Voting Accommodations for People with Mental Disabilities

This resource was produced 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 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] was a way for my son to be proud of himself…and return some of his self-esteem.”[1]

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. In general, the only categories of people who are disqualified from voting are some people with felony convictions and people who are legally determined to lack “mental capacity.”[2] Most states have enacted restrictions on the voting rights of people with mental disabilities even though the term “mental incapacity” has not been defined in federal law or in many states.

Although people with mental disabilities are the only group that may be disenfranchised based on their perceived inability to vote, that does not mean that all people with mental disabilities cannot vote. In fact, the vast majority of people with mental disabilities should be able to vote!

Some laws and practices that prevent people with mental disabilities from voting are illegal. In some states, people are disenfranchised through guardianship proceedings or across-the-board bans on voting for certain categories of people with mental disabilities.[3] While legal action or legislative change may be needed to invalidate discriminatory state laws or practices, individuals in guardianship proceedings can and should request to retain the right to vote, or have it restored.[4]

Another reason that people with mental disabilities may not vote is the barriers they face, or they are not given the assistance to vote that they are entitled to. Helping all eligible people to exercise their right to vote is an important national priority. State Protection and Advocacy (P&A) agencies receive funding through the federal Help America Vote Act specifically to assist people with disabilities to vote. You can contact the P&A in your state to learn more about your state laws and ways the P&A can help make sure people with mental disabilities can vote.

*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.

[1]  Pew Trusts, March 21, 2018

[2] National Voter Registration Act, 52 U.S.C. § 20507(a)(3)(B), formerly cited as 42 U.S.C. § 1937gg-6.

[3] 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.

[4] https://www.ndrn.org/resource/enfranchisement-of-people-subject-to-guardianship/

“I think that one of the ways that you can really silence someone and make them feel not a part of society is by taking away something that’s as fundamental as the right to vote.”[1]

Because of real or perceived restrictions on the rights of people with mental disabilities to vote, many do not receive the assistance they need to be able to vote. Even people who want to or who try to vote may encounter obstacles that prevent them from voting. The most common problems include:

• Not being informed about, or given assistance with, the voter registration process;
• not being able to read, see, or understand the ballot;
• not understanding how to request and return an absentee ballot;
• not being able to use the voting equipment;
• finding or getting to the polling place; and
• difficulty waiting in line at the polls.

In addition, people with disabilities may be more socially isolated which makes them less likely to be asked to vote by friends, family members, co-workers, and political organizations. They may not see themselves, or be seen by others, as voters and therefore are left out of voter engagement and mobilization efforts. They may also not have the resources, such as income, education, or even transportation or access to the internet, to be able to vote or believe they are able to vote.

Another concern is that when the voting process is not fully accessible, people with disabilities who want to vote may have to rely on family members or caregivers who can make informal “gatekeeping” decisions to provide or withhold assistance. Family members may apply pressure to vote for particular candidates, which can discourage people with disabilities from voting.[2] Such practices may also constitute voter fraud– by the helper—if the helper’s “assistance” entails substituting the helper’s preference for the voter’s choice or improperly influencing the voter’s choices. It is therefore extremely important that people with disabilities understand their rights to assistance or accommodations. Those who are asked to or want to help people with disabilities exercise their rights must also understand how best to do so and what their legal limitations are.

[1] National Council on Disability, Beyond Guardianship: Toward Alternatives That Promote Greater Self-Determination at 105.

[2] Daniel P. Tokaji & Ruth Colker, Absentee Voting by People with Disabilities: Promoting Access and Integrity, 38 MCGEORGE L. REV. 1015, 1029 (2007).

“My Mama [and I] have a system where I slap her left hand or right hand to make my choice. If I don’t slap either one, it means I don’t like either choice. So anyway, I voted three times now for president and governor.”[1]

Accommodations are a form of assistance that people with disabilities are entitled to receive under a variety of 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, but they do permit a person with a disability to receive help to register, understand the ballot and 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.”

Aside from what is legally required, some types of accommodations are simply assistance provided to voters that is similar to the way many voters without disabilities vote, provided in a manner that optimizes their ability to understand and choose to vote and who to vote for. That is, many people seek advice, input, and information from knowledgeable and trustworthy people and sources, and rely on information produced by campaigns or political groups. There is no reason that people with mental disabilities cannot receive the same types of assistance to demonstrate their competence to vote and to cast a ballot, offered in a way that is accessible to them. The most important thing is that their vote is based on their own choice.

There are many reasons why any individual with a mental disability might need assistance or accommodations in the voting process including:

• demonstrating that they have the mental capacity and/or desire to participate in the voting process;
• understanding, reading, or marking a ballot;
• learning about candidates or issues;
• using voting equipment;
• Getting to or from the polling place; or
• being able to vote from a hospital or facility where they live.

[1] National Council on Disability, Beyond Guardianship: Toward Alternatives That Promote Greater Self-Determination at 133.

“The reason for wanting to vote for someone is sometimes as simple as, ‘She made me happy.’” [1]

In addition to protections under the U.S. and state constitutions, a number of laws have sought to ensure that people with disabilities can exercise their right to vote on an equal basis with other citizens. These include:

• Federal disability rights laws:
  • Americans with Disabilities Act of 1990 (ADA), which requires that all parts of voting be accessible to people with disabilities.[2]
  • Section 504 of the Rehabilitation Act of 1973 (Section 504), which generally provides the same protections as the ADA from activities receiving federal financial assistance.[3]
• Federal voting rights laws:
  • Voting Rights Act of 1965, which gives people with disabilities a right to receive assistance in voting from someone of their choice (except for their employer or union representative).[4]
  • Voting Accessibility for the Elderly and Handicapped Act of 1984 (VAEHA), which requires that polling places and registration facilities be accessible.[5]
  • The National Voter Registration Act of 1993 (NVRA) intended to increase the voter registration of people with disabilities by requiring agencies that primarily serve people with disabilities to offer their clients the opportunity to register to vote and provide assistance in registering.[6]
  • Help America Vote Act of 2002 (HAVA), which requires states to make voting systems accessible “in a manner that provides the same opportunity to people with disabilities for access and participation” as is provided to non-disabled voters.[7]
• State anti-discrimination and election laws.

[1] Pew Trusts, March 21, 2018.

[2] According to the U.S. Department of Justice, “[t]he ADA’s provisions apply to all aspects of voting, including voter registration, site selection, and the casting of ballots, whether on Election Day or during an early voting process.” U.S. Dep’t of Justice, Civil Rights Division, Disability Rights Section, The Americans with Disabilities Act and Other Federal Laws Protecting the Rights of Voters with Disabilities (Sept. 2014), at 1.

[3] 29 U.S.C. § 794 and regulations at 28 C.F.R. § 41.51.

[4] ”Any voter who requires assistance to vote by reason of blindness, disability, or inability to read or write may be given assistance by a person of the voter’s choice, other than the voter’s employer or agent of that employer or officer or agent of the voter’s union.” 52 U.S.C. § 10508, formerly cited as 42 U.S.C. § 1973aa-6.

[5] 52 U.S.C. § 20101 et seq., formerly cited as 42 U.S.C. § 1973ee et seq.

[6]  52 U.S.C. § 20501 et seq., formerly cited as 42 U.S.C. § 1937gg et seq.

[7] 52 U.S.C. § 21081(3)(A).

“[Not having the right to vote restored by the court] hurts. I think that hurts David. I know it hurt me. It hurt me for David.” [1]

Guardianship/Conservatorship proceedings

State laws and practices vary widely as to whether people subject to guardianship can vote. 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.[2]Many of these restrictions are likely illegal, especially if they do not involve an individualized determination of the capacity of each individual to participate in the voting process. In any case, people with mental disabilities are entitled to accommodations in guardianship proceedings to demonstrate that they have the capacity, and/or that they want to vote, when threatened with the loss of the right to vote or to seek to have it restored.

To the extent that states choose to have a voter competency requirement, it is our position that all 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 cast a ballot, affords important protections against exclusionary rules and practices.

Although there is no national standard for determining mental capacity or incapacity to vote, much work has been done in recent years to establish a model approach that protects the federal constitutional and civil rights of people with disabilities and addresses concerns about election integrity. A model standard adopted by the American Bar Association, the Uniform Law Commission, and six states, provides that a person subject to guardianship should retain the right to vote unless “the individual cannot communicate, with or without reasonable accommodations, a [specific] desire to participate in the voting process.”[3] 

This approach rejects a “capacity” or “functional” test, in which an individual is required to demonstrate knowledge of the voting process, candidates, or issues, or otherwise be subjected to a standard that is not applied to anyone else. 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.[4]

Demonstrating competency if questioned at registration/voting

Unless an individual’s right to vote has been removed by a court, or the individual has otherwise been properly removed from the voter rolls, they are entitled to cast a ballot without being questioned by election officials, facility staff, or family members. It is not uncommon, however, for election officials and poll workers to impose their own requirements on people with disabilities whom they perceive as lacking competency to vote.[5] Individuals who reside in nursing facilities or staffed settings may also confront situations in which staff assume or determine that they lack the capacity or desire to vote. This is fundamentally contrary to federal disability and voting rights laws.

A medical diagnosis does not disqualify a person from voting. A diagnosis of Alzheimer’s disease, traumatic brain injury, or other cause of cognitive impairment does not disqualify a person from being eligible to vote. In fact, many persons diagnosed with a condition that involves cognitive impairment are able to cast a ballot. This means that chart notes, medical diagnoses, or cognitive test scores do not disqualify a person from voting. Everyone should be approached about voting, and everyone who wants to vote should be given the opportunity.[6]

People with disabilities have a right to assistance at the polling site by a poll worker or someone of their choosing, and they can cast something called a “provisional ballot” if their competency is challenged and they are told they cannot vote at a polling place.[7]

Registering to Vote and Casting a ballot

People with mental disabilities may require the same or similar types of assistance to register and cast their ballot as people without disabilities, such as consulting with trusted sources, reviewing campaign information, and relying on ads, in a manner that is accessible to them. This is not prohibited as long as the voter is making the choice about who or what to vote for or against. In addition to the types of accommodations discussed below that may be needed by people with mental disabilities, they may also need accommodations that are available for people with physical or print disabilities, which are not discussed in detail here.

[1] Rosalind Alexander-Kasparik, conservator for David Rector, who lost the right to vote when placed under a conservatorship.

[2]  See the Bazelon Center website for more information on state voter competency laws.

[3] 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.

[4] Find under Sample Documents.

[5] In a 1983 lawsuit in Ohio filed when people with mental disabilities were challenged at the polls, a settlement agreement in the case contained specific provisions that prohibit poll workers from challenging the competency of voters and specifying that voters with disabilities have a right to assistance to be able to vote.

[6] American Bar Association, Assisting Cognitively Impaired Individuals with Voting: A Quick Guide, 2020.

[7] A provisional ballot is used when there is uncertainty about a voter’s eligibility. In most states, a person whose eligibility is questioned must be allowed to vote using a provisional ballot, and their ballot is kept separate from other ballots until after the election. Within a few days, election officials will determine if the ballot should be counted.

Mary McHale…sat down with [her] then-18-year-old [son] and helped him fill out his absentee ballot, going candidate by candidate, consulting a chart she made about the candidates and their positions.

“I framed it in a way that he could understand,” she said. He reads at a fourth-grade level, and is making his way through the Harry Potter books.

When they finished, he signed his name and they mailed in the ballot. He was proud of his vote, his mother said, joining his cousins and other “typical people” who got to participate in the democratic process.[1]

Supported Decision-making Principles

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.”[2] Supported decision-making is generally considered to be an alternative to guardianship. However, supported decision-making principles are ideally suited to assisting anyone with a mental disability in the voting process.

To vote using supported decision-making principles works in the same way that most adults make their voting decisions—by seeking advice, input, and information from others who are knowledgeable and whom the person trusts, and relying on information produced by campaigns and other sources.

Some suggested ways to use supported decision-making principles to assist someone to vote include:

1. Be present and patient; wait, listen and check that the person understands.
2. Relate issues on the ballot to the person’s own life, such as their interests and/or familiar characters or scenarios in books or movies.
3. Use examples of experiences the person has had in their life. Make sure they know how the issues on the ballot will affect them personally.
4. Use plain language voting resources to explain concepts simply and clearly.
5. Read voting resources slowly, more than once, and emphasize different words.
6. Read through plain language or visual guides to the ballot repeatedly, so that the person can take time to think about the issues.
7. Connect with other possible supporters for the person- be open to all views and encourage questions.[3]

Auxiliary Aids and Services to Ensure Effective Communication

The ADA requires that people with disabilities have access to “auxiliary aids and services” to ensure that they are able to communicate as effectively as people without disabilities in activities such as voting.[4] Auxiliary aids and services can include a wide range of personal assistance and technology[5] to make sure that people with disabilities have an equal opportunity to participate in all stages of the voting process, including demonstrating competency or desire to vote, registering, and casting a ballot.[6] The auxiliary aids and services that the person with a disability requests must be a ”primary consideration” when deciding what will be offered.[7]

Outreach/education to people with disabilities

There are many ways that people with disabilities can learn about their right to vote, learn how to vote, and understand their choices in the voting process. Many people with and without disabilities learn informally through the same sources in order to be informed voters:

• Reading materials from candidates and political parties, and materials developed by the local board of elections or other sources and organizations;
• Using the internet to research voting laws and requirements, download sample ballots, find polling sites and hours of operation, and access other electoral process information; and
• Being exposed to public service announcements and other media, including print, radio, television, and social media such as Facebook.
• Receiving informal voter education from parents and other family members, self-advocacy groups, friends, and co-workers.

In addition, there are many formal voter education and training activities that may assist people with disabilities to understand the voting process and their ballot choices, including presentations on voting rights and the voting process by service providers, Independent Living Centers, local and national disability advocacy organizations, P&As, the State Developmental Disability Council, local boards of elections, high school and college civics and government classes, and organizations such as the League of Women Voters, etc.

Assistance by person of choice

People with mental disabilities have the right to get help with voting and to decide who will help them vote. A helper can be a friend, family member, caregiver, residential service provider or almost anyone else they choose except an employer or union member. The voter must make the choice whether to vote and how to vote, not the person providing help. The person providing help must never mark a ballot to reflect any choice other than the choice expressed by the voter. It is a serious legal matter if a helper does not reflect the choice of the voter even if they disagree with that choice. The person providing help must respect the voter’s privacy at all times during the voting process.

Assistance completing a ballot

Voters with disabilities may receive assistance in completing their ballot by a person of their choice. A person helping a voter with a disability must respect their choices and their privacy. If needed, the helper can use verbal or non-verbal prompts, a picture board, video, or graphics to help the voter understand the process and their choices. If the voter does not choose who or what to vote for on a particular ballot item, the helper must leave that blank. The helper may not influence who the person votes for, even if they ask who they should vote for.

Some ways to optimize the voting experience and ensure that the voter’s wishes are respected include: listening carefully, speaking clearly to the voter, making eye contact and making sure the voter is paying attention, showing respect to the voter and their choices and questions, being flexible about the time and location for discussing voting issues and ballot choices, making sure to understand even non-verbal communication, and noticing body language to best be able to know when and if to pause, move locations, or respond.[8]

In addition to personal assistance in completing a ballot, people with disabilities should be able to receive ballot materials in alternative formats in order to review and understand ballot items. Some examples include audio ballots, Braille, or large print for people with print disabilities who cannot see or read the regular ballot.

Help at the Polls

Election officials and poll workers are required by law to help people with disabilities vote upon request. They can help voters read voting forms or learn how to use voting machines. For help marking the ballot, election officials should provide two people, one Democrat and one Republican election official to assist.

Election officials also have to ensure that voting booths, ballots or other voting forms, voting machines, and any other voting equipment are accessible. They cannot ask about a voter’s disability or stop a voter from bringing a support person to assist them. It may also be possible for a person to receive assistance remotely, via video, as one court in Arizona ruled.[9]

Vote-By-Mail/Electronic Voting

States have different rules and options for voting by mail, or absentee voting. Some people with disabilities may be able to register as “permanent absentee” so that they will always be sent a mail-in ballot. Mail-in ballots can be mailed or dropped off in person, depending on the local and state rules. It is important to know the deadlines and requirements for completing and mailing an absentee ballot! Some states also have variations of electronic voting, in which people can complete a ballot electronically and print and mail it back, or vote electronically using the method used by military and overseas voters.

Extra time

Giving voters more time to understand the candidates and issues may allow them to make better decisions and cast their ballots more accurately. Completing a sample ballot at home before going to the polls (and bringing the sample ballot into the voting booth), or voting absentee are good ways to make sure the voter has enough time to fully understand and make informed choices. In the polling place, people with disabilities have the right to take extra time to complete their voting, even if there is a time limit for the general voting population.

Plain Language materials

Finding and using plain language or easy read materials can be essential tools for people with mental disabilities to understand the voting process and their ballot choices. Voters can bring materials to the polling site, and they can be used in advance of election day to learn about and prepare for voting. Such materials can also be used in a guardianship proceeding to demonstrate that the person understands the voting process and/or to determine whether the person wants to be able to vote. State P&As may have helpful materials, and there are other resources listed at the end of this document. Prior to elections, some groups publish election-specific, nonpartisan, plain language voter guides, sometimes put out by the League of Women Voters or disability organizations including P&As.

Signature Match

Some states allow voters with disabilities to use their customary mark, signature stamps or alternative indications of their signature. [10]

Institutionalized or Hospitalized Individuals

People who are hospitalized or living in a nursing facility or other institution should still be able to vote. Depending on the state and local rules and practices, facilities can help residents register, get to the polling place, or apply for and complete an absentee ballot if the resident chooses to vote by absentee ballot. For people who are unable to vote in person at a polling place due to a stay in a hospital or nursing facility because of a medical emergency, it may be possible to get an emergency ballot. Depending on the state and local rules, this may mean that an authorized person can pick up a ballot for the voter, or a ballot may be brought to the voter. In a lawsuit in Ohio, a court ruled that a ballot must be supplied by alternative means to a person hospitalized in an out-of-county facility.[11]

Home visit

If a voter experiences a medical emergency and is confined at home and unable to get to a polling place or vote absentee, it may be possible to have a ballot brought to the voter. A court in Ohio ruled that officials must provide a home visit if a person is unable to appear in person at the board of elections to cure defects in an absentee ballot.[12]

[1] Pew Trusts, March 21, 2018.

[2] National Council on Disability, Beyond Guardianship: Toward Alternatives that Promote Greater Self-Determination, March, 2018, at 130.

[3] 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.

[4] 28 C.F.R § 35.160(b).

[5] 28 C.F.R. § 35.104.

[6] 28 C.F.R § 35.160(b).

[7] 28 C.F.R § 35.160(b)(2).

[8] American Bar Association, Assisting Cognitively Impaired Individuals with Voting: A Quick Guide, 2020.

[9] Fontes v. AZ, CV 2020-011845, Sup. Ct. Maricopa Cty, Oct. 5, 2020. https://healthyelections-case-tracker.stanford.edu/file?id=133

[10] See, for example, OREG. REV.STAT. § 246.025 and California Elections Code §§ 354.5, 3019. See generally, Lila Carpenter, Signature Match Laws Disproportionately Impact Voters Already on the Margins, ACLU (Nov. 2, 2018).

[11] Mooneyhan v. Husted, No. 3:12–cv–379, 2012 WL 5834232 (S.D. Ohio, Decision on Temporary Restraining Order, Nov. 16, 2012).

[12] Ray v. Franklin Cty. Bd. of Elections, No. 2:08-CV-1086, 2008 WL 4966759 (S.D. Ohio Nov. 17, 2008).

How to Get Help

Find your state’s protection and advocacy agency.

If you have questions about these materials, please contact: [email protected]

Useful Websites and Resources

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

The Arc Voting Page

Disability Vote California

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

National Council on Disability, Beyond Guardianship: Toward Alternatives That Promote Greater Self-Determination, 2018

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)

Research

Schur, Lisa, Reducing Obstacles to Voting for People with Disabilities White Paper prepared for Presidential Commission on Election Administration, June 22, 2013

Schur, Lisa, et al., Accessible Democracy: Reducing Voting Obstacles for People with Disabilities, Election Law Journal, Vol. 14 No. 1, 2015

National Council on Disability, Experience of Voters with Disabilities in the 2012 Election Cycle, October 24, 2013: https://ncd.gov/sites/default/files/Documents/8%2028%20HAVA%20Formatted%20KJ%20V5%20508.pdf

American Bar Association, Commission on Law and Aging, Voting & Cognitive Impairments