Given the current environment where the rights of a segments
of society to vote is being limited and challenged, it is especially important
to examine the rights of people with disabilities to vote. While often an
overlooked and ignored segment of society, people with disabilities need to
make their voices heard in the political process. As President Bill Clinton
expressed in his nominating speech on September 5, 2012, this election will
have a significant effect on the health care and educational rights of all
citizens but especially the most vulnerable among us which obviously includes
people with disabilities. Make no mistake voting for the Ryan budget and
overall plan will have a permanent and regressively harmful effect on my
clients, my son, families of children with disabilities and many people who I
care about. It is time to register all people with disabilities and to in fact
vote. We must be active citizens in the
political process.
Under Minnesota law, the right of the disabled who have
guardians to vote is maintained unless expressly removed by a court. This law, however, was recently challenged
unsuccessfully by plaintiffs who had hoped to upside down this presumption by
disqualifying the disabled from voting unless specifically allowed to by a
court. This challenge would appear to be part of an ongoing effort to
disenfranchise large and vulnerable parts of society. The Minnesota judge rejected the
plaintiffs’ claims that the law was in violation of the state constitution,
thereby effectively preventing the voting rights of approximately 22,000
Minnesotans who are under guardianship from being further pared down.
To not allow the disabled to vote is to render them without
a political voice and possibly have their needs ignored by elected officials. Thus this legal case in Minnesota became a
particularly emotional one. The Star
Tribune quoted a disabled 61-year-old war veteran with a guardian who said
that he had “been through sweat and blood to vote. I don’t want my rights taken away, because I
fought for my rights here in the United States and expect to keep them that
way.” The plaintiffs in the case,
including a former secretary of state who herself is the guardian for a
disabled adult sister, argued that they were trying to prevent the exploitation
of vulnerable citizens. In part they
used as an example an incident in 2010, later proved unfounded by
investigators, where caregivers were accused of prompting the votes of disabled
group home residents whom they had brought to the polls.
Because of differences in terminology in different statutes
and state constitutions, it is difficult to compare exactly how many states
have laws that preclude or limit the voting rights of the disabled or under
what circumstances these rights can either be restored or disqualified.
However, approximately 44 states overall have laws that permit in some form the
disenfranchisement of adults with disabilities under guardianship. These limits range from outright
disqualification from voting, disqualification unless reversed by a court or
the legislature, or presumption of the right to vote but permitting courts to
limit it. Only a handful of states
expressly retain the right of the disabled with guardians to vote or have no
statute or provisions regarding the right of the disabled to vote. According to an attorney for the Bazelon
Center, in those states in which the right to vote by the disabled with
guardians is denied unless approved by a judge, the disabled have to be both
“lucky and rich in order to vote—lucky enough to know they can ask a court to
restore their rights and rich enough to pay the court costs.”
Historically, laws and state constitutions in the 17th
and 18th centuries were drafted to ensure that the “idiot and
insane” (such horrible terms that are likely still uttered in back rooms and
occasionally heard on boom mics) were excluded from the electorate in an effort
to ensure that all voters were capable of making reasoned and informed
decisions. These laws, as later recognized
by Congress, did not reflect modern understanding of such medical conditions as
bipolar disorder, schizophrenia, or cognitive impairments or learning
disabilities, which do not always render individuals incapable of making
complex decisions.
With the passage of the Americans with Disabilities Act
(ADA) in 1990, Congress found that Americans with disabilities have been
“relegated to a position of political powerlessness in our society, based on
characteristics that are beyond the control of such individuals and resulting
from stereotypic assumptions not truly indicative of the individual ability of
such individuals to participate in, and contribute to, society.” Thus, Title II of the ADA disallows
discrimination based on disability in the rules, policies, or practices of
local government. Though the right to
vote is not expressly stated within Title II, courts have uniformly deemed the
right to vote a covered activity under Title II.
Petitioning a court for guardianship of a loved one can be
an emotionally and gut wrenching process, even in the case of parents of
severely disabled children who have almost always known that guardianship was
an inevitability. At a time when their friends’ children are searching out
colleges and preparing for proms, parents of severely disabled children are
amassing medical records and appearing in court to justify their child’s need
for guardianship. For caretakers of
adults who have become disabled through illness, trauma, or some other
devastating mishap, taking control of their adult loved ones is equally
sobering and painful. It is a sad
milestone for each family. But given
that the right to vote is such a fundamental basis of citizenship, families
seeking guardianship should examine their individual state’s laws regarding the
rights of their loved ones to vote and determine what the hopes and
expectations of their disabled family members are regarding the right to vote.
Once the right to vote is established, of course it is critical to register,
make and informed decision and VOTE!