Credit: Feng Yu/istockphoto
The right to vote may be sacred to Americans, but can it be denied to
people with diminished mental capacity?
Rules vary widely (or perhaps wildly) from state to state. Many states have
laws or constitutional provisions barring "incapacitated persons,""
idiots and insane persons," "mentally incompetent,"
or those under guardianship from voting, although many are rarely
If the language of the laws sounds archaic, that's because it is, said
Paul Appelbaum, M.D., the Elizabeth K. Dollard Professor of Psychiatry,
Medicine, and Law and director of the Division of Psychiatry, Law, and Ethics
at Columbia University College of Physicians and Surgeons.
"Many of these laws date from colonial times and have changed little
since then," he said in an interview. "But most recent changes
have been less
The issue drew a small flurry of attention during the 2006 elections when a
candidate for the Rhode Island House of Representatives objected to two
residents of the state mental hospital casting ballots. The two had been found
not guilty by reason of insanity in murder cases, but that fact covered only
their criminal acts and "does not address an individual's capacity
to vote in any way," said attorneys for the two. (The candidate lost by
That seems to be an isolated incident, according to Jennifer Mathis, J.D.,
deputy legal director at the Bazelon Center for Mental Health Law in
"There hasn't been a large body of research indicating that
there is a lot of voting fraud in this area or that mentally ill people are
skewing elections," she said. "People with severe cognitive
impairments aren't beating down the doors at polling places."
At least 11 states now have no voter competence standards, and no one in
these states has complained that people with mental illness or dementia
don't know what they are doing on election day, she said.
Much of the discussion about the issue involves patients in nursing homes.
Obstacles to vote there revolve around practical issues such as getting voters
to the polls, getting election officials to bring voting equipment to the
institutions, or arranging for absentee balloting.
Some have tried to find a valid test of voting competence.
Maine voters have three times rejected repeal of a provision in
Maine's constitution to exclude from voting persons under guardianship
for reasons of mental illness. However, a federal district court decision in
2001 struck down that clause in Doe v. Rowe and said that voting was
open to anyone who could understand the nature and effect of voting enough to
make a choice.
Using that standard, Appelbaum; Richard Bonnie, J.D., a professor of law
and medicine and director of the Institute of Law, Psychiatry and Public
Policy at the University of Virginia Law School; and Jason Karlawish, M.D., an
associate professor of medicine at the University of Pennsylvania, developed a
questionnaire and tested it on 33 Alzheimer's disease patients. The test
differentiated clearly "that the subjects had either adequate or
inadequate performance" in measures of understanding and choice in
voting, they said in article published in the November 2005 American
Journal of Psychiatry.
This Doe questionnaire might seem like a good test to decide who
should be permitted to vote, but the legal community takes another view, said
Mathis. The Voting Rights Act of 1964 wiped out literacy tests and other
barriers to voting for African Americans and said, in essence, that states
could not single out any group to prevent it from voting.
"If someone can communicate, even with help, that they want to take
part in an election, that should be enough," she said. "We
don't ask others if they meet that standard. If we're going to have
a test, we need to give it to everyone who votes."
So for the moment, despite the occasional challenge, pretty much anyone
with or without a psychiatric diagnosis who can fill out a registration card
is in all practicality eligible to vote.
The ABA's "Accommodating Cognitive Impairments" is