Comments on SB1376, Absentee Ballots

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RE: SB1376, Absentee Ballots

DisAbility Rights Idaho is the designated Protection and Advocacy system for the
State of Idaho. As such, DRI advocates for and educates on the rights of
Idahoans with disabilities. We have reviewed proposed bill SB1376; a bill which
would prohibit and criminalize the delivery of another person’s absentee ballot
outside of certain exceptions. We would like take this opportunity to address the
effects changes in this bill would have on the lives of eligible Idaho voters who
have disabilities and require assistance in completing their fundamental right to

SB1376 limits the collection or conveyance of a voter’s absentee ballot to: the
elector themselves, their caregiver, a family member, or a household member,
and requires any non-elector to sign an affidavit on the return envelope. This bill
prohibits and criminalizes such assistance by any other person. US postal workers,
employees of parcel delivery services, and employees of the county clerk’s office
are exempt from the provisions of the statute.

Such strict limitations present significant barriers for eligible Idahoans with
disabilities to exercise their fundamental right to vote, including those who are
aging, live in rural areas, live in facilities, live in facilities in rural areas, under
guardianship, and who either do not have family or do not live close to family.
These eligible voters would be denied legal and legitimate assistance to protect
their individual freedoms by exercising their right to vote.

Many eligible voting Idahoans with disabilities, including aging Idahoans, need a
functional mail in election system to exercise their right to vote and have a voice
in their government. These Idahoans who still live in their own homes may need
help in mailing or delivering their ballot to the elections office as they may be
dependent on others for transportation, or may not be able to leave their home.
These eligible voters who may live in a facility due to the natural aging process, or
because of a disability, and subsequently, no longer drive, are dependent on the
facility or others for transportation, or require other assistance with mailing or
delivering their ballot.

Idaho is a rural state. Many eligible aging or disabled Idaho voters live in rural
areas and many facilities are in rural areas where family members are often not
close enough to provide needed assistance in delivering or mailing a ballot as
required by the changes in SB1376. When this occurs, these voters rely on trusted
individuals who may not qualify as family members, household members, or
caregivers for regular assistance. This bill would effectively deny these eligible
voters their right to vote, solely because of their disability, by so narrowly defining
who can provide needed assistance. These voters worked and paid taxes. They
would be denied their right to vote, the very core of our democracy, simply
because they now have less independence and may need assistance to complete
their ballot.

The term “caregiver” as used by this act is not defined, nor is it defined anywhere
else in Title 34. This creates an ambiguity and dilemma for eligible voters and
persons asked to provide assistance. For example, many people with disabilities
have professional paid “caregivers” otherwise known as Direct Support Care
workers. Is such a person a caregiver under these statutory changes since they
get paid? Since they are paid, would they be subject to the felony provisions in the
statute; would delivering the ballot for the person or mailing the ballot for the
person while they are “on the clock” be considered as getting paid to deliver the
ballot? Or, if the worker out of the kindness of their heart delivers the ballot after
the shift is over, no longer be considered a “caregiver” and then be subjected to a
misdemeanor? These ambiguities could lead eligible voters to not ask for
assistance fearing they may subject this person to criminal prosecution. These
ambiguities could lead to persons saying no to a request for fear of being
prosecuted. Either way, the eligible voter with a disability encounters a barrier to
exercising their fundamental right to vote.

The Voting Rights Act of 1965 (VRA), Section 208 specifically allows for persons
with disabilities to be assisted by anyone they choose. Section 208 (52 US Code
§10508) states: “Any voter who requires assistance to vote by reason of
blindness, disability, or inability to read or write may be given assistance by a
person of the voter’s choice, other than the voter’s employer or agent of that
employer or officer or agent of the voter’s union.”

When Congress enacted the VRA, it was concerned that if persons with a disability
could not choose someone that they trust to assist them with casting their ballot
that they may choose not to vote at all. This concern lead them to draft Section
208 to ensure that voters with disabilities had the same freedom to vote enjoyed
by all citizens. SB1376 contradicts the purpose of Section 208 of the VRA, and
would have a negative effect on eligible voting Idahoans with disabilities.

Title II of the Americans with Disabilities Act (ADA) requires state and local
governments to ensure that people with disabilities have a full and equal
opportunity to vote. The ADA provisions apply to all aspects of voting, including
voter registration, site selection, and the casting of ballots, whether on Election
Day or during an early voting process. SB1376 contradicts the mandates under
the ADA to Title II of the ADA to ensure that no qualified individual with a disability
be excluded from participating in, be denied the benefits of, or be subjected to
discrimination under any of its programs, services, or activities, solely on the basis
of the individual’s disability.

Further, many Idahoans with disabilities are under guardianship. In 1998, the
people of Idaho voted to amend the Idaho Constitution to remove the restriction
on voting for persons under guardianship, restoring their right to vote. This bill
would reintroduce voting limitations on persons under guardianship by excluding
the assistance of guardians who do not qualify as family members, household
members, or caregivers. In fact, there is no way to know whether or not a
particular guardian qualifies as a caregiver under this bill because the term is not
defined. Some guardians could potentially be considered caregivers should they
have daily contact with and provide help with activities of daily living to the person
under their guardianship or if they are a family member. However, other guardians
may have minimal contact with the person under guardianship, and would likely
not qualify as a “caregiver”. Under this bill, these guardians, who have a legal duty
to provide assistance to the person under their guardianship; who can make
medical and end-of-life decisions for them, would be prohibited from mailing or
delivering their absentee ballot. This bill would put these guardians in the difficult
position of being charged with a misdemeanor if they assist the person under their
guardianship, or possibly violating their responsibility as a guardian if they do not
assist them. Moreover, Professional guardians are placed in an even more difficult
position as they receive fees for their services, and would risk a felony charge if
they aided the person under their guardianship with mailing or delivering their
ballot or be subject to judicial scrutiny in the guardianship court for not meeting
their duties as a guardian.

This bill also limits the number of ballots that a family member, household
member, or caregiver can mail or deliver. Professional caregivers at a facility
might be requested to assist multiple individuals with submitting their ballots. An
artificial limit of five (5) ballots seems to serve no purpose while creating a barrier
to receiving necessary assistance that would deprive eligible Idaho voters with a
disability their right to vote. This is also the case for professional guardians who
may have guardianship over dozens of individuals. In both cases, this arbitrary
limit only serves to block the assistance that eligible Idahoan voters need in order
to cast their vote.

This bill is not consistent with Idaho Law. Idaho Code, 66-401, the Legislative
Intent Section of the Treatment and Care of the Developmentally Disabled Act
states in part: “it is the purpose of the provisions of this chapter to promote the
general welfare of all citizens by establishing a system which permits partially
disabled and disabled persons to participate as fully as possible in all
decisions which affect them, (including) … protecting their rights… The
provisions of this chapter shall be liberally construed to accomplish these purposes
(emphasis mine).” SB1376 contradicts this purpose by limiting participation of
Idahoans with disabilities who need assistance in the voting process.

Idaho has a long history of respecting the voting rights and decisions of all eligible
Idaho voters, including those who have a disability, or otherwise require
assistance in casting their ballot. Idaho has also demonstrated that allowing voters
to choose whoever they prefer to assist them in the voting process has had no
negative impact on election integrity. In October of 2021, the Idaho Secretary of
State’s office issued a press release addressing allegations of fraud in the 2020
election. The Secretary concluded that these allegations were without merit and
reaffirmed the integrity of the Idaho election process.

Thank you for this opportunity to highlight some of the effects and barriers this
proposed legislation would have on eligible voting Idahoans with disabilities. If
you have any further questions, please do not hesitate to contact us. Thank you
for your time and attention to this matter.

Joseph A. Earnest
Staff Attorney
DisAbility Rights Idaho

Amy Cunningham
Executive Director
DisAbility Rights Idaho

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