This is being provided in a rough-draft format. Communication Access Realtime Translation (CART) is provided in order to facilitate communication accessibility and may not be a totally verbatim record of the proceedings.
Charlette Lanvers: I know this is a small group, so at the outset I should say I'm here representing DOJ on behalf of the presenters who supposed to be here, Elizabeth Johnson and Richard Delheim. Elizabeth Johnson had a deposition and Richard had a family emergency. I will try to -- as soon as I put the presentation in presentation mode it killed the captioning. I'm sorry if that is ok everyone. Is that ok? So today we are talking about Federal law that's protect the voting rights of individuals with disabilities. I'm sorry.
Just going to have to work it like this. We will be talking about a variety of laws that the Disability Rights Section enforces and that the voting section of DoJ enforces they are the ADA the voting rights act, the voting accessibility for the elderly and Handicapped Act, the National Voter Registration Act and the Help America Vote Act. Title II of the ADA requires state and local entities to ensure that people with disabilities have an equal opportunity to vote and this applies to all voting programs and all elections by all voting programs we mean absentee. We mean in-person, early voting anything and everything the voting rights act requires election officials to allow a voter who is blind or who has another disability to receive assistance, from a person of the voter's choice other than an employer or a union agent or officer.
The VRA also prohibits conditioning the right to vote on a citizen being able to read or write, attaining a particular level of education or, passing an interpretation or task. The voting accessibility for the elderly handicap act requires accessible polling elections in Federal elections for elderly individuals and people with disabilities. There are where no accessible location is to serve as a polling place, voters must be provided an alternative on election day. The National Voter Registration Act aims among other things to increase the historically low registration rates of persons with disabilities.
It requires all offices that provide public assistance or state funded programs, that primary serve persons with disabilities to also provide the opportunity to register to vote. And the Help America Vote Act requires jurisdictions responsible for conducting Federal elections to provide at least one accessible voting system for persons with disabilities at each polling place in Federal elections. The accessible voting system must provide the same opportunity for access and participation as offered to other voters including independence and privacy. So if a voter is having to seek assistance from a poll worker, to cast their ballot it is not private or independent.
Now jumping back to the National Voter Registration Act it requires dates to require registration opportunities for voter registrations to be accessible through the mail or DMVs and when people a plied for services through public assistance offices and disability services offices providing state funded programs. Section 7 of that law requires states to designate as a voter registration agency all offices providing public assistance and all offices that provide state-funded programs primary serving persons with disabilities.
Each applicant for services including renewals and address changes must be given an opportunity to register to vote. More importantly assistance in completing the form. The agency or office forward completed applications to the appropriate election officials. And this is supposed to apply to in-person and remote transactions um, so -- under the ADA, public entities are required to ensure that voting related materials so applications for voter registration or absentee ballot applications need to be communicated to individuals with disabilities as effectively as it is communicated to in individuals without disabilities if undue financial and administrator burden or if it amounts to a fundamental alter ration.
And even in an instance where it amounts to undue burden or a fundamental alter ration, the entity must nonetheless take any other action to ensure to the maximum extent possible individuals, with disabilities, receive the benefit or services provided by the entity. Increasingly in the context elections municipalities or county entities put information about the voting program on their web site. At times it includes where a polling place is, it can also include voter registration or absentee ballot applications. DoJ recently published a notice of proposed rule-making in NPRM on accessibility of web information and services of the state and local entities. And it proposes a technical standard for like entities to add here to at WCAG 2.1 level AA.
So that is the technical standard entities need to add here to, in order for their web site to be considered accessible in November, the department issued four letters of findings of Texas counties for vie letting Title II of the ability to provide accessible election web sites Colorado County, Runnels and Smith and Upton the LOFs are available these election sites of these four counties provide information where when to vote, including registration, identification requirements and voting information for people with disabilities the department found that the web sites are not accessible to -- for individuals with vision disabilities with dexterity disabilities being able to grasp a mouse, use scene reading technology two access the information on the -- web sites. The voting section had a few recent cases and SOIs, involving absentee voting assistance to voters with disabilities.
One of those cases Carey v. Wisconsin Election Commission involve a case where the Wisconsin Supreme Court where the Supreme Court held a state law that prohibits -- ballot return assistance for absentee ballots delivered in person to municipal clerks. The Court expressly declined to address, whether Wisconsin law permits ballot return assistance for absentee ballots returned through mail. The Wisconsin Election Commission would not take a clear position about whether ballot return assistance was permitted and admitted that several municipalities in Wisconsin had advised their voters that they could not obtain any assistance in returning an absentee ballot by mail. Wisconsin defended itself by arguing that they have a state law that gives municipal clerks the ability to make reasonable accommodations when feasible.
Ah, DoJ's voting and Disability Rights Sections filed an SOI, a Statement of Interest in that case and essentially, argued that section 208 of the voting rights act is very clear that ballot return assistance is permitted in almost all instances. That the existence of a state law that provides considerable discretion to municipal clerks to provide accommodations whenever feasible is a very squishy law that does not supplant the applications of the voting rights act or the ADA.So in the context of absentee voting and the ADA, public entities need to provide voters with disabilities an equal opportunity to vote by using the same methods to vote as voters with disabilities. So an example is that restrictions on the ability of the voters with disabilities to use assistance in returning an absentee ballot may violate the ADA.
As I mentioned earlier the ADA applies to all voting programs, so an absentee mail in voting program is a separate entity and municipality or a County can't say well, because you could come and vote in person, we don't have to make the this up the other voting program available to you public entities must also make reasonable modifications to policies, practices and procedures for voting when necessary to avoid discrimination. So an example of what that might be could be providing curbside voting to voters with disabilities or offering a voter with a disability a chair to sit in a long line as individuals are waiting to vote. The department recently -- the disability rights section filed two Statement of Interests involving absentee cases. The first is the one I mentioned, Carey v Wisconsin elections commission.
I should say in that case, the Court essentially converted the motion for preliminary injunction into a motion for summary judgment. And he ruled exclusively on section 208 of the voting rights act. He did not -- he did not address the ADA in part because he felt that he did not have to. And section 208 is so strong on the law that anyone who has a disability and requires assistance can have that assistance. And we have been told that, there are still some problems in Wisconsin, it is I think it is, the state that has the most voting jurisdictions I think on the order of 1800 or so, because each municipality is its own voting entity there are certain clerks who are still sort of taking the position that ballot return assistance is not permissible.
So we continue to monitor what is happening in that case and then, recently we also filed a Statement of Interest in Re Georgia Senate bill 202 where effectively Georgia is attempting to apply the program accessibility requirements of the ADA to suggest that if part of the voting program is accessible to people with disabilities that is sufficient. That just because it is harder for people with disabilities to vote in certain contexts does not mean that they are being denied meaningful access.
We clarified that all voting -- [laughter] -- all voting programs are to be assessed independently. Because our law says it is about access to benefit of the program and so, if a voter without disabilities has access to all of the voting programs it is a violation of the equal opportunity provision to not extend that to individuals with disabilities as well. The state also seemed to argue that reasonable modifications and the obligation to provide equal opportunity or the same thing. And we clarified that they are distinct obligations and can manifest in a variety of ways. Sorry this is not -- so, earlier I highlighted these in providing more in-depth information about them.
Help America Vote Act requires that every polling place has a voting system that is accessible to individuals with disabilities, including nonvisual accessibilities for individuals -- who are blind or visually impaired in a manner that provides for the same opportunity for access, and participation including privacy and independence as for other voters and at least one direct recording electronic voting system.
Or other voting systems equipped for individuals with disabilities at each polling place.
Functionally, this means that the accessible voting machine needs to be fully operational for the individual who has a disability. The headphones need to be plugged in, the machine needs to be turned on. A lot of this probably seems very obvious but at times, um, in the land of polling place accessibility, you often have election judges who are trained in a very sort of cursory fashion. And they don't always understand the ins and outs of these accessibility obligations so at times, you may go to a polling place and find a machine that is in working, that hasn't been turned on and assessed prior to election day. So individuals are unable to vote.
HAVA requires at least one voting system for people with disabilities and at each polling place and voters with disabilities have to have the same opportunity for access and participation including privacy and independence. Section 208 which was at issue in the Carey v. Wisconsin Election Commission case says any voter who requires assistance to vote by reason of blindness or any disability that read or wrote, may be given assistance by the person of the voter's choice other than the voter's employer or agent of the employer of the voter's union. Section 208 protects voters with disabilities and voters with literacy or language limitations, it allows these voters to have assistance in casting their ballots at a polling place from anyone they choose.
The voting accessibility for the elderly handicapped act which was passed in 1984 I think, establishes requirements to improve voting accessibility for persons with disabilities and elderly individuals during Federal elections. So this requires polling place accessibility, accessible registration facilities, printed materials on display in large print font. Big displayed at permanent registration facilities and polling places.
And then information about telecommunication devices for the hearing impaired. It also, bars jurisdictions from requiring voters with physical disabilities to provide notarization of absentee ballot materials subject to limited exemptions. The ADA applies to all elections -- Federal, state and local. And it applies to all in-person voting opportunities in those elections including early voting, in-person absentee voting, same day voter registration and voting and election day voting.
Charlette Lanvers: In-person voting under the ADA.The -- voters with disabilities have certain rights so these include access to their polling place and ballot drop box. We currently have a case against LA County, it has vote centers which means any registered voter in LA County can vote in any voting center but we have identified barriers to access at their voting centers. It also requires access to an accessible voting booth, this means a booth at a lower height that can accommodate a voter who uses a wheelchair to vote independently and privacy and in a manner that is equal to that afforded to others.
Ensuring that the person with a disability has effective communication in the voting process. So this includes the ballot and other voting related information such as check-in materials and instructions for using a voting machine. That individual would be provided modifications to policies and practices and procedures this includes offering a chair to an individual with mobility impairment. Years ago, I worked on a case involving polling place accessibility in Harris County Texas, a poll worker told me that the election judge at the municipality had prohibited her from offering assistance to a voter with Parkinson's who could not press the button on the voting machine.
And she recounted in detail how this individual had tried to vote for an extended period of time and how she wanted to help him but she had been told that she could not touch the voting machine. Again, like, it is a perfectly acceptable accommodation to ask for help in that sort of instance. I think a lot of the time poll workers are not provided sufficient training on how these laws may affect voters with disabilities and other examples are being accompanied by a service animal and receiving assistance or support from a person of their choice or a poll worker this individual's case. A few points we have a lot of resources about how these laws apply.
So I would encourage everyone to go on our web site and access any of this information. It is also all available in the PowerPoint which I think everyone has access to but we have items on the ADA and other laws that we talked about today protecting the rights of voters with disabilities. There are a few more. So we also have guidance concerning Federal statutes effecting methods of voting an ADA check list, for polling place accessibility. I know a lot of protection and advocacy systems use this in their polling place accessibility work.
Then the solutions for five common ADA access problems there are other information, that is available at these sites voting -- the voting sections site and ADA.gov. We always encourage advocates and anyone in the community to file a complaint if they observe an issue that they think could be a barrier to voting. We rely on advocates and individuals in the community to inform us what is actually happening on the ground. And then -- questions or comments and if anyone is interested in more information about this, the original presenters offered to receive any of your questions or interest I guess in this. But I'm also happy to answer anything I can so thank you.
(applause)
Attendee: Thank you for coming in off the bench you managed to hit a grand slam.
Charlette Lanvers: It is very kind.
Attendee: So Charlette, I wonder about the situation where HAVA ends up defeating the purposes of Title II, at least one accessible machine gets read as we only have to have one accessible machine. There are two consequences of that first of all, I think in circumstances where someone was not disabled has the advantage of secrecy in the ballot, imagine a rural precinct. Oh the blind guy is going use that machine. No secrecy left to how the blind vote is voting.
The other I think -- might be some issues what happens as you pointed out with the one accessible machine it is not plugged in, they don't know how to load the card on or plug in the key board or whatever it is they have to do.
And that is because not everyone is using the same machine.
Charlette Lanvers: Yes.
Attendee: And I realized there could be political difficulties with the government saying you have to do more than HAVA requires.
Charlette Lanvers: Yeah.
Attendee:I really think there's a screaming need for it.And the other sort of related issue is that it really has to do what happens in practice after you all have gotten the Consent Decree.
Charlette Lanvers: Right.
Attendee: The question is, maybe on these web site accessibility cases, there needs to be some requirements for continued training of whoever is posting the web site and regular testing.Regular testing of the accessibility, in other words you end up queen for the day of the accessibility of the web site.
Charlette Lanvers: I think those are good points. And I know that like over the years at times the pendulum swings from more electronic voting machines to more paper voting machines. It is, um, it is obviously a highly politicalized issue.
Attendee: Yes.
Charlette Lanvers: -- the atmosphere and the view that voter fraud is a lot more electronically is out there, it is like it is not to offer -- offer any validity of the view. I think had is part that is creating an environment where there's a lot of suspicion of anything involving an electronic voting machine. So those tensions are real and various areas involving voting. Unfortunately.
Yeah effect is that people who have disabilities are often carrying the brunt of the -- those issues and so either there's only one accessible voting machine at times I've also seen the accessible voting machine also be used as the tabulator, at the same time as individuals are voting. So it is -- [laughter] it is a problem. I mean it is a problem. I mean just broadly polling place training is a huge area for sort of improvement and focus it is also it is also just a hard -- it is a hard job for people who tend to not be in that -- like in that field to absorb all of the obligations and then do a good job of it.
It is a miracle any time it happens like I think in a sense because, these individuals are not like, they're trained on hundreds of things and if anyone has ever reviewed polling place accessibility a lot of the time you key cones in places that don't make sense. Like, signage directing people to the accessible entrance but that is not actually directing them there.
So there's a lot that could be improved in that area alone that is a really hard area to improve upon.
Attendee:I have two questions.
Charlette Lanvers: Sure.
Attendee: So multiple statutes that you mentioned HAVA and BRA, HEAHA, seem to focus on Federal elections, is there a different enforcement mechanisms for Federal v. local and state elections.
Charlette Lanvers: I mean it is our position that a lot of the -- so the ADA applies to everything, ADA is a very broad law. If an entity is having a state election and a person who is blind and requires an accessible voting machine in order to have equal access to that program it would seem to me that they would also have a very strong ADA claim. Because they cannot have independence and privacy and experience and equal benefit and experience it with effective communication if they are having to tell a poll worker how they want to vote.
That being said, there are states that keep their accessible voting machines in a box during state elections. So it happens. And it's confusing in a sense. I mean I am offering the benefit of the doubt to these entities like you have all of these overlapping laws passed at different times. It like, I can see in theory how a state might think that but the ADA is such a broad obligation that you ultimately have to provide equal access to every election unless you can show an affirmative defense. If you have all of these electronic voting machines in a box not that hard.
It is not that hard to take them out and allow individuals the right to vote [laughter].It would be hard for me to see it being a viable affirmative defense. So I think like ADA applies if it is not a Federal election. I think there's some case law on that and it is our interest in further developing it to reiterate the extent of the obligation.
Attendee: Great. Thank you.
Attendee: I just wanted to mention anecdotally when I still lived in Maryland I decided at one time I wonder if the accessible voting machine is operational and accessible. So when I went to vote I said I would like to use the accessible voting machine. Well what's your disability?
[laughter]
Attendee:I said, well, I don't depression and anxiety like any other trial lawyer I don't identify as disabled. And they didn't want to let me use the machine.
Charlette Lanvers: Maybe they knew it wasn't working, let's try to have him go elsewhere.
Attendee: I think they sincerely believed the accessible machine was only for people with disabilities.
Charlette Lanvers: Yeah. Yeah.I know in our Harris County case, so Harris Count is the I think the third largest polling place in the country and they use a lot of churches to administer their voting program. And a lot of their election judges and poll workers at the time like would ask individuals a lot of questions about if they actually have a disability or not.
We worked really hard to train their staff not to do that anymore. It was not up to them to like deem a person disabled or not. And that in general if a person is asking that to interpret it broadly if you can. There's a lot of work to be done in this area. Ok. Does anyone else have any other questions?
(pause for questions)
Attendee: Thank you for all your good work.
Charlette Lanvers: Thank you for having us and hopefully, it will be a positive election cycle for voters with disabilities. And if not we can --
Attendee: We'll let you know! Let's hope there's a civil rights section after the election.
Charlette Lanvers: If I'm out of the job I'll let everyone know that too.
[laughter]
We can all work together however that looks.
Attendee: Yes.
Charlette Lanvers: We'll see. Thank you all. I really appreciate it.