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Accessible Voting and the Law

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Written by: Marketing

A large number of federal and state laws regulate the electoral process. Most cases focused on accessible voting, however, are brought under two laws: Section 504 of the Rehabilitiation Act of 1973 and Title II of the Americans with Disabilities Act of 1990. These two laws guarantee the right of individuals with disabilities to access government services—including voting—without discrimination.

Section 504 of the Rehabilitiation Act of 1973

The Rehabilitation Act is a federal law designed to remedy discrimination by the federal government and organizations receiving federal funding. Section 504 prohibits federally-funded organizations from discriminating against individuals on the basis of disability. It applies to all organizations receiving federal grants, including state and county boards of elections.

Section 504 provides:

“No otherwise qualified individual with a disability in the United States . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency or by the United States Postal Service.” 29 U.S.C. § 794.

Requirements under Section 504 include:

  • Ensuring programs, services, activities, and facilities are accessible to individuals with disabilities
  • Providing services in the most-integrated setting appropriate to the needs of the individual with disabilities
  • Making reasonable accommodations for individuals with disabilities
  • Providing auxiliary aids to individuals with disabilities, at no additional cost

Title II of the Americans with Disabilities Act of 1990

Under Title II of the Americans with Disabilities Act of 1990 (ADA), state and local governments are prohibited from discriminating against individuals with disabilities, or excluding them from participation in government services, programs, or activities on the basis of their disability.

“Subject to the provisions of this subchapter, no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” SEC. 202. DISCRIMINATION. 42 U.S.C. 12132.

Voting, as well as voter registration, are government services covered under Title II.

Under regulations adopted by the Department of Justice (“DOJ”) in 2010, governmental bodies are required to ensure that communications with individuals with disabilities “are as effective as communications with others.” Governmental bodies are also required to provide “appropriate auxiliary aids and services” to individuals with disabilities when necessary for them to have “an equal opportunity to participate in, and enjoy the benefits of,” the service or program. 28 C.F.R. § 35.160.

Although websites and web content are not expressly referenced in the 2010 regulations, they are included in the “auxiliary aids or services,” especially considering the mandates that communications be “as effective as communications with others” and that information be provided in accessible formats.

While the DOJ has not adopted formal regulations on websites and mobile apps, it has consistently interpereted Title II to require content comply with the Web Content Accessibility Guidelines (“WCAG”) 2.0 framework level AA success criteria.

Private Enforcement Actions Have Been Increasing—Is Your Organization Ready?

The last several years have seen a dramatic increase in the number of private enforcement actions based on Section 504 and Title II. To learn more about these lawsuits—and how they might affect your organization—download our free Voting and Digital Accessibility Whitepaper today!

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