How to Make Early Voting More Accessible in New York

The New York State Board of Elections reviewed a draft of this report. Its response is provided in full below.

Introduction

On November 5, 2022, when Blaise Bryant and his fiancée, Erin, passed by an early voting poll site near their home in Rensselaer County, New York, they decided to take advantage of the opportunity and cast their ballots in the 2022 general election. “I think early voting is a tremendously good thing. I’m so glad it exists,” Blaise shared a few weeks later, despite having encountered significant frustration that day. footnote1_uu30mzt 1 Blaise Bryant (communications specialist, New York Association on Independent Living), conversation with Disability Rights New York (DRNY) and the Brennan Center for Justice at NYU School of Law, January 6, 2023.

Blaise, who is blind, immediately realized that his voting experience would be challenging. During the check-in process, poll workers addressed Erin instead of speaking directly to him and tried to interact with his guide dog. When Blaise asked to use a ballot marking device (BMD) — an accessible voting system that allows people with print disabilities to mark their ballots privately and independently — he learned that one was not set up for use and that the poll workers did not know how to start an accessible voting session. Tired of waiting, Blaise whispered his choices to Erin and she marked his ballot so they could move on with their day.

“The best way I can put it was that I was treated less than because of my blindness. This stuff happens way too much,” Blaise observed. “It happens at an alarming rate.”

Blaise is among the more than 3.8 million New Yorkers age 18 or older, approximately 25 percent of the adult population, with a disability that affects their mobility, cognition, vision, hearing, independent living, or self-care. footnote2_202jnmi 2 Centers for Disease Control and Prevention (CDC), “Disability and Health Data System” (New York disability estimates), accessed May 26, 2023, https://dhds.cdc.gov.  New Yorkers with disabilities come from diverse racial and ethnic backgrounds and live across the state in rural, urban, and suburban communities. footnote3_xctpyba 3 CDC, “Disability and Health Data System”; and University of New Hampshire Institute on Disability, “2018 State Report for County-Level Data: Prevalence,” 2020, https://disabilitycompendium.org/compendium/2018-state-report-for-county-level-data-prevalence/NY.  Despite hard-won civil rights protections, people with disabilities continue to face barriers to full participation in society. Schools, workplaces, transportation, and a host of other public and private spaces and services remain difficult to access. footnote4_u0tmga2 4 See generally U.S. Government Accountability Office (GAO), K-12 Education: School Districts Need Better Information to Help Improve Access for People with Disabilities, June 2020, https://www.gao.gov/assets/gao-20–448.pdf; Office of the New York State Comptroller, Benefits Advisement Services for Individuals with Disabilities Seeking Employment, July 20, 2021, https://www.osc.state.ny.us/state-agencies/audits/2021/07/20/benefits-advisement-services-individuals-disabilities-seeking-employment; Clarisa Diaz, “Infographic: How Much of the NYC Subway Is Accessible?,” Gothamist, March 5, 2020, https://gothamist.com/news/infographic-how-much-nyc-subway-accessible; and Emyle Watkins, “The City of Buffalo Isn’t Complying with Disability Civil Rights Law,” WBFO (NPR), December 6, 2022, https://www.wbfo.org/local/2022–12–06/the-city-of-buffalo-isnt-complying-with-disability-civil-rights-law.  The ballot box is no exception.

Federal law requires states to make poll sites and voting systems accessible and tasks protection and advocacy (P&A) systems — federally funded nonprofit organizations designated by each state and territory to safeguard the rights of persons with disabilities — to monitor poll site accessibility for compliance with federal law. footnote5_fbf55jh 5 42 U.S.C. §§ 12101–213; 52 U.S.C. §§ 21061, 21081; and “About,” National Disability Rights Network, accessed May 29, 2023, https://www.ndrn.org/about.  Despite these efforts, a national survey conducted by the U.S. Government Accountability Office (GAO) found that only 17 percent of 167 poll sites sampled during early voting or on Election Day in 2016 were fully accessible for voters with disabilities. footnote6_2a59omt 6 GAO, Voters with Disabilities: Observations on Polling Place Accessibility and Related Federal Guidance, December 4, 2017, 15, https://www.gao.gov/assets/gao-18–4.pdf.

Access issues such as poorly marked parking spaces, too-narrow doorways, and blocked paths of travel through facilities can determine whether a voter successfully casts their ballot. Inaccessible polling places in New York and across the country can contribute to lower participation rates among voters with disabilities. footnote7_gibteu3 7 Lisa Schur, Mason Ameri, and Meera Adya, “Disability, Voter Turnout, and Polling Place Accessibility,” Social Science Quarterly 98, no. 5 (November 2017): 1374–90, https://doi.org/10.1111/ssqu.12373.  In 2020, turnout among New York voters with disabilities was nearly 4 percent lower than that of voters without disabilities. footnote8_cqn2x25 8 Lisa Schur and Douglas Kruse, “Fact Sheet: Disability and Voter Turnout in the 2020 Elections,” Rutgers University and U.S. Election Assistance Commission, accessed May 19, 2023, 10, https://www.eac.gov/sites/default/files/document_library/files/Fact_sheet_on_disability_and_voter_turnout_in_2020_0.pdf.

This report examines early voting poll site accessibility in New York State during the 2022 election cycle, three years after the state enacted its early voting program. Data from in-person poll site accessibility surveys conducted by Disability Rights New York (DRNY) — the state’s P&A system and coauthor of this report — and an online survey of early voters’ experiences find that at least one early voting location in every surveyed county violated state and federal accessibility standards. Of the 179 early voting poll sites across the 57 surveyed counties — every county outside New York City — 169 (94 percent) were not fully accessible to voters with disabilities.

The most common violations included accessible parking spaces without access aisles, footnote9_6d3abbc 9 36 C.F.R. 1191, App. D, § 502.2.  doors without accessible hardware, footnote10_0jlyp43 10 36 C.F.R. 1191, App. D, §§ 309.4, 404.2.7.  and insufficient clearance around BMDs for voters using mobility devices. footnote11_q1ihu37 11 36 C.F.R. 1191, App. D, § 304.3; and N.Y. Elec. Law § 7–202(p)(q) (2023).  Local boards of elections (BOEs) should have identified these violations during the accessibility survey that state law requires BOEs to conduct for all designated poll sites. footnote12_i86nn2e 12 N.Y. Elec. Law § 4–104(1-a), (1-b) (2023). Many could have been addressed with simple, low-cost solutions before early voting began. footnote13_wchw1cg 13 DOJ Civil Rights Division, “Solutions for Five Common ADA Access Problems at Polling Places,” accessed May 29, 2023, https://archive.ada.gov/ada_voting/voting_solutions_ta/polling_place_solutions.htm.

In addition, at 13 early voting poll sites in 12 counties, DRNY surveyors and voters reported that poll workers lacked critical knowledge about BMDs. footnote14_1ebn794 14 The counties were Albany, Bronx, Herkimer, Kings, Oneida, Ontario, Orange, Rensselaer, Saratoga, Schenectady, Suffolk, and Ulster.  As a result, some voters who asked to use a BMD experienced longer waits to vote as poll workers set up the equipment and initiated accessible voting sessions. Others had to forgo using a BMD entirely and mark their ballots by hand, which can be challenging and even painful. For voters like Blaise, not having access to a BMD means relying on someone else to mark their ballot, which sacrifices independence and privacy. Failing to provide voters with equal access to the ballot through BMDs violates state and federal law, which require election administrators to ensure that accessible voting systems are available and ready to use at every poll site during every election. footnote15_u01kdbw 15 52 U.S.C. § 21081(a)(3); and N.Y. Elec. Law § 7–702(2) (2023).

The accessibility problems that voters experienced and DRNY surveyors observed at poll sites were not isolated incidents. Election officials across the state work tirelessly to run elections, but they do so without the support, resources, and clear direction they need to ensure accessibility for all voters. The New York State legislature, the New York State Board of Elections (NYS BOE), and local BOEs need to work together to improve poll site accessibility.

In particular, local BOEs should better prepare poll workers to operate BMDs. Effective, hands-on training and guidance for poll workers are crucial to enabling all voters to cast their ballots with privacy and independence. Local BOEs can improve BMD readiness by recruiting a more diverse group of poll workers, including individuals with disabilities, and making sure that the role is accessible. Local BOE officials can also require all poll workers to have hands-on training, create easy-to-follow quick guides for using and setting up equipment, and assign a dedicated accessible poll worker to each poll site.

The NYS BOE should improve guidance and support for local BOEs on how to implement accessibility standards and be more active in enforcing those standards. The responsibility for identifying, anticipating, and correcting accessibility issues primarily falls on local BOEs that are operating with limited resources and few full-time staff. footnote16_dc84g9c 16 Derek Tisler et al., How to Fix Election Administration in New York State, Brennan Center for Justice, December 15, 2021, 15, https://www.brennancenter.org/our-work/policy-solutions/how-fix-election-administration-new-york-state.  The NYS BOE can encourage more effective compliance with accessibility requirements by improving checklists, guidance, and resources for assessing poll site accessibility, creating easy-to-use materials that offer temporary corrective solutions. Publicly sharing the results of accessibility surveys and conducting ongoing oversight of counties that violate accessible voting laws would also make local BOEs more accountable to voters.

Finally, the state legislature should increase opportunities for voters to cast ballots before Election Day. Lawmakers can make early voting more accessible by requiring poll sites to offer curbside voting, authorizing and funding mobile voting units, and increasing funding for election administration and early voting.

Though this report focuses on early voting accessibility, its findings and recommendations apply to Election Day as well. In the GAO’s survey of state election officials, a majority observed that “the challenges they face to ensure accessibility for voters with disabilities were similar for both early in-person voting and Election Day voting.” footnote17_b0b0egc 17 GAO, Voters with Disabilities, 26.

I. Scope and Methods

In 2019, New York State enacted early voting, making the state one of 46 that currently offer it. footnote18_qunk1mh 18 Jesse McKinley, “Early Voting and Other Changes to Election Laws Are Coming to New York,” New York Times, January 10, 2019, https://www.nytimes.com/2019/01/10/nyregion/voting-reform-election-ny.html; and National Conference of State Legislatures, “Early In-Person Voting,” updated March 23, 2023, https://www.ncsl.org/elections-and-campaigns/early-in-person-voting.  Whereas before 2019 New Yorkers could vote in person only on Election Day, they now have a nine-day window, including two weekends, to accommodate their schedules, obligations, and transportation options. footnote19_auckzcq 19 N.Y. Elec. Law § 8–600(1) (2023).  For example, one New Yorker who voted early in the 2022 general election shared via the online survey that the expanded time period made it easier to arrange a ride to the poll site and not depend on a paratransit bus to get home.

For New York’s early voting law to achieve its full potential, poll site locations, facilities, and hours must be accessible to all voters. Since the program’s launch, local BOEs struggled to meet that standard. footnote20_0is38hm 20 Marina Villeneuve, “Suburban NY County Ordered to Expand Early Voting Hours,” Associated Press, October 30, 2020, https://apnews.com/article/election-2020-new-york-lawsuits-voting-532a0d44a4f667f7828fa2e147f7baef; Chris McKenna, “Judge Extends Early-Voting Hours in Ulster County After Democrats Sue over Long Waits,” Times Herald-Record, October 30, 2020, https://www.recordonline.com/story/news/local/2020/10/30/ulster-democrats-win-court-ruling-extend-early-voting-hours/6091095002; and Rebecca C. Lewis, “The Other Voting Option for November,” City and State, August 25, 2020, https://www.cityandstateny.com/politics/2020/08/the-other-voting-option-for-november/175696.  In 2021, New York Attorney General Letitia James sued the Rensselaer County BOE and its commissioners for repeatedly not providing voters in Troy — the county’s most populous and diverse city — fair and equitable access to early voting poll sites. footnote21_r14xxim 21 Petition, People of the State of N.Y. v. Schofield et al., No. EF2021–268959 (Sup. Ct. Rensselaer Cnty. May 21, 2021), doc. no. 1, https://ag.ny.gov/sites/default/files/not_assigned_people_of_the_state_of_v_people_of_the_state_of_p.pdf.  A trial court ruled that the commissioners had selected early voting locations in an “arbitrary and capricious” manner and mandated that they choose sites accessible to all Troy voters for future elections. footnote22_wy249fd 22 Decision and Order, People of the State of N.Y. v. Schofield et al., No. EF2021–268959 (Sup. Ct. Rensselaer Cnty. June 7, 2021), doc. no. 25, https://ag.ny.gov/sites/default/files/ef2021_268959_people_of_the_state_of_v_people_of_the_state_o.pdf.  In response to the Rensselaer County case, the state legislature strengthened siting requirements for early voting poll sites and increased the minimum ratio of poll sites to registered voters. footnote23_r6g4d72 23 N.Y. Elec. Law § 8–600(2) (2023).

As voting and disability rights advocates, we were motivated by the incidents in Rensselaer County to evaluate the accessibility of New York’s early voting program, three years after it went into effect, for voters with disabilities.

Data available in the state’s 2022 voter file and from the U.S. Census Bureau’s American Community Survey (ACS) reveals that, on average, voters with disabilities did not experience longer travel times to early voting poll sites than the total voter population in New York in 2022. footnote24_dyejam9 24 We analyzed travel times for every registered New York voter to their nearest early voting poll site or assigned poll site in New York City. Using data from the state’s 2022 voter file, the 2020 census and American Community Survey, and travel times generated by TravelTime API software, we calculated how long it would take each New York voter to drive, walk, cycle, or take public transit to an early voting poll site. We then determined average travel time per census block group based on how many individuals in that block group use each method to commute, as reported by the ACS (presuming that to be a reliable proxy for how voters travel to their polling place).  However, survey data collected in person at poll sites and from voters online reveals that voters with disabilities faced significant challenges once they arrived at early voting locations that made it more difficult for them to cast a ballot conveniently, privately, and independently.

During the 2022 primary and general elections, DRNY staff surveyed 179 early voting poll sites in every county in the state except for the five that make up New York City. Across the 52 counties with 10 or fewer early voting poll sites, DRNY surveyors visited all but two early voting locations. footnote25_tb4m5mu 25 DRNY staff could not complete surveys for one of two early voting poll sites in both Essex and Wayne Counties.  In each of the five counties outside New York City with 10 or more early voting poll sites (Erie, Monroe, Nassau, Suffolk, and Westchester), surveyors visited a sampling of sites in census tracts that reflected each county’s median income and poverty rates. footnote26_1kxip1b 26 DRNY surveyors visited 10 sites each in Erie, Monroe, and Suffolk Counties. They visited 9 sites in Westchester County and 8 in Nassau County due to the local BOEs prohibiting access.  (Appendix A includes a full list of the sites visited.)

Though no analysis of polling place accessibility in New York can be representative of the entire state without New York City, this dataset is still robust. DRNY staff visited 45 percent of the state’s 402 early voting poll sites — 68 percent of those outside New York City. footnote27_71fzf2d 27 The total number of early voting poll sites comes from lists provided by the office of the New York attorney general.  The sites were in cities such as Buffalo, Syracuse, and Troy; suburbs and exurbs in the Hudson River Valley and on Long Island; farmland surrounding the Finger Lakes; rural communities in and around the Adirondacks; and more.

Surveyors reviewed each location’s space, layout, and other physical attributes — including the parking areas, entrances, voting areas, BMDs, and path of travel from each of these areas to the next — to determine whether each site complied with accessibility standards. (Appendix B provides a copy of the survey.) Of the 179 sites, DRNY staff collected full data at 168 sites and partial data at 11 sites. In the latter cases, surveyors did their best to collect data when BOEs refused them access to complete the survey — despite DRNY’s direction under federal law, as the state’s P&A system, to ensure poll site accessibility for voters with disabilities. footnote28_ibo63xq 28 52 U.S.C. § 21061(a).

During and immediately after the early voting period, the Brennan Center for Justice and DRNY fielded an online survey of New York voters. (The online survey is reproduced in appendix C.) In all, 218 New York voters across 37 counties shared their early voting experiences. The online survey was not intended to achieve a random or representative sampling but rather to hear directly from voters on early voting poll site accessibility. The survey was promoted on social media and through email lists that New York–based disability and voting rights advocates subscribe to.

Due to time and resource constraints, DRNY did not survey the 140 early voting poll sites in New York City. footnote29_qfh4zd5 29 “Voting Options,” VoteEarlyNY, accessed May 29, 2023, https://www.voteearlyny.org.  The online survey of voters, however, did include respondents from New York City, who reported challenges navigating polling places and accessing BMDs. Investigations by the New York City comptroller’s office also provide a record of accessibility violations at city poll sites in recent elections. footnote30_a01x4qs 30 Marjorie Landa, Audit Report on the Board of Elections’ Controls over the Maintenance of Voters’ Records and Poll Access, Office of the Comptroller, City of New York, November 3, 2017, 17–19, https://comptroller.nyc.gov/wp-content/uploads/documents/MG16_107A.pdf; and Marjorie Landa, Special Report on the Election Day Operations of the New York City Board of Elections, Office of the Comptroller, City of New York, May 14, 2020, 24–27, https://comptroller.nyc.gov/wp-content/uploads/documents/FK19_113S.pdf.

II. Barriers for Voters with Disabilities

Title II of the Americans with Disabilities Act (ADA), passed by Congress in 1990, requires state and local governments to make certain that voters with disabilities have full and equal opportunities to vote. footnote31_bsp561k 31 42 U.S.C. §§ 12101–213.  To implement the law’s mandates, the U.S. Department of Justice (DOJ) issued regulations that create enforceable accessibility standards for state and local government facilities, public accommodations, and commercial spaces. footnote32_dip7raz 32 DOJ Civil Rights Division, “2010 ADA Standards for Accessible Design,” September 15, 2010, https://www.ada.gov/law-and-regs/design-standards/2010-stds. See generally 36 C.F.R. 1191, App. D.  The ADA and these standards ensure that “voters with disabilities can participate in elections on the same terms and with the same level of privacy as other voters.” footnote33_kflyht2 33 DOJ Civil Rights Division, “The Americans with Disabilities Act and Other Federal Laws Protecting the Rights of Voters with Disabilities,” September 2014, 4, https://www.justice.gov/file/69411/download.

In 2002, Congress expanded requirements for poll site accessibility when it passed the Help America Vote Act (HAVA). This law requires state and local governments to make BMDs or similar accessible voting systems available at every poll site during federal elections so voters with disabilities have “the same opportunity for access and participation (including privacy and independence)” as voters without disabilities. New York state election law expands this requirement to state and local elections as well. footnote34_it3d0wb 34 DOJ Civil Rights Division, “Americans with Disabilities Act,” 2; and 52 U.S.C. § 21081(a)(3). Whereas HAVA only covers federal elections, New York State law extends this requirement to all elections. N.Y. Elec. Law § 7–202(2) (2023).

New York election law requires that all poll sites, including those used for early voting, comply with ADA accessibility standards. footnote35_km16ht0 35 N.Y. Elec. Law § 4–104(1-a) (2023).  To fulfill this requirement, state law directs the NYS BOE to “publish and distribute to each board of elections with the power to designate poll sites, a concise, non-technical guide describing standards for poll site accessibility, including a polling site access survey instrument, . . . and methods to comply with such standards.” footnote36_5d0b4fw 36 N.Y. Elec. Law § 4–104(1-a) (2023).  Within five days of designating a poll site, local BOEs must complete an accessibility survey of the site and submit the completed survey to the NYS BOE. footnote37_3ezjo97 37 N.Y. Elec. Law § 4–104(1-a), (1-b) (2023); and N.Y. Comp. Codes R. and Regs. Tit. 9 § 6206.2 (2023).  If a poll site does not comply with ADA standards, the local BOE has six months to make the site accessible or select a new location. footnote38_8fpkd0b 38 N.Y. Elec. Law § 4–104(1-b) (2023).  Finally, state law requires the NYS BOE to create a mandatory curriculum for poll worker training that provides information on assisting voters with disabilities and disability etiquette. footnote39_nzkrtpc 39 N.Y. Elec. Law § 3–412(1-a), (2) (2023).

Violations of accessibility standards can be caused by structural or operational issues at poll sites. footnote40_0ds54zg 40 Disability Rights DC, DC Voting Access Report on the June 21, 2022 Primary Election, University Legal Services, accessed May 29, 2023, 3, https://www.uls-dc.org/media/1261/2022–06–21-primary-election-hava-report-final.pdf.  Structural issues derive from the facility’s construction and are often not easily resolved by election administrators. For example, poll sites may have entrances that are too narrow to accommodate voters who use mobility devices. If sites do not have alternative accessible entrances, they are not suitable to be polling places. In contrast, operational access issues can be fixed by local BOEs with low-cost, temporary solutions, such as posting missing parking signage or rearranging BMDs to protect voter privacy.

Accessibility Violations at Poll Sites

DRNY found that 169 of the 179 early voting poll sites (94 percent) across the 57 surveyed counties violated at least one state or federal accessibility standard. All but one of the most common issues — those occurring in more than 25 percent of surveyed sites — were operational (see table 1). Election administrators could address, even if temporarily, six of the seven most common issues with simple temporary remedies.

The operational problems listed in table 1 pose significant hurdles for voters with disabilities if left unaddressed. For example, 58 percent of DRNY surveyed sites did not have adequate signage prohibiting parking in access aisles adjacent to accessible parking spots. Without this signage, drivers may be more likely to block access aisles, which are essential for people who use wheelchairs and other mobility devices to enter and exit vehicles. footnote41_6mup4y2 41 DOJ Civil Rights Division, “Accessible Parking Spaces,” accessed May 29, 2023, https://www.ada.gov/topics/parking/#top.  Had BOE employees identified the lack of signage during the mandated accessibility survey, they could have provided basic supplies such as traffic cones and posterboard for poll workers to set up temporary signs. footnote42_afdmtzr 42 Erika Hudson and Michelle Bishop, Blocking the Ballot Box: Ending Misuse of the ADA to Close Polling Places, National Disability Rights Network, January 2020, 64–65, https://www.ndrn.org/wp-content/uploads/2020/01/NDRN_Blocking_the_Ballot_Box_2020.pdf.

In 42 percent of DRNY’s surveyed poll sites, BMDs were not set up to ensure privacy for voters marking their ballots. Once again, the solution is straightforward: poll workers could have rearranged the layout of the voting area, turned the BMD away from the center of the room, or used temporary privacy screens or partitions to make sure that BMD screens and marked ballots were not visible to others. Election administrators often create new problems when they move BMDs into spaces that are separate from the main voting area — something that DRNY staff observed at several poll sites. footnote43_8io13rp 43 See also Chris Rosa, “Stop ‘Separate but Equal’ Voting for People with Disabilities in NY,” Newsday, April 24, 2023, https://www.newsday.com/opinion/commentary/guest-essays/voting-for-people-with-disabilities-gwk1leoa.  This practice separates voters who rely on BMDs to mark their ballots and can create added physical barriers.

DRNY surveyors also observed structural violations at polling places that could not be so easily addressed. In all, 60 surveyed poll sites (34 percent) did not have solid, firm, and slip-resistant walkways between the parking areas and the entrances. At 30 sites (17 percent), the path of travel from the parking area to the stairs was not level or clear of physical barriers such as stairs or curbs. The entrances at 10 sites (6 percent) were less than 32 inches wide, making them difficult for voters with mobility devices to use. Local BOEs often struggle to find appropriate facilities for early voting — despite their authority to mandate a facility’s use as a poll site — because building management may be reluctant to permit access for the required nine days. footnote44_k03zuq1 44 NY Elec. Law §§ 4–104(3), 8–600(1) (2023).  Even so, election administrators must reconsider using poll sites with such structural issues.

Lack of Training and Guidance for Poll Workers

HAVA requires states to ensure that every poll site has at least one accessible voting system, such as a BMD, available to voters. footnote45_tf5wwwj 45 52 U.S.C. § 21081(a)(3)(B).  However, that mandate is meaningless when not paired with adequate training and resources for poll workers to operate the equipment. DRNY surveyors and voters reported that poll workers lacked essential knowledge about BMDs at 13 poll sites across 12 counties in the state.

Some poll workers were not aware that BMDs are available to voters. At one site in Herkimer County, when a DRNY surveyor asked a poll worker about the site’s BMD, the worker did not know what the surveyor was referencing. In Ulster County, a machine operator expressed concern that voters could not take advantage of BMDs because the poll workers managing check-in were unaware of the option.

State law does not limit who may use a BMD to mark a ballot. footnote46_hs2lwdn 46 See generally N.Y. Elec. Law (2023).  However, at poll sites in at least five counties, DRNY surveyors and voters reported that poll workers conveyed that the equipment was only available to people with disabilities. At sites in Oneida and Rensselaer Counties, poll workers referred to BMDs as “handicap” voting machines. In Schenectady County, a poll worker shared with a DRNY surveyor her previous belief that BMDs were specifically for voters who are deaf or hard of hearing. Voters in Saratoga and Rensselaer Counties reported that when they requested to use a BMD, poll workers asked if they had a disability, which violates Title III of HAVA. footnote47_loguml9 47 Previous HAVA complaint determinations by the NYS BOE have found that a “poll worker inquiring whether a voter has a disability as a prerequisite to use the BMD constitutes a barrier in violation of Title III of HAVA. 52 U.S.C. § 21081(a)(3)(A).” See HAVA Complaint Determination, Michael Biornstad v. New York City Board of Elections, Complaint No. 16–03 (New York State Board of Elections, March 3, 2017), https://www.elections.ny.gov/NYSBOE/hava/HAVAComplaintCMP16–03Determination.pdf.  BMDs are not limited to individuals with disabilities, and labeling them as such circumscribes their benefit for voters who would have an easier time marking their ballot with a BMD but may not think they qualify to use one. Preferable terminology, such as accessible voting system or ballot-marking device, emphasizes the machine’s function instead of misconceptions about who may use them.

Although BMDs are available throughout the entire voting period and for all ballot types, at one poll site in Orange County, a worker incorrectly informed a DRNY surveyor that the BMD was only available on Election Day before being corrected by another worker. Similarly, two New York City voters who cast affidavit ballots — provisional ballots for voters who do not appear on the rolls at poll sites and are confirmed on the back end — shared via the online survey that they were incorrectly told that they could not mark them using BMDs.

Poll workers also need more hands-on training on how to set up and operate BMDs. At poll sites in at least three counties, DRNY surveyors or voters reported that BMDs were not ready to be used, either because they were not powered on or because poll workers were not prepared to initiate an accessible voting session. At one site in Albany County, some poll workers explained that they had trained themselves by using the equipment. For voters who depend on these systems to mark their ballots, a poll site with a BMD that cannot be used amounts to a poll site that has no BMD at all.

III. Solutions

The state legislature, the NYS BOE, and local BOEs must ensure equal access for all voters. As the entities working most directly with voters, local BOEs need to prepare their staff and poll workers to anticipate accessibility shortcomings at poll sites and respond to voters’ needs. The NYS BOE must provide local BOEs with the necessary support and guidance to make voting accessible, and it must hold them accountable when they fail to do so. The state legislature must give BOEs the authority and resources needed to allow voters to conveniently cast a ballot privately and independently. Most importantly, each of these steps should be taken in consultation with the public — especially New Yorkers with disabilities — to ensure an accessible voting experience for all voters.

Recommendations for Local BOEs

Poll worker training and guidance directly influence whether voters get the opportunity to mark and cast a ballot with privacy and independence. BOEs must make sure that all poll workers have the support and knowledge they need to serve voters and understand what steps to take if new obstacles arise during the voting period.

Recruit a more diverse group of poll workers and ensure that the role is accessible.

Recruiting more individuals with disabilities to serve as poll workers can help improve the voting experience for people with disabilities. Poll workers with disabilities understand firsthand the challenges that voters face, creating opportunities to better anticipate, identify, and address barriers. Greater representation and diversity among poll workers can also make poll sites more welcoming.

To achieve this goal, local BOEs must guarantee that the tasks expected of poll workers are accessible. Election officials should provide training and guidance to poll workers on electronic pollbook accessibility settings, including how to change display and text settings for ease of seeing, reading, and performing tasks; how to enable assistive touch features for poll pad screens; and how to connect and use assistive technology. footnote48_mfzqhw9 48 Whitney Quesenbery et al., “Checklists for Usability and Accessibility of Electronic Pollbooks,” Center for Civic Design, December 9, 2015, https://civicdesign.org/wp-content/uploads/2015/06/CCD-ElectronicPollbooks-Part3-Checklist-16–0207.pdf; and KNOWiNK, “KNOWiNK User Guide, Appendix F: Poll Pad Accessibility Features,” accessed May 29, 2023, https://verifiedvoting.org/wp-content/uploads/2020/09/CA_KNOWiNK-user-guide.pdf.

Require all poll workers to have hands-on training with BMDs.

BOEs should require every poll worker to receive hands-on training on how to set up, use, and troubleshoot a BMD before working at a poll site. Training should include a plan of action for BMD malfunctions that covers whom to call and what alternatives can be offered to voters until the issue is addressed. Staff from the Oswego County BOE, for example, shared with a DRNY surveyor that they provide hands-on BMD training to every poll worker once a year and additional in-depth BMD training to floating on-call workers, who are stationed within 15 minutes of polls sites in case issues arise.

Create easy-to-follow quick guides for BMDs.

Poll workers should not have to rely on remembering their training or flipping through a long manual every time a voter asks to use a BMD. Instead, local BOEs should create accessible voting session quick guides that cover how to use and troubleshoot BMDs. A poll worker in Tioga County shared with a DRNY surveyor that the BOE developed instruction cards for poll sites and provided BMD-trained poll workers with blue buttons so that voters can more easily identify someone if they need help. In designing the quick guides, local BOEs should follow usability and comprehension best practices, such as those provided by the Center for Civic Design. footnote49_u3d1x38 49 Center for Civic Design, “Field Guides to Ensuring Voter Intent, Vol. 4: Effective Poll Worker Materials,” accessed May 29, 2023, https://civicdesign.org/fieldguides/effective-poll-worker-materials.

Assign a dedicated accessible poll worker to each poll site.

As recommended by the National Disability Rights Network, counties that have the capacity should hire a dedicated accessible poll worker for each poll site. That person should receive extra training on accessibility requirements and best practices, be available to support voters with disabilities throughout the voting period, and be tasked with ensuring that the polling place complies with state and federal law. footnote50_7it6ydy 50 Hudson and Bishop, Blocking the Ballot Box, 67.

Recommendations for the NYS BOE

Many of the most common accessibility violations identified in DRNY’s surveys can be mitigated with simple, low-cost solutions if BOEs identify and address the issues before early voting begins. Local BOEs are responsible for designating, assessing, and organizing poll sites, but too often, these officials operate with limited resources and few full-time staff. footnote51_zgpn2j7 51 Tisler et al., How to Fix Election Administration, 15.

The NYS BOE must improve guidance and assistance to help local BOEs choose, evaluate, and organize poll sites. It must also monitor local BOE implementation of and adherence to state and federal poll site accessibility standards and take corrective action when local BOEs repeatedly fail to abide by them. The state legislature should clarify — and where necessary expand — the NYS BOE’s authority and mandate to perform this role.

Improve resources for assessing poll site accessibility and implementing solutions.

State law requires the NYS BOE to publish and distribute a guide on poll site accessibility standards and a survey instrument for local BOEs to assess poll sites. footnote52_rn7up4e 52 N.Y. Elec. Law § 4–104(1-a), (1-b) (2023).  The NYS BOE should design these materials — or create complementary resources — to provide accessibility standards and best practices in a concise, easy-to-follow format for the workers who implement these practices. The NYS BOE can also create model quick guides for operating BMDs and other voting equipment that local BOEs can circulate to poll sites.

In 2020, Iowa’s secretary of state coordinated with disability rights organizations to design new “Voting Accessibility Quick Check” booklets. footnote53_bq2oxel 53 Iowa Secretary of State’s Office, “U.S. Election Assistance Commission Award Application 2020,” accessed May 29, 2023, https://www.eac.gov/sites/default/files/clearinghouseawards/2020/Iowa_Secretary_of_State%20Accessibility.pdf.  These pamphlets provide concise summaries of standards, diagrams to help visualize what to look for, and even ruler markings to measure door widths, pathways, protruding objects, and other physical attributes that can inhibit a voter’s movement through the poll site. footnote54_if0c11i 54 Disability Rights Iowa and Iowa Secretary of State’s Office, “The Voting Accessibility Quick Check,” July 24, 2020, https://issuu.com/iowasecretaryofstate/docs/quick_check_final.  The U.S. Election Assistance Commission, honoring the Iowa secretary of state’s office with a Clearinghouse Award, recognized the booklets as a national best practice and a model for other states to adopt. footnote55_4ztzn0t 55 U.S. Election Assistance Commission, “Iowa Secretary of State 2020 Clearinghouse Award Winner,” accessed May 29, 2023, https://www.eac.gov/election-officials/iowa-secretary-state-2020-clearinghouse-award-winner.

The NYS BOE should ensure that accessibility survey checklists go beyond a yes/no framework and provide clear directions for and examples of temporary remedies to address violations. Checklists could include brief descriptions and visuals of remedies, references to more detailed descriptions in the full guide to poll site accessibility standards, or links to visual explainers. The New York City BOE has published video resources on ADA poll site standards that offer advice for implementing and maintaining temporary solutions. footnote56_sg3444e 56 Board of Elections in the City of New York, “ADA Training Videos,” accessed May 29, 2023, https://vote.nyc/page/ada-training-videos.  However, most local BOEs do not have comparable funding and capacity to produce materials like this. The NYS BOE should help fill that gap.

Share results from poll site accessibility surveys publicly.

The state law requirement that local BOEs complete and submit accessibility surveys to the NYS BOE is an underutilized opportunity for oversight and accountability. The NYS BOE should publish survey findings online ahead of early voting so that voters can make informed decisions about which early voting location to go to or whether to request an absentee ballot instead. Prior to citywide elections in 2023, the Chicago Board of Elections released accessibility ratings for nearly 1,000 poll sites, deeming each one high, medium, or low-to-no accessibility and publishing descriptions of each ranking for voters. footnote57_cs2btmb 57 Quinn Myers, “How Accessible Is Your Polling Place? Elections Board Shares More Detailed Info on Each Site,” Block Club Chicago, February 14, 2023, https://blockclubchicago.org/2023/02/14/how-accessible-is-your-polling-place-elections-board-shares-more-detailed-info-on-each-site.

The NYS BOE should create a similar centralized information source ahead of each election. The board must strive to ensure that every poll site is fully accessible to all voters. If a local BOE falls short of this requirement, voters deserve to know in advance — not when they arrive to vote.

Hold local BOEs accountable when counties continue to violate accessible voting laws.

Under HAVA, each state must establish and maintain an administrative process that allows people to seek redress for violations of the act’s requirements, among them the requirement that voting systems “be accessible for individuals with disabilities . . . in a manner that provides the same opportunity for access and participation (including privacy and independence) as for other voters.” footnote58_zl616d6 58 52 U.S.C. §§ 21081(a)(3)(A), 21112.  When the NYS BOE finds that a violation has occurred, state law requires the board to direct the applicable state or local body, most commonly the local BOE, to take corrective steps. footnote59_40yre69 59 N.Y. Elec. Law § 3–105(7) (2023); and N.Y. Comp. Codes R. and Regs. Tit. 9 § 6216.2(f).

However, state law does not require the NYS BOE to conduct any ongoing oversight or reevaluate counties where violations occur, even when those violations are repeated across multiple elections. Without a statutory requirement to act, the NYS BOE does not hold local BOEs accountable, leaving problems unresolved for voters.

For example, in 2021, the NYS BOE directed the Suffolk County BOE to “instruct election workers and inspectors to inform voters of their options of ways to vote when a BMD breaks down” as part of the remedy to a HAVA violation. footnote60_3oowcnm 60 HAVA Complaint Determination, Marilyn Tucci v. Suffolk County Board of Elections, Complaint No. 20–03, 11 (New York State Board of Elections (NYS BOE), March 22, 2021), https://www.elections.ny.gov/NYSBOE/hava/HAVAcmp20–03determination.pdf.  One year later, the NYS BOE found that the county had continued to violate HAVA regulations when poll workers failed to inform a voter of alternative options to vote after a poll site’s BMD malfunctioned. footnote61_0pndhtq 61 HAVA Complaint Determination, Devin Fernandez v. Suffolk County Board of Elections, Complaint No. 22–01 (NYS BOE, April 18, 2022), https://www.elections.ny.gov/NYSBOE/hava/HAVAcmp22–01determination.pdf.  The Suffolk BOE insisted that poll workers had been instructed to inform voters of alternatives, and that it had since tried to retrain the poll worker in question after the worker failed to provide alternatives (though the individual chose to resign instead). In response, the NYS BOE once again directed the Suffolk BOE to “instruct poll workers to inform voters of their options to vote when a BMD breaks down.” footnote62_lqb8f5n 62 HAVA Complaint Determination, Devin Fernandez, Complaint No. 22–01 at 9.

It is unclear whether the NYS BOE investigated further to determine if poll worker training materials could more clearly convey this information, or if additional steps by the Suffolk BOE could have made poll workers more likely to comply with these requirements. Even when all parties operate in good faith to remedy violations and shortcomings, accessibility compliance requires collaboration, review, and oversight between state and local officials.

Recommendations for the State Legislature

Temporary modifications to voting locations cannot remedy all accessibility issues. The state legislature should expand options and funding for poll sites that local BOEs can choose from. New York should borrow from other jurisdictions that have employed creative solutions to address this problem.

Require poll sites to offer curbside voting.

At least 27 states either require or permit poll sites to offer curbside voting for voters with disabilities. footnote63_ktlc037 63 Movement Advancement Project, “Curbside Voting for Voters with Disabilities,” accessed May 29, 2023, https://www.mapresearch.org/democracy-maps/curbside_voting.  No law in New York authorizes this option. Curbside voting allows an individual to mark a ballot outside a polling place, often from a vehicle, making it a particularly useful option for poll sites that have structural barriers to accessible entry that cannot reasonably be remedied by the local BOE ahead of an election. To be sure, curbside voting is not on its own a solution to inaccessible poll sites, especially for voters who need access to BMDs to mark their ballots, but it can offer voters with disabilities another option to vote privately and independently. Curbside voting laws typically require a bipartisan team of poll workers to bring the voter a pollbook to sign, a ballot, and any other materials needed to cast a vote. The U.S. Election Assistance Commission offers a “quick start guide” to help election officials implement curbside voting procedures. footnote64_fgdb11q 64 U.S. Election Assistance Commission, “Curbside Voting,” May 1, 2022, https://www.eac.gov/sites/default/files/electionofficials/QuickStartGuides/Curbside_Voting_EAC_Quick_Start_Guide_508.pdf.

Authorize and provide funding for mobile voting units.

Some jurisdictions across the country, including Orange County, California, Fulton County, Georgia, and Kane County, Illinois, have used mobile voting units that travel to different spots throughout the early voting period to offer voters an alternative to fixed-location poll sites. footnote65_s8h8woh 65  Orange County Registrar of Voters, “Unique ‘Pop Up’ Mobile Voting Debuts in Orange County Tomorrow,” May 24, 2018, https://ocvote.gov/press-releases/unique-pop-up-mobile-voting-debuts-in-orange-county-tomorrow; Claudia Kelly-Bazan, “Fulton County Is First in the State to Launch a Mobile Voting Unit,” Fox 5 Atlanta, October 1, 2020, https://www.fox5atlanta.com/news/fulton-county-is-first-in-the-state-to-launch-a-mobile-voting-unit; and Mike Danahey, “Kane County’s Unique Mobile Vote RV Makes a Stop in Elgin,” Chicago Tribune, October 30, 2018, https://www.chicagotribune.com/suburbs/elgin-courier-news/ct-ecn-elgin-vote-mobile-st-1031-story.html.  These mobile units, which often resemble RVs, can have features such as wheelchair lifts to ensure accessibility for all users. footnote66_kfkbm4d 66 Orange County Registrar of Voters, 2021–2025 Election Administration Plan, November 10, 2021, 46–47, https://elections.cdn.sos.ca.gov/vca/eap/orange-eap.pdf.  And they allow local BOEs to make use of site options that are convenient and accessible by public transit. The New York State legislature should authorize the use of mobile voting units and provide funding to help counties purchase such vehicles.

Increase funding for election administration and early voting.

County legislatures chronically underfund local BOEs, which contributes to inconsistent voter resources from county to county. The New York State budget for fiscal year 2024 included $15 million in additional funds for local BOEs to make necessary updates to outdated election equipment. footnote67_ru0ontz 67 S.B. 4004D/A.B. 3004D, 2023 State Leg., Reg. Sess. (N.Y. 2023).  This allotment was a great first step, but local BOEs need more consistent funding, not just one-time grants for specific initiatives. footnote68_wfo9ycw 68 Tisler et al., How to Fix Election Administration, 15.  Funding could help counties open more early voting locations, invest in mapping software and expertise to better plan locations, increase staffing at early voting poll sites, update outdated equipment that is more likely to break, and purchase upgrades such as ramps, slip-resistant mats, and door hardware to remedy accessibility issues at polling places.

Conclusion

When New York enacted early voting in 2019, it strengthened its commitment to providing accessible and convenient access to the ballot for all voters. In many ways, the move has been an enormous success: surveyed voters celebrated the flexibility and convenience that early voting offers, and millions of New Yorkers have cast their ballots early over the last four years.

Still, this work is unfinished. Operational and structural issues at early voting poll sites, along with insufficient training for poll workers, too often deny voters with disabilities their right to cast their vote privately and independently. Local BOEs, the NYS BOE, and the state legislature must work together to address these obstacles through improved guidance, training, and oversight; increased investment in election administration; and expanded options for voters. Without such progress, the promise of early voting for all New Yorkers will be unfulfilled.

On June 27, 2023, the New York State Board of Elections responded to a draft of this report with the following statement:

Procuring early voting poll sites that are conveniently located, accessible, and available for nine days is a significant undertaking. County Boards of Elections put in tremendous effort to find suitable locations that meet the needs of all voters. Occasionally, temporary measures become necessary to ensure equitable access. Although the draft report submitted to the Board by Disability Rights New York (DRNY) and the Brennan Center for Justice lacks specific details about the locations of identified issues, it is evident that most of the cited problems could have been addressed through additional training for poll workers and the implementation of temporary walkways, signage, and door stops. DRNY and the Brennan Center have agreed to provide the Board with the complete report, which includes photographs taken by surveyors. This will enable the Board to thoroughly investigate and understand the extent of these discrepancies.

The Board of Elections acknowledges that there is room for further improvement in serving the voters of New York State. Our office is actively working on interim recommendations for counties based on the findings of the report. We are also planning to update existing guidance, including the procurement of new materials on poll worker etiquette and enhanced training for County Commissioners, in advance of the general election. The New York State Board of Elections remains steadfast in our commitment to ensuring equitable access for all voters. We eagerly anticipate collaborating with DRNY and the Brennan Center to implement positive changes that will enhance poll site accessibility.