Hoosiers with disabilities seek greater access to absentee voting

Indiana Disability Rights and the Indiana Statewide Independent Living Council have joined the fight to push Indiana to expand mail-in voting for the November 2020 general election, saying requiring in-person voting during the COVID-19 pandemic would put the health of disabled Hoosiers at greater risk.

The two nonprofits, along with the American Diabetes Association, the Disability Rights and Defense Fund Inc. and the Disability Rights Legal Center, have filed an amicus curiae brief in Tully, et al. v. Okeson, et al., 1:20-cv-01271. They argue Indiana should expand its definition of “disabilities” to allow more Hoosiers to vote absentee and should enable their caretakers to vote by mail as well.

“Our concern is not only for Hoosiers with disabilities but for those who have compromised immune systems and other health conditions that put them at higher risk for contracting COVID-19 and the people they live with and those who provide essential service inside their homes,” Melissa Keyes, IDR executive director, said in a news release. “People should not have to choose between keeping them or their loved ones safe and casting their ballot.”

Indiana already permits “voters with disabilities” to request an absentee ballot under Indiana Code § 3-11-10-24(a)(4). Although the statute does not define “disabilities,” the amici assert the state should include Hoosiers with pre-existing conditions who have been advised to avoid contact with others during the coronavirus outbreak.

By not including pre-existing conditions, Indiana’s vote-by-mail program would violate the Americans with Disabilities Act, the amici argue. The ADA construes “disability” very broadly, they contend, so that all of the health conditions increasing the risk of serious illness or death from COVID-19 would be covered under the federal act.

Indiana must therefore make modifications or accommodations to comply with the ADA and other federal laws that guarantee voters with disabilities “full and equal opportunities to vote,” the amici say.

“It is not enough for Indiana to provide some Hoosiers with disabilities with some access to voting. Instead, Indiana must provide ‘equal’ and ‘meaningful access to private and independent voting’ and must do so for all of its voters with disabilities,” the amici stated in their brief, citing Cal. Council of the Blind, 985 F. Supp. 2d at 1238; Reyes v. Dart, No. 17 C 9223, (N.D. Ill. Apr. 29, 2019) and Dunmore v. Shicker, No. 3:16-CV-171-MAB, (S.D. Ill. Jan. 7, 2020).

But expanding the vote-by-mail option to more disabled Hoosiers is not enough, the amici argue. Because individuals with disabilities face serious consequences if they contract the virus, the people who live with or care for disabled Hoosiers should be allowed to file an absentee ballot, also.

Limiting vote-by-mail not only puts disabled voters at risk, the amici claim, but also “burdens the fundamental right to vote” by forcing the household members and caregivers to either skip voting altogether or risk spreading the infection. In addition, Indiana restrictive voting laws may violate federal laws prohibiting discrimination against individuals who are associated with people with disabilities, they say.

“Our Hoosier peers with disabilities want to vote. And those who care for and support us also want to vote,” said Amber O’Haver, INSILC executive director.  “However, we deserve the option to remain safe and healthy when doing so but are still faced with multiple barriers. Many of these barriers could easily be remedied with accommodations, one being vote-by-mail.”

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