Comments on HB441

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RE: HB441

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 the proposed bill HB441; a bill
which would grant absentee ballot assistance to Nursing, Residential and Assisted
Living facilities. DRI would like to 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 vote.

HB441 would require a county clerk or their designee to provide assistance with
absentee ballots to residents of facilities when applications for absentee ballots
have been filed and a facility administrator requests such assistance. The bill
would also allow an immediate family member to provide assistance with an
absentee ballot.

Such strict limitations present significant barriers for eligible voting Idahoans with
disabilities to exercise their fundamental right to vote, including those who live in
facilities, live in facilities in rural areas, are aging and live in facilities, are aging
and live in facilities in rural areas, and those under guardianship who live in
facilities. These eligible voters would be denied their right to vote.

HB441 mandates an election clerk to provide assistance to those in facilities only
at the request of the facility, not an individual resident. This places an eligible
Idaho voter’s opportunity to exercise their constitutional right in another’s hands
because they have a disability and live in a facility. Should the voter not have
family available and willing to provide assistance, the eligible voter is solely at the
mercy of facility staff to reach out in a timely manner to schedule a visit by the
county clerk. Idaho as with most of the country is experiencing a workforce
shortage in its facilities. The requirements of this bill place additional burdens on
these already overworked individuals. An Idaho citizen should not be required to
be dependent upon another person to exercise their fundamental constitutional
rights because they live in a facility due to a disability. Furthermore, this bill states
that, “if the facility contacts the county elections office,” and does not define “the
facility”. There is no clear facility staff person responsibility to contact the county
elections office. This ambiguity would make a request even more difficult as it is
unclear whether this duty falls on the facility administrator or any other facility
staff. If facility staff do not request assistance from the election clerk, and the
resident does not have any family members who are willing or able to provide that
assistance, the eligible voter would be denied their right to vote because of their

Moreover, if facility staff do call the clerk’s office, the eligible Idaho voter with a
disability can only access needed assistance at the time that is convenient for and
arranged by the county clerk or their designee. If the resident has a previously
scheduled doctor’s appointment or is otherwise occupied, that eligible Idaho voter
will lose their opportunity for assistance and their right to vote. Again, the voting
rights of eligible Idaho voters in facilities are being restricted or denied only
because they have a disability.

Many eligible voters who live in assisted living facilities or nursing homes worked
and paid taxes their whole lives, but through the aging process now have less
independence. The restrictions in HB441 treat them as lesser citizens, simply
because they now need assistance to complete their vote.

HB441 places an affirmative duty on county clerks to train designees to “provide
assistance … in a fair, impartial, and nonpartisan manner.” Residents who live in
Nursing homes or residential assisted living facilities have a variety of disabilities
including blindness, hearing loss, speech difficulties or physical impairments.
Residents with these various types of disabilities require a wide range of
specialized assistance including the use of assistive technology, American Sign
Language, and many other methods to ensure that they are able to vote. By
limiting assistance to county clerks or their designees who are not trained in
providing assistance to people with disabilities or familiar with the individual will
lead to many residents not receiving the type of assistance they require to
complete their vote. Thus, denying eligible voting Idahoans with disabilities the
right to vote.

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.
Under this bill, guardians, who have a legal duty to provide assistance to the
person under guardianship; who can make medical and end-of-life decisions for
them, would be prohibited from helping them fill out their absentee ballot. HB441
places a non-family guardian in the difficult position violating their duties as a
guardian or violating the terms in the statute. Either way, the eligible Idaho voter
with a disability in the facility experiences significant barriers to exercising their
right to vote.

Idaho is a rural state. Many eligible aging or disabled Idaho voters live in rural
facilities in rural areas where family members are often not close enough to
provide needed assistance, such as helping fill out an absentee ballot. When this
occurs, these voters rely on trusted individuals who may not qualify as family
members for regular assistance. This bill denies these eligible voters their right to
vote, solely because of their disability.

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. HB441
contradicts the purpose of Section 208 of the VRA by denying eligible voters with
disabilities in facilities from selecting a trusted person of their choice to provide
needed assistance.

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. HB441 contradicts the mandates under
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.

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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