Voting Rights of People with Disabilities Presenter: Clyde Terry. >> RACHEL: Hello, everybody and welcome to the webcast on voting rights of citizens with disabilities. I am Rachel Kosoy. I'm with the Disability Law Resource Project at ILRU, your sponsor for today's event. I will be moderating the webcast and voicing your questions to the presenter. In order to submit a question, you can click the submit question button, which is located at the bottom of your RealOne Player screen or you can simply address a question to us at webcast@ilru.org. Please send those now or at any point during the presentation, and I will pose your questions to the presenter as he pauses to take them. If anybody has technical difficulties today, please give us a call at (713)520-0232. Today's webcast is going to focus on the rights of citizens with disabilities to vote and to have their polling places and processes accessible to and usable by them. We will examine the impact of the laws enhancing voting rights for people with disabilities, namely, the Americans with Disabilities Act, the Voting Accessibility for the Elderly and Handicapped Act, and the Help America Vote Act, which many of us have heard referred to as HAVA. Additionally, our presenter, Mr. Terry, will share ideas about practical steps to take during the short term and especially during our current election because we have not yet been able to accomplish the systems change that we know is necessary. Okay, I'm now pleased to introduce our speaker for today, we have with us Mr. Clyde Terry. Mr. Terry is an attorney who is currently the Executive Director of granite state independent living. As director, Mr. Terry is responsible for the entire organization's advocacy, grant and service activities which are all aimed at promoting independent living for people with disabilities throughout New Hampshire. Prior to having this position, Mr. Terry was the Executive Director of the New Hampshire Developmental Disabilities Council. There he directed the agency's five-year state plan as well as authored state and federal legislation on issues impacting the lives of people with disabilities. Some examples there of the legislation he worked on include: HMO reform, Medicaid reform, employment assistance, civil rights enforcement, and as well as some other issues. Speaking specifically about elections, Mr. Terry spearheaded a national coalition of disability organizations on election reform and election accessibility for people with disabilities. He is the coauthor of the 2001 publication entitled: Voters denied equal access at the polls: A status report of the accessibility of the polling places in the United States. Prior to these positions, Mr. Terry has done a number of interesting and important work on behalf of low income individuals, as well as people with disabilities and seniors, and I encourage you all to read his bio that's listed on our web page so that you can learn more about him. Okay, Clyde, I'm now ready to turn things over to you at this point. >> CLYDE: Thank you, Rachel. Thank ILRU forgiving me this opportunity to sort of talk about an issue that's near and dear to my heart and so important to the 54 million Americans with disabilities as well as seniors and the future of this country. I title this talk today the promise of equality in voting is still not a reality for Americans with disabilities. It is sad but true, and I would like to begin by sort of walking through some of the law and some of the history and then I'll pause before we start talking about the Help America Vote Act or take some questions. There are some resources on the website that Rachel is going to list off a little bit later to sort of give you some more detail and other places to go to learn more about this critical issue. In terms of the promise of equality for citizens with disabilities, one would have thought that this would be an easy venture for folks with disabilities and almost a given. Voting is such an essential franchise and a way of like for America, we fight and die for it around the world for over 225 years, one would think when we come back home and start advocating for it here, we would always find a receptive audience; but unfortunately, what I've learned since I've worked on this project since 1996 and talking to people who worked on the 1984 statute when they thought that they had secured us a real victory when they passed the Voting Accessibility for the Elderly and Handicapped Act, that we still have so far to go. And what makes this issue particularly difficult is that it only really gets to the forefront on everyone's mind every two years and more likely every four years. So for us to accomplish our end to make sure there is no discrimination in voting and full access and equal treatment to all, we almost have to rededicate ourselves that realize that it's not once every four years, that it's an ongoing venture and a continuous venture because people change in election boards or secretaries of state, and unless we're there, we're out of sight, out of mind. And we have to keep our issues front and center because there are so many other issues that seem to -- that are critically important to election officials and often take a back seat. So the only way to change that is to get involved, get to the table and present our position to ensure that our interests and our rights are protected. Part of what is also really critical about this issue and difficult is that in all too often election laws, elections are governed by state law, whether it's the actual process of voting or the ballot requirements themselves. And there has been a sort of gap, if you will, in how far down the road Congress can legitimately go in regulating elections. It's very much a process that has been reserved for the states for the most part. And clearly one of the first ventures that the federal government took on was the voting rights act of 1964 and subsequent to that for folks with disabilities was the elderly and handicapped voting accessibility act of 1984. And we'll talk about the latter in a couple of minutes. But as I talk about these in fairly general terms, it's important to remember that each state may have different requirements and additional protections that the federal law does not offer. What would be helpful to me at this point is for those listeners to if you could somehow E-mail in and let me know what states you are free so I would be sure to address some of my remarks specifically. For example, Texas has a constitutional protection around a secret ballot which really offers a great deal more opportunity for individuals who are blind or visually impaired to seek solutions understate law that the federal law has been a little weak on, while other states do not necessarily have that protection. Some of the court cases that follow that same sort of approach, but we'll talk about those again in a few minutes. So again -- >> RACHEL: Clyde this, is Rachel. If I could just repeat to people how to send in an E-mail. >> CLYDE: Go for it. >> RACHEL: You have two options. At the bottom of your RealOne Player, there should be a button there, a link there that says click here or submit question and if you click on that, a window will open up and you can type in your state so we know what state you're from and send it on. Otherwise, the other option is to address something to webcast@ilru.org. Okay, back to you. >> CLYDE: Okay, thank you, Rachel. So again, the idea is by recognizing that election is by state law and that information would be helpful to learn a little about you and where you're from so we can try to deal with your particular concerns. One of the first laws that indeed the federal government, the Congress did pass that does have an effect on voting and does offer some remedies in the event that we find polling places that are not accessible is certainly Section 504 of the Rehabilitation Act. That statute which basically governs public facilities that receive federal money, is the first effort to ensure that public facilities were accessible to persons with disabilities. And that law has certainly helped in the case of some schools, hospitals that receive Medicaid dollars, for example, some city buildings that were receiving federal HUD money and the like, so that accessibility has -- began back in 1973 to be part of the dialogue and planning. Now, the history of that statute as most of you do know, it had its problems on the enforcement side and so the promise of full accessibility, even of public buildings for everything from paying a tax bill to buying a dog license is not necessarily realized for persons as well and we needed stronger remedies which clearly the ADA offered in most cases. But that indeed is a place to go if you find that the polling place is a public facility. Now, on the off chance that that facility or program is receiving federal dollars, because as you also know that the remedy under Section 504 is the loss of the federal revenue, which sometimes can be a strong motivator for a city or town to comply with the statute. The next venture that really occurred in this field was in 1984, the Voting Accessibility for the Elderly and Handicapped Act. There was a coalition back in 1984 of pair a lied veterans of America were actively involved. Easter seals was certainly part of that coalition, and many others to first educate the Congress on the idea that persons with disabilities needed to have full access to the polling place. The statute itself set up the idea or the promise to promote accessibility, but as you all probably know, statutes and acts of Congress certainly do look like sausage when they come out and the law itself had several problems with it, not the least of which was that there was no standard for what accessibility meant. So it was pretty much free to the states to interpret that. And since this was prior to the ADA and ADAAG, a lot of states had great liberty to decide what they felt was accessible, and in some cases the idea of bringing the ballots out to the curb -- they defined that as accessibility and there wasn't any real structural change. Other states indeed passed statutes that were very creative on the size of doors, the slope of ramps and et cetera which -- since it was before ADAAG turned out to be not consistent with ADAAG and then election officials were not really versed in this stuff and didn't know what statute to follow, which still exists to this day, particularly around what constitutes accessibility when it comes to voting. It's a contradiction and the election officials say they don't know what law to comply with. >> RACHEL: Can you explain for people who don't know what ADAAG stands for? >> CLYDE: Certainly. It's the architectural guidelines that are attached to the ADA itself that gets to the specifics as to width and measures -- the width of doors, the slope of a ramp, the circumference of handrails or the height of handrails and the like. It's a rather thick document, but it really gives you the guidance that architects and builders need particularly around new construction or renovations when trying to comply with the ADA. >> RACHEL: Great. Thanks. >> CLYDE: Sure. But again, going back to the 1984 statute, the other issue which was really difficult in that law, what we learned was that there was no real accountability, and part of the problem that we have when it comes to voting accessibility is that the system is so disjointed that there is no one individual in a state that is fundamentally responsible. The statute claimed it was the chief election officer, but that definition varies widely from state to state. In some states it very well could be the secretary of state. In other states, it's the chairman of the board of elections, and in a state -- particularly in New England or the northeast where you don't have strong county government, but you have lots of cities and towns, certainly what we learned in this process is that the secretary of state argued that he wasn't the chief election officer, but rather there were 330 of them. So without that definition, without that accountability, it was very difficult to enforce the 1984 statute. And finally, when it comes to enforcement in the statute itself, the enforcement provisions were really weak and really didn't give, again, people with disabilities true rights to, you know, hold a hammer over election officials' heads to enforce the provisions to act as sort of the deterrent and the motivator to comply with the law. So what is really -- so that's -- that sort of described the problems with the '84 statute. What it did do is sort of set the stake in the ground that polling places should be accessible, and if they are not accessible, then move them. And indeed, some places did accomplish that, but more likely than not as we will learn from the GAO, government accounting office, survey that happened 16 years later, 84 percent of the polling places they looked at were not accessible. So clearly there was something systematically wrong with the statute that we were still at that point in -- in the year 2000, 16 years after the passage of that law. >> RACHEL: Can you repeat that statistic? >> CLYDE: Sure, 84 percent -- the government accounting office, GAO, who monitored the 2000 election sent investigators across the country, and this was in response to a lot of work by advocates to sort of point out and claim through anecdotal studies that indeed polling places were not accessible, senator Harkin asked for a study that could be presented to Congress, and that study revealed that 84 percent of the polling places that they looked at were not accessible to people with disabilities. And it's rather astounding -- >> RACHEL: It really is. >> CLYDE: if you consider that 16 years after this first '84 statute and it's ten years after the ADA. The good news as we'll get to later, that statute, along with some other studies and the book that you described in my bio was used as a justification for a lot of the provisions that were included in HAVA. The bad news is, it was 16 years too late. But picking up sort of on the ADA and how does the ADA relate, it's important to remember that the ADA helps in some cases and piggy backed on the back of Section 504 of the Rehab Act, certainly Title I, state and local government provisions, indicated that programs offered by state and local governments must be accessible to persons with disabilities, and voting is a program by definition. We would argue that it's a rather important program and a little bit different than a dog license or even paying a tax bill and must rise to a higher threshold or review. But the courts haven't really gotten there yet, but I think advocates may have to use that argument as we go forward, but the idea here is that indeed voting a program and therefore must be accessible. And if you piggy back this on 504 and on the '84 statute, it is fairly easy to argue that if a facility is not accessible under the '84 law, then you're required to move it, and if you really can't move it and you've gone through a survey and there is absolutely, positively no accessible location within that ward or precinct, only then do you suddenly -- can a city and county turn to this idea of curbside voting. Now, I know that many folks with disabilities would think curbside voting is a great idea. It's a convenience, and I can certainly appreciate that there are people out there that need that convenience; but there is something to be said for people with disabilities to stand in line with their neighbors and family and friends and to be seen as part of a community. That statement alone of being present to be seen as a constituent will have a whole lot more to help us in the future as a politician might be standing in front of that polling place shaking hands or their spouse is standing in front of the polling place shaking hands and seeing a person with disabilities actually going to vote or often will be viewed in a different light and they will really talk the talk or walk the walk that we want to be included in every aspect of community life. So while some folks desire to have either curbside voting, and there are certainly some who appreciate the idea of permanent absentee voting and for folks that that works for, that's great, but there is a strong argument to say that we need to suffer the same indignities as every other citizen and stand in line and be bothered by the elements to vote because that raises our visibility and our credibility in the eyes of the community. But having said that, you know, the program accessibility certainly gets us part of the way under the ADA to make sure that voting is accessible, but it does indeed offer an opening for a city or town to provide that curbside voting. Title III of the ADA, is the public accommodations statute which essentially privately owned entities, but as we are learning more and more private entities are in the business of being polling places, whether it's stores, malls, often will -- the trend seems to be in parts of the country to use those places as polling places. And this is unique because when you talk to election officials, what they find one of their biggest problems happens to be is being able to find an accessible location in the precinct or ward and that's often governed again by state law. For example, in California I believe I got this right, they need a polling place for every 1,000 voters. That's a lot of polling places. And so always finding a piece of property that is totally accessible has always been a question and a difficult one for the election officials in that state to crack. The amazing thing in California and elsewhere is there is a trend to private homes to become polling places, and that opens up the quandary as to whether a private home has to be accessible. Clearly we know it's not covered by the ADA; but the argument that can be made that since it actually is a program offered by a state or local government, then it should be. But again, that's an issue that has not been litigated yet, but if the trend is towards private homes because schools are not willing to be polling places and it's more difficult for election officials, it's something again this community will have to look at in the future as to how can a private home be a polling place. A garage certainly with a gentle slope can be a place but it is an issue out there. And the progress that has been made over 16 years or in the last few years varies from state to state. We certainly have learned that Rhode Island has done a great job. They've started surveying polling places -- I wouldn't say -- about eight years ago and they've been working very hard on it. At the time the secretary of state who uses a wheelchair was instrumental in implementing surveys long with their governor's commission to make sure the polling places were accessible. He did a great deal of work working with firehouses to move polling places to firehouses with sort of temporary doors to keep the wind and rain out, but to make sure that they were accessible to folks with disabilities. And where we have left at this point, up to about 1998 and 2000, elections and a great deal of studies -- I've already told you about the G. A. O. report, about the anecdotal report that the coalition put together to present to Congress to argue about this issue, the Harris poll studied Americans with disabilities and learned that Americans with disabilities voted 15 percent below the rate of those people without disabilities across the country. So when the advocates got to go and started talking about the consequences of Florida and people with disabilities that were disenfranchised and denied the right to vote, Congress had the data necessary to really make some strong recommendations in that law that we're now working with today. I'd like to pause here and maybe Rachel, if you got any questions that sort of deal with the history and background, this would be a great time for those. >> RACHEL: Okay, I'm kind of dividing the questions into different categories. I have a handful that are about HAVA, so I will hold those. First I just have to make a comment that I loved your comment that when a law is finally passed it comes out like a sausage. I'm going to remember that one. I do have a handful of questions about accommodations and recommendations for accommodations. Let me pose them to you and let me know if you want to handle those now or if you want to wait for them. >> CLYDE: Sure. >> RACHEL: a lot of these questions have to do with where you don't yet have some of the add advanced technology, what do you recommend people can use for accommodations in the case of if there are punch cards and that's the only mechanism available or if there are lever ballot machines or Scantron ballots so when people are using some of these older but still very widely used technologies, how can people with disabilities be accommodated? >> CLYDE: Okay. Let me start by answering that, and I'm sure it might generate some questions from listeners and they can E-mail back if they want more elaboration. We'll get into HAVA in a bit, but it is important to remember that the full implementation of HAVA is not required until 2006. So we are sort of in the transition period or no man's land, if you will, as we sort of are moving from the antiquated system to the new frontier of total accessible voting machines. So what do you do in the interim? As I look at it, for folks if they have low vision, certainly a magnifier of maybe four power or eight power that should be available at a polling place for folks to use may help. When it comes to the lever machines themselves, they should -- and I understand the word should here -- of a device, a crank available at the polling place so that those lever machines can be lowered to accommodate persons who are either using a chair or are short or even low vision but you need to get closer to use the magnifier or not use the magnifier. So I think a question, if you are in award or precinct that still has a lever machine, it probably would be worth calling today, tomorrow the -- whoever is responsible for that ward to say, well, do you have the crank for those machines so you can lower them so I can vote? And sort of get it on their radar screen so they can then call the janitor or whoever they got to call to go find that crank. Because what happens in so many cases is it's kind of an extra piece of equipment and when they go to the storeroom, oh, do we need this crank? Somebody who has no idea what it's for says, oh, no, we don't need that. So it's worth making the call and demand at this point that that crank be there and that someone would be trained in how to use it. The scan type ballots I think going back to folks that are blind or visually impaired, the magnifier, it's not the best solution, but that would be a temporary solution that would help in working with those machines. For folks that have motor impairments using those two devices, frankly I don't think we're there yet. I don't think we -- you know, particularly the scan type ballots where you are required to fill in the circle or draw the line, we don't have the technology yet to make those available for folks who use them privately and independently. So at that point you're left with asking for assistance or bringing someone of your own choosing to assist you. You know, this is a good moment to even talk about this whole idea of assistance. The law does require whether we go back to the '84 statute or whether we even look at HAVA be that people with disabilities do have the right to bring someone of their own choosing with them as long as it's not their employer or a union official to assist them in the voting process. We have heard that, for folks with disabilities -- and this is a concern and we'll just put it out there so you all know -- that there might be some challenges to that in this very contentious election. So what makes sense here is that if you bring an assistant, make sure they got I.D, make sure that they are not your employer or union official, and that you know that you have the right to have someone of your choosing assist you and that your colleagues and friends who have disabilities understand that right; otherwise, the challenge could result in folks not being able to vote. >> RACHEL: Clyde, is there something that people can take with them that says that, so if they are challenged? >> CLYDE: the law itself -- probably what would be worth doing after this call is for me to send you, Rachel, the site for the law and we could probably put that up on your website. >> RACHEL: Okay, that would be great. >> CLYDE: and we could ask to make sure that some of the other resources that you have listed -- make sure that they include that law in the materials so that people know that that exists. >> RACHEL: Okay, great. >> CLYDE: This is an issue particularly for people with disabilities with developmental disabilities and it's an issue that has just come to my attention in talking to some of the colleagues in the field in the past week or so. So it's something that needs to be worked on quickly. And really for us it's a matter of information and people being empowered with the right to know that they can exercise their choice in this regard. >> RACHEL: and there is one other resource that's up there and I will -- I forgot to review those at the beginning of the call but I will at the end for folks, is there actually is an 800-number that people can call and if you're somebody who uses a TTY, then you can use relay to call them and they are actually attorneys standing by to answer questions on voting day so that might be an option if you're in that position and have to make that call. >> CLYDE: Yeah. And there is another phone number that I'd like to even give you now. If there are listeners who know today that their polling place is not accessible, there is a resource available right now that's collecting that data so that can help in any subsequent action after the election. And that is a site sponsored by the AAPD t American association of persons with disabilities and the disability vote project, and they have a special number just for this purpose. It's in the toll free number is 866-our-vote. And that translates to 687-8683. So again the total number is (866)687-8683. >> RACHEL: and we do have a link to that project on the website currently. >> CLYDE: Terrific. Before I go, any other questions, Rachel? >> RACHEL: Yes. I'm actually going through these E-mails. We have just looking at the states, I think we have somebody from almost every state. I think I only have doubles from very few states. I've got more than one person who wrote in that they are from Tennessee. I believe more than one from Kansas. Besides that, you know, we've got everything from Hawaii, Alabama, Texas, Oklahoma, Florida, Oregon, North Carolina, A. we dove a couple from New York. Virginia, we have someone from New Hampshire on, or actually two from Alabama. So we're really from all over the place. I'm not sure if that's helpful to you or not. >> CLYDE: Well, that's great. And I guess, you know, as I have suggested before from sort of talking to people and studies we've done and talking to election officials, some states are a little further along the curve than others. North Carolina committed to surveying and studying and make recommendations for accessible polling places prior to the 2000 election. So their board of elections has done a lot on this and I think they even have training materials on accessibility to polling officials that have gone through -- now we're talking three different tiers, if you will, three different elections of training their polling workers on accessibility. So I mean that is certainly one state that stands out from my experience who has really done a lot in this regard. Texas -- I alluded to it before because of some litigation involving the -- what's commonly called the El Paso case -- they have a state rules -- they passed a state statute and rules that pretty much define accessibility for any type of disability you can imagine and they even have a provision within their rules that basically says, while we don't know yet how persons that might be blind and deaf can vote independently, as soon as that technology is available, it shall be implemented. So I mean that's pretty progressive stuff and I think we got to see how the track record works out as they implement the rules and the laws that they have, but they, too, are moving ahead. Other states, such as my own, are at the survey stage of polling places and the good news is that our attorney general actually deputized the county sheriffs to go out and do the work. So no longer was it a band of volunteers or just people with disabilities, it was actually someone with a badge and they have collected that data, but they won't release it to us to let us know, you know, how bad it is; but we have a sense that a lot of work needs to be done. But having said that, what's important for states that are still at the survey stage, is that we should never let just people who are not really intimately affected or familiar with accessibility and disability do it by themselves. It's really important that this community reserve a place, advocate for, and be at the table to sort of do the monitoring and ensure that our definition of accessibility is the one that we want and not something made up by someone who doesn't really understand the issue. Because it's pretty easy for folks to sit there and say, it looks pretty accessible to me, there is only one step. And I think we need to ask for a higher standard than that. So that's kind of my tidbit when it comes to HAVA, and we're at the stage I'm sure next week where a lot of states will be doing the survey. A lot of election officials will continue the survey. And we want to get those survey results to make sure they are accurate. Any others questions there? >> RACHEL: I have another one I'd like to throw in before you go on and then I'll hold the other one for later. Basically, this question is asking if you can speak to transportation to the polls as an access of accessibility. This comes from somebody in Alabama who was having some trouble there with that. >> CLYDE: Sure. It's a great question. Clearly it's not something that any of the specific laws actually deal with, however, I want to say help is on the way, but the way you get there is I would contact the campaigns and -- early enough, and explain that you have a disability, but you need a ride to the poll, and I got a feeling in this election, that they will move heaven and earth plus to find an accessible ride for you. In addition, there are -- you know, human service organizations that do have accessible vehicles and they may in a nonpartisan basis offer rides to the polls to anyone, including persons with disabilities. I wouldn't give up, but I think your best bet, particularly with a week to go, that if you were to call one of the campaigns, you'll find that they'll be at your door rather quickly. >> RACHEL: I think you're right. Well, this person from Alabama said that their rural county transportation services -- that they were interpreting the hatch act to prohibit them from taking people to vote; but that this has now been clarified with the Alabama Department of Transportation. So it shouldn't happen anymore. >> CLYDE: Right. I think nonprofits have always been in a bind or recipients of federal or state dollars has always been in a bind as to exactly what can they do and the essential rule of thumb is that they can offer transportation, but they have to do it on a bipartisan basis or a nonpartisan basis. So my questions is if your Department of Transportation has sort of clarified that and issued that sort of directive, I think you're in the clear. >> RACHEL: Okay. I just -- I know I said I was going to let you go on, but I just got one question from somebody who is referring to the AAPD project that you just mentioned. >> CLYDE: Yeah. >> RACHEL: They just want to confirm that is calling this number a good move? >> CLYDE: I think it shouldn't be your only move, but again, the number I gave you was specific to if you know you have a location or a polling facility that is not accessible, they are collecting that data today so that it can be sort of used in advocacy efforts to resolve these things next week and after. But I wouldn't stop there. If you have a polling place that is inaccessible, I would also call the Department of Justice and let them know as well and we've been assured that the division of civil rights, particularly around disability issues, will take those calls now, and I think you have that information on the website as well, Rachel, is that right? >> RACHEL: I don't, but I certainly will put it up there. >> CLYDE: Okay. So to answer the question, is that a good move? It's not the only move, but I think we need to get more people in the battle and so I would encourage you to make both calls. >> RACHEL: Okay, sounds good. All right. I'm going to hold these other questions because a lot of them have to do with HAVA, so I'm going to let you go on. >> CLYDE: Okay. As I alluded to, after the 2000 election and the controversy that resulted, Congress felt that they had to take action and do something to address some of the discrepancies and essentially was a system that never really has had an infrastructure. It's a system -- and I alluded to this earlier -- where there never was really anyone in charge. You have a secretary of state. You may have a board of elections. You may have a ballot law commission or they are one and the same. And then when it comes down to the local officials, you may have them -- a town clerk or a city clerk. You may have a moderator. Certainly if the voting was in a school, and who was in charge of the facility and then it was the superintendent of schools, the school board, a principal, a janitor, I mean, who actually had the responsibility to ensure that polling places were accessible? Or, you know, for the overall operation of the elections. So part of the Help America Vote Act and Congress said we needed to invest some money to build an infrastructure for the process of voting to ensure that everyone can vote and that every vote counts. So that was essentially Congress' desire that everyone can vote who wants to, and that every vote counts. And a lot of my -- a lot of the folks who are listening probably know the basics of HAVA, so I won't go into too much detail, but what Congress basically learned when it came to folks with disabilities, that in their findings there was a lack of opportunity to be a full part of civic process. And some of that is this whole notion as I said earlier for those states that don't rely entirely on mail-in ballots, Oregon for one, you know, that full participation does indeed mean more than just, you know, staying at home and getting an absentee ballot or simply driving up and getting it. Full participation means, you know, standing in line, meeting your neighbors, going to the bake sale that might be happening in the foyer of the polling place. Getting caught up in neighborhood gossip, full participation in the community. It's more than that just the act of voting itself. Congress certainly found that through the GAO report and other studies that polling places indeed were not accessible and that there were inaccessible ballots, either small type, levers, that there indeed was a lack of privacy for folks with disabilities and for those with visual impairments and a lack of access to the secret ballots. So with those findings a longs with a lot of other things in HAVA that we're not going to talk about today, Congress put in place some basic requirements of things that have to happen and they put out a couple of dates that are important. The first one I'm going to talk about quickly is January 1st of this past year, some of the basic requirements of HAVA and they are small steps, but again we're involved in a movement and a process here, but this is the beginning of ultimately getting to where we want to be by 2006. So by -- in 2004, some of the things that have to occur is that information about voting and the voting process must be posted at every polling place. That stuff includes a sample ballot, instructions on how to vote, how to cast a vote and how to cast provisional ballots so it's clear to all voters what their rights are, including people with disabilities. >> RACHEL: if I could interrupt for just one second. Somebody wants to know what page we're on on the PowerPoint? I believe it's page 8. >> CLYDE: Right. I'm sorry. Let me count quickly. Yes, page 8, bottom of page 8. >> RACHEL: Okay, thank you. >> CLYDE: Okay, and indeed as the slide will suggest under No. 3, instructions for mail-in registrants and first time voters. What is interesting about this information is that simply putting it up on the wall, again, for voters who are low vision, it might not be adequate. There is no real guidance as to alternative formats, but if you were to consider ADA and the need for effective communication, simply putting up on the wall is not going to suffice. It needs to be other sort of large print handouts. I think we can make it rather cogent and solid argument that there also has to be handouts available for voters that are low vision of the same material that might be up on the wall that can't be read easily. On Page 9 we have some basic information, general information about voting rights, both federal and state laws and including information about provisional balloting. This is an interesting one because if you look at state laws, there is usually a lot of them. Everything from where the rail should be posted -- should be placed, you know, how much -- so that no one that is not a registered voter can go past a saw horse or a rail, if you will. Whether there should be a flag in the polling place, sort of that kind of detail is in the state statute, so when the election officials are preparing these posters, it would be interesting for people to know what they felt was important and what they didn't, and if they didn't think information about access and the rights of folks with disabilities and the earlier issue about the right to bring someone of your own choosing, then I think as advocates we can go back to election officials and say that they didn't do their job well enough to include all the pertinent information for everyone in the community. And then of course the -- one of the provisions in HAVA was to make sure that every state had a complaint process and so No. 5 on our list is to make sure that there is information posted to say how you can complain if you believe that your rights are violated in the voting process. Again, remembering that this is just the beginning of this effort to sort of -- to become informed as voters, so the requirement here is to make sure that all the rights are up there. A word about proceed visional voting, HAVA did require that states have a provisional voting process available for those individuals who show up and their registration is questioned, that they can indeed cast a provisional vote. You've probably heard this on the news and then you can argue about both their qualifications as a voter after the fact. This provision applies to most states, but there are states that are called same day registration states that have a pass on having to have a provisional ballot. Those states that someone can come in and actually register to vote on the day of the election and cast a vote. I happen to live in one of those and I think it's a pretty good thing. And indeed under the same day statute in most states, there are provisions that say that, you know, you can swear and fill out an oath that indeed you are the voter you say you are. You live where you are and become registered and go ahead and vote. I think again it's one of those issues we'll of to watch during this contentious election as to whether if that right will be denied by some folks or challenged and there is really not a place within HAVA to deal with the challenges under that scenario. So we'll -- again, it's an issue that we'll indeed read and learn about on the nightly news in about ten days from now. Under the January 1st, 2006, what state must do by 2006 which seems a long time away, but it really isn't when you talk to election officials because this will really be the next congressional election or mid term election. So if states have yet to started dealing with this stuff, they're going to have to start moving a little bit quicker. And this is the part that some of your questions, Rachel, are asking about which is the new electronic equipment. And indeed 2006 does provide at least one voting machine per precinct that is fully accessible to persons with disabilities. Large print, voice activation, all those sort of things -- buttons, if you will, that folks with motor impairments will still be able to mark and ensure that the adjustable height and ensure that folks can vote privately and independently. I mean -- >> RACHEL: Clyde, are there specifics actually laid out that outline what makes a voting machine accessible? >> CLYDE: That's a terrific question, Rachel, and indeed when I began the talk, I was talking about the problems with the 1984 statute, in fact, that there are no standards. Here we are today in 2004 and there are no official standards required that define accessibility. The EAC, the Election Advisory Commission, that was created under HAVA was sort of wrestling with that issue and coming out with voluntary standards on a whole host of issues in the -- of these electronic machines, including the ability to not count over votes or under votes, that kind of thing, and they are struggling with that now and accessibility standards for the machines themselves are sort of caught up in that dialogue. >> RACHEL: Did the statute or regulations -- is there any language about all the different types of disabilities and providing access for the whole range of types of disabilities? >> CLYDE: at this time, since they are not out, we don't -- there is nothing official. So it would be misleading for me to give you a straight answer yes or no on that. I know that they are considering that. I think certainly the commission has Texas statute that has outlined all types of disabilities and all circumstances and they are certainly considering that, but I think we're all waiting to see exactly what their standards are going to be; but it's not preventing manufacturers from going forward to try to sell to states equipment that they claim to be fully accessible, and that really goes back to the need for people with all types of disabilities to be at the table to be able to review and make recommendations of their particular state or county as to what's going to work for them. It is a little bit free flowing right now and I do -- and what we really want to guard against is having a state or county buy a lot of equipment and then find that it really doesn't serve our needs. And then we're sort of back to where we were four years ago or six years ago. And the only way to guard against that is to actually write letters and get to the table and have some input on what type of equipment the states are going to buy. >> RACHEL: Okay. Do you have any sense of when those guidelines will come out? >> CLYDE: I frankly am not sure. My guess is they are going to wait until after this election and see what problems develop to figure out whether they need to change it to reflect some of those problems. >> RACHEL: Fair enough. >> CLYDE: This is sort of continuing quickly, some of the other things that states must do, they must provide voters with an opportunity to check for and correct errors in balloting. The idea that maybe you have someone you voted for two candidates for one particular office and so that's -- again, there needs to be some standards in the equipment as to how that's going to occur. Again, we've got more work around provisional balloting that I've already talked about with the exception of same day registration, and some concern as to whether that's going to become an issue with a challenge to voters next week. So again, what is HAVA trying to do? It's trying to ensure that individuals with disabilities have full participation from all aspects of the electoral process, whether it's registering to vote, accessing the polling place, and voting itself, the actual process, and again, for voters that are blind or visually impaired, the idea to be able to vote privately and independently is a giant step forward rather than either having to bring somebody of your own choosing, which is fine, but you're always left with the idea that did this individual actually vote the way you wanted to. More often than not that's the case, but in such a contentious time, I'm sure there are households out there that are equally divided on the big issues of the day and how will you really know, particularly if you sort of bet on who is going to clean the house if the other candidate wins. >> RACHEL:A lot of switching of the yard signs in the middle of the night. >> CLYDE: So this idea of bring something one of your own choice certainly is an improvement over the past when you were required to show up and have a representative from each party sort of come into the' polling place with you and in a tiny polling place where you might have someone from the Democratic side and the Republican side and if you had a dog, it was a great event, a little bit crowded and got quite loud as someone was saying is that who you really want? Often could be overheard on the other side of the wall by other voters. So the right to privacy was often violated for voters who were blind or visually impaired. I think this community is looking forward to the full implementation of HAVA. And I've sort of alluded to this, what states must do and the state must develop a plan. And it must include, you know, the requirement is it must include the communities affected and so that does include the disability community. So if your state plan -- if they are only talking to other election officials, then you have a problem and the law says you should be at the table and you just need to argue and fight to get there. And finally, the issues around -- the questions remain regarding this whole idea of whether there needs to be a verified paper trail after the vote because there is some suspicion about electronics and Congress will deal with that, but it doesn't mean that states are exempt from moving forward implementing the provisions of HAVA in the meantime. So again, don't be discouraged that if you hear that someone is not doing something because of that question around the paper verification, because right now the law of the land is HAVA. Finally, I alluded to this before, before I close out a little bit and take some more questions, but HAVA does not state in terms of the format or the information to be posted, but you saw the argument of using the ADA and 504, things have to be in accessible formats for voters with disabilities and it's pretty strong to make that point if it's necessary. And lastly, HAVA does not exclude any of the rights that we might have under the ADA or under Section 504 or even under the Voting Accessibility for the Elderly and Handicapped Act, HAVA and these requirements are in addition to, and the ability to enforce HAVA will not arrive until 2006. So we can't just stand and say you have to comply with HAVA today, because there is provisions in the law that really exempts the ability to use that statute to enforce it until after 2006. In terms of help on election day, we sort of gave you an 800-number, but before I forget, I do want to remind you that the protection and advocacy system -- you have a P. and A. in every state of the country and if you have a problem, and they receive some HAVA dollars, and after its passage will work with this community to educate voters to get involved in the state planning process of HAVA and you should contact them if you have a problem in your jurisdiction. That's another resource available to you. >> RACHEL: Okay, Clyde, I will put a link to the directory of all of those protection and advocacy centers on the website. Can you explain to people what a protection and advocacy center is? >> CLYDE: Sure. A protection and advocacy center are public interest lawyers who do disability work. People might be familiar with legal assistance or a public defender which does sort of criminal defense work for persons who are indigent or public assistance that does a lot of civil work to folks that are low income or poor. The P&A system is a system that there is one in every state. It's been designated by the governor in each state to sort of protect the rights of persons with disabilities and do advocacy for this -- our population. They are often known as the disability rights center or the disability advocacy center so they don't all go by P&A. If you looked under that in the phone book you probably wouldn't find it. but if we can put that directory on the website, that might be useful to folks. >> RACHEL: We actually had a question about the P&A, about what specifically their role is with HAVA and you mentioned that they are getting some money. Do you know what that money is for? >> CLYDE: Sure. The P&A's didn't get a lot of money, but they did get some to sort of support educational efforts, outreach efforts, and some advocacy for folks with disabilities around HAVA and its implementation. There certainly were some prohibitions in terms of they can't use HAVA dollars to litigate anything under HAVA, but they can certainly be a resource to ensure that your rights are protected. And so I do encourage -- in fact, earlier the question was what happens if you know of an inaccessible polling place and I gave you those 800-numbers. I would add this to the list as well to make a third call so that we can get the P&A informed of a particular polling place that's not accessible. >> RACHEL: Yes, and I did -- I did actually get an E-mail message from one of the P&A's sort of asking us to do that and let people know that they really do want to get these calls. >> CLYDE: Great. >> RACHEL: That's specifically from Kansas City, Missouri. >> CLYDE: So if there is anyone out there from Missouri and you know of an inaccessible polling location, give them a call. And I guess I'd like to close that -- well, I'm at the point in the presentation to talk a little bit about temporary solutions. What do you do -- today is Wednesday and the election is Tuesday. What I first want to say is any temporary solution does not excuse the requirements of full accessibility or full compliance with HAVA. So I worry in sort of describing temporary solutions as to -- for election officials not really familiar with all of what we have to do, that if they do this then they are off the hook. So it's up to us to really keep their feet to the fire because someone else will. Oh so around physical access, clearly if there is an inaccessible location, the first remedy is to move it. Now, I'm not sure if there is time to do that given governing of state laws where there is usually a time frame when a municipality must declare a site as a polling place, but if there is and then there is one course of action to take. The second course of action is obviously if it just takes a temporary ramp, a temporary safe and secure ramp that could be installed for a couple hundred bucks by the municipality to make it accessible, then we can advocate and ask for that. But again, getting up the ramp -- I guess you've got to sort of make sure the doors are wide enough and the landings are there to turn and the path of travel is clear to get to the voting site. So assuming -- >> RACHEL: If I can just -- to interject, along those lines, we do have -- your suggestion we have a link on the website to the ADA -- I'm blanking -- help me out here. We have the checklist. >> CLYDE: Right, the Department of Justice' accessible voting place guidelines. Sure and that's one place to look for some guidance in terms of things that can be done, widths and measures, that kind of thing, to make a polling place accessible. >> RACHEL: Right. You were talking about we need to make sure we have enough room for turning around, et cetera, so if you want to know what that actually means, you can find those specifics there. >> CLYDE: Right. But assuming, let's say, that you need the temporary ramp and the door is wide enough, then the next thing in terms of temporary solutions is to look at the path of travel to make sure that the hallway is clear of loose rugs or obstacles that can easily be moved, whether it's a trash can or a fire extinguisher or something like that so that someone with a disability or using a wheelchair can easily go down the path of travel and get into the voting area itself. Obviously moving a trash can or something doesn't really cost the municipality anything and it's usually an educational piece that they need to be informed that they need to do that. On that same token, in terms of parking, a temporary easy solution if there is no paved, well signed parking out there, then what could easily be done is temporary signs. You know, hand drawn, if you will, with sort of street cones, bright orange or yellow, you know, construction cones to designate sort of accessible parking areas for persons with disabilities. And have those located as close as possible to either your temporary ramp or the accessible entrance. So that is sort of my advice on the physical access issues in and of themselves. Again, we've already talked a little bit about the idea of visual impairments and some magnifiers, four or eight power, to assist in the voting privately and independently once they are inside. And for persons who are deaf or hard of hearing, you know, certainly note taking for election officials or bring a pad of paper with you and a pen to be able to exchange the notes with the moderator or whoever to sort of indicate your name and address so that you can get your vote. That's pretty low tech and I know folks that are deaf and hard of hearing probably use that -- take that for granted, but it's just a simple reminder that by bringing that it is a means of communication this will probably serve you well and it's going to be a very contentious day. So is those are pretty straightforward stuff. I would be glad to answer more questions, Rachel, if you happen to have any. >> RACHEL: Okay, yes. And before I pose a couple of questions, I did have some folks who said, hey, you didn't mention my state. So I would just like to run through again the states that are represented: We've got folks from Alabama, Alaska, Florida, Hawaii, Kansas, Massachusetts, North Carolina, New Hampshire, New York, Oklahoma, Oregon, Pennsylvania, Tennessee, Texas, and Virginia. And I hope the captioner was able to keep up there. Thanks, Marie. I just wanted to give you those in case there was -- if there were any other state laws you wanted to refer to. >> CLYDE: Sure. I really don't at this point. I think sort of the advice in terms of practical solutions might work in most locations, but I think the final word I will say and then I will go back to answer questions is that this is an issue that can't be resolved in a week before an election every four years. It's really great that everyone is on the call and everyone is interested. I think it's something that we have to keep chipping away at to be successful. We've certainly made progress in the 20 years since the '84 statute, but we have a long way to go and it can't just happen every four years, one or two weeks from the election. So I really encourage everyone even after next Tuesday to stay on this issue so we can really make it happen for everyone. >> RACHEL:. yeah, I definitely echo that and we did get an E-mail during today's session asking if we can do it in between elections so we will keep that in mind. I did get an E-mail from somebody who wanted to see if you could comment on another requirement for January 2006 under HAVA is for each state to have a centralized voter registration system. >> CLYDE: Right. I mean, I really sort of focused just on sort of the pertinent aspects of the law that directly affected folks with disabilities, but it is important to realize that the entire statute does affect folks with disabilities and this is just one of the requirements within HAVA is that there would be a statewide voter registration centralized electronic -- that's the requirement in the law and clearly election officials like that and they want to make sure that they put the resources into that. The consequences are that there will be less dollars available for some of the accessibility stuff that we're talking about. So, again, it's one of those things that we need to sort of be at the table and to sort of advise and assist to make sure that our stuff stays near the top of the priority list and we don't get shuffled off as an afterthought or something to be dealt with later. But the election officials clearly think the centralized is important and a priority and so we need to at least say yes we agree, but don't forget us. >> RACHEL: Right. Okay. We have a small handful of questions that have to do with lawsuits, and if I can, I'll just try to kind of summarize the gist and let you comment. There was a notice that there have been a number of lawsuits about privacy issues for people who are blind being able to vote privately. There is some interest in if you think that that's really led to some change, and kind of a question about what other lawsuits have there been, what sort of precedence set about accessible voting? And then finally, do you think that the courts and specifically the Supreme Court, might actually treat this issue favorably because it's a question of access to voting and there is sort of a parallel drawn here to -- >> CLYDE: the (Inaudible) case. >> RACHEL: the recent Supreme Court case, Tennessee v lane. >> CLYDE: There has probably been litigation out there that I'm not going to refer to but a couple of cases that do stand out and worth mentioning. I alluded to a case in the late '90's, the El Paso case out of Texas. That case was based on this whole idea that voters who are blind or visually impaired could vote privately and independently, and while the outcome ultimately was not favorable, but it was -- the outcome didn't really deal with the fundamental merits of that as much as the whole idea of who was responsible, but the consequences of that lawsuit and the advocacy effort by advocates in Texas was that, as I alluded to earlier, that a state law was passed, regulations were created that really defined accessibility well before the 2000 election and those advocates should really be commended for their hard work and innovation as they were attempting to find ways to solve the problem of voters that were blind or visually impaired, including a system that dealt with using cell phones, telephones, to get folks to vote privately and independent. It was really creative. So to answer the question in terms of has there been any progress? Certainly that's a great example of advocacy, litigation and just hard work and creative thinking that started to really bring attention to this issue. Another case was in Michigan, but unlike -- and I'm trying to think here how it worked out -- the Texas statute which helped was sort of this idea of a secret ballot, which was embodied in state law. And in Michigan -- the Michigan litigation didn't have that same hook of the requirement of secret ballot. And so that one was not favorable to the voters who were blind or visually impaired, but what that did do is they did bring this issue to the light of day for secretaries of state and election officials to talk about at conferences and at meetings and realize that, you know, it had to be dealt with at some point. So having the 2000 election gave advocates the opportunity to educate and use the knowledge from that litigation to really sort of leverage HAVA to sort of make those provisions happen. So that's really, again, the question was was there progress? Yeah. Are we there yet? No. But the actual movement using that litigation to get us where we want to be does exist and that's a positive thing. There has been other litigation in Philadelphia around their acquiring machines that were not accessible, and that has been -- I'm sitting here trying to remember whether it has been resolved or not -- I think it has been kicked up to another level of the state system. So I guess I really can't comment on it specifically, but certainly the -- >> RACHEL: It might be something to watch. >> CLYDE: Yeah, something to watch. And finally, the last part of that about the lane case, I would agree with the questioner that I think that given sort of how the courts separated the lane case from earlier decisions in saying that people had a right to access the courts because it dealt with a fundamental right around being able to represent themselves, basically, that voting is on that same par and I do think that ultimately if we have to go there, that we will find that that case will be good precedent for us. >> RACHEL: Great. Great. Let's see, I think I have one other question -- you've answered a number of questions at once. Do you have any specific electronic voting machines that you know of that you would recommend? >> CLYDE: I've seen a number of them. I'm trying to think who was -- and I've had an opportunity to have the vendors come to my sort of office and sort of display them for staff. And since I'm sitting here and I can't recall the name of any of them right now, I think we're getting there. I am going to Dodge this question and not make a recommendation. I would encourage you to contact the vendors and have them come and show them to you because I don't want to be the one that ultimately decides. I think your listeners need to be the ones that need to figure out what's going to work for them. So maybe what would be helpful here -- I guess I would ask Rachel -- we might be able to post, in addition, sort of a list of vendors and contact information and all of you who are listening today organize an opportunity to have them come. They are sales men and love to come and show their wares. And you get a better sense rather than my telling you which one I liked. >> RACHEL: I think that kind of gets to our last question which was, you know, any more tips for what we can be doing? >> CLYDE: Well, let's walk through the process again. Some of the tips I'll start with is vote, get your friends to vote. I won't say vote twice, but at least vote once. Be present. Get involved with a campaign. Be visible so that our community is seen as a constituency and that we really want to participate in the electoral process and all parts of life. You know, if you drive and you get to the polling place, you know, it's almost like all we need to do is think, okay, is there parking? If there is not, then let's talk to election officials as to how we can do a temporary solution. A temporary sign, get some construction cones out there so that that accessible parking is available. If you get a ramp -- if you got steps and you need a ramp, you need to tell them now so that they can go to try to find one in a week. It's not an impossible task. They are required to do it, but they may not know they've got to do it and it's up to us to tell them. Sad but true, but that's still where we are today. Make sure the hallways are clear. Tell election officials to make sure the hallway is clear and roll up the rugs and make sure no one gets stuck in high carpet piling. And ultimately, make sure that there is a booth that -- that is at a different height for folks when you go inside that's set away that offers privacy from everyone else in the room if you can't get walls around it, but I mean that's sort of another temporary solution. Make sure that there is a place a way from everyone else so that voters with disabilities can vote if they need to sit in a chair or use a wheelchair to get in. Again, the magnifiers, note taking, simple stuff, but I think that might get us through next Tuesday and then we can still argue about the equipment for the next two years. >> RACHEL: Okay. Sounds good. Okay. Well, Clyde, thank you so much. You really have covered an incredible amount of information in our short time together. You've really given us a good sense of the history of the law and where we are today and where we're headed hopefully and in addition to really some of the legal talk, a lot of help on the practical front of what to do now as everybody really prepares to vote on Tuesday. So thank you. I really do appreciate it. And I know that folks from all these states appreciate it. >> CLYDE: It was great, Rachel, and you know, I think one of your listeners wants to do it between now and the next time around and that's something we should talk about. >> RACHEL: In order to close up, I just wanted to repeat quickly some of the resources that are on the website or will be on the website. We will be -- let's see -- we have the AAPD link and that link has one of the 800-numbers that you can call if a website -- if a website -- if an election site is not accessible. I understand that that link is down right now so we will repair that. We will be adding a link, giving you the 800-number, the voice and the TTY number, for the Department of Justice ADA line so you can call them. We also will add a link to the actual law for you; and we will add a link to the protection and advocacy system website so that you can find -- you can find your state's protection and advocacy center. You will also see already on the website there is information about the election protection hotline. You can review the PowerPoint that Clyde went through with us today. You can see information that was sent out by NCIL, the National Council on Independent Living, which gives great tips for people with disabilities as they go to vote. There also is the ADA checklist for polling places that was put out by the Department of Justice, and I believe there might be one other thing up there. So forgive me if I'm leaving one out, and if possible, we might also put up a link that gives you information about some of the vendors out there for the electronic voting machines so you guys can check into those. So, again, thank you, Clyde. I want to remind people that today's webcast will be archived. That means that you can come back and listen again as well as read a transcript from today. You can check our website for additional webcasts, and I'd like to thank some additional parties who have made today possible. I'd like to acknowledge NIDRR who funds your host for today's program, which again is the Disability Law Resource Project. And the Disability Law Resource Project is one of ten ADA resource or education centers around the country, and our 800-number is on the website and that number is 800-949-4232 or you can E-mail us at the E-mail that you guys have already used today, and we do answer questions about the law and can answer your questions. And finally, on others here at ILRU who have made today possible include: Marj Gordon, Sharon Finney, Dawn Heinsohn, Vinh Nguyen, Rob Dickehuth and Marie Bryant. So, again, thank you everybody for joining us today. Thank you, Clyde, and hopefully we will bring back Clyde again soon and we will continue our discussion on this important issue. Thanks a lot. Have a great afternoon.