A Terrible, Horrible Question to Ask: Who Should be Kept from Voting?

A Terrible, Horrible Question to Ask: Who Should be Kept from Voting?

Written by Jeff Rogers, Posted on , in Section Editors Picks

A Terrible, Horrible Question to Ask: Who Should be Kept from Voting?

Laws on the books in 39 states allow voting rights to be stripped from people with mental disorders, ranging from Schizophrenia to Down Syndrome. Such laws state that “incapacitated” or “incompetent” persons should not be allowed to vote. Some of those laws are much blunter and insensitive, using terms like “idiot” or “insane” amidst their legalese.1

“…tens of thousands of Americans with disabilities…every year lose their right to vote…”

Spectrum Institute, a California-based advocacy group for the disabled

Clearly, quite a few people in leadership positions asked that terrible, horrible question, and then worked hard in their political circles to actually make it legal to keep certain people from voting. But on what basis? There is no agreement among experts over whether certain people with disabilities should be so disenfranchised. Further, there is no agreement over what standard should be put in place to measure a person’s mental capacity to vote.1

“There is a tension between protecting the integrity of the electoral process and the civil rights of a person…”

Dan Marson, Neurology Professor, University of Alabama

Should all Alzheimer’s patients be barred from voting? Or just some of them? Which ones? And who is going to be the Grim Reaper to cut away those person’s inalienable rights?

What about those suffering on the Autism Spectrum? All of them? Who? On what basis?

What about persons with disabilities that are under guardianship arrangements? Many judges automatically strip those persons of their right to vote just because they are cared for as such. Is that fair? 1

Ninety percent of all persons with developmental disabilities under conservatorship in Los Angeles County lost their right to vote. Statewide, that’s 32,000 Californians under guardianship in the last decade who are not allowed to vote. According to AARP (American Association of Retired Persons), approximately 1.5 million adults live under guardianship nationwide. How many of those are not allowed to vote? 1

“Some people’s cognitive abilities are so impaired, they shouldn’t vote. They have no idea what’s going on.”

Pamela Karlan, Co-Director of the Supreme Court Litigation Clinic, Stanford University

What I want to know is what litmus test did Los Angeles County judges use to allow 10% of those under conservatorship to still be able to exercise their right to vote? California law states that the right to vote can be taken away if a court finds ‘clear and convincing evidence’ that a person cannot possibly express a desire to vote.1

The basic determinant used by new laws in California, Maryland, Nevada, and New Mexico is whether a person can communicate, with or without accommodations, a desire to vote. Proponents argue it is fair because it is “self-selecting.” Such persons essentially opt themselves out of the process by making no effort to ask for or to exercise in any way their right to vote.1

Other states use stricter standards. They work to determine if disabled persons understand the nature and effect of voting. Do they know what they are doing when they vote? Do they comprehend the consequence of casting a vote? Who decides if what is understood is enough?

“…Americans often vote for candidates for vague reasons, such as liking someone’s hair or thinking the candidate would be nice to have a beer with…”

Jason Karlawish, Professor of Medicine, University of Pennsylvania

According to conservative estimates in 2016, some 34 million voters2 with disabilities were expected to be going to the polls that November to have a say in the all-important mid-term elections, threatening a continued "blue wave" of popularity across the nation or a "red wave" of disappointment in the resurgence of Republican values and leadership. The same is true for November 2018, maybe even more so. How many more millions of disabled persons will be kept from voting this time?

"People with developmental and mental disabilities can face an especially tough time at the polls...assuming they're allowed to vote at all."

Caroline Modarressy-Tehrani, Vice News

The particularly frightening fact is that of the 1.5 million disabled persons under guardianship in all but 11 states in the U.S., many will automatically be barred from voting this November. Sadly, according to the Bazelon Center for Mental Health Law, many of those placed in "conservatorship," has nothing at all to do with whether they are competent to vote.2

"We are the last demographic within the U.S. where you can take away our right to vote because of our identity...It's horrifying that this is happening. The idea that you can't make a decision on who to vote for is a basic misunderstanding of what it means to be disabled."

Michelle Bishop, Disability Rights Network 



1 “Using Hazy Laws, States Revoke Thousands of Mentally Ill People’s Voting Rights,” Matt Vasilogambros, in Governing, 2018.

2 "Thousands of Americans with Mental Disabilities May Be Improperly Barred from Voting," Caroline Modarressy-Tehrani, Vice News, 2016.