Under Section 208 of the federal Voting Rights Act, voters with disabilities who need help voting are entitled to the assistant of the voter’s choosing, with very limited exceptions for the voter’s employer or union.
North Carolina laws further limited who could provide assistance to a voter with a disability. Disability Rights NC brought a lawsuit challenging the North Carolina laws as violating Section 208 of the Voting Rights Act.
Disability Rights NC won the lawsuit. In a ruling issued by US District Judge Terrence W. Boyle, he ordered the North Carolina Board of Elections not to enforce the laws against voters protected by Section 208 of the Voting Rights Act.
What Was Changed:
Previously, a voter with a disability who needed assistance with voting would have to rely on a legal guardian or close family member for help with most of the voting process. It did not matter whether that was the voter’s preference or whether such a person was readily available. Voters who live in facilities like nursing homes and adult care homes could not get assistance from the people who care for them every day and might be the only source of help. Some of the laws made it a felony to give or receive prohibited assistance.
What the ruling means for voters with disabilities:
Judge Boyle found that North Carolina’s restrictions are contrary to, and pre-empted by, Section 208 of the federal Voting Rights Act.
As a result, voters with disabilities who need assistance with voting may request and receive assistance from anyone they choose. The judge’s ruling applies to all parts of the voting process, from requesting the absentee ballot to completing the ballot, and returning the ballot to the local board of elections.
The North Carolina State Board of Elections has posted information about the ruling on its website. For information about assistance with voting by mail, see https://www.ncsbe.gov/voting/vote-mail/detailed-instructions-vote-mail. For information about assistance for voters living in facilities, see https://www.ncsbe.gov/voting/help-voters-disabilities/assistance-voters-care-facilities.
Frequently Asked Questions
Please note that these FAQs and examples are for illustrative purposes only.
Q: Can a staff member of a facility help a person living in a nursing home, adult care home, or other congregate care setting with voting?
A: Yes, if the person has a disability, needs help with voting because of their disability, and wants to be helped by the staff person.
Example 1: A woman living in a nursing home has shaky hands due to Parkinson’s. Because of her disability, she may need assistance with filling out an absentee ballot request form, and having her ballot completed, witnessed, and returned. She may choose to have nursing home staff help her.
Example 2: A man living in an adult care home is taking medication for a mental illness that makes it difficult for him to complete an absentee ballot or ballot request form. He may choose to have facility staff help him with understanding the form and filling it out, and any other necessary steps in the voting process.
Example 3: A facility resident can fill out an absentee request form and ballot, but due to disability is unable to access outside witnesses or place the form or ballot in the mail. They may choose to have facility staff help them by witnessing and returning the ballot.
Q: Are facility residents who need assistance with voting required to rely on facility staff or management for help?
A: No. It is the voter’s choice whether to request assistance, and from whom. Options include friends, family, other residents, or a Multipartisan Assistance Team from the voter’s local county board of elections.
Q: What about privacy? Can the assistant reveal the voter’s choices?
A: Anyone who provides a voter assistance is required to maintain confidentiality about the voter’s choices. It is unlawful for a person who has access to another’s ballot to disclose how the person voted. N.C. Gen. Stat. § 163-274(b).
Q: What protections are there against exploitation by the person providing assistance, including facility owners and staff?
A: State law prohibits interference, fraud, and exploitation against voters. N.C. Gen. Stat. §§ 163-273(a)(4) (prohibiting interference with a voter when marking a ballot), 163-274(a)(7) (prohibiting voter intimidation), 163-274(a)(7) (prohibiting fraud against a blind voter), and 163-275 (prohibiting various forms of fraud in voting). There are criminal penalties for violating these voter protection provisions. For voters living in facilities, additional protections apply. For example, violation of facility residents’ rights, including exploitation, is expressly prohibited. N.C. Gen. Stat. § 122C-51.
Q: Are there any changes to the requirement that an absentee ballot must be witnessed?
A: No. An absentee ballot must still be witnessed by two people or one notary public. A witness must be 18 or older.
Q: What if the voter does not have a disability?
A: The court order in this case relates only to voters with disabilities who need assistance because of their disability. State rules about who can and cannot provide assistance continue to apply to all others.
Q: How is disability defined?
A: Under the Americans with Disabilities Act, a disability is a physical or mental impairment that causes someone to be substantially limited in a major life activity. This means that someone who has limitations that make it harder to do every day things like eating, reading, thinking, and walking than it is for most people, they are likely to be considered disabled under the ADA. For example, someone who can walk, but cannot walk more than a short distance without assistance or getting winded is substantially limited in walking. Most people living in nursing homes and congregate settings need help with at least one aspect of daily living, and will generally be considered to have a disability.
Specific statutes affected by the ruling:
The below statutes are the ones affected by the ruling. These statutes remain in effect for all voters except voters with disabilities who need assistance. If a voter does not have a disability that creates the need for assistance, the statutes still apply.
N.C. Gen. Stat. § 163-226.3 prohibits anyone other than a voter’s legal guardian or near relative from assisting a voter with voting an absentee ballot. Subsection (a)(4) prohibits staff or owners of congregate care facilities from helping a resident in any way with voting. Subsection (a)(5) prohibits any person other than a legal guardian or near relative from delivering a ballot to the voter or delivering the cast ballot to the board of elections. Subsection (a)(6) made it illegal for a voter to accept any of the assistance made illegal under the other sections. These provisions no longer apply to voters with disabilities who need assistance because of their disability. Voters with disabilities now have the right to the assistant of their choosing in all aspects of absentee voting, regardless of where they live.
N.C. Gen. Stat. §§ 163-230.1, 230(e) and 230.3 place limits on who can help a voter request an absentee ballot. These provisions no longer apply to voters with disabilities who need assistance because of their disability. Voters with disabilities now have the right to the assistant of their choosing when requesting an absentee ballot.
N.C. Gen. Stat. § 163-231(b)(1) limits who can assist a voter with the mailing or delivery of their absentee ballot. This provision no longer applies to voters with disabilities who need assistance because of their disability. Voters with disabilities now have the right to the assistant of their choosing when mailing or delivering their absentee ballot.
Questions? Contact:
Lisa Grafstein
Litigation Counsel
919-856-2195 ext 212
lisa.grafstein@disabilityrightsnc.org