Overview

Impact Feature Issue on Political Activism and Voter Participation by Persons with Intellectual and/or Developmental Disabilities

Guardianship and Voting: Dealing with the Barriers

Author(s)

Laurie Powers is Co-Director and Mary Oschwald is Researcher with the Center on Self-Determination, Oregon Institute on Disability and Development, Oregon Health and Science University, Portland.

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

Eight national organizations have joined together to issue a position statement calling for removal of barriers to voting for people with disabilities. The organizations are Project VOTE!, the National Center for Self-Determination and 21st Century Leadership, Self-Advocates Becoming Empowered, The Arc of the United States, The ArcLink Incorporated, the Joseph P. Kennedy Jr. Foundation, the American Association of People with Disabilities, and the National Association of Protection and Advocacy Systems. The statement calls for the following actions:

  • 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.

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

There is a pressing need to clarify state-by-state voting barriers that individuals with developmental disabilities face, particularly related to full and limited guardianship, and to identify and share strategies that promote voting access. Such strategies include reform of voting and guardianship regulations; education and empowerment of individuals with disabilities; and education for polling workers, voting officials, guardians, family members, and community leaders. Working collaboratively across community, family, and voting rights groups we will ensure that all of our voices are heard and issues related to voting restrictions for people with guardians can be addressed. Removing restrictive guardianship language from the voting process is necessary so that all citizens have equal access to fully participate in the United States’ democratic process and are included in making decisions that affect all of our lives.

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.