Today under federal election law, there are only two groups that states may exclude from voting—felons and persons categorized in some way as having mental impairments. Restoring the right to vote to felons who have served their time has gained much-needed attention in recent years, but access to the polls by persons having mental impairments who are under guardianship is rarely seen as a priority inquiry. The inattention is inexcusable.
Adults under guardianship lack the decisional capacities needed to take care of one or more essential needs such as health, food, clothing, or shelter; yet, too often overlooked is the fact that in most cases, they do not lack all capacities, and the level of their impairments can fluctuate over time. Therefore, the fact of a person being under guardianship is not and should not be perceived as automatically categorizing that person as unqualified to vote because of his or her mental impairment. Indeed, limited guardianships have universally become the preferred option in law, though guardianship practice lags far behind.
Many reasons prevent older persons and persons with mental disabilities from voting, but they mostly fall into two categories—legal restrictions and practical barriers. Focusing here on the legal barriers, we encounter a convoluted assortment of laws, including:
- state constitutional provisions on voter eligibility or disqualifications,
- state election laws on voter eligibility or disqualifications,
- state guardianship and mental health laws, and
- case law interpreting those provisions.
Constitutional provisions, election laws, and guardianship codes often use different wording to exclude different categories of persons. Indefinite terms such as “idiot,” “unsound mind,” or “non compos mentis” are still found in some constitutions. Other state constitutions bar those involuntarily committed to a mental hospital, or those with mental illness, or those adjudged mentally incompetent or, specifically, under guardianship.
Turning to election laws, the picture gets more clouded but seems to open up the franchise somewhat. Less than half of those laws address voter eligibility based on mental status, and many appear to narrow the broad exclusion in their own constitutions, using slightly more updated terminology than their constitutions to define who can’t vote.
Guardianship laws play a crucial role in the capacity to vote quandary. The guardianship court is the most likely forum for the issue of capacity to vote to be raised and determined. But is it? While the opportunity is present, the law in only a minority of states expressly requires the question to be addressed, albeit with caveats and exceptions. In several states, the law states that persons under full or limited guardianship retain all legal and civil rights not explicitly removed; so even if voting is not addressed in a guardianship proceeding, the inference should be in favor of retention. But guardians and voting officials do not always embrace that inference. In other states, there is no presumption of retention of rights.
In 2007, the ABA Commission on Law and Aging joined with the Borchard Foundation Center on Law and Aging and the Capital Government Center on Law and Policy at the Pacific McGeorge School of Law to review this far-flung landscape of voting rights and incapacity. The groups hosted a working symposium of national experts in law and aging, medicine, long-term care, voting technology, and elections administration to seek consensus on principles and practices to facilitate voting as people age, considering the implications of cognitive impairment.
The symposium approved several recommendations that were adopted a year later, in modified form, by the ABA House of Delegates. A core recommendation was that state guardianship law:
should explicitly state that the right to vote is retained, except by court order where the following criteria must be met:
- The exclusion is based on a determination by a court of competent jurisdiction;
- Appropriate due process protections have been afforded;
- The court finds that the person cannot communicate, with or without accommodations, a specific desire to participate in the voting process; and
- The findings are established by clear and convincing evidence.
Being able to communicate a specific desire to participate in the voting process was chosen as the determining criteria because that is the threshold step of voting. The subsequent steps to complete the task of voting are self-determinative of capacity, much like the capacity to ride a bicycle can accurately be determined only by allowing the individual to mount a bike and start peddling. If capacity is lacking, the task just won’t be completed. Likewise, an individual simply will not be able to make or communicate a choice on a ballot, even with assistance, if capacity to vote is lacking. The process stops by its own lack of momentum.
In 2017, the Uniform Law Commission incorporated the ABA recommendation into its new Uniform Guardianship, Conservatorship, and Other Protective Arrangements Act. Section 310 of the act states:
A court order appointing a guardian for an adult must: . . .
(3) state whether the adult subject to guardianship retains the right to vote and, if the adult does not retain the right to vote, include findings that support removing that right [which must include a finding that the adult cannot communicate, with or without support, a specific desire to participate in the voting process].
More recently, Pennsylvania’s Senator Bob Casey introduced the Accessible Voting Act of 2020 in Congress. The bill includes several supports to enable older adults and adults with disabilities to exercise their right to vote, including an explicit provision on voting by persons under guardianship that draws directly upon ABA policy:
A State shall not determine that an individual lacks the capacity to vote in an election for Federal office on the ground that the individual is subject to guardianship, unless a court of competent jurisdiction issues a court order finding by clear and convincing evidence that the individual cannot communicate, with or without accommodations, a desire to participate in the voting process.
While applicable only to federal elective office, the provision would have the practical effect of bending the curve dramatically even in state and local elections, bringing guardianship law closer to contemporary scientific knowledge of capacity, and helping to ensure that every American retains the right to vote. In a time when the franchise is increasingly under siege, small advances represented by this kind of legislation make a huge difference.
Charles P. Sabatino is the director of the ABA Commission on Law and Aging, an adjunct professor at Georgetown University Law Center, and coauthor of Assessment of Older Adults with Diminished Capacity: A Handbook for Lawyers, a publication of the ABA and the American Psychological Association.