Thousands Lose Right to Vote Under ‘Incompetence’ Laws

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Like many people with autism, Greg Demer is bright but has difficulty communicating. He has a passion for the history of military aircraft, but he can’t quite keep up a conversation with new people. When he meets someone, he’ll quote from movies or ask them about their favorite Teenage Mutant Ninja Turtle.

His mother, Linda Demer, worried that he wouldn’t be able to make complicated decisions about his finances and health care once he turned 18. So, in 2005, a judge in Los Angeles, where they live, granted her conservatorship over Greg.

“I wanted to protect him,” she said of her son, who is now 31.

But in the conservatorship process, the judge also stripped away Greg’s right to vote. He was not only unfit to make decisions about his health care and finances, the judge ruled, but he also was unfit to participate in the democratic process.

In being declared “mentally incapacitated,” he joined tens of thousands of Americans with disabilities who every year lose their right to vote during guardianship proceedings, according to the California-based Spectrum Institute, an advocacy group for people with disabilities.

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.

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. There is a tension between protecting the integrity of the electoral process and the civil rights of a person under guardianship, said Dan Marson, a professor emeritus at the University of Alabama at Birmingham’s department of neurology.

“What should we require as a minimal standard?” he said. “There is not a clear answer.”

Should There Be Limits?

Fear of voter fraud is a primary reason why certain people with cognitive impairments are kept from the polls.

People with Alzheimer’s, 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.

“You would have people essentially voting twice,” said Pamela Karlan, the co-director of the Supreme Court Litigation Clinic at the Stanford University Law School. “Some people’s cognitive abilities are so impaired, they shouldn’t vote. They have no idea what’s going on.”

Karlan said people should not only express an interest in voting, but also understand what voting means.

A very small number of votes, and in some cases potentially “tainted” votes by people who don’t have the “mental capacity of understanding an election,” can make a big difference in a close race, said Paul Appelbaum, the director of the division of law, ethics and psychiatry at Columbia University’s department of psychiatry.

That sort of situation is not so farfetched, he said. A congressional race in Pennsylvania this month was decided by around 600 votes.

“Imagine if it became known that all the residents of a nursing home in the district voted in the election,” he said, “and many of them were so impaired that they didn’t know what the election was about or didn’t know what filling in a bubble on a form was.”

But in those examples of voter fraud, it’s not the person with a disability committing the crime — it’s the caretaker or family member, said Michelle Bishop, an advocacy specialist at the National Disability Rights Network based in Washington.

“We don’t strip someone of their rights in the name of protecting their rights,” Bishop said. “They are literally the last people in the U.S. who can get their right to vote stripped because of their identity. Having a disability does not mean you are not competent to vote.”

While some may not be able to make sound choices about their health care or finances, they can still understand and participate in the electoral process, Bishop said. The capacity to make choices depends on the situation.


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By David Disponett on 04/04/2018 11:00 AM
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