by Andy Howard
People in our culture are accustomed to analogizing poor voting decisions with mental disabilities. Who among us hasn’t called people “crazy” when they vote in ways with which we disagree? This sorry attitude, though, is a reflection of our culture’s stigma against people with mental disabilities. People with cognitive disabilities are frequently seen as a class that does not enjoy the same freedoms as others, including that of suffrage. Do we, as a society, really feel that people with disabilities don’t have an interest in the public policies propounded by our government?
Thirty-eight states prohibit people with mental disabilities from voting. Despite the fact that people with disabilities are still citizens of the United States and subject to Equal Protection of the laws, these states have deemed this particular class of individuals incapable of voting responsibly. Certainly, the states have a compelling interest to ensure that voters are informed and competent, and to prevent voter fraud by individuals who can abuse heightened influence over people with mental disabilities in order to manipulate their votes. But how do we protect those state interests without stepping on the rights and interests of individuals with disabilities?
In 2010, Maryland enacted the Honorable Lorraine M. Sheehan Act, which expands protection to certain people with mental disabilities. For years, Maryland barred an individual from voting if he or she was under guardianship for a mental disability, which included cognitive disabilities that impair mental processes and mental illnesses that cause alterations in thinking. Guardianship in Maryland is established when the court finds that the person with the disability is unable to manage his or her property or lacks sufficient understanding to make responsible decisions concerning his or her well-being, such as those concerning health care, food, and shelter. The 2010 Maryland statute, named after Lorraine M. Sheehan (a prominent advocate for people with disabilities), makes it illegal to deny someone the right to vote simply because he or she is under guardianship for a mental disability. Instead, the voter must be under guardianship and a “court of competent jurisdiction [must have] specifically found by clear and convincing evidence that the individual cannot communicate, with or without accommodations, a desire to participate in the voting process.”
The 2010 change in Maryland’s voter eligibility requirements came nine years after a Maine statute was struck down in Federal District Court for denying voter eligibility on the basis of having a guardian because of a mental disability. The court in Doe v. Rowe (2001) held that the statute violated the Equal Protection Clause, because under strict scrutiny, denying suffrage based on guardianship is not narrowly tailored enough to the goal of having a competent voter pool.
Maryland’s elections website now provides information about how a voter can get assistance with voting. Non-profit organizations in the state provide online toolkits for voters and election administrators in order to understand and facilitate the updated eligibility requirements.
It is unclear how a federal court might treat the 2010 Honorable Lorraine M. Sheehan Act. It seems likely that the specific judicial determination of voter competency satisfies the fit requirement of the Equal Protection Clause. Still, the district court in Doe v. Rowe also held that the Maine statute violated the Due Process Clause of the 14th Amendment because views about competency to make decisions about one’s own well-being or property might vary widely from judge to judge. Is Maryland’s provision requiring the judge to rule on a voter’s competency to make decisions about voting any different?