Disability and the Decisional Capacity to Vote

Bioethics-in-the-News-logoThis post is a part of our Bioethics in the News series

By Devan Stahl, PhD

When Voting Rights Are Barred
With upcoming elections only weeks away, many Americans with disabilities will be barred from voting as a result of state competency and guardianship laws.

Eager to cast his vote in the November elections, David Rector has once again had his voting rights denied by a judge in the Superior Court in San Diego, California. In 2011, Rector suffered brain trauma that left him unable to speak or walk. At that time Rector’s fiancée was appointed to be his conservator and a judge ruled his brain injury disqualified him from voting. According to Rector’s fiancée, Rector avidly follows the news and is informed on political issues. Rector cannot speak, but he uses an eye tracking communication device and can read and comprehend.

Rector’s case is another in a long line of cases where persons who can and want to vote have been disenfranchised as a result of a disability. After protests, a complaint filed by the Disability and Abuse Project, and a DOJ investigation, Governor Jerry Brown signed Senate Bill 589, which changed the standard for voting from the person’s ability to fill out a voter registration document to the person’s ability to express a desire to participate in the voting process. The new law went into effect January 1, 2016, and many presumed Rector would have his voting rights restored. On August 29, 2016, Rector met with a judge and used his electronic eye tracking device to declare “I, David Rector, want my voting rights restored immediately.” The judge, however, was not convinced, saying she needed more evidence that Rector wishes to vote. Even with the upcoming presidential election, there is still no plan by elected officials to reinstate voting rights to the approximately 32,000 conservatees who are currently restricted from voting a result of the original law.

The Current Landscape of State Laws

Image description: Text on a blue background reads “feel the power of the disability vote.” The words “feel the vote” are in white, and the words “the power of disability” are in red. Image source: Flickr Creative Commons.

Rector’s case is hardly an anomaly. Only 11 states do not have some type of law which disqualify persons from voting because they have a mental disability, although most require a court to determine a person does not have the capacity to vote. In many states, however, individuals with guardians or conservators are routinely barred from voting. A study done by a lawyer working for the Disability and Abuse Project found nearly 90% of persons in L.A. County with conservators had been disqualified from voting. In some states, persons with mental disabilities are asked a series of questions to prove they understand the political landscape, such as knowing who the current governor or mayor is or even why they want to vote or how they will vote on particular issues.

Persons with disabilities, like other minority groups, have historically had their right to vote infringed. The Voting Rights Act allows persons who cannot read or write or have any disability to receive assistance from any person of their choice in order to vote and prohibits tests from being used to deny people the right to vote. Provisions of the Americans with Disabilities Act also ensures people with disabilities have the right to vote and reasonable provisions must be in place to allow them to do so. Requiring persons to have the capability of filling out a voter registration form or answer certain political questions amounts to a reinstitution of the literacy test. In many states, persons with disabilities are being disenfranchised.

Supporters of laws that limit persons with guardians or conservators from voting argue such laws limit voter fraud, because persons with disabilities are vulnerable to exploitation by their caregivers who may pressure them to vote a certain way. There is little data to suggest this is happening and the assertion is generally demeaning when applied to all persons with mental disabilities or guardians. Unfortunately, there are still pervasive stereotypes that persons with mental disabilities cannot express preferences or are universally incompetent.

The appointment of a conservator or guardian, and even the declaration of incompetency is not a measure of whether a person has the decision making capacity to vote. Conservatorships and guardianships help ensure persons have their basic needs, including health and safety, met. Persons with a wide range of conditions, including autism spectrum disorder, traumatic brain injury, and cerebral palsy are awarded guardians. Many persons have limited guardianship, which means they have someone, like a family member, help manage financial decisions, but are perfectly capable of voting and expressing political opinions.

Health Care Ethics and Capacity
In health care, it is common to speak of decision making capacity as the capacity to decide on a particular question or treatment. Capacity is never a universal declaration, rather it is an assessment given by a physician as to whether a person as the capacity to decide something in particular. Mental disability or cognitive impairment never automatically disqualify a person from making important medical decisions. Simply because a person does not have the capacity to make one kind of complicated decision does not mean he or she is barred from making other kinds of decisions.

Unfortunately, courts and laws are rarely so nuanced. Physicians, then, have an important obligation to speak up on such issues. Most physicians, particularly ones who work regularly with patients with intellectual and developmental disabilities, know their patients exhibit a wide range of competencies. The bar for the capacity to vote, as outlined in the Voting Rights Act, should be low. No tests ought to be given and no person should be required to answer a series of questions aimed at proving their political knowledge. Only those who are so incapacitated they are unable to express any sort of opinion should be prevented from voting. Persons like David Rector, Roberta Blomster, and Stephen Lopate who express a desire to vote, should never be denied. Just as with health care decisions, the burden should be on physicians or the courts to prove a person does not have the decision making capacity to vote, not on the person with the disability to prove they do. Those who want to vote should be able to vote, and our medical community should both support and fight for their right to do so.

Devan Stahl photoDevan Stahl, PhD, is an Assistant Professor in the Center for Ethics and Humanities in the Life Sciences and the Department of Pediatrics and Human Development in the Michigan State University College of Human Medicine.

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