The Unheard Third: Mental Incompetence

In 39 states and Washington, DC, judges are allowed to take away the right to vote based on “mental incapacity” or “mental incompetence.” 

What exactly qualifies as mental incapacity or incompetence? 

It’s up to the judge. The main way someone could lose their voting rights because of mental incompetence is through guardianship or conservatorship.

Reasons a person might be judged mentally incompetent and placed in a conservatorship or in the care of a guardian range from people in comas, to people with dementia, schizophrenia, down syndrome, some forms of autism, or  severe mental illness resulting in confinement to institutions, with many other variations in between. 

In some states, laws around guardianship assume civil rights, including the right to vote, are retained unless a judge specifically removes them. In other states, the assumption is that civil rights are lost unless a judge specifically states the person should retain them. And in nine states — Alabama, Louisiana, Massachusetts, Minnesota, Missouri, South Carolina, South Dakota, Utah, and Virginia — anyone who has been officially declared mentally incompetent is automatically barred from voting by the state constitutions.  

Which leads us to wonder, did Britney Spears lose her right to vote?! She’s been in a conservatorship for the past 13 years and since the terms of her conservatorship are confidential, we have no way of knowing. That in and of itself is not good. 

The problem is, in all states with any version of these laws, the decision is up to the judge. They get to decide what counts as mental incompetence and whether an individual should retain or lose their right to vote.

While this alone can lead to inequities in who is deemed “mentally competent,” it is even more problematic in light of the fact that there are no agreed upon standards or guidelines by which to measure the level of “mental competence” required to vote. 

Research suggests discretionary decision making, including by judges, can be biased when there aren’t clear guidelines governing the process. Without clear definitions of mental incompetence and standards for determining if someone is capable of voting, the system leaves open a lot of room for judges to use their discretion unfairly, even if they aren’t aware they are doing it. 

The reasons for placing someone under guardianship are not always based on cognitive function and often have to do with other disabilities, which makes conservatorship more broadly a disability voting rights issue. Check out this blog from Pew Research on voting rights and incompetence laws, as well as the American Bar Association’s page on this topic to learn more about this issue in general and these articles from Vice and NPR on the issue of improper loss of rights more specifically.

Currently there is little data on who has had their right to vote taken away through guardianship or conservatorship hearings, so we can’t say if there are disparities (gender, age, race, etc) in who loses their right to vote. That may be changing soon. 

Recent attention on the case of Britney Spears has spurred calls for review of guardianship laws. Because guardianship is governed by state law, there is not much that can be done at the federal level, but federal lawmakers have suddenly taken an interest in the issue of conservatorship abuse. 

Senator Ted Cruz has expressed concern, several GOP house members have called for hearings, and Senators Elizabeth Warren and Bob Casey have asked the departments of Justice and Health and Human Services for data on conservatorships. A recent poll by Data for Progress showed that the majority of likely voters had heard either very little or nothing at all about conservatorships but also were very much in favor of reforming the system and collecting data. We hope that whatever data gets collected, it includes information on who has lost their right to vote via this mechanism. 

Some might wonder why we would take the right to vote away from someone who needs a guardian. 

The worry seems to be that if someone requires the assistance of their guardian to cast their ballot, preserving their right to vote presents an opportunity for their guardian to commit voter fraud, essentially voting twice. Despite this fear, there is little evidence that this is a real problem. 

There have been several high profile cases of attempted/alleged voter fraud involving schemes to steal votes in nursing homes, but those seem to be the exception, not the norm. 

Once someone has been stripped of their voting rights due to mental incompetence or incapacity, it can be very difficult for them to get those rights back. 

So given the low incidence of voter fraud, and the American democratic imperative to fair and equal representation under the law, it is a moral imperative to limit disenfranchisement due to mental incompetence so as not to take away the right to vote from someone who is ultimately capable of making their own choice. 

Furthermore, our democracy has long at least notionally accepted the principle, originally stated by Maimonides, that liberties are more important than security. 

“It is better and more satisfactory to acquit a thousand guilty persons than to put a single innocent one to death” – Maimonides, Sefer Hamitzvot, commentary on Negative Commandment 290, translation by Charles B. Chavel, 1967.

Maimonides

In this case, eliminating the potential for voter fraud should not come at the expense of someone’s right to vote — especially given the extremely low incidence of voter fraud in general.

The laws governing voting rights and mental incompetence should be reformed to set clear and fair standards that can be applied equitably and transparently and appealed when necessary.


The Unheard Third is a Public Wise series which examines the reasons why one third of the potential* American electorate did not participate in the 2020 presidential election.

The “potential electorate” refers to people who meet the requirements laid out in the constitution and clarified in its amendments: citizens who are 18 years of age or older. We say potential because not everyone who meets these requirements is actually eligible to vote. In most states, there are additional criteria that can disqualify otherwise age and citizenship eligible people from voting.  

In the post (14th, 15th, 19th, 24th, and 26th) Constitutional Amendment and Voting Rights Act world, baseline voting eligibility requires that you are 18 years of age or over and a citizen to legally vote in the United States. All but one state (North Dakota) also requires that you be registered to vote. We will talk about how registration rules and requirements make it harder for some people to vote in our next post on barriers to voting. Nevertheless, registration, alongside age and citizenship, serve as the foundation for voting eligibility in the United States. Beyond these factors, there are two major things that serve to legally disenfranchise otherwise eligible voters: “mental incompetence” and felony conviction.