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Bazelon Working to Ensure Voting Rights for People with MI
Mental Health Weekly October 31, 2016

The Bazelon Center for Mental Health Law is continuing efforts to advise people with mental disabilities to register to vote following years of advocacy to push states to adopt standards for people with mental illness and their right to vote. Registration deadlines in many states are still open, with several offering on-site registration on Election Day on Nov. 8, officials said.

In 2007, the Bazelon Center worked with the American Bar Association (ABA) to adopt comprehensive standards for people with mental health disabilities. The ABA at that time urged federal, state, local and territorial governments “to improve the administration of elections to facilitate voting by all individuals with disabilities, including people with cognitive impairments.” The ABA passed a resolution urging states that wished to have a voter competence standard to adopt the aforementioned.

Currently, four states have adopted the voter competence standard recommended by the ABA: California, Maryland, Nevada and New Mexico, the latter just last month, said Jennifer Mathis, director of policy and legal advocacy for the Bazelon Center. “If you can communicate, with or without accommodations, a choice to vote, you are competent to vote,” Mathis told MHW, citing an emerging trend.

Mathis added that the most recent amendments in state voter competence standards have all reflected some version of this standard. “Previous standards tended to focus on barring voting by anyone under guardianship, or requiring people under guardianship to show they should be allowed to vote by taking what often amounts to a literacy test,” she said.

It is not necessary for a state to have a voter competence requirement, and 11 states don’t have one, Mathis said. If states do choose to have a voter competence standard, however, that standard should not impose a higher standard for people with disabilities to vote than for anyone else to vote, she explained.

National Advocacy
Regarding national advocacy, the Bazelon Center participated a number of years agoina symposium convened by the ABA on this topic, said Mathis. “The symposium focused on voting rights of people with dementia, but the same issues applied to people with mental disabilities generally, and the resolution ultimately adopted by the ABA applied to all people with disabilities,” she said.

Some states that do have a mental competence requirement use that requirement inappropriately, said Mathis.

“Most states that have voter competence requirements have ones that disenfranchise people under guardianship regardless of their capacity to vote, or subject people under guardianship to a higher standard than everyone else to show they can vote,” said Mathis. “We don’t ask people without disabilities to demonstrate how capable they are of voting.”

Information about voter rights is available through the Bazelon Center’s revised voter guide, “VOTE. It’s Your Right. A Guide to the Voting Rights of People with Mental Disabilities.” Regardless of the state laws, and even in states that have no voter competence requirement, many times people with disabilities are inappropriately barred from voting by service providers, election officials, poll workers or others. For example, Pennsylvania does not require a voter competency requirement — yet.”

The Bazelon Center played a direct role in Maryland to work with state legislators to change the law, Mathis said. “Maryland’s law indicated that a person cannot vote if he or she is under guardianship,” she said. The state had clearly violated the law, noted Mathis. “Our view was that it violated the ADA; there wasn’t a challenge,” she said, adding that the Bazelon Center helped to change the state law to adopt the ABA standard.

A survey of Philadelphia-area nursing homes conducted a number of years ago found that staff in the vast majority of nursing homes screened residents to determine which residents they thought had the capacity to vote before allowing or assisting them to vote, Mathis said.

“A lot of times service providers impose their own view on who should be voting regardless of the state law,” said Mathis. “Sometimes local officers and poll workers do that.” Mathis pointed to an incident in New Jersey about 10 years ago when election officials discarded absentee ballots from residents of Trenton State Hospital, deeming the hospital patients ineligible to vote absent proof that they were capable of voting.

Guardianship
Some states have voter competency standards that bar anyone under guardianship from voting. These laws disenfranchise people who are perfectly capable of voting. Maine is an example of a state that had this type of law, said Mathis. Its law barred voting by anyone under guardianship “by reason of mental illness,” she said. “It was challenged and the federal court found that it violated the Constitution and the ADA,” she said.

Most people under guardianship are capable of voting. Guardianship involves whether they can make a decision to ensure their health and safety needs. It doesn’t speak to a person’s ability to vote. Many people are under guardianship for various reasons. They can be very informed about election issues. It’s inappropriate to take away a person’s right to vote simply because they have a guardianship appointed to them.

Some states have narrowed its laws, noted Mathis. Officials have recognized states’ inappropriate standards, she said. But in many cases even the narrowed versions still imposed a higher standard on people with disabilities, she said.

Mathis said that people with disabilities are asked such questions as “Why are you voting?” “What kind of choice will you make?” or “Why are you voting on this particular issue?” “We would never ask a person without disabilities to answer those questions to be allowed to vote. We hold them to a higher standard,” she said.

Mathis added, “If you’re going to ask people a question about how competent you think they are to vote — for example, explaining your choices or your understanding of the voting process — you need to ask the same questions of everyone who wants to vote.”

About 10 states have laws that do not allow people with disabilities to vote if they are under guardianship, she said. In another 25 states or so, if you’re under guardianship you’re not allowed to vote unless you have the capacity to vote, Mathis noted. People with disabilities have a higher standard imposed on them, she said. “We don’t ask that of anyone else. It’s like a modern-day literacy test,” Mathis said.

States don’t need to have a competency standard for voting, said Mathis. “There are 11 states that do not have competency standards,” she said. “No one suggests their election process lacks integrity.”