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Voting and Cognitive Impairment
"In the United States, as in most western nations, the elderly constitute one of the fastest growing population groups. This demographic trend suggests that new, and more expert, attention ought to be focused on a sensitive, yet not unimportant issue: the voting rights of persons with cognitive impairments. At present, 1.6 million people in the United States live in nursing homes, the majority of whom have dementia; and the number of persons living in related kinds of long-term care facilities such as assisted living is growing rapidly. In addition, the nation possesses many citizens diagnosed with psychiatric disorders who reside in institutional settings. The laws shaping the political rights of these citizens vary from state to state and often impose restrictions that may not be appropriate. Further, whether and how residents of such facilities actually vote depends in part on the decisions of staff, who often receive little guidance on the criteria that govern the exercise of political rights for patients."

"Several avenues of research seem warranted. First, what is a 'reasonable accommodation' (in line with the Americans with Disabilities Act) for a person with cognitive impairment, and what should long-term care staff do to help residents appropriately exercise under what circumstances can the capacity of an individual to vote best be measured? (This question, of course, also pertains to citizens with other types of disabilities, as described in the 'Act of Voting' section, above). Second, how is this issue addressed in other nations, for example in Australia where voting is mandatory? Third, how and under what circumstances can the capacity of an individual to vote best be measured?"

Click here to read a .pdf of this report in its entirety (20 pages)

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Voting Capacity and Voting Age
A person with dementia may be capable of making a choice and understanding the nature and effect of voting. The Project’s research with the Competency Assessment Tool for Voting (CAT-V) is beginning to examine the correlates between cognitive ability and the capacity to vote. A manuscript reporting the capacity of persons with mild to severe AD is currently under review. Given that we know persons with mild to moderate Alzheimer’s disease may have the capacity to make a decision about taking an Alzheimer’s disease treatment or enrolling in an Alzheimer’s disease clinical trial, reasonable people should agree that using the label of dementia to decide that a person with mild to moderate Alzheimer’s disease lacks the capacity to vote is inappropriate.

So why do we use age to decide whether a person can vote? Just as persons with dementia have variable degrees of cognitive impairment, persons under the age of 18 have varying degrees of cognitive ability. In all likelihood many of them are capable of fulfilling the Doe standard of making a choice and understanding the nature and effect of voting.

Amendment 26 of the U.S. Constitution, ratified in 1971, says that all citizens who are 18 years of age or older shall not be denied the right to vote on account of age. States, however, may lower the voting age below 18 if they choose. In the last six years, several states have attempted to pass laws which would lower the voting age for local, state, or federal elections.

At least seven states have recently considered lowering the voting age: Arizona, California, Florida, Maine, North Dakota, Pennsylvania and Texas. Perhaps the most ambitious proposal was California Senator John Vasconcellos’ 2004 proposal to lower the voting age to 14. In the bill, 14-15-year-olds would have their votes count as one-quarter of a vote and 16-17-year-old’s votes would count as half. In Pennsylvania, lawmakers passed an initiative urging Congress to lower the voting age to 17. Finally, a Maine bill was passed in 2003 which allows 17 year-olds who will be 18 in a presidential election to vote in the primary.

The proposals share a number of similar points in their defense: people under 18 are affected by the decisions of politicians, that 16-17-year-olds often work and thus pay taxes, and that 17-year-olds can serve in the military with parental permission. Senator Vasconcellos also argues that, with the Internet, cellular phones, and multiple television channels, people under the age of 18 are more informed today than they were years ago. A number of youth rights advocacy groups such as Americans for a Society Free from Age Restrictions (ASFAR), have rallied behind the issue, staging protests throughout the country during the past election.

These advocacy groups contend the current age requirement of 18 is arbitrary and emphasize the similarities in cognitive abilities between teenagers and adults. ASFAR, has suggested alternatives to a designated voting age which would base young people’s right to vote on competency: a “voting test” that be could be designed and implemented to determine whether a young person could vote. However, ASFAR has not proposed a test or the conditions in which it would be administered.

In all likelihood, many children as young as 12 or even 10 can understand the nature and effect of voting and make a choice. If society still does not want to enfranchise these citizens, the argument will need to set aside issues of capacity and instead consider whether the same reasons most states restrict the voting rights of convicted felons are applicable to disenfranchising children.

Cited texts :

Karlawish J.H.T., Casarett D.J., Kim S.Y.K., James B.D., Xie S.X.: Can patients with Alzheimers Disease make an Alzheimer’s Disease treatment decision? Neurology (in press).

Karlawish J.H.T., James B.D., Casarett D.: Alzheimers Disease patients' and caregivers' capacity, competency and reasons to enroll in an early phase Alzheimers Disease clinical trial. J Am Geriatr Soc 2002; 50:2019-2024.

Kim SY, Karlawish JH, Caine ED. Current state of research on decision-making competence of cognitively impaired elderly persons. Am J Geriatr Psychiatry. Mar-Apr 2002;10(2):151-165.

Vermeer, Susan. “Voting Age.” Education Commission of the States. May 2004. 4 January 2005 <http://www.ecs.org/clearinghouse/51/42/5142.htm>.

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Voting Capacity and Voting Rights Issues in the 2004 General Election

Most states do not provide coherent guidelines for what it means to be competent to vote and in fact many states have registration laws that are unconstitutional and out of step with contemporary legal and ethical principles. These problems are not simply hypothetical ones. Recent news reports from the “swing states” of Ohio and Florida suggest they may impact the outcome of the upcoming national election.

Cases such as these show the clear need to rewrite the laws to give clear guidance on what it means to be competent to vote, who can assist a cognitively impaired voter and in cases where a controversy arises over a persons capacity to vote, a simple, objective and efficient method to assess this capacity.

Removing Florida voters who decline to comply with a vague competency requirement.

In Florida, thousands of Floridians may lose their right to vote because they did not comply with a registration requirement to indicate whether they have been found to be not competent to vote (see “In ’04 Florida, lawsuits begin before election,” The New York Times. 14 October 2004, pages A1 to A19).

A lawsuit challenges Florida officials’ decision to deny registration to 3,050 new voters because they did not answer the question on the registration form that asks if they have been adjudicated mentally incompetent with respect to voting in Florida or any other state.

Florida is one of a few states that correctly focuses its voting laws on whether an individual has been adjudicated as incompetent to vote. But Florida has not clearly indicated how it should be decided whether a person retains the capacity to vote. Moreover, the form, by placing the burden of declaring competence on the voter, may result in a significant number of competent aspiring voters being unfairly disenfranchised for technical reasons. Indeed, given the Doe Standard criteria for voter competence (see “Addressing the ethical, legal, and social issues raised by voting by persons with dementia” The Journal of the American Medical Association. 2004;292:1345-1350), it seems plausible to presume that most citizens who fill out forms seeking to register in fact are competent to vote, and thus should not face bureaucratic hurdles to their full participation.

Challenging the right of elderly Ohioans to request assistance at the polls

In Ohio, potentially thousands of voters may lose their right to vote because of challenges at the polls (see “Big G.O.P. bid to challenge voters at the polls in key state,” The New York Times. 23 October 2004, pages A1 to A12). Reportedly, part of the Republican Party’s strategy focuses on special scrutiny of voting by elderly residents of group homes.

A Party official said that in past elections the bus drivers from group homes assisted the residents with their voting. As a result, the Party’s poll watchers are being taught to challenge the votes of persons who are mentally disabled and assisted by anyone other than their legal guardians. Such a challenge strategy rests on both factual and legal misunderstandings and may unfairly target elderly voters.

To begin with, Ohio’s constitution is one of many that use outdated and offensive labels to describe persons who cannot vote. In Ohio, persons who are “idiots or insane” cannot vote. But its guardianship laws recognize that a person under guardianship may still retain the right to vote unless that specific capacity is found lacking. Unfortunately, as is the case in Florida, state law fails to provide clear guidance on how to assess whether someone is competent to vote.

Challenging a person’s vote because a person is being assisted to vote is deeply problematic. First, federal law gives voters the right to request voting assistance from anyone who they wish except for their employer or a union official. Moreover, a person who is under guardianship and who retains the right to vote is not limited to being assisted by his or her guardian. Such an assumption is particularly inappropriate in cases where the need for assistance has no relationship to the reason the person is under guardianship – for example, when the assistance is necessary because of the voter’s impaired visual or motor skills.

Attempts to challenge elderly voters’ participation or their use of assistance in voting present a number of negative consequences. Such challenges run the risk of disenfranchising voters unjustifiably. They can slow down the voting process while election officials discuss the challenge. This discourages voters who are waiting in line and need to return to work or home. Finally, challenges can intimidate voters who themselves fear their right to vote will be publicly challenged.

Missouri resident challenges restriction of his voting rights

Steven Prye, 52, filed a federal lawsuit on October 8 challenging a Missouri law that denies voting rights to people appointed guardians due to mental incapacity (see “Lawsuit challenges Missouri voting laws,” Columbia Missourian. 21 October 2004; “ Mo. judge denies vote to mentally ill man,” Las Vegas Sun. 26 October 2004; “Mentally ill man loses bid to vote,” St. Louis Post-Dispatch. 27 October 2004). Prye is a former law professor of Vermont and Illinois Law Schools who was diagnosed with schizoaffective disorder three years ago. In 2003, an Illinois judge decided Prye was mentally incapacitated and appointed him a guardian. Shortly after, Prye moved to Missouri, where he has yet to be appointed a guardian. Prye was denied registration to vote because of a state law that prohibits from voting those who have a guardian because of “mental incapacity” or are found by a court to be “incapacitated.”In his suit—filed against Secretary of State Matt Blunt, Attorney General Jay Nixon and other election officials—Prye asks the court to require the state to allow him to vote on November 2 and to throw out the provision from constitution and state law.

On Tuesday, October 26, U.S. District Judge Ortrie Smith refused Prye’s request to be allowed to vote on November 2 but did agree to hear his challenge to the Missouri law.  The judge explained that presuming Prye is competent to vote is risky and “any outcome that permits a potentially invalid ballot to be cast should be avoided in order to protect the integrity of the electoral process and the public’s confidence in the election’s outcome.” Despite Prye’s being denied to vote, the thrust of his lawsuit—the challenge to the Missouri law—remains intact. In the challenge, Prye’s lawsuit alleges that the election law violates the U.S. Constitution’s due process and equal protection clauses and the federal Americans with Disabilities Act. The Bazelon Center for Mental Health Law (http://www.bazelon.org) and the American Civil Liberties Union of Eastern Missouri are among those assisting Prye.

Download and read a .pdf of the case in its entirety (9 pages)

The Bazelon Center has said the suit could have national implications. Missouri is one of 26 states that deny voting rights to people with court-appointed guardians. Other such states include Mississippi and New Jersey, whose constitutions exclude from voting “idiots” and “insane persons.” Within Missouri, Prye’s lawsuit could affect tens of thousands of residents who rely on court-appointed guardians. Missouri law was amended in 1983 to make partial guardianship an option for less-incapacitated persons, but the law retained its prohibitions for those appointed full guardians for “mental incapacity.” Prye’s case is only the second in U.S. history to challenge laws prohibiting voting of some with mental illnesses.

Challenging a Montana voter's ballot in a close election

The Montana Missoulian reports that a “mentally handicapped” man’s right to vote was challenged amidst an extremely close House race in Montana. In the House of Representatives District 12 race, Constitution Party candidate Rick Jore defeated Democrat Jeanne Windham by the narrowest of margins: two votes. The final tally gave Jore 1,559 votes and Windham 1,557. With the victory from Jore, the GOP took control of the Montana House by a slim 50-49 majority.

The race ultimately came down to a handful of provisional ballots, cast by voters whose legitimacy to vote in Lake County was challenged. Of the 33 provisional ballots cast in Lake County, only 6 were allowed. Most were rejected because the voters either registered late or were not registered to vote in Lake County. One provisional ballot, which was eventually counted, was cast by a “handicapped” voter whose right to vote was challenged by an election judge when the signature on the provisional ballot was different from that on the voter’s registration card. The election judge, who apparently knew the voter, did not think he was “capable” to vote, although he had voted in previous elections.

The voter, who works at a sheltered workshop in nearby Ronan, was unable to sign a registration card himself, so a sheltered workshop case manager signed for him. Lake County’s election administrator Kathy Newgard was initially prepared to reject the ballot due to invalid registration, but decided that the person who signed the registration card provided legitimate assistance to the voter.

Under provisions of the National Voter Registration Act of 1993, all state-funded programs engaged in providing services to people with disabilities are required to provide all program applicants with voter registration forms and to assist them in completing the forms when necessary. The executive director at Mission Mountain Enterprises, where the voter is a client, confirmed that staff assisted clients with their registration forms prior to the election, and also drove voters to the polls and provided other assistance as needed on Election Day. They did not, however, accompany clients into the voting booth to assist them in the voting process.

A number of individual’s from the voter’s group home and sheltered workshop voted on Election Day without incident and, while the voter’s competency was initially challenged by an election judge, his right to vote ultimately remained intact. According to Montana law, an individual’s right to vote can only be challenged in the court of law, if that individual is judged to be “of unsound mind.”

Cases such as these show the clear need to rewrite the laws to give clear guidance on what it means to be competent to vote, who can assist a cognitively impaired voter and in cases where a controversy arises over a persons capacity to vote, a simple, objective and efficient method to assess this capacity.

If you hear of other cases like these, we want to know. Please email the Dementia Voting Project at jason.karlawish@uphs.upenn.edu

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Why Does This Matter? Voting and capacity, and long term care issues in the news ...

Following are summaries from news stories reporting on allegations of voting fraud related to issues of voting capacity, absentee ballots and voting in long-term care settings. We present them in order to illustrate that voting by the elderly, especially elderly in long term care facilities, is a lightning rod issue that losing candidates can use to contest an election. The Mobile Register article, “DA probes election complaints,” is a fascinating display of the lack of clear guidance on what the capacity to vote is and how to assess it, and the confusion between a diagnosis of dementia and the claim someone lacks capacity. Many of these articles were identified using web searches using the subject topics “dementia,” “Alzheimer’s disease” and “voting.”

“Chaudry wins recount”
From The Bernardsville News, July 7, 2004.

The story reports the claims that elderly voters from an assisted living facility, that includes skilled nursing and dementia care, were inappropriately assisted. “In legal papers filed on Friday, June 18, the campaign of Russell Struck, who lost to Chaudry by just 11 votes alleged that formed state senator John Ewing engaged in illegal activities….According to the affidavit, the 85 year old Ewing… ‘literally accompanied elderly voters into the voting booth and showed them how to vote.’

“Senator’s lawyer blasts Democratic party”
From The State ( South Carolina), August 8, 2004

Brenda Reddix-Small, an attorney representing South Carolina State Senator Maggie Glover, complained that candidate Tim Norwood’s primary election protest was illegal. Norwood had lost by a narrow margin and his protest resulted in the state Democratic Party holding a new primary. “ Norwood’s lawyer argued there were more than 600 voting irregularities. That included voting fraud with absentee ballots of people in nursing homes with dementia and Alzheimer’s disease.”

“DA probes election complaints”
From The Mobile Register ( Mobile, Alabama). August 28, 2004

“District attorney John Tyson, Jr., said his office is checking into six complaints related to Tuesday’s municipal elections in Mount Vernon and Citronelle, including an accusation that incompetent residents of a nursing home voted. In Citronelle, City Council candidate William ‘Bobby’ Rowell, who lost the election by two votes, and three of his family members complained that at least two residents of the Citronelle Convalescent Center were incompetent and should not have voted.”

“Cheating claims shake faith in all-postal voting”
From The Times ( London). June 11, 2004.

“Fresh allegations of postal voting irregularities marred polling day in the local and European elections as fears grow that defeated candidates will ask judges to overturn the results…Essex police confirmed that they were investigating allegations that a worker at a private nursing home had fraudulently applied for postal votes on behalf of seven elderly residents….Concerns were raised at Leonard Lodge, which provides care for 58 elderly and severely ill patients.”

“Citizen seeks to oust Clouse from top spot.”
From The Daily Times ( Delaware County), July 27, 2004.

The story reports Tom Broido’s efforts to get the Pennsylvania Supreme Court to remover Delaware County President Judge Kenneth Clouse. Among Broido’s accusations were that Clouse’s mother in law is registered to vote at her son-in-law’s house and has voted absentee since 1999, but she has been a resident at a dementia unit of a Philadelphia nursing home for several years and is registered to vote in Philadelphia, too.

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