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Mercurio, Bryan --- "Discrimination in electoral law: Using technology to extend the secret ballot to disabled and illiterate voters" [2003] AltLawJl 85; (2003) 28(6) Alternative Law Journal 272

Discrimination in electoral law

Bryan Mercurio[*]

Computerised voting promises equal electoral rights.

Australia is internationally credited with developing the secret ballot. Implemented in Victoria and South Australia in 1856, the 'secret ballot' inaugurated a voting revolution around Australia and the democratic world. Within the space of three years, the secret ballot spread through all the colonies, bar Western Australia. The success of the secret ballot in Australia led to its adoption in many overseas jurisdictions.[1] Indeed, the secret ballot is still commonly referred to as the 'Australian ballot' in the US and many other parts of the world.[2]

The invention and adoption of the secret ballot in Australia occurred at the heart of the long struggle for universal suffrage. The secret ballot reflected the democratic political instinct that participation in government was an inalienable birthright that had to not only be shared equally and broadly, but to be exercised, like an act of individual expression, in free conscience. Previously, electors were polled by voice, in a public venue or forum. As a result, voters were much more open to bribery, intimidation and undue influence. This process effectively disenfranchised and left voiceless vulnerable and dependent voters. Those voters, in particular, benefit most from the secret ballot, as it offers protection from undue influence from those with power over them or on whose care they rely.

Section 233(1)(a) of the Commonwealth Electoral Act 1918 (Cth) (CEA) codifies the principle of voter secrecy by requiring voters to 'retire alone to some unoccupied compartment of the booth, and there, in private, mark his or her vote on the ballot-paper'. Through practice, interpretation and amendment, the ballot in Australia quickly became characterised by absolute, rather than merely limited, secrecy. That is, individual ballots are literally untraceable once cast.[3] The right to vote in secret is now such a well-established, deep-rooted principle that many view absolute secrecy of the ballot as a necessary ingredient to maintaining democratic integrity.[4]

With absolute secrecy theoretically accorded to the vote, it would come as a surprise to many Australians to learn that, in fact, the right to vote in secret is not extended to all of the community. In fact, a large percentage of voters, particularly disabled voters with impaired vision or limited arm movements as well as illiterate voters and those voters from non-English speaking backgrounds who may not feel comfortable reading or writing in English (collectively referred to as 'special needs voters'), are denied the right to vote in secret and can only cast their ballots with the assistance of an election official, family member or friend. Of course, under our system of compulsory voting, those voters who refuse to give up their right to secrecy are deemed to be breaking the law and subject to a fine for not participating in the election.

Section 234 of the CEA governs the provision of assistance to certain voters and requires those voters '[whose] sight is so impaired or that the voter is so physically incapacitated or illiterate that he or she is unable to vote without assistance' to appoint a person (or use a polling official) to enter the voting booth with the voter, and mark, fold, and deposit the voter's ballot-paper' (emphasis added). While CEA s 323 purportedly gives voters some protection by making it an offence for any polling officer or scrutineer to either 'directly or indirectly, divulge or communicate any information with respect to the vote of an elector acquired by him or her in the performance of functions, or in the exercise of powers ... that is likely to enable the identification of the elector', a deeper reading of the section reveals its true intent emphasises the importance of the secret ballot. In addition, the Act curiously does not protect special needs voters from a family member or friend who assisted that voter from revealing how that person voted.

While other nations use modem technology to assist special needs voters cast their ballot in secrecy, this basic facility is not available at Australian elections. In this the age of technological convenience, reasonable accommodation could be made for special needs voters to ensure their right to vote in secret. For instance, visually impaired and blind voters could easily use special large print, Braille or voice-recognition computer software to cast their ballot without assistance without much financial or administrative burden to the electoral system. Likewise, voters unable to read or write in English, whether they be illiterate or from a non-English speaking background, could also be accommodated through the use of voice­ recognition software.

As the benefits and burdens of introducing Braille or large-type ballots have been analysed elsewhere and have received considerable attention in the community and through submissions to the Joint Standing Committee on Electoral Matters (JSCEM),[5]

this article focuses primarily on issues surrounding the introduction of computerised voting to enable special needs voters to cast their ballot in secret and without assistance. This article first describes the current voting procedure used by special needs voters. After dismissing the present system as unnecessary, unworkable and discriminatory, the article further defines the term 'computerised voting' before analysing its feasibility for Australian elections. Finally, the article analyses some of the consequences of not granting special needs voters, and particularly visually impaired and blind voters, the right to cast their ballot in secret, including the threat of litigation under the Disability Discrimination Act 1992 (Cth) and similar state statutes.

How special needs noters are currently treated

The CEA gives special needs voters the option of either voting with assistance at the polling station[6] or registering as a General Postal Voter (GPV) and having election materials and a paper ballot sent to their home through the post.[7] While the Act does not exclude, and in fact attempts to accommodate, special needs voters, neither option is really acceptable to voters with special needs.[8]

Voting with assistance at the polling station means that voters are denied the rights and protections associated with the secret ballot. In addition, many voters feel that being forced to tell someone else their vote is degrading and violates the spirit of the secret ballot.[9]

Voting as a GPV is also unacceptable as the election materials and ballot paper are only available and posted in print form. Blind, limited arm movement and illiterate voters are reminded again of their dependency by being forced to rely on others, in effect, to vote for them. In addition, having disabled and illiterate voters voting by post segregates them from the rest of the voting public on polling day and excludes them from receiving polling day literature or from considering late-breaking political developments. To many Australians, the act of voting at the ballot box is an ingrained part of the election process. The fact that, for one day, all citizens of our community gather together and vote is a deeply entrenched symbol of democracy. Special needs voters should not be treated as second-class citizens or excluded from this important representation of democracy in action.

While some may view the current inequality as a minor degradation or burden, and rationalise that the government could better allocate scarce resources to other causes, the issue of genuine equality is of the utmost importance to those voters being denied the right to vote in secret. Physically challenged members of our community are often treated differently and separated from the rest of society simply because of their physical situation. At times, this treatment is inescapable and acceptable. But such treatment should be minimised and avoided if reasonably possible. Similarly, forcing voters who cannot sufficiently read and write the English language (whether through a lack of education or non-English background) to admit this deficiency and vote with assistance adds unnecessary embarrassment and could subject the voter to future discrimination. It is more than reasonably possible to extend the same rights extended to other Australians to those special needs voters listed above while only placing minimal burdens on the electoral system, government or members of our society.

What is computerised voting?

The term 'computerised voting' can be used broadly to describe a variety of different forms of mechanical voting, such as lever-arch or punch card machines often seen in the US, but is used in this article to refer to voting at the polling station using a computer terminal or similar audio or voice-recognition software which stores votes and may or may not have the ability to tabulate votes.[10] One common form of computerised voting used to assist visually impaired voters, as well as those with limited arm movements, replaces the assistance of election officials or volunteers with instructions provided through headphones and a computerised voting system which operates through voice guidance. Such a system would equally assist illiterate voters in casting their ballot without assistance. For the purposes of this article, the term 'computerised voting' however does not embrace Internet voting, whether it be at the polling booth or any remote location; although many activists, scholars and electoral officials believe that Internet voting could also accord special needs voters the right to vote in secret.[11]

Is computerised voting feasible in Australia?

Before implementing any form of computerised voting to assist disabled and illiterate voters, two questions must first be satisfactorily answered: (1) will such voters benefit from computerised voting; and (2) can we afford to implement computer voting?

Will special needs voters benefit from computerised voting?

A properly designed computerised voting system would finally grant disabled and illiterate voters the opportunity to cast their ballots in secret and put them on equal footing with other Australian voters.[12] Indeed, visually impaired and blind voters have long-campaigned against the inequality and injustice caused by the discriminatory nature of our voting system. For instance, the organisation Young Blind Citizens has called for the introduction of Braille, computerised or large print ballots for Commonwealth and state elections, stating that 'all citizens have the right to vote independently and in secret' [13] and that voting in secret, 'would allow us to enjoy a privilege the rest of the community takes for granted'. [14]

In addition, the Human Rights and Equal Opportunity Commission (HREOC) has added its voice to the issue and called on politicians to reform the way in which disabled citizens vote.[15] Likewise, HREOC has also promoted the rights of illiterate voters in an attempt to make the electoral system more beneficial to all members ofthe community.[16]

Several nations already allow visually impaired and blind voters to cast their ballots in secret and voters in those nations, as well as the voters in the ACT computerised voting trial, routinely praise computerised voting for its ease of use, guidance and convenience. [17]

For instance, 89% of voters in the ACT trial found the computerised voting system easy to use and understand.[18]

In addition, Ardis Bazyn of the California Council of the Blind recently stated: 'We give touch screen voting machines an 'A: for giving blind and visually impaired voters an independent and private way to vote. With electronic voting, we have the ability to hear our vote choices read through a headset, and cast a vote and confirm using a keypad. Voters can also enlarge the print on the screen to vote'.[19]

Unfortunately, the law does not permit such technological advancement to protect voter secrecy in Australia. In fact, it was a corporate election, allowing NRMA shareholders to cast their 2001 board of directors' ballots by Internet, which first permitted visually impaired and blind voters the opportunity to vote in secret. Graeme Innes, Australia's Deputy Disability Discrimination Commissioner, was one of those voters. Mr Innes, who is legally blind, commented, 'For the first time in my life, I won't have to tell someone else whom I am voting for. I have voted in many federal, state and local elections but I have always had another person marking my ballot paper. Now I can truly exercise my democratic right in the same way as others.'[20]

At that time, Mr Innes called on federal,state and local governments to 'follow suit' and also allow visually impaired and blind voters the right to cast their own ballot in secret.[21]

Private shareholder elections are still the only elections in which Mr Innes and the 300,000-plus visually impaired and blind Australians can cast their own ballot secretly.[22]

Moreover, despite Australia's leading position in the developed world and high literacy rate, the fact remains that thousands of Australians cannot adequately read and write.[23] Those voters could also benefit from computerised voting.

Is computerised voting affordable?

The electoral system can afford to fund a properly designed, efficient and effective computerised voting system for the limited use of disab1ed and illiterate voters. In 2001, the Australian Electoral Commission (AEC) estimated the costs of implementing computerised voting at the polling station for all voters (not simply limited to disabled and illiterate voters) to be only $3000 per server, $2000 per voting machine and $20,000 per electorate for back-up capabilities. Moreover, the 2001 ACT trial, which involved 16,599 votes, or 8.33 per cent of all votes, being cast electronically, cost only $406,000 over fmancial years 2000-01 and 2001-02.[24]

Of course, without detailed empirical evidence, the price of implementing computerised voting is impossible to accurately predict. Without that data, it is necessary to look to the costs of similar overseas jurisdictions that have implemented computerised voting on a larger scale. The vast majority of those jurisdictions report substantial savings over traditional voting methods.[25] For instance, in the US, voice-activated or other accessible computerised voting equipment costs only about $US500 per piece of equipment;[26] meaning the typical voting precinct will only spend between $US3000 and $US5000 for accessible, computerised voting.[27] As only one computerised voting terminal would be needed at each polling booth during elections in Australia, the cost of implementing computerised voting on the more limited basis using it to assist disabled and illiterate voters would not be prohibitive.

Further evidence of the feasibility of computerised voting is the 2002 Brazilian federal and state elections, conducted exclusively using ATM-style computerised voting. In those elections, over 90 million Brazilians voted electronically for 18,882 candidates seeking 1655 elected offices. The Brazilians allowed citizens to vote on one of 325,000 computerised terminals in use during the elections, with officials ferrying some terminals up-and-down the Amazon River to ensure voter access.[28]

The terminals then tallied the results in less than 12 hours after the close of the election and had an informal rate of under one per cent.[29] There is little doubt that electronic voting streamlined and improved the voting process in Brazil. If a developing country such as Brazil can afford to implement computerised voting for its entire electorate, it seems absurd to suggest that a wealthier nation such as Australia cannot afford to fund the limited use of computerised voting to assist special needs voters cast their ballots without assistance.

Consequences of maintaining the status quo

Loss of confidence in the system

As long as we rely on a system that trusts a polling volunteer or friend of the voter to accurately and honestly mark the ballots and record the votes of assisted voters, we will have the fear that the assisters will encourage or coerce the voter into voting a particular way or even go so far as to ignore the wishes of the voter and mark the ballot paper how they desire. Even if such fears are largely misguided, it is human nature to be suspicious. Moreover, the act of voting is the cornerstone of democracy, and not many participants would willingly entrust their vote to another person.

These very concerns were raised by a number of submissions to the JSCEM, including one from Barry Wakelin MP, Federal Member for Grey.[30] In response, the AEC responded with a one-sentence reply 'absolutely refut(ing) the implication ... that polling staff who assist voters are encouraging voters to vote in a particular way'.[31] Is that an adequate response? Does not the issue warrant a more careful consideration of how we treat special needs voters?

Both the JSCEM Report on the 2001 federal election and the JSCEM Report on the 1998 federal election examined this issue, with the 1998 report dedicating six pages to it.[32] Clearly, this indicates that not everyone in the community is completely satisfied that the assisted voting process is free from encouragement, coercion or corruption. It seems obvious that we should minimise the number of assisted voters to those who are truly incapable of voting without assistance. While assisted voting was ,once necessary, modem technology has advanced and we can now have virtually all voters casting their ballots without assistance; therefore, it is unnecessary to force special needs voters to rely on the honesty of the person in the polling booth with them marking the ballet paper.

International obligations and norms

Since disabled and illiterate voters are denied the right to vote in secret, even though suitable technology exists, the Australian electoral system risks violating international law. Article 25 of the International Covenant on Civil and Political Rights mandates that all citizens have the ability to 'take part in the conduct of public affairs' and that elections 'shall be held by secret ballot'. Further, the history of the drafting of Article 25 indicates that voting restrictions based on age, mental capacity, and minimum residency requirements are reasonable, but that accessibility issues are not a justification for limitations on the sanctity of the secret ballot.[33]

Moreover, without action on the part ofthe legislature and electoral administrators, legal action on behalf of disabled voters is a real and present possibility. This threat has been acted on already in a number of states in US, a nation with 54 million disabled citizens, 24 million of whom are of voting age. The issue was first litigated in the District of Columbia under the Americans with Disabilities Act 1990 (US) (ADA). The case settled before trial, so no authoritative ruling on the issue was made. However, the settlement signified a complete victory for the plaintiffs, with the electoral commission agreeing to purchase and make available a number of accessible computerised voting machines at each polling station.[34]

In another case, a blind voter in Maryland filed a complaint after election officials refused to allow him the use of a specially designed Braille-type template in the 2002 congressional elections. The complaint, filed in conjunction with the American Civil Liberties Union on behalf of20,000 blind or visually impaired people in Baltimore, Maryland, alleges violations of both the Constitution and the ADA.[35] Litigation and settlement negotiations are ongoing. Class action suits have also been filed in Florida, Pennsylvania and Texas, and in all cases bar Florida, the electoral officials and state legislatures have capitulated to voter demand and mandated the purchase of accessible voting equipment.[36]

Clearly, the trend in the US indicates that electoral authorities will have to provide disabled-accessible voting options or else face the cost and, more importantly, the embarrassment of defending a discriminatory voting system in court. Disabled voters in the US are pushing the issue and politicians are starting to realise the importance of this issue and to voluntarily mandate the purchase and availability of accessible voting equipment before 2004 (when recent legislation requires that any new voting equipment purchased must be accessible to disabled voters).

Australian discrimination law and prospects

Encouragingly, the 2001 JSCEM Report acknowledges that an advantage of computerised voting is that it can 'extend the secret ballot to those with visual impairment who otherwise require assisted voting to cast their vote'. [37]Disappointingly, the JSCEM ignored the advice of the AEC and chose not to initiate pilot computerised voting trials.[38] The acknowledgement that computerised voting is not only feasible and safe, but could place disabled and illiterate voters on an equal level with other voters, potentially further opens the door for legal action.

In Australia, plaintiffs could also use a number of legal and equality-based arguments to persuade the legislature and electoral administrators to provide disabled-accessible voting equipment. While it is not feasible to exhaustively detail every potential legal argument in this article, it is clear that the fact that some disabled voters are denied the right to vote in secret during our compulsory elections, even though technology exists to allow those voters to vote in secret, may violate the Disability Discrimination Act 1992 (Cth) and similar state statutes. The success of such litigation would be difficult to predict, but even if the litigation were unsuccessful, the threat or use of a lawsuit would likely bring the issue to the attention of the media and exert pressure on the government to abandon this form of discrimination.

It must be noted, however, that litigation in the US only succeeded after a massive lobbying effort resulted in the passage of disabled-friendly legislation. It may be premature to initiate such litigation in Australia. Australia is still a number of years behind the US in terms of equality rights for citizens. In fact, while the issue of the accessibility of polling booths has long been settled in the US, only recently, as a result of a complaint in 1999 regarding the physical accessibility of voting booths, did HREOC take up the cause and successfully lobby the federal government to review access to polling locations and to set benchmarks on the issue.[39] Unfortunately, accessibility to the ballot was not included in the mandate, but it would seem logical for HREOC to take the lead in campaigning for equal balloting rights. It is also encouraging that the AEC made recommendations to the JSCEM for the trialling and potential implementation of computerised voting, but less encouraging is the JSCEM's rejection of that recommendation. In doing so, the JSCEM showed complete misunderstanding of the issue and apparent confusion over the differences between computerised and Internet voting.[40]

Without intense lobbying by concerned citizens and advocates, the issue will continue to be misunderstood and not be included on the political agenda. However, as demonstrated in the US, effective lobbying and pressure can force politicians to face the issue and enact legislation to reasonably accommodate disabled voters.


Discrimination based on disability has, for some time, been illegal and intolerable. Why then do we allow such discrimination to continue at the ballot box, where disabled and illiterate Australians must abandon their right to vote in secrecy, an absolute right held in the highest regard in a democratic system, even though affordable technology exists which would allow these voters to vote without assistance and in secret?

The Australian electoral system maybe among the best in the world, but it fails to protect this simple but fundamental guarantee. If the issue is to be adequately addressed and corrected, disability and welfare advocates need to become more vocal and visible. The reasoning behind the JSCEM's recent rejection of limited-computerised voting trials illuminates political ignorance of the issue. It is regrettable that more submissions to the JSCEM were not made on behalf of the disabled and illiterate.

In order to progress the issue, both the public and politicians need to be alerted to the discrimination issues as well as to the basics of computerised voting. Disabled and welfare advocates need to lobby politicians and demand the issue receive attention in the JSCEM and that the law be amended.

Then, if no action is taken after presenting the issue in a clear and concerted fashion, litigation to gain equal standing at the ballot box could be a possibility. Regardless, the voting process will not change without a grassroots movement publicly denouncing the current voting procedure for disabled and illiterate voters for what it is-discrimination.

[*] Bryan Mercurio is Director, Electoral Law Project, Gilbert

+ Tobin Centre of Public Law, University New South


© 2003 Bryan Mercurio (text)

© 2003 Stuart Roth (cartoon)

[1] See Mark McKenna, 'Building "a Closet of Prayer" in the New World: the Story of the "Australian Ballot"' in Marian Sawer (ed), Elections: Full, Free and Fair (200 I) 47 and L E Fredman, The Australian Ballot: The Story of an American Reform (1968).

[2] This credit is somewhat misplaced; the secret ballot was actually the product of an international movement that began in Britain in the 1830s. See McKenna, above n 1, 45-7.

[3] For an historical anecdote on this point, see Kean v Kerby [1920] HCA 35; (1920) 27 CLR 449. In that case, Isaacs J, sitting as the court of disputed returns, determined 'whether it is permissible to receive evidence as to the intention of electors [wrongly denied a vote by official error]'. Isaacs was willing to accept such evidence, reasoning that to not admit it would have been using an implication from the idea of the secret ballot, to defeat the franchise of those wrongly deprived such a ballot. Section 365 of the CEA reverses Kean v Kerby on that point, but only applies to disputed returns petitions where electors were denied a vote by official error.

[4] See Bryan Mercurio, 'Overhauling Australian Democracy: The Benefits and Burdens of Internet Voting' [2002] UTasLawRw 7; (2002) 21 University of Tasmania Law Review 23,26-7.

[5] See, eg, See Human Rights and Equal Opportunity Commission, People with Disabilities Are Voters Too, (7 August 2001) <>

JSCEM, Submissions and Public Hearings, <> .

[6] CEA s 234.

[7] CEA ss 184A, 186.

[8] As special needs voters have become accustomed to the current voting process, not all of those voters may want to change the way they cast their ballot. Therefore, it is important that voters be able to choose to vote with assistance or use technology to vote without assistance.

[9] See John Williams, Assisted Technology: Interview with John McCain (2 February 2000) <>.

[10] For a more detailed definition and discussion regarding the issues of computerised voting, see Bryan Mercurio, 'Beyond the Paper Ballet: Exploring Computerised Voting' in Graeme Orr, Bryan Mercurio and George Williams (eds), Realising Democracy: Electoral Law in Australia (2003) 230-42.

[11] See, eg, Mercurio, above n 4; Colin Barry eta!, Electronic Voting and Electronic Counting of Votes: A Status Report (2001) <>.

[12] See, eg, Barry, above n II, I2 (listing an advantage of computerised voting to be that sight-impaired voters would be able to vote without assistance); US National Science Foundation, Internet Policy Institute, Report of the National Workshop on Internet Voting: Issues and Research Agenda (2000) 25 (advancing the proposition that computerised voting at the poll site allows more people with disabilities access to voting than any other voting method).

[13] Sean Tyrell, Inclusive Voting Procedures: Draft Policy (undated) Young Blind Citizens <> .

[14] Sean Tyrell, Discussion paper, Making Election Procedures Inclusive (undated) Young Blind Citizens <> .

[15] See HREOC, above n 5.

[16] See Human Rights and Equal Opportunity Commission, Accessibility of Election Procedures to People with Disabilities (26 August 2002) <>>.

[17] See, eg, Farhad Manjoo, 'The Case for Electronic Voting', Wired News, I4 November 2000, <,1283,40141,00.html> (reporting Riverside, California's offline e-voting receiving a 99% user-approval rating). NOP Research, Public Opinion in the Pilots (21 October 2002) <http://www.> (45% of those polled thought that e-voting made the process of voting 'better').

[18] ACT Electoral Commission, Electronic voting trial 'a success' (28 June 2002) <> .

[19] California Voter Empowerment Circle, 'Civil Rights Groups Respond to State's Touchscreen Task Force Report, Unveil 'Report Card' Showing Advantages of Touchscreen Systems' (Press Release, July 2003) <> .

[20], 45 Year-Old Gets First Vote (16 February 2001) <>.

[21] Ibid.

[22] Human Rights and Equal Opportunity Commission, Frequently asked questions: Who is protected by the DDA? (undated) < _/who_is_protected_.html> (citing the Commonwealth Disability Strategy figures).

[23] The actual number of illiterate Australians is difficult to gauge for reasons including the negative stigma associated with admitting the disability.

[24] Department of the Parliamentary Library, Electronic Voting in the 2001 ACT Election, Research note 2001-02, No. 46, 18 June 2002. In addition, the trial resulted in an informal rate of 0.57%, compared with 4.32% of paper votes being deemed informal. For comparison, informal votes were cast on 4.32% of the ballots in the 1998 election and 6.24%, in 1995.

[25] See eg, Manjoo, above n I7 (reporting Riverside, California's offline computerised voting system results in substantial savings for the city).

[26], Disabled US Voters Have Their Say (29 January 2003) <> .

[27] Alan Fisk, 'Disabled are Suing States on Voting', The National Law Journal, 18 April2003 (using the State ofMaryland figures as a guide).

[28] Kevin Hall, 'Electronic voting a breeze in Brazil; U.S. could learn lesson', Miami Herald, ·3 November 2002, <> .

[29] Ibid.

[30] Submission to the 200I JSCEM (Mr B Wakelin MP, no. 108).

[31] Submission to the 200I JSCEM (AEC, no. 174) 22.

[32] JSCEM, The 2001 Federal Election [4.9-4.93]; JSCEM, The 1998 Federal Election, 78-84. Both inquiries were also concerned about the high levels of assisted voting in some communities and corresponding mistrust between voter and polling staff in those communities.

[33] See United Nations Office of the High Commissioner for Human Rights, The Right to Participate in Public Affairs, Voting Rights and the Right of Equal Access to Public Service (Art. 25) (General Comments), 12 July 1996, <> .

[34] See eg, Kris Wise, 'Voting System to Change: County moves ahead without guarantee of federal funds', Charleston Daily Mail, 3 March 2003 (stating West Virginia has allocated $3 million of the $10.5 million federal grant for election reform to be used to purchase handicapped-accessible voting machines).

[35] Poole v Baltimore County and Maryland Board of Elections, No. 02-3610 (D. Md.).

[36] For instance, Pennsylvania officials are negotiating a settlement that will see election officials providing e-voting systems to aid disabled voters. Plaintiffs in Texas lost their case at the appellate level, but the state subsequently passed a law requiring that any new voting system must make secret balloting available for blind and physically impaired voters. Litigation remains ongoing in Florida: although a new state statute requires that any new voting system purchased must be accessible to visually and physically impaired voters, state officials refuse to settle the case until the federal government provides promised (and much delayed) funding. See AAPD v Hood, No. 3:0I-CV-1275- J-2ITYJC, (M.D. Fla.).

[37] 2001 JSCEM Report, above n 32, [7.54].

[38] Ibid [7.67].

[39] HREOC received two complaints relating to wheelchair access to the polling booth for the 2001 federal elections, while the AEC received 40 complaints 'of an access nature' for that election. See ibid [5.28] (citing Submission (AEC, no. I47) 25-26)). The AEC reports that the percentage of wheelchair accessible polling stations has improved from 40% in I993 to 75% in 2001. Ibid.

[40] See, eg, the 2001 JSCEM Report listing 'security' as a reason for its opposition to 'Internet voting'; however, the proposals to introduce computerized voting were not Internet based. Therefore, the security problems associated with Internet voting (ie hacker attacks) should not have been considered. See Ibid [7.55].

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