Enabling Ableism: Election Laws and COVID-19 Obstacles Prevent Many Cognitively Impaired Individuals from Casting their Votes

By: Hailie Goldsmith
Sophomore in the College of Arts and Sciences; majoring in Philosophy, Politics and Economics and minoring in Hispanic Studies.

As citizens nationwide continue to cast their votes early in anticipation of Election Day on November 3rd, the novel coronavirus presents a unique and pressing challenge for all registered voters. While some will choose to vote in-person on Election Day, many voters applied for mail-in-ballots to reduce the risk of exposing themselves to the coronavirus. While COVID-19 hinders ease and accessibility with regards to voting, the pandemic especially affects older individuals, particularly residents of convalescent care centers with cognitive impairments. In fact, more than 23 million adults in the United States experience some variation of a limiting mental disorder, ranging from dementia to a learning disability [1].  

Unfortunately, a widespread misunderstanding of voting laws disenfranchises many older cognitively impaired citizens. In nursing homes and assisted living facilities, the caregivers or family members might wrongly assume that a cognitive impairment or medical diagnosis automatically renders a person legally unable to vote. To absolve misperceptions about what level of mental capacity one must possess to legally cast a vote, the Penn Memory Center released a comprehensive guide in conjunction with the American Bar Association titled Assisting Cognitively Impaired Individuals with Voting: A Quick Guide. According to the guide, if an individual can respond “yes” and indicate a desire to vote when asked, then he or she “can also indicate a choice among available ballot selections” and should receive assistance in voting [2]. All voters possess private and personal reasons for their choices of candidates, and no one typically questions the merit of decision-making for cognitively healthy individuals. A voter’s reasons for their decisions should not determine the adequacy of their selections. 
In fact, the American Disabilities Act, along with other federal laws, legally encodes this aforementioned equal accessibility to vote for all individuals regardless of the level of cognitive functioning. Specifically, Title II of the ADA legally ensures that people with disabilities possess a full and equal opportunity to vote, which covers voter registration and the casting of ballots [3]. According to the ADA, state and local governments assume the responsibility of making voting procedures accessible. The Voting Rights Act of 1965 serves as another major piece of federal legislation that requires election officials to adapt voting procedures for blind or cognitively disabled voters. In addition, the Voting Accessibility for the Elderly and Handicapped Act of 1984 requires voting locations to contain physically accessible options for elderly individuals [3]. With regards to voter registration efforts, the National Voter Registration Act of 1993 specifically aims to increase voter registration rates of individuals with disabilities.
Despite the extensive legislation that exists to protect cognitively impaired individuals’ voting rights, individual states still attempt to disenfranchise certain voters based on mental disabilities or cognitive limitations. Thirty-nine states and Washington D.C. allow judges to revoke voting rights from individuals with mental disorders spanning from schizophrenia to Down syndrome. These “incompetence” laws deem certain individuals unworthy of voting when judges decide that they lack the mental capacity to make complicated decisions [4]. Sometimes this ruling occurs when a cognitively impaired individual receives a legal guardian and the judge simultaneously deems the individual unable to vote in elections. Each year tens of thousands of Americans with disabilities lose their right to vote as a result of legal guardianship proceedings [4]. The disenfranchisement of disabled individuals leads to controversy about whether or not limits should be placed on voting eligibility. 
While all individuals with cognitive impairments hold the legal right to vote, many require assistance from family members or other peers to complete their ballots. The Penn Memory and ABA guide includes many suggestions of various techniques for minimizing communication barriers. These techniques include listening carefully, repeating and clarifying information, asking ballot questions one at a time, speaking in short sentences, evaluating and responding to changes in body language, and maintaining a respectful and understanding tone throughout the process of filling out the ballot. Though care providers and family members can legally assist voters in filling out their ballots, the helper should only fill out choices indicated by the voter and cannot provide recommendations for how to vote or who to vote for [2]. 
Arising from the circumstance of voting assistance, the potential avenues for voter fraud act as a counter-argument against allowing individuals with cognitive impairments to cast their votes. If someone requires assistance from a caretaker in filling out his or her ballot, the caretaker might take advantage of the situation and fill out his or her personal preferences on the ballot, effectively voting twice [4]. In this case, an incapacited individual leaves his or her ballot susceptible to interference, threatening the integrity of democratic processes. However, at what point can individuals be deemed incapable of voting based on mental capabilities? States should adopt clear standards for determining and assessing one’s mental and cognitive capacity to vote so as to dispel confusion from court cases and guardianship proceedings. Some states follow the aforementioned standard provided by the American Bar Association. If an individual can effectively express his or her desire to vote, then an individual can capably vote [4]. 
Given COVID-19 restrictions which severely limit visitors at nursing homes, cognitively impaired voters encounter even more obstacles with properly submitting their ballots. Even if residents of nursing homes and long-term care facilities want to vote, they can no longer easily request help from family members [1]. In light of these challenges presented by COVID-19, the Centers for Medicare and Medicaid Services recently released a memorandum in which CMS “affirm[ed] the continued right of nursing home residents to exercise their right to vote” [5]. The memorandum strives to hold state and local governments as well as nursing home administrators accountable and emphasizes the importance of ensuring that residents of nursing homes still exercise their legal right to vote despite the additional difficulties and hurdles presented by the pandemic.
Mobile polling, which Vermont experimented with in the 2008 election, represents one innovative solution to assisting voters living in nursing homes. This option enlists the help of trained election officials who visit nursing homes and help cognitively impaired residents adequately fill out their ballots [6]. However, election boards in many voting precincts do not receive nearly enough funding to conduct sufficient voter outreach efforts, especially to voters in nursing homes. This particular issue speaks volumes about the inaccessibility of voting for all U.S. citizens. Filling out and submitting ballots causes confusion among many voters, regardless of mental capabilities, so election boards should receive more funding to increase transparency and ease in the voting process. 
Federal laws, such as the ADA and the Voting Rights Act of 1965, attempt to eliminate ableist restrictions from voter registration processes and ballot submissions; however, these laws lack any legal enforcement measures to oversee that disabled or cognitively impared individuals receive the assistance necessary to cast their ballots. In a year where voting, a basic right of U.S. citizenship, has become a particularly arduous and confusing task due to the coronavirus, election officials should not overlook disabled citizens who deserve to fulfill their constitutional right to vote. 
The opinions and views expressed in this publication are the opinions of the designated authors and do not reflect the opinions or views of the Penn Undergraduate Law Journal, our staff, or our clients.
Sources:

1. Span, Paula. “Having Dementia Doesn’t Mean You Can’t Vote.” The New York Times. October 14, 2020. https://www.nytimes.com/2020/10/14/health/election-voting-seniors-dementia.html
   
2. “Assisting Cognitively Impaired Individuals with Voting: A Quick Guide.” American Bar Association and the Penn Memory Center. https://www.americanbar.org/content/dam/aba/administrative/law_aging/2020-voting-guide.pdf 
   
3. “The Americans with Disabilities Act and Other Federal Laws Protecting the Rights of Voters with Disabilities.” U.S. Department of Justice, Civil Rights Division, Disability Rights Section. September 2014. https://www.ada.gov/ada_voting/ada_voting_ta.htm 
   
4. “Thousands Lose Right to Vote Under ‘Incompetence’ Laws.” Matt Vasilogambros. The Pew Charitable Trusts. March 21, 2018. https://www.pewtrusts.org/en/research-and-analysis/blogs/stateline/2018/03/21/thousands-lose-right-to-vote-under-incompetence-laws 
   
5. “Compliance with Residents’ Rights Requirement related to Nursing Home Residents’ Right to Vote.” The Centers for Medicare & Medicaid Services. October 5, 2020. https://www.cms.gov/medicareprovider-enrollment-and-certificationsurveycertificationgeninfopolicy-and-memos-states-and/compliance-residents-rights-requirement-related-nursing-home-residents-right-vote 
   
6. Karlawish, Jason et al. “Bringing the Vote to Residents of Long-Term Care Facilities: A Study of the Benefits and Challenges of Mobile Polling.” Election Law Journal. March 14 2011. https://www.liebertpub.com/doi/abs/10.1089/elj.2010.0065 
   

The opinions and views expressed in this publication are the opinions of the designated authors and do not reflect the opinions or views of the Penn Undergraduate Law Journal, our staff, or our clients.