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  • Texas law against delivering others' ballots is challenged

September 2006
A Washington-based voting rights attorney aligned with the Texas Democratic Party is challenging a Texas law that makes it a crime to put other voters’ absentee ballots in the mail or deliver them to election officials. J. Gerald Hebert, executive director of the Campaign Legal Center, is filing a lawsuit that argues the 2003 law violates the Voting Rights Act and U.S. Constitution’s guarantees of free speech, free association and equal protection. The law, authored by a former Democrat, makes it illegal for anyone to possess or transport another voter’s official ballot. Proponents say that it is necessary for cracking down on rampant voter fraud, specifically, on political operatives who take advantage of the elderly. Detractors say that, far from protecting the elderly, the law criminalizes those who are simply trying to assist elderly voters. Of the 13 individuals indicted for voter fraud, 10 are accused of delivering another’s absentee ballot to election officials or to a mailbox, actions which were not illegal before the law.

Targetting minorites? The law is also coming under attack from the NAACP and Mexican American Legal Defense and Educational Fund, who argue that it unfairly targets minority voters and is being used in an effort to undermine their voice at the polls. Nina Perales of MALDEF says that, in the Mexican community, it is common for trusted women known as politiqueras (political women) or comadres (friends) to help the elderly apply for absentee ballots and then return to pick up the completed and sealed ballots. Under the law, these persons can be charged with misdemeanors, or, if possessing enough ballots, a felony. Texas Attorney General Greg Abbott is accused of applying the law for political purposes, undercutting the minority vote, as well as the minority Democrats. Of the 13 individuals indicted under his term, 12 are minority women and none are Republicans. Willie Ray, 69, along with her grandaughter, were among those charged. Ray, a Texarkana city councilwoman, said she was unaware of the law when she assisted elderly voters by delivering their ballots to election officials in 2004. It was, she says, and honest attempt to encourage her grandaughter to get out and help the homebound. In the end, it cost them both $200 and a six to eight month probation sentence.

This information was obtained from mysanantonio.com

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  • Report Looks at Voting and Cognitive Impairment

The Social Science Research Council formed the National Research Commission on Elections and Voting . On March 1, 2005, the Commission released its assessment of electoral reform themes, entitled Challenges Facing the American Electoral System: Research Priorities for the Social Sciences. Among the issues discussed in the report is "The voting rights of persons with cognitive impairments." The report states the following on the issue:

"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 the final report (20 pages)

  • Voting capacity and voting age

One of the goals of the Dementia Voting Project is to critique the assumptions that underlie concepts of what it means to be competency to vote. One assumption is that a person’s status is ethically relevant to deciding whether they have adequate capacity, i.e. are competent, to vote. “Status” describes membership in a group, such as persons with cognitive impairment secondary to dementia, persons who are mentally ill, or – using language from several State’s laws – persons who are insane. To label such persons as lacking the capacity to vote disregards that they have varying degrees of decision making ability.

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-makingcompetence 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 >.

Copyright 2006 University of Pennsylvania Heath System. All rights reserved.
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