Who is entitled to vote?

Who should be allowed to vote? That question has haunted the US from the inception of the Constitution. In 1787, only white males over the age of 21 had the right. The 15th Amendment, in 1870, added African-American men to the voting pool. In 1920 the 19th Amendment granted suffrage to women. In 1971 the 26th Amendment gave the vote to 18-20-year-olds. But the legal rights of those with mental illnesses or developmental delays has been left to the will of the individual states. Some, such as New Jersey and Ohio, constitutionally forbid an “idiot or insane person” to vote. The problem, aside from the obvious distastefulness of the labels, is who applies the labels, and to whom.

Jill at Writes Like She Talks writes about the efforts in Ohio to have “idiot” and “insane” removed from the state constitution and laws, replacing it with “incompetent person.” She quotes the definition of the latter:

The bill defines this term to mean “a person who is so mentally impaired as a result of a mental or physical illness or disability, mental retardation, or as a result of chronic substance abuse, that the person is incapable of taking proper care of the person’s self or property or fails to provide for the person’s family or other persons for whom the person is charged by law to provide.” This definition is the same as the definition of “incompetent” in R.C. 2111.01 (the law governing guardianships), except that it excludes “any person confined to a correctional institution within this state.”

While “incompetent,” a word of choice in more states as laws are updated, is an improvement, the problem with the Ohio definition is this phrase: “fails to provide for the person’s family or other persons for who the person is charged by law to provide.” That sounds like poverty to me. Do they really intend to correlate that with incompetency? It sounds uncomfortably close to the old poll taxes once used to keep the poor and minorities from casting ballots.

But who is to judge who is “mentally impaired?” This is the crux of the problem for me.

Guardianship is one way of defining incompetence, and is the standard used in about 18 states. This does not take into account that many guardianships are established voluntarily for a single aspect of a person’s life, such as finances. While an individual may be unable to make sound decisions in paying bills or avoiding scams, he may be perfectly able to read a newspaper, watch television or discuss politics with others and come to a decision of who to vote for.

Enforcement is also a huge issue here. Would we require states to keep a list of all those with guardianship agreements and forward it to the state election commissioners to be purged from the voter rolls, as is done with felons? What process would be in place to allow voting rights to be restored when the guardianship is revoked?

Guardianship is not the only measure of competence. Could individuals voting rights be challenged by a stranger? That’s happened in Washington state, with lists of suspected illegal aliens turned over to the state by one man who challenged their right to vote. Given the stigma of mental illness, it’s not a stretch to imagine someone doing the same thing to those who act odd or look different.

Or do we assign poll workers to make a judgment on the competency of those wishing to vote? If so, we’re allowing challenges could be issued on the basis of appearance or neighborhood gossip, and the person so judged would be placed in the position of “incompetent until proven otherwise,” either denied outright or given a provisional ballot to be considered later. Do we wish that power in the hands of neither doctors nor lawyers, but untrained volunteers who may have prejudices and motives of their own?

And what about age? The chances of dementia and Alzheimer’s Disease increase with advancing age and most of those afflicted are not assigned legal guardians, instead being cared for by a spouse, a child, or a paid aide of the patient’s choosing. Should there be a cut-off age after which a person must take a test to prove competency to vote, as some states have for driver’s licenses? The AARP would have a field day with that.

Finally, this sets a standard which is applied arbitrarily and unevenly. My next door neighbor may chose which candidate to support based on who has better hair or what God tells him to do. Is he more competent that someone who was once hospitalized for bipolar disorder? Is he more competent than the 80-year-old woman down the street who sometimes forgets to turn off her oven but who reads the newspaper every morning? Is he more competent than the young man with Downs Syndrome who lives on his own and who watched all the debates on television?

Are there people who are truly incompetent to vote? Of course there are. But we cannot legally mandate an informed electorate. Some people are always going to make lousy decisions for lousy reasons, or be influenced by those around them, and in a free country, that’s their right. To judge only a portion of the population is wrong.

Inspired by the NY Times, with a hat tip to Ahistoricality, who brought it to my attention.

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