Given the current environment where the rights of a segments of society to vote is being limited and challenged, it is especially important to examine the rights of people with disabilities to vote. While often an overlooked and ignored segment of society, people with disabilities need to make their voices heard in the political process. As President Bill Clinton expressed in his nominating speech on September 5, 2012, this election will have a significant effect on the health care and educational rights of all citizens but especially the most vulnerable among us which obviously includes people with disabilities. Make no mistake voting for the Ryan budget and overall plan will have a permanent and regressively harmful effect on my clients, my son, families of children with disabilities and many people who I care about. It is time to register all people with disabilities and to in fact vote. We must be active citizens in the political process.
To not allow the disabled to vote is to render them without a political voice and possibly have their needs ignored by elected officials. Thus this legal case in Minnesota became a particularly emotional one. The Star Tribune quoted a disabled 61-year-old war veteran with a guardian who said that he had “been through sweat and blood to vote. I don’t want my rights taken away, because I fought for my rights here in the United States and expect to keep them that way.” The plaintiffs in the case, including a former secretary of state who herself is the guardian for a disabled adult sister, argued that they were trying to prevent the exploitation of vulnerable citizens. In part they used as an example an incident in 2010, later proved unfounded by investigators, where caregivers were accused of prompting the votes of disabled group home residents whom they had brought to the polls.
Because of differences in terminology in different statutes and state constitutions, it is difficult to compare exactly how many states have laws that preclude or limit the voting rights of the disabled or under what circumstances these rights can either be restored or disqualified. However, approximately 44 states overall have laws that permit in some form the disenfranchisement of adults with disabilities under guardianship. These limits range from outright disqualification from voting, disqualification unless reversed by a court or the legislature, or presumption of the right to vote but permitting courts to limit it. Only a handful of states expressly retain the right of the disabled with guardians to vote or have no statute or provisions regarding the right of the disabled to vote. According to an attorney for the Bazelon Center, in those states in which the right to vote by the disabled with guardians is denied unless approved by a judge, the disabled have to be both “lucky and rich in order to vote—lucky enough to know they can ask a court to restore their rights and rich enough to pay the court costs.”
Historically, laws and state constitutions in the 17th and 18th centuries were drafted to ensure that the “idiot and insane” (such horrible terms that are likely still uttered in back rooms and occasionally heard on boom mics) were excluded from the electorate in an effort to ensure that all voters were capable of making reasoned and informed decisions. These laws, as later recognized by Congress, did not reflect modern understanding of such medical conditions as bipolar disorder, schizophrenia, or cognitive impairments or learning disabilities, which do not always render individuals incapable of making complex decisions.
With the passage of the Americans with Disabilities Act (ADA) in 1990, Congress found that Americans with disabilities have been “relegated to a position of political powerlessness in our society, based on characteristics that are beyond the control of such individuals and resulting from stereotypic assumptions not truly indicative of the individual ability of such individuals to participate in, and contribute to, society.” Thus, Title II of the ADA disallows discrimination based on disability in the rules, policies, or practices of local government. Though the right to vote is not expressly stated within Title II, courts have uniformly deemed the right to vote a covered activity under Title II.
Petitioning a court for guardianship of a loved one can be an emotionally and gut wrenching process, even in the case of parents of severely disabled children who have almost always known that guardianship was an inevitability. At a time when their friends’ children are searching out colleges and preparing for proms, parents of severely disabled children are amassing medical records and appearing in court to justify their child’s need for guardianship. For caretakers of adults who have become disabled through illness, trauma, or some other devastating mishap, taking control of their adult loved ones is equally sobering and painful. It is a sad milestone for each family. But given that the right to vote is such a fundamental basis of citizenship, families seeking guardianship should examine their individual state’s laws regarding the rights of their loved ones to vote and determine what the hopes and expectations of their disabled family members are regarding the right to vote. Once the right to vote is established, of course it is critical to register, make and informed decision and VOTE!