VoterGuide.indd, Spread 1 of 36 - Pages (72, 1) 9/22/2008 ... · The law that gives you that right:...
36
Providing Help to Voters with Disabilities: What You Should Know Voting is a fundamental right! Voters with disabilities have the right to assistance in voting. Voters with mental or physical disabilities are entitled to receive any assistance they need to cast their ballots. Who may assist a voter? Federal law gives voters with disabilities the right to decide whether to get assistance in casting a ballot and who will provide it. Voters can choose a poll worker, friend, family member, caregiver, assisted living provider, facility staff person or almost anyone else. The only people who may not assist a voter are the voter’s employer or an agent of that employer, or, if the voter is a member of a union, a union officer or agent of the union. What can assistance providers do to help a person vote? First, an assistance provider—helper—should ask the voter what choice he or she wants to make. The helper must never make assumptions about how a person wants to vote! The helper must respect the voter’s privacy at all times during the voting process. The helper should be familiar with the instructions on how to cast a ballot and be prepared to explain them to the voter and/or demonstrate the voting process. The helper should be prepared to read or explain all ballot choices or questions in a language the voter understands. The helper may mark a ballot for a voter with a disability only if the voter has directed him or her to do so. Aſter the ballot has been completed, the helper should make sure that it accurately reflects the voter’s choices. The helper should offer to correct any mistakes and to check the ballot for any election contests or questions that may have been missed. What actions would not be appropriate? Making decisions for the voter—for example, marking or changing a ballot to reflect a choice other than a choice expressed by the voter. Communicating with the voter in a way that makes the voter feel forced to make certain choices. Pressuring the voter to vote for a particular candidate or in a certain way. Withholding information or giving false information to a voter. Pressuring the voter to cast a vote on every measure or candidate. Everyone has the right to choose whether or not to vote on each contest. Revealing to others how the individual voted. Respect the voter’s right to privacy! What can you do if you have problems assisting? Call Election Protection at 1-866-OUR-VOTE (1-866-687-8683) about any Election Day assistance problems.
Transcript of VoterGuide.indd, Spread 1 of 36 - Pages (72, 1) 9/22/2008 ... · The law that gives you that right:...
Providing Help to Voters with Disabilities: What You Should Know
Voting is a fundamental right! Voters with disabilities have the right to assistance in voting.
Voters with mental or physical disabilities are entitled to receive any assistance they need to cast their ballots.
Who may assist a voter?
Federal law gives voters with disabilities the right to decide whether to get assistance in casting a ballot and who will provide it.
Voters can choose a poll worker, friend, family member, caregiver, assisted living provider, facility staff person or almost anyone else. The only people who may not assist a voter are the voter’s employer or an agent of that employer, or, if the voter is a member of a union, a union officer or agent of the union.
What can assistance providers do to help a person vote?
First, an assistance provider—helper—should ask the voter what choice he or she wants to make. The helper must never make assumptions about how a person wants to vote! The helper must respect the voter’s privacy at all times during the voting process. The helper should be familiar with the instructions on how to cast a ballot and be prepared to explain them to the voter and/or demonstrate the voting process. The helper should be prepared to read or explain all ballot choices or questions in a language the voter understands. The helper may mark a ballot for a voter with a disability only if the voter has directed him or her to do so. After the ballot has been completed, the helper should make sure that it accurately reflects the voter’s choices. The helper should offer to correct any mistakes and to check the ballot for any election contests or questions that may have been missed.
What actions would not be appropriate?
Making decisions for the voter—for example, marking or changing a ballot to reflect a choice other than a choice expressed by the voter. Communicating with the voter in a way that makes the voter feel forced to make certain choices. Pressuring the voter to vote for a particular candidate or in a certain way. Withholding information or giving false information to a voter. Pressuring the voter to cast a vote on every measure or candidate. Everyone has the right to choose whether or not to vote on each contest. Revealing to others how the individual voted. Respect the voter’s right to privacy!
What can you do if you have problems assisting?
Call Election Protection at 1-866-OUR-VOTE (1-866-687-8683) about any Election Day assistance problems.
VoterGuide.indd, Spread 1 of 36 - Pages (72, 1) 9/22/2008 2:52 PM
© Copyright 2008 Washington D.C. Judge David L. Bazelon Center for Mental Health Law. Reproduction is permitted for non-commercial educational and advocacy purposes only, provided that attribution is included as follows:
Bazelon Center for Mental Health Law and National Disability Rights Network, VOTE. It’s Your Right: A Guide to the Voting Rights of People with Mental Disabilities; Washington D.C. 2008.
The guide is a project of the Voting Working Group of the National Disability Rights Network (NDRN). It was written by Bazelon Center deputy legal director Jennifer Mathis and senior staff attorney Lewis Bossing, with assistance by NDRN senior staff
attorneys Delores Scott and Christina Galindo-Walsh and members of NDRN’s Voting Working Group, and editing and design by Lee Carty, Bazelon Center publications director.
The guide was produced with support from the UPENN Collaborative on Community Integration. It is available for download via www.bazelon.org/issues/voting. Print copies
may be purchased online or from the Bazelon Center’s publications desk; send inquiries to [email protected] or 202-467-5730 ext 141.
People with Mental Disabilities Have the Right to Vote
Most people want to vote, including voters with mental disabilities. If you are a voter with a mental disability, you should know your rights. Knowing your rights will help make sure you can vote. Take this piece of paper with you when you go to vote so you will know what your rights are. You can also show this to others if you run into any problems. This paper tells lawyers and poll workers where to find the laws that protect your right to vote!
You do have the right to vote! If you are a person with a mental disability and understand what it means to vote, federal law protects your right to vote.
The laws that protect that right: The Constitution and the Americans with Disabilities Act, 42 U.S.C. § 12132; Doe v. Rowe, 156 F.Supp.2d 35 (D.Me.2001).
You have the right to get help from a person you choose. If you can’t read or need help voting because of your disability, you can have someone help you vote. You can bring a friend, family member or someone else you trust to help you. You can ask the poll worker to help you if you didn’t bring anyone with you.
The law that gives you that right: The Voting Rights Act, 42 U.S.C. §§1973aa-6; The Americans with Disabilities Act, 42 U.S.C. § 12132
If you have a problem, you can get help by calling 1-866-OUR-VOTE
Lawyers are available to give voters with disabilities and other voters advice and help with voting problems, so call 1-866-OUR-VOTE (1-866-687-8683).
The law says everyone gets to cast a ballot, so don’t leave without voting!
Even if someone says you cannot vote, the law says the poll worker must allow you to vote a special ballot called a Provisional Ballot.Later, an election worker will decide whether you are allowed to vote in the election. If you are, your vote will be counted.
The law that gives you that right: The Help America Vote Act, 42 U.S.C. § 15482
For more information about the rights of voters with disabilities visit www.ndrn.org
VoterGuide.indd, Spread 2 of 36 - Pages (2, 71) 9/22/2008 2:52 PM
STA
TE L
AW
S A
FFEC
TIN
G T
HE
VO
TIN
G R
IGH
TS O
F PE
OPL
E W
ITH
MEN
TAL
DIS
ABI
LITI
ES66
ST
AT
ES
tate
Co
nst
itu
tio
n/ E
lect
ora
l S
tatu
tes:
Per
son
s D
isq
ual
ifie
d
Gu
ard
ian
ship
/ C
on
serv
ato
rsh
ip S
tatu
tes
Men
tal H
ealt
h S
tatu
tes
Dev
elo
pm
enta
l Dis
abili
ties
/ M
enta
l Ret
ard
atio
n S
tatu
tes
unle
ss th
e co
urt h
as d
eter
min
ed th
at
the
pers
on is
com
pete
nt to
vot
e. W
IS.
ST
AT. §
6.0
3(1)
(a).
Per
sons
may
not
be
deni
ed th
e rig
ht to
vo
te u
pon
the
alle
gatio
n th
at th
ey a
re
inca
pabl
e of
und
erst
andi
ng th
e ob
ject
ive
of th
e el
ectiv
e pr
oces
s un
less
th
ey h
ave
been
so
adju
dica
ted
by th
e st
ate.
How
ever
, any
inco
mpe
tenc
y de
term
inat
ion
that
app
oint
s a
guar
dian
or
any
lim
ited
com
pete
ncy
dete
rmin
atio
n th
at d
oes
not e
xpre
ssly
fin
d th
at th
e pe
rson
is c
ompe
tent
for
votin
g w
ill b
e ta
ken
as a
det
erm
inat
ion
that
the
pers
on m
ay n
ot v
ote.
WIS
.S
TA
T. §
6.0
3(3)
.
is in
capa
ble
of u
nder
stan
ding
th
e ob
ject
ive
of th
e el
ectiv
e pr
oces
s. T
he d
eter
min
atio
n of
th
e co
urt s
hall
be li
mite
d to
a
findi
ng th
at th
e el
ecto
r is
eith
er
elig
ible
or
inel
igib
le to
vot
e.
WIS
. ST
AT. A
NN
. § 8
80.3
3(9)
.
WY
OM
ING
A
ll pe
rson
s ad
judi
cate
d to
be
men
tally
in
com
pete
nt, u
nles
s re
stor
ed to
civ
il rig
hts,
are
exc
lude
d fr
om th
e el
ectiv
e fr
anch
ise.
W
YO
. CO
NS
T. a
rt. 6
§ 6
.
No
pers
on is
a q
ualif
ied
elec
tor
who
is a
cu
rren
tly a
djud
icat
ed m
enta
lly
inco
mpe
tent
per
son.
WY
O. S
TA
T. A
NN
. §
22-1
-102
(a)(
xxvi
).
Contents
Introduction 1
Key Legal Principles 3
Voter-Competence Requirements 5State Voting Laws 5
Election Officials 6Poll Workers 7Service Providers 7
What Are Your Voting Rights? 9
Only a Court Can Decide that Someone is Not Competent to Vote 9
Box: Can Anyone But a Judge Decide that You Are Not Competent to Vote? 10
How Can Someone Retain the Right to Vote or Have it Restored Under State Law? 10
Box: Know Your Rights in Guardianship Proceedings 11Challenging State Voter-Competence Requirements 12Box: What You Can Do if Told You May Not Vote 13
Advocating to Change the Voter-Competence Standard in Your State 14
Voters with Mental Disabilities Should Not Be Held to a Higher Standard 14
What Standard Should Be Used to Determine Voting Competence? 14
Photo-Identification Laws 16
Voter Challenges Based on Mental Competence 17Is Competence a Permitted Ground for
Challenging a Voter? 18Box: What You Can Do if Challenged at the Polls 19
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F PE
OPL
E W
ITH
MEN
TAL
DIS
ABI
LITI
ES
65
Who May Challenge a Voter? 18What Type of Evidence is Required for a Challenge? 18A Person Who is Challenged Cannot be
Prevented from Casting a Provisional Ballot 19
Voters Have the Right to Assistance 20
Box: Who Can Help Me Vote, and How? 20A Helper Must Respect the Voter’s Privacy 21Election Officials Must Provide Help 21Service Providers Must Provide Help 21Disability Services Offices Must Provide Help
with Registration 22
How to Address Concerns about Voter Fraud 23
What Is the Legal Framework? 25The Relationship Between Federal and State Law 25What Federal Laws Apply? 25
1. United States Constitution 252. The Americans with Disabilities Act 273. Section 504 of the Rehabilitation Act of 1973 284. Help America Vote Act (HAVA) 295. Voting Rights Act 296. National Voter Registration Act 30
Notes 31
Resources 40
Chart: State Laws Affecting the Voting Rights of People with Mental Disabilities 41
Flyers:
People with Mental Disabilities Have the Right to Vote 67Providing Help to Voters with Disabilities:
What You Should Know 68
ST
AT
ES
tate
Co
nst
itu
tio
n/ E
lect
ora
l S
tatu
tes:
Per
son
s D
isq
ual
ifie
d
Gu
ard
ian
ship
/ C
on
serv
ato
rsh
ip S
tatu
tes
Men
tal H
ealt
h S
tatu
tes
Dev
elo
pm
enta
l Dis
abili
ties
/ M
enta
l Ret
ard
atio
n S
tatu
tes
WE
ST
VIR
GIN
IA
No
pers
on w
ho is
of “
unso
und
min
d”
shal
l be
perm
itted
to v
ote
whi
le s
uch
disa
bilit
y co
ntin
ues.
W. V
A. C
ON
ST.
art.
4, §
1.
No
pers
on w
ho is
of “
unso
und
min
d,”
shal
l be
perm
itted
to v
ote
whi
le s
uch
disa
bilit
y co
ntin
ues.
W. V
A. C
OD
E §
3-
1-3.
Any
per
son
who
has
bee
n de
term
ined
to
be
men
tally
inco
mpe
tent
by
a co
urt o
f co
mpe
tent
juris
dict
ion
is d
isqu
alifi
ed
and
shal
l not
be
elig
ible
to r
egis
ter
or to
co
ntin
ue to
be
regi
ster
ed to
vot
e fo
r as
lo
ng a
s th
at d
eter
min
atio
n re
mai
ns in
ef
fect
. W
. VA. C
OD
E §
3-2
-2(b
).
If ad
judi
cate
d in
com
pete
nt, a
per
son
is
auto
mat
ical
ly d
enie
d th
e rig
ht to
vot
e.
No
spec
ific
deci
sion
reg
ardi
ng c
apac
ity
for
votin
g is
req
uire
d. 5
8 W
. Va.
Op.
A
tty. G
en. 2
21, M
ar. 2
8, 1
980.
R
ecei
pt o
f ser
vice
s fo
r m
enta
l ill
ness
or
reta
rdat
ion
does
not
by
itse
lf de
ny p
erso
ns th
e rig
ht to
reg
iste
r an
d vo
te;
mus
t be
adju
dged
in
com
pete
nt a
nd fi
ndin
g no
t re
vers
ed. W
. VA. C
OD
E §
27-
5-9(
a).
W. V
A. C
OD
E §
27-
5-9(
a)
does
not
con
flict
with
the
cons
titut
iona
l pro
visi
on in
art
. 4,
§ 1
. 58
W. V
a. O
p. A
tty.
Gen
. 221
, Mar
. 28,
198
0.
Rec
eipt
of s
ervi
ces
for
men
tal
illne
ss o
r re
tard
atio
n do
es n
ot
by it
self
deny
per
sons
the
right
to r
egis
ter
and
vote
; m
ust b
e ad
judg
ed
inco
mpe
tent
and
find
ing
not
reve
rsed
. W. V
A. C
OD
E §
27-
5-9(
a).
WIS
CO
NS
INP
erso
ns a
djud
ged
inco
mpe
tent
or
part
ially
inco
mpe
tent
exc
lude
d fr
om th
e rig
ht o
f suf
frag
e, u
nles
s ju
dgm
ent
spec
ifies
that
the
pers
on is
cap
able
of
unde
rsta
ndin
g th
e ob
ject
ive
of th
e el
ectiv
e pr
oces
s or
the
judg
men
t is
set
asid
e. W
IS. C
ON
ST. a
rt. 3
, § 2
(4)(
b).
Any
per
son
who
is in
capa
ble
of
unde
rsta
ndin
g th
e el
ectiv
e pr
oces
s or
un
der
guar
dian
ship
may
not
vot
e,
Lim
ited
guar
dian
ship
of t
he
pers
on p
roce
edin
g in
clud
es a
vo
ting
right
s de
term
inat
ion.
WIS
.S
TA
T. A
NN
. § 8
80.3
3(3)
.
All
the
right
s an
d pr
ivile
ges
affo
rded
a p
ropo
sed
inco
mpe
tent
und
er th
is s
ectio
n sh
all b
e gi
ven
to a
ny p
erso
n w
ho is
alle
ged
to b
e in
elig
ible
to
vote
by
reas
on th
at s
uch
pers
on
A p
erso
n is
not
dee
med
in
com
pete
nt to
vot
e so
lely
ba
sed
on a
dmis
sion
, de
tain
men
t, or
com
mitm
ent
unde
r th
e de
velo
pmen
tal
disa
bilit
ies
and
men
tal h
ealth
ch
apte
r. W
IS. S
TA
T. A
NN
. §
51.5
9(1)
.
A p
erso
n is
not
dee
med
in
com
pete
nt to
vot
e so
lely
ba
sed
on a
dmis
sion
, de
tain
men
t, or
com
mitm
ent
unde
r th
e de
velo
pmen
tal
disa
bilit
ies
and
men
tal h
ealth
ch
apte
r. W
IS. S
TA
T. A
NN
. §
51.5
9(1)
.
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AW
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HE
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TIN
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IGH
TS O
F PE
OPL
E W
ITH
MEN
TAL
DIS
ABI
LITI
ES64
Bazelon Center for Mental Health Law & National Disablity Rights Network
1S
TA
TE
Sta
te C
on
stit
uti
on
/ Ele
cto
ral
Sta
tute
s: P
erso
ns
Dis
qu
alif
ied
G
uar
dia
nsh
ip/
Co
nse
rvat
ors
hip
Sta
tute
s M
enta
l Hea
lth
Sta
tute
s D
evel
op
men
tal D
isab
iliti
es/
Men
tal R
etar
dat
ion
Sta
tute
s
com
pete
ncy
has
been
ree
stab
lishe
d.
VA. C
ON
ST. a
rt. 2
, § 1
.
No
pers
on a
djud
icat
ed in
capa
cita
ted
shal
l be
a qu
alifi
ed v
oter
unl
ess
his
capa
city
has
bee
n re
esta
blis
hed
as
prov
ided
by
law
. V
A. C
OD
E A
NN
. §
24.2
-101
.
Inco
mpe
tent
and
inca
paci
tate
d ar
e no
t co
nflic
ting
stan
dard
s. O
p. A
tt’y
Gen
. of
Va,
01-
102,
Dec
. 10,
200
1.
WA
SH
ING
-
TO
N
All
pers
ons
whi
le th
ey a
re ju
dici
ally
de
clar
ed m
enta
lly in
com
pete
nt a
re
excl
uded
from
the
elec
tive
fran
chis
e.
WA. C
ON
ST. a
rt. 6
, § 3
.
"Ele
ctor
" m
eans
any
per
son
who
po
sses
ses
all o
f the
qua
lific
atio
ns to
vo
te u
nder
Art
icle
VI o
f the
sta
te
Con
stitu
tion.
WA
SH
. RE
V. C
OD
E A
NN
. §
29A
.04.
061.
Upo
n re
ceiv
ing
offic
ial n
otic
e th
at a
co
urt h
as im
pose
d a
guar
dian
ship
for
an in
capa
cita
ted
pers
on a
nd h
as
dete
rmin
ed th
at th
e pe
rson
is
inco
mpe
tent
for
the
purp
ose
of
ratio
nally
exe
rcis
ing
the
right
to v
ote,
un
der
chap
ter
11.8
8 R
CW
, if t
he p
erso
n is
a r
egis
tere
d vo
ter
in th
e co
unty
, the
co
unty
aud
itor
shal
l can
cel t
he p
erso
n's
vote
r re
gist
ratio
n. W
AS
H. R
EV. C
OD
EA
NN
. § 2
9A.0
8.51
5.
Impo
sitio
n of
a g
uard
ians
hip
for
an in
capa
cita
ted
pers
on s
hall
not r
esul
t in
the
loss
of t
he r
ight
to
vot
e un
less
the
cour
t de
term
ines
that
the
pers
on is
in
com
pete
nt fo
r pu
rpos
es o
f ra
tiona
lly e
xerc
isin
g th
e fr
anch
ise
in th
at th
e in
divi
dual
la
cks
the
capa
city
to u
nder
stan
d th
e na
ture
and
effe
ct o
f vot
ing
such
that
she
or
he c
anno
t m
ake
an in
divi
dual
cho
ice.
The
co
urt o
rder
est
ablis
hing
gu
ardi
ansh
ip s
hall
spec
ify
whe
ther
or
not t
he in
divi
dual
re
tain
s vo
ting
right
s. W
hen
a co
urt d
eter
min
es th
at th
e pe
rson
is
inco
mpe
tent
for
the
purp
ose
of r
atio
nally
exe
rcis
ing
the
right
to
vot
e, th
e co
urt s
hall
notif
y th
e ap
prop
riate
cou
nty
audi
tor.
R
CW
A 1
1.88
.010
(5)
.
T
he s
ecre
tary
's d
eter
min
atio
n un
der
RC
W 7
1A.1
6.04
0 th
at
a pe
rson
is e
ligib
le fo
r se
rvic
es u
nder
this
title
sha
ll no
t dep
rive
the
pers
on o
f any
ci
vil r
ight
s or
priv
ilege
s. T
he
secr
etar
y's
dete
rmin
atio
n al
one
shal
l not
con
stitu
te
caus
e to
dec
lare
the
pers
on
to b
e le
gally
inco
mpe
tent
. W
AS
H. R
EV. C
OD
E A
NN
. §
71A
.10.
030.
Introduction
Voting is a fundamental right in American society—the foundation of our democracy. By expressing our views through voting, we can help ensure that our government
develops and implements good policies and protects our civil rights. And votes do count: In 2000, President George W. Bush won the presidential election by taking Florida with a margin of just 930 votes of the six million cast.
Voting is just as important to people with mental disabilities as it is to everyone else. Yet their voting rights are widely misunderstood. As a result, they are often disenfranchised—by unwarranted concerns about their competence to vote, by inappropriate challenges to prevent them from voting, by refusals to provide or permit help with voting or by help that disregards the voter’s own choices.
This booklet explains the rights of voters with mental disabilities. It can be a resource for people with mental disabilities, advocates, family members, service providers, election officials, state and local mental health and aging authorities, state legislators and others.
The text focuses on four areas of concern to voters with mental disabilities: (1) voter-competence requirements imposed by state laws or by election officials or service providers, (2) state photo-ID laws, (3) voter challenges and (4) providing help to voters with disabilities. A final section describes the relationship between federal and state laws in this area. To help readers learn specifics about their state, we include a chart listing each state’s laws on voter-competence requirements.
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While much of the explanation is geared toward lawyers, we also include text boxes with information addressed to voters, family members and advocates. Two one-page reference sheets are also available: a summary of the voting rights of people with mental disabilities and a summary of the types of help that may and may not be provided to voters with disabilities. Versions of these (reduced in size but not content) appear at the back of this booklet.
What is Not Covered Here?
Requirements for physical accessibility of voting systems, including polling places and voting equipment, are outside the scope of this booklet. However, you can find information and resources on the physical accessibility of voting systems on the National Disability Rights Network website, http://www.ndrn.org/voting/resources.
ST
AT
ES
tate
Co
nst
itu
tio
n/ E
lect
ora
l S
tatu
tes:
Per
son
s D
isq
ual
ifie
d
Gu
ard
ian
ship
/ C
on
serv
ato
rsh
ip S
tatu
tes
Men
tal H
ealt
h S
tatu
tes
Dev
elo
pm
enta
l Dis
abili
ties
/ M
enta
l Ret
ard
atio
n S
tatu
tes
adju
dica
ted
to b
e in
com
pete
nt a
nd h
as n
ot
been
res
tore
d to
lega
l ca
paci
ty. U
TA
H C
OD
E A
NN
. §
62A
-15-
641
(1)(
c).
Whe
n an
y rig
ht o
f a p
atie
nt
is…
deni
ed, t
he n
atur
e,
exte
nt, a
nd r
easo
n fo
r th
at…
deni
al s
hall
be e
nter
ed
in th
e pa
tient
's tr
eatm
ent
reco
rd. A
ny c
ontin
uing
den
ial
or li
mita
tion
shal
l be
revi
ewed
ev
ery
30 d
ays…
. UT
AH
CO
DE
AN
N.
§ 62
A-1
5-64
1 (2
).
adju
dica
ted
to b
e in
com
pete
nt a
nd h
as n
ot
been
res
tore
d to
lega
l ca
paci
ty. U
TA
H C
OD
E A
NN
. §
62A
-15-
641(
1)(c
).
VE
RM
ON
T
To
be e
ntitl
ed to
the
priv
ilege
of v
otin
g,
pers
ons
mus
t be
of “
quie
t and
pe
acea
ble
beha
vior
.” V
T. C
ON
ST. c
h. II
, §
42.
No
disq
ualif
ying
ele
ctio
n st
atut
e. A
ny
pers
on o
ver
18 w
ho is
a c
itize
n of
the
Uni
ted
Sta
tes
and
a re
side
nt o
f the
st
ate
of V
erm
ont a
nd h
as ta
ken
the
vote
r’s o
ath
may
vot
e. V
T. S
TA
T. A
NN
.T
IT. 1
7 §
2121
.
Pro
pose
d Le
gisl
atio
n: V
erm
ont
2005
Hou
se B
ill 4
24 w
ould
add
th
e fo
llow
ing
sect
ion:
“A
per
son
in n
eed
of g
uard
ians
hip
reta
ins
the
sam
e le
gal a
nd c
ivil
right
s gu
aran
teed
to a
ll V
erm
ont
resi
dent
s un
der
the
Ver
mon
t an
d U
nite
d S
tate
s C
onst
itutio
ns
and
all t
he la
ws
and
regu
latio
ns
of V
erm
ont a
nd th
e U
nite
d S
tate
s. T
hese
rig
hts
incl
ude:
(3)
th
e rig
ht to
vot
e.”
Pro
pose
d 14
V
.S.A
. § 3
060a
. B
ill h
as p
asse
d H
ouse
and
is n
ow in
Sta
te
Sen
ate.
Pat
ient
has
the
right
to v
ote
on h
is o
wn
initi
ativ
e, u
nles
s he
has
bee
n ad
judi
cate
d in
com
pete
nt a
nd h
as n
ot
been
res
tore
d to
lega
l ca
paci
ty, o
r un
less
faci
lity
dete
rmin
es r
estr
ictio
n ne
eded
fo
r pa
tient
’s w
elfa
re. V
T.
ST
AT. A
NN
. TIT
. 18
§ 77
05(a
)(3)
.
VIR
GIN
IA
As
pres
crib
ed b
y la
w, n
o pe
rson
ad
judi
cate
d to
be
men
tally
inco
mpe
tent
sh
all b
e qu
alifi
ed to
vot
e un
til h
is
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ITH
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Bazelon Center for Mental Health Law & National Disablity Rights Network
3
ST
AT
ES
tate
Co
nst
itu
tio
n/ E
lect
ora
l S
tatu
tes:
Per
son
s D
isq
ual
ifie
d
Gu
ard
ian
ship
/ C
on
serv
ato
rsh
ip S
tatu
tes
Men
tal H
ealt
h S
tatu
tes
Dev
elo
pm
enta
l Dis
abili
ties
/ M
enta
l Ret
ard
atio
n S
tatu
tes
juris
dict
ion
and
has
not b
een
rest
ored
to le
gal c
apac
ity; o
r
(2)
The
den
ial i
s au
thor
ized
by
sta
te o
r fe
dera
l sta
tute
. T
EN
N.C
OD
EA
NN
. §33
-3-
102(
a).
juris
dict
ion
and
has
not b
een
rest
ored
to le
gal c
apac
ity; o
r
(2)
The
den
ial i
s au
thor
ized
by
sta
te o
r fe
dera
l sta
tute
.
TE
NN
.CO
DE
AN
N. §
33-3
-10
2(a)
.
TE
XA
S
Per
sons
adj
udic
ated
men
tally
in
com
pete
nt s
hall
not b
e al
low
ed to
vo
te, s
ubje
ct to
suc
h ex
cept
ions
as
the
Legi
slat
ure
may
mak
e. T
EX. C
ON
ST. a
rt.
6, §
1.
A p
erso
n w
ho h
as b
een
dete
rmin
ed
men
tally
inco
mpe
tent
by
a fin
al
judg
men
t of a
cou
rt is
not
a q
ualif
ied
vote
r. T
EX. E
LEC
. CO
DE
AN
N. T
it. 2
, §
11.0
02(3
).
To
be e
ligib
le to
reg
iste
r as
a v
oter
, m
ust n
ot h
ave
been
det
erm
ined
m
enta
lly in
com
pete
nt b
y a
final
ju
dgm
ent o
f the
cou
rt.
TE
X. E
LEC
. CO
DE
AN
N. T
it. 2
, § 1
3.00
1(a)
(3).
P
atie
nts
have
the
right
to
regi
ster
and
vot
e un
less
sp
ecifi
c la
w li
mits
rig
hts
unde
r a
spec
ial p
roce
dure
. TE
X.
HE
ALT
H &
SA
FE
TY C
OD
E A
NN
.T
it. 7
, § 5
76.0
01(b
)(1)
.
Per
sons
with
men
tal
reta
rdat
ion
have
the
right
s,
bene
fits,
and
priv
ilege
s gu
aran
teed
by
the
cons
titut
ion
and
law
s of
the
Uni
ted
Sta
tes
and
this
sta
te.
TE
X. H
EA
LTH
& S
AF
ET
Y C
OD
EA
NN
. Tit.
7, §
592
.011
.
Per
sons
with
men
tal
reta
rdat
ion
have
the
right
to a
pr
esum
ptio
n of
com
pete
ncy.
T
EX. H
EA
LTH
& S
AF
ET
Y C
OD
EA
NN
. Tit.
7, §
592
.021
.
UT
AH
A
per
son
who
is m
enta
lly in
com
pete
nt
may
not
be
perm
itted
to v
ote,
unl
ess
right
to v
ote
rest
ored
as
prov
ided
by
stat
ute.
UT
AH
CO
NS
T. a
rt. 4
, § 6
.
No
disq
ualif
icat
ion
elec
tion
stat
ute.
S
ubje
ct to
the
gene
ral r
ules
of
the
divi
sion
, and
exc
ept t
o th
e ex
tent
that
the
dire
ctor
or
his
desi
gnee
det
erm
ines
that
it
is n
eces
sary
for
the
wel
fare
of
the
patie
nt to
impo
se
rest
rictio
ns, e
very
pat
ient
is
entit
led
to: .
. . e
xerc
ise
. . .
the
right
to .
. . v
ote,
unl
ess
the
patie
nt h
as b
een
((S
ubje
ct to
the
gene
ral r
ules
of
the
divi
sion
, and
exc
ept t
o th
e ex
tent
that
the
dire
ctor
or
his
desi
gnee
det
erm
ines
that
it
is n
eces
sary
for
the
wel
fare
of
the
patie
nt to
impo
se
rest
rictio
ns, e
very
pat
ient
is
entit
led
to: .
. . e
xerc
ise
. . .
the
right
to .
. . v
ote,
unl
ess
the
patie
nt h
as b
een Key Legal Principles
A state does not need to require a voter to demonstrate competence, and some states don’t. If a state chooses to impose a voter-competence requirement, that requirement cannot be so broad that it takes away the right to vote of people who are capable of voting. For example, a state generally may not have laws that impose a blanket ban on voting by anyone under guardianship.1 If a state chooses to impose a voter-competence requirement, that requirement must be applied to all voters. It cannot single out a particular group of voters, such as people who are the subject of guardianship proceedings.2
In virtually all states, only a court can find that a person is not competent to vote. In fact, it would present serious constitutional concerns for election officials or anyone else to make such a determination without the procedural safeguards of a court proceeding.3
Service providers, such as nursing homes, hospitals, assisted-living facilities and group homes, cannot bar residents from voting based on staff or administrators’ decisions that residents are not competent to vote.4
Questions about a voter’s competence can form the basis for a voter challenge only under very limited circumstances, if at all. Most states’ laws restrict the grounds on which a voter may be challenged, the people who may bring a challenge and the types of evidence that can form the basis for a challenge. Many states do not permit any voter challenges based on competence.People with disabilities have the right to get help with voting and to decide who will help them vote.5
A person with a disability can get help from a friend, family member, caregiver, residential service provider or almost anyone else of his or her choosing except an employer or
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ITH
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union member. The person can also ask a poll worker for assistance with voting.6
A person helping a voter with a disability should ask the voter what choice he or she wants to make, if any. It is the voter who makes the choice whether to vote and how to vote, not the person providing help. The person providing help should not mark a ballot to reflect any choice other than the choice expressed by the voter. The person providing help must respect the voter’s privacy at all times during the voting process.7
ST
AT
ES
tate
Co
nst
itu
tio
n/ E
lect
ora
l S
tatu
tes:
Per
son
s D
isq
ual
ifie
d
Gu
ard
ian
ship
/ C
on
serv
ato
rsh
ip S
tatu
tes
Men
tal H
ealt
h S
tatu
tes
Dev
elo
pm
enta
l Dis
abili
ties
/ M
enta
l Ret
ard
atio
n S
tatu
tes
A p
erso
n is
dis
qual
ified
from
reg
iste
ring
or v
otin
g if
adju
dica
ted
men
tally
in
com
pete
nt. S
.C. C
OD
E A
NN
. §7-
5-12
0(B
)(1)
.
com
plyi
ng w
ith v
otin
g re
quire
men
ts, a
nd v
otin
g by
ab
sent
ee b
allo
t. S
.C. C
OD
E.
AN
N. §
44-
22-8
0(7)
.
mat
eria
ls a
nd b
allo
ts,
com
plyi
ng w
ith v
otin
g re
quire
men
ts, a
nd v
otin
g by
ab
sent
ee b
allo
t. S
.C. C
OD
EA
NN
. § 4
4-26
-90(
7).
SO
UT
HD
AK
OT
AN
ot e
ntitl
ed to
vot
e if
disq
ualif
ied
by la
w
for
men
tal i
ncom
pete
nce.
S.D
. CO
NS
T.
art.
7, §
2.
Nam
es o
f per
sons
dec
lare
d m
enta
lly
inco
mpe
tent
sha
ll be
rem
oved
from
the
vote
r ro
lls e
ach
mon
th.
S.D
. CO
DIF
IED
LA
WS §
12-
4-18
.
The
app
oint
men
t of a
gua
rdia
n or
con
serv
ator
of a
pro
tect
ed
pers
on d
oes
not c
onst
itute
a
gene
ral f
indi
ng o
f leg
al
inco
mpe
tenc
e un
less
the
cour
t so
ord
ers,
and
the
prot
ecte
d pe
rson
sha
ll ot
herw
ise
reta
in a
ll rig
hts
whi
ch h
ave
not b
een
gran
ted
to th
e gu
ardi
an o
r co
nser
vato
r. S
.D. C
OD
IFIE
D
LAW
S §
29A
-5-1
18.
Not
with
stan
ding
any
oth
er
prov
isio
n of
law
, no
pers
on
may
be
deem
ed in
com
pete
nt
to r
egis
ter
and
vote
sol
ely
by
reas
on o
f his
det
entio
n,
adm
issi
on, o
r co
mm
itmen
t un
der
this
title
. S
.D.
CO
DIF
IED
LA
WS §
27A
-12-
1.2.
No
pers
on is
inco
mpe
tent
to
regi
ster
and
vot
e so
lely
by
reas
on o
f a d
iagn
osis
of a
de
velo
pmen
tal d
isab
ility
, or
by r
easo
n of
a c
omm
itmen
t by
a c
ount
y re
view
boa
rd.
S.D
. CO
DIF
IED
LA
WS §
27B
-7-
44 (
repl
aced
old
lang
uage
in
2000
und
er S
L 20
00, c
h 13
1,
§ 76
).
TE
NN
ES
SE
E
No
Con
stitu
tiona
l dis
qual
ifica
tion
prov
isio
n.
No
disq
ualif
icat
ion
elec
tion
stat
ute.
May
rem
ove
the
right
to v
ote
if pl
aced
und
er a
con
serv
ator
ship
. P
etiti
on fo
r ap
poin
tmen
t of a
co
nser
vato
r sh
ould
incl
ude
the
right
s th
at w
ill b
e re
mov
ed.
Ten
n. C
ode
Ann
. §34
-3-1
04(8
).
No
pers
on w
ith m
enta
l ill
ness
, ser
ious
em
otio
nal
dist
urba
nce,
or
deve
lopm
enta
l dis
abili
ty
hosp
italiz
ed o
r ad
mitt
ed,
whe
ther
vol
unta
rily
or
invo
lunt
arily
, or
orde
red
to
part
icip
ate
in n
on-r
esid
entia
l tr
eatm
ent o
r se
rvic
e un
der
this
title
sha
ll, s
olel
y by
re
ason
of s
uch
hosp
italiz
atio
n, a
dmis
sion
, or
orde
r be
den
ied
the
right
to
vote
, unl
ess
(1)
The
ser
vice
re
cipi
ent h
as b
een
adju
dica
ted
inco
mpe
tent
by
a co
urt o
f com
pete
nt
No
pers
on w
ith m
enta
l ill
ness
, ser
ious
em
otio
nal
dist
urba
nce,
or
deve
lopm
enta
l dis
abili
ty
hosp
italiz
ed o
r ad
mitt
ed,
whe
ther
vol
unta
rily
or
invo
lunt
arily
, or
orde
red
to
part
icip
ate
in n
on-r
esid
entia
l tr
eatm
ent o
r se
rvic
e un
der
this
title
sha
ll, s
olel
y by
re
ason
of s
uch
hosp
italiz
atio
n, a
dmis
sion
, or
orde
r be
den
ied
the
right
to
vote
, unl
ess
(1)
The
ser
vice
re
cipi
ent h
as b
een
adju
dica
ted
inco
mpe
tent
by
a co
urt o
f com
pete
nt
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AW
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FFEC
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OPL
E W
ITH
MEN
TAL
DIS
ABI
LITI
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Bazelon Center for Mental Health Law & National Disablity Rights Network
5S
TA
TE
Sta
te C
on
stit
uti
on
/ Ele
cto
ral
Sta
tute
s: P
erso
ns
Dis
qu
alif
ied
G
uar
dia
nsh
ip/
Co
nse
rvat
ors
hip
Sta
tute
s M
enta
l Hea
lth
Sta
tute
s D
evel
op
men
tal D
isab
iliti
es/
Men
tal R
etar
dat
ion
Sta
tute
s
PU
ER
TO
RIC
OE
very
per
son
over
18
can
vote
if h
e or
sh
e fu
lfills
the
othe
r co
nditi
ons
dete
rmin
ed b
y la
w.
PR
Con
st. A
rt. 6
, §
4. Eac
h m
onth
the
cour
t adm
inis
trat
or
send
s th
e C
omm
onw
ealth
Com
mis
sion
a
list o
f the
peo
ple
who
are
dec
lare
d ju
dici
ally
as
men
tally
inco
mpe
tent
. PR
S
T T
. 16
§ 30
76.
Per
son
who
has
bee
n de
clar
ed
judi
cial
ly in
com
pete
nt m
ay b
e ch
alle
nged
whe
n re
gist
ered
to v
ote.
PR
S
T T
. 16
§ 30
73.
Per
sons
judi
cial
ly d
ecla
red
unqu
alifi
ed
cann
ot v
ote.
PR
ST
T. 1
6 §
3055
.
RH
OD
EIS
LA
ND
N
o pe
rson
who
has
bee
n ad
judi
cate
d “n
on c
ompo
s m
entis
” sh
all b
e al
low
ed
to v
ote.
R.I.
CO
NS
T. a
rt. 2
, § 1
.
Qua
lifie
d vo
ted
defin
ed a
s so
meo
ne
who
is n
ot o
ther
wis
e di
squa
lifie
d by
law
. R
.I. G
EN
. LA
WS
§ 1
7-1-
2(13
).
P
atie
nts
adm
itted
to a
faci
lity
shal
l not
be
depr
ived
of t
he
right
to v
ote
and
part
icip
ate
in
polit
ical
act
ivity
. R.I.
GE
N.
LAW
S §
40.
1-5-
5(f)
(10)
.
Com
mun
ity r
esid
ence
re
side
nt w
ill n
ot b
e de
priv
ed
of r
ight
to v
ote
just
bec
ause
of
adm
issi
on a
nd h
as r
ight
to
reas
onab
le a
ssis
tanc
e in
re
gist
ratio
n an
d vo
ting
if de
sire
d. R
I. S
T. §
40.
1-24
.5-
5.
SO
UT
H
CA
RO
LIN
A
Gen
eral
Ass
embl
y sh
all e
stab
lish
disq
ualif
icat
ions
for
votin
g by
rea
son
of
men
tal i
ncom
pete
nce
and
may
pro
vide
fo
r th
e re
mov
al o
f suc
h di
squa
lific
atio
ns.
S.C
. CO
NS
T. a
rt.
2,§
7.
P
atie
nts
have
the
right
to v
ote
unle
ss a
djud
icat
ed
inco
mpe
tent
. Cou
nty
boar
ds
of v
oter
reg
istr
atio
n sh
ould
al
so r
easo
nabl
y as
sist
clie
nts
with
obt
aini
ng r
egis
trat
ion
mat
eria
ls a
nd b
allo
ts,
Res
iden
ts o
f fac
ilitie
s ha
ve
the
right
to v
ote
unle
ss
adju
dica
ted
inco
mpe
tent
. C
ount
y bo
ards
of v
oter
re
gist
ratio
n sh
ould
als
o re
ason
ably
ass
ist c
lient
s w
ith
obta
inin
g re
gist
ratio
n Voter-Competence Requirements
People with mental disabilities sometimes lose the right to vote because of state voter-competence laws or because election officials, poll workers or service providers improperly
impose their own voter-competence requirements. This section describes the ways in which people have lost the right to vote due to these laws and practices. It also describes what voters’ rights are and what steps they may take to preserve or restore their rights.
State Voting Laws
Many states require that voters have a certain level of competence in order to vote. These requirements, in state laws or state constitutions, sometimes deprive people with mental disabilities of the right to vote. See the chart of each state’s laws on voter competence on page 41.
About 15 states and the District of Columbia have laws that bar voting by individuals who are “under guardianship” or adjudged “mentally incompetent” or “mentally incapacitated.” All of these terms generally mean the same thing. 8 These laws require a court determination of incompetence or incapacity before removing a person’s right to vote. Typically, however, such determinations involve competencies other than voting competence. A finding of incompetence or incapacity generally means that a person is unable to meet basic needs for food, clothing and shelter due to a disability. For example, many individuals are placed under guardianship because they were unable to care for themselves during a psychiatric crisis. Yet they may have a good understanding of how elections work and of the issues at stake in federal, state and local elections. Guardianship hearings rarely include inquiries into a person’s understanding of voting issues.Some 20 states have laws that bar voting only if a court has
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IGH
TS O
F PE
OPL
E W
ITH
MEN
TAL
DIS
ABI
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59
determined that an individual specifically lacks the capacity to vote.9
Three states have laws that bar voting by individuals who are “non compos mentis.” This term has been interpreted differently from one state to the next.10 Nine states have laws that use outmoded and stigmatizing terms such as “idiots” and “insane persons” to describe who is barred from voting based on competence concerns.11 Such laws are rarely enforced because they are virtually impossible to understand and apply.Eleven states—Colorado, Idaho, Illinois, Indiana, Kansas, Maine, Michigan, New Hampshire, North Carolina, Pennsylvania and Vermont—place no disability-related restrictions on the right to vote.12
Election Officials
Election officials sometimes impose their own voter-competence requirements and prevent individuals with mental disabilities from voting. They have refused to allow individuals who live in institutions to register and vote or to obtain absentee ballots. Or they have required institutional residents to take examinations not required of others before being permitted to vote. Such practices have been invalidated by the courts as unconstitutional.13 Indeed, many states now have laws specifying that individuals do not lose their right to vote because of their residence in an institution.14
Example: Election officials in New Jersey segregated the ballots submitted by residents of a state psychiatric hospital and refused to count the ballots unless residents could prove that they were competent to vote. This practice was held unconstitutional.15
Example: Election officials in Virginia refused to provide absentee ballots for people with mental illnesses living in a state psychiatric hospital based on state officials’ interpretation of state law as authorizing absentee ballots for individuals in
ST
AT
ES
tate
Co
nst
itu
tio
n/ E
lect
ora
l S
tatu
tes:
Per
son
s D
isq
ual
ifie
d
Gu
ard
ian
ship
/ C
on
serv
ato
rsh
ip S
tatu
tes
Men
tal H
ealt
h S
tatu
tes
Dev
elo
pm
enta
l Dis
abili
ties
/ M
enta
l Ret
ard
atio
n S
tatu
tes
A p
erso
n w
ho is
con
fined
to a
n in
stitu
tion
for
the
men
tally
ill o
r m
enta
lly
reta
rded
can
cho
ose
to v
ote
eith
er in
th
e di
stric
t in
whi
ch th
e in
stitu
tion
is
loca
ted
or w
here
they
wer
e re
gist
ered
to
vot
e or
res
ided
bef
ore
they
wer
e in
stitu
tiona
lized
. P
EN
N.C
ON
SO
L.S
TA
T.
AN
N.T
IT. 2
5 §
1302
(a)(
4).
A m
enta
lly r
etar
ded
or m
enta
lly il
l pe
rson
can
not b
e di
senf
ranc
hise
d so
lely
bec
ause
he
or s
he is
und
ergo
ing
trea
tmen
t for
a m
enta
l dis
abili
ty o
r is
kn
own
to r
esid
e in
an
inst
itutio
n fo
r th
e tr
eatm
ent o
f the
men
tally
dis
able
d.
1973
Op.
Atty
.Gen
. No.
48.
A p
erso
n w
ho r
esid
es a
t ins
titut
ion
for
the
men
tally
ill o
r m
enta
lly r
etar
ded
in
the
stat
e ca
nnot
law
fully
be
deni
ed th
e rig
ht to
reg
iste
r as
a q
ualif
ied
elec
tor
in
the
votin
g di
stric
t in
whi
ch th
e in
stitu
tion
is lo
cate
d. 1
973
Op.
Atty
.Gen
. No.
48.
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OPL
E W
ITH
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TAL
DIS
ABI
LITI
ES58
Bazelon Center for Mental Health Law & National Disablity Rights Network
7S
TA
TE
Sta
te C
on
stit
uti
on
/ Ele
cto
ral
Sta
tute
s: P
erso
ns
Dis
qu
alif
ied
G
uar
dia
nsh
ip/
Co
nse
rvat
ors
hip
Sta
tute
s M
enta
l Hea
lth
Sta
tute
s D
evel
op
men
tal D
isab
iliti
es/
Men
tal R
etar
dat
ion
Sta
tute
s
rest
ricte
d. O
KLA
. ST
AT. T
IT. 2
6, §
4-
101(
2).
The
reg
istr
atio
n of
any
reg
iste
red
vote
r m
ay b
e ca
ncel
led
upon
judi
cial
de
term
inat
ion
of m
enta
l inc
apac
itatio
n un
der
Titl
e 30
of t
he O
klah
oma
Sta
tute
s. O
KLA
. ST
AT. A
NN
. TIT
. 26
§ 4-
120.
OR
EG
ON
A
per
son
“suf
ferin
g fr
om a
men
tal
hand
icap
” is
ent
itled
to th
e fu
ll rig
hts
of
an e
lect
or, i
f oth
erw
ise
qual
ified
, unl
ess
the
pers
on h
as b
een
adju
dica
ted
inco
mpe
tent
to v
ote
as p
rovi
ded
by la
w.
OR
. CO
NS
T.
art.
2, §
3.
No
disq
ualif
icat
ion
stat
ute.
P
atie
nt m
ay v
ote
unle
ss
adju
dica
ted
inco
mpe
tent
and
fin
ding
not
rev
erse
d. O
R.
Rev
. ST
AT. §
426
.385
(1)(
n).
Per
sons
rec
eivi
ng m
enta
l he
alth
and
dev
elop
men
tal
disa
bilit
y se
rvic
es in
co
nnec
tion
with
alc
ohol
and
dr
ug a
buse
pro
gram
s re
tain
th
e rig
hts
affo
rded
to a
ll ci
tizen
s, in
clud
ing
the
right
to
vote
. O
R. R
EV. S
TA
T.
§ 43
0.21
0(3)
.
Res
iden
t in
a fa
cilit
y sh
all
have
the
right
to v
ote,
unl
ess
the
resi
dent
has
bee
n ad
judi
cate
d in
com
pete
nt a
nd
has
not b
een
rest
ored
to le
gal
capa
city
. OR
. RE
V. S
TA
T.
§ 42
7.03
1(1)
.
PE
NN
SY
LV
AN
IA
No
Con
stitu
tiona
l dis
qual
ifica
tion
prov
isio
n. S
ubje
ct to
sta
te la
w, a
nyon
e w
ho is
ove
r tw
enty
one
, has
bee
n a
citiz
en o
f the
Uni
ted
Sta
tes
for
at le
ast
one
mon
th, a
nd h
as r
esid
ed in
the
stat
e an
d co
unty
for
the
spec
ified
tim
e m
ay
vote
. P
A.C
ON
ST. A
rt. 7
, § 1
.
No
disq
ualif
icat
ion
elec
tion
stat
ute.
facilities only if they have physical disabilities.16
Example: Election officials in Arkansas required a group of individuals with developmental disabilities who lived in a group home to pass an examination in order to be permitted to vote. This requirement was not imposed on other voters.
Poll Workers
Poll workers sometimes improperly turn away individuals with mental disabilities at the polls based on their own judgments that these individuals should not be permitted to vote.
Service Providers
Some providers of residential or other services for people with disabilities have inappropriately kept individuals with mental disabilities from registering, voting, or receiving voting assistance. Staff of hospitals, developmental disabilities institutions, nursing homes, group homes, shelters and other settings sometimes decide on their own that residents should not be allowed to vote. Staff of such facilities typically exert significant control over residents’ lives, and their decisions have prevented many residents from exercising their lawful right to vote.
Example: A recent study of Philadelphia nursing homes revealed that many residents were denied the right to vote based on staff decisions that they were not competent to vote. Staff at a significant number of nursing homes required residents with cognitive impairments to answer questions to demonstrate their understanding of the election process, including names of candidates or current officeholders and questions about voting procedures.17 Pennsylvania law does not contain any voter-competence requirement.Example: Before the November 2004 election, a Department of Veterans’ Affairs (VA) nursing home in California refused to permit volunteers to come to the home to provide voter education and registration assistance. Staff told registration workers that the residents were “too demented to vote.” After
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AW
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FFEC
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TIN
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OPL
E W
ITH
MEN
TAL
DIS
ABI
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a threatened lawsuit, the facility allowed the protection and advocacy agency for individuals with disabilities to provide training on voting rights and assist residents who wished to register to vote.18
Example: Before the November 2004 election, an Ohio nursing home resident was barred by staff from registering to vote because his disability made him unable to create a signature and he used an “X” instead of a signature.
ST
AT
ES
tate
Co
nst
itu
tio
n/ E
lect
ora
l S
tatu
tes:
Per
son
s D
isq
ual
ifie
d
Gu
ard
ian
ship
/ C
on
serv
ato
rsh
ip S
tatu
tes
Men
tal H
ealt
h S
tatu
tes
Dev
elo
pm
enta
l Dis
abili
ties
/ M
enta
l Ret
ard
atio
n S
tatu
tes
NO
RT
HC
AR
OL
INA
No
Con
stitu
tiona
l dis
qual
ifica
tion
prov
isio
n.
No
disq
ualif
icat
ion
elec
tion
stat
ute.
P
erso
ns w
ho a
re a
dult
clie
nts
at a
faci
lity
have
the
right
to
regi
ster
and
vot
e un
less
that
rig
ht h
as b
een
prec
lude
d by
an
unr
evok
ed a
djud
icat
ion
of
inco
mpe
tenc
y. N
.C. G
EN
.S
TA
T. §
122
C-5
8.
Per
sons
who
are
adu
lt cl
ient
s at
a fa
cilit
y ha
ve th
e rig
ht to
re
gist
er a
nd v
ote
unle
ss th
at
right
has
bee
n pr
eclu
ded
by
an u
nrev
oked
adj
udic
atio
n of
in
com
pete
ncy.
N.C
. GE
N.
ST
AT. §
122
C-5
8.
NO
RT
HD
AK
OT
AN
o pe
rson
who
has
bee
n de
clar
ed
men
tally
inco
mpe
tent
sha
ll be
qua
lifie
d to
vot
e, u
nles
s th
e or
der
has
been
re
scin
ded.
N.D
. CO
NS
T. a
rt. 2
, § 2
.
Exc
ept u
pon
spec
ific
findi
ngs
of
the
cour
t, no
war
d m
ay b
e de
priv
ed o
f the
rig
ht to
vot
e.
N.D
. CE
NT. C
OD
E §
30.
1-28
-04
(3).
Unl
ess
spec
ifica
lly r
estr
icte
d in
writ
ing
ever
y 14
day
s by
a
patie
nt’s
trea
ting
phys
icia
n,
all p
atie
nts
in tr
eatm
ent
faci
litie
s re
tain
thei
r “c
ivil
right
s.”
N.D
. CE
NT. C
OD
E §
25
-03.
1-40
.
Dev
elop
men
tally
dis
able
d pe
rson
s m
ay n
ot b
e de
priv
ed
of th
e rig
ht to
vot
e so
lely
be
caus
e of
adm
issi
on,
resi
denc
y or
rec
eipt
of
serv
ices
at a
n in
stitu
tion
or
faci
lity.
N.D
. CE
NT. C
OD
E §
25
-01.
2-03
(1).
OH
ION
o “id
iot”
or
“insa
ne p
erso
n” s
hall
be
entit
led
to th
e pr
ivile
ges
of a
n el
ecto
r.
OH
IO C
ON
ST. a
rt 5
, § 6
.
Vot
er r
egis
trat
ion
is c
ance
lled
if th
e pe
rson
is a
djud
icat
ed in
com
pete
nt fo
r th
e pu
rpos
e of
vot
ing,
OH
IO R
EV. C
OD
EA
NN
. § 3
503.
18.
P
erso
ns ta
ken
into
cus
tody
ei
ther
vol
unta
ry o
r in
volu
ntar
ily m
ay v
ote
unle
ss
adju
dica
ted
inco
mpe
tent
, or
unle
ss R
evis
ed C
ode
spec
ifica
lly d
enie
s th
e rig
ht to
vo
te. O
HIO
RE
V. C
OD
E A
NN
. §
5122
.301
.
Per
sons
with
men
tal
reta
rdat
ion
and
deve
lopm
enta
l dis
abili
ties
have
the
right
to p
artic
ipat
e in
th
e po
litic
al p
roce
ss. O
HIO
RE
V. C
OD
E A
NN
. §
5123
.62(
W).
OK
LA
HO
MA
Le
gisl
atur
e m
ay p
resc
ribe
exce
ptio
ns
for
qual
ifica
tion.
OK
LA. C
ON
ST. a
rt. 3
, § 1
.
Inel
igib
le to
vot
e if
adju
dica
ted
an
inca
paci
tate
d pe
rson
und
er
Gua
rdia
nshi
p an
d C
onse
rvat
orsh
ip A
ct,
unle
ss a
djud
icat
ed n
o lo
nger
in
capa
cita
ted;
or
adju
dica
ted
part
ially
in
capa
cita
ted
pers
on a
nd r
ight
to v
ote
Cou
rt s
hall
mak
e a
spec
ific
dete
rmin
atio
n of
the
votin
g ca
paci
ty o
f a p
erso
n un
der
guar
dian
ship
. OK
LA. S
TA
T. A
NN
.T
IT. 3
0 §
3-11
3(B
)(1)
.
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OPL
E W
ITH
MEN
TAL
DIS
ABI
LITI
ES56
Bazelon Center for Mental Health Law & National Disablity Rights Network
9S
TA
TE
Sta
te C
on
stit
uti
on
/ Ele
cto
ral
Sta
tute
s: P
erso
ns
Dis
qu
alif
ied
G
uar
dia
nsh
ip/
Co
nse
rvat
ors
hip
Sta
tute
s M
enta
l Hea
lth
Sta
tute
s D
evel
op
men
tal D
isab
iliti
es/
Men
tal R
etar
dat
ion
Sta
tute
s
Per
sons
und
er c
onst
itutio
nal
disq
ualif
icat
ion
not q
ualif
ied
unde
r st
ate
law
. N
.M. S
TA
T. A
NN
. § 1
-1-4
.
Reg
istr
atio
n of
a v
oter
sha
ll be
ca
ncel
led
whe
n it
is d
eter
min
ed th
at th
e pe
rson
is le
gally
insa
ne u
nder
the
cons
titut
iona
l pro
visi
on.
N.M
. ST
AT.
AN
N. §
1-4
-26(
B).
Indi
vidu
als
with
men
tal r
etar
datio
n “w
ho
can
unde
rsta
nd th
e na
ture
of t
heir
actio
ns s
houl
d be
allo
wed
to r
egis
ter
and
vote
.” 1
974
Op.
Att'
y G
en. N
o. 7
4-35
.
civi
l rig
hts
exce
pt th
ose
whi
ch
have
bee
n ex
pres
sly
limite
d by
co
urt o
rder
or
have
bee
n sp
ecifi
cally
gra
nted
to th
e gu
ardi
an b
y th
e co
urt.
N.M
. S
TA
T. A
NN
. § 4
5-5-
301.
1.
The
sam
e re
serv
atio
n of
rig
hts
is s
peci
fied
for
limite
d gu
ardi
ansh
ips.
N.M
. ST
AT. A
NN
.§
45-5
-312
(A).
NE
WY
OR
KR
ight
of s
uffr
age
and
regi
stra
tion
of
vote
rs la
ws
shal
l be
esta
blis
hed
by la
w.
N.Y
. CO
NS
T.A
RT. 2
, § 5
.
No
pers
on w
ho h
as b
een
adju
dged
in
com
pete
nt h
as th
e rig
ht to
vot
e,
unle
ss la
ter
adju
dged
com
pete
nt. N
.Y.
ELE
C. L
AW
§ 5
-106
(6).
Man
hatta
n C
itize
ns G
roup
, Inc
. v. B
ass,
52
4 F
. Sup
p. 1
270
(SD
NY
198
1)
(unc
onst
itutio
nal t
o di
senf
ranc
hise
a
pers
on b
ased
on
adm
issi
on to
a
hosp
ital;
in d
icta
, ass
umin
g bu
t not
de
cidi
ng th
at s
omeo
ne a
djud
icat
ed
inco
mpe
tent
wou
ld p
resu
mab
ly b
e in
capa
ble
of v
otin
g).
R
ecei
pt o
f ser
vice
s fo
r m
enta
l di
sabi
lity
shal
l not
dep
rive
pers
ons
of th
e rig
ht to
re
gist
er a
nd v
ote
if ot
herw
ise
qual
ified
. N.Y
. ME
NT. H
YG
.LA
W §
33.
01.
Rec
eipt
of s
ervi
ces
for
men
tal
disa
bilit
y sh
all n
ot d
epriv
e pe
rson
s of
the
right
to
regi
ster
and
vot
e if
othe
rwis
e qu
alifi
ed. N
.Y. M
EN
T. H
YG
.LA
W §
33.
01.
The
com
mis
sion
er s
hall
incl
ude
in r
ules
and
re
gula
tions
pro
mul
gate
d fo
r co
mm
unity
res
iden
ce a
st
atem
ent o
f the
rig
hts
of
pers
ons
livin
g in
suc
h re
side
nces
whi
ch s
hall
incl
ude,
but
not
be
limite
d to
…
the
right
to v
ote.
N.Y
. M
EN
T. H
YG
. LA
W §
41.
41.
What Are Your Voting Rights?
Only a Court Can Decide that Someone is Not Competent to Vote
An election official, poll worker or service provider cannot make decisions about whether a person is competent to vote. In virtually every state with a voter competency
requirement, a court must make the determination that a person does not meet the competency requirement.19 Even state laws disenfranchising “idiots” and “insane” people have been read to require a court finding of incompetence.20
Indeed, regardless of what state law says, basic principles of federal due process require that a person’s right to vote cannot be taken away without the opportunity to be heard in court.21 The decision that a person lacks the competence to vote cannot be made by a long-term care facility, hospital or other service provider, or by a guardian or family member. Nor can it be made by a poll worker or election official.
When voter-competence decisions are made outside of a courtroom, they are not only being made by people who are unauthorized to make them, but they are typically based on factors that have little to do with what state law requires. In fact, many people have been denied the right to vote even in states that do not have any voter-competence requirement because service providers or others simply assumed, as in the above examples, that they could legally prevent people with mental disabilities from voting.
If a person is told by a poll worker that he or she is not competent to vote, the person should ask to vote a provisional ballot before leaving the polling place. The provisional ballot will be counted later if the person is eligible to vote.
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10
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FFEC
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VO
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IGH
TS O
F PE
OPL
E W
ITH
MEN
TAL
DIS
ABI
LITI
ES
55
Can Anyone But a Judge Decide that You Are Not Competent to Vote?
It is not legal for anyone to take away your chance to vote because that person thinks that you are not competent to vote. Election officials and poll workers cannot stop you from voting because of your disability. Staff in hospitals, nursing homes and other institutions cannot refuse to allow residents to register and vote or to obtain absentee ballots. That is unlawful. Only a court can decide that a person lacks the competence to vote.
If you are told on Election Day that you cannot vote, you can demand to vote a provisional ballot.
How Can Someone Retain the Right to Vote or Have it Restored Under State Law?
While advocates may want to consider challenging certain state voter-competence requirements as inconsistent with federal law (see page 12), many individuals may simply wish to use avenues available under state rules to try to keep from losing their right to vote, or to have it restored. This section describes what individuals may do—usually in the context of guardianship proceedings—to accomplish these goals.
In many states, a person is at risk of losing the right to vote when a guardianship is imposed. This is true in most states that have some type of voter-competence requirement. In states where the right to vote is automatically lost when a person is under guardianship, the ward may lose the right to vote even though the subject of voting was never raised. Often neither the ward nor the person seeking guardianship is aware that the right to vote is at stake in a guardianship hearing.
ST
AT
ES
tate
Co
nst
itu
tio
n/ E
lect
ora
l S
tatu
tes:
Per
son
s D
isq
ual
ifie
d
Gu
ard
ian
ship
/ C
on
serv
ato
rsh
ip S
tatu
tes
Men
tal H
ealt
h S
tatu
tes
Dev
elo
pm
enta
l Dis
abili
ties
/ M
enta
l Ret
ard
atio
n S
tatu
tes
NE
WH
AM
PS
HIR
EN
o C
onst
itutio
nal d
isqu
alifi
catio
n pr
ovis
ion.
No
disq
ualif
icat
ion
elec
tora
l sta
tute
.
N
o pe
rson
sha
ll be
dee
med
in
com
pete
nt to
vot
e or
to
exer
cise
any
oth
er c
ivil
right
so
lely
by
reas
on o
f tha
t pe
rson
's a
dmis
sion
to th
e m
enta
l hea
lth s
ervi
ces
syst
em.
N.H
. RE
V. S
TA
T.
AN
N. §
135
-C:5
6(II)
.
Per
sons
may
not
be
depr
ived
of
the
right
to v
ote
beca
use
they
hav
e or
are
rec
eivi
ng
serv
ices
for
a de
velo
pmen
tal
disa
bilit
y; d
epar
tmen
t rul
es
shal
l not
res
tric
t vot
ing
right
s.
N.H
. RE
V. S
TA
T. A
NN
. § 1
71-
A:1
4(I)
.
NE
WJE
RS
EY
On
Nov
. 6, 2
007,
NJ
vote
rs a
ppro
ved
cons
titut
iona
l am
endm
ent.
New
la
ngua
ge s
tate
s: N
o pe
rson
sha
ll ha
ve
the
right
of s
uffr
age
who
has
bee
n ad
judi
cate
d by
a c
ourt
of c
ompe
tent
ju
risdi
ctio
n to
lack
the
capa
city
to
unde
rsta
nd th
e ac
t of v
otin
g. P
revi
ous
lang
uage
sta
ted:
No
pers
on s
hall
have
th
e rig
ht o
f suf
frag
e w
ho is
an
“idio
t” o
r “in
sane
” pe
rson
. N.J
. CO
NS
T. a
rt 2
, § 1
, ¶
6.
No
pers
on s
hall
have
the
right
of
suffr
age
who
is a
n “id
iot”
or
“insa
ne”
pers
on. N
.J. S
TA
T. A
NN
. § 1
9:4-
1(1)
.
S
ubje
ct to
any
oth
er
prov
isio
ns o
f law
and
the
Con
stitu
tion
of N
ew J
erse
y an
d th
e U
nite
d S
tate
s, n
o pa
tient
sha
ll be
dep
rived
of
the
right
to v
ote
sole
ly b
y re
ason
of r
ecei
ving
trea
tmen
t. N
.J. S
TA
T. A
NN
. § 3
0:4-
24.2
(a).
Can
not b
e pr
esum
ed
inco
mpe
tent
bec
ause
has
be
en e
xam
ined
or
trea
ted
for
men
tal i
llnes
s. §
30:4
-24.
2(c)
Per
sons
rec
eivi
ng in
-pat
ient
as
sess
men
t or
trea
tmen
t may
re
gist
er a
nd v
ote
subj
ect t
o la
ws
and
Con
stitu
tion.
N.J
. S
TA
T. A
NN
. § 3
0:4-
27.1
1c(a
).
Adm
issi
on o
r re
side
ncy
at a
fa
cilit
y or
rec
eipt
of s
ervi
ces
shal
l not
dep
rive
pers
ons
of
thei
r rig
ht to
reg
iste
r an
d vo
te. N
.J. S
TA
T. A
NN
. §
30:6
D-4
(a).
Det
erm
inat
ion
of e
ligib
ility
for
MR
ser
vice
s do
es n
ot c
reat
e pr
esum
ptio
n of
in
com
pete
ncy;
can
not r
evok
e rig
ht to
vot
e ba
sed
sole
ly o
n pl
acem
ent a
t res
iden
tial
faci
lity.
Car
roll
v. C
obb,
354
A
.2d
355
(N.J
. Sup
er. C
t. 19
76).
NE
WM
EX
ICO
“Idi
ots”
and
“in
sane
” pe
rson
s no
t qu
alifi
ed to
vot
e. N
.M. C
ON
ST. a
rt. 7
, §
1.
An
inca
paci
tate
d pe
rson
for
who
m a
gua
rdia
n ha
s be
en
appo
inte
d re
tain
s al
l leg
al a
nd
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STA
TE L
AW
S A
FFEC
TIN
G T
HE
VO
TIN
G R
IGH
TS O
F PE
OPL
E W
ITH
MEN
TAL
DIS
ABI
LITI
ES54
Bazelon Center for Mental Health Law & National Disablity Rights Network
11S
TA
TE
Sta
te C
on
stit
uti
on
/ Ele
cto
ral
Sta
tute
s: P
erso
ns
Dis
qu
alif
ied
G
uar
dia
nsh
ip/
Co
nse
rvat
ors
hip
Sta
tute
s M
enta
l Hea
lth
Sta
tute
s D
evel
op
men
tal D
isab
iliti
es/
Men
tal R
etar
dat
ion
Sta
tute
s
NE
BR
AS
KA
Not
qua
lifie
d to
vot
e if
“non
com
pos
men
tis,”
unl
ess
rest
ored
to c
ivil
right
s.
NE. C
ON
ST. a
rt. 6
, § 2
.
No
pers
on is
qua
lifie
d to
vot
e if
“non
co
mpo
s m
entis
,” u
nles
s re
stor
ed to
civ
il rig
hts.
NE
B. R
EV. S
TA
T. §
32-
313(
1).
“Non
com
pos
men
tis”
defin
ed a
s “m
enta
lly in
com
pete
nt”
in v
oter
re
gist
ratio
n m
ater
ials
. N
EB. R
EV. S
TA
T.
§ 32
-312
. (“
Men
tally
inco
mpe
tent
” is
no
t syn
onym
ous
with
bei
ng u
nder
gu
ardi
ansh
ip; t
he la
tter
is im
pose
d in
N
ebra
ska
base
d on
“m
enta
l in
capa
city
”).
NE
VA
DA
No
pers
on w
ho h
as b
een
adju
dged
m
enta
lly in
com
pete
nt, u
nles
s re
stor
ed
to le
gal c
apac
ity, s
hall
be e
ntitl
ed to
the
priv
ilege
of e
lect
or.
NV. C
ON
ST. a
rt. 2
, §
1. The
cou
nty
cler
k sh
all c
ance
l the
vot
er
regi
stra
tion
if th
e “in
sani
ty”
or m
enta
l in
com
pete
nce
of th
e pe
rson
reg
iste
red
is le
gally
est
ablis
hed.
NV. R
EV. S
TA
T.
AN
N. §
293
.540
(2).
N
o pe
rson
adm
itted
to a
pu
blic
or
priv
ate
men
tal
heal
th fa
cilit
y pu
rsua
nt to
this
ch
apte
r sh
all,
by r
easo
n of
su
ch a
dmis
sion
, be
deni
ed
the
right
to v
ote,
unl
ess
spec
ifica
lly a
djud
icat
ed
inco
mpe
tent
and
has
not
be
en r
esto
red
to le
gal
capa
city
. NV. R
EV. S
TA
T.
AN
N. §
433
A.4
60(1
).
Med
ical
dire
ctor
sha
ll ev
alua
te e
very
six
mon
ths
to
dete
rmin
e if
suffi
cien
t cau
se
to r
emai
n un
able
to v
ote.
NV.
RE
V.S
TA
T.A
NN
.§
433A
.480
(1).
Know Your Rights in Guardianship Proceedings
If someone is trying to become your guardian, you should know what having a guardian will mean for your voting rights. If your state bars voting by people who have guardians or who are not able to vote (these states are listed in notes 8 and 9), you should ask the probate judge to keep your right to vote. You should also be prepared to show the judge that you are able to vote.22
What Must You Show to Retain the Right to Vote?
You should try to present more information than necessary to show that you are able to vote. You should explain your ability to understand what it means to vote and how the voting process works. Have a mental health professional confirm this. If you communicate in a way that the judge may not understand clearly, the mental health professional should be able to explain how you communicate to help the court understand.
What if You Have Already Lost the Right to Vote?
If you have already lost the right to vote when you got a guardian, you can always ask the probate court to restore it. The fact that you were found unable to vote at one time does not necessarily mean that you are unable to vote now.
[box continues on the next page]
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TE L
AW
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FFEC
TIN
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HE
VO
TIN
G R
IGH
TS O
F PE
OPL
E W
ITH
MEN
TAL
DIS
ABI
LITI
ES
53
Know Your Rights [continued]
Even in states that remove the right to vote from anyone under guardianship, some courts allow people to keep the right to vote, or to have it restored, if they can show they are able to vote.23
You may wish to contact the protection and advocacy agency in your state to help you figure out how to make sure your right to vote can be kept or restored in guardianship proceedings. You can find contact information for the agency in your state at http://www.ndrn.org.
Challenging State Voter-Competence Requirements
Someone who has lost the right to vote based on a state voter-competence requirement may be able to challenge the requirement on the ground that it violates federal law. Laws that bar people who are “mentally incompetent” or under guardianship from voting generally violate the Constitution and the Americans with Disabilities Act (see pages 25-28) if they are used to take away a person’s right to vote based on disability even if the person has the capacity to vote.
Fewer people lose their voting rights in states with laws that remove a person’s right to vote only after a court determines that he or she is not competent to vote. Even these laws, however, typically require certain people—usually those who are the subject of guardianship proceedings—to meet standards that are not imposed on other voters.
Probate courts in these states sometimes ask individuals who are the subject of guardianship proceedings to demonstrate an understanding of elections and politics that goes far beyond what
ST
AT
ES
tate
Co
nst
itu
tio
n/ E
lect
ora
l S
tatu
tes:
Per
son
s D
isq
ual
ifie
d
Gu
ard
ian
ship
/ C
on
serv
ato
rsh
ip S
tatu
tes
Men
tal H
ealt
h S
tatu
tes
Dev
elo
pm
enta
l Dis
abili
ties
/ M
enta
l Ret
ard
atio
n S
tatu
tes
ST
AT. §
524
.5-3
10(e
).
vote
. M
INN
. ST
AT. §
252
A.1
2.
MIS
SIS
SIP
PI
“Idi
ots”
and
“in
sane
” pe
rson
s ar
e no
t qu
alifi
ed e
lect
ors.
MIS
S. C
ON
ST. a
rt. 1
2,
§ 24
1.
“Idi
ots”
and
“in
sane
” pe
rson
s sh
all n
ot
be e
ntitl
ed o
r pe
rmitt
ed to
vot
e. M
ISS.
CO
DE A
NN
. § 2
3-15
-11.
A
dmis
sion
, tre
atm
ent,
or
com
mitm
ent d
oes
not d
epriv
e th
e rig
ht to
vot
e. M
ISS. C
OD
EA
NN
. § 4
1-21
-101
(b).
Adm
issi
on, t
reat
men
t, or
co
mm
itmen
t doe
s no
t dep
rive
the
right
to v
ote.
MIS
S. C
OD
EA
NN
. § 4
1-21
-101
(b).
MIS
SO
UR
IN
o pe
rson
und
er g
uard
ians
hip
of e
stat
e or
per
son
beca
use
of m
enta
l inc
apac
ity
nor
pers
ons
invo
lunt
arily
con
fined
in a
m
enta
l ins
titut
ion
can
vote
. M
O. C
ON
ST.
art.
VIII
, § 2
.
No
pers
on a
djud
icat
ed in
capa
cita
ted
is
entit
led
to v
ote.
MO
. RE
V. S
TA
T. §
11
5.13
3(2)
.
Per
son
who
had
bee
n co
mm
itted
to
men
tal h
ospi
tal m
any
year
s ea
rlier
but
di
d no
t hav
e a
guar
dian
was
not
di
squa
lifie
d un
der
the
cons
titut
iona
l pr
ovis
ion.
New
v. C
orro
ugh,
370
S
.W.2
d 32
3 (M
o. 1
963)
.
MO
NT
AN
AN
ot a
qua
lifie
d el
ecto
r if
of “
unso
und
min
d,”
as d
eter
min
ed b
y a
cour
t. M
ON
T.
CO
NS
T. a
rt 4
, § 2
.
No
pers
on a
djud
icat
ed to
be
of u
nsou
nd
min
d ha
s th
e rig
ht to
vot
e, u
nles
s he
ha
s be
en r
esto
red
to c
apac
ity a
s pr
ovid
ed b
y la
w. M
ON
T. C
OD
E A
NN
. §
13-1
-111
(3).
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TE L
AW
S A
FFEC
TIN
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HE
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TIN
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IGH
TS O
F PE
OPL
E W
ITH
MEN
TAL
DIS
ABI
LITI
ES52
Bazelon Center for Mental Health Law & National Disablity Rights Network
13S
TA
TE
Sta
te C
on
stit
uti
on
/ Ele
cto
ral
Sta
tute
s: P
erso
ns
Dis
qu
alif
ied
G
uar
dia
nsh
ip/
Co
nse
rvat
ors
hip
Sta
tute
s M
enta
l Hea
lth
Sta
tute
s D
evel
op
men
tal D
isab
iliti
es/
Men
tal R
etar
dat
ion
Sta
tute
s
MA
SS
A-
CH
US
ET
TS
Eve
ry c
itize
n…ex
cept
ing
pers
ons
unde
r gu
ardi
ansh
ip…
sha
ll ha
ve a
rig
ht to
vo
te in
suc
h el
ectio
n. M
AS
S. C
ON
ST.
amen
d, a
rt. 3
Sec
of S
tate
opi
nion
inte
rpre
ting
abov
e pr
ovis
ion
to r
equi
re a
spe
cific
find
ing
of
inco
mpe
tenc
e to
vot
e be
fore
di
senf
ranc
hisi
ng s
omeo
ne.
Eve
ry c
itize
n…no
t bei
ng a
per
son
unde
r gu
ardi
ansh
ip…
may
hav
e hi
s na
me
ente
red
on th
e lis
t of v
oter
s in
su
ch c
ity o
r to
wn,
and
may
vot
e th
erei
n in
any
suc
h el
ectio
n. M
AS
S. A
NN
. LA
WS
ch. 5
1 §
1.
N
o pe
rson
sha
ll be
dep
rived
of
the
right
to v
ote
sole
ly o
n th
e ba
sis
of a
dmis
sion
or
com
mitm
ent t
o a
men
tal
heal
th fa
cilit
y. 1
04 C
OD
EM
AS
S.
RE
G. 2
7-13
; Boy
d v.
B
oard
of R
egis
trar
s of
Vot
ers,
33
4 N
.E.2
d 62
9 (M
ass.
19
75).
MIC
HIG
AN
Legi
slat
ure
may
exc
lude
per
sons
bas
ed
on m
enta
l inc
ompe
tenc
e. M
ICH
. CO
NS
T.
art.
2, §
2.
No
disq
ualif
icat
ion
elec
tora
l sta
tute
.
MIN
NE
SO
TA
Per
sons
und
er g
uard
ians
hip,
“in
sane
,”
or n
ot m
enta
lly c
ompe
tent
are
not
en
title
d or
per
mitt
ed to
vot
e. M
INN
.C
ON
ST. a
rt. 7
, § 1
.
Not
elig
ible
to v
ote
if un
der
guar
dian
ship
in w
hich
the
cour
t ord
er
revo
kes
the
right
to v
ote
or a
djud
icat
ed
lega
lly in
com
pete
nt. M
INN
. ST
AT. §
20
1.01
4(2)
(b)(
c).
Unl
ess
othe
rwis
e or
dere
d by
the
cour
t, th
e w
ard
unde
r gu
ardi
ansh
ip r
etai
ns th
e rig
ht to
vo
te.
MIN
N. S
TA
T. §
524
.5-
313(
c)(8
).
Eac
h ye
ar, w
ithin
30
days
afte
r th
e an
nive
rsar
y da
te o
f an
appo
intm
ent,
a gu
ardi
an s
hall
send
or
deliv
er to
the
war
d a
notic
e …
of t
he s
tatu
s of
the
war
d's
right
to v
ote.
MIN
N.
Per
sons
may
not
be
depr
ived
of
the
right
to v
ote
beca
use
of
com
mitm
ent o
r tr
eatm
ent.
MIN
N. S
TA
T. §
253
B.2
3(2)
(a).
App
oint
men
t of t
he
com
mis
sion
er a
s co
nser
vato
r sh
all n
ot c
onst
itute
a ju
dici
al
findi
ng th
at th
e m
enta
lly
reta
rded
per
son
is le
gally
in
com
pete
nt e
xcep
t for
the
rest
rictio
ns w
hich
the
cons
erva
tors
hip
plac
es o
n th
e co
nser
vate
e. T
he
appo
intm
ent o
f a c
onse
rvat
or
shal
l not
dep
rive
the
cons
erva
tee
of th
e rig
ht to
is expected of the general public before they are permitted to vote. For example, individuals are sometimes asked to provide the names of various federal, state or local office holders, to explain the voting process and to explain their political views. Individuals who do not answer these questions to the satisfaction of the questioner are not permitted to vote.
Such inquiries hold people with mental disabilities to a higher standard than other voters. They also function as a type of unlawful literacy test for people with mental disabilities. The Voting Rights Act requires courts to apply the same standard to everyone (see pages 29-30).
What You Can Do if Told You May Not Vote
If you have been told that you may not register or vote because of a state rule about competence, you may contact the protection and advocacy agency for people with disabilities in your state. You can find its contact information on the web at http://www.ndrn.org. The protection and advocacy agency can help you figure out what to do. The Bazelon Center for Mental Health Law may also be able to help. You can reach the Center at (202) 467-5730.
VoterGuide.indd, Spread 17 of 36 - Pages (56, 17) 9/22/2008 2:52 PM
THE VOTING RIGHTS OF PEOPLE WITH MENTAL DISABILITIES
14
STA
TE L
AW
S A
FFEC
TIN
G T
HE
VO
TIN
G R
IGH
TS O
F PE
OPL
E W
ITH
MEN
TAL
DIS
ABI
LITI
ES
51
Advocating to Change the Voter-Competence Standard in Your State
We urge advocates and policymakers to promote the replacement of restrictive voter-competence standards with tailored standards that treat voters with disabilities
equally.
Voters with Mental Disabilities Should Not Be Held to a Higher Standard
Voter qualifications typically include, in addition to U.S. citizenship, residence in the state where the person is voting, being age 18 or over and, in some states, not having been convicted of a felony within a certain timeframe. No state subjects voters without disabilities to any type of standard to measure voting capacity. We do not expect voters without disabilities to demonstrate the rationale for their votes or their understanding of how the voting process works.
What Standard Should Be Used to Determine Voting Competence?
The need for any voter-competence requirement is remote at best. There is no indication that election systems in any of the states without voter-competence requirements have been compromised by the votes of people with mental disabilities.
To the extent that states choose to have a voter-competence requirement, all their laws and practices must hold all individuals to the same standard.24
Given that the essence of voting is expressing a choice, one appropriate standard for voting competence is whether a person can communicate, with or without accommodations, a choice whether to cast a vote. The American Bar Association’s House of Delegates recently adopted a similar standard: whether a person can communicate, with or without accommodations, “a specific desire to participate in the voting process.”25
ST
AT
ES
tate
Co
nst
itu
tio
n/ E
lect
ora
l S
tatu
tes:
Per
son
s D
isq
ual
ifie
d
Gu
ard
ian
ship
/ C
on
serv
ato
rsh
ip S
tatu
tes
Men
tal H
ealt
h S
tatu
tes
Dev
elo
pm
enta
l Dis
abili
ties
/ M
enta
l Ret
ard
atio
n S
tatu
tes
MA
INE
Per
sons
und
er g
uard
ians
hip
for
reas
on
of m
enta
l illn
ess
shal
l not
be
elec
tors
. M
E.C
ON
ST.A
RT.2
§1.
Hel
d u
nco
nst
itu
tio
nal
by
Do
e v.
R
ow
e 15
6 F
. Su
pp
.2d
35
(D. M
e.
2001
).F
ound
that
pro
cedu
res
in p
roba
te
cour
ts d
id n
ot g
ive
adeq
uate
due
pr
oces
s to
Pla
intif
fs (
wer
e no
t tol
d th
ey
wou
ld b
e di
senf
ranc
hise
d as
a r
esul
t of
the
guar
dian
ship
pro
cess
). A
lso
foun
d th
at th
e pr
ovis
ion
did
not p
ass
stric
t sc
rutin
y be
caus
e th
ere
was
not
su
ffici
ent c
orre
latio
n be
twee
n th
e en
ds
and
the
mea
ns—
ther
efor
e A
rt. I
I §1
viol
ates
the
Equ
al P
rote
ctio
n C
laus
e.
Mem
oran
dum
from
Dep
uty
Sec
reta
ry o
f S
tate
to A
ll M
unic
ipal
Cle
rks
and
Reg
istr
ars
(Sep
t. 4,
200
1) e
limin
atin
g th
e ba
n on
vot
ing
by in
divi
dual
s un
der
guar
dian
ship
by
reas
on o
f men
tal
illne
ss a
s of
Aug
. 9, 2
001.
P
atie
nts
in r
esid
entia
l car
e fa
cilit
ies
have
the
right
to v
ote
unle
ss fa
cilit
y de
term
ines
a
need
to r
estr
ict d
ue to
m
edic
al w
elfa
re, p
atie
nt is
ad
judi
cate
d in
com
pete
nt a
nd
findi
ng n
ot r
ever
sed,
or
othe
r st
atut
e or
rul
e re
stric
ts th
e rig
ht, b
ut n
ot s
olel
y on
ad
mis
sion
to a
hos
pita
l or
resi
dent
ial c
are
faci
lity.
ME.
RE
V. S
TA
T. A
NN
. tit.
34-
B §
38
03(1
)(A
-C).
Per
sons
with
men
tal
reta
rdat
ion
or a
utis
m m
ay n
ot
be d
enie
d vo
ting
right
s be
caus
e of
men
tal i
llnes
s,
unle
ss u
nder
gua
rdia
nshi
p.
ME. R
EV. S
TA
T. A
NN
. tit.
34-
B
§ 56
05(5
).
MA
RY
LA
ND
Sta
te m
ay r
egul
ate
or p
rohi
bit t
he r
ight
to
vot
e of
a p
erso
n un
der
care
or
guar
dian
ship
for
men
tal d
isab
ility
. MD
.C
ON
ST. a
rt 1
, § 4
;
Indi
vidu
al n
ot q
ualif
ied
to b
e a
regi
ster
ed v
oter
if u
nder
gua
rdia
nshi
p fo
r m
enta
l dis
abili
ty.
MD
.CO
DE
ELE
C.
LAW
3-1
02(b
)(2)
.
A
per
son
may
not
lose
the
right
to v
ote
sole
ly b
ecau
se o
f re
side
ncy
in a
faci
lity
for
a m
enta
l dis
orde
r.
MD
. HE
ALT
H-G
EN
. § 1
0-70
4.
A p
erso
n m
ay n
ot lo
se th
e rig
ht to
vot
e be
caus
e he
or
she
has
or is
rec
eivi
ng
serv
ices
for
a de
velo
pmen
tal
disa
bilit
y. M
D. H
EA
LTH
-GE
N. §
7-
1004
.
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STA
TE L
AW
S A
FFEC
TIN
G T
HE
VO
TIN
G R
IGH
TS O
F PE
OPL
E W
ITH
MEN
TAL
DIS
ABI
LITI
ES50
Bazelon Center for Mental Health Law & National Disablity Rights Network
15S
TA
TE
Sta
te C
on
stit
uti
on
/ Ele
cto
ral
Sta
tute
s: P
erso
ns
Dis
qu
alif
ied
G
uar
dia
nsh
ip/
Co
nse
rvat
ors
hip
Sta
tute
s M
enta
l Hea
lth
Sta
tute
s D
evel
op
men
tal D
isab
iliti
es/
Men
tal R
etar
dat
ion
Sta
tute
s
Any
one
disq
ualif
ied
unde
r th
e C
onst
itutio
n m
ay n
ot v
ote.
KY. R
EV.
ST
AT. §
116
.025
(1).
Indi
vidu
als
decl
ared
inco
mpe
tent
sol
ely
for
the
purp
ose
of a
ppoi
ntin
g a
com
mitt
ee to
man
age
thei
r w
elfa
re
chec
ks w
ould
not
be
disq
ualif
ied
from
vo
ting
and
are
prim
a fa
cie
qual
ified
to
vote
. 19
73 K
Y A
ttorn
ey G
ener
al O
p.
73-7
00.
Per
son
decl
ared
inco
mpe
tent
but
not
de
clar
ed “
insa
ne”
wou
ld b
e en
title
d to
re
gist
er to
vot
e if
othe
rwis
e qu
alifi
ed.
1976
KY
Atto
rney
Gen
eral
Op.
76-
549.
in n
eed
of a
gua
rdia
nshi
p or
co
nser
vato
rshi
p, th
e co
urt m
ust
spec
ifica
lly d
eter
min
e w
heth
er
the
pers
on r
etai
ns th
e rig
ht to
vo
te. K
Y.R
EV.S
TA
T. 3
87-
580(
3)(c
). W
ard
shal
l onl
y be
de
priv
ed o
f rig
ht to
vot
e if
the
cour
t sep
arat
ely
and
spec
ifica
lly
mak
es a
find
ing
on th
e re
cord
. K
Y.R
EV.S
TA
T. 3
87.5
90(1
0)
LO
UIS
IAN
AR
ight
to v
ote
may
be
susp
ende
d w
hile
in
terd
icte
d an
d ju
dici
ally
dec
lare
d m
enta
lly in
com
pete
nt. L
A. C
ON
ST. a
rt. 1
, §
10(A
).
An
indi
vidu
al w
ho h
as b
een
fully
In
terd
icte
d af
ter
bein
g ju
dici
ally
de
clar
ed to
be
men
tally
inco
mpe
tent
m
ay n
ot v
ote.
An
indi
vidu
al w
ho is
onl
y pa
rtia
lly in
terd
icte
d is
allo
wed
to v
ote
unle
ss th
ere
has
been
a s
peci
fic
susp
ensi
on o
f the
rig
ht to
vot
e. L
A.
RE
V. S
TA
T. A
NN
. § 1
8:10
2(A
)(2)
.
P
atie
nts
in tr
eatm
ent f
acili
ties
shal
l not
be
depr
ived
of t
he
right
to v
ote
beca
use
of
stat
us a
s a
patie
nt in
a
trea
tmen
t fac
ility
. LA. R
EV.
ST
AT. A
NN
. § 2
8:17
1(A
).
Dep
artm
ent o
f Hea
lth a
nd
Hos
pita
ls s
hall
esta
blis
h ru
les
and
regu
latio
ns to
ens
ure
that
pe
rson
s w
ith m
enta
l re
tard
atio
n w
ho a
re
com
pete
nt to
vot
e (h
ave
not
been
inte
rdic
ted
or p
artia
lly
inte
rdic
ted
with
a s
peci
fic
susp
ensi
on o
f the
rig
ht to
vo
te)
are
perm
itted
to v
ote.
LA
. RE
V. S
TA
T. A
NN
. §
18:1
02.1
(B).
In sum, experience in many states suggests that it is unnecessary to impose any limitation on the fundamental right to vote of people with mental disabilities. Where states decide to have such limitations, the standard for voting should be the same for a person with a mental disability as for anyone else: whether the person can express a choice.
VoterGuide.indd, Spread 19 of 36 - Pages (54, 19) 9/22/2008 2:52 PM
THE VOTING RIGHTS OF PEOPLE WITH MENTAL DISABILITIES
16
STA
TE L
AW
S A
FFEC
TIN
G T
HE
VO
TIN
G R
IGH
TS O
F PE
OPL
E W
ITH
MEN
TAL
DIS
ABI
LITI
ES
49
Photo-Identification Laws
A number of states have begun to require voters to present a driver’s license or other government-issued photo-ID in order to vote. These requirements may place both financial
and practical burdens on voters. Even where laws require provision of a free photo-ID to indigent individuals, fees are often required to obtain the necessary documentation, such as a birth certificate. Voters with mental or physical disabilities who do not already have a photo-ID may face particular challenges in obtaining one.
As of June 2008, seven states ask voters to show photo-identification.26 In five of these states, voters lacking a photo-ID can vote if they submit an affidavit and/or provide additional forms of identification. In Indiana and Georgia, voters without a photo-ID can only vote a provisional ballot. In Georgia, these voters must return later with photo-IDs. In Indiana they may return with either photo-IDs or an affidavit explaining that indigence or religious principles prevented them from obtaining one.27
While a state court struck down Missouri’s photo-ID law,28 the U. S. Supreme Court recently upheld Indiana’s law.29 The Supreme Court’s decision was based on the failure in that case to demonstrate that any group of voters was actually subjected to excessive burdens.
The Supreme Court’s decision leaves room for future constitutional challenges to voter-identification laws that present substantial burdens on individuals’ right to vote. Such laws may also violate state constitutions that are more protective than the U.S. Constitution. Finally, they may violate the Americans with Disabilities Act (ADA—see page 27) if they screen out voters with disabilities and are not necessary, or if a state fails to make reasonable modifications necessary to ensure that voter-identification laws do not deprive people with disabilities of equal voting opportunities.30
ST
AT
ES
tate
Co
nst
itu
tio
n/ E
lect
ora
l S
tatu
tes:
Per
son
s D
isq
ual
ifie
d
Gu
ard
ian
ship
/ C
on
serv
ato
rsh
ip S
tatu
tes
Men
tal H
ealt
h S
tatu
tes
Dev
elo
pm
enta
l Dis
abili
ties
/ M
enta
l Ret
ard
atio
n S
tatu
tes
IOW
AN
o id
iot,
or in
sane
per
son,
or
pers
on
conv
icte
d of
any
infa
mou
s cr
ime,
sha
ll be
ent
itled
to th
e pr
ivile
ges
of a
n el
ecto
r. I
OW
A C
ON
ST.a
rt. 2
, § 5
.
A p
erso
n w
ho is
“in
com
pete
nt to
vot
e”
is d
isqu
alifi
ed fr
om r
egis
terin
g an
d vo
ting.
Cer
tific
atio
n by
the
cler
k of
the
dist
rict c
ourt
that
a c
ourt
has
foun
d th
e pe
rson
no
long
er in
com
pete
nt s
hall
qual
ify s
uch
pers
on to
vot
e ag
ain
if ot
herw
ise
elig
ible
. IO
WA
CO
DE
§48
A.6
(2).
Whe
n a
guar
dian
is a
ppoi
nted
fo
r a
pers
on w
ith m
enta
l re
tard
atio
n, th
e co
urt s
hall
mak
e a
sepa
rate
det
erm
inat
ion
as to
th
e w
ard'
s co
mpe
tenc
y to
vot
e.
The
cou
rt s
hall
find
a w
ard
inco
mpe
tent
to v
ote
only
upo
n de
term
inin
g th
at th
e pe
rson
la
cks
suffi
cien
t men
tal c
apac
ity
to c
ompr
ehen
d an
d ex
erci
se th
e rig
ht to
vot
e. I.
C.A
. § 6
33.5
56.
Whe
n gu
ardi
ansh
ip in
whi
ch th
e or
der
dete
rmin
ed th
e rig
ht to
vo
te is
term
inat
ed, p
erso
n ca
n re
ques
t rei
nsta
tem
ent o
f vot
ing
right
s as
par
t of t
he te
rmin
atio
n pr
oced
ure
or in
a s
epar
ate
dete
rmin
atio
n.I.C
.A. §
633
.679
.
The
vot
e of
a le
gal i
ncom
pete
nt
shal
l be
cast
by
the
guar
dian
al
ong
with
a w
ritte
n sw
orn
stat
emen
t. I.
C.A
. § 4
68.5
13.
B
eing
com
mitt
ed d
oes
not
bar
the
right
to v
ote
unle
ss
the
cour
t mak
es a
sep
arat
e de
term
inat
ion
that
the
pers
on
lack
s th
e m
enta
l cap
acity
to
com
preh
end
and
exer
cise
the
right
to v
ote.
I.C
.A. §
222.
16.
In a
n or
der
com
mitt
ing
a pe
rson
bas
ed o
n m
enta
l re
tard
atio
n, th
e co
urt s
hall
incl
ude
a fin
ding
as
to
whe
ther
the
pers
on h
as
suffi
cien
t men
tal c
apac
ity to
co
mpr
ehen
d an
d ex
erci
se th
e rig
ht to
vot
e. I
.C.A
. §22
2.31
.
KA
NS
AS
Legi
slat
ure
may
exc
lude
per
sons
from
vo
ting
beca
use
of m
enta
l illn
ess.
KS.
CO
NS
T. a
rt 5
, § 2
.
No
disq
ualif
icat
ion
stat
ute.
KE
NT
UC
KY
“Idi
ots”
and
“in
sane
” pe
rson
s sh
all n
ot
have
the
right
to v
ote.
KY. C
ON
ST. §
14
5(3)
.If
a co
urt f
inds
that
a p
erso
n is
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STA
TE L
AW
S A
FFEC
TIN
G T
HE
VO
TIN
G R
IGH
TS O
F PE
OPL
E W
ITH
MEN
TAL
DIS
ABI
LITI
ES48
Bazelon Center for Mental Health Law & National Disablity Rights Network
17S
TA
TE
Sta
te C
on
stit
uti
on
/ Ele
cto
ral
Sta
tute
s: P
erso
ns
Dis
qu
alif
ied
G
uar
dia
nsh
ip/
Co
nse
rvat
ors
hip
Sta
tute
s M
enta
l Hea
lth
Sta
tute
s D
evel
op
men
tal D
isab
iliti
es/
Men
tal R
etar
dat
ion
Sta
tute
s
ILL
INO
ISN
o di
squa
lific
atio
n st
atut
e.
Eve
ry p
atie
nt o
f any
hos
pita
l or
men
tal
inst
itutio
n in
this
Sta
te s
hall
be d
eem
ed
a re
side
nt o
f the
tow
n, c
ity, v
illag
e or
el
ectio
n di
stric
t or
prec
inct
in w
hich
he
resi
ded
next
prio
r to
bec
omin
g a
patie
nt
of s
uch
hosp
ital o
r m
enta
l ins
titut
ion.
H
owev
er, t
he te
rm "
hosp
ital"
does
not
in
clud
e sk
illed
nur
sing
faci
litie
s. I
L S
T
CH
10
§ 5/
3-4.
Any
per
son
who
is a
res
iden
t of a
fa
cilit
y lic
ense
d or
cer
tifie
d pu
rsua
nt to
th
e N
ursi
ng H
ome
Car
e A
ct fo
r 30
day
s or
long
er, a
nd w
ho is
a U
.S. c
itize
n an
d ha
s re
side
d in
this
Sta
te a
nd e
lect
ion
dist
rict 3
0 da
ys p
rece
ding
any
ele
ctio
n sh
all b
e en
title
d to
vot
e in
the
elec
tion
dist
rict i
n w
hich
any
suc
h ho
me
in w
hich
he
is a
res
iden
t is
loca
ted,
pro
vide
d th
at
he s
hall
decl
are
upon
oat
h th
at it
was
hi
s bo
na fi
de in
tent
ion
at th
e tim
e he
en
tere
d sa
id h
ome
to b
ecom
e a
resi
dent
ther
eof.
IL S
T C
H 1
0 §
5/3-
3.
IND
IAN
AN
o di
squa
lific
atio
n pr
ovis
ion.
No
disq
ualif
icat
ion
stat
ute.
D
eten
tion
or c
omm
itmen
t do
es n
ot d
epriv
e pe
rson
s of
th
e rig
ht to
vot
e. IN
D. C
OD
E §
12
-26-
2-8(
a)(1
)(F
).
Voter Challenges Based on Mental Competence
Competence challenges to voters with mental disabilities, although they are not permitted in many states, have sometimes been cynically used to affect election results.
Example: Shortly before the November 2004 election, The New York Times reported that political party officials in Ohio were training thousands of recruits to challenge voters suspected of being ineligible to vote. Among other things, the recruits were “taught how to challenge mentally disabled voters who are assisted by anyone other than their legal guardians.”31 Most states’ laws provide for challenges to a person’s eligibility
to vote.32 State law governs who may bring a challenge and what types of evidence must be presented to support a challenge. Visit http://www.bazelon.org/issues/voting for a link to a chart summarizing each state’s requirements as to the permissible grounds for challenges, the individuals who may bring a challenge, and the evidence and procedures required.
Is Competence a Permitted Ground for Challenging a Voter?
In many states, lack of competence is not a permissible basis for a voter challenge, even if the state has a voter-competence requirement.33 And if the state does not have a voter-competence requirement, then a person may not be disqualified on the basis of competence.
In some states, competence may form the basis for challenges brought before the election, but not for challenges at the polling place. Polling-place challenges are sometimes limited to factors that are more easily determined, such as whether the voter is the person he or she claims to be or is voting at the correct precinct.34
Even when challenges based on competence are allowed, many people wrongly believe that individuals with mental disabilities may be challenged based simply on the fact that they
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18
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TE L
AW
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FFEC
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HE
VO
TIN
G R
IGH
TS O
F PE
OPL
E W
ITH
MEN
TAL
DIS
ABI
LITI
ES
47
have a disability, that they have a guardian, that their guardian is not present when they vote or other inappropriate grounds.
Who May Challenge a Voter?
Voter-challenge laws also typically restrict who may bring a challenge. While many states allow other registered voters to challenge a voter, in some states only certain election officials or appointed challengers are permitted to bring a challenge.35
What Type of Evidence is Required for a Challenge?
Voter-challenge laws usually require the challenger to present certain types of evidence and follow specific procedures. Some states, for example, require a challenger to demonstrate personal knowledge and/or reason to believe that the challenged voter does not meet the requirements to vote.36 Demanding standards of proof may be required.37 Accordingly, a voter challenge based on competence may require specific proof and personal knowledge that the person challenged does not meet voter qualifications related to competence.
A Person Who is Challenged Cannot be Prevented from Casting a Provisional Ballot
Regardless of the procedures that state law may require for voter challenges, the federal Help America Vote Act entitles a person whose eligibility to vote is in doubt to cast a provisional ballot if the person believes he or she is registered and eligible to vote in the appropriate jurisdiction.38 The provisional ballot will then be counted if it is later determined that the person is eligible to vote. A voter who is challenged at the polling place should always ask for a provisional ballot if told that he or she is not eligible to vote.
ST
AT
ES
tate
Co
nst
itu
tio
n/ E
lect
ora
l S
tatu
tes:
Per
son
s D
isq
ual
ifie
d
Gu
ard
ian
ship
/ C
on
serv
ato
rsh
ip S
tatu
tes
Men
tal H
ealt
h S
tatu
tes
Dev
elo
pm
enta
l Dis
abili
ties
/ M
enta
l Ret
ard
atio
n S
tatu
tes
HA
WA
IIN
o pe
rson
who
is “
non
com
pos
men
tis”
shal
l be
qual
ified
to v
ote.
HA
W. C
ON
ST.
art.
2, §
2.
Whe
neve
r th
e cl
erk
rece
ives
from
the
depa
rtm
ent o
f hea
lth o
r an
y in
form
ing
agen
cy, i
nfor
mat
ion
of. .
. ad
judi
catio
n as
an
inca
paci
tate
d pe
rson
und
er th
e pr
ovis
ions
of c
hapt
er 5
60. .
. th
e cl
erk
shal
l the
reup
on m
ake
such
in
vest
igat
ion
as m
ay b
e ne
cess
ary
to
prov
e or
dis
prov
e th
e in
form
atio
n,
givi
ng th
e pe
rson
con
cern
ed, i
f av
aila
ble,
not
ice
and
an o
ppor
tuni
ty to
be
hea
rd. I
f afte
r th
e in
vest
igat
ion
the
cler
k fin
ds th
at th
e pe
rson
is .
. in
capa
cita
ted
to th
e ex
tent
that
the
pers
onla
cks
suff
icie
nt
un
der
stan
din
g o
r ca
pac
ity
to m
ake
or
com
mu
nic
ate
resp
on
sib
le
dec
isio
ns
con
cern
ing
vo
tin
g .
. . th
e cl
erk
shal
l rem
ove
the
nam
e of
the
pers
on fr
om th
e re
gist
er.
HA
W. R
EV.
ST
AT. §
11-
23(a
).
Def
initi
on o
f men
tal i
ncap
acity
as
ref
eren
ced
in e
lect
oral
st
atut
es: "
Inca
paci
tate
d pe
rson
" m
eans
an
indi
vidu
al w
ho, f
or
reas
ons
othe
r th
an b
eing
a
min
or, i
s un
able
to r
ecei
ve a
nd
eval
uate
info
rmat
ion
or m
ake
or
com
mun
icat
e de
cisi
ons
to s
uch
an e
xten
t tha
t the
indi
vidu
al
lack
s th
e ab
ility
to m
eet
esse
ntia
l req
uire
men
ts fo
r ph
ysic
al h
ealth
, saf
ety,
or
self-
care
, eve
n w
ith a
ppro
pria
te a
nd
reas
onab
ly a
vaila
ble
tech
nolo
gica
l ass
ista
nce.
H
AW
. RE
V. S
TA
T. §
560
:5-1
02.
Adm
issi
on to
psy
chia
tric
fa
cilit
y its
elf d
oes
not m
odify
th
e rig
ht to
vot
e.
HA
W. R
EV. S
TA
T. §
334
-61.
IDA
HO
No
disq
ualif
icat
ion
stat
ute.
Men
tal h
ealth
faci
lity
cann
ot
deny
rig
ht to
vot
e un
less
rig
ht
limite
d by
prio
r co
urt o
rder
. ID
AH
O C
OD
E §
66-
346(
a)(6
).
Dev
elop
men
tally
dis
able
d pe
rson
s ha
ve th
e rig
ht to
vot
e un
less
lim
ited
by p
rior
cour
t or
der.
IDA
HO
CO
DE §
66-
412(
3)(j)
.
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STA
TE L
AW
S A
FFEC
TIN
G T
HE
VO
TIN
G R
IGH
TS O
F PE
OPL
E W
ITH
MEN
TAL
DIS
ABI
LITI
ES46
Bazelon Center for Mental Health Law & National Disablity Rights Network
19S
TA
TE
Sta
te C
on
stit
uti
on
/ Ele
cto
ral
Sta
tute
s: P
erso
ns
Dis
qu
alif
ied
G
uar
dia
nsh
ip/
Co
nse
rvat
ors
hip
Sta
tute
s M
enta
l Hea
lth
Sta
tute
s D
evel
op
men
tal D
isab
iliti
es/
Men
tal R
etar
dat
ion
Sta
tute
s
FO
RM
S O
F G
OV
ER
NM
EN
TA
L O
RG
AN
IZA
TIO
N -
RE
GU
LAT
ION
OF
E
LEC
TIV
E F
RA
NC
HIS
E .
FL
OR
IDA
Not
qua
lifie
d to
vot
e if
adju
dica
ted,
in
this
or
any
othe
r st
ate,
to b
e m
enta
lly
inco
mpe
tent
, unt
il th
e di
sabi
lity
has
been
rem
oved
or
civi
l rig
hts
have
bee
n re
stor
ed.
FLA
. CO
NS
T. A
rt. 6
§ 4
(a).
A r
esid
ent o
f a r
esid
entia
l fac
ility
who
ha
s re
ache
d hi
s ei
ghte
enth
birt
hday
an
d is
oth
erw
ise
qual
ified
to v
ote
is
elig
ible
to v
ote,
pro
vide
d su
ch p
erso
n ha
s no
t bee
n ad
judi
cate
d m
enta
lly
inco
mpe
tent
.Op
.Att
y.G
en.,
074-
15,
Jan
. 9, 1
974.
Not
ent
itled
to v
ote
if ad
judi
cate
d m
enta
lly in
capa
cita
ted
with
reg
ard
to
votin
g in
this
or
any
othe
r st
ate
and
right
not
res
tore
d.
FLA
. ST
AT. §
97.
041(
2)(a
).
Rig
ht to
vot
e ca
n be
rem
oved
if
a pe
rson
is d
eter
min
ed to
be
inca
paci
tate
d.F
LA. S
TA
T. §
744
.321
5(2)
(b).
Per
sons
und
er g
uard
ians
hip
mus
t be
eval
uate
d fo
r vo
ting
disq
ualif
icat
ion.
FLA
. ST
AT. §
74
4.33
1(3)
(d)(
2).
Any
pat
ient
who
is e
ligib
le to
vo
te h
as th
e rig
ht to
vot
e an
d th
e de
part
men
t sha
ll es
tabl
ish
rule
s to
ena
ble
patie
nts
to o
btai
n vo
ter
regi
stra
tion
form
s,
appl
icat
ions
for
abse
ntee
ba
llots
, and
abs
ente
e ba
llots
. F
LA. S
TA
T. §
394
.459
(7).
No
othe
rwis
e qu
alifi
ed p
erso
n sh
all,
by r
easo
n of
hav
ing
a de
velo
pmen
tal d
isab
ility
, be
deni
ed th
e rig
ht to
vot
e in
pu
blic
ele
ctio
ns.
FLA
. ST
AT. §
393
.13(
3)(j)
.
GE
OR
GIA
A p
erso
n ad
judi
cate
d m
enta
lly
inco
mpe
tent
can
not r
egis
ter,
rem
ain
regi
ster
ed, o
r vo
te u
nles
s th
e di
sabi
lity
has
been
rem
oved
. GA. a
rt. 2
, § 1
, ¶
III(b
); G
A. C
OD
E A
NN
. § 2
1-2-
216(
b).
A p
erso
n m
ust b
e ad
judi
cate
d m
enta
lly
inco
mpe
tent
bef
ore
the
right
to v
ote
is
rem
oved
. 19
95 O
p. A
tt’y
Gen
. No.
95-
27.
The
app
oint
men
t of a
gua
rdia
n is
not
a d
eter
min
atio
n re
gard
ing
the
right
of t
he w
ard
to v
ote.
G
A.C
OD
EA
NN
. §
29-4
-20(
b)
Pat
ient
s m
ay v
ote
if ot
herw
ise
elig
ible
und
er s
tate
la
w.
Fac
ility
adm
inis
trat
ors
shal
l per
mit
and
reas
onab
ly
assi
st p
atie
nts
with
re
gist
ratio
n, v
otin
g pr
ereq
uisi
tes,
and
abs
ente
e ba
llots
. G
A. C
OD
E A
NN
. §
37-3
-144
.
Clie
nts
may
vot
e if
othe
rwis
e el
igib
le. F
acili
ty
adm
inis
trat
ors
shal
l per
mit
and
reas
onab
ly a
ssis
t pa
tient
s w
ith r
egis
trat
ion,
vo
ting
prer
equi
site
s, a
nd
abse
ntee
bal
lots
. GA. C
OD
EA
NN
. § 3
7-4-
104.
What You Can Do if Challenged at the Polls
If an election official or another person at the polling place says you are not competent to vote, you should ask for a provisional ballot. You have a right to cast a provisional ballot no matter what the state’s laws and regulations say about your eligibility to vote. It will be counted after Election Day if you are registered and eligible to vote. You can contact the protection and advocacy agency in your state to help you show that your provisional ballot should be counted. You can find the agency’s contact information on the web at http://www.ndrn.org.
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THE VOTING RIGHTS OF PEOPLE WITH MENTAL DISABILITIES
20
STA
TE L
AW
S A
FFEC
TIN
G T
HE
VO
TIN
G R
IGH
TS O
F PE
OPL
E W
ITH
MEN
TAL
DIS
ABI
LITI
ES
45
Voters Have the Right to Assistance
People who need help in voting because of a disability have the right to help from a person of their choice.39 This can be a family member, a friend, a caregiver, a poll worker or almost
anyone else. The only people who are not allowed to help are the person’s employer or an agent of the employer, or, if the voter belongs to a union, an officer or agent of the union.40
A helper must respect the voter’s choices and may not substitute his or her own choices for the voter’s. Nor can the helper make assumptions about how the person wants to vote. If the helper cannot reliably determine the voter’s intent, he or she cannot cast a vote for that person.
Who Can Help Me Vote, and How?
A family member, friend or caregiver can come with you to help, or you can ask a poll worker for assistance. You can tell your helper what information to fill in on a registration form, if you cannot complete the form because of a disability. In an election, you can say what choices you want among those listed on a ballot.
Your helper can also explain instructions in your language, demonstrate the voting process, read ballot choices or use simplified language to explain the choices on the ballot. He or she can enter a voting booth with you if your disability makes it difficult to enter the booth alone and vote there without assistance.
If your helper marks a ballot for you, it must be for the choices you have expressed, not the helper’s. If you don’t want to cast a vote on an issue or for a candidate, the helper must leave that choice blank.
ST
AT
ES
tate
Co
nst
itu
tio
n/ E
lect
ora
l S
tatu
tes:
Per
son
s D
isq
ual
ifie
d
Gu
ard
ian
ship
/ C
on
serv
ato
rsh
ip S
tatu
tes
Men
tal H
ealt
h S
tatu
tes
Dev
elo
pm
enta
l Dis
abili
ties
/ M
enta
l Ret
ard
atio
n S
tatu
tes
DE
LA
WA
RE
No
pers
on a
djud
ged
men
tally
in
com
pete
nt .
. . o
r in
capa
cita
ted
unde
r th
e pr
ovis
ions
of t
his
Con
stitu
tion
from
vo
ting,
sha
ll en
joy
the
right
of a
n el
ecto
r. D
EL.
CO
NS
T. a
rt. 5
, § 2
.
No
pers
on a
djud
ged
men
tally
in
com
pete
nt. .
. sh
all b
e a
qual
ified
vo
ter.
For
pur
pose
s of
this
cha
pter
, the
te
rm "
adju
dged
men
tally
inco
mpe
tent
" re
fers
to a
spe
cific
find
ing
in a
judi
cial
gu
ardi
ansh
ip o
r eq
uiva
lent
pro
ceed
ing,
ba
sed
on c
lear
and
con
vinc
ing
evid
ence
that
the
indi
vidu
al h
as a
se
vere
cog
nitiv
e im
pairm
ent w
hich
pr
eclu
des
exer
cise
of b
asic
vot
ing
judg
men
t. 1
5 D
EL.
CO
DE A
NN
. § 1
701
DIS
TR
ICT
OF
C
OL
UM
BIA
Not
a q
ualif
ied
elec
tor
if m
enta
lly
inco
mpe
tent
as
dete
rmin
ed b
y a
cour
t of
com
pete
nt ju
risdi
ctio
n.N
EW
C
OLU
MB
IA C
ON
ST.A
RT. 5
§ 1
(c).
Not
a q
ualif
ied
elec
tor
if m
enta
lly
inco
mpe
tent
as
adju
dged
by
a co
urt o
f co
mpe
tent
juris
dict
ion.
DC
CO
DE §
1-10
01.0
2.
An
inca
paci
tate
d pe
rson
is n
ot
cons
ider
ed in
com
pete
nt a
nd
reta
ins
all l
egal
rig
hts
and
abili
ties
othe
r th
an th
ose
expr
essl
y lim
ited
or c
urta
iled
in
the
orde
r of
app
oint
men
t of a
gu
ardi
an o
r in
a p
rote
ctiv
e pr
ocee
ding
, or
subs
eque
nt
orde
r of
the
cour
t. D
C C
ode
§21-
2004
.
Per
sons
und
er g
uard
ians
hip
not
entit
led
to th
e el
ectiv
e fr
anch
ise.
H
IST
OR
Y O
F D
.C.C
OD
E,2
001
ED
.,A
CT
S R
ELA
TIN
G T
O T
HE
E
ST
AB
LIS
HM
EN
T O
F T
HE
DIS
TR
ICT
O
FC
OLU
MB
IA A
ND
ITS
VA
RIO
US
A p
erso
n ad
mitt
ed o
r co
mm
itted
for
trea
tmen
t pu
rsua
nt to
this
cha
pter
may
no
t, by
rea
son
of th
e ad
mis
sion
or
trea
tmen
t, be
de
nied
the
right
to v
ote
unle
ss th
e pe
rson
has
bee
n ad
judi
cate
d in
com
pete
nt a
nd
has
not b
een
rest
ored
to le
gal
capa
city
. D
CC
OD
E §
21-
564(
a).
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STA
TE L
AW
S A
FFEC
TIN
G T
HE
VO
TIN
G R
IGH
TS O
F PE
OPL
E W
ITH
MEN
TAL
DIS
ABI
LITI
ES44
Bazelon Center for Mental Health Law & National Disablity Rights Network
21S
TA
TE
Sta
te C
on
stit
uti
on
/ Ele
cto
ral
Sta
tute
s: P
erso
ns
Dis
qu
alif
ied
G
uar
dia
nsh
ip/
Co
nse
rvat
ors
hip
Sta
tute
s M
enta
l Hea
lth
Sta
tute
s D
evel
op
men
tal D
isab
iliti
es/
Men
tal R
etar
dat
ion
Sta
tute
s
CA
L. E
LEC
. CO
DE §
220
8(b)
. C
onse
rvat
ee’s
abi
lity
to c
ompl
ete
affid
avit
of v
oter
reg
istr
atio
n sh
all b
e re
view
ed y
early
or
bien
nial
ly.
CA
L.E
LEC
. CO
DE §
220
9(a)
.
CO
LO
RA
DO
No
Con
stitu
tiona
l dis
qual
ifica
tion
prov
isio
n.
Rig
ht to
vot
e is
not
lost
bec
ause
of
conf
inem
ent i
n a
stat
e in
stitu
tion
for
pers
ons
with
men
tal i
llnes
s.
CO
LO. R
EV. S
TA
T. §
1-2
-103
(5).
P
eopl
e re
ceiv
ing
eval
uatio
n,
care
, or
trea
tmen
t for
men
tal
illne
ss s
hall
be g
iven
the
oppo
rtun
ity to
exe
rcis
e hi
s rig
ht to
reg
iste
r an
d to
vot
e in
pr
imar
y an
d ge
nera
l el
ectio
ns. T
he a
genc
y or
fa
cilit
y pr
ovid
ing
eval
uatio
n,
care
, or
trea
tmen
t sha
ll as
sist
su
ch p
erso
ns, u
pon
thei
r re
ques
t, to
obt
ain
vote
r re
gist
ratio
n fo
rms,
ap
plic
atio
ns fo
r ab
sent
ee
ballo
ts, a
nd a
bsen
tee
ballo
ts
and
to c
ompl
y w
ith a
ny o
ther
pr
ereq
uisi
te fo
r vo
ting.
CO
LO.
RE
V. S
TA
T. §
27-
10-1
19.
All
deve
lopm
enta
lly d
isab
led
pers
ons
who
are
elig
ible
to
vote
und
er th
e la
w h
ave
the
right
to v
ote
and
serv
ice
agen
cies
sho
uld
assi
st th
ose
rece
ivin
g se
rvic
es w
ith
regi
stra
tion,
app
licat
ions
, and
vo
ting.
CO
LO. R
EV. S
TA
T. §
27
-10.
5-11
9.
CO
NN
-E
CT
ICU
TN
o m
enta
lly in
com
pete
nt p
erso
n sh
all
be a
dmitt
ed a
s an
ele
ctor
. CO
NN
. GE
N.
ST
AT. §
9-1
2(a)
.
The
gua
rdia
n or
con
serv
ator
of
an in
divi
dual
may
file
a p
etiti
on
in p
roba
te c
ourt
to d
eter
min
e su
ch in
divi
dual
's c
ompe
tenc
y to
vo
te in
a p
rimar
y, r
efer
endu
m o
r el
ectio
n. C
ON
N. G
EN
. ST
AT.
§ 45
a-70
3.
Per
sons
und
er h
ospi
tal-
lizat
ion
or tr
eatm
ent m
ay v
ote
unle
ss a
spe
cific
find
ing
is
mad
e in
a g
uard
ians
hip
proc
eedi
ng th
at th
ey a
re
inca
pabl
e to
vot
e an
d pu
t un
der
guar
dian
ship
. CO
NN
.G
EN
. ST
AT. §
17a
-541
.
A Helper Must Respect the Voter’s Privacy
A person who is helping another to vote must respect the person’s privacy at all times during the voting process.41 After the person has completed a ballot, the helper should offer to make sure that the ballot accurately reflects the voter’s choices and should offer to correct any mistakes and check the ballot for additional choices that may have been missed.42
Election Officials Must Provide Help
A voter may ask election officials for help. Election officials must ensure that their voting systems are readily accessible to people with mental disabilities.43 They must make reasonable modifications to rules and policies needed to help people with mental disabilities register or vote.44 For example, having a poll worker or other election official explain ballot instructions or content in simpler language at the request of a voter with a disability would be a reasonable modification. Election officials may also need to provide assistance by visiting voters with disabilities in nursing homes and other care settings in order to help them apply for, complete and submit absentee ballots, if residents choose to vote by absentee ballot.
Service Providers Must Provide Help
A voter may wish to get help from a service provider. Nursing homes, hospitals, group homes, board-and-care homes and other facilities providing care and services to individuals with disabilities must also make reasonable modifications to their policies and practices to ensure that residents who need help with the voting process receive it.45 These modifications usually include helping residents to register, to get to the polling place or to apply for and complete an absentee ballot if the resident chooses to vote by absentee ballot.
Example: On Election Day in November 2004, a number of residents of a state psychiatric hospital in New York were prevented from voting because their privileges to leave the
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22
STA
TE L
AW
S A
FFEC
TIN
G T
HE
VO
TIN
G R
IGH
TS O
F PE
OPL
E W
ITH
MEN
TAL
DIS
ABI
LITI
ES
43
facility had been taken away as a result of failure to comply with hospital rules. Hospital staff did not attempt to obtain absentee ballots to enable the residents to vote. The matter was resolved after a resident contacted advocates for assistance and the hospital ultimately agreed to take the residents to the polling place to enable them to vote.In order to promote compliance with the law, states should
require nursing homes and other residential facilities for individuals with disabilities and older adults to:
provide information to residents about how to register to vote in the facility’s jurisdiction and how to change their address for voting purposes if necessary;
ask all residents whether they want to register and offer help to those who want to do so;
encourage residents to exercise their right to vote and permit voter education to occur on site; and
offer assistance to residents in applying for and submitting absentee ballots sufficiently in advance of the deadlines.
Disability Services Offices Must Provide Help with Registration
The National Voter Registration Act, or “Motor Voter” law, requires states to designate as voter registration agencies: (1) all offices that are primarily engaged in providing disability services and that receive state funds, and (2) all offices that provide public assistance.46 These agencies must make available to their clients voter registration forms and assistance in completing them, and must accept completed applications and transmit them to state officials.47 Such agencies include vocational rehabilitation offices, offices of mental health and mental retardation, offices on aging, offices that process Medicaid applications and other disability services offices.
ST
AT
ES
tate
Co
nst
itu
tio
n/ E
lect
ora
l S
tatu
tes:
Per
son
s D
isq
ual
ifie
d
Gu
ard
ian
ship
/ C
on
serv
ato
rsh
ip S
tatu
tes
Men
tal H
ealt
h S
tatu
tes
Dev
elo
pm
enta
l Dis
abili
ties
/ M
enta
l Ret
ard
atio
n S
tatu
tes
An
inca
paci
tate
d pe
rson
for
who
m a
gua
rdia
n ha
s be
en
appo
inte
d is
not
pre
sum
ed to
be
inco
mpe
tent
and
ret
ains
all
lega
l an
d ci
vil r
ight
s ex
cept
thos
e w
hich
hav
e be
en e
xpre
ssly
lim
ited
by c
ourt
ord
er o
r ha
ve
been
spe
cific
ally
gra
nted
by
orde
r to
the
guar
dian
by
the
cour
t. A
RK.S
TA
T.A
NN
. § 2
8-65
-10
6.
CA
LIF
OR
NIA
The
Leg
isla
ture
sha
ll pr
ovid
e fo
r th
e di
squa
lific
atio
n of
ele
ctor
s w
hile
m
enta
lly in
com
pete
nt C
AL.
CO
NS
T. a
rt.
2, §
4.
A p
erso
n sh
all b
e de
emed
men
tally
in
com
pete
nt, a
nd th
eref
ore
disq
ualif
ied
from
vot
ing,
if, d
urin
g th
e co
urse
of a
ny
of th
e pr
ocee
ding
s se
t for
th b
elow
, the
co
urt f
inds
that
the
pers
on is
not
ca
pabl
e of
com
plet
ing
an a
ffida
vit o
f vo
ter
regi
stra
tion
in a
ccor
danc
e w
ith
Sec
tion
2150
and
a c
onse
rvat
or is
ap
poin
ted
or th
e pe
rson
has
ple
d no
t gu
ilty
by r
easo
n of
insa
nity
. C
AL.
ELE
C.
CO
DE §
220
8(a)
.
If th
e pr
ocee
ding
und
er th
e W
elfa
re a
nd
Inst
itutio
ns C
ode
is h
eard
by
a ju
ry, t
he
jury
sha
ll un
anim
ousl
y fin
d th
at th
e pe
rson
is n
ot c
apab
le o
f com
plet
ing
an
affid
avit
of v
oter
reg
istr
atio
n be
fore
the
pers
on s
hall
be d
isqu
alifi
ed fr
om v
otin
g.
Per
son
unde
r co
nser
vato
rshi
p is
di
squa
lifie
d fr
om v
otin
g if
cour
t de
term
ines
that
he
or s
he is
not
ca
pabl
e of
com
plet
ing
vote
r re
gist
ratio
n af
fidav
it; m
ust
revi
ew th
eir
capa
bilit
y of
co
mpl
etin
g th
e af
fidav
it du
ring
the
year
ly o
r bi
enni
al r
evie
w o
f co
nser
vato
rshi
p.C
AL.
PR
OB C
OD
E §
191
0.
CA
L.E
LEC
.CO
DE §
220
8 an
d §
2209
.
Con
serv
ator
ship
rep
ort s
hall
incl
ude
reco
mm
enda
tion
for
or a
gain
st th
e di
squa
lific
atio
n of
the
pers
on fr
om v
otin
g.
CA
L. W
EL.
and
INS
T. C
OD
E §
53
57(c
).
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STA
TE L
AW
S A
FFEC
TIN
G T
HE
VO
TIN
G R
IGH
TS O
F PE
OPL
E W
ITH
MEN
TAL
DIS
ABI
LITI
ES42
Bazelon Center for Mental Health Law & National Disablity Rights Network
23S
TA
TE
Sta
te C
on
stit
uti
on
/ Ele
cto
ral
Sta
tute
s: P
erso
ns
Dis
qu
alif
ied
G
uar
dia
nsh
ip/
Co
nse
rvat
ors
hip
Sta
tute
s M
enta
l Hea
lth
Sta
tute
s D
evel
op
men
tal D
isab
iliti
es/
Men
tal R
etar
dat
ion
Sta
tute
s
AR
IZO
NA
No
pers
on w
ho is
adj
udic
ated
an
inca
paci
tate
d pe
rson
sha
ll be
qua
lifie
d to
vot
e. A
RIZ
. CO
NS
T.A
RT. 7
, § 2
(C).
The
Cou
nty
Rec
orde
r sh
all c
ance
l a
vote
r’s r
egis
trat
ion
if th
ey a
re
adju
dica
ted
an in
capa
cita
ted
pers
on
unde
r A
.R.S
. § 1
4-51
01.
AR
IZ. R
EV.
ST
AT. §
16-
165.
Not
qua
lifie
d to
reg
iste
r to
vot
e if
adju
dica
ted
an in
capa
cita
ted
pers
on.
AR
IZ. R
EV. S
TA
T. §
16-
101(
A)(
6).
Vot
er r
egis
trat
ion
canc
elle
d if
a pe
rson
und
er g
uard
ians
hip
is
decl
ared
an
“insa
ne p
erso
n” in
a
cour
t pro
ceed
ing.
AR
IZ. R
EV.
ST
AT. §
16-
165(
C)
Inca
paci
tate
d pe
rson
def
ined
as
any
pers
on w
ho is
impa
ired
by
reas
on o
f men
tal i
llnes
s, m
enta
l de
ficie
ncy,
phy
sica
l illn
ess
or
disa
bilit
y, c
hron
ic u
se o
f dru
gs,
chro
nic
into
xica
tion
or o
ther
ca
use,
exc
ept m
inor
ity, t
o th
e ex
tent
that
he
lack
s su
ffici
ent
unde
rsta
ndin
g or
cap
acity
to
mak
e or
com
mun
icat
e re
spon
sibl
e de
cisi
ons
rega
rdin
g hi
s pe
rson
. A
.R.S
. § 1
4-51
01(1
).
Per
sons
und
ergo
ing
cour
t-or
dere
d m
enta
l hea
lth
eval
uatio
n or
trea
tmen
t are
no
t det
erm
ined
to b
e le
gally
in
com
pete
nt P
erso
ns
unde
rgoi
ng m
enta
l hea
lth
eval
uatio
n or
trea
tmen
t may
no
t be
deni
ed th
e rig
ht to
vo
te. A
RIZ
. RE
V. S
TA
T. §
36-
506(
A).
AR
KA
NS
AS
Reg
istr
atio
n to
vot
e ca
ncel
led
if a
pers
on is
adj
udge
d m
enta
lly
inco
mpe
tent
by
a co
urt o
f com
pete
nt
juris
dict
ion.
AR
K. C
ON
ST.A
ME
ND
. 51,
§
11(a
)(6)
.
If gu
ardi
an a
ppoi
nted
prio
r to
O
ct. 1
, 200
1, g
uard
ian
mus
t ob
tain
exp
ress
cou
rt a
ppro
val t
o pr
ohib
it vo
ting.
A
RK. S
TA
T.
AN
N. §
28-
65-3
02(a
)(1)
(E).
No
guar
dian
app
oint
ed o
n or
af
ter
Oct
. 1, 2
001
shal
l au
thor
ize
an in
capa
cita
ted
pers
on to
vot
e w
ithou
t fili
ng a
pe
titio
n an
d re
ceiv
ing
expr
ess
cour
t app
rova
l. A
RK.S
TA
T.A
NN
. §28
-65-
302(
a)(2
)(E
).
No
pers
on s
hall
be d
eem
ed
inco
mpe
tent
to v
ote
sole
ly b
y re
ason
of t
hat p
erso
n's
adm
issi
on to
a m
enta
l hea
lth
syst
em.
AR
K. S
TA
T. A
NN
. §
20-4
7-22
0(b)
.
How to Address Concerns about Voter Fraud
Some have suggested a need for voter-competence testing to address the possibility of voter fraud when someone helps a person with a disability to vote.48 However, such concerns
should not be addressed by raising barriers to the voting rights of people with disabilities. The solutions to concerns about voter fraud, to the extent warranted, should focus on those perpetrating the fraud.
Concerns about voter fraud in this context fall into three main categories:
(1) Concerns about caregivers or others substituting their own judgment and decisionmaking when they help a person with a disability vote, rather than following the expressed wishes of the person with a disability. Often people do not realize that this is improper even if the person’s prior voting history and views appear to shed light on how the person might wish to vote.49 Votes must be based on choices actually communicated by the person whose vote is being cast.
(2) Concerns about coercing a person with a disability to vote a certain way. These concerns have been raised in particular about individuals with disabilities residing in institutional settings, such as nursing homes, where staff often exert significant control over residents’ lives.50 Concerns have also been raised about whether candidates or political party representatives have engaged in voter intimidation or undue influence when visiting residents of nursing homes to offer assistance with registration or voting.51 Of course, the experience of being subjected to voting pressures is not unique to people with disabilities.52
(3) Concerns about wholesale fraud where nursing home administrators or others obtain large numbers of residents’ absentee ballots and falsify them. Occasional instances of this type of fraud have prompted calls for changing voting procedures in nursing homes and similar institutional settings.53
These concerns have been raised primarily with respect to the
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THE VOTING RIGHTS OF PEOPLE WITH MENTAL DISABILITIES
24
use of absentee ballots, as it is more difficult to detect fraudulent actions that occur outside of the polling place.
All of the concerns described above can and should be addressed through more appropriate means than imposing discriminatory burdens on individuals with mental disabilities. Policymakers, election officials and others can respond by:
educating assistance providers about what types of assistance are and are not permitted;
using criminal prosecution to address unscrupulous voter-fraud practices;
establishing state law procedures requiring election officials and residential service providers for people with disabilities to assist residents of long-term care facilities and other care settings with registration and voting.Some election officials have successfully addressed concerns
about undue influence of voters with cognitive impairments without the need for capacity testing or removing individuals from voter rolls.54 A number of states have procedures in place that are designed to promote voting by residents of long-term care facilities, although many of those procedures are voluntary or have other limitations.55
Sta
te L
aw
s A
ffect
ing
th
e V
oti
ng
Rig
hts
of
Peo
ple
wit
h M
en
tal
Dis
ab
ilit
ies1
ST
AT
ES
tate
Co
nst
itu
tio
n/ E
lect
ora
l S
tatu
tes:
Per
son
s D
isq
ual
ifie
d
Gu
ard
ian
ship
/ C
on
serv
ato
rsh
ip S
tatu
tes
Men
tal H
ealt
h S
tatu
tes
Dev
elo
pm
enta
l Dis
abili
ties
/ M
enta
l Ret
ard
atio
n S
tatu
tes
AL
AB
AM
AN
o pe
rson
who
is m
enta
lly in
com
pete
nt
shal
l be
qual
ified
to v
ote,
unl
ess
the
disa
bilit
y ha
s be
en r
emov
ed.
ALA
.C
ON
ST.a
rt. 8
, § 1
77(b
).
Per
sons
dis
qual
ified
und
er th
e C
onst
itutio
n ar
e no
t ent
itled
to v
ote.
A
LA. C
OD
E §
17-
3-9.
In a
lim
ited
guar
dian
ship
, the
pa
rtia
lly in
capa
cita
ted
pers
on
reta
ins
all l
egal
rig
hts
whi
ch th
e co
urt h
as n
ot s
een
fit to
de
lega
te to
the
limite
d gu
ardi
an.
Com
men
t to
ALA
. CO
DE §
26-
2A-1
05.
Con
sum
ers
of m
enta
l hea
lth
serv
ices
hav
e th
e sa
me
gene
ral r
ight
s as
oth
er
citiz
ens
of A
laba
ma,
incl
udin
g th
e rig
ht to
vot
e an
d pa
rtic
ipat
e in
the
polit
ical
pr
oces
s. A
LA. C
OD
E §
22-
56-
4(a)
(5).
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sons
with
dev
elop
men
tal
disa
bilit
ies
and
trau
mat
ic
brai
n in
jury
hav
e th
e rig
ht to
vo
te a
nd p
artic
ipat
e in
the
polit
ical
pro
cess
, sub
ject
to
appl
icab
le la
ws.
ALA
CO
DE §
38
-9C
-4(7
).
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sons
with
dev
elop
men
tal
disa
bilit
ies
and
trau
mat
ic
brai
n in
jury
are
pre
sum
ed
com
pete
nt u
ntil
a co
urt
dete
rmin
es o
ther
wis
e. A
LA.
CO
DE §
38-
9C-4
(5).
AL
AS
KA
No
pers
on m
ay v
ote
who
has
bee
n ju
dici
ally
det
erm
ined
to b
e of
“un
soun
d m
ind”
unl
ess
the
disa
bilit
y ha
s be
en
rem
oved
. A
LAS
KA C
ON
ST. a
rt. 5
, § 2
.
The
judi
cial
det
erm
inat
ion
of
unso
undn
ess
of m
ind
nece
ssar
y to
di
squa
lify
a m
enta
lly im
paire
d in
divi
dual
fr
om v
otin
g m
ust b
e sp
ecifi
cally
rai
sed
in a
gua
rdia
nshi
p he
arin
g or
rai
sed
in a
se
para
te p
roce
edin
g. 1
992
Ala
ska
Op.
A
tty. G
en. (
Inf.)
123
, Aug
. 28,
199
2.
Gua
rdia
n m
ay n
ot p
rohi
bit a
w
ard
from
reg
iste
ring
or v
otin
g.
ALA
SK
A S
TA
T. §
13.2
6.15
0(e)
(6).
An
inca
paci
tate
d pe
rson
for
who
m a
gua
rdia
n ha
s be
en
appo
inte
d is
not
pre
sum
ed to
be
inco
mpe
tent
and
ret
ains
all
lega
l an
d ci
vil r
ight
s ex
cept
thos
e th
at
have
bee
n ex
pres
sly
limite
d by
co
urt o
rder
or
have
bee
n sp
ecifi
cally
gra
nted
to th
e gu
ardi
an b
y th
e co
urt.
ALA
SK
AS
TA
T. §
13.
26.0
90.
Per
sons
und
ergo
ing
men
tal
heal
th e
valu
atio
n or
trea
tmen
t m
ay n
ot b
e de
nied
the
right
to
vote
. U
nder
goin
g co
urt-
orde
red
men
tal h
ealth
tr
eatm
ent i
s no
t a
dete
rmin
atio
n of
lega
l in
capa
city
. A
LAS
KA S
TA
T. §
47
.30.
835(
a)(b
).
1T
his
tabl
e is
bas
ed o
n th
e ta
ble
publ
ishe
d by
Kay
Sch
riner
, Lis
a O
chs,
& T
odd
Shi
elds
, Dem
ocra
tic D
ilem
mas
: Not
es o
n th
e A
DA
& V
otin
g R
ight
s of
P
eopl
e w
ith C
ogni
tive
and
Em
otio
nal I
mpa
irmen
ts, 2
1 B
ER
KLE
Y J
.EM
P.&
LAB.L
. 437
(20
00).
The
tabl
e w
as u
pdat
ed b
y th
e N
atio
nal D
isab
ility
Rig
hts
Net
wor
k (N
DR
N)
in J
une
2004
, and
by
the
Baz
elon
Cen
ter
for
Men
tal H
ealth
Law
on
a co
ntin
uous
bas
is s
ince
that
tim
e.
41
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Resources
You can learn more about voting laws and practices in your state by contacting the protection and advocacy agency for people with disabilities. Contact information for these agencies can be found at http://www.ndrn.org.
The local branch of the American Civil Liberties Union may also be able to provide information and assistance. Contact information for local ACLU branches can be found at http://www.aclu.org/affiliates/index.html.
Additional resources include:• the National Disability Rights Network, http://www.ndrn.org, • the Bazelon Center for Mental Health Law, http://www.bazelon.org, • the Advancement Project, http://www.advancementproject.org, • the League of Women Voters, http://www.lwv.org, and • the Secretary of State’s office and local election board in your area.
What Is the Legal Framework?
The Relationship Between Federal and State Law
Voting in the United States is a fundamental political right.56 The United States Constitution protects the right to vote, but it also gives states the authority to set voting qualifications
for both federal and state elections57—within certain limits. For example, states cannot set voter-qualification standards that conflict with the Constitution.58 The Supreme Court has invalidated discriminatory state voter qualifications that violate the Fourteenth Amendment of the U.S. Constitution.59
States must also comply with the U.S. Constitution and federal statutes, which are passed by Congress and apply nationwide. Federal laws govern if they conflict with state laws. Federal laws and the Constitution also set the “floor” for legal protections. States may pass laws that give voters with disabilities more legal protections, but they cannot take away rights that have been established by federal laws and the Constitution.
What Federal Laws Apply?
1. United States Constitution
The Equal Protection ClauseThe Equal Protection Clause of the Fourteenth
Amendment provides that “no state shall…deny to any person within its jurisdiction the equal protection of the laws.”60 Laws and government practices that affect the right to vote must treat people in similar situations on an equal basis. People who have the capacity to vote and meet the age and residency requirements for voting cannot be treated differently from other such voters based on guardianship status.
A state may take away the right to vote only when it can show that doing so is a “narrowly tailored” way to achieve a
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compelling government interest.61 If there is more than one reasonable way to achieve the government’s interest, the way that is least burdensome on people’s rights must be chosen.
Voter qualifications that make broad categories of people ineligible to vote based on concerns about mental competence (for example, that bar voting by anyone under guardianship) are likely to violate the Equal Protection Clause. In most cases, such broad qualifications would not be narrowly tailored to any government interest because they would disenfranchise many people who have the capacity to vote.62
The Due Process ClauseThe Fourteenth Amendment states with respect to actions
by state governments that “[n]o person shall be... deprived of life, liberty, or property, without due process of law....”63 The Due Process Clause provides that before a state can deprive an individual of a fundamental right, it must adequately notify the individual of the reasons for the deprivation and give him or her the opportunity to be heard before the right is taken away.64
Removal of a person’s right to vote based on such factors as guardianship status or hospitalization may violate due process if the person is not given notice that he may lose the right to vote and a chance to challenge that loss.65
In addition, the Due Process Clause provides similar protections to those provided by the Equal Protection Clause. The Due Process Clause “forbids the government to infringe certain ‘fundamental’ liberty interests at all, no matter what process is provided, unless the infringement is narrowly tailored to serve a compelling state interest.”66 The right to vote is such a fundamental right.67 Accordingly, government officials may not use competency standards to restrict individuals’ right to vote, unless such standards are narrowly tailored to serve a compelling government interest.
Belchertown, 334 N.E.2d 629 (Mass. 1975) (residence in state institution for individuals with mental retardation did not make individuals ineligible to vote).
72 42 U.S.C. §§ 12131(2), 12132; 28 C.F.R. § 35.130(b)(7).73 42 U.S.C. §§ 12181(7), 12182. Title III of the ADA bars these entities from
discriminating based on disability in the full and equal enjoyment of their goods, services, facilities, privileges, advantages or accommodations. Id. § 12182(a); 28 C.F.R. § 36.201(a). The ADA also requires these entities to make reasonable modifications in their policies and practices to enable people with disabilities to have equal opportunities. 42 U.S.C. § 12182(b)(2)(A)(ii); 28 C.F.R. § 36.302(a).
74 Section 504 is codified at 29 U.S.C. § 794.75 29 U.S C. § 794(a).76 Id.77 Barnes v. Gorman, 536 U.S. 181, 184-85 (2002). 78 HAVA is codified at 42 U.S.C. § 15301 et seq.79 42 U.S.C. §15481(a)(3)(A). HAVA defines “voting systems” to include voting
equipment as well as “the practices and associated documentation used (A) to identify system components and versions of such components; (B) to test the system during its development and maintenance; (C) to maintain records of system errors and defects; (D) to determine specific system changes to be made to a system after the initial qualification of the system; and (E) to make available any materials to the voter (such as notices, instructions, forms, or paper ballots).” Id. § 15481(b).
80 42 U.S.C. § 1971(a)(2)(A). 81 Id. § 1971(a)(2)(C).82 Id. § 1971(a)(3)(B).83 Id. § 1973aa.84 The NVRA is codified at 42 U.S.C. § 1973gg et seq.85 Id. § 1973gg-6(a)(3)(B). 86 Id. § 1973gg-6(b)(1).
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Carnahan, 499 F.3d 803, 808-09 (8th Cir. 2007) (Missouri law would violate Equal Protection Clause if it categorically barred individuals “adjudged incapacitated” from voting).
63 U.S. Const., amend. XIV.64 Lassiter v. Dep’t of Social Servs., 452 U.S. 18, 24 (1981) (explaining that due
process “expresses the requirements of ‘fundamental fairness’”).65 Doe v. Rowe 156 F. Supp 2d at 47-51 (D. Me. 2001) (Maine’s ban on voting
by individuals under guardianship by reason of mental illness violated procedural Due Process because such individuals were not given notice and an opportunity to be heard before losing the right to vote).
66 Reno v. Flores, 507 U.S. 292, 302 (1993) (emphasis in original).67 Id.; see also Reynolds v. Sims, 377 U.S. 533, 562 (1964) (same).68 Title II of the ADA provides that “no qualified individual with a disability
shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132. “Public entities” include “any State or local government” and “any department, agency, special purpose district, or other instrumentality of a State or local government.” Id. § 12131(1).
69 The ADA and Section 504 of the Rehabilitation Act require an individualized assessment to determine if a person with a disability is qualified. School Bd. of Nassau County v. Arline, 480 U.S. 273, 287 (1987) (involving Section 504 of the Rehabilitation Act, which affords virtually identical rights to those under the ADA); PGA Tour, Inc. v. Martin, 532 U.S. 661, 690 (2001). Additionally, the ADA bars public entities from using voting eligibility criteria that unnecessarily screen out people with disabilities from voting. Doe v. Rowe, 156 F. Supp.2d at 58; 28 C.F.R. § 35.130(b)(3) (barring public entities from using criteria or methods of administration that have the effect of subjecting people with disabilities to discrimination on the basis of disability); id. § 35.130(b)(8) (barring public entities from applying eligibility criteria that screen out or tend to screen out people with disabilities or any class of people with disabilities from fully and equally enjoying any service, program or activity unless such criteria can be shown to be necessary for the provision of the services).
70 Doe v. Rowe, 156 F. Supp.2d at 58-59.71 State laws generally do not permit individuals to be excluded from voting
based simply on residence in a facility for people with disabilities. See, e.g., In the Matter of Absentee Ballots Cast by Five Residents of Trenton Psychiatric Hospital, 750 A.2d 790 (N.J. Super. App. Div. 2000) (ballots could not be challenged based simply on voters’ residence in a state psychiatric hospital); Carroll v. Cobb, 354 A.2d 355 (N.J. Super. App. Div. 1976) (individuals could not be barred from registering to vote based on residence in state institution for people with mental retardation); Boyd v. Board of Registrars of Voters of
2. The Americans with Disabilities Act
The Americans with Disabilities Act (ADA) bars disability discrimination in the services, programs and activities of state and local government entities, including facilities that provide services to individuals with disabilities as well as state and local election authorities.68 These programs would likely violate the ADA if they prevent qualified individuals with disabilities from voting.
Public entities may not exclude qualified voters with disabilities from the voting process.The ADA prohibits public entities from excluding qualified people from voting based on disability if they meet the essential requirements for voting. Before a public entity may exclude a voter based on disability, it must conduct an individualized assessment of whether the person meets the essential requirements to vote. 69 For example, a state that wishes to impose a requirement that individuals have the mental capacity to vote cannot take away the right to vote from all people under guardianship without assessing whether each individual has the capacity to vote.70
Laws or practices that categorically bar people from voting based on guardianship status, residence in a hospital, nursing home, group home or developmental disabilities center, or similar factors would likely violate the ADA because they bar voting by people who have the capacity to vote and meet the essential requirements for voting.71
Public entities must provide reasonable modifications to voting policies, practices and procedures.The ADA also requires public entities to make reasonable modifications to policies, practices and procedures that are necessary for people with disabilities to have an equal opportunity to participate in government programs, such as registering to vote and casting a ballot.72 For example, a state hospital may have to modify its practices in order to
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assist residents in obtaining and submitting absentee ballots. Alternatively, the hospital might choose to transport residents or allow them to go to their polling place.Public facilities that prevent qualified people with disabilities from registering or voting based on inappropriate grounds, such as the staff’s view that the person lacks the capacity to vote, likely violate the ADA. Similarly, public facilities that bar voter-education or registration activities from their facilities on the ground that residents are too disabled to vote, or that prevent residents from attending voter-education sessions, likely violate the ADA.
Privately operated service providers must not discriminate against people with disabilities with respect to voting.Title III of the ADA prohibits disability discrimination by privately operated places of public accommodation, such as privately operated nursing homes, group homes or homeless shelters.73 These facilities are subject to the same requirements as publicly operated facilities
3. Section 504 of the Rehabilitation Act of 197374
Section 504 of the Rehabilitation Act (Section 504) applies to entities that receive federal funding. It prohibits disability-based discrimination in any program or activity that receives federal financial assistance.75 It also applies to federal executive branch agencies, such as the Department of Veterans’ Affairs.76 Section 504 provides the same rights and remedies as Title II of the ADA.77
Entities that may be covered by Section 504 include state and local agencies that operate elections or enforce election laws, government-operated facilities providing services to people with disabilities, private service providers and federally operated facilities providing services to individuals with disabilities.
54 See, e.g., Deborah Markowitz, Voting and Cognitive Impairments: An Election Administrator’s Perspective, 38 McGeorge L. Rev. 871, 874-77 (2007). In this article, Markowitz, Vermont’s Secretary of State, describes how her office handled a variety of different situations in which concerns were raised about undue influence on voters with cognitive impairments. Vermont does not have any voter competence requirement.
55 Amy Smith and Charles P. Sabatino, Voting by Residents of Nursing Homes and Assisted Living Facilities: State Law Accommodations, BIFOCAL, vol. 26, no. 1, at 1 (Fall 2004), http://www.abanet.org/aging/publications/bifocal/261.pdf (describing state procedures for assisting voters in nursing homes and other long term care facilities).
56 See, e.g., Yick Wo v. Hopkins, 118 U.S. 356, 370 (1886) (referring to “the political franchise of voting” as a “fundamental political right, because preservative of all rights”).
57 U.S. Const., art. I, § 2, cl. 1 (“the electors in each state shall have the qualifications requisite for electors of the most numerous branch of the state legislature”); art. I, § 4, cl. 1 (“[t]he times, places and manner of holding elections for senators and representatives shall be prescribed in each state by the legislature thereof; but the Congress may at any time, by law, make or alter such regulations . . . .”).
58 See, e.g., Bullock v. Carter, 405 U.S. 134-140-41 (1972) (“Although we have emphasized on numerous occasions the breadth of power enjoyed by the States in determining voter qualifications and the manner of elections this power must be exercised in a manner consistent with the Equal Protection Clause of the Fourteenth Amendment).
59 See, e.g., Dunn v. Blumstein, 405 U.S. 330, 337 (1972) (durational residency requirement for Tennessee voters that deprived some individuals of the right to vote violated Fourteenth Amendment’s Equal Protection Clause); Harper v. Virginia State Bd. of Elections, 383 U.S. 663, 666-67 (1966) (poll tax violated Equal Protection Clause); Carrington v. Rash, 380 U.S. 89, 96 (1965) (bar on voting by members of the military who moved to Texas during the course of military service violated the Equal Protection Clause).
60 U.S. Const., amend. XIV.61 See Dunn v. Blumstein, 405 U.S. 330, 337 (1972) (if a state law grants the
right to vote to some citizens and denies it to others, court “must determine whether the exclusions are necessary to promote a compelling state interest.”)(quoting Kramer v. Union Free Sch. Dist., 375 U.S. 621, 627 (1969)). Although not every restriction on the right to vote must be judged under this strict standard, restrictions that are severe or take away the right to vote altogether must meet this test. Burdick v. Takushi, 504 U.S. 428 (1992).
62 See, e.g., Doe v. Rowe, 156 F. Supp.2d at 51-56 (Maine’s ban on voting by individuals under guardianship by reason of mental illness violated Equal Protection Clause); Missouri Protection and Advocacy Servs., Inc. v.
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42 Id. (each voting system in a federal election must permit a voter to verify his or her votes (privately and independently) before the ballot is cast, and to change or correct any errors).
43 Americans with Disabilities Act, 42 U.S.C. § 12132; 28 C.F.R. § 35.150(a); Section 504 of the Rehabilitation Act, 29 U.S.C. § 794(a); Help America Vote Act, 42 U.S.C. §15481(a)(3)(A) (requiring voting systems in federal elections to be “accessible for individuals with disabilities . . . in a manner that provides the same opportunity for access and participation (including privacy and independence) as for other voters.”).
44 Americans with Disabilities Act, 42 U.S.C. §§ 12131(2), 12132; 28 C.F.R. § 35.130(b)(7); Section 504 of the Rehabilitation Act, 29 U.S.C. § 794(a).
45 Americans with Disabilities Act, 42 U.S.C. § 12182(b)(2)(A)(ii), 28 C.F.R. § 36.302(a) (privately operated facilities), 42 U.S.C. §§ 12131(2), 12132; 28 C.F.R. § 35.130(b)(7) (publicly operated facilities); Section 504 of the Rehabilitation Act, 29 U.S.C. § 794(a) (facilities receiving federal financial assistance).
46 42 U.S.C. § 1973gg-5(a)(2).
47 Id. § 1973gg-5(a)(4)(A). 48 See, e.g., Karlawish et al., supra note 24, at 1348 (recommending that people
assisting cognitively impaired individuals in applying for an absentee ballot or in going to the polling place use a screening tool to decide whether the person is competent to vote, and if there is doubt about the person’s competence to vote, “it is probably appropriate to regard the impaired person as incompetent to vote, at least until a more authoritative determination is available.”); Jessica A. Fay, Elderly Voters Go Postal: Ensuring Ballot Integrity for Older Voters, 13 Elder L. J. 453, 481 (2005) (responding to voter fraud concerns by recommending that, among other things, nursing homes should conduct competency tests to ensure that residents have the competence to vote).
49 See, e.g., Karlawish et al., supra note 24, at 1347 (noting example of spousal caregiver who voted a straight Democratic ticket for her husband, who had Alzheimer’s disease, because he had always voted a straight Democratic ticket in the past).
50 See, e.g., id. at 1349.51 See, e.g., Daniel P. Tokaji and Ruth Colker, Absentee Voting by People with
Disabilities: Promoting Access and Integrity, 38 McGeorge L. Rev. 1015, 1026 (2007).
52 See, e.g., id. (noting the voting pressures sometimes experienced by spouses and by young adults still dependent on their parents).
53 See, e.g., Joan L. O’Sullivan, Voting and Nursing Home Residents: A Survey of Practices and Policies, 4 J. Health Care L. & Pol’y 325 (2001) (describing allegations of nursing home-based voter fraud in Maryland and Illinois); Fay, supra note 48.
4. Help America Vote Act (HAVA)78
The Help America Vote Act of 2002 (HAVA) set new standards for voting systems in federal elections. These standards include ensuring that voting systems are accessible for all voters with disabilities. For example, HAVA requires every precinct to have at least one voting machine or system that is accessible to voters with disabilities. HAVA also requires that each voter be able to vote secretly and independently. HAVA authorizes state and local governments to apply for grants to improve voting accessibility and to train elections officials and poll workers to assist voters with disabilities. HAVA also requires states receiving grants to set up a process for resolving accessibility complaints.
HAVA’s accessibility mandate is broad: Voting systems “shall be accessible for individuals with disabilities . . . in a manner that provides the same opportunity for access and participation (including privacy and independence) as for other voters.”79 Voting-system accessibility under HAVA therefore includes ensuring that people with mental disabilities who have the capacity to vote are not denied equal access to registration and voting.
Overbroad voter-competency standards imposed by state law would likely run afoul of HAVA, as would denials of the right to vote based on competency determinations made by individuals (such as election officials, long-term care providers or poll workers) who are not qualified to make such determinations.
5. Voting Rights Act
The Voting Rights Act (VRA) governs federal election procedures. It provides that no person “acting under color of law” shall “in determining whether any individual is qualified under State law or laws to vote in any election, apply any standard, practice, or procedure different from the standards, practices, or procedures applied under such law
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or laws to other individuals within the same county, parish, or similar political subdivision who have been found by State officials to be qualified to vote.”80 This means that any test for determining whether someone is qualified to vote must be applied to all voters equally.
Voting-qualification standards, such as competency tests, that single out individuals or classes of individuals for different treatment violate the VRA.
The VRA also prohibits states from using “literacy tests” as a voting qualification unless they are given to all voters, are conducted wholly in writing and are in compliance with other requirements.81 The Act defines literacy tests to include “any test of the ability to read, write, understand or interpret any matter.”82 These provisions of the VRA prohibit states from requiring voters with disabilities to pass a voter-competency test that is not required of all voters.
In addition, Section 208 of the VRA guarantees the right of people with disabilities to have voting assistance from a person of their choosing so long as that person is not the voter’s employer, an agent of the employer, or an officer or agent of the voter’s union.83
6. National Voter Registration Act84
The National Voter Registration Act (NVRA) permits, but does not require, states to enact laws authorizing removal of voters from the registration rolls based on “mental incapacity.”85
Another provision of the NVRA, however, states that “[a]ny State program or activity to protect the integrity of the electoral process by ensuring the maintenance of an accurate and current voter registration roll for elections for Federal office—shall be uniform, nondiscriminatory, and in compliance with the Voting Rights Act of 1965.”86 The VRA, as discussed above, requires that any voting standards that states establish be applied equally to all voters. Thus, both the VRA
33 See, e.g., Cal. Elec. Code § 14240 (challenges permitted on grounds that (1) the voter is not the person whose name appears on the index, (2) the voter is not a resident of the precinct, (3) the voter is not a U.S. citizen, (4) the voter has already voted that day, or (5) the voter is presently on parole for the conviction of a felony); Ohio Rev. Code § 3505.20 (challenges at polling place permitted only on grounds that person is not a citizen, has not resided in state for 30 days, or is not of legal voting age).
34 See, e.g., Haw. Rev. Stat. § 11-25(a) (challenges prior to election day permitted “for any cause not previously decided by the board of registration or the supreme court in respect to the same person”); § 11-25(b) (challenges on election day permitted only on the grounds that the voter is not the person he or she claims to be or that the voter is not entitled to vote in that precinct).
35 See, e.g., Cal. Elec. Code § 14240 (“On the day of the election no person, other than a member of the precinct board or other official responsible for the conduct of the election, shall challenge or question any voter concerning the voter’s qualifications to vote.”); 15 Del. Code § 4934 (only the polling place challenger appointed by each political party may bring a challenge).
36 See, e.g., Minn. Stat. § 204C.12 (challenger must complete form stating under oath the basis for the challenge and that the challenge is based on challenger’s personal knowledge); Tx. Elec. Code § 16.092 (challenger must file sworn statement of the specific qualification for registration that the challenged voter has not met based on the personal knowledge of the challenger); Rev. Code Wash. § 29A.08.810(3) (challenger must file signed affidavit swearing that the challenged voter does not meet particular qualifications or does not reside at the address given on his or her voter registration record, based on challenger’s personal knowledge and belief after challenger has exercised due diligence to personally verify the evidence presented; challenge cannot be based on unsupported allegations); Alaska Stat. §15.15.210 (challenger must have good reason to suspect that questioned person is not qualified to vote); Conn. Gen. Stat. § 9.232(c) (challenger must know, suspect or reasonably believe person is not qualified to vote).
37 See, e.g., Ariz. Rev. Stat. § 16-121.01 (challenger must show clear and convincing evidence that challenged voter does not meet certain requirements); Rev. Code Wash. § 20A.08.840(4) (same).
38 42 U.S.C. § 15482.39 Voting Rights Act, 42 U.S.C. § 1973aa-6.40 Id.41 Help America Vote Act, 42 U.S.C. § 15481(a)(3)(A) (each voting system in
a federal election must be accessible to individuals with disabilities in a manner that provides the same opportunities for privacy and independence as other voters have).
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25 American Bar Association, Commission on Law and Aging et al., Report to the House of Delegates (Aug. 13, 2007), at http://www.abanet.org/aging/docs/Voting_Rec_FINAL_approved.doc. The ABA proposal also requires that no prohibition on voting take place unless it is ordered by a court of “competent jurisdiction,” that has afforded the individual “appropriate due process protections,” and that the court’s order is based on “clear and convincing evidence.” Id.
Another possible standard was recommended by the American Bar Association’s Commission on the Mentally Disabled (now the Commission on Mental and Physical Disability Law): the ability to provide the information needed to register to vote. See Sales, State Legislative Issues, supra note 56, at 111 (“Any person who is able to provide the information, whether orally or in writing, through an interpreter or interpretive device or otherwise, which is reasonably required of all persons seeking to register to vote, shall be considered a qualified voter.”).
26 These states are Florida, Georgia, Hawaii, Indiana, Louisiana, Michigan and South Dakota. National Conference of State Legislatures, Requirements for Voter Identification 1 (updated June 18, 2008), http://www.ncsl.org/programs/legismgt/elect/taskfc/voteridreq.htm.
27 Id.28 Weinschenk v. Missouri, 203 S.W.3d 201 (Mo. 2006) (Missouri statute requiring
voters to present certain forms of state or federal photo identification violated Missouri’s constitution because it interfered with the right to vote and was not narrowly tailored to the state’s interests in preserving electoral integrity and preventing voter fraud). A federal court granted a preliminary injunction to stop enforcement of Georgia’s photo-identification law, but the plaintiffs ultimately lost. Common Cause/Georgia v. Billups, 439 F. Supp.2d 1294 (N.D. Ga. 2006) (granting preliminary injunction); 504 F. Supp.2d 1333 (N.D. Ga. 2007) (plaintiffs lacked standing, the law did not impose severe burdens on the right to vote, and it was rationally related to the state’s interest in curbing voter fraud).
29 Crawford v. Marion County Election Bd., 128 S.Ct. 1610 (2008). The Court rejected a constitutional challenge to Indiana’s voter identification law, finding that the evidence presented was not sufficient for the Court to conclude that the law imposed excessively burdensome requirements on any class of voters. Because the law imposed only a limited burden on voters generally, that burden did not outweigh the state’s interests in deterring voter fraud, modernizing elections, and safeguarding public confidence in elections.
30 42 U.S.C. §§ 12131(2), 12132; 28 C.F.R. §§ 35.130(b)(7), (b)(8). 31 Michael Moss, Big G.O.P. Bid to Challenge Voters in Key State, New York
Times, Oct. 23, 2004, at A1, A12.32 Oklahoma’s election code appears to be the only one that does not provide
for any type of voter challenge. Okla. Stat. Ann. tit. 26, art. 7.
and the NVRA bar states from using voting standards that treat individuals with mental disabilities differently from other voters.
Notes
1 These limitations are imposed by the the United States Constitution, the Americans with Disabilities Act, Section 504 of the Rehabilitation Act, and the Help America Vote Act. See notes 60-78 and accompanying text, and p. 12 (Challenging State Voter-Competence Requirements).
2 This limitation is imposed by the Voting Rights Act, 42 U.S.C. § 1971(a)(2)(A). See notes 80-82 and accompanying text, and p. 12 (Challenging State Voter-Competence Requirements).
3 See notes 63-65 and accompanying text concerning the Due Process Clause of the U.S. Constitution and p. 9 (Only a Court Can Decide that Someone is Not Competent to Vote)
4 See notes 68-77 and accompanying text, and p. 9 (Only a Court Can Decide that Someone is Not Competent to Vote).
5 See note 83 and accompanying text, and pp. 20-22 (Voters Have the Right to Assistance; Election Officials Must Provide Help; Service Providers Must Provide Help; Disability Services Offices Must Provide Help with Registration).
6 See id.7 See notes 78-79 and accompanying text, and p. 21 (A Helper Must Respect
the Voter’s Privacy).8 A finding of “mental incapacity” or “mental incompetence” generally
means that a person is in need of guardianship. Jurisdictions with this type of exclusion are Alabama, Arizona, the District of Columbia, Louisiana, Maryland, Missouri, Montana, Nevada, New York, South Carolina, South Dakota, Tennessee, Utah, Virginia, West Virginia and Wyoming. For citations to these legal provisions, see chart on pp. 41-66. Some additional states have similar provisions in their laws, but state attorney general opinions have interpreted those provisions more narrowly.
9 These states are Alaska, Arkansas, California, Connecticut, Delaware, Florida, Georgia, Hawaii, Iowa, Kentucky, Massachusetts, Minnesota, New Jersey, North Dakota, Ohio, Oklahoma, Oregon, Texas, Washington and Wisconsin. For citations to these legal provisions, see chart on pp. 41-66.
10 Nebraska law defines “non compos mentis” to mean “mentally incompetent.” Neb. Rev. Stat. § 32-312. Hawaii law does not define the term, but provides that a person may be disenfranchised on competence grounds
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THE VOTING RIGHTS OF PEOPLE WITH MENTAL DISABILITIES
32
Bazelon Center for Mental Health Law & National Disablity Rights Network
33
only if determined to lack the capacity to vote. Haw. Rev. Stat. § 11-23(a). Rhode Island does not define the term, but the state’s election board recently overturned local election officials’ decision to remove two hospitalized men from the voter rolls based on earlier rulings that each was not guilty by reason of insanity. The state board concluded that such a finding was not sufficient to render the men “non compos mentis” for purposes of voting. David Scharfenberg, Election Board Won’t Take Away Men’s Vote, Providence Journal, May 29, 2008, http://www.projo.com/news/content/INSANE_VOTERS_05-29-08_3HAA708_v17.349e81a.html.
11 These states are Arkansas, Iowa, Kentucky, Mississippi, New Mexico, Ohio, Minnesota, New Jersey and Nevada. New Jersey and Nevada recently eliminated such voting bans from their state constitutions, but similar language remains in their statutes. For citations to these legal provisions, see chart on pp. 41-66. In all of these states except Mississippi and New Mexico, more specific statutory provisions concerning voter competence effectively trump the “idiots” and “insane” language.
12 Eight of these—Colorado, Idaho, Illinois, Indiana, New Hampshire, North Carolina, Pennsylvania and Vermont—have laws that contain no voter-competence requirement. Two others—Kansas and Michigan—have constitutional provisions authorizing the legislature to impose certain voter-competence requirements but their legislatures have not done so. Maine’s constitution and statutes bar voting by individuals under guardianship due to mental illness, but the Secretary of State’s office has instructed election officials to disregard this requirement following a federal court ruling declaring it unlawful. Memorandum from Julie L. Flynn, Deputy Secretary of State, to All Municipal Clerks and Registrars (Sept. 4, 2001) (citing Doe v. Rowe, 156 F. Supp.2d 35 (D. Me. 2001). For citations to these legal provisions, see chart on pp. 41-66.
13 See, e.g., Carroll v. Cobb, 354 A.2d 355 (N.J. Super. App. Div. 1976); Boyd v. Board of Registrars of Voters of Belchertown, 334 N.E.2d 629 (Mass. 1975).
14 Missouri’s constitution, however, provides that individuals “involuntarily confined in a mental institution” are ineligible to vote. Mo. Const. art. 8 § 2.
15 In the Matter of Absentee Ballots Cast by Five Residents of Trenton Psychiatric Hospital, 750 A.2d 790 (N.J. Super. App. Div. 2000) (ballots of state hospital residents cannot be segregated or challenged without a particularized showing of incompetence).
16 Harvey v. Kaine, No. 3:06-cv-00653-HEH (E.D. Va. Filed Oct. 2, 2006), settled Nov. 15, 2006. Two state hospital residents filed suit against state and county officials to challenge the interpretation of state law as violative of the United States Constitution, the ADA, and Section 504. Shortly after the suit was filed, the state changed its interpretation to authorize absentee ballots for individuals in facilities due to their mental disabilities. See Greg A. Lohr, Mental Patients Sue State, Allege Denial of Voting Rights, Style Weekly, Oct. 25, 2006, http://www.styleweekly/article.asp?idarticle=13257.
17 Jason H. T. Karlawish et al., Identifying the Barriers and Challenges to Voting by Residents in Nursing Homes and Assisted Living Settings, J. Aging & Soc. Pol’y, vol. 20 issue 1, at 65, 72 (2008).
18 In 2008, the VA adopted a policy of barring all voter registration drives at VA facilities, but has since narrowed that policy to permit state and local government officials and non-partisan groups to conduct voter registration efforts at VA facilities.
19 Most state laws explicitly require this determination to be made by a court or state that a person must be “adjudicated” or “adjudged” incapacitated, indicating that a court or other tribunal must decide. While some state laws simply exclude “mentally incompetent” voters, competence determinations must generally be made by probate courts in the context of guardianship proceedings.
20 In the Matter of Absentee Ballots Cast by Five Residents of Trenton Psychiatric Hospital, 750 A.2d at 794-95 (N.J. Super. App. Div. 2000) (requiring county board of elections to demonstrate a particularized showing before a court that voters were incompetent before ballots could be disqualified).
21 See, e.g., Doe v. Rowe, 156 F. Supp.2d at 47-49. Government entities must provide due process before taking away a person’s right to vote. Private entities such as long-term care facilities perform a core government function when they determine whether individuals are competent to vote, and thus should also be subject to due process requirements. See Nina A. Kohn, Preserving Voting Rights in Long-Term Care Institutions: Facilitating Voting While Maintaining Election Integrity, 38 McGeorge Law Review 1065, 1081 (2007).
22 There is some risk that raising these issues in the probate court proceedings may foreclose a person from later making certain arguments if he or she should wish to challenge the state law. For example, a person’s request that the probate judge determine his competence to vote may be viewed as a concession that the state law allows individuals under guardianship to retain their voting rights.
23 Missouri Protection and Advocacy Servs., Inc. v. Carnahan, 499 F.3d 803 (8th Cir. 2007) (interpreting Missouri law to permit individuals under full guardianship to retain their right to vote in some circumstances despite statutory and constitutional language making individuals under full guardianship ineligible to vote).
24 One recent proposal urges that states eliminate overbroad voting restrictions by adopting a voter-competence test to determine whether individuals understand the nature and effect of voting. See Karlawish et al., Addressing the Ethical, Legal and Social Issues Raised by Voting by Persons with Dementia, 11 J. Amer. Medical Ass’n 1345 (2004). Unless such a test is given to all who wish to register or vote, however, it would result in the application of a different standard to individuals who are singled out for this type of testing. Thus, such a test would function much the way literacy tests were used.
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