In a democracy, the right to vote is a cherished right. Much of U.S. history is a story of the expansion of voting rights for the nation’s citizens. This right to vote is protected by numerous federal and state laws. However, one group of American citizens who are sometimes forgotten are individuals with disabilities. These citizens make up a sizable portion of the United States. In the state of Ohio alone, 14% of the state’s non-institutionalized population reported a disability. This is roughly in-line with the national average which includes around 13% of the U.S. population.

In the current news cycle, this group of individuals is sometimes forgotten in regards to voting rights. This is particularly true for individuals who are under legal guardianship or conservatorship. The Americans with Disabilities Act (ADA) as well as other federal laws expressly protect the right to vote for people with disabilities. The ADA provides protections to people with disabilities that are similar to legal protections provided to individuals on the basis of race, color, sex, national origin, age and/or religion. For example, patients in a psychiatric hospital should not lose their right to vote just because they are hospitalized.

In a democracy, there is an assumption that once individuals reach the “age of majority” and becomes an adult, they are capable of making decisions. These specific legal actions are a foundational principle in American democracy. Once a person turns 18, he or she can vote, sign contracts, make a will, choose where to live, go to school and work.

However, the fact is that tens of thousands of Americans with disabilities have lost their voting rights. This usually happens when a court assigns a legal guardian to handle their affairs. Sometimes in these cases, the individual, and even the court-appointed guardian, are not aware that voting rights have been taken away because the guardianship process is complicated. The reality is that people with disabilities can lose their right to vote when they are in a legal guardianship situation.

The lack of data on who is under guardianship or what happens to adults under guardianship is a constant source of frustration for anyone attempting to understand guardianship, much less those urging policymakers that there is an immediate need for resources to address problems arising from it.

An estimated 1.5 million adults are under legal guardianship nationwide, according to the AARP, but there is no data indicating how many have lost their right to vote. There is little movement in state legislatures to eliminate restrictions on voting for people with mental disabilities

According to the National Guardianship Association, court-appointed guardianship, also referred to as conservatorship, is a legal process that is used when people are deemed unable to make or communicate safe or sound decisions about their person and/or property. Guardianship can also occur when these individuals are seen as becoming susceptible to fraud or other undue influences. The National Guardianship Association points out that because establishing a guardianship may remove an individual’s civil and legal rights, this legal process should only be considered after alternatives to have proven ineffective or are unavailable.

According to disability rights specialists at the National Disability Rights Network, the laws that are used to appoint legal guardianship or conservatorship are not consistent across the United States. Currently, out of the 39 U.S. states and the District of Columbia where legal guardianship is allowed, courts and judges use different standards to determine whether a person under guardianship can retain their voting rights. These laws allow judges to strip voting rights from people with mental disorders ranging from schizophrenia to Down syndrome who are deemed “incapacitated” or “incompetent.”

There is even Archaic, if not outright offensive language, in some U.S. state constitutions that identifies “idiots and insane” as people who may have their voting rights taken away. Other states have enacted regulations that disqualify U.S. citizens who have been adjudicated incompetent, incapacitated or of unsound mind. Not only is there no agreement among legal and psychological experts over whether certain people with disabilities should be disenfranchised, but there is also no set standard for measuring the mental capacity needed to vote.

This creates a level of confusion. On one hand, there is a need to protect the integrity of the electoral process. However, there is a legal and ethical duty to protect the civil (voting) rights of people with disabilities living in a guardianship situation.

Over the last few decades, legal changes have occurred that have attempted to protect the rights of individuals with disabilities. Some states have attempted to expand the protections for individuals with disabilities and the rights of people under guardianship.

The staff at eWebSchedule will continue to monitor this important topic. Check back regularly for updates.

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Voting Rights, Americans with Disabilities Act (ADA), Guardianship