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Published by the Research and Training Center on Community Living, Institute on Community Integration (UCEDD) • College of Education and Human Development, University of Minnesota
Volume 11 • Number 1 • May 2000

“No Right is More Precious”: Voting Rights and People with Intellectual and Developmental Disabilities

This Policy Research Brief reviews U.S. laws that impact, and present barriers to, the exercise of voting rights by persons with intellectual and developmental disabilities. It is authored by Kay Schriner, Ph.D., and Lisa Ochs, Ph.D., J.D. Dr. Schriner is Research Professor, Department of Political Science, and Research Fellow, Fulbright Institute of International Relations, at the University of Arkansas, Fayetteville; she is also principal investigator of The Empowerment Project, a research project on registration and voting laws affecting people with disabilities, funded by the National Institute on Disability and Rehabilitation Research, U.S. Department of Education (H133G990188). Dr. Ochs is Assistant Professor in the Department of Counseling and Psychology, Arkansas State University, Jonesboro. For further information contact Dr. Schriner at (501) 575-6417 or by e-mail at kays@comp.uark.edu. The opinions expressed are those of the authors and do not necessarily reflect the position of the U.S. Department of Education.

Introduction

The self-determination philosophy calls for the active participation of people with intellectual and developmental disabilities in the civic life of their communities and country. They are being encouraged to help their preferred candidates run for office, communicate their opinions to elected officials, take part in disability advocacy organizations – and vote. At times, however, election laws present obstacles to voting. In many parts of this nation, state law permits some individuals with intellectual and developmental disabilities to lose their right to vote because they have been adjudicated “mentally incompetent” or are under guardianship. These laws not only prevent them from voting, but present a powerful symbolic barrier to full citizenship for people with disabilities.

In this review, we will first briefly describe the state laws that disenfranchise individuals with intellectual and developmental disabilities. This information should be of use to those who are interested in promoting opportunities for the involvement of this population in democratic governance. Second, we will put these laws into historical context to underscore their similarities to voting prohibitions based on gender, race, and other historically devalued statuses. Finally, we will discuss the legal and political implications of the laws.

Relevant State Voting Rights Laws

The voting rights laws affecting people with intellectual and developmental disabilities are found in state constitutions and in state statutes governing electoral qualifications, mental retardation and developmental disabilities rights and services, mental health law, and guardianship/conservatorship. Forty-four states have disenfranchisement provisions in either their constitutions or their statutes. Only Colorado, Indiana, Kansas, Michigan, New Hampshire, and Pennsylvania do not have disenfranchising provisions in either their constitutions or statutes.

Many states allow or require persons under guardianship/conservatorship to be prohibited from voting, either in their constitutions or statutes (for more detailed information, see table in Appendix A). Also, many states, typically in their constitutions, use such terms as “idiots,” “lunatic,” “insane,” “non compos mentis,” of “unsound mind,” or some other outdated language in reference to persons with intellectual and developmental disabilities; sometimes there is more than one of these terms used in the same state (see Table 1). The existence of these laws raises many questions. Among them are when and why were they adopted, and what are their implications for the self-determination of people with intellectual and developmental disabilities?¹

Table 1: States Using Outdated Language in Constitutions or Statues

• Alaska: “unsound mind”
• Arizona: “non compos mentis, insane, adjudicated an incapacitated person”
• Arkansas: “idiot or insane person”
• Delaware: “idiot or insane person”
• Hawaii: “non compos mentis”
• Iowa: “idiot or insane person”
• Kentucky: “idiots and insane persons”
• Minnesota: “insane”
• Mississippi: “idiots and insane persons”
• Montana: “unsound mind”
• Nebraska: “non compos mentis”
• Nevada: “idiot or insane person”
• New Jersey: “idiot or insane person”
• New Mexico: “idiots” and “insane persons”
• Ohio: “idiot or insane person”
• Rhode Island: “non compos mentis”
• Vermont: “not of a quiet and peaceable behavior”

¹In this article, we will focus on state constitutions. Because of space constraints, we will not describe in more detail the statutory provisions that limit voting rights in some states. It is important to note, however, that while 36 states disenfranchise some individuals with disabilities in their constitutions, other states do so in their statutes (see table in Appendix A).

Voting Rights: A (Very) Brief History

American history is rife with debates and conflicts over voting rights. When the colonies were established, it was common to specify the qualifications for electors in terms of property ownership. This practice obviated the need for more specificity. As Porter notes, “[s]uch undesirable persons as paupers, idiots, the insane, etc., were practically excluded by the property test, and the need for specifically disqualifying them did not appear until the property test was gone” (Porter, 1918, pp. 20-21). Women, African Americans, and other persons considered inferior were not typically addressed in electoral qualification law, since social convention was so strong that these individuals rarely appeared at the polls even if they owned the required amount of property (McKinley, 1905, pp. 35-37). Over time, the colonies (and later, states) began to use a tax-paying qualification either in addition to, or as a substitute for, the property-owning qualification. Adult males who had paid taxes voted freely, and generally others did not even try (Rogers, 1992, p. 3).

During the nineteenth century, states implemented a number of categorical exclusions, which included women, African Americans, immigrants, paupers, criminals, and people with some kinds of impairments. However, there were also contrary forces that emphasized the importance of voting rights for some of these groups. Those for and against voting rights, particularly for African Americans and women, fought contentious battles throughout the second half of the nineteenth and much of the twentieth centuries. Eventual triumphs of the woman suffrage, abolitionist, and civil rights movements resulted in the significant victories of the Nineteenth Amendment, the Civil War amendments, and the more contemporary Voting Rights Act. These laws established the right of these groups to participate as equal partners in American representative government.

As political rights were being won in the legislature, the courts also began to have a more expansive view of voting. In a long line of opinions, the U.S. Supreme Court has developed its contemporary view that the right to vote is not to be abridged by the states except in rare circumstances. In Wesberry v. Sanders, for example, the court declared that:

No right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live. Other rights, even the most basic, are illusory if the right to vote is undermined. (Wesberry v. Sanders, 376 U.S. 1, 17-18 [1964])

Disability-Based Disenfranchisement

Theoretically, the political and legal transformation of voting from a privilege to a fundamental right is now complete. However, there is a long history of state-sponsored discrimination in voting rights laws affecting individuals with disabilities, beginning in the nineteenth century. A review of state constitutions illustrates this history. Before 1820, only two state constitutions (Maine, “under guardianship”; and Vermont, not “quiet and peaceable”) contained language disenfranchising individuals on the basis of disability, but more states adopted such measures in subsequent decades. Massachusetts adopted its constitutional prohibition (“under guardianship”) in 1821, Virginia disqualified “persons of unsound mind” in 1830, and Delaware began to prohibit voting by “idiots” and “insane persons” in 1831.

Between 1840 and 1860, many states adopted such provisions, either when joining the Union or by constitutional amendment. By 1860, California, Delaware, Iowa, Louisiana, Maryland, Minnesota, New Jersey, Ohio, Oregon, Rhode Island, Virginia, and Wisconsin had joined in excluding citizens from voting because of disability.

By 1880, 11 more states (Alabama, Arkansas, Florida, Georgia, Kansas, Mississippi, Nebraska, Nevada, South Carolina, Texas, and West Virginia) adopted constitutional provisions prohibiting voting by some individuals with disabilities. Most of these were Southern states which wrote disenfranchising language into their new constitutions following the Civil War.

After 1880, Alaska (1959), Arizona (1912), Hawaii (1959), Idaho (1890), Montana (1889), New Mexico (1912), North Dakota (1889), Oklahoma (1907), South Dakota (1889), Utah (1896), Washington (1889), and Wyoming (1890) entered the Union with constitutions disenfranchising people on the basis of disability. Kentucky amended its constitution to include a prohibition against voting by “idiots and insane persons” in 1891, and Missouri did so in 1945.

As is apparent in Table 2, the percentage of states with such provisions dramatically increased during the middle of the nineteenth century. This increase was a function of (a) states entering the Union with disenfranchising language and (b) states amending their constitutions to adopt exclusions.

Table 2: Numbers and Percentages of States in the Union with Constitutional Disenfranchising Provisions

Year	# of states in Union	# and % with constitutional disenfranchising provisions
1820	23	2 (.9%)
1840	26	5 (19%)
1860	33	15 (45%)
1880	38	26 (68%)
1900	45	34 (76%)
1920	48	37 (77%)
1940	48	39 (81%)
1960	50	39 (78%)
1980	50	36 (72%)
2000	50	35 (70%)

Only a very few states have dropped exclusionary constitutional language once adopted. Kansas once prohibited voting by “persons under guardianship, non compos mentis, or insane” (1859), but in 1974 amended its constitution to provide only that the legislature may exclude persons from voting because of mental illness. Louisiana constitutionally required the disenfranchisement of persons under interdiction (guardianship) and “idiots and insane persons” (or “persons notoriously insane or idiotic”) from voting from 1845 until 1974 when the constitution was amended to permit the disqualification. Similarly, Oklahoma prohibited “any idiot or lunatic” from voting in its 1907 constitution, but amended the constitution in 1978 to provide only that the legislature may prescribe who may vote. Most recently, in 1998 Idaho repealed its prohibition on voting by people “under guardianship, idiotic or insane.”

Justifications for a Disability Exclusion

Why did the states adopt laws restricting access to the polling place for people with disabilities? Based on our research thus far, it appears that states developed these laws for two major reasons. First, the citizenry and political elite in various states believed they needed to ensure that the electorate was morally and intellectually competent to participate in representative government. Debate raged about the abilities of women, African Americans, Native Americans, and other groups to vote intelligently and independently. Opponents claimed that some individuals were by nature incapable of taking part in democratic self-governance while proponents argued that there were no innate differences, only differences in experience and preparation. While this debate focused much more on African Americans and women, it seems quite probable that the states’ adoption of disability-based exclusions reflected opinions that people labeled “idiots” and “insane” (or those under guardianship or labeled “incapacitated” or “incompetent”) could not be trusted to vote.

Second, “idiocy” and “insanity” began to be recognized as a social and political problem during the nineteenth century. States funded the establishment of “idiot schools” and “insane asylums,” created commissions to provide advice to the legislatures regarding disability policy, and established agencies with oversight responsibility for disability policy (Grob, 1973; Grob, 1983; Noll, 1995; Trent, 1994). These policy responses were shaped by the nascent professions devoted to providing care and treatment for – and control of – persons labeled “idiots” or “insane.” Between the mid-nineteenth century and the early twentieth century, “idiocy” and “insanity” were viewed with a combination of pity, concern, and, increasingly, fear as they were paired with social disorder, deviancy, and criminality. It is unlikely that these portrayals of people with intellectual and developmental disabilities did not affect the perceptions of the public and policymakers as laws were created governing the right to vote.

These laws were justified presumably because “idiots” and “insane persons” (and those under guardianship or labeled “incompetent”) were believed to be incapable of participating. They were viewed as incapable of engaging in the reasoned, complex thinking necessary for making political judgements. They could not acquire and weigh information about the qualifications of candidates for elected office and the relative merits of their positions on matters of public policy. Democracy was too complicated for “simple” and “demented” minds. Also, it is probable that these individuals were thought to be morally deficient as well as intellectually inferior. Such individuals were viewed as neither intellectually nor morally fit to participate as equals in democratic self-governance.

Further, many people probably thought it unnecessary for these individuals to participate. Others could, and should, represent them. Others could be their legitimate proxies in the political process. Other citizens could be their political guardians. By resting the authority for their political representation in others, lawmakers could protect the common good and at the same time provide for care and treatment of the most “unfortunate” members of society. Some people with disabilities – just as with women, African Americans, immigrants, and other groups – were targeted because of unfounded presumptions about their capacities and the threats they posed to the social and political order.

Federal Voting Rights Laws

In this century, federal law has established important protections against disability-based discrimination. Three federal laws address voting rights for people with disabilities. The Voting Rights Act of 1965 (as amended in 1982) requires that individuals who are blind or have other disabilities “may be given assistance by a person of the voter’s choice, other than the voter’s employer or agent of that employer or agent of the voter’s union.” The Voting Accessibility for the Elderly and Handicapped Act of 1984 guarantees the right to vote in federal elections, but defines persons with disabilities narrowly, as persons with a “temporary or permanent physical disability.” Such individuals must be provided with auxiliary aids (defined as “instructions, printed in large type…” and “information by telecommunications devices for the deaf”).

The Americans with Disabilities Act (ADA) also addresses voting. Title II of the ADA requires that all public entities make “reasonable modifications to rules, policies, and practices” to avoid disability-based discrimination in programs, services, and activities of state and local governments. These protections apply to otherwise qualified persons with disabilities, who are defined as persons who “with or without reasonable modifications to rules, policies, or practices, the removal of architectural, communication, or transportation barriers, or the provision of auxiliary aids and services, [meet] the essential eligibility requirements” of the program, services, or activity (Americans with Disabilities Act of 1990).

In practice, the federal voting rights laws have affected primarily persons who are blind or who have mobility impairments. The application of the ADA’s anti-discrimination protections in the voting rights context has been disappointing because of interpretations that the ADA does not require state officials to ensure secret ballots for blind individuals or ensure that all polling places are accessible (Schriner, Batavia, & Shields, in press). Most importantly for this discussion, we have not found any challenge to the state laws discussed here based in the ADA.

Taken together, the federal voting rights laws represent an important policy stance regarding the necessity of ensur-ing that people with disabilities take part in the electoral process. However, when viewed alongside the state laws that disenfranchise many individuals with intellectual and developmental disabilities, we see the ambivalence with which our society views their political participation:

With respect to voting rights…federal policymakers have taken a narrow approach that does not draw out all of the implications of the minority group model. Federal law acknowledges the physical and communication barriers that affect electoral participation, but fails to appreciate the implications of state policies which exclude people based on perceived incompetence of individuals with cognitive and emotional impairments. In addressing the issue of physical accessibility, Congress has required states to take some steps toward ensuring that voters with disabilities will not experience accessibility barriers…and while these laws are flawed in several serious ways, they nonetheless indicate Congress’ willingness to view voting as…a fundamental right of people with physical disabilities. There has been no such willingness with respect to the voting rights with emotional and cognitive impairment. In fact, the [National Voter Registration Act, which requires agencies primarily engaged in serving people with disabilities, and which receive state funds, to provide voter registration services to their consumers] specifically allows states to continue disenfranchising individuals “by reason of criminal conviction or mental incapacity.” Though federal laws emphasizing the voting rights of people with disabilities appear on their face to be progressive implements for ensuring equality, they also outline the contradictions in the disability construct by omitting some people with disabilities from their protections. (Schriner, Ochs, & Shields, 2000).

Implications of State Laws

The conflict between federal and state voting rights laws affecting people with disabilities, and the onerous nature of the state exclusions, present significant legal and political issues. From a legal standpoint, the state exclusions raise serious constitutional questions. While the states generally have the prerogative of establishing qualifications of the electorate, voting is a fundamental right. Thus, any severe abrogation of the right to vote would be subject to a strict scrutiny test, in which the state would have to show how the infringement on the right to vote is necessary to achieve a compelling state interest. The state would have to demonstrate that the exclusion is not under- or over-inclusive (that is, that it reaches everyone who should be excluded, and does not exclude anyone who should not be). We would argue that states cannot demonstrate that these exclusions (a) are necessary to meet a compelling state interest, and (b) are sufficiently narrowly-tailored to the state interest at stake (for a complete analysis, see Schriner, Ochs, & Shields, 1997). There are other measures available to the states (such as anti-fraud and anti-bribery laws, and an objective test of competence applied to everyone at the time they register) to ensure that the electoral process is not abused by those who would take advantage of the inability of some persons (such as those with severe intellectual impairments) to participate.

Politically, the states’ exclusions of some citizens based on their having been labeled as having a disability is troubling. These laws are apparently based on misunderstandings, myths, and prejudices about the people being targeted. As we have argued elsewhere:

This prejudice was as pronounced in the case of people with mental impairments as it was for women, blacks, immigrants, and certain religious groups. Thus, in the nineteenth century, states adopted disability-based provisions that were consistent with other individual characteristics identifying those who would be disenfranchised. The emergence of this category in electoral law began to crystallize the political implications of disability-related prejudice. People with intellectual and emotional impairments – idiots and insane people – would be separated in the electorate just as they were increasingly separated in society. (Schriner, Ochs, & Shields, in press)

Given our nation’s history of contentious politics over the voting rights of other groups, it is ironic that so little critical attention has been paid to these disability-based exclusions. Voting is the ultimate act of American citizenship. Voting makes one a member of the political community. The act of voting gives voice to the needs and concerns of the voter, but also expresses the voter’s perspectives about what constitutes the common good. Politically, electoral participation is necessary to ensure that those elected know whom they are representing.

The disability rights movement has made significant policy gains in recent decades, but in the future, disability policy is likely to be more contentious and divisive. To defend its gains and continue to achieve policy objectives, citizens with disabilities must begin to participate in the electoral process at a greater rate. Now, the voting rate of persons with disabilities is 14-21 percentage points lower than that of nondisabled citizens (Kruse, Schriner, Schur, & Shields, 1999; Shields, Schriner, & Schriner, 1998). If the disability community is to make further progress in improving the lives of people with disabilities, people with disabilities themselves must have a greater voice at the ballot box.

The self-determination movement represents a key strategy in bringing the concerns of people with intellectual and developmental disabilities to the attention of candidates and elected officials. In many states, the ability of these individuals to vote is thwarted by antiquated ideas and unnecessary laws that subject them to more stringent voting-related competency tests and standards than are applied to others. To many, democracy is inaccessible. Policymakers in states with such laws should be encouraged to make the changes necessary to ensure the equal voting rights of people with disabilities.

References

• Americans with Disabilities Act of 1990. 42 U.S.C.A. sec. 12101 et seq. (West 1993).
• Grob, G.N. (1973). Mental institutions in America: Social policy to 1875. New York: Free Press.
• Grob, G.N. (1983). Mental illness and American society, 1875-1940. Princeton: Princeton University Press.
• Kruse, D.L., Schriner, K., Schure, L., & Shields, T.G. (1999). Empowerment through civic participation: A study of the political participation of people with disabilities (Final report to the Disability Research Consortium, Bureau of Economic Research, Rutgers University and the New Jersey Developmental Disabilities Council). New Brunswick, NJ: Rutgers University.
• McKinley, A.E. (1905). The suffrage franchise in the thirteen English colonies in America. Boston: Ginn & Co.
• Noll, S. (1995). Feeble-minded in our midst. Chapel Hill: University of North Carolina Press.
• Porter, K.H. (1918). A history of suffrage in the United States. Chicago: University of Chicago Press.
• Rogers, D.W. (1992). Voting and the spirit of American democracy. Urbana: University of Illinois Press.
• Schriner, K., Ochs, L., & Shields, T.G. (1997). The last suffrage movement: Voting rights for persons with cog-nitive and emotional disabilities. Publius, 27(3), 75-96.
• Schriner, K., Ochs, L., & Shields, T. (2000). Democratic dilemmas: Notes on the ADA and voting rights of people with cognitive and emotional impairments. Berkeley Journal of Employment and Labor Law, 21(1).
• Schriner, K., Batavia, A.I., & Shields, T.G. (in press). The Americans with Disabilities Act: Does it secure the fundamental right to vote? Policy Studies Journal.
• Shields, T.G., Schriner, K.F., & Schriner, K. (1998). The disability voice in American politics: Political participation of people with disabilities in the 1994 election. Journal of Disability Policy Studies, 9(2), 33-51.
• Trent, J.W., Jr. (1994). Inventing the feeble mind: A history of mental retardation in the United States.Berkeley: University of California Press.
• Voting Accessibility for the Elderly and Handicapped Act of 1984. 42 U.S.C. sec. 1973
• Voting Rights Act of 1965 (as amended). 42 U.S.C. sec. 1973
  

Appendix A: Table

Summary of Current Constitutional and Statutory Disenfranchising Language

This issue was supported, in part, by Grant #H133B980047 from the National Institute on Disability and Rehabilitation Research (NIDRR), U.S. Department of Education.

Managing Editors are Vicki Gaylord and Mary Hayden. The opinions expressed are those of the authors and do not necessarily reflect the position of the Center or its funding sources.

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Published on the Web site of the Institute on Community Integration, University of Minnesota (http://ici.umn.edu)

Citation: Schriner, K. and Ochs, L. (2000). “No Right is More Precious”: Voting Rights and People with Intellectual and Developmental Disabilities. Policy Research Brief (University of Minnesota: Minneapolis, Institute on Community Integration), 11(1).