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| Sally Deng, special to ProPublica |
Renowned inventor Walter Hutchins has voted in every presidential
election since 1952. This year, as many states stopped sending teams to
help seniors vote, his nursing home was on coronavirus lockdown and his
streak was in jeopardy.
by Ryan McCarthy and Jack Gillum
Walter
Hutchins cast his first vote for president for Dwight D. Eisenhower in
1952, and he has voted in every election since. The last thing he wants
is for his “68-year streak,” as he proudly calls it, to end in November.
An
industrial engineer, Hutchins helped design the M16, the weapon of
choice for American soldiers during the Vietnam War, and he invented several tools
that may be currently sitting in your garage. He and his wife,
Margaret, a teacher and ordained Episcopal minister whom he married the
year after he voted for Ike, were “executive gypsies,” she said. They
followed his jobs from Connecticut to Florida, New York and Wisconsin,
until they retired to North Carolina. Wherever they were, they always
voted — in fire stations, churches, their retirement community. When
Walter became blind and hard of hearing, Margaret helped him in the
voting booth.
This
year, what stumped Hutchins, despite all his resourcefulness, was how
he was going to exercise his basic constitutional right to vote during a
pandemic. The Davis Community nursing home in Wilmington, North
Carolina, where Hutchins has lived for two years, has barred visitors
since March. Margaret, still in the retirement community nearby, can’t
help him, nor can their four kids and eight grandchildren.
Neither
can the nursing home staff. A 2013 state law prohibits staff at
hospitals, clinics, nursing homes and rest homes from helping residents
with their ballots. Some North Carolina counties, including New Hanover,
where Wilmington is located, send teams into nursing homes to assist
voters or bring them to polling places, but the threat of the
coronavirus has limited that service as well.
As
the pandemic worsened, he and Margaret began to consider a more drastic
measure to keep his streak intact. “It makes me angry that something
like this could happen and that we’d be denied the right to vote just
because of our age and condition,” she said.
How
to vote during a pandemic poses a dilemma for many Americans, who worry
about the health risks of voting in person and whether the U.S. Postal
Service will be able to deliver mail-in ballots on time. Such concerns
are multiplied for nursing home residents.
Most,
though not all, of the roughly 2.2 million Americans living in nursing
homes or assisted living communities are elderly — and thus at higher
risk of dying from the coronavirus. They’re also part of the most
politically engaged demographic in the country. In 2018, 66% of
Americans over 65 voted,
compared with just 35% of those 18 to 29. In 2016, Donald Trump had an
advantage over Hillary Clinton among voters 65 and older by 53% to 44%,
according to the Pew Research Center.
At
least 68,000 residents and staff of nursing homes and other long-term
care facilities have died of COVID-19 since the pandemic outbreak began,
some 41% of all coronavirus deaths in the U.S., according to a New York Times analysis.
This ongoing crisis at care facilities across the country has had a
troubling hidden effect: the looming mass disenfranchisement of
America’s elderly and disabled. Hutchins is one of hundreds of thousands
of residents of nursing homes and assisted living communities who may
not be not able to vote this year because of coronavirus
related-lockdowns and the failure of state and county officials to help a
forgotten population of voters.
Family
and friends who helped them vote in prior elections can’t visit them —
and may have taken ill or died from COVID-19 themselves. Swing states
such as Florida and Wisconsin have suspended efforts to send teams to
nursing homes to assist with voting. Despite a federal law that
residents must be “supported by the facility in the exercise of” their
rights, two states — North Carolina and Louisiana — prohibit staff from
actively doing so. While many other states allow voters to appoint a
helper of their choice, voting assistance may be a low priority for
understaffed institutions struggling with COVID-19 outbreaks. And
polling places are being moved from nursing homes and assisted living
facilities to sites less affected by the virus. For example, Somerville,
Massachusetts, relocated voting from a nursing home to a school a
little less than a mile away.
“The
hurdles are so high for people that are living in long-term care
facilities — people who don’t have access to or who need different
levels of help,” said Lori Smetanka, executive director of the National
Consumer Voice for Quality Long-Term Care, an advocacy group. “I really
think disenfranchising that entire population — we’re in real danger of
that at this point.”
Under
federal law, nursing homes have a duty to facilitate residents’ rights,
including voting, said Nina Kohn, a distinguished scholar in elder law
at Yale University. But even before the pandemic, compliance was spotty.
From 2018 through 2019, Medicare documented complaints from at least 55
U.S. nursing homes in which residents said they weren’t given the
opportunity to vote or were unable to get help casting a ballot. But
nursing home inspectors categorized the vast majority of these
complaints as low severity, meaning they were seen as inflicting little
or no actual harm.
As
a result, fines for violating residents’ voting rights are rare.
Nursing home inspectors, Kohn said, do not take such violations
seriously. “What you have is a system where the deprivation of our
fundamental civil liberties never arises as being classified as real
harm,” she said. “You’ve got a whole category of violations where there
are virtually no consequences.”
Some
nursing homes have begun adjusting procedures ahead of Nov. 3. Chris
Hannon, the chief operating officer of Pointe Group Care, a nursing home
operator in Massachusetts, said his staff is working to ensure
residents are mailed absentee ballots. Although he hasn’t seen problems,
“it becomes as challenging of a job as any other responsibility that we
have,” he said.
Many nursing home residents have some degree of mental impairment — nearly half of long-term care patients suffer from dementia or Alzheimer’s.
But those afflictions do not mean residents automatically lose their
right to vote — competency requirements vary from state to state — and
advocates say that nursing home staff often make arbitrary judgments
about who can vote. More egregiously, some residents are not informed of
their voting rights.
Other
residents are as mentally sharp as ever — yet still may not be able to
vote this year. Jay Leavitt jokingly refers to himself as a “sort of a
disaster case,” a phrase that wildly undersells his productivity. A
former Fulbright scholar, with a doctorate in applied mathematics,
Leavitt used to run the academic computing program at the University at
Buffalo. He’s 84 and is a quadrapelgic, but he’s still publishing
research; his current project examines how natural resource levels
affected prehistoric migratory patterns.
“I’m
sort of blessed. Even though I’m a quad, my mental activities haven’t
decreased. As a matter of fact, they’re probably increasing,” Leavitt
said.
He
normally stays in a nursing home in Hendersonville, North Carolina. But
this summer he was transferred to the River Falls Rehabilitation and
Healthcare Center in Slater-Marietta, South Carolina, for treatment of a
wound.
Over
the years, he’s voted in person or by mail, and he has helped other
nursing home residents fill out their ballots. He’s even grilled local
candidates about conditions in North Carolina nursing homes. Because of
his disability, he can’t mark a ballot himself. His wife used to help
him. But she isn’t allowed to visit him, and she is in the early stages
of dementia, he said.
He’s
succeeded in getting a North Carolina absentee ballot form, but he’s
not sure where to send it, or how to fulfill the requirement for a
witness. The River Falls staff has not discussed voting with him or
offered assistance to anyone he knows, he said.
“I’m certainly very concerned” about voting, Leavitt said. “I haven’t seen anything done in this nursing home.”
After
ProPublica asked about Leavitt’s experience, a River Falls spokesperson
said it would provide him with any voting help he needs. The facility
held a cookout in early July to register residents to vote, the
spokesperson said.
“We’ve
made it a top priority to help our staff and residents get involved in
the electoral process and exercise their right to vote,” River Falls
administrator Tkeyah Brunson said. “Just as we have worked hard to help
residents communicate remotely with friends and family, we want to help
our residents enjoy their normal freedoms and quality of life during
these difficult times, including the ability to participate in our
democracy.”
Before
the pandemic, recognizing the barriers that elderly and disabled voters
in institutions already faced, almost half of states offered some form
of assistance. Florida’s program was typical. A trained bipartisan team
appointed by the election supervisor would travel to residential care
facilities and help residents fill out absentee ballots. The service was
provided to any facility that had at least five people interested in
voting and submitted a request at least three weeks prior to an
election.
This
year, Florida’s program has been suspended, leaving thousands without
help in a swing state with one of the largest elderly populations. A
similar program in Wisconsin, where “special voting deputies” visited
nursing homes, has also been curtailed.
Karen
Lee Weidig, who served as a special voting deputy in Madison,
Wisconsin, for more than a decade, said she was “stunned and
disappointed” that the program is not being offered this year. “The
people to whom we present ballots very much want to vote, it’s a big
part of their civic life,” she said. “It might be the only part of their
civic life.”
Some
election officials in Wisconsin are trying to adjust the rules on the
fly, according to internal emails obtained by ProPublica. “The assistant
for the ballot cannot be an employee of the care facility,” stated part
of a July presentation by Madison’s elections clerk. Soon after, an
elections official indicated those rules had been relaxed following
questions from a local nursing home: “Since the ballot is being mailed
and SVDs are not present, the voter can designate ANYONE to help them
mark their ballot (including facility staff and administrators).”
In
North Carolina, individual counties decide whether to send what are
known as multipartisan assistance teams (MATs). They have traditionally
been funded by county resources and depend on volunteers. On Aug. 1, the
state Department of Health and Human Services released guidance that
“strongly encouraged” that those teams visit residents outdoors, no more
than two residents at a time, and maintain 6 feet of social distance.
Officials
in North Carolina counties that still plan to provide MATs told
ProPublica that they will follow this guidance. But people familiar with
the process said that the guidelines, though appropriate during the
pandemic, will make it much harder. For one thing, not every voter is
healthy enough to be outside. When North Carolina’s League of Women
Voters ran an informal precursor to those teams, volunteers had to go
room to room, sometimes waking residents from naps, said Vice President
Marian Lewin.
Even
in normal times, MATs leave voters out, Lewin said. “You’re doing this
out of the good of your heart,” she said. “If the teams exist,” they may
consist of five or 10 volunteers for an entire county. “By their very
nature, they’re inadequate.”
Martha
Roblee, 67, is a resident of the assisted living section of Scotia
Village, a community care facility in Laurinburg, North Carolina.
Through her work with the League of Women Voters, Roblee has been
helping to educate voters at Scotia, but there are people she isn’t
allowed to reach in the skilled nursing wing. “They’ve been voting for
decades. Who’s going to help these people?” Roblee said.
One
resident of an assisted living facility in southeastern North Carolina
said she has helped other people there vote in prior elections. The
woman, who suffers from a crippling genetic condition, said some of her
“dearest friends” in the facility have died from COVID-19. Almost every
day, she has a socially distanced lunch with her boyfriend of 15 years
in the facility’s lobby, where they’re separated by tempered glass. “I
have a rocking chair. He has a rocking chair,” said the woman, who
requested anonymity. “He brings Big Macs and he gets on his cellphone. I
get on my cellphone on speaker, and we just eat and jabber.”
Helping
the elderly and disabled to vote will be very challenging in the
pandemic, especially if MATs aren’t available, she said. “How would you
do it?” she said. “How would you walk a senior citizen or a person with a
disability through marking their legal ballot so that you knew the vote
they wanted to cast was theirs? It would be a difficult thing. You
would have to get into their chair and think like they do, and look at
that ballot through their eyes.”
Even
if state law were to allow it, she said, the staff don’t have time to
help with voting. “They’re juggling all kinds of things trying to keep
us from going crazy,” she said. “To put something else on them? No.” So
far, she said, the facility has not even discussed voting: “We’re hard
put to get our Pepsi machine filled.”
In
June, to help relieve the boredom of life under a lockdown, Phoenix
Assisted Care in Cary, North Carolina, posted residents’ pictures on Facebook.
Each resident held a sign describing their interests and asking for pen
pals from across the country. (“I like women, wrestling, eating out,”
one man’s sign read.) Donna Horton, an administrator there, said that
the response was “hogwild”; the posts went viral and were picked up by national news organizations. Since then, residents have received more than 110,000 letters and hundreds of packages.
But
Phoenix hasn’t come up with a similar innovation to enable residents to
vote. In past years, about 40 have voted, usually in person, Horton
said. This year she isn’t sure what her facility will do, or if MATs
will be enough.
“My
fear is taking them somewhere that is going to expose them,” Horton
said. “This is a senior population. It’s not gonna take but one person,
and it’s gonna spread. I’ve been doing this for 20 years. This is really
tough. No one is seeing their family, you can’t vote. It’s beyond
something I ever thought I’d witness.”
This
spring, a friend of Margaret Hutchins at the local League of Women
Voters chapter asked her if Walter would be interested in joining a
lawsuit challenging North Carolina’s vote by mail restrictions and
ballot accessibility laws. “I thought that he’d be willing, and that I
better call him and ask him,” Margaret said.
Hutchins
agreed. He signed up as a plaintiff, along with the league; Democracy
North Carolina, a nonpartisan nonprofit; and several voters who were
either elderly, disabled or at high risk of contracting COVID-19.
Hutchins was the only plaintiff confined to a nursing home.
Walter
and Margaret’s son, Jim Hutchins, 54, a correctional officer in Idaho,
said he wasn’t surprised that his dad got involved in the case. Walter
was “always very active in exercising his rights,” Jim said. “Dad was a
lifelong Republican. Mom was a Democrat, so they always canceled each
other out.” Today, Walter and Margaret are registered Independents; they
declined to say whom they would support in November.
In
the suit, Hutchins’ lawyers argued that the state was violating his
rights by barring staff from helping him with his ballot. The case also
sought broader changes to make voting easier in North Carolina.
Conservative
legal groups intervened to oppose the lawsuit. Committees for the
Republican Senatorial and Congressional campaigns filed motions in the
case, arguing that election rules, including the staff prohibition,
should not be changed. The Public Interest Legal Foundation, a
right-wing think tank that has long pushed exaggerated claims of voter
fraud, filed an amicus brief for the defense, asking the court to
consider its research on inaccuracies in the state’s voter rolls.
The
state and county boards contended that Hutchins had not yet been
deprived of the right to vote. His facility, for example, might not be
locked down by the election. They also argued that MATs could help
Hutchins with his ballot, though the state had not yet released its
guidance.
Emails
submitted as evidence in the case, though, showed that Hutchins and
other nursing home residents might not be able to rely on MAT, and that
at least two counties did not have teams. “It may be difficult to find a
team of bipartisan volunteers to serve, and the MAT program has no
funding allocated to it by the legislature,” Katelyn Love, the North
Carolina Board of Elections’ general counsel, had written to a
disability rights group. “If a MAT team is unavailable, another person
may assist a voter in a nursing home or other facility provided that the
person is not disqualified. Nursing home owners, managers, and
employees, may not assist.”
Hilary
Harris Klein, a lawyer for Hutchins at the Southern Coalition for
Social Justice, told ProPublica that the law prohibiting employee
assistance trampled Hutchins’ rights. “He trusts these people and wants
them to help,” she said. “The government is denying his choice by
enforcing this ban on staff assistance.”
In
August, a federal judge in Greensboro, North Carolina, found that the
state had violated Hutchins’ rights, but only his. Staff at Davis
Community could help Hutchins with his ballot, but no one else there or
in the rest of the state could receive assistance from nursing home
workers.
Which is to say, Walter Hutchins won a remarkable legal victory that was also remarkably limited.
The
North Carolina Board of Elections declined to comment on the lawsuit.
But Patrick Gannon, a public information officer for the board, said
that in March the board “recommended that the prohibition on facility
employees be temporarily lifted during the pandemic.” North Carolina’s
Republican-dominated legislature declined to lift the ban.
Gannon
also said that this summer, for the first time, state funding had been
allocated to help recruit and train MAT teams. In a March letter
to the governor and state legislators, Karen Brinson Bell, the board’s
executive director, noted that MAT teams may not be able to reach some
facilities.
Davis
Community did not respond to multiple requests for comment, including
how it will help Hutchins vote in his 18th consecutive presidential
election.
Klein
said she was disappointed by the narrow ruling. “The court acknowledges
that a lot of people are in this situation. So we would have hoped that
it would have applied to more people, but that doesn’t mean the state
can’t do anything about this.” Calling the judge’s decision “clearly
erroneous” and arguing that it will lead to “manifest injustice,”
Hutchins’ lawyers filed a motion this month asking the court to let all
North Carolina nursing home residents who need assistance with their
ballots get help from facility staff.
Full Article & Source:
Hundreds of Thousands of Nursing Home Residents May Not Be Able to Vote in November Because of the Pandemic
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