Maine Referendum Spotlights Voting Rights for People Under Guardianship
Voters in November will choose whether to scrub a clause in Maine’s constitution disenfranchising people “under guardianship for reasons of mental illness."
S.E. Smith | September 26, 2023
Since its drafting in 1819, Maine’s constitution has barred people who are “under guardianship for reasons of mental illness” from voting in state and local elections. The state legislature tried to end that exclusion decades ago, putting constitutional amendments on the ballot in 1997 and 2000, but voters rejected the changes both times. A non-profit organization tasked by the state with protecting disabled residents eventually sued, arguing that the prohibition disenfranchised residents in violation of the U.S. Constitution. This led to a favorable federal court ruling in 2001 that declared Maine’s exclusion unconstitutional.
This fall, Maine voters will again decide whether to scrub that exclusion from their state’s constitution, echoing the court ruling. Question 8, one of several constitutional amendments on the state’s Nov. 7 ballot, asks voters if they want to “remove a provision prohibiting a person under guardianship for reasons of mental illness from voting.”
Maine is already closer to universal suffrage than most states. It’s one of two states, plus Washington D.C., that is approaching universal suffrage. Maine allows people to vote from prison and state law affirms the voting rights of people with intellectual disabilities, autism, and brain injuries. That makes this clause stand out—it treats mentally ill people under guardianship as second-class citizens, which is precisely why the court ruled it unconstitutional.
“We are creating a subset of mentally ill people under guardians who can’t vote,” Democratic State Senator Craig Hickman, who spearheaded the effort to put the matter to the vote, told Bolts. Hickman, a voting rights advocate, has also been involved in other measures to remove outdated language from Maine’s constitution. “I think it’s important to ratify this amendment. [We need to] make it clear that in this state we have no reason to disenfranchise.”
“Voting is…a fundamental right,” says Lewis Bossing, an attorney at the Bazelon Center for Mental Health Law, an organization that advocates for adults and children with mental disabilities. “We would like to see a world in which there is no competency standard for voting, because we don’t subject people generally to proving somehow that they can make a choice.”
While it may seem symbolic, the amendment in Maine highlights the patchwork and shifting landscape of voting rights for people under guardianship across the country. And it may have a material impact. The constitutional amendment, if passed, could encourage other states to examine and strike or reform their language—and Bossing notes that the American Bar Association has a recommended standard, starting with due process, for determining when someone under guardianship may lose their voting rights. Some states, such as California, have already adopted versions of this language in their code.
While the number of people living under guardianships in the United States is unknown because there’s no formal tracking, one study this year guessed at 1.5 million, with guardians supervising some $50 billion in assets. The specifics of these legal arrangements can vary by state and by person, but typically require going to court to petition a judge for a guardianship on the grounds that someone cannot make independent decisions. Considerations for guardianships can include severe mental illness, some developmental or intellectual disabilities, and illnesses related to aging such as Alzheimer’s.
Many states, including Texas, West Virginia, and Wyoming, have clauses in legislation or their constitutions that explicitly prohibit some people judged “incompetent” from voting, though the specifics can vary by state. Many, like Maine, have conflicting constitutional and legislative positions around voting rights for people under guardianship. Kentucky’s constitution, for example, uses outdated language to describe who shall not have the right to vote (“idiots and insane persons”), though the state’s civil code is actually protective of voting rights for those under guardianship. According to a congressional report published in 2018, nearly 10,000 people across the country lost the right to vote due to “mental incompetence”, which Bossing warns can be an overly broad category. Though advocates say that the true number is likely much higher because reporting is not reliable.
Maine barred people under guardianships for mental health conditions from voting until the Disability Rights Center of Maine sued on behalf of three women under guardianships who wanted to vote in the 2000 presidential election. One of them was allowed to vote in that election after successfully petitioning the local judge overseeing her guardianship. Another woman tried but was unable to vote that year after her judge denied the petition to amend her guardianship, citing the prohibition in the state constitution. The third plaintiff was unable to seek a modification to her guardianship ahead of the 2000 election because she had been hospitalized at the time.
The federal court in Maine ruled in 2001 that it was in fact unconstitutional to deny ballot access for people under guardianships for mental illness, a violation of both the due process and equal protection clauses in the federal 14th Amendment. The state chose not to appeal the decision and legislators struck the relevant sections of the elections code. Today, the voting information page maintained by Maine’s Secretary of State affirms voting rights for people under guardianship, in alignment with the court decision and legislative changes.
But the outdated voting restrictions have remained in Maine’s constitution since then. Scrubbing the language requires a two-thirds majority in both the state House and Senate to place an amendment on the ballot, followed by a simple majority vote in a referendum.
“I want to excise anything that is unconstitutional,” Hickman, who led the amendment process in the legislature this year, told Bolts. “We have already removed any disenfranchisement of mentally ill people under the courts and law.” Only a handful of people testified in this year’s legislative hearing over the amendment, including Maine’s secretary of state, who noted that it would finally bring the state’s foundational legal document in line with established case law.
Bossing and other advocates for people under guardianships also argue that people who express a desire to vote should be allowed to vote, and should be provided with any accessibility accommodations they need, such as an electronic voting machine equipped for use by blind voters, plain language material for people with cognitive or intellectual disabilities, or a communication board for a developmentally disabled voter.
But that help isn’t always available. Despite numerous federal laws protecting the right to vote privately and securely for disabled people, disabled voters report systemic access problems in every election. A 2017 U.S. Government Accountability Office report found that 83 percent of voting places surveyed had one or more accessibility barriers. Disabled voters are also harmed by restrictions on mail and early voting, poor mail ballot design, limits on who can collect and drop off ballots, and calls for hand-marked paper ballots. In a bitter twist, leveraging the Americans with Disabilities Act to close or move polling places has become a voter suppression tactic.
The conversation about voting rights for people under guardianship also connects with a larger discussion about guardianships: Some disability activists and organizations, including Bazelon, question whether they should exist at all, when alternatives that offer more autonomy are available. The supported decision-making movement, for example, presents an option where a disabled person can talk to friends, family, service providers, or others about a decision, weighing those conversations but ultimately making an independent choice. Individual disabled people decide which kinds of decisions they want help with on the basis of their own needs, and they can revisit the topic as their lives change.
While reformers work on a state-by-state basis, there have been attempts to address the issue federally. The Accessible Voting Act of 2020 filed by U.S. Senator Bob Casey, a Pennsylvania Democrat, would have barred voting restrictions on the basis of guardianships. Under the bill, which failed that session, in order to terminate voting rights, guardians or the state must produce “a court order finding by clear and convincing evidence that the individual cannot communicate, with or without accommodations, a desire to participate in the voting process.”
In Maine, there is currently no coordinated campaign against Question 8 this year, but its proponents are concerned that voters may not understand the context of the ballot measure. “People are confused,” notes Hickman, who hopes clarifying the fact that the amendment is simply cleaning up the constitution to remove language that violates the law will help voters. In the state’s voters’ guide, Disability Rights Maine Executive Director, Kim Moody, explains the story behind the amendment, saying “that outdated provision remains part of the Maine Constitution today and should be removed.”
“People assume folks can’t make their own decisions, people must be making them for them. They think people are going to be taken advantage of,” Hickman says, describing concerns about Question 8. But, like Bossing, he believes in the capacity of disabled voters to make their own decisions, telling Bolts “you can’t disenfranchise based on a feeling.”
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