Members of the Joint Judiciary Committees voted Monday to recommend a bill to their respective chambers, allowing voters with certain physical disabilities to cast absentee ballots electronically.
Currently, West Virginia allows voters with qualifying impairments to cast paper mail-in votes, as long as they’re on a special absentee voting list maintained by the West Virginia Secretary of State’s office.
But, according to Jeremiah Underhill, legal director for the group Disability Rights of West Virginia, navigating a piece of paper can be an impediment for someone who has a serious hand or visual impairment.
“Voting is a fundamental right that is preserved in the U.S. Constitution,” Underhill told the committee. “Everyone is afforded a legal opportunity to vote.”
And, said Donald Kersey, general counsel to the West Virginia Secretary of State, everyone has a constitutional right to vote privately. That’s something West Virginia’s existing system for casting ballots may be violating.
“If you’re a voter with a disability that prevents you from seeing [or] from using your hands, you don’t have any other way to vote right now in West Virginia, except by getting help from someone, you have to have someone mark the ballot for you,” he said.
Kersey told lawmakers on Monday that counties must draw their ballot orders by Feb. 18, meaning the sooner legislators pass this bill, the better.
“It’s something we need to do now,” he said. “It’s the right thing to do, it’s the legally required thing to do."
He added if the state doesn't address the issue now, it eventually will have to by the legal order of a court.
Some states have already dealt with this, including the Maryland Board of Elections in 2016 and the Ohio Secretary of State’s office in 2017. In both situations, a federal judge agreed paper ballot voting systems discriminate against those with disabilities.
According to Kersey, a law firm in D.C. is making plans for similar legal action in West Virginia if the Legislature doesn’t make its own plans this session.
Federal and local governments are required by the Americans with Disabilities Act to ensure voters with disabilities have a full and equal opportunity to vote. Because the voters mentioned is this bill are such a small subsect of West Virginia’s disability community, the Secretary of State’s office said it does not have numbers on how many voters this bill might ultimately affect. According to the U.S. Census Bureau, from 2013 to 2017 14.4 percent of the state’s population under 65 has a disability.
West Virginia will not pay any costs in 2020 associated with this electronic ballot technology, Kersey said. Instead, he said Tusk-Montgomery Philanthropies offered to cover the equipment for the upcoming election. The same group funded a mobile voting pilot in West Virginia last year.
After 2020, the bill gives counties the chance to decide what kind of technology they want to use and pay for. All the bill requires is that there be some kind of electronic method of ballot delivery for eligible voters with qualifying disabilities.
In addressing concerns of possible voter fraud, Kersey said that with electronic ballots, voters will still have to register with personal information, offer their state-issued IDs for verification and do video facial recognition before casting an electronic ballot.
Committee staffer Sarah Canterbury said the bill, as currently drafted, doesn’t include mental disabilities or any physical disability where it’s still possible to vote by paper ballot.
She additionally pointed out Monday the state is only required to make a reasonable effort not to discriminate, exempting legislators from committing to extremely costly or burdensome efforts.
“As more technological options become available, we can improve,” Canterbury told the committee. “But I think this is the best we can do, for this time.”
According to Kersey, the bill will be made available online once it has sponsors. During the Judiciary Committee meeting on Monday, senators and delegates agreed to sponsor the bill in their respective chambers.