The right to vote a sticky issue


	Edward M. Stern, J.D., has a private law practice in Newtonville, Mass. Stern serves as assistant dean for pre-law advising at Boston University and is a visiting lecturer for the University of Massachusetts/Boston Department of Sociology.

By Edward Stern, J.D.

On June 19, 2007, The New York Times featured an article entitled, "States Face Touchy Decisions on Who Is Mentally Fit to Vote" by Pam Belluck. It said, "This summer, recommendations for national standards will be released by a group of psychiatrists, lawyers and others led by the American Bar Association, suggesting that people be prevented from voting only if they cannot indicate, with or without help, 'a specific desire to participate in the voting process.'"

This issue initially does not appear difficult. Mental illness should not limit someone's right to vote. There needs to be a connection between someone's ability and the standard of voting. Another point is that to prohibit a person from voting is to disenfranchise him or her and thus silence a person's public power and involvement. Other areas of concern can become complicated because the issues involve the capacity to make decisions, the ability to make independent decisions and access to the process. It also involves who gets to decide these matters.

According to the article, these issues have been debated and discussed in many states including Rhode Island, Maine, New Jersey, Missouri, Alabama, South Carolina and others. The article states, "State laws vary and are inconsistently applied, said Jennifer Mathis, deputy legal director for the Baydon Center for Mental Health Law, an advocacy group in Washington (D.C.). Ms. Mathis said most states fell into one of two categories. About 18 (states) bar voting by people under guardianship or who are "non compos mentis" ("not master of one's own mind"), a determination that is often not clearly defined. Another 18 (states) prevent voting if there is a specific determination that people lack voting competence."

Beyond these standards lie other topics regarding findings such as "not guilty by reason of insanity." This finding seems to rankle some people because most felons found "guilty" of murder or other felonies are not permitted to vote. The article notes, "Only Maine and Vermont allow jailed felons to vote." Other questions exist about the competency of older people as they deteriorate physically and mentally and may not have guardians. The issues regarding the elderly are similar to the other competency issues.

The questions around felons' rights to vote are more political and social rather than medical or mental. Although when a defendant is found "not guilty by reason of insanity" for an act that otherwise would have been a felony with a felony conviction, the issue dovetails all these factors.

What do we know or what can we infer from this information? There are apparently 14 states that have not yet officially dealt with this issue by statute. The states that have a standard relating to guardianship or similar proceedings probably do not want to establish another system or bureaucracy to handle these questions and are satisfied that the issues are closely enough resolved by the standards which are part of these proceedings. States having a separate standard and independent proceeding to decide competency to vote, assuming that most states treat convicted felons independently of this standard, recognize that there are probably a limited number of such cases that actually arise in each jurisdiction. Probably as people get older, absent fraud, their access is limited by their incapacities. As long as someone older wishes to vote, why would we not permit it? The underlying understanding here would be based on a standard of recognizing candidates' issues or parties. Isn't this different from mental illness or some other medical or emotional diagnosis? On the other hand, would society want to stop someone from voting who could take care of his or her own affairs? Should not society be very careful when disenfranchising anyone for any reason? Could the answer to these questions control the outcomes of important political contests throughout the country? Does one vote make a difference?

The right to vote a sticky issue (October 2007 Issue)

By Edward Stern, J.D.

The right to vote a sticky issue
(October 2007 Issue)