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February 02, 2022

Updates to State Voting Laws for Individuals with Limited Capacity

by Catherine Bourque

The full PDF in which this article appears can be found in Bifocal Vol. 43, Issue 3.

Fewer rights are more fundamental than the right to vote in the United States. Many of us take it for granted. And while there has been much press lately about disenfranchisement of formerly incarcerated individuals, there has not been much discussion about disenfranchisement of individuals with limited capacity or who are currently under guardianship. Most state laws restrict or bar voting rights for limited capacity individuals.

State laws governing voting rights for individuals under guardianship fall into three categories: state constitutional provisions on who can vote, state voting registration statutes, and state guardianship law. There have been many recent changes in the state laws to incorporate more updated language about disability, guardianship, and capacity. As state constitutions are generally harder to change, it is unsurprising that many remain outdated in their language and practice.

A recently updated state survey considered current state law around voting rights for limited capacity individuals. Out of fifty states and the District of Columbia, thirty-five have constitutional provisions that specifically do not allow mentally incapacitated individuals to vote and thirteen state constitutions are silent on whether an individual with limited capacity can vote. Most states require a court order to disenfranchise individuals with limited capacity either as part of the appointment of a limited guardianship or as part of the voter registration process.

There were quite a few interesting changes in state law since the previous version of the state survey, most of which removed barriers or prohibitions to voting for individuals with limited capacity and many of which updated wording used in state law. As noted above, most states now require an adjudication of whether an individual meets the state standard for mentally incapacitated to be disqualified from voting registration.

One example of an interesting change is in Arkansas. In Arkansas, there used to be a constitutional provision stating that “no idiot or insane person shall be entitled to the privileges of an elector” but in November of 2020, the state constitution was amended to be silent on the rights of limited capacity individuals to vote. Arkansas also allows for a limited guardianship, but states that the guardian must have express court approval before allowing an incapacitated individual to vote. Kansas made the same change, removing the constitutional limitation that those with mental illness could not vote. Kansas also allows limited guardianships but does not have any individual provisions on voting in the guardianship law.

Connecticut also changed its state constitution to only allow those that can read English and are of good moral character to be eligible voters whereas before the change, mentally incompetent individuals were ineligible from voting. Massachusetts got rid of the provision disenfranchising individuals under guardianship in the state constitution and is now silent on the rights of limited capacity individuals to vote. Massachusetts continues to require a specific court finding that the individual is ineligible to vote as part of the guardianship proceeding as the only way to disqualify a limited capacity individual from voting.

In Iowa, Nevada, and New Jersey, the state constitutions changed the language in the qualified voters provision from disqualifying an insane person or idiot to disqualifying a person adjudged mentally incompetent to vote. In New Mexico, the state constitution language was similarly changed from disqualifying an insane person or idiot, to disqualifying individuals for reason of mental incapacity, the difference being that the individual does not need to be adjudged in a court of law to be mentally incompetent to vote in New Mexico. Most state guardianship statutes now use the term incapacitated person, e.g. Alaska and Florida.

As guardianship law has generally moved towards placing greater emphasis on encouraging limited capacity individuals to participate in decisions and to act on their own behalf,

it is interesting to reflect on whether the state voting laws reflect these changes. As detailed above, it does seem that state constitutions and guardianship laws are moving in this direction through updating language and requiring limited guardianships with specifically enumerated powers. Between the many states that have amended their constitutions to only limit individuals who have been adjudged incompetent to vote and the updating of guardianships to use more appropriate verbiage such as incapacitated persons, progress towards maintaining the right to vote for limited capacity individuals in being made.

But not every state has adopted these changes. For instance, Kentucky, Mississippi, and Ohio still use the terms idiots or insane in the constitutional provision regarding qualified voters. All three states do have limited guardianships and Kentucky requires a judicial decree of mental incompetence to disqualify a voter. Ohio established through case law that, in the voting context, an insane person means in an individual which has “suffered such a deprivation of reason that he is no longer capable of understanding and acting with discretion and judgment in the ordinary affairs of life.” This brings the constitutional language in line with Ohio’s state guardianship laws, which have been updated to define individuals with limited capacity as incompetent.

This state survey provides some insight into state legislatures and changes in state law regarding voting and individuals with limited capacity. It should be noted, however, that state law and what happens in actual life are likely to be worlds apart. Whether it is concern over whether guardians will actually help individuals to vote by providing access to mail-in ballots or even helping the person to register to vote or concerns over election officials denying registration attempts or even concerns over admittance to polling places, there are a myriad of ways in which individuals with limited capacity still struggle to access their right to vote, even in the most lenient states. The reverse is likely also occurring. State laws, and particularly state constitutions, may not reflect the less formal and more easily changed state guidance or protocols in both the guardianship community and in state voting administration offices. To complicate matters further, what happens in one locality within a state may be completely different from another depending on the composition of the populace, the amount of access or funds allotted to guardians, or even the official in charge of voting registration. While it is a worthwhile exercise to continue to monitor, discuss, and push state voting laws in the direction of retaining the right to vote in all but the most extreme circumstances, the context in which that state law operates is also important to consider.

Catherine Bourque

Department of Housing and Urban Development

Catherine Bourque is a former Borchard Foundation Center for Law and Aging Fellow. She worked at AARP Legal Counsel for the Elderly, Justice in Aging, and Greater Boston Legal Services, covering topics from foreclosure to Social Security benefits. She currently works at the Department of Housing and Urban Development, but the views expressed here are completely her own.