With just two weeks to go before we elect a new commander in chief, the question driving media cycles and dinner conversations is, “Who are you going to vote for?” But for the more than 1.5 million Americans with disabilities under guardianship or conservatorship, the operative question is more basic: Can I exercise my constitutional right to vote at all? The answer turns critically on the person’s state of residence.
Beyond physical obstructions to poll sites, voters with mental disabilities — including learning disabilities, autism, Down syndrome as well as dementia and Alzheimer’s — face an even greater challenge in casting their ballots: deeply entrenched stereotypes that shape election law and policy. The majority of states deny these citizens, either by law or common practice, the right to vote. Many of these laws were added to state constitutions in the late 19th and early 20th centuries, in a bygone era when disabilities were profoundly misunderstood and people with disabilities were often neglected and abused in large state-funded institutions. While our attitudes about people with disabilities have changed dramatically since then, state laws have not kept up. Even their language reflects outdated ways of thinking: denying the right to vote to “idiots or insane persons” and those of “unsound mind” who are not of “quiet and peaceable behavior.” Underlying many of these legal restrictions is an overly broad and mistaken assumption that people with developmental disabilities are incapable of making reasoned judgments necessary to vote.
As a law professor, former disability law practitioner and advocate within the disability rights community, I have interacted with people with intellectual and developmental disabilities and understand the tremendous stigma faced by this group. I have organized conferences and planned classroom lessons for students alongside individuals with intellectual disabilities whose decision-making abilities can be as sound and diverse as those of most nondisabled people.
However, our laws are not set up to deal with the complex spectrum of intellectual disability. Guardianship laws, for example, are black and white, generally treating people with intellectual disabilities as either competent or incompetent. The need for support is seen as a deficiency — not a pathway to empowerment.
The existence of a court-appointed guardian should not deny people the right to vote for three reasons. First, guardianship is fundamentally about health and financial decision-making — not other areas of life. Thirty-nine states routinely bar individuals under guardianship from voting. In others, individuals with a mental disability must prove that they have either the ability or desire to vote — something we do not require of nondisabled people.
Second, the Americans with Disabilities Act, now in its 26th year, requires reasonable accommodations be made in voting. The point is to empower rather than strip the person of rights if they cannot do so independently or without support.
Third, there is a double standard in place with respect to what is cognitively required to cast a ballot. We expect people with mental disabilities to prove their knowledge of the issues and candidates when, in reality, the non-disabled voter is free to be uninformed or misinformed….
Unless a court has specifically found otherwise, adults with mental disability should be presumed to have the capacity to vote. Furthermore, states should also repeal antiquated state constitutional and statutory language emphasizing the incapacity of people with mental disabilities. Language affects public perceptions.
People with disabilities must be allowed to vote, even if they need support to do so. That’s not good politics or charity; that’s compliance with the constitutional requirements of equal protection and recognition of the integration and equal citizenship promised to these voters.
Jasmine E. Harris is a professor at the University of California at Davis School of Law. Her teaching and research focus on disability rights law.