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March 28, 2024

Mental Capacity and Voting

George Shalloway
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.

State Law Regarding Voting and Mental Capacity

Every state has the power, and legal authority to regulate voter qualifications based on mental capacity in its own state.  The majority of states have some sort of mental health bar to the right to vote, but the differences vary between each state.  Furthermore, nearly half of the states have voting restrictions for those with court-adjudicated incapacity.  Additionally, there are still states that use terms such as “idiots,” “insane persons,” and “non compos mentis” translating to not master of one’s mind.  Not only are these offensive terms, but they are not easy to apply since they have vague definitions.  Moreover, there are thirteen states that have laws disallowing voting for people who are under guardianship.


While it is important to vote for a multitude of reasons, as we enter another presidential election cycle one must remember that there are people in our communities who may not have the right or ability to vote.  State legislatures have the power and privilege to regulate voting in their state and still must meet the “floor” that the federal government requires, but have the ability to raise the “ceiling” of their standards.  In conclusion, mental capacity and voting is an issue that is not uniform or standardized across the states, therefore readers should be aware of the limitations in each of their respective states.

For more information and resources on Voting & Cognitive Impairments, check out the ABA Commission on Law and Aging’s website at: Voting & Cognitive Impairments.

For tools to help you register to vote, update your existing registration, and locate your nearest polling place, check out the ABA’s Election Center website at: Election Center.

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