Voting is a fundamental right that should almost never be taken away. Sometimes, however, individuals who have a guardian appointed by a court are prevented from voting because state laws disqualify them from voting or because the right to vote is taken away when a guardian is appointed.
This Toolkit was designed for educational purposes and general assistance for individuals seeking to retain or restore their right to vote. It contains sample court documents that can be used by individuals seeking to retain or restore their right to vote in a guardianship proceeding.
The Toolkit is a joint project between the National Disability Rights Network and the Bazelon Center for Mental Health Law.
Support for this project
This Toolkit is for educational purposes and general assistance ONLY. Nothing in this Toolkit or anything attached or references to this Toolkit should be considered legal advice for any claim or matter. Neither the National Disability Rights Network nor the Bazelon Center for Mental Health Law intend for this Toolkit to create any attorney-client relationship and any person reading or using this Toolkit will need to seek out legal counsel to discuss their individual circumstances.
Disclaimer
This resource was produced in part under grants from the Ford Foundation and the Democracy Fund. The contents of this resource, or any associated document, video or link is solely the work, analysis, and opinion of the National Disability Rights Network and the Bazelon Center for Mental Health Law or the entity or author cited or linked to and does not necessarily represent the views or opinions of the Ford Foundation or the Democracy Fund. This resource and the information available in this resource is for general informational purposes only and is not meant to be legal advice for any manner.
Voting is a fundamental right that should almost never be taken away. Sometimes, however, individuals who have a guardian appointed by a court are prevented from voting because state laws disqualify them from voting or because the right to vote is taken away when a guardian is appointed. Many courts have allowed people under guardianship to vote if they show that they have the capacity to vote.
This fact sheet, and the sample court documents contained in this packet, can be used in a guardianship proceeding to help a person retain the right to vote even if a guardian will be appointed for other parts of the person’s life, and to help restore the right to vote if it has been taken away in the guardianship proceedings. It will be important to understand your state and local laws and procedures. You can contact the state protection and advocacy (P&A) agency in your state for help. Find the P&A in each state at https://www.ndrn.org/about/ndrn-member-agencies/.
Note: For purposes of this fact sheet, references to “mental incapacity” and “mental disability” encompass the broadest definitions including intellectual/developmental disabilities, psychiatric disabilities, brain injuries, and dementia, unless otherwise specified.
Voting is one of the most sacred rights of our democracy, and is protected by the United States Constitution. Most citizens of the United States are eligible to vote if they:
- turn 18 years old on or before election day;
- meet their state’s residency requirements; and
- are registered to vote.
However, some people with mental disabilities may be denied the right to vote because federal law allows states to disenfranchise people who are determined to lack “mental capacity.”[1] Most states restrict the voting rights of some people with mental disabilities even though the term “mental incapacity” has not been defined in federal law or in many states.
In some states, people are disenfranchised through guardianship proceedings, sometimes without considering if the person has the mental capacity to vote or even telling the person that they are losing that right. The laws and practices in many states may be illegal if they don’t consider whether a person with an appointed guardian is actually capable of voting. Although legal action or legislative change may be needed to eliminate discriminatory state laws or practices, individuals in guardianship proceedings can and should request to retain the right to vote, or have it restored.
[1] National Voter Registration Act, 52 U.S.C. § 20507(a)(3)(B), formerly cited as 42 U.S.C. § 1937gg-6.
State laws and practices treat the right to vote for people subject to guardianship differently. In some states, people are automatically disenfranchised if a guardian is appointed; in other states, the court must determine that the individual retains or loses the right to vote; and still other states do not explicitly consider the question of voting capacity at all. There is more information about state voter laws on capacity on the website of the Bazelon Center for Mental Health Law, including a chart of every state’s voter competency laws.
In some states, people who are subject to a “full” or “plenary” guardianship automatically lose the right to vote. Some people who have a “limited” guardianship may still be able to vote unless the court determines that they do not have the capacity to do so. It will be important to understand what type of guardianship is being proposed or is in place in order to advocate for voting rights.
To find out if you are registered to vote, go to https://www.vote.org/.[1]
[1] NDRN and the Bazelon Center do not warrant, certify or make any assurances or guarantees about the security, operation, or usefulness of www.vote.org and have no responsibilities in regard to the website. We provide the link to this website simply for the benefit of the reader. Anyone entering information into www.vote.org assumes any risks associated with using the website.
There is no national standard for determining mental capacity or incapacity to vote, and each state uses a different standard or no standard at all.[1]
Some states require that a person subject to guardianship demonstrate an understanding of the voting process. This is sometimes known as a “functional” or “capacity” standard.
Advocates believe that this type of test is illegal because people without disabilities are not required to show an understanding of the voting process. To the extent that states choose to have a voter competency requirement, it is our position that their laws and practices should hold all individuals to the same standard regardless of whether they have a disability. Voter competency requirements only for people with disabilities do exist, however. Ensuring that people subjected to these requirements have the fullest opportunity to become voters, including supports and accommodations needed to demonstrate competency and to cast a ballot, affords important protections against exclusionary rules and practices.
In recent years, the American Bar Association, the Uniform Law Commission, and six states have adopted an approach to voting competency that strives to protect the federal constitutional and civil rights of people with disabilities and address concerns about election integrity.[2] This model centers the person’s ability to communicate a choice, with or without accommodations, about whether to vote and who to vote for, and means that no one should have to take a test, demonstrate knowledge of the voting process, candidates, or issues, or otherwise be subjected to a test that is not applied to anyone else.
Under the ABA and Uniform Law Commission model:
- Individuals subject to guardianship retain the right to vote even if placed under a guardianship unless:
- the court makes explicit and written findings,
- based on clear and convincing evidence,
- that the individual cannot communicate, with or without reasonable accommodations, a specific[3] desire to participate in the voting process, and
- The individual whose voting rights are at stake receives notice in a language and form they can understand, and has an opportunity to be heard in court, specifically as to the right to vote.
Basically, this means that in a proceeding to establish a guardianship, an individual should be able to request to retain the right to vote and receive accommodations to communicate their desire to participate in the voting process. Likewise, a person subject to guardianship who has lost their voting rights can ask to have their voting rights restored, and similarly receive accommodations.
Since only a few states have followed this model, it will be important to show the court in a guardianship proceeding how the individual meets the applicable standard in the state. However, it is also important to show the court that the individual has a desire to participate in the voting process, and what, if any, accommodations are needed to do so.
[1] Check the chart State Laws Affecting the Voting Rights of People with Mental Disabilities to find out what the voter competency laws are in each state.
[2] The American Bar Association is a voluntary national association of lawyers and law students. The Legislative Policy adopted by the ABA in 2007 is here.
The Uniform Law Commission provides states with non-partisan, well-conceived and well-drafted legislation that brings clarity and stability to critical areas of state statutory law. It adopted the Uniform Guardianship, Conservatorship, and Other Protective Arrangements Act in 2017. See §§ 310(a)(3) and 604.
The six states that use the model approach are: California, Maine, Maryland, Nevada, New Mexico, and Washington State.
[3] We recommend avoiding use of the word ”specific” if possible, as it could allow for an overly narrow interpretation of an acceptable level or type communication of desire to vote. However, it may be a powerful incentive for states or courts to accept the language adopted by the ABA.
Accommodations are a form of assistance that people with disabilities are entitled to receive under disability rights and election laws, such as the Americans with Disabilities Act, Section 504 of the Rehabilitation Act of 1973, the Help America Vote Act, and the Voting Rights Act. Accommodations do not permit another person to vote on behalf of a person with a disability. Federal law does permit and requires that a person with a disability be allowed to receive help to register to vote, to understand a ballot, to navigate the voting process, and to cast a ballot. Accommodations should also be available to assist people in guardianship proceedings to communicate their desire to vote and/or to demonstrate their competency to do so. Legally, accommodations are limited by whether they are “reasonable.”
To show a court that a person with a mental disability is competent to vote, and/or has a desire to vote, it will be important to tell the court what accommodations the person needs or has used in the voting process. Accommodations include using a supported decision-making approach, getting help from a person the voter with a disability chooses, technology or assistive devices, or other modifications that will enable a person with a mental disability to demonstrate capacity and a desire to vote, to register, and to cast a ballot. For more information on accommodations in the voting process, see Voting Accommodations for People with Mental Disabilities.
Supported decision-making happens “when people with disabilities use friends, family members, and professionals to help them understand the everyday situations they face and choices they must make, allowing them to make their own decisions without the need for a substitute decision maker, such as a guardian.”[1] Supported decision-making is generally considered to be an alternative to guardianship. However, supported decision-making principles are ideally suited to assisting anyone with mental disabilities in the voting process, including demonstrating competency and a desire to participate in the voting process. For examples of how supported decision-making can be used to help people vote, see Disability Vote California‘s Guide for Family Members and Supporters and Guide for Service Providers.
[1] National Council on Disability, Beyond Guardianship: Toward Alternatives that Promote Greater Self-Determination, March, 2018, at 130.
Find your state’s protection and advocacy agency. If you have questions about these materials, please contact: [email protected]
Websites
National Disability Rights Network Voting Page
Bazelon Center for Mental Health Law Voting Page
Autistic Self-Advocacy Network (ASAN) Voting Page
Self-Advocates Becoming Empowered (SABE) Voting Page
National Council on Disability (Explanation of laws)
Plain Language and Easy Read Materials
Autistic Self-Advocacy Network (ASAN) Voting Toolkit
ASAN Guide to state voting laws
Bazelon Center for Mental Health Law 2020 Plain Language Voter Guide
Self-Advocates Becoming Empowered (SABE) Voting Toolkit
The Arc Disability Voter Guide (English)
The Arc Disability Voter Guide (Spanish)
Supported Decision-making/Providing Assistance to Voters
American Bar Association, Assisting Cognitively Impaired Individuals with Voting: A Quick Guide
Disability Vote California (Supported decision-making for supporters)
Disability Vote California (Supported decision-making for service providers)
These model documents are not meant to be legal advice. You may need an attorney in the state where the court you are in front of is located. NDRN and the Bazelon Center for Mental Health Law are not providing legal advice to anyone for any individual case by making these model court documents generally available.
Motions
The way to ask a court to retain or restore voting rights in the guardianship process is through a Motion. A Motion is a legal request telling the court what you would like it to do and why. This packet contains two model Motions, as described below:
Motion to retain voting rights when a guardian is appointed. Sometimes an individual’s right to vote is taken away when a guardian or conservator is appointed, at times without notice to the individual and/or without considering whether the person is capable of voting. Even if a court will appoint a guardian to make financial or health decisions, an individual who has the mental capacity to vote should be able to retain that right. This Motion asks the court to make it clear that the guardianship Order should preserve voting rights for the person subject to guardianship.
Motion to modify guardianship Order where the Order explicitly takes away the right to vote or where the Order is silent. A guardianship Order may say that the person under guardianship cannot vote. This could be because (1) the person was found to lack the capacity to vote, or (2) no one raised the issue of voting at the guardianship hearing and the state’s law provides that a person under guardianship automatically loses the right to vote unless the person shows that he or she has the capacity to vote. Sometimes the court’s guardianship Order says nothing about whether the person subject to guardianship retains the right to vote, but election officials may receive notice of the person’s guardianship status and tell the person that they can’t vote even if that is not true. If the guardianship Order specifically says that the person retains the right to vote, the person can show this to election officials if they raise any questions. If a person’s guardianship Order takes away a person’s right to vote, or is silent, use this Motion to ask the court to change the Order to restore or clarify the person’s right to vote.
How do you know what the laws are in your state? Check the chart State Laws on Voting Qualifications Affecting People with Mental Disabilities.
Sample Affidavits
When you ask a judge to modify a guardianship Order to restore the right to vote of a person with a guardian, you will need to give the judge some facts about why the person should be able to vote. This packet includes three model “affidavits,” or sworn written testimony. They provide examples of the types of facts that may persuade the judge. These are only examples as the facts in each person’s case will be different. The models would need to be changed to the person’s specific case.
The model affidavits below are for several different people who might have important information for the judge to know about:
1) from a person subject to guardianship who wants the right to vote,
2) from the person’s guardian,
3) from a professional who has examined or worked with the person.
These affidavits tell the judge that the person wants to vote, understands what it means to vote, and can vote without being inappropriately influenced by someone else (even if the person may need some help to vote).
Model Proposed Order
Most courts require that you submit a proposed Order that the court can adapt or sign to give you what you are asking for. This packet includes a model proposed Order clarifying that the person with a guardian should have the right to vote.
