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You can vote in Delaware if:
In Delaware, individuals with mental disabilities and those with legal guardians have a right to vote just like everyone else.[1] Only a judge can remove the right of a person with a disability to vote based on a written order that clearly states that the person’s mental disability prevents the person’s use of basic voting judgment. Unless a judge has put this in a court order about you (and you meet the other eligibility requirements), you can vote!
If you are convicted of a misdemeanor or other minor offense, or you are convicted of a delinquency charge as a juvenile, your right to vote is not affected. Under Delaware law, only some convicted felons are not permitted to vote. Individuals convicted of any of the following felonies cannot vote:
In Delaware, other individuals convicted of felonies not listed above may vote when they are pardoned or their sentence is completed (meaning, you have finished serving your time incarcerated, or on probation, parole, or suspension, and you have paid any restitution or fines you may owe). [2]
Because voting is such an important right, there are federal laws that protect that right for people with disabilities and prohibit discrimination against individuals with disabilities exercising their right to vote. Below is a summary of some of the important federal voting laws that apply to people with disabilities.
Among other things, the Help America Vote Act[4] (HAVA) of 2002 addresses obstacles for voters with disabilities. HAVA:
The Voting Rights Act controls federal election procedures. It requires that standards or tests for determining whether someone is qualified to vote must be applied equally to all voters. This law also guarantees the right of individuals with disabilities to have voting assistance from the person of their choosing (so long as the person helping is not their employer or agent of their employer or union).[6]
The Voting Accessibility for the Elderly and Handicapped Act (VAEHA) requires that government agencies conducting elections make sure that polling places (for federal elections) are accessible to elderly voters and voters with disabilities. There are two exceptions to this requirement:
If a voter with a disability is assigned to an inaccessible voting place, and if the voter requests it in advance, he must be assigned to an accessible polling place or be provided with an alternative means for voting on Election Day.
The VAEHA also makes absentee voting (when you do not vote in person, but rather mail in your ballot) more accessible and provides for some voting aids at the polling places.
The Americans with Disabilities Act (ADA) applies to both federal and state elections. The ADA has two different parts that apply to voting, discussed below.
Title II of the ADA and its regulations[7] require that people with disabilities have access to voting. State and local government entities must make reasonable modifications in policies, practices, or procedures to avoid discriminating against people with disabilities. People with disabilities may not, because of their disabilities, be excluded from participating in voting or be denied the benefits of voting. State and local governments can comply with these provisions of Title II by redesigning equipment, reassigning services to accessible buildings or alternative accessible sites, altering existing facilities, or constructing new ones. There are some exceptions, such as for historic sites, fundamental alterations to the nature of a service (making serious changes to the reason or goals of a program), or because of undue financial and administrative burdens. Structural changes to an existing building are not required when there are other ways of being ADA compliant. State and local governments must try to choose compliance methods that offer the most integrated settings appropriate.
Title II also requires state and local governments to make reasonable modifications to their rules, policies, or practices to make sure that they are not discriminating. Courts have found that the ADA does not require every polling place to be accessible to people with mobility impairments, that people with disabilities are not guaranteed privacy in voting, and that voters who are blind are not guaranteed the right to cast their vote independently, under the ADA.[8] However, in Delaware, we have a state law that requires that all polling places be accessible (and this accessibility is NOT limited to people with mobility impairments)![9]
Title III[10] of the ADA and its regulations also requires that people with disabilities have access to voting. The difference is that Title III applies to places that are called places of “public accommodation” (while Title II convers state and local governments). Places of “public accommodation” include places such as private schools and recreation centers.[11] These places may be used as polling places.
Under Title III, public accommodations must make reasonable modifications in policies, practices, or procedures to facilitate access for individuals with disabilities. They are also required to remove physical barriers to existing buildings when it is “readily achievable” (in other words, it is something that would not be too hard for them to do and would not be too expensive given their resources). If a physical (architectural) barrier cannot be easily removed, the place of public accommodation may use another way to make the building accessible. New construction by public accommodations must be readily accessible; alterations to existing buildings are required to the maximum extent it is feasible to be readily accessible to people with disabilities.
[1] 15 Del. C. § 1701. See the section, above, called Delaware Voter Requirements – Who Can Vote, for a full list of voter requirements.
[2] Previously, there was a 5 year waiting period before eligible felons (felons convicted of crimes NOT including murder, manslaughter (except vehicular homicide), offenses against public administration involving bribery or improper influence/abuse of office, or sexual offenses) could have their right to vote restored. In 2013 the Hazel D. Plant Voter Registration Act removed the 5 year waiting period from the Delaware Constitution. While this Act changed the Delaware Constitution it did not change the State statute (the law) which still contains this 5 year waiting period (15 Del. C. §6103(c)). However, the Office of the State Election Commissioner reports that it no longer is considering the 5 year waiting period to restore voting rights for eligible felons (private communication with the Election Commissioner, August 25, 2014).
[3] Information in this section is summarized in large part from the Protection and Advocacy for Voting Access (PAVA) Handbook and Training Manual, National Disability Rights Network (2012).
[4] 42 U.S.C. § 15301 et seq.
[5] You may have heard that part of the Voting Rights Act of 1964 was struck down by the U.S. Supreme Court, meaning the Supreme Court found that part of the Act was illegal. This is true: the Supreme Court issued a decision in 2013 called Shelby County v. Holder, finding two provisions of this law unconstitutional. Those provisions related to certain states and local governments who were, prior to the Supreme Court’s decision, required to obtain “preclearance” or advanced permission before making changes to their voting laws or practices, because they had a history of discriminating. Because of the Supreme Court’s decision these states and local governments are no longer required to obtain preclearance.
[6] 42 U.S.C. § § 1973aa-6.
[7] 42 U.S.C. § 12131 et seq.; 28 C.F.R. Part 35.
[8] See e.g., Nelson v. Miller, 170 F.3d 641, 649-50 (6th Cir. 1999); American Ass’n of People with Disabilities v. Shelley, 324 F.Supp.2d 1120, 1126 (C.D.Cal.2004).
[9] 15 Del. C. § 4512(b). See also, Voting in Delaware, A Guide for Citizens with Disabilities, pg. 9 (available at http://elections.delaware.gov/voter/pdfs/Voting%20in%20Delaware.pdf).
[10] 42 U.S.C. § 12181 et seq.; 28 C.F.R. Part 36.
[11] Private clubs and religious organizations are generally exempted.