Guardianship, Mental Incapacity and the Right to Vote

by Chambliss, Bahner & Stophel, P.C.
Contact

Chambliss, Bahner & Stophel, P.C.

All U.S. citizens have a federally guaranteed right to vote, but those under guardianship (or conservatorship) may not have that right. Although things are slowly changing, some states still deny citizens the right to vote if they have been declared mentally incompetent, and this automatically includes anyone under guardianship, whether or not they actually lack the mental capacity to vote. 

Many people with special needs who are perfectly capable of voting have appointed guardians – usually their parents – so that they can continue to be cared for into adulthood.  But, depending on the state, being under guardianship may mean that in the eyes of the law they lack mental capacity and can’t vote.

Mental incapacity is generally defined as the inability based on mental illness, intellectual disability, or mental impairment of any sort, to reasonably carry on the everyday affairs of life or to care for one’s person or property.   The rationale for the denial of voting rights is that people with mental incapacity do not understand the nature of voting and are vulnerable to being manipulated.

However, with better understanding of the nature of certain disabilities and the advent of civil rights advocacy, these “mental incapacity” laws are now being called into question as unfair and unlawful restrictions on the rights of voters with disabilities.  More people with disabilities now have the right to vote and the right to choose a person to assist them with voting, and cannot be barred from voting by anyone other than a judge.

Still, determining the voting rights of a particular individual with disabilities is complicated. The voting laws vary widely from state to state, and even within a state. Right-to-vote laws cover multiple situations, including whether a person is under guardianship, is undergoing treatment or is hospitalized for mental health services, is admitted to a mental health facility, is the subject of involuntary commitment, or is eligible for or receiving services for intellectual or developmental disabilities. Generally, however, the law provides that no person is deprived of the right to vote solely because they are receiving services for mental disabilities.

The overwhelming majority of states have progressive laws about the right to vote or have decided not to enforce outdated laws. Twenty-five states, including Arizona, Connecticut, Florida, Maryland, New Jersey, New York, Ohio and Texas, provide that incapacitated persons shall retain their right to vote unless expressly limited by a court order, although some states require the individual to petition a court to determine their voting rights.  

Eleven states, including Illinois and Pennsylvania, have no disability-related restrictions on the right to vote in their state constitutions or election laws.  However, as of 2016, the constitutions of 10 states still automatically ban anyone declared mentally incompetent – which includes anyone under guardianship -- from voting. These states are Alabama, Louisiana, Massachusetts, Minnesota, Missouri, South Carolina, South Dakota, Tennessee, Utah and Virginia, with some exceptions. In particular, agencies or courts in Massachusetts, Virginia and Minnesota have subsequently issued opinions that individuals under guardianship do have the right to vote unless the guardianship decree contains an express order otherwise.

Some states are taking steps to restore voting rights to those with disabilities who were previously routinely denied. For example, after a civil rights complaint was brought, California enacted a law to restore rights to individuals under conservatorship (guardianship) who notified the court of their desire to vote. These individuals need only petition the court and “say” they want to vote, even if their means of communication requires reasonable disability accommodations to do so. Unless a judge determines in a hearing, with “clear and convincing” evidence, that the person had not communicated their desire to vote, the judge has to restore the right to vote.

The laws are moving in the direction of presuming that an individual with mental impairment has the right to vote, unless proven otherwise. Therefore, parents and guardians should check with a qualified special needs attorney about the current local laws regarding the right of those with special needs to vote. Obtaining guardianship is a very important way to protect a loved one and in most states will not automatically result in the loss of voting rights. The Bazelon Center and the National Disability Rights Network have created a voting guide to help people with mental disabilities understand their rights, and the guide includes a chart of state laws. To download the guide, click here.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Chambliss, Bahner & Stophel, P.C. | Attorney Advertising

Written by:

Chambliss, Bahner & Stophel, P.C.
Contact
more
less

Chambliss, Bahner & Stophel, P.C. on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.