The Commonwealth has a poor record of complying with the NVRA. This appears to be one more component of a system which tries to limit voter eligibility, either by design or neglect.
February 22, 2012
BY FAX AND FIRST CLASS MAIL
Secretary of the Commonwealth
Pennsylvania Department of State
302 North Office Building
401 North Street
Harrisburg, PA 17120-0500
Re: Notice of Non-Compliance with Section 7 of the
National Voter Registration Act
Dear Secretary Aichele:
On behalf of the Disability Rights Network of Pennsylvania (DRN), the organization designated by the Commonwealth under federal law to protect the rights of and advocate for people with disabilities, I am submitting this notice pursuant to 42 U.S.C. § 1973gg-9(b)(1) to advise the Department of State (DOS) that it is in violation of Section 7 of the National Voter Registration Act (NVRA). As detailed below, DOS has violated the NVRA by failing to: (1) designate as mandatory voter registration agencies (VRAs) all disability services offices in the Commonwealth, and (2) assure that disability services offices that are designated as VRAs fully comply with the requirements of the NVRA.
Section 7 of the NVRA requires, inter alia, that Pennsylvania designate as mandatory VRAs "all offices in the State that provide State-funded programs primarily engaged in providing services to persons with disabilities." 42 U.S.C. § 1973gg-5(2)(B). As VRAs, disability services offices must: (1) distribute voter registration forms; (2) assist applicants to complete those forms; and (3) accept completed forms and forward them to the appropriate election official. 42 U.S.C. § 1973gg-5(a)(4)(A). These services must be provided in the person's home if the VRA provides disability services in the person's home. 42 U.S.C. § 1973gg-5(a)(4)(B). Voter registration applications must be offered with each application for assistance, each recertification or renewal, and each change of address unless the individual declines the opportunity to register in writing. 42 U.S.C. § 1973gg-5(a)(6)(A)(i). Finally, disability services offices must provide individuals who want to register to vote with the same assistance to complete the application as those offices provide to complete their own forms, unless the applicant refuses assistance. 42 U.S.C. § 1973gg-5(a)(6)(C).
A. Pennsylvania's Failure to Designate All Disability
Services Offices as Mandatory VRAs.
Many disability services offices (i.e., agencies that primarily provide services to people with disabilities that are funded by the Commonwealth) are not considered by DOS to be mandatory VRAs and, therefore, do not engage in any of the voter registration activities required by Section 7 of the NVRA. Pennsylvania's Department of Public Welfare (DPW), the state agency that funds most services for people with disabilities, does not provide disability services directly other than through a few state-operated institutions. Instead, DPW or its subcontractors pay private agencies to provide almost all disability services. For instance:
§ DPW provides state funds to county MH/ID programs to provide community services to people with mental illness and intellectual disabilities. The counties, in turn, pass on much of those funds to private entities to provide a range of disability services. Many of these private entities not only provide services, but also assist their clients to apply for services and to pursue recertification and renewal. It is our understanding that these private entities do not offer service recipients voter registration opportunities.
§ DPW contracts with a private entity, MAXIMUS, to take applications for five Medical Assistance-funded home and community based waivers. MAXIMUS assists the individuals with those applications, including submitting the necessary paperwork to the County Assistance Offices for financial eligibility determinations. It is our understanding that MAXIMUS does not offer applicants voter registration opportunities.
§ DPW contracts with many private agencies to provide Supports Coordination and direct care services to people who receive services under the Medical Assistance Waivers and Act 150 program administered by the Office of Long Term Living. With the exceptions of the Centers for Independent Living, it is our understanding that these private agencies do not offer service recipients voter registration opportunities.
Any dispute that these DPW-funded disability services offices do not comply with the NVRA has been laid to rest by DPW. In response to a request submitted pursuant to the Right to Know Law, DPW confirmed that its contracts with private agencies do not include "any provision that commits the contractor to be a VRA."
The United States Department of Justice (DOJ) recently filed a lawsuit against Rhode Island, alleging that it violated Section 7 of the NVRA. In a Consent Decree to resolve that lawsuit, Rhode Island agreed that all offices that provide state-funded disability services, "including those operated by private entities on the state's behalf, ... must be designated as ‘voter registration agencies.’" United States v. Rhode Island, Civil Action No. 1:11-cv-00113-S, Consent Decree at 5 (D.R.I. Mar. 18, 2011), available at http://www.justice.gov/crt/about/vot/nvra/ri_nvra_cd.pdf. The Consent Decree required Rhode Island's Department of Behavioral Health, Developmental Disabilities, and Hospitals to amend its contracts with private entities who are engaged in providing services to people with disabilities "to ensure that they provide voter registration opportunities as required by Section 7 of the NVRA." Id. at 11-12.
Pennsylvania cannot avoid its obligations under the NVRA simply because the responsibility to provide state-funded disability services is delegated to local or even private entities. See United States v. New York, 700 F. Supp. 2d 186, 205 (N.D.N.Y. 2010). Pennsylvania must assure that local and private entities that provide state-funded disability services implement the voter registration requirements mandated by Section 7 of the NVRA.
B. Pennsylvania's Failure to Assure that Disability Services
Offices Identified as VRAs Comply with their Obligations
Aside from Pennsylvania's failure to designate all disability services offices as mandatory VRAs, Pennsylvania has also failed to assure that disability services offices that are designated as VRAs comply with the requirements of Section 7 of the NVRA.
In Fiscal Year 2010-11, there were 534,000 persons receiving mental health services (including nearly 124,500 using community mental health funds and nearly 380,400 using Medical Assistance funds) and nearly 51,000 persons receiving services for intellectual disabilities or autism. Governor's Executive Budget 2011-12 at E35.4335.44. Most of these individuals must have their re-eligibility certified annually. Yet, DOS's Report to the General Assembly on Voter Registration indicates that fewer than 45,000 individuals were offered voter preference forms by the County MH/MR Programs. DOS, 2010 Administration of Voter Registration in Pennsylvania: Report to the General Assembly App. G (June 2011). Plainly, there are a large number of DPW clients who have disabilities who are not offered voter registration opportunities in accordance with the NVRA. The data raise additional questions about compliance. DOS's 2010 Report shows that about 40,500 of the approximately 45,000 persons offered voter registration by County MH/MR Programs declined the offers. The same report indicates that 22,350 of the 25,000 persons offered voter registration by "Disability Agencies" declined the offers. This would suggest that County MH/MR Offices and the Disability Agencies registered more than 7,000 voters in 2010. DOS's Voter Registration by County breakdown, however, shows that only 670 individuals were registered by the County MH/MR Programs and Disability Agencies.
Disability services offices that receive funds from the Pennsylvania Department of Education (PDE) also appear not to comply with the NVRA. PDE funds local school districts to provide education and other services to students with disabilities. PDE's Basic Education Circulars (BECs) indicate that schools should discuss voter registration with students with disabilities who have an Individualized Program Plan (IEP) under the Individuals with Disabilities Education Act or service agreements under Section 504 of the Rehabilitation Act and 22 Pa. Code Ch. 15. The BECs, however, allow parents to decide whether to include voter registration as part of the students' IEPs or service agreements. Moreover, the BECs do not require school districts to have students or parents sign declinations forms or otherwise track whether registration was offered unless the students agree to have voter registration included in their IEPs and service agreements. Not surprising, the evidence suggests that few students with disabilities are offered voter registration opportunities. In 2009, only 22 special education students registered to vote according to DOS data.
C. DRN's Request to Remedy These Violations
In requiring state-funded disability services offices to act as VRAs, Congress recognized that people with disabilities are underrepresented among voters. Since these individuals frequently are poor and lack access to many of the mainstream opportunities for voter registration (such as driver registration), Congress required those agencies with frequent, one-to-one contact with individuals with disabilities to offer them the opportunity to register to vote.
For the past several years, DRN and other advocacy groups have advocated that DOS take the steps necessary to remedy the violations described in this letter. Despite meeting after meeting, our advocacy efforts have yielded no concrete action. In the absence of any remedy from DOS, DRN has spent a great deal of time, efforts, and resources to educate Pennsylvanians with disabilities, their families, and advocates about their right to register to vote and to encourage them to exercise that right.
Our efforts to educate people with disabilities about voter registration are not a substitute for enforcement of the NVRA. Accordingly, DRN requests that DOS develop a comprehensive plan to remedy Pennsylvania's non-compliance with the NVRA. We are willing to work with you to develop such a plan. If DOS is unwilling to do so, DRN will consider our other alternatives available under the NVRA.