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Guardianship and Voting: Dealing with the Barriers

By Laurie Powers and Mary Oschwald

Voting is the most basic right and responsibility of every American citizen. Casting a ballot is an important way to express self-determination and to make sure that democracy works to improve life for everyone. Unfortunately, the right to vote is restricted for many thousands of people in the U.S. who have legal guardians. About 43 states and the District of Columbia have laws that keep people with cognitive or emotional disabilities with guardians from voting (Schriner, Ochs & Shields, 1997). For example, in Arizona the voter registration form requires that the person declare, “I have NOT been adjudicated INCOMPETENT” (A.R.S. & 14-5101). This comes from the Arizona state constitution that keeps anyone judged as incompetent from voting. In Arizona, a judgment of incompetency is required to have a guardian appointed, so if a person gets a guardian he or she automatically is restricted from voting. In a similar way, the Alabama voter registration card requires that the person sign a statement that says, “I have not been legally declared mentally incompetent by a court.” But to get a guardian, a person has to be declared incompetent. Most of these laws also do not say anything different about full or limited guardianship, so even if a person has a guardian for something very specific, like managing finances, he or she may lose the right to vote.

This situation puts thousands of people with disabilities in a “catch-22”: they get a guardian and automatically lose their right to vote. It does not matter whether the person wants to vote or whether he or she could vote, with or without support. Some states allow exceptions to be written in the guardianship appointment, but it takes a wise lawyer and support from everyone else involved to get voting listed as an exception.

To automatically deny the right to vote to people because they have a guardian denies their right to be respected as citizens, prevents them from expressing their viewpoints, and keeps them from being a part of a important part of community life. It’s bad for the person and it’s bad for the community. Also, because elected officials pay most attention to the people who can vote for them, they may feel little need to focus on issues that concern people with cognitive or emotional disabilities who have guardians and cannot vote for the officials.

Working Together to Remove Barriers

• Remove language in state constitutions and statutes that automatically restricts the right to vote for citizens who are labeled with developmental and cognitive disability. A disability label, by itself, is not a sufficient reason to restrict some-one’s right to vote.
• Change state guardianship statutes to say that voting is not restricted.
• Learn from those states that do not have limiting language in their constitutions, elections and guardianship statutes, regulations, and forms.
• Require that all persons who are going to have a guardian be informed about the impact of guardianship on their right to vote.
• Require that persons who are going to be guardians clearly understand how guardianship affects the individual’s right to vote.
• Educate citizens, elections officials, legislators, teachers and others about how guardianship appointments can automatically limit the right to vote.
• Build coalitions that increase guardianship awareness and bring about change in guardianship laws and statutes. Ensure that the leadership for coalition activities comes from self-advocacy and disability leaders.
• Promote new policies that provide for alternatives to guardianship, such as power of attorney and supported decision-making.
• Ensure that all young people with disabilities in high school receive information about voting and have opportunities to register to vote.

This position statement is being sent to elections officials, Help America Vote Act (HAVA) projects, and disability organizations across the nation. It is intended to draw attention to the problem and to encourage change in the laws and regulations. If you would like to support the position statement, call 800/410-7069, ext. 116 or e-mail satyas@ohsu.edu. Say, “GO VOTE” and leave your name and contact information. All the names that are collected will be given to state and national elected representatives, letting them know who supports this statement.

We can make a difference at the state level to change guardianship language and to help educate and empower self-advocates. We can also work to change the language used in state codes, statutes or constitutions so that people with guardians are not discriminated against and have the same basic right to vote as the rest of the general public.

One success story comes from self-advocates, family members and legislators in the state of Idaho. They influenced their state to change voting language so people with guardians could fully participate in the voting process. In 1999, they convinced the Idaho state legislature to put a resolution on the general election ballot asking to remove restrictive language regarding voting rights for people with disabilities. When the question of voting rights for people with guardians went before Idaho voters on the general election ballot, over 50% of Idaho voters agreed that people with guardians should have the right to vote. The language in the Idaho constitution was changed to reflect their decision.

Conclusion

References

Schriner, K., Ochs, L.S., & Shields, T.G. (1997). The last suffrage movement: Voting rights for persons with cognitive and emotional disabilities. Publius 27(3), 75-96.

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Retrieved from the Web site of the Institute on Community Integration, University of Minnesota (http://ici.umn.edu). Citation: Gaylord, V., Powers, L., Hayden, M., Smith, J., & Finn, C. (Eds.) (2004). Impact: Feature Issue on Political Activism and Voter Participation by Persons with Intellectual and/or Developmental Disabilities 17(2). Minneapolis: University of Minnesota, Institute on Community Integration. Available at http://ici.umn.edu/products/impact/172/default.html.
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The PDF version of this Impact, with photos and graphics, is also online at http://ici.umn.edu/products/impact/172/default.html.

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