The PDF (including endnotes and footnotes) in which this article appears can be found here.
The 26th Amendment to the Constitution provides all United States citizens above the age of eighteen with the fundamental right to have their voices heard in local, state, and federal elections. However, individuals under guardianship in the US often have their right to vote stripped from them by the courts and guardianship statutes.
The issue of voting rights has recently garnered more media attention due to new Department of Justice guidelines. These guidelines, if used to their fullest potential, may create a prospective pathway for individuals under guardianship to fight against the presumption that they cannot vote. On April 18th, 2024, the Department of Justice created an advisory statement outlining all the federal laws that protect individuals with disabilities’ right to vote, including those under guardianship.
One recent case challenging the deprivation of an individual under guardianship’s right to vote occurred in Arizona. In Wood v. Coconino (In re Wood), No. 1 CA-CV 22-0710 (Ariz. App. May 30, 2024), the appellant, Annette Wood, was an older adult with multiple mental impairments who was placed under general guardianship. According to Arizona's Constitution, "[n]o person who is adjudicated an incapacitated person shall be qualified to vote at any election”, thereby barring Wood from voting outright. Although Wood understood the guardianship and that she needed assistance in making medical decisions, she still wished to retain the right to vote. To that end, the superior court asked her multiple questions to gauge her aptitude, and she was found by the superior court to be incompetent and was subsequently disenfranchised.
In keeping with her desire to exercise her right to vote, Wood appealed this decision and challenged the constitutionality of Arizona’s guardianship statutes, contending they violated the Due Process clause of the 14th Amendment of the US Constitution. On appeal, the Arizona Court of Appeals, Division One, held that Arizona's guardianship statutes violated Wood’s right to due process and unfairly put the burden on the person under guardianship to prove that they could vote. The court further found that the state statutes fell short on all the analyses of strict scrutiny and concluded that the burden to prove an individual is incapable of voting should be put on the person who is filing to become a guardian. As a result, Arizona courts must now hold hearings to determine an individual's voting capacity before terminating their right to vote. The person seeking to become the individual's guardian is also required to show that the individual cannot express their preferences on the ballot by clear and convincing evidence.