Compliance of Direct Recording Electronic Voting Systems With Help America Vote Act and Americans With Disabilities Act ( 2003 )

  •            Compliance of Direct Recording Electronic Voting
                  Systems With Help America Vote Act and
                       Americans With Disabilities Act
    A direct recording electronic voting system that produces a contemporaneous paper record, which is
      not accessible to sight-impaired voters but which allows sighted voters to confirm that their ballots
      accurately reflect their choices before the system officially records their votes, would be consistent
      with the Help America Vote Act and with title II of the Americans with Disabilities Act, so long as
      the voting system provides a similar opportunity for sight-impaired voters to verify their ballots
      before those ballots are finally cast.
                                                                                        October 10, 2003
                              MEMORANDUM OPINION FOR THE
                                  CIVIL RIGHTS DIVISION
       This memorandum responds to your Office’s request of August 12, 2003, for
    our opinion on whether a direct recording electronic (“DRE”) voting system may,
    consistent with the Help America Vote Act and the Americans with Disabilities
    Act, produce a contemporaneous paper record, not accessible to sight-impaired
    voters, that allows voters to confirm that their ballots accurately reflect their
    choices before the system officially records their votes. Based on the information
    you have provided us, we conclude that this proposed voting system would be
    consistent with both Acts, so long as the DRE voting system provides a similar
    opportunity for sight-impaired voters to verify their ballots before those ballots are
    finally cast.1
       Many states are expanding the use in elections of DRE voting systems, which
    allow voters to enter their choices on an electronic screen in the voting booth. The
    DRE machines also allow a voter to confirm his ballot before it becomes an
    officially recorded vote by providing a “summary screen” listing all of the voter’s
    choices. After viewing the summary screen, the voter may either cast his ballot or
    else go back and make corrections. On newer DRE machines, an auditory
    component announces the ballot choices and the contents of the electronic
          In so concluding, we are not sanctioning the use of any particular DRE voting system. Indeed, our
    understanding of how such systems will actually work is necessarily limited by the fact that most of
    them are still at the design stage. The addition (or elimination) of certain features, or their use in
    particular ways, may result in a voting system that does not provide a similar opportunity for disabled
    voters to access and participate in the voting system. As explained in greater detail below, such a
    system would be inconsistent with the Help America Vote Act.
                     Opinions of the Office of Legal Counsel in Volume 27
    summary screen, allowing sight-impaired voters to verify and cast their ballots
    without assistance and in complete privacy.
       In response to concerns that the DRE voting systems may be vulnerable to
    tampering, the State of California is considering adopting DRE machines that
    would produce a contemporaneous paper record for each voter in addition to the
    electronic summary screen. See Letter for Joseph Rich, Voting Section Chief,
    Civil Rights Division, from Randy Riddle, Chief Counsel, California Secretary of
    State (July 8, 2003). This paper record would summarize the voter’s choices, and
    would be printed before the voter finally casts his ballot. In some cases, the paper
    record might also be preserved as a means to count votes in case of a recount or
    election contest. But in other cases, the paper record would serve solely to inform
    the voter of his choices before finally casting his ballot—serving the same
    function as the DRE electronic summary screen.
       Because the paper record produced by the DRE machines in question will not
    be produced in a format accessible to sight-impaired voters, you have asked for
    our opinion whether such a voting system would violate either the Help America
    Vote Act or title II of the Americans with Disabilities Act. We will address each
    statute in turn.
       Under the Help America Vote Act of 2002 (“HAVA”), all “voting systems”
    used in an election for federal office must meet specified federal requirements by
    January 1, 2006. See 42 U.S.C. §§ 15481–15485 (Supp. II 2003). One of these
    requirements is that voting systems “shall . . . permit the voter to verify (in a
    private and independent manner) the votes selected by the voter on the ballot
    before the ballot is cast and counted.” 42 U.S.C. § 15481(a)(1)(A)(i). DRE voting
    systems comply with this mandate by providing a final summary screen before the
    voter asks the machine to officially record his vote, as well as an auditory
    component that informs sight-impaired and illiterate voters of the summary
    screen’s contents. The production of a contemporaneous paper record is not
    necessary for the voting system to comport with section 15481(a)(1)(A)(i), but it
    does afford an additional means for a voter to verify his choices before casting his
       HAVA further provides that “[t]he voting system shall . . . be accessible for
    individuals with disabilities, including nonvisual accessibility for the blind and
    visually impaired, in a manner that provides the same opportunity for access and
    participation (including privacy and independence) as for other voters.” 42 U.S.C.
    § 15481(a)(3)(A) (emphasis added). Some may object that sight-impaired voters
    will have no opportunity to access or use the contemporaneous paper records
                                Direct Recording Electronic Voting Systems
    generated by DRE machines, as the paper record is not produced in Braille, and
    the DRE systems do not currently convert the paper into an audible format
    accessible to the sight-impaired. We do not, however, believe that this feature
    contravenes section 15481(a)(3)(A).
       What section 15481(a)(3)(A) requires is that each “voting system” be accessi-
    ble to disabled persons in a manner that provides “the same opportunity” for
    access and participation that other voters have. We will assume for the sake of
    argument that the paper record produced by DRE machines is included as part of
    the “voting system” as defined in section 15481(b),2 although we note that this is
    not entirely clear and may depend on precisely what functions the paper record
    serves beyond providing a means for voters to verify their ballots before they are
    cast.3 But even if one indulges this assumption, the statutory issue would not be
           Section 15481(b) provides:
              In this section, the term “voting system” means—
                (1) the total combination of mechanical, electromechanical, or electronic equipment
                (including the software, firmware, and documentation required to program, control,
                and support the equipment) that is used—
                   (A) to define ballots;
                   (B) to cast and count votes;
                   (C) to report or display election results; and
                   (D) to maintain and produce any audit trail information; and
                (2) the practices and associated documentation used—
                   (A) to identify system components and versions of such components;
                   (B) to test the system during its development and maintenance;
                   (C) to maintain records of system errors and defects;
                   (D) to determine specific system changes to be made to a system after the initial
                   qualification of the system; and
                   (E) to make available any materials to the voter (such as notices, instructions,
                   forms, or paper ballots).
    42 U.S.C. § 15481(b) (emphasis added).
          Paper would appear not to be “mechanical, electromechanical, or electronic equipment.” While 42
    U.S.C. § 15481(b)(1) includes in its reach all “documentation” used to “support” such equipment, we
    do not think it likely that a paper record whose sole function is to allow voters to verify their choices
    would be “used” for any of the purposes delineated in section 15481(b)(1)(A)–(D). Another possible
    category for such a paper record is section 15481(b)(2)(E), but it is important to emphasize that the
    “notices, instructions, forms, or paper ballots” referred to in section 15481(b)(2)(E) are not themselves
    part of the “voting system”; rather, the “practices and associated documentation” used to make these
    materials available to the voter are part of the voting system.
        A paper record that would also be used for auditing purposes in the event of a recount or election
    challenge is more likely to be part of the “voting system” in section 15481(b)(1), because it would be
    used to “count votes,” 42 U.S.C. § 15481(b)(1)(B), as well as “to maintain and produce any audit trail
    information,” id. § 15481(b)(1)(D).
        This threshold issue will depend on the precise facts of each voting system, so we leave it for
    another day and assume, arguendo, that the paper record can be pigeonholed into one of the nine
    categories listed in 42 U.S.C. § 15481(b)(1)–(2).
                         Opinions of the Office of Legal Counsel in Volume 27
    whether the paper record is accessible to the sight-impaired, but whether the entire
    DRE voting system is accessible in a manner that provides disabled voters “the
    same opportunity for access and participation” that other voters enjoy. 42 U.S.C.
    § 15481(a)(3)(A). We must therefore evaluate a disabled person’s opportunity to
    participate in the voting system holistically, rather than scrutinizing his opportuni-
    ty to access the system’s discrete components or parts.
        Furthermore, the use of the word “same” in section 15481(a)(3)(A) does not
    mean “identical”; if HAVA were read to require an identical opportunity for
    access and participation among non-disabled voters and voters with every type of
    disability, it would mandate the impossible. A serious disability will necessarily
    result in a voting experience that differs in some manner from that enjoyed by
    non-disabled voters. Nothing can be done, for example, to enable blind voters to
    visually interact with their ballot as sighted voters can. And we do not read HAVA
    to force all sighted persons to use voting technology with no visual dimension
    whatsoever (such as a voice-activated box that navigates voters through the ballot
    via a series of audible commands). That approach would not comply with section
    15481(a)(3)(A) because such a voting system, in its efforts to produce “identical”
    opportunities among the sighted and the blind, would be entirely inaccessible to
    the hearing-impaired. What is more, equating the word “same” in section
    15481(a)(3)(A) with “identical” would prohibit the very audio components in
    DRE voting systems that enable the sight-impaired to vote in privacy, because
    voters with other types of disabilities, such as the hearing-impaired, could not
    access these accommodations and would therefore lack an identical “opportunity”
    to participate in the voting system. We therefore construe the word “same” to
    mean “similar in kind, quality, quantity, or degree.” See American Heritage
    Dictionary of the English Language 1539 (4th ed. 2000). So long as a disabled
    person can access and participate in the essentials of a voting system—such as the
    ability to cast a ballot in privacy with a full opportunity to review the ballot before
    casting it—his opportunity to access and participate in the voting system is
    sufficiently “similar in kind, quality, quantity, or degree” to that enjoyed by non-
    disabled persons. The fact that the precise means by which he may access and
    participate in those essentials differs from those available to non-disabled persons
    does not deprive him of the “same opportunity” to participate in the voting
    system—if it did, no voting system could ever comply with HAVA.
        So long as DRE voting systems provide sight-impaired voters with audio
    equipment that enables them to verify their ballots before they are cast, we
    conclude that the provision of a contemporaneous paper record to assist sighted
    voters in verifying their ballots does not run afoul of HAVA.4 The essentials of
    such a voting system—including the ability to verify one’s ballot—are available to
    disabled and non-disabled voters alike, giving them the “same opportunity” for
          This analysis assumes, of course, that the audio device, the summary screen, and the paper record
    are all reliable methods of verification.
                          Direct Recording Electronic Voting Systems
    access and participation under section 15481(a)(3)(A). Knowledge of the contents
    of the paper record is simply one of the means by which a sighted voter may verify
    his ballot before casting it, and DRE voting systems satisfy section 15481(a)(3)(A)
    so long as they provide a comparable means for sight-impaired voters to achieve
    this essential end.
       It is true that sighted voters will have more than one method by which they may
    verify their ballot before casting it: they can view both the electronic summary
    screen as well as the paper record produced by the DRE machine. Sight-impaired
    voters, by contrast, can only listen to an audio description of the summary screen,
    and have no independent way of knowing the contents of the paper record before
    casting their vote. Nevertheless, we do not believe that providing a greater number
    of methods by which sighted voters can verify their ballots deprives blind voters of
    the “same opportunity” for access and participation in the voting system, so long
    as the means available to such disabled persons are adequate to ensure similar
    access to and participation in the essentials of the voting system. The ability to
    verify one’s ballot before casting it is essential, cf. 42 U.S.C. § 15481(a)(1)(A)(i),
    but the availability of multiple techniques by which to do so is not. Disability
    accommodations often result in a greater range of methods by which non-disabled
    persons can accomplish their goals, yet such accommodations are not deemed to
    deny equal opportunities for disabled persons for that reason alone. Consider a
    building that provides both a set of stairs and a wheelchair ramp to its outdoor
    entrance. Non-disabled persons have more means to enter the building (they can
    use either the stairs or the ramp), while the wheelchair-bound person can use only
    the ramp. But no one would contend that such a building has deprived disabled
    persons of the “same opportunity” to access the building. That is because the
    essential requirement of access—the ability to get to the front door—is available
    to all. The means to achieve that end differ, and non-disabled persons have a
    greater number of options, but provision of the ramp suffices to provide disabled
    persons with a similar (though not “identical”) opportunity. So too with the DRE
    voting systems, as you have described them.
       Title II of the Americans with Disabilities Act (“ADA”) provides that “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.” 42 U.S.C. § 12132 (2000). Only a “qualified individual with a disability”
    (“QID”)—defined as “an individual with a disability who, with or without
    reasonable modifications to rules, policies, or practices, the removal of architec-
    tural, communication, or transportation barriers, or the provision of auxiliary aids
    and services, meets the essential eligibility requirements for the receipt of services
                         Opinions of the Office of Legal Counsel in Volume 27
    or the participation in programs or activities provided by a public entity,” id.
    § 12131(2)—is protected by title II.
        The first task is to identify the relevant “service,” “program,” or “activity” at
    issue. This step is essential, because one cannot be a QID under section 12131(2)
    except in relation to a specific “service,” “program,” or “activity.” A title II
    complainant must show that he meets the essential eligibility requirements either
    to receive a “service,” or to participate in a “program” or “activity,” provided by a
    public entity. Without such a showing, there can be no violation of section 12132.5
        A title II complainant could plausibly assert that the paper record itself is a
    “service” that blind individuals are eligible to “receive.” (The ADA does not
    define the term “services,” but we will assume arguendo that “services . . .
    provided by a public entity” encompass the paper record produced by the DRE
    voting system.) All voters, disabled or not, receive the paper record any time they
    vote on a DRE machine, so there is no need to explore whether accommodations
    beyond the realm of reason are necessary to make such persons “eligible” to
    receive the paper record. See 42 U.S.C. § 12131(2). This suffices to establish a
    sight-impaired voter as a QID under section 12131(2), but title II is not breached
    unless the sight-impaired person is either denied the benefits of the paper record,
    or is subjected to discrimination by a public entity. See id. § 12132.
        To the extent the paper record provides sighted voters with an opportunity to
    check their ballots, this does not deny a benefit to sight-impaired voters, because
    the DRE machines’ auditory component already provides a means for such voters
    to verify their ballots before casting them. But more importantly, given that all
    voters were fully capable of confirming their ballot before the advent of paper-
    producing DRE machines (either by viewing the summary screen, or using the
    machine’s audio capacity), we do not think the paper record provides any “bene-
    fit” at all in this regard. See American Heritage Dictionary 168 (defining “benefit”
    as “an advantage; help; aid”). We reject any construction of the term “benefit” in
    section 12132 that includes the provision of a means to accomplish a task that all
    persons could fully and effectively perform without such provision. In cases where
    the paper record is used by election officials for auditing purposes, this “benefit”
    of the paper record is not withheld from sight-impaired voters—all paper records,
    regardless of the voter’s disability status, would be used in the event of a recount
    or election challenge and would protect the integrity of that voter’s ballot.
           At least one decision from a court of appeals has disclaimed any need to determine whether a
    government function can be characterized as a “service,” “program,” or “activity” when adjudicating
    title II claims. See Barden v. City of Sacramento, 
    292 F.3d 1073
    , 1076 (9th Cir. 2002) (“Attempting to
    distinguish which public functions are services, programs, or activities, and which are not, would
    disintegrate into ‘needless hair-splitting arguments.’”) (citation omitted). For the reasons explained
    above, this approach cannot be reconciled with the text of title II. Nor can it be reconciled with
    Zimmerman v. Oregon Department of Justice, 
    170 F.3d 1169
    , 1174–76 (9th Cir. 1999), which Barden
    did not cite.
                          Direct Recording Electronic Voting Systems
       A sight-impaired voter could also claim that voting is a “program” or “activity”
    in which he is eligible to participate. See 42 U.S.C. § 12131(2). But however one
    defines the “benefits” of voting, we cannot see how the provision of a paper record
    denies these “benefits” to sight-impaired QIDs. Even if the paper record is utterly
    useless to sight-impaired voters, those voters still enjoy every “benefit” of voting
    that they would have had under the non-paper-producing DRE machines. One
    might contend that our understanding of the “benefits” of voting should vary
    depending on the technology employed, and that the “activity” of voting on a
    paper-producing DRE machine includes added “benefits” unknown to those voting
    on other equipment. But even under this approach, the only conceivable “benefit”
    that one might claim is denied to sight-impaired voters is the provision of multiple
    means by which to verify one’s ballot. For the reasons explained above, we do not
    regard this as a “benefit” under section 12132. The Attorney General has empha-
    sized that section 12132 does not require a public entity to make each of its
    existing facilities accessible to individuals with disabilities when administering a
    service, program, or activity, see 28 C.F.R. § 35.150(a)(1) (2003), which confirms
    our view that the failure to make each and every means of access or participation
    available to disabled persons is not the “denial of a benefit” under section 12132.
       As to whether sight-impaired voters are “subject to discrimination” by a public
    entity that uses the DRE voting system: the DRE machines indeed treat sight-
    impaired voters differently, as they must engage an auditory component while
    voting, while sighted persons can simply look at the screen. Mere dissimilar
    treatment, however, does not by itself constitute “discrimination” under title II. All
    disability accommodations treat the disabled differently than non-disabled persons,
    but section 12132 does not prohibit the very accommodations mandated by the
    ADA. See 28 C.F.R. § 35.130(c) (“Nothing in this part prohibits a public entity
    from providing benefits, services, or advantages to individuals with disabilities”).
    Rather, to be “subjected to discrimination” under section 12132, a QID must not
    only be treated differently, but the discrimination must also leave the QID worse
    off than if the dissimilar treatment had never occurred. See Olmstead v. Zimring,
    527 U.S. 581
    , 599–601 (1999) (concluding that unjustified institutional isolation
    of persons with disabilities is “discrimination” under section 12132 because it
    “perpetuates unwarranted assumptions that persons so isolated are incapable or
    unworthy of participating in community life” and “severely diminishes the
    everyday life activities of individuals”). We think that any dissimilar treatment of
    QIDs resulting from a public entity’s decision to use handicapped-accessible
    voting equipment falls into the category of permissible accommodation, rather
    than impermissible “discrimination,” under title II of the ADA.
                                                 SHELDON BRADSHAW
                                              Deputy Assistant Attorney General
                                                  Office of Legal Counsel