The PDF for this issue which includes footnotes and endnotes can be found at here.
Now that we are settling into 2024, the election cycle is gearing up to be a landmark time in our nation’s history with a presidential race unlike any we have ever seen. Regardless of one’s political belief or party affiliation, an issue that may affect Democrats, Republicans, and Independents alike is the right to vote if one suffers from mental incapacity. This article will focus on the major issues regarding voting and capacity as we are only a few short months away from another presidential election.
Federal Laws Related to Voting and Capacity
In our dual system of government with federal and state, the federal laws regarding voting and capacity stem from the Fourteenth Amendment of the Constitution and various legislative laws passed by Congress. The Fourteenth Amendment states, “[n]o State shall…deny to any person within its jurisdiction the equal protection of the laws.” Thus, if one meets the age and residency requirements to vote in the jurisdiction according to the Fourteenth Amendment’s Equal Protection Clause, people with diminished mental capacity cannot be prevented from voting. In addition to the Equal Protection Clause of the Fourteenth Amendment, there is also the Due Process Clause of the Fourteenth Amendment. The Due Process Clause grants protections that, “[n]or shall any State deprive and person of life, liberty, or property, without due process of law…” In order to be legally declared mentally incapacitated, one must be adjudicated mentally incapacitated by a judge. Since one must have a hearing to be declared mentally incapacitated, the Due Process Clause may be implicated.
Congress has passed various legislation over the years that relates to voting rights for those with disabilities that may include mental capacity issues. The legislation includes: Voting Rights Act (“VRA”), The Americans With Disabilities Act (“ADA”), Help America Vote Act (“HAVA”), Rehabilitation Act, and National Voter Registration Act (“NVRA”). However, these laws all primarily focus on voting for those with physical disabilities, not mental disability or diminished capacity. Each law addresses different specific issues. For example, the VRA banned using literacy tests as a way to limit who may or may not vote. The ADA forbids preventing qualified people from voting if they meet the essential requirements to vote. HAVA allows someone whose eligibility to vote is in question by allowing to vote on a provisional ballot. Section 504 of the Rehabilitation Act does not allow for disability based discrimination taking place in programs or activities that receive federal financial funding. The NVRA permits voters to be disqualified from registration rolls based on mental incapacity.