Keeping the 'Mentally Incompetent' From Voting
By Kimberley Leonard The Atlantic October 17, 2012
Proponents of laws limiting voting rights say they protect from fraud, but human rights advocates believe they're outdated and stigmatizing.
Roberta Blomster, 37, lives in a suburb with her parents and sister outside of St. Paul, MN, where she interns with Congressman Keith Ellison's campaign and testifies at her state capital on behalf of people with disabilities. During her free time she knits and spends time with her family and their two dogs.
Doctors have diagnosed her with mild mental retardation and epilepsy, and she is under limited guardianship, meaning that her mother manages her health and financial decisions.
The decision about whether to vote, however, is hers alone - a reality that might be different if she lived in another state. She gets her news from the local paper, television and social media. "It feels wonderful knowing that I'm able to make informed decisions about who I'm voting for," she says. "It's a very satisfying feeling knowing that you're making a difference."
About 30 states and the District of Columbia have laws in their constitutions that can limit people with mental disabilities from voting if they have been ruled "mentally incapacitated," or incompetent, by a court. This means they have been determined unable to manage their own affairs or make specific life decisions, which, other than voting for candidates, can include managing their money, entering a contract, making medical decisions or caring for their children.
People with mental disabilities or patients who are receiving psychiatric treatment do not automatically lose their eligibility to vote in any state. Court-ordered voting restrictions, however, can apply to people judged mentally incompetent due to a range of mental disabilities, such as bipolar disorder, schizophrenia, Down syndrome, or autism.
It could include someone sent to a mental hospital after being found "not guilty" of murder by reason of insanity, a patient with a traumatic brain injury, or an elderly person with Alzheimer's disease or dementia.
When filling out a registration form in some states, people must answer whether they have ever been ruled mentally incapacitated. If so, and if their capacity has not been restored, then that person is ineligible to vote.
Proponents of these voting limits say they are in place to protect people from voter fraud. Reagan George, president of Virginia Voter's Alliance, a group that monitors voting in the commonwealth, says he has seen people taking advantage of the votes of people with mental disabilities.
"It's a way of harvesting votes that I don't think is correct," he said.
The limits vary from state to state, and it is unclear to what degree they are enforced. Some states do not allow anyone who has been judged mentally incompetent by a court to vote, while other states require that judges specifically revoke voting rights for the limits to apply.
The narrative surrounding these laws has been little to non-existent during the 2012 election season, a time when discussion about voting has centered on tightening regulations rather than loosening them. Voter I.D. laws, which require people to present valid identification before casting their ballots, have drawn the most controversy by civil rights groups who say they disenfranchise minority populations.
Mark Salzer, a Temple University professor and chairman of the school's Department of Rehabilitation Sciences, said voting rights for people with mental health disabilities haven't been at the forefront of recent, widespread debate because people tend to think the laws are correct.
"They think that if you have a mental illness - and they use the term broadly - then your rationality is impaired and you shouldn't be able to vote," he said.
Salzer and members of human rights groups say these voting laws are outdated, and that their mere existence in state constitutions propagates stigmas about people with mental disabilities.
It is difficult to assess how many people these laws affect. Data from the National Alliance on Mental Illness (NAMI) says that one in 17 people lives with a serious mental illness, but exact numbers regarding people who are ruled mentally incompetent by a court is not available. More people are added to the rolls every day, and in many cases people can regain lost competency.
Angela Kimball, NAMI's director of state policy, says the laws make people feel as if they don't deserve something or aren't entitled to it. "The idea of limiting the vote only to those who meet a certain set of criteria is a little scary," she said.
Salzer from Temple agrees. "It's just plain wrong," he said. "It too easily disenfranchises voters. It takes away people's citizenship rights. They label people and perpetuate stigma and discrimination."
Hunter Sargent, 35, from Plymouth, MN, says that he feels these sorts of stigmas have affected him, even though he is legally allowed to vote. He skipped voting one year because he was discouraged by how officials had talked down to him at polls in the past.
Sargent has fetal alcohol spectrum disorder, which he says affects his memory and his ability to focus. He watches the news on television, and attends town-hall meetings to learn about the candidates. "I do have a voice and I want it to be heard," he said.
Since the year he skipped voting, he has been bringing someone with him to the polls so that he'll be more comfortable, a decision he calls an "emotional security blanket." His wife of two years, Holly, as well as his personal care attendant will both being going to the polls with him this November when he casts his vote for President Barack Obama.
"All people who live with mental illness deserve a successful life in the community," said Kimball from NAMI. "They deserve to be protected and have the same rights as other Americans. The right to vote is no different."
But defenders of the law insist the goal is to protect people with extremely severe mental disabilities.
Bev Harris, the founder of Black Box Voting, an election watchdog group based in Washington State, said there has been a history of people harvesting ballots and casting votes for people who are not capable of making their own decisions.
This has especially happened with nursing home populations, she said.
"You don't want to set people up for exploitation," she said. States need to make sure people have the capacity to understand the voting process, and then there would have to be protections in place to make sure others are not taking advantage of their votes, she said.
Lewis Bossing, senior staff attorney at the Judge David L. Bazelon Center for Mental Health Law, disagrees with this view. "There is no reason to place an impediment on someone's right to vote just because at some time in the past this may have happened," he said.
He believes the voting laws are rooted in a historical misunderstanding about people with mental disabilities, in which the consensus was that they should be institutionalized in order to be kept safe and cared for. Now, he says, mental disability rights policy is moving toward getting people into the community, living the same life experiences as everyone else and making contributions.
"The stereotype is that a person with a mental disability can't express a preference, and is more susceptible than other people to have some undue influence from someone else," he said. "This is no data to suggest this."
Jason Karlawish, professor of medicine, medical ethics and health policy at the University of Pennsylvania and part of the American Bar Association's Commission on Law and Aging, has explored the issue of voting from another angle, which suggests many of these disagreements could be minimized if state election officials provided proper assistance.
"The focus should be on maximizing access to voting and maximizing assistance for people who need it," he said, citing mobile voting as an example.
George from Virginia Voter's Alliance does not object to the need for assistance, but says there also should be oversight in place.
"You don't want to disenfranchise anyone," he said. "It's disenfranchising to other voters if someone brings in people who are in a vegetative state and votes on their behalf... without any discussion with them about what it is that they want."