New York Estate Planning & Elder Law Blog
Fewer rights are more fundamental than the right to vote in the United States. Unfortunately, many people take the right to vote for granted. People who face limited capacity or who are currently under guardianship, however, experience substantial challenges in regards to voting. Many states even restrict and some bar voting rights for individuals faced with limited capacity.
The Types of Voting Rights
State laws addressing the voting rights of individuals fall into three categories: states constitutional provisions addressing who can vote, states with voter registration laws, and states with guardianship laws. Many recent changes have occurred in states to incorporate more current language concerning disabilities as well as capacity and guardianship. Because state statutes are notoriously hard to revise, many of them are still outdated.
Voting Rights and Limited Capacity Individuals
One recent study examines state laws involving the right to vote for individuals of limited capacity. The study revealed that thirty-five states have constitutional provisions that block mentally incapacitated individuals from voting while thirteen state constitutions are silent in regards to whether people with limited capacity can vote.
Changes to State Law
Some prominent changes to state law have occurred since the previous study of these issues was conducted. Most of these changes lifted barriers to voting for people faced with limited capacity while some other changes revised working utilized in state law. Many states require decisions addressing whether a person meets state standards for people with mental incapacitation to be disqualified from voting registration.
Some recent changes to state law involving mental capacity and voting rights include:
- Arkansas once had a constitutional provision stating that “idiots” or “insane” people were entitled to voting privileges. In 2020, however, an amendment was made to the state’s constitution to be silent involving the rights of people with limited capacity with voting.
- Connecticut revised its state constitution to reflect that only people who can read English and who have “good moral character’ are eligible to vote. Before this revision, mentally incompetent people in Connecticut were barred from voting.
- Massachusetts removed a provision involving mental incapacity and voting. The state’s statutes are now silent on the issue of voting for people who lack mental capacity.
- Several states including Iowa, Nevada, and New Jersey revised the language in their statute to disqualify mentally incompetent individuals from voting.
Evolving Guardianship and Limited Capacity Laws
As guardianship law has involved and featured a greater emphasis on encouraging limited capacity individuals to engage in decisions on their behalf, state laws have also been impacted. State constitutions as well as guardianship laws appear to be moving in a direction to greater recognize the limited capacity issues by updating language and requiring limited guardianship with certain powers. Among the many states that have revised their constitutions to only restrict people who have been classified incompetent to vote and updating guardianship to use more current language, progress towards maintaining voting rights for limited capacity individuals is occurring.