms of identification
to facilitate registration <strong>and</strong> vot<strong>in</strong>g.
Mobile poll<strong>in</strong>g is the process by which election officials br<strong>in</strong>g a poll<strong>in</strong>g station to voters
<strong>in</strong> long-term care facilities or other outreach sites. The poll<strong>in</strong>g device used depends on the
technology available <strong>in</strong> the vot<strong>in</strong>g district, but it uses some sort of poll<strong>in</strong>g device rather than an
absentee ballot. It is preferable to reliance on mail-<strong>in</strong>, paper absentee ballots, because the latter
can be hard for anyone with dim<strong>in</strong>ished read<strong>in</strong>g ability to underst<strong>and</strong> as well as much more
susceptible to abuse. Most states do not yet have the technology to br<strong>in</strong>g accessible portable
electronic ballot<strong>in</strong>g capability to long-term care sett<strong>in</strong>gs, but that technology is on the horizon.
In the meantime, some twenty-three states currently prescribe responsibilities for absentee vot<strong>in</strong>g
by nurs<strong>in</strong>g home or assisted liv<strong>in</strong>g residents under some circumstances, <strong>and</strong> all place
responsibilities on election officials to assist. 3
Acceptance of alternative forms of identification is critical for voters with disabilities,
especially those <strong>in</strong> long-term care sett<strong>in</strong>gs, who are less likely to have driver's licenses or other
st<strong>and</strong>ard forms of identification.
'Amy Smith & Charles P. Sabatno, Vot<strong>in</strong>g by Residents of Nurs<strong>in</strong>g Home <strong>and</strong> Asssted iv<strong>in</strong>g Facilities. State
Law Accommodations, 26 BIFOCAL 1(2004), at htpbtwww.abanetorgtag<strong>in</strong>g/pubcatioans/bifocaV26 .pdf.

222
Second, the ABA urges governmental entities to ensure that otherwise qualified persons
are not excluded from vot<strong>in</strong>g on the basis of medical diagnosis, disability status, or type of
residence. Vot<strong>in</strong>g is a fundamental constitutional right <strong>and</strong> a hallmark of democracy, therefore
the emphasis should be on exp<strong>and</strong><strong>in</strong>g the franchise <strong>and</strong> enhanc<strong>in</strong>g access to <strong>and</strong> assistance with
the ballot for persons who~are capable of vot<strong>in</strong>g. In regard to the issue of mental capacity to
vote, due process protections are necessary to ensure that the right is never arbitrarily or
prematurely forfeited. Any limitations should be narrowly circumscribed <strong>in</strong> tenns of specific
functional abilities, rather than on categorical exclusions. State constitutions <strong>and</strong> statutes that
permit exclusion of a person from vot<strong>in</strong>g on the basis of mental <strong>in</strong>capacity, <strong>in</strong>clud<strong>in</strong>g
guardianship <strong>and</strong> election laws, should explicitly state that the right to vote is reta<strong>in</strong>ed, except by
court order where the follow<strong>in</strong>g criteria must be met: (I) The exclusion is based on a
determ<strong>in</strong>ation by a court of competent jurisdiction; (2) Appropriate due process protections have
been afforded, (3) The court f<strong>in</strong>ds that the person cannot communicate, with or without
accommodations, a specific desire to participate <strong>in</strong> the vot<strong>in</strong>g process; <strong>and</strong> (4)The f<strong>in</strong>d<strong>in</strong>gsware
established by clear <strong>and</strong> conv<strong>in</strong>c<strong>in</strong>g evidence.
In contrast to that pr<strong>in</strong>ciple, research has found that state constitutions <strong>and</strong> election laws
often fall far short. The constitutions <strong>in</strong> all but court order where the follow<strong>in</strong>g criteria must be
met: (I)The exclusion is based on a determ<strong>in</strong>ation by 12 states bar people with various k<strong>in</strong>ds of
mental impairment from vot<strong>in</strong>g - for example, those who.are non compos mentis, admitted to a
mental <strong>in</strong>stitution, under guardianship, <strong>in</strong>capacitated, or mentally ill. The categories are
sweep<strong>in</strong>g <strong>and</strong> imprecise. 4 State statutes address<strong>in</strong>g voter eligibility on cognitive grounds do not
necessarily track state constitutional provisions, us<strong>in</strong>g different term<strong>in</strong>ology <strong>in</strong> all but 14 states.
Additionally, the vagueness.of many of the provisions creates uncerta<strong>in</strong>ty concern<strong>in</strong>g capacity.
At the same time, election laws <strong>in</strong> some 29 states do not address voter eligibility due to mental.
status at all.5
In the context of guardianship law, only 19 states have specific statutory provisions that
persons under full or limited guardianship reta<strong>in</strong> all legal <strong>and</strong> civil rights not explicitly removed
- which would <strong>in</strong>clude the right to vote. Along with additional provisions that favor limited
4 Sally Hwme & Paul S. Appelbaum, Defi<strong>in</strong>g <strong>and</strong> Assess<strong>in</strong>g Capacity to Vote. The Effect of Menld Impa<strong>in</strong>nent on
the Rights of Voters, <strong>in</strong> SYMPOSIUM, FACU-rATING VOTING AS PEOPLE AGE: IMPUCATIONS OF COGNITIVE
IMPAItmENT, 38 MCGEORGE L. REV. (forthcom<strong>in</strong>g 2007).
' Id.

223
guardianship; a total of 32 states do appear to allow a judicial determ<strong>in</strong>ation that a person under
guardianship may reta<strong>in</strong> the right to vote. 6 Only a few statutes <strong>and</strong> cases specifically articulate a
requirement for the court to determ<strong>in</strong>e capacity to vote.
The ABA supports expansion of the approach that requires an <strong>in</strong>dividualized
determ<strong>in</strong>ation of capacity to vote <strong>in</strong> a judicial sett<strong>in</strong>g with strict due process protections. This
approach would be applicable <strong>in</strong> any jurisdiction that permits exclusion of a person from vot<strong>in</strong>g
on the basis of mental <strong>in</strong>capacity. As to a legal st<strong>and</strong>ard for assess<strong>in</strong>g capacity to vote, scant
exist<strong>in</strong>g case law <strong>and</strong> statutes provide some guidance, 5 but as a legislative policy pr<strong>in</strong>ciple, the
ABA supports a st<strong>and</strong>ard that can be applied universally with little potential for discrim<strong>in</strong>ation -
specifically, whether the person <strong>in</strong>dicates that he or she has a specific desire to participate <strong>in</strong> the
vot<strong>in</strong>g process. This provides a low threshold that is most <strong>in</strong>clusive <strong>and</strong> most protective of the
right. The objective is to not treat people any differently <strong>in</strong> vot<strong>in</strong>g rights based on any perceived
impairment or other personal characteristic.
Third, the ABA urges that citizens be permitted to opt freely for absentee ballot<strong>in</strong>g,
permanently or temporarily, <strong>in</strong>clud<strong>in</strong>g at the time of registration, with the ability to change one's
choice thereafter. Implement<strong>in</strong>g this recommendation would serve to exp<strong>and</strong> the option for
absentee ballot<strong>in</strong>g <strong>and</strong> suggests the use of a more normal characterization of it as "vote-at-home"
ballot<strong>in</strong>g. In recent decades, absentee ballot<strong>in</strong>g has become a central feature of our electoral
l<strong>and</strong>scape. All states now allow at least some categories of voters to cast their votes before
election day, most commonly by mail. And, most states now permit "no excuse" absentee
vot<strong>in</strong>g. However, asof 2004, only 17 states provided for permanent absentee status. 9 This
recommendation advocates for no-excuse temporary or permanent absentee status, available as
an option to choose at the time of registration or at a later time.
6 1d.
7 See e.g., Wash. Rev. Code § 11.98.010(5).(the imposition ofaguardianship does not resut <strong>in</strong> the loss ofthe right
to vote unless the court determ<strong>in</strong>es that the person lacks the capacity to exercise the franchise, <strong>and</strong> the court's order
must specify whether the ward reta<strong>in</strong>s vot<strong>in</strong>g rights); also see. Doe v. Rowe, 156 F. Supp. 35 (D. Me. 2001)
(stik<strong>in</strong>g down Ma<strong>in</strong>e's constitutional provision that automatically excluded from the polls persons under
ruardimship by reason of mental illness).
E.g.. Wash<strong>in</strong>gton's statute characterizes <strong>in</strong>competence to vote as "lack<strong>in</strong>g the capacity to underst<strong>and</strong> the nature <strong>and</strong>
effect of vot<strong>in</strong>g, such that she or he cannot make an <strong>in</strong>dividual choice" Wash. Rev. Code § 1 1.88.010(5).' Wiscons<strong>in</strong>
similarly looks to whether the person is "<strong>in</strong>capable of underst<strong>and</strong><strong>in</strong>g the objective of the elective process." Wis. Stat.
§ 54.25(2Xc)l.g. The federal District Couwt <strong>in</strong> Doe v. Rowe, 156 F. Supp. 35 (D. Me. 2001) adopted a functional
st<strong>and</strong>ard identical to that found <strong>in</strong> the Wash<strong>in</strong>gton statute.
9 See, the survey of absentee ballot<strong>in</strong>g law <strong>and</strong> alternatives <strong>in</strong> Daniel P. Tokaji & Ruth Colker, Absentee Vot<strong>in</strong>g by
People with Diabilifies: Promot<strong>in</strong>g Access <strong>and</strong> ntegrity, <strong>in</strong> SYMPosIUM, FACILIATING VOTING AS PEOPLE AGE:
IMPuCATIONs OF COGNrrIVE IMPAIRMENT, 38 MCGEORGE L. REv. (forthcom<strong>in</strong>g 2007).

224
It is particularly important to focus on issues related to vot<strong>in</strong>g <strong>in</strong> long-term care sett<strong>in</strong>gs,.
broadly def<strong>in</strong>ed. The prevalence of dementia <strong>in</strong> the nurs<strong>in</strong>g home population is estimated to
range from a quarter to more than two-thirds of the population.' 0 The prevalence of dementia <strong>in</strong>
assisted liv<strong>in</strong>g facilities is even less certa<strong>in</strong>, although one survey of assisted liv<strong>in</strong>g facilities
reported that over one-third of residents had moderate to severe dementia" A diagnosis of
dementia, <strong>in</strong> itself, does not mean that the <strong>in</strong>dividual lacks capacity to vote. Some still reta<strong>in</strong> the
capability <strong>and</strong> some do not. However, little is-known about how manyof these nurs<strong>in</strong>g home
<strong>and</strong> assisted-liv<strong>in</strong>g facility residents actually have the capacity to vote. Even less is known about
the vot<strong>in</strong>g capacity of persons resid<strong>in</strong>g <strong>in</strong> other long-term care.sett<strong>in</strong>gs such as adult homes,
community care facilities, <strong>and</strong> group homes for persons with a variety-of disabilities.
Fourth, the ABA urges improv<strong>in</strong>g access to vot<strong>in</strong>g by residents of long-term care
facilities that provide room, board, <strong>and</strong> any level of personal care to persons <strong>in</strong> need of
assistance. Such efforts should <strong>in</strong>clude mak<strong>in</strong>g mobile poll<strong>in</strong>g stations a reality for long-term
care residents; <strong>and</strong> <strong>in</strong> the <strong>in</strong>terim, utiliz<strong>in</strong>g election officials proactively <strong>in</strong> the role of oversee<strong>in</strong>g
absentee ballot<strong>in</strong>g <strong>in</strong> these sett<strong>in</strong>gs. In addition, there should be tra<strong>in</strong><strong>in</strong>g of residents, staff, <strong>and</strong>
others <strong>in</strong>volved <strong>in</strong> the care of residents regard<strong>in</strong>g the vot<strong>in</strong>g rights of persons with disabilities
<strong>and</strong> the resources available to assist <strong>in</strong> the exercise of those rights. F<strong>in</strong>ally, it is important to
clarify that people who provide assistance <strong>in</strong> vot<strong>in</strong>g do not have authority to determ<strong>in</strong>e capacity
to vote, <strong>and</strong> that assistance <strong>in</strong> vot<strong>in</strong>g is limited to assist<strong>in</strong>g voters to express the voter's <strong>in</strong>tent. If
people who provide assistance are unable to determ<strong>in</strong>e the voter's <strong>in</strong>tent, then, to avoid the
possibility of fraudulent manipulation, they must decl<strong>in</strong>e to mark the ballot for the voter.
Fifth, the ABA urges development <strong>and</strong> required use of vot<strong>in</strong>g systems that achieve
universal design, such that all voters can cast ballots privately <strong>and</strong> <strong>in</strong>dependently on the same
vot<strong>in</strong>g mach<strong>in</strong>e, adaptable to accommodate any impairment, <strong>in</strong>clud<strong>in</strong>g physical, sensory,
cognitive, <strong>in</strong>tellectual, or mental. Ballot<strong>in</strong>g technology is currently undergo<strong>in</strong>g a major
transformation <strong>in</strong> the direction of electronic systems, such as direct-record<strong>in</strong>g electronic (DRE)
vot<strong>in</strong>g systems. Electronic systems are still very much <strong>in</strong> their <strong>in</strong>fancy. Most currently deployed
vot<strong>in</strong>g systems do not meet current HAVA <strong>and</strong> ADA disability accommodation requirements,
W Jay Magazimer, et al., The Prevalence of Dementia <strong>in</strong> a Statewide Sample of New Nurs<strong>in</strong>g Home Admissions
Aged 65 <strong>and</strong> Older, 40 GERoNToLoGIsT 663, 663 (2000).
" Catherie Hawes, Charles D. Phillips, Miriam Rose, Scott Holan, & Michad Sherman, A National Swvey of
Assisted Liv<strong>in</strong>g Facilities, 43 GERONTOLOGIsT 875, 875 (2003).

225
<strong>and</strong> they are far from compliant with the U.S. Election Assistance Commission's Voluntary
Vot<strong>in</strong>g System Guidel<strong>in</strong>es.1 2 The premise of this recommendation is that technology's goal is to
create access, which is different from assistance. The more access is facilitated <strong>and</strong> barriers
removed, the less need there is to depend on assistance by another person <strong>in</strong> the vot<strong>in</strong>g booth or
with paper absentee ballots, <strong>and</strong> thus, the less danger there is of fraud or undue <strong>in</strong>fluence by
persons assist<strong>in</strong>g with ballot<strong>in</strong>g.
In his review of evolv<strong>in</strong>g vot<strong>in</strong>g technology <strong>and</strong> its implications for voters with cognitive
impairments, Professor Ted Selker identified several design approaches that have shown promise
but are still under trial <strong>and</strong> development Evolv<strong>in</strong>g design characteristics with particular
promise <strong>in</strong>clude: electronic <strong>in</strong>terfaces that focus on one task at a time; simplified navigation
through the steps of the vot<strong>in</strong>g process with an ability to refer back to <strong>in</strong>structions; redundancy of
<strong>in</strong>formation; feedback (audio as well as visual) on selections made with the opportunity to
change selections.' 3 The ultimate goal is to design effective optional capabilities <strong>in</strong>to all vot<strong>in</strong>g
stations so that accessibility is truly universal <strong>and</strong> segregation of vot<strong>in</strong>g by disability
accommodation is unnecessary.
Sixth, the ABA urges the recruitment <strong>and</strong> tra<strong>in</strong><strong>in</strong>g of election workers to address the
needs of voters with disabilities, <strong>in</strong>clud<strong>in</strong>g physical, sensory, cognitive, <strong>in</strong>tellectual, or mental
disabilities. There is a significant need for sufficient numbers of election workers, appropriately
tra<strong>in</strong>ed to meet the needs of voters with disabilities of any k<strong>in</strong>d. If poll workers <strong>and</strong> other
election officials do not underst<strong>and</strong> how to accommodate the <strong>in</strong>creas<strong>in</strong>gly broad range of
disabilities voters present at the polls, or they do not underst<strong>and</strong> how to operate the new
technologies be<strong>in</strong>g <strong>in</strong>troduced <strong>in</strong> poll<strong>in</strong>g sites, then even the best technologies will fall short.
Many poll workers serve as volunteers, <strong>and</strong> tra<strong>in</strong><strong>in</strong>g may be brief <strong>and</strong> <strong>in</strong>formal. Recruitment <strong>and</strong>
tra<strong>in</strong><strong>in</strong>g is an essential component to ensur<strong>in</strong>g access to the polls <strong>and</strong> we urge governments to
place a greater emphasis on that task.
While there is no proposed legislation that this recommendation immediately addresses,
there are many critical activities underway at the federal, state, territorial, <strong>and</strong> local government
Noel H. Runyan, IMPROVING AccEss TO VoTINo: A REPORT ON THE TECHNOLOGY FOR ACCESSIBLE VOTING
SYSTEMS, A REPORT BY VOTER ACTION AND DEMOS (Februasy 2007), at http://www.denos.oreme5Q4.cf See
the Election Assistance Commission's voluntary guidel<strong>in</strong>es at http://www.eac.gov/wsg<strong>in</strong>tro.btm.
3 Ted Selker. The Technology of Access: Allow<strong>in</strong>g People ofAge to Votefor Themsehes, <strong>in</strong> SYMPOSIUM,
FACILITATING VOTING AS PEOPLE AGE: IMPUCATIONS OF COGNITIVE IMPAIRMENT, 38 MCGEORGE L REv.
(forthcom<strong>in</strong>g 2007).

226
level to modify vot<strong>in</strong>g procedures that this recommendation impacts. For example, at the federal
level the 2002 Help America Vote Act has gave the National Institute of St<strong>and</strong>ards <strong>and</strong>
Technology (NIST) a key role <strong>in</strong> help<strong>in</strong>g to realize nationwide improvements <strong>in</strong> vot<strong>in</strong>g systems.
To assist the Election Assistance Commission with the development of voluntary vot<strong>in</strong>g system
guidel<strong>in</strong>es, HAVA established the Technical Guidel<strong>in</strong>es Development <strong>Committee</strong> <strong>and</strong> directed
NIST to chair the <strong>Committee</strong>. NIST research activities have <strong>in</strong>cluded: security of computers <strong>and</strong>
computer data storage used <strong>in</strong> vot<strong>in</strong>g systems; methods to detect <strong>and</strong> prevent fraud; protection of
voter privacy, <strong>and</strong>; the role of human factors <strong>in</strong> the design <strong>and</strong> application of vot<strong>in</strong>g systems,
<strong>in</strong>clud<strong>in</strong>g assistive technologies for <strong>in</strong>dividuals with disabilities <strong>and</strong> vary<strong>in</strong>g levels of literacy.
However, NIST has not had a focus on cognitive impairments or other bra<strong>in</strong> impairments, a
focus that the ABA would encourage.
At the state level, <strong>in</strong> addition to election improvements, the ABA has had a long history
of support<strong>in</strong>g guardianship reform <strong>and</strong> long-term care quality regulation, especially through its
Commission on Law <strong>and</strong> Ag<strong>in</strong>g. These recommendations have immediate implications for key
aspects of guardianship law <strong>and</strong> long-term care regulation relevant to cognitively impaired elders
<strong>and</strong> other adults.
Access to <strong>and</strong> <strong>in</strong>tegrity of the vot<strong>in</strong>g process has never been a more important issue <strong>in</strong>
America than it is today. We recognize the significant <strong>challenges</strong> faced by the federal, state <strong>and</strong>
local governments <strong>in</strong> develop<strong>in</strong>g <strong>and</strong> implement<strong>in</strong>g new vot<strong>in</strong>g policies <strong>and</strong> procedures <strong>and</strong> ?
realize that some of these recommendations would need to be considered <strong>in</strong> the context of near-,
medium- <strong>and</strong> long-term goals. However, we believe that progress can, <strong>and</strong> must, be made <strong>in</strong>
ensur<strong>in</strong>g the fundamental right to vote for the grow<strong>in</strong>g number of citizens with some level of
cognitive impairment but that are still capable of vot<strong>in</strong>g, while at the same time prevent<strong>in</strong>g
manipulation of the vote with<strong>in</strong> this population.
Aga<strong>in</strong>, we thank you for exam<strong>in</strong><strong>in</strong>g these important issues <strong>and</strong> would be happy to provide
any additional <strong>in</strong>formation or assistance that may be helpful to the <strong>Committee</strong>'s work. Please
feel free to contact Charlie Sabat<strong>in</strong>o, Director of the ABA Commission on Law <strong>and</strong> Ag<strong>in</strong>g at
202-662-8686 or Kristi Ga<strong>in</strong>es <strong>in</strong> the ABA Governmental Affairs Office at 202-662-1763.

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Approved by the ABA House of Delegates on August 13, 2007
AMERICAN BAR ASSOCIATION
COMMISSION ON LAW AND AGING
STANDING COMMITTEE ON ELECTION LAW
COMMISSION ON MENTAL AND PHYSICAL DISABILITY LAW
REPORT TO THE HOUSE OF DELEGATES
RECOMMENDATION
RESOLVED, That the American Bar Association urges federal, state, local, <strong>and</strong>
territorial governments to improve the adm<strong>in</strong>istration of elections to facilitate vot<strong>in</strong>g by
all <strong>in</strong>dividuals with disabilities, <strong>in</strong>clud<strong>in</strong>g people with cognitive impairments, by:
(1) Study<strong>in</strong>g <strong>and</strong> develop<strong>in</strong>g best practice guidel<strong>in</strong>es for ballot design to maximize
access;
(2) Adapt<strong>in</strong>g their laws, practices <strong>and</strong> technologies to permit 'mobile poll<strong>in</strong>g' stations;
(3) Ensur<strong>in</strong>g that <strong>in</strong>structions, signage, <strong>and</strong> other communications regard<strong>in</strong>g elections are
accessible; <strong>and</strong>
(4) Permitt<strong>in</strong>g sufficient alternative forms of identification verification to facilitate
register<strong>in</strong>g <strong>and</strong> vot<strong>in</strong>g.
FURTHER RESOLVED, That the American Bar Association urges federal, state, local,
<strong>and</strong> territorial governments to ensure that no governmental entity exclude any otherwise
qualified person from vot<strong>in</strong>g on the basis of medical diagnosis, disability status, or type
of residence. State constitutions <strong>and</strong> statutes that permit exclusion of a person from
vot<strong>in</strong>g on the basis of mental <strong>in</strong>capacity, <strong>in</strong>clud<strong>in</strong>g guardianship <strong>and</strong> election laws, should
explicitly state that the right to vote is reta<strong>in</strong>ed, except by court order where the follow<strong>in</strong>g
criteria must be met:
(I) The exclusion is based on a determ<strong>in</strong>ation by a court of competent jurisdiction;
(2) Appropriate due process protections have been afforded;
(3) The court f<strong>in</strong>ds that the person cannot communicate, with or without
accommodations, a specific desire to participate <strong>in</strong> the vot<strong>in</strong>g process; <strong>and</strong>
(4) The f<strong>in</strong>d<strong>in</strong>gs are established by clear <strong>and</strong> conv<strong>in</strong>c<strong>in</strong>g evidence.
FURTHER RESOLVED, That the American Bar Association urges federal, state, local,
<strong>and</strong> territorial governments to permit citizens to opt freely for absentee ("vote at home")
ballot<strong>in</strong>g, permanently or temporarily, <strong>in</strong>clud<strong>in</strong>g at the time of registration, with the
ability to change one's choice thereafter.
FURTHER RESOLVED, That the American Bar Association urges state, local, <strong>and</strong>
territorial governments to improve access to vot<strong>in</strong>g by residents of long-term care
facilities that provide room, board, <strong>and</strong> any level of personal care to persons <strong>in</strong> need of
assistance. Such efforts should <strong>in</strong>clude the follow<strong>in</strong>g:

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(1) Establish<strong>in</strong>g mobile poll<strong>in</strong>g stations <strong>in</strong> long-term care facilities under the supervision
of tra<strong>in</strong>ed teams of local election officials;
(2) Where mobile poll<strong>in</strong>g is not available, provid<strong>in</strong>g teams of election officials at the
local level to conduct absentee vot<strong>in</strong>g <strong>in</strong> long-term care facilities; <strong>and</strong>
(3) Tra<strong>in</strong><strong>in</strong>g residents, staff, <strong>and</strong> others <strong>in</strong>volved <strong>in</strong> the care of residents about the rights
of persons with disabilities <strong>in</strong> relation to vot<strong>in</strong>g <strong>and</strong> the community resources
available to provide assistance.
(4) Clarifyi<strong>in</strong>g that people who provide assistance <strong>in</strong> vot<strong>in</strong>g do not have authority to
determ<strong>in</strong>e capacity to vote, <strong>and</strong> that assistance <strong>in</strong> vot<strong>in</strong>g is limited to assist<strong>in</strong>g voters
to express the voter's <strong>in</strong>tent. If people who provide assistance are unable todeterm<strong>in</strong>e
the voter's <strong>in</strong>tent, then, to avoid the possibility of fraudulent manipulation,
they must decl<strong>in</strong>e to mark the ballot for the voter.
FURTHER RESOLVED, That the American Bar Association urges federal, state, local,
<strong>and</strong> territorial governments to require <strong>and</strong> fund the development of vot<strong>in</strong>g systems that
achieve universal design, such that all voters can cast ballots privately <strong>and</strong> <strong>in</strong>dependently
on the same vot<strong>in</strong>g mach<strong>in</strong>e, adaptable to accommodate any impairment, <strong>in</strong>clud<strong>in</strong>g
physical, sensory, cognitive, <strong>in</strong>tellectual, or mental.,
FURTHER RESOLVED, That the American Bar Association urges federal, state, local,
<strong>and</strong> territorial governments to recruit <strong>and</strong> tra<strong>in</strong> election workers to address the needs of
voters with disabilities, <strong>in</strong>clud<strong>in</strong>g physical, sensory, cognitive, <strong>in</strong>tellectual, or mental
disabilities.
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