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Concord settlement could nudge other cities, towns to purchase accessible ballot machines

  • A new electronic voting setup is seen inside a handicapped accessible booth at Green Street Community Center in Concord on Election Day, Nov. 7, 2017. (ELIZABETH FRANTZ / Monitor staff) Elizabeth Frantz

Monitor staff
Published: 10/15/2019 6:11:53 PM

When the city of Concord and the U.S. Department of Justice forged an agreement in February, it was supposed to help people in Concord with disabilities vote at the polls.

Now, it might become the template for cities and towns across the state.

The agreement required Concord to provide accessible voting machines at local or municipal elections – four years after a resident filed a federal complaint. That meant providing machines that could read aloud selections for those who are blind and allow the use of keyboards or tablet screens to make choices.

Not doing so, the agreement stated, would be a violation of the Americans with Disabilities Act of 1990.

Next month, Concord will be the only city in the state to provide the machines for a local election. But given the involvement of federal prosecutors, and a clear memorandum, some say Concord’s example serves as a cautionary tale for other cities and towns.

Adopt these machines or face possible litigation.

“There is a concern more broadly about what that ruling means statewide,” said Dave Scanlan, Deputy Secretary of State. “And forget about the ruling, there is a desire, certainly in some communities to provide that type of a voting system in local elections to allow blind and disabled voters to vote independently in private.”

Officials and lawmakers across the spectrum are now attempting to figure out how best to spread the machines to other municipalities. A legislative study committee has met in Concord this fall to tackle the issue. In a report next month, its members will conclude that towns and cities should buy the tablets themselves.

The twist: New Hampshire already has the machines – more than 300 of them. And they’re already used in polling booths up and down the state, from Berlin to Nashua.

They just can’t be used for local elections, according to the Secretary of State’s office.

“The federal act requires that that equipment be used for elections that have a federal candidate on the ballot,” said Scanlan. But, he said, it’s different at the local level – the programming varies, and there are security concerns.

“Cybersecurity is a huge issue right now, and it’s easy for the state to send the equipment out for state elections after they’ve been scrubbed and programmed for state elections… If we have municipalities using that same equipment in close proximity to municipal elections, then the magnitude of the concern that we have increases,” Scanlan said.

The conundrum stems back to the Help America Vote Act of 2002. That federal law overhauled the process for federal elections across the country, including requiring that accessible voting options are available at the polls. Meeting that requirement has led New Hampshire to introduce a suite of machines at each polling location: a tablet computer to display candidate names, speakers to read the choices aloud, a keyboard to allow choices to be selected, and a printer to print the selections onto a final ballot to submit.

The system has been praised by disability rights advocates for perfecting what they sought for years: a way to choose candidates without having to have anyone – be it an aide or a poll worker – know their final preference.

Because the tablets are designed and programmed to be used in federal elections, loaning them out for local elections could create a number of difficulties, Scanlan said. It could create problems for the state during federal audits of the state’s compliance with the 2002 law, known as HAVA. It could burden Secretary of State staff members who already need to distribute, collect and recalibrate accessible voting machines for the presidential primary in February, the state primary in September and the general election in November.

And it could create more opportunities for potential security breaches, Scanlan said.

“We are willing partners to try and help them develop that system, but it is not an easy issue to get your arms around because when you get to local elections the systems are very different,” Scanlan said.

For now, the Secretary of State is holding off on supplying the accessible voting tablets for municipal and town elections – with one exception. Concord’s polling locations on Nov. 5 will be supplied with the state-owned tablets for accessible voters, Scanlan said. That’s because the settlement, prompted by a Concord voter, demands the machines be made available.

“We’ve been working with Concord kind of as a pilot system where we have set that equipment up for local elections in Concord,” Scanlan said.

Although the office is allowing it for one election, that’s the limit at the moment. Rolling out the existing machines to the more than 300 polling places for town meetings in March and municipal elections in fall would be an impossible task, Scanlan said.

Absent that ability, lawmakers and stakeholders say the likely best course of action for towns is to just buy the technology themselves and roll it out on non-federal elections. Not doing so could put them at odds with Title II of the Americans with Disabilities Act – and could invite legal challenges similar to those facing Concord, observers say.

“The law requires that voters with disabilities are afforded an equal opportunity to participate in a service that’s offered to others without the disability,” said James Ziegra, staff attorney at the Disability Rights Center, which has championed the new technology. “The law requires public entities make reasonable modifications to their policies and practices.”

Without state assistance, approving the machines will require the support of town officials and voters in their budgets next year. And it will run cost of between $1,000 and $2,000 a year – about $900 per tablet per polling place, and several hundred dollars more for licensing and installation costs. Democracy Live, a Washington-state based election technology company, is currently contracted to produce and programs the tablets for the state.

That puts towns – particularly small ones – in a tough spot: pay for the new technology every year, or risk litigation.

“It leaves them in a difficult situation, because assuming it’s correct that we can’t get the systems from the state, then each town is going to have to decide what they’re going to do,” said Cordell Johnston, government affairs counsel for the New Hampshire Municipal Association.

For now, legislators are hoping the towns will listen receptively.

“It’s not a mandate, but it is in a sense – everybody should do it,” said Rep. Marjorie Porter, a Hillsborough Democrat sitting on the committee.

The committee’s legislative report, which will recommend the purchases, is due for release Nov. 1.

(Ethan DeWitt can be reached at edewitt@cmonitor.com, at (603) 369-3307, or on Twitter at @edewittNH.)

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