Blind Voters Are Suing North Carolina and Texas, Arguing That Mail Ballots Are Discriminatory

Ricky Scott has voted in his home state of North Carolina for roughly 40 years. As a blind Black man, he is used to navigating various obstacles to cast a ballot, even with his state’s accessible electronic voting machines. But this year he is facing an unprecedented situation: the coronavirus pandemic means that voting in person could put his health—and potentially his life—at risk.

“I’m concerned about being exposed,” says Scott, who is 59 years-old and at a high risk for complications related to COVID-19. “I need to mitigate the possibility of contracting this thing,” he adds.

But Scott also knows his options are limited. While millions of other Americans have turned to absentee voting or voting by mail, it does not work for everyone. Both methods typically require that voters fill out a paper ballot—something a blind person can’t do independently. Scott says he and other disability advocates have raised this issue with elections officials in the past but made little progress. Now, faced with a pandemic, he’s turning to the courts. In July, Scott, along with several other blind voters and local disability groups, filed a lawsuit against North Carolina’s state board of elections to demand an accessible way to independently and privately vote in November’s election.

“Anytime where you are deprived of an independent and a secret ballot, you feel like less than a full citizen,” Scott says. “Our state makes you feel like a second class citizen, and they don’t value those of us with disabilities.”

The Americans with Disabilities Act, which turned 30 this year, was supposed to prohibit discrimination against people with disabilities and guarantee them access to all areas of public life. And while the Help America Vote Act requires every polling place in the country to have at least one accessible voting machine for federal elections, most states do not have similarly accessible absentee ballot systems. That means for voters like Scott, they are stuck with a difficult choice: give up their right to vote privately and independently, risk exposure to COVID-19 by voting in person—or don’t vote at all.

In North Carolina alone, there are roughly 162,000 registered voters with vision disabilities, according to an estimate from Disability Rights North Carolina, one of the groups suing the state. That’s enough to make a difference in a battleground state where President Donald Trump and former Vice President Joe Biden are neck and neck in the polls. In 2016, Trump won the state with fewer than 175,000 votes.

And it’s not just blind voters who are affected by the reliance on paper ballots. While people with different disabilities have varying needs, those with mobility impairments, tremors, cognitive disabilities or learning disabilities may also be unable to mark a paper ballot by themselves. More than 6 million people with a visual impairment were eligible to vote across the country in 2016, and one sixth of the total electorate had some form of disability, according to data from researchers at Rutgers University.

Americans with disabilities have not traditionally favored one party over the other. In 2016, roughly 50% leaned Democratic, according to Pew Research Center, while 42% leaned Republican. But this bipartisanship has not precluded increasingly vocal advocacy, particularly around issues related to health care as Republicans attempted to repeal the Affordable Care Act and the Trump Administration cut Medicaid and other benefits. Voter turnout among Americans with disabilities, which has historically been lower than those without disabilities, surged by 8.5 percentage points in 2018, and advocacy groups have been aiming to repeat that success this year.

So as Americans with disabilities, many of whom have been hit hard by COVID-19, have sought to cast their votes without putting their health at risk, lawsuits like the one in North Carolina popped up around the country. Some cases have already been successful. As a result of court orders or agreements sparked by lawsuits, Pennsylvania, Maine, New Hampshire, New York and Virginia have all added accessible absentee ballot options for people with disabilities. Blind voters and advocacy groups are still suing in Texas, and lawsuits addressing other accessibility concerns have been filed in other states, too.

The blind voters’ lawsuits against Texas and North Carolina both note that their states already allow members of the military and other Americans living overseas to receive and return ballots electronically, and ask why the same would not be afforded to them.

In Texas, the Secretary of State sought to dismiss the lawsuit outright and in North Carolina, the State Board of Elections argued that allowing disabled voters to receive and return ballots electronically would present security concerns. North Carolina also said that even if the state changed its rules, it would be difficult to transition to electronic absentee ballots before November. Setting up an electronic absentee system for disabled voters “would place an enormous, if not insurmountable, strain on the State’s administration of the 2020 general election—an election already under strain due to the COVID-19 pandemic and already in progress,” the State Board of Elections wrote in response to the lawsuit.

The security concerns are real. Some states like North Carolina provide an online portal where military and overseas voters can cast their ballots, while others allow these voters to fax or email their ballots directly to elections officials. But these Americans living abroad typically have to give up their right to a private vote, and elections administrators, cybersecurity experts and lawmakers have all cautioned that any system of voting connected to the Internet is not entirely secure.

Still, lawyers and disability rights advocates say that if officials are comfortable making that compromise for military and overseas voters, the same could be done for those with disabilities. “If you’re allowing one group of people to do it this way, then why is it an insurmountable security concern for voters with disabilities to do it that way?” says Holly Stiles, a lawyer at Disability Rights North Carolina who is representing the voters in the lawsuit. “That’s where you get into that discrimination and unequal treatment.”

Disability rights advocates also note that this is not a new issue. The National Federation of the Blind sent letters to states with inaccessible systems last September. Maryland developed its own online tool several years ago to allow voters with disabilities to mark their absentee ballots on their computers, and other states including Oregon, Wisconsin, and West Virginia have other electronic absentee ballot solutions.

“We’re talking about a lot of things in response to COVID-19 that should have been done well before COVID-19,” says Michelle Bishop, the voting rights specialist at the National Disability Rights Network. “These are things that we could have been prepared for, if we had been making things fully accessible and complying with the law all along. Now we’re at a point where, because we collectively did not bother to do that we’re really opening up people with disabilities to an inordinate amount of risk.”

The North Carolina State Board of Elections declined TIME’s request to comment on ongoing litigation. A district judge in the state heard the case on Sept. 23 and could issue an order soon.

In the meantime, blind and disabled voters are trying to plan for multiple scenarios that could play out as the election draws closer. Kendall Gibbs, 22, who is blind and uses a guide dog, says this will be the second time she’s voted in a general election. But she’s worried about exposing herself to COVID-19.

“As a person with a visual impairment, it puts me at more risk, because I do have a tendency to touch things more than your average person,” she says. It’s also harder for her to maintain social distance since she can’t see where other people are standing, and Gibbs is worried about not knowing what her dog is exposed to when she goes outside.

If North Carolina, where any voter can request an absentee ballot without an excuse, switched to an electronic absentee system this cycle, she could potentially use a screen reader to fill out a ballot on her computer and vote safely from home. But if the situation stays as is, she says she would consider risking her health to vote on an accessible machine in person. “It’s very dehumanizing to have to rely on someone to assist you in your basic American citizen rights,” Gibbs says.

For Scott, the decision about how he’ll vote is still up in the air. He’s thought about going in person during North Carolina’s early voting period if the lawsuit fails, or he might give up his privacy and ask his daughter, who he trusts and who has been taking safety precautions during the pandemic, to fill out a paper absentee ballot for him. But that’s not an option for everyone, Scott says. He says he’s frustrated that he’s been trying to restrict his activities to help slow the spread of the coronavirus, and now his state is asking him to do the opposite to vote.

“We’re not asking for special treatment. We’re merely asking for treatment that is accorded to every other citizen in our state, and utilizing a system that is already in place,” Scott says. “We want North Carolina to do that which is right: to follow the law and to bring us into full citizenship status like everybody else.”