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Voting prohibition
re-visited in wake of lawsuit
(December
2004 Issue)
By Pamela Berard
A 52-year-old Harvard law graduate and former Vermont professor
has filed a federal lawsuit against the state of Missouri to end
the practice of barring residents from voting because they have
been placed under court-appointed guardianship.
Advocates for mental health laws say the case could be nationally
significant, because approximately 26 states - including Massachusetts,
Rhode Island, Vermont and Maine - still have laws on the books that
in some way disenfranchise people who have been adjudicated incompetent,
according to the Washington, D.C.-based Bazelon Center for Mental
Health Law.
Steven Prye, who previously taught at the Vermont Law School, was
recently diagnosed with late onset schizoaffective disorder and
had a guardian appointed to him in Illinois in December 2003.
Tony Rothert, Prye's legal counsel with the Illinois Guardianship
and Advocacy Commission, says Prye regularly voted in the past.
Prye moved to Missouri from Illinois to seek treatment and tried
to register to vote but could not because people with a guardian
are barred from voting in Missouri under state law.
"These laws are based on the premise that mentally ill people and
people who need help enough to get a guardian are so out of it that
they don't know what they are doing," Rothert says. "That's just
not reality." Rothert says in Missouri "No matter how incompetent
you are to vote you can vote if you don't have a guardian." You
could conceivably be "in a coma" and your family can get an absentee
ballot for you, but those with guardians are denied the right to
register, he explains.
The Missouri law "is based on stereotypes that aren't true," Rothert
says.
Jennifer Mathis, senior staff attorney at Bazelon and co-counsel
with Rothert, says she is hoping this case will influence other
states. "I would hope a positive ruling in this state would send
a message not only to Missouri but the rest of the states that have
these types of laws, that you can't continue to do this, that this
violates people's fundamental right to vote," Mathis says.
There is precedence to this case. In 2001, three Maine women with
mental disabilities claimed they were unfairly denied the right
to vote. In that decision, Doe v. Rowe, a federal court struck down
Maine's prohibition on voting by anyone under guardianship by reason
of mental illness. The court ruled the prohibition violated both
the Equal Protection Clause of the U.S. Constitution and Title II
of the Americans Disabilities Act.
But even though the prohibition is no longer enforced in Maine
- the wording remains in the state Constitution.
Twice, Maine voters have been asked to vote on whether they favor
amending the state Constitution to delete the provision. Both times,
voters rejected the ballot question.
"The words remain in the state constitution but because of the
court action in 2001, that provision is no longer enforced," says
Doug Dunbar from the Maine Secretary of State's office.
Massachusetts also has such a provision in its Constitution, dating
back to 1821. However, having a guardian in itself does not prohibit
a person from voting.
The judge in the guardianship must specify that the person under
guardianship cannot vote, says Brian McNiff, spokesperson for the
Massachusetts Secretary of State's office.
In Rhode Island, the mental competence laws are laid out in the
state Constitution and date back to 1843, according to Peter Kerwin,
director of communications for the Secretary of State's office.
It reads "no person who has been lawfully adjudicated to be non
compos mentis shall be permitted to vote."
Kerwin says to his knowledge, this provision has not been challenged.
It would require voter approval to change the Constitution. Voters
just last month rejected a Constitutional Convention question on
another issue, so "that means we're at least 10 years away from
a Constitutional Convention where the issue could be taken up there,"
Kerwin says.
Mathis adds that the laws in many of the states are overbroad and
disenfranchise too many people. "Guardianship is a determination
about your ability to manage your personal affairs or your financial
affairs or both," she says. "They really do not address your ability
to vote. Guardianship is not in any way a good proxy for competency
to vote."
In Missouri, the state has until early December to respond to Prye's
suit, Rothert says.
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