Recently, voting has become a larger issue in public discourse than it has been in years past, which has made the right to vote increasingly valuable. See Priya Khatkhate, Taking Away the Vote, A.B.A. J. Mag., Oct. 2018, at 9–10, http://dashboard.mazsystems.com/webreader/57776?page=10. However, little attention has been given to the lack of a legal standard for determining whether disabled people who are under guardianship or conservatorship should lose their right to vote. See id.
When Jack Vaile turned eighteen in 2016, he was looking forward to his first opportunity to vote in California. Id. During the same year, due to Jack’s cerebral palsy and autism, Lou Vaile, Jack’s father, was granted conservatorship over Jack by a California judge. Id. This was meant to help with Jack’s medical decisions. Id. However, in the process, the judge also took away Jack’s voting rights. Id. Although Jack had cerebral palsy and autism, he used an assistive device to communicate, and he had been doing his research to take part in the primary elections in 2016. Id. Jack’s father states, “Jack was really excited about the election process. He had done research. He was totally stoked to vote in the primaries in the election—and then I got this piece of paper in the mail. I was sick. I didn’t even know how to tell him.” Id. Like many other people going through the guardianship or conservatorship process, the Vailes did not know that Jack’s voting rights were on the table if conservatorship was granted. Id.
In Los Angeles, California, Greg Demer also went through the conservatorship process when he was eighteen because his mother, Linda Demer, was worried that Greg would not be able to make complicated decisions regarding his health and finances on his own due to his autism. Matt Vasilogambros, Thousands Lose Right to Vote Under ‘Incompetence’ Laws, Pew Charitable Tr. (Mar. 21, 2018), https://www.pewtrusts.org/en/research-and-analysis/blogs/stateline/2018/03/21/thousands-lose-right-to-vote-under-incompetence-laws. During Greg’s conservatorship process, he also lost his right to vote. Id. The judge found that Greg was unfit to make decisions about his finances and healthcare and participate in the democratic process. Id. However, with no clear standard to determine when disabled people lose their voting rights, a different judge restored Greg’s voting rights nearly a decade later. Id. Greg missed ten years of presidential, gubernatorial, and mayoral races, but finally voted for the first time in 2016. Id. After voting in the 2016 presidential election, “he put on an ‘I Voted’ sticker . . . [and] then gave his mom a high-five.” Id.
Thirty-eight states and Washington D.C. have laws that disqualify mentally disabled persons from voting. Khatkhate, supra. Some state constitutions use archaic language such as “idiots” and “insane” to describe people who are disqualified from voting. Id. For example, the Mississippi constitution states that “every inhabitant of this state [can vote], except idiots and insane persons.” Miss. Const. art. 12, § 241 (2018). Similarly, Ohio’s constitution states, “[n]o idiot, or insane person, shall be entitled to the privileges of an elector.” Ohio Const. art. V, § 6. Although the United States Constitution ensures the right to vote, the Federal Voting Rights Act gives each state permission to take that right away “by reason of criminal conviction or mental incapacity.” 42 U.S.C. § 1973gg-6(a)(3)(B). This restriction is intended to minimize the risk of voter fraud. Vasilogambros, supra. There is a fear that people will be able to vote twice because a person under guardianship may be susceptible to guardian manipulation. Khatkhate, supra.
Alzheimer’s patients, for example, could be given a ballot while awake but only partially alert, and their caretaker or family member could cast it for them. Or a staff member at an assisted living facility could fill out or influence the ballots for dozens of people with severe cognitive issues.
Vasilogambros, supra. Even though there is not a high probability of this occurring, even a very small number of tainted votes can make a big difference in a very close race. Id.
Although this is a legitimate concern, the even bigger concern is that these laws are applied inconsistently, leaving many capable people without the right to vote. Khatkhate, supra. This means that their right to vote can depend on where they live, what judge decides their case, and the support of their guardian. Id. Some judges take away the right from every person that comes before them in a guardianship or conservatorship case, while others will not give a person with a disability the right to vote unless they can name the mayor. Vasilogambros, supra. Such inconsistency exists not only state to state, but also within cities and towns. Cf. Khatkhate, supra.
Jennifer Mathis, Policy and Legal Advocacy Director at the Judge David L. Bazelon Center for Mental Health Law, says that the prevailing standard is that an individual should lose the right if she or he lacks the capacity to vote, but that standard remains troubling. Id. People under guardianship are often asked to list names of current elected officials and to explain how voting works. Id. Many argue that people that are mentally disabled should not be held to a higher standard of showing that they are entitled to vote, as we do not expect voters without disabilities to know such information or explain how the process works. Bazelon Center for Mental Health Law, Autistic Self-Advocacy Network, National Disability Rights Network & Schulte, Roth & Zabel LLP, Vote. It’s Your Right: A Guide to Voting Rights of People With Mental Disabilities 4 (2016), http://www.bazelon.org/wp-content/uploads/2017/01/voting-rights-guide-2016.pdf (2016) [hereinafter Vote. It’s Your Right].
In recent years, California has joined other states like Maryland, Nevada, and New Mexico in adopting a new standard that is promoted by the Bazelon Center and the American Bar Association, where the inquiry is whether a person can communicate, with or without accommodations, a desire to vote. Vasilogambros, supra; see Vote. It’s Your Right, supra. Other states, such as Maine, keep a stricter standard, asking whether a person understands the nature and effect of voting. Vasilogambros, supra. Whether the standard is that people with mental disabilities should understand the voting process, or whether they need only express an interest in voting, most citizens agree that state laws and practices should hold all individuals to the same standard. Vote. It’s Your Right, supra; see also Khatkhate, supra; Vasilogambros, supra.
*Christina Araviakis is a second-year day student at the University of Baltimore School of Law, where she serves as a staff editor for Law Review. Christina is also a scholar of the Royal Graham Shannonhouse III Honor Society, Vice President of the Women’s Bar Association, and a member of If/When/How: Lawyering for Reproductive Justice. She is currently working as a student attorney for the Human Trafficking Prevention Project Clinic at the University of Baltimore and will be working this summer as a Summer Associate at Semmes Bowen & Semmes.