Right now in the U.S., people with disabilities can be stripped of their right to vote in 39 states and the District of Columbia.
It happens like this: In families that include an adult with a developmental disability or mental illness, a guardian may be chosen to assist with management of their loved one’s finances and health care decisions. Judges are also empowered to make decisions regarding voter participation competency during these guardianship proceedings.
What does that mean, exactly? It means judges can simply check a box that terminates a basic civil right ― potentially permanently ― often with no warning to the voter or the family.
Americans with disabilities are the last U.S. constituency whose rights can be taken away based on identity. In fact, tens of thousands of people with disabilities have already lost the right to vote nationwide, despite the best efforts of disability rights organizations to protect our most vulnerable voters. One such organization is the Spectrum Institute, which helped former NPR producer David Rector get back his right to vote in California before the 2016 elections ― a right he’d lost simply because he requires assistive technology to speak and express his desire to vote. Another is Disability Rights Maine, which represented voters with disabilities in Doe v. Rowe ― the case that led the state of Maine to declare the denial of voting rights based on guardianship as unconstitutional.
At their core, voter competency laws misunderstand what it means to have a disability based on the outdated notion that people with disabilities are childlike and incapable of having their own opinions or ideas. A number of the statutes granting judges this power use offensive, archaic language like “idiots” and “insane” to refer to people with disabilities.
We don’t need to worry about foreign hackers delegitimizing our elections; we have already shown we are quite capable of turning our own citizens away from the polls.
No standards or guidelines apply to all cases, either. Individual judges can essentially make up the rules as they go along. Many are either ignorant of or are ignoring the sea change our country has undergone over the past 40 years in terms of how we view people with disabilities and the services and supports available so they can live full and independent lives.
Today, people with developmental, cognitive and psychiatric disabilities increasingly live in their own homes, go to work and pay taxes. They attend school. They buy groceries and go to the movies. As active members of their communities, as citizens and as people whose opportunities to live and work independently can be enhanced or hindered by public policy, they deserve a say in who represents their interests.
In the same way the Voting Rights Act of 1965 outlawed literacy tests and other discriminatory and extraneous standards used to turn eligible voters away from the polls, it is time to end voter competency laws.
Proponents of such laws claim that people with developmental disabilities or mental illness may not fully understand our complex government or be able to make a “good” choice when they mark their ballots. But even if this were true (and it’s not), this makes them no different from their nondisabled peers.
Everyone reading this can surely think of several friends, family members or colleagues with whom they disagree in the voting booth or who would struggle to pass a fifth-grade exam on U.S. government structure. However, because they do not identify as a person with a disability, their right to vote goes unquestioned.
And it shouldn’t be questioned, because this right forms the basis of our democracy. Anyone who is eligible and desires to vote is allowed to register. And all registered voters can cast their ballots and have their voices heard.
But the 2016 elections turned that notion on its head. Hacking allegations, foreign interference and cybersecurity are rocking the elections administration industry. We now find ourselves in the middle of the elections security fight of our lives ― and in a resurgence of interest in voter competency laws.
As Congress contemplates shoring up America’s elections against known foreign interference, partisan battles rage about the real threat to fair elections and the consequences of federal intervention in election law. Is the real threat Russian hackers or noncitizens voting? Solutions range from hiring cybersecurity firms to protect voter registration databases and stop Russian hackers to requiring a photo ID to vote in an attempt to stop voter fraud.
We aren’t protecting the innocent when we deny them a voice in their government.
But allegations of voter fraud are notoriously difficult to prove, and eventually the focus lands on voters with disabilities who may need assistance when casting their ballots.
Take, for example, a voter with a disability who is active in politics and certain of the candidates she wants to support. She shows up on Election Day ready to cast her ballot.
Like many voters, she finds the layout and language of the ballot confusing; she also experiences some difficulty properly filling in the bubbles on her ballot. But she anticipated this, and she brought a trusted friend along to help ensure she correctly marks her selections as intended. Her assistant is even asked to sign a legal affidavit while the voter is checking in at her polling place, affirming he will mark the ballot as the voter intends.
Some say we cannot trust these votes won’t be stolen or unduly influenced. Never mind the fact that a plethora of election laws across the country already define voter fraud crimes and levy punishment on those who would steal someone else’s vote.
Rather than rely on those laws, some say the solution is to punish the voter by not letting them vote at all. That’s just absurd. We aren’t protecting the innocent when we deny them a voice in their government. And we do a disservice to people with disabilities when we perpetuate the charade that they are unintelligent, incapable and irresponsible voters.
Voting is the right on which all other rights depend. We don’t need to worry about foreign hackers delegitimizing our elections; we have already shown we are quite capable of turning our own citizens away from the polls.
Michelle Bishop is the voting rights specialist at the National Disability Rights Network. She provides training and technical assistance to NDRN’s national network on access for voters with disabilities and works in Washington, D.C., on voting rights and elections administration policy. Follow her adventures on Twitter @MichelleVotes.