The Puzzle of Capacity
to Vote
Voting and Long-Term Care in Virginia
Naomi Karp, AARP Public Policy Institute
October, 2008
Constitution of Virginia
Article II, Section 1
“Qualifications
of voters…. As prescribed by law,
no person adjudicated to be mentally
incompetent shall be qualified to vote until his
competency has been reestablished.”
AARP
2
Guardianship Statute:
Definition of
Incapacitated Person
Va. Code Ann. §37.2-1000: “A finding that a person is
incapacitated shall be construed as a finding that the person is
‘mentally incompetent’ as that term is used in Article II, Section
1 of the Constitution of Virginia and Title 24.2 unless the court
order entered pursuant to this chapter specifically provides
otherwise.”
AARP
3
Guardianship Statute:
Court Order of
Appointment
Va. Code Ann. §37.2-1009: “The court’s order appointing a
guardian or conservator shall…specify the legal disabilities, if
any, of the person in connection with the finding of incapacity,
including but not limited to mental competency for purposes of
Article II, Section 1 of the Constitution of Virginia or Title 24.2”
AARP
4
Election Law
Va. Code Ann. §24.2-410: “The clerk of each circuit court shall
furnish monthly to the State Board a complete list of all
persons adjudicated incapacitated pursuant to [guardianship
statute]…and therefore ‘mentally incompetent’ for purposes of
this title unless the court order specifically provides
otherwise….”
AARP
5
What do these
provisions add up to?
If a judge appoints a guardian (or conservator?), the court clerk
will tell the State Board of Elections that the individual is
mentally incompetent and the individual will be disqualified
from voting – unless the judge specifically provides otherwise
in the guardianship order.
AARP
6
What’s really happening in
practice?
VA elder law attorneys say:
> People under guardianship lose the right to vote unless it’s
specifically retained in the order of appointment
> “Judges around here vary individually in approach – one
refuses to take it away at all; others don’t think about it unless
someone brings it up.”
> “Judge F. told petitioning counsel that from that time forth
counsel was to include retention in orders presented to her. I
say ‘Bully!’ for Judge F….”
> “Some of our colleagues and judges feel strongly that the right
should NOT be retained as frequently as is done. Others feel
that we should NEVER withdraw the right.”
AARP
7
But what standard
does the judge use?
> Only a judge can remove the right to vote
> But the VA Constitution and statutes are silent on criteria for
the decision
> State laws on capacity to vote vary tremendously—and are
tremendously ambiguous
> Twenty state statutes refer to specific capacity to vote -- but
few states have guidelines concerning the type of showing
required to preserve the right
AARP
8
Capacity and Voting:
McGeorge Symposium
Recommendations
> State laws, including guardianship and election laws, should
explicitly state that the right to vote is retained except by court
order
> If state law permits exclusion, a court of competent jurisdiction
must afford due process protections and state that the basis
for the exclusion is established by clear and convincing
evidence
> Capacity standard: a person should be determined to lack
capacity only if the person cannot communicate, with or
without accommodations, a specific desire to participate in the
voting process
AARP
9
So, if a judge doesn’t take
away your right to
vote…what assistance can
you get?
> Assistance from person of your choice to help formulate,
express and record vote
> Assistance – not assessment of decisional capacity
> “If the person is, in fact, not connecting with reality then
no voting” – is that ok??
> No assistance if unable to ascertain voting intent
AARP
10
Should VA change its
laws?
> Could remove any capacity-based restrictions on voting
> Right could be retained unless explicitly removed
> Statute could refer to specific capacity to vote, with definition
> Some say this holds certain voters—older voters and
voters with disabilities—to higher standards than other
voters
> Dearth of information about actual practices—in VA and in
other states
AARP
11