Relics of Voter Discrimination Loosening Their Grip

The right to vote may be sacred to Americans, but can it be denied to people with diminished mental capacity?

Rules vary widely (or perhaps wildly) from state to state. Many states have laws or constitutional provisions barring “incapacitated persons,”“ idiots and insane persons,” “mentally incompetent,” or those under guardianship from voting, although many are rarely enforced.

If the language of the laws sounds archaic, that's because it is, said Paul Appelbaum, M.D., the Elizabeth K. Dollard Professor of Psychiatry, Medicine, and Law and director of the Division of Psychiatry, Law, and Ethics at Columbia University College of Physicians and Surgeons.

“Many of these laws date from colonial times and have changed little since then,” he said in an interview. “But most recent changes have been less restrictive.”

The issue drew a small flurry of attention during the 2006 elections when a candidate for the Rhode Island House of Representatives objected to two residents of the state mental hospital casting ballots. The two had been found not guilty by reason of insanity in murder cases, but that fact covered only their criminal acts and “does not address an individual's capacity to vote in any way,” said attorneys for the two. (The candidate lost by 1,700 votes.)

That seems to be an isolated incident, according to Jennifer Mathis, J.D., deputy legal director at the Bazelon Center for Mental Health Law in Washington, D.C.

“There hasn't been a large body of research indicating that there is a lot of voting fraud in this area or that mentally ill people are skewing elections,” she said. “People with severe cognitive impairments aren't beating down the doors at polling places.”

At least 11 states now have no voter competence standards, and no one in these states has complained that people with mental illness or dementia don't know what they are doing on election day, she said.

Much of the discussion about the issue involves patients in nursing homes. Obstacles to vote there revolve around practical issues such as getting voters to the polls, getting election officials to bring voting equipment to the institutions, or arranging for absentee balloting.

Some have tried to find a valid test of voting competence.

Maine voters have three times rejected repeal of a provision in Maine's constitution to exclude from voting persons under guardianship for reasons of mental illness. However, a federal district court decision in 2001 struck down that clause in Doe v. Rowe and said that voting was open to anyone who could understand the nature and effect of voting enough to make a choice.

Using that standard, Appelbaum; Richard Bonnie, J.D., a professor of law and medicine and director of the Institute of Law, Psychiatry and Public Policy at the University of Virginia Law School; and Jason Karlawish, M.D., an associate professor of medicine at the University of Pennsylvania, developed a questionnaire and tested it on 33 Alzheimer's disease patients. The test differentiated clearly “that the subjects had either adequate or inadequate performance” in measures of understanding and choice in voting, they said in article published in the November 2005 American Journal of Psychiatry.

This Doe questionnaire might seem like a good test to decide who should be permitted to vote, but the legal community takes another view, said Mathis. The Voting Rights Act of 1964 wiped out literacy tests and other barriers to voting for African Americans and said, in essence, that states could not single out any group to prevent it from voting.

“If someone can communicate, even with help, that they want to take part in an election, that should be enough,” she said. “We don't ask others if they meet that standard. If we're going to have a test, we need to give it to everyone who votes.”

So for the moment, despite the occasional challenge, pretty much anyone with or without a psychiatric diagnosis who can fill out a registration card is in all practicality eligible to vote.

The ABA's “Accommodating Cognitive Impairments” is posted at<www.abanet.org/aging/publications/docs/aug_08_ABA_bifocal_J.pdf>.▪