RESEARCH General Law

VOTING RIGHTS
Statutes barring elderly from voting often enforced arbitrarily

Mark Reutter, Business and Law Editor
(217) 333-0568; mreutter@uiuc.edu

6/1/03

CHAMPAIGN, Ill. — What is the rationale behind state laws that prohibit the elderly from voting if they are deemed mentally disabled or placed under guardianship?

Is it to protect the voting system from potential fraud? To prevent the elderly from injuring themselves by making "wrong" decisions? Or is it simply to punish people for mental frailties that are still equated with criminal acts in some states?

While women were given suffrage 83 years ago and the poll tax was removed from Southern states in the 1960s, the right to enter a polling booth is still denied to U.S. citizens on the grounds of mental incompetence, notes Kingshuk K. Roy in an upcoming article in the Elder Law Journal published by the University of Illinois College of Law.

Forty-four states have statutes or constitutional provisions that deny citizens the power to vote on grounds of mental impairment. These provisions disproportionately screen out the elderly and often involve arbitrary enforcement that appears to violate the due process guarantees of the 14th Amendment, argues Roy, the journal’s editor-in-chief.

In California, for example, individuals are disqualified from voting if they cannot complete an affidavit of voter registration. In Maryland, citizens under guardian care are lumped in the same category as those convicted of an "infamous or other serious crime." The New Jersey constitution flatly states that "no idiot or insane person shall enjoy the right of suffrage."

But does the inability to take care of one’s finances or personal hygiene – common grounds for placing the elderly under guardianship – necessarily mean that a person should be denied the right to vote, Roy asks. Unlike such functional issues as money and medical treatment, there is no potential for an individual to harm himself with a "wrong" vote. And even if a mentally disabled person is considered "irrational" or "uninformed," the same criteria is not a bar against other citizens exercising their right to punch a ballot.

According to Roy, the original impetus behind these laws was society’s abhorrence of mental illness, which was equated with a lack of "moral grounding" to participate in society. Such attitudes, which used to lead to the warehousing of the "insane" in institutions, has drastically changed; state voting laws should follow suit.

Roy recommends that the courts should develop a framework for determining the competency of elderly citizens disqualified from voting solely because they are under guardianship. At minimum, the elderly should be informed that a judicial determination of guardianship may result in the termination of their voting rights. Requiring guardians to assist the elderly in the voting process could encourage senior citizens to retain their sense of civic duty. "We should do everything to help, not hinder, elderly voters in exercising their fundamental rights," Roy concludes.