How Georgia’s new electoral law harms voters with disabilities

Caitlin Maystaff attorney, ACLU of Georgia

Brian Dimmick, Lead Attorney, Disability Rights Program, ACLU

CaseySmith, s/he, Equal Justice Works Fellow

Empish Thomas is a 51-year-old voter from DeKalb County, Georgia who is blind and needs help filling out and mailing in a absentee ballot. In 2020, she was able to get this help from a sighted friend she trusted. But after the state of Georgia passed a law making it a criminal offense for anyone other than a “carer” or certain family members to help her return her ballot, she doesn’t know if she’ll find anyone to help her vote absent. She feels she has no choice but to try to vote in person, despite not being able to drive and relying on other people’s rides or public transportation to get to the polls.

“I believe that any time I tried to get someone to return my ballot because I would have to ask someone other than a family member or guardian, I would be committing a crime,” Empish said. “The new criminal penalties are one of the main reasons I feel like postal voting is not accessible to me at all.”

Voters with disabilities should have the same voting rights and opportunities to vote as all American citizens. Going to the polls and voting in person is more difficult or dangerous for many voters with disabilities. Therefore, the possibility of postal voting is of crucial importance. But Georgia’s election law, passed in March 2021, encourages absentee ballots, making it harder for people with disabilities to vote. That’s why the ACLU and some of the country’s leading civil rights organizations this week filed an injunction to prevent the bill, Senate Bill 202, from disenfranchising voters with disabilities in the 2024 election cycle and beyond.

Voters with disabilities should have the same voting rights and opportunities to vote as all American citizens.

Portions of the bill, if enacted, violate the Americans with Disabilities Act and Section 504 of the Rehabilitation Act. These federal laws prohibit discrimination against persons with disabilities, including the imposition of unnecessary burdens that effectively deny them full and equal opportunity to access and participate in elections. The ADA and Section 504 not only require people with disabilities to be able to vote in some way — they also require states to make all voting programs accessible to voters with disabilities. Voters with disabilities are legally entitled to full and equal access to the Georgia postal voting system, and it is illegal to make this program onerous or inaccessible to them, as SB 202 is doing.

The new electoral law sets out a number of requirements for people who want and need to vote by mail (either by post or by returning their ballot to a post box). These rules hit people with disabilities particularly hard because they rely on postal voting, and the injunction focuses on two of those new requirements:

First: SB 202 makes it a criminal offense for friends, neighbors, or associates who work in shelters or nursing homes to help people obtain or return a mail-in ballot, even if the person has a disability. The law states that only a “carer” or certain family members can help return the ballots, but it says nothing about who qualifies as a “carer” for the purposes of the law, and Georgia has declined to offer guidance on that.

The law creates major problems for the many disabled people who depend on friends or neighbors to help them with chores like sending mail. For people like Empish Thomas, who has no local family to help and no one she considers a “carer,” this new law may make absentee voting nearly impossible.

The law also makes it even more difficult to vote for people living in institutional settings like nursing homes or homeless shelters. In such facilities, staff often assist residents in sending mail, but under SB 202, those staff could be charged with criminal offenses for providing this type of assistance.

Second: According to SB 202, ballot boxes must be placed in buildings and closed after business hours. Before the law was passed, most mailboxes were outside of buildings and available 24 hours a day.

The changes hit Patricia Chicoine, who is 76 and lives in Fulton County, particularly hard. Due to her arthritis and knee prostheses, she cannot stand for long periods of time and can only walk very short distances. She even has to drive to pick up the mail from the mailbox in front of her house. Like many voters, she didn’t trust the mail, and the mailbox gave her more confidence that her ballot would be counted. She was able to drive to the mailbox in front of her local library and use it with no problem.

But when she tried to cast her ballot after the new law was passed, everything was different. She had to get out of her car, go inside the building and then walk down a long hallway to the other side of the building to find the mailbox, which was very difficult for her. It took over an hour for her to cast her ballot. After this experience, she found that the indoor mailboxes were not accessible and instead went to vote in person.

Many people with disabilities, particularly those who use wheelchairs or have difficulty walking, find it much easier to use an outdoor mailbox. You can drive straight to the mailbox or walk and cast your ballot. Requiring them to go in and find the mailbox takes a lot of extra time and effort, and some voters with disabilities may not be able to use a mailbox at all. In addition, people with disabilities who depend on being transported by others or using public transport to get to a post box have fewer options now that post boxes cannot be used in the evenings and at weekends.

Governments should never silence or sideline the voices of disabled voters.

It is imperative for the court to step in to protect the rights of hundreds of thousands of voters with disabilities in Georgia and ensure they have equal opportunities to vote in the 2024 elections. By halting enforcement of the confusing and dissuasive penal provisions and allowing counties to put mailboxes outside, the court can restore the broader voting rules that existed prior to SB 202.

“When voting is accessible, I have equal access to political participation alongside my able-bodied peers,” Empish said. Denying that access, she added, “is frustrating for me because I have thoughts and views like everyone else.”

Governments should never silence or sideline the voices of disabled voters. By campaigning for an injunction, the ACLU and our partners are demanding the accessibility and equality that should be the cornerstones of our democracy. The Court must recognize the urgency of this matter and act quickly to protect the rights of disabled voters, thereby affirming the principles of equality and accessibility that underpin our democracy.