The Right to Vote: What You Need to Know
by Jennifer Mathis, Deputy Legal Director, The Bazelon Center for Mental Health Law
Voting is perhaps the most fundamental of all rights in American society. It is the foundation of our democracy. And votes count: in 2000, President George W. Bush won the presidential election by winning in Florida by a margin of 930 votes--out of six million cast.
People with psychiatric disabilities sometimes lose the right to vote because of state law voter competence requirements or because election officials, poll workers or service providers improperly impose their own voter competence requirements. This article will give you some basic information about your state. However, if you need further help because someone is preventing you from voting, you should contact some of the resources listed in the box at the end of this article.
State Voter Competence Laws
Many states require voters to have a certain level of competence. A chart summarizing each state’s laws concerning voter competence is available on the Bazelon Center’s website .
- About fifteen states plus the District of Columbia bar individuals from voting based on “mental incapacity” or guardianship status. A finding of “mental incapacity” or “mental incompetence” generally means that a person needs a guardian.
If you live in one of these states and are under guardianship, you can ask the probate court judge to let you vote. Some judges will allow you to have your right to vote back if you show that you are capable of voting.
- Three states have provisions barring voting by individuals who are non compos mentis. This Latin term has a variety of meanings depending on the state.
- About twenty states bar voting by individuals who lack the specific competence to vote.
A determination of voting competence is generally made in guardianship proceedings, and the subjects of those proceedings are typically people with disabilities, including mental illness. Other voters do not have to show that they have voting competence, but people in guardianship proceedings may be required to explain the voting process, explain their political views, or provide the names of federal, state or local officeholders.
If you live in one of these states and are under guardianship, you should check or have someone help you check whether you have been found competent to vote. If you were found incompetent to vote, you can ask to probate court to now find you competent.
- Nine states have laws that bar voting by “idiots” and “insane people.” These laws are so vague that they are difficult to enforce.
- Eleven states do not impose any competence requirement for voting.
If you are denied the right to vote based on such state laws, you may be able to take steps to have your voting rights restored. If you lost the right to vote because a judge found in a guardianship proceeding that you did not have the capacity to vote, you can go back to the court. You should be prepared to present evidence that you understand how the voting process works. Even in states where people lose the right to vote simply because they have been placed under guardianship, some courts interpret the law to allow people under guardianship to retain the right to vote, or have it restored, if they can demonstrate the competence to vote.
Some people may also be able to bring a federal challenge to how these laws are implemented. They may be implemented in a way that violates the Constitution, the Americans with Disabilities Act, the Voting Rights Act or other federal laws. See the resource box below for some help.
Practices of Election Officials, Service Providers and Others
People with psychiatric disabilities often lose opportunities to vote when they are told by staff of nursing homes, hospitals and other service providers, guardians, family members, or others that they are not capable of voting and must not vote.
This practice is generally unlawful. State laws almost always require that a determination of incapacity to vote be made by a court.
Virtually all states have laws concerning when and how a person’s eligibility to vote may be challenged. Competence concerns can only form the basis for a voter challenge under very limited circumstances, if at all. Many states do not permit any voter challenges based on competence grounds.
If someone at the polling place challenges your right to vote, you should not leave without asking to vote a provisional ballot. Your provisional ballot should be counted if there are not proper grounds for the challenge.
Helping Voters with Disabilities
Some people with psychiatric disabilities may need some help with voting. People with disabilities have the right to get help with voting. People with disabilities can also decide who will help them vote, including friends or family members, service providers, poll workers or others. The only people who are not allowed to help are the person’s employer or an agent of the employer, or, if the voter belongs to a union, an offer or agent of the union.
Poll workers and other election officials must make reasonable modifications to their normal policies to enable a person with a disability to vote. For example, they would ordinarily be required to explain ballot instructions or contents in simpler language, or to allow a companion into a voting booth if necessary to assist a person with a disability.
The person providing help must respect the voter’s privacy at all times during the voting process and must reflect the voter’s choices, not their own.
If you are denied the right to vote because of a state voter competence law or because an election official, service provider or other person told you that you could not vote, you may wish to contact your state’s protection and advocacy agency (P&A) to see if they can provide legal assistance to you. You can find the phone number of the P&A for your state at online.
The National Campaign for Fair Elections provides information on registration and what to do if you experience problems voting: view online. They also operate a call line where lawyers are available to give voters, including those with mental illness, advice and help with registration questions and any problems with voting. The number is 1 (866) OUR-VOTE (1 (866) 687-8683).
 Help America Vote Act, 42 U.S.C. § 15481(a)(3)(A) (each voting system in a federal election must be accessible to individuals with disabilities in a manner that provides the same opportunities for privacy and independence as other voters have).