The Puzzle of Capacity to Vote Naomi Karp, AARP Public Policy Institute October, 2008 Voting and Long-Term Care in Virginia

AARP 2 Constitution of Virginia Article II, Section 1 “ Qualifications of voters…. As prescribed by law, no person adjudicated to be mentally incompetent shall be qualified to vote until his competency has been reestablished.”

AARP 3 Guardianship Statute: Definition of Incapacitated Person Va. Code Ann. § : “A finding that a person is incapacitated shall be construed as a finding that the person is ‘mentally incompetent’ as that term is used in Article II, Section 1 of the Constitution of Virginia and Title 24.2 unless the court order entered pursuant to this chapter specifically provides otherwise.”

AARP 4 Guardianship Statute: Court Order of Appointment Va. Code Ann. § : “The court’s order appointing a guardian or conservator shall…specify the legal disabilities, if any, of the person in connection with the finding of incapacity, including but not limited to mental competency for purposes of Article II, Section 1 of the Constitution of Virginia or Title 24.2”

AARP 5 Election Law Va. Code Ann. § : “The clerk of each circuit court shall furnish monthly to the State Board a complete list of all persons adjudicated incapacitated pursuant to [guardianship statute]…and therefore ‘mentally incompetent’ for purposes of this title unless the court order specifically provides otherwise….”

AARP 6 What do these provisions add up to? If a judge appoints a guardian (or conservator?), the court clerk will tell the State Board of Elections that the individual is mentally incompetent and the individual will be disqualified from voting – unless the judge specifically provides otherwise in the guardianship order.

AARP 7 What’s really happening in practice? VA elder law attorneys say: > People under guardianship lose the right to vote unless it’s specifically retained in the order of appointment > “Judges around here vary individually in approach – one refuses to take it away at all; others don’t think about it unless someone brings it up.” > “Judge F. told petitioning counsel that from that time forth counsel was to include retention in orders presented to her. I say ‘Bully!’ for Judge F….” > “Some of our colleagues and judges feel strongly that the right should NOT be retained as frequently as is done. Others feel that we should NEVER withdraw the right.”

AARP 8 But what standard does the judge use? > Only a judge can remove the right to vote > But the VA Constitution and statutes are silent on criteria for the decision > State laws on capacity to vote vary tremendously—and are tremendously ambiguous > Twenty state statutes refer to specific capacity to vote -- but few states have guidelines concerning the type of showing required to preserve the right

AARP 9 Capacity and Voting: McGeorge Symposium Recommendations > State laws, including guardianship and election laws, should explicitly state that the right to vote is retained except by court order > If state law permits exclusion, a court of competent jurisdiction must afford due process protections and state that the basis for the exclusion is established by clear and convincing evidence > Capacity standard: a person should be determined to lack capacity only if the person cannot communicate, with or without accommodations, a specific desire to participate in the voting process

AARP 10 So, if a judge doesn’t take away your right to vote…what assistance can you get? > Assistance from person of your choice to help formulate, express and record vote > Assistance – not assessment of decisional capacity > “If the person is, in fact, not connecting with reality then no voting” – is that ok?? > No assistance if unable to ascertain voting intent

AARP 11 Should VA change its laws? > Could remove any capacity-based restrictions on voting > Right could be retained unless explicitly removed > Statute could refer to specific capacity to vote, with definition > Some say this holds certain voters—older voters and voters with disabilities—to higher standards than other voters > Dearth of information about actual practices—in VA and in other states