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You're listening to the Disability Law Lowdown, show number 14.

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Jacquie Brennan: Welcome to the Disability Law Lowdown. This is your host, Jacquie Brennan. Today's podcast is an overview of the Help America Vote Act, HAVA, and related voting issues related to people with disabilities. Our reporter, Pat Going, who is with the DBTAC Rocky Mountain ADA Center, is going to be interviewing Faith Gross, from the Colorado Legal Center. Faith is going to trace the evolution of HAVA, from the basic program accessibility requirements of Title II of the ADA to the specific legislation passed in 2002 that requires all states to improve their voting processes. This includes a requirement for accessible voting machines and disability access to polling places.

I hope you enjoy the podcast, and with that, I'll turn it over to Patrick.

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Patrick Going: Good morning, Faith.

Faith Gross: Good morning, Pat.

Patrick: We are so pleased to have you here today. We are going to talk about HAVA, Help America Vote Act. And I understand that this is something you have been very involved in. And I'm curious, first of all, how does the ADA relate to the Help America Vote Act?

Faith: Well, the ADA actually does not directly relate to the Help America Vote Act, In fact, I don't think that HAVA even mentions the ADA. But I'd like to talk about how the ADA addresses voting for people with disabilities. Under Title II of the ADA is where we would find elections. And under Title II, elections are required to be programmatically accessible, but there are no requirements under Title II of the ADA for voters to be able to vote privately and without assistance. And there are also no requirements for every polling place to be accessible for voters with disabilities.

Patrick: So how did we, all of a sudden, find this accessible voting issue to be so important that gave rise to HAVA?

Faith: Well, actually, HAVA was passed by Congress following the 2000 Presidential elections and all the different election administration problems that were identified. Everybody remembers what happens in Florida, but Florida was not unique in terms of some of the problems with election administration. So Congress began working on election reform legislation and in 2002 passed the Help America Vote Act.

Patrick: And this was passed by general consensus?

Faith: The purpose of HAVA was to reform election administration and establish consistency in how elections for Federal races are administered. One of the things tat HAVA did was shift responsibility from local jurisdiction such as counties or townships or cities, to a centralized state-level position. In most states that would be the Secretary of State.

Patrick: So I understand HAVA in it's completeness I quite broad. What are some the specific areas that relate directly to people with disabilities? Faith: First of all, let me just give you some background. HAVA includes requirements for improving access for voters with disabilities due to some pretty effective and intensive advocacy done by some key members of Congress and also some key and effective folks in the national disability community. As I mentioned, prior to HAVA, there were no requirements that people with disabilities be able to have the opportunity to vote privately and independently. There were no requirements that every polling place for Federal elections be ADA compliant. And many voters with disabilities, particularly voters with print disabilities, chose to vote by mail or be absentee ballot. So VHAVA does require that as of 2006, every polling place in the United States for Federal elections, have an accessible voting system available that would enable voters with disabilities, including voters with visual impairments, to be able to be able to vote privately and independently.

Patrick: And we're making progress in this regard.

Faith: I'd say we've made significant progress in this regard. Even the last hold-out state, which was New York state, is now offering accessible voting systems in all their polling places for Federal elections. That has only happened in the last couple of months.

Patrick: So, some of the additional details for accessible polling places – and I've heard you say that this would entail not only the physical issues, being able to park and an accessible route. But things within the polling place itself. Could you expand on that a bit?

Faith: Actually, this is an interesting issue because nowhere in the language of HAVA does it require that a polling place be accessible or be ADA compliant. Section 301 of HAVA requires accessible voting systems. So in, I believe it was 2005, the state of Mississippi sent an inquiry to the US . Department of Justice, voting rights section, asking if they could be exempt from the requirement to provide accessible voting in every polling place for Federal elections. And, by the way, they were unable to make all of their polling places ADA compliant and could they get a waiver. The Department of Justice responded with an opinion letter that said essentially, that although HAVA did not specifically require each polling place be fully accessible for people with disabilities, it did require that each polling place have an accessible voting system, and if you couldn't get into your polling place to use the accessible voting system, what was the point So therefore, every polling place for Federal elections by 2006, must be fully accessible. It's up to each state, the leading election official in each state, to determine how that would be implemented. In Colorado, my state, the state legislature passed it's own version of HAVA, which requires that every polling place in the state for any election be ADA compliant and that every polling place have an accessible voting system.

Patrick: So, as you have gone around the state, do you find that there still is confusion with the various county election officials and how can we, as listeners, help this process? And this might also entail what are some of the good resources? So that was a multi-part question...

Faith: It's a multi-part question, but it's a great question. First of all, yes, there's lots of confusion about what actually constitutes an accessible polling place. And I have discovered that many county election officials operating in good faith believe that they have effectively conducted surveys, they have identified their barriers and have come up with plans to remove those barriers to make their polling places accessible but have missed some pretty basic accessibility requirements or barrier removals.

Patrick: Is there money available, Faith, to help remove these barriers?

Faith: Yes, one of the things that was authorized by Congress under the Help America Vote Act is the Accessibility Improvement Grant Program. These are Federal dollars that go the chief election official in the state, again usually the Secretary of State, and the Secretary of State then awards those, or administers that grant money to the local jurisdictions for specific improvements in their polling place access. There have ben payments every year since 2004, I believe. We do not know how many more years the Federal government will be awarding this grant money to the states. I'm hopeful that it will continue for several more years.

Patrick: Would you reference some of the more valuable resources that you're aware of, including any web sites, because I think for many of our listeners, this will peak their interest and they're going to want to pursue some additional information. So I heard you say that typically, it resides within the Secretary of State's office in the state itself, but what are some other resources that people can go ahead access?

Faith: Well, one of the things that happened that's near and dear to my heart is that it created the newest protection and advocacy program, which we call PAVA, which is Protection and Advocacy for Voting Access. In Colorado, I administer that program. And I have a counterpart in every state and territory so there are, I think 56 or 57 accessibility to voting programs in the country. That includes all the territories. And our program is authorized under Section 291 of HAVA. We're also funded under the Help America Vote Act and our funding for the protection and advocacy programs comes from the administration for developmental disabilities withing the Department of Health and Human Services. You can, if you want to, locate your PAVA, again, Protection and Advocacy for Voting Access program in your state. You can go to our national association's web site, and that's the National Disability Rights Network and the website is www.ndrn.org/aboutus/PA_CAP.htm.

Patrick: And also, if you're unable to get that URL, don't hesitate to call your regional ADA Center, your regional DBTAC, and they should be able to assist. Any other resources you would want to mention before we close here?

Faith: I would say that around the country, a lot of Centers for Independent Living have been engaged in working with their local election administrators around polling place accessibility. The National Federation of the Blind and the American Council of the Blind have been very very interested in HAVA implementation around the county and of course the American Association of People with Disabilities has their disability vote program and their Vice President, Jim Dixon, has been very very instrumental in first of all, getting HAVA, the disability requirements under HAVA, passed and they with implementation.

Patrick: That's excellent. Well, Faith, we're just about out of time here. Thank you so much for joining us today. This is such an important subject and this year's election is creating so much interest and we just can't encourage people enough to get involved and get informed and to really participate and this is certainly an important component of making all of that happen. Again, thank you for your passion in this subject and quite frankly all you have done for the state of Colorado related to the ADA and disability. And I think that that concludes us for today. Any last words?

Faith: My last comment is to really encourage people with disabilities to not only vote but to be visible in voting so that elected officials and candidates running for office know that we vote and take our votes seriously. One of the reasons that we have the disability requirements in HAVA is because historically, people with disabilities eligible to vote have voted at a rate that is approximately 20% lower than the general population.

Patrick: Well said. Again, thank you so much. And that concludes our podcast for today.

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Jacquie: Thanks for listening in today to the Disability Law Lowdown podcast. I hope you'll join us next time. And don't forget, you can always find the Disability Law Lowdown on our website at disabilitylawlowdown.com. Thanks for listening.

The Disability Law Lowdown is brought to you by the Disability Business Technical Assistance Centers, which are a network of ADA Centers that provide training, technical assistance and materials on the ADA and other disability related laws. Funding for the Centers is provided by a grant from NIDRR, the National Institute on disability and Rehabilitation Research. You can subscribe to the Disability Law Lowdown at our website at DisabilityLawLowdown.com or on iTunes.



The Southwest and Rocky Mountain ADA Centers are part of a program of Independent Living Research Utilization at TIRR - Memorial Hermann in Houston, Texas, and is funded by the National Institute on Disability and Rehabilitation Research. If you have questions about disability law or would like to request materials or training, please call 1-800-949-4232. This podcast is protected by the Creative Commons Attribution Non-Commercial No-Derivative-Works 2.5 License. For more information and transcripts, visit www.ada-podcast.com.