The headline “Thousands Lose Right to Vote Under ‘Incompetence’ Laws” reminded me of a post I wrote a few years ago about a woman with Down Syndrome having children. Albeit this time it was about those with mental health issues losing their right to vote under “incompetent laws”. This became the talk in my circle after I sent out this article.
Laws in 39 states and Washington, D.C. allow judges to strip voting rights from people with mental disorders ranging from schizophrenia to Down Syndrome who are deemed “incapacitated” or “incompetent.” Some of those states use archaic language like “idiots” or “insane persons” in their statutes. The states that do not have similar restrictions are Colorado, Idaho, Illinois, Indiana, Kansas, Maine, Michigan, New Hampshire, North Carolina, Pennsylvania, and Vermont. Most states lack a clear legal definition of mental incapacitation, so it’s often up to a judge to make that determination, according to Jennifer Mathis, the director of Policy and Legal Advocacy at the Bazelon Center for Mental Health Law. Limiting the vote to people who have the mental capacity “sounds reasonable,” Mathis said, “but it is applied indiscriminately.” An estimated 1.5 million adults are under legal guardianship nationwide, according to the AARP, but there is no data indicating how many have lost their right to vote. There is little movement in state legislatures to eliminate restrictions on voting.
Not only is there no agreement among legal and psychological experts over whether certain people with disabilities should be disenfranchised, but there is also no set standard for measuring the mental capacity needed to vote. What should we require as a minimal standard? “There is not a clear answer.” The argument been capacity to make choices depends on the situation. Then the question becomes of what the situation is. The one that is often given is 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. Others are not worried about the situation but are worried about individuals expressing an interest in voting and not understanding what voting means. This too can be subjective as Daniel Holm, a Nebraska man with Down syndrome, showed when he said he voted for Hillary Clinton in 2016. Mary McHale, his mother and legal guardian, sat down with the then-18-year-old and helped him fill out his absentee ballot, going candidate by candidate, consulting a chart she made about the candidates and their positions. “I framed it in a way that he could understand,” she said. He reads at a fourth-grade level and is making his way through the Harry Potter books. When they finished, he signed his name and they mailed in the ballot. He was proud of his vote, his mother said. Holm could be one of the lucky few as some judges take away the right from every person who comes before them in a guardianship case. Other judges won’t preserve the right unless the person with a disability can name the mayor or president.
I do not have the answer, but I do strongly believe having a disability does not mean you are not competent to vote. This is a conversation we must continue to have because without a standard for measuring capacity, people with mental disabilities need to be properly represented in court. This article list plenty of ways. Can a person communicate, with or without accommodations, a desire to?