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
Carol Aichele
Secretary of the
Commonwealth
Pennsylvania
Department of State
302 North Office
Building
401 North Street
Harrisburg, PA 17120-0500
Fax: 717-787-1734
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.
Sincerely,
Carol Horowitz
Managing Attorney
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