Who’s com­pe­tent to vote?

Los Angeles Times - - OPINION -

One of the most fun­da­men­tal rights of an Amer­i­can cit­i­zen is the right to vote. And though not nearly as many cit­i­zens take part in elec­tions as we’d like, no one should be stripped of that right with­out clear cause. But thou­sands of Cal­i­for­ni­ans with de­vel­op­men­tal dis­abil­i­ties have been barred from vot­ing with­out full con­sid­er­a­tion of their ca­pa­bil­i­ties and, ac­cord­ing to a com­plaint filed with the Jus­tice Depart­ment, likely in vi­o­la­tion of the Amer­i­cans with Dis­abil­i­ties Act.

Although vot­ing is a con­sti­tu­tional right, most of the mech­a­nisms for de­ter­min­ing el­i­gi­bil­ity are left to the states, which has re­sulted in a patch­work of re­stric­tions. For in­stance, most states, in­clud­ing Cal­i­for­nia, bar peo­ple from vot­ing while they are serv­ing a felony sen­tence. But Cal­i­for­nia’s Con­sti­tu­tion also dis­qual­i­fies the “men­tally in­com­pe­tent,” and re­lated state laws say the test of com­pe­tence is whether a per­son can fill out a voter reg­is­tra­tion form. This usu­ally only be­comes an is­sue when the courts place a per­son un­der a con­ser­va­tor’s care.

But is that the right test? Ask­ing the de­vel­op­men­tally dis­abled to nav­i­gate a reg­is­tra­tion form to prove they are el­i­gi­ble to vote is alarm­ingly sim­i­lar to sub­mit­ting them to a lit­er­acy test, the sort of bar­rier that was used for years in the South to deny vot­ing rights to il­lit­er­ate African Amer­i­cans. Be­sides, in what way is fill­ing out a form a good mea­sure of whether a per­son has the men­tal ca­pac­ity to make the judg­ments nec­es­sary to se­lect his or her pre­ferred can­di­date? For the last year, the state has been al­low­ing the dis­abled to fill out the forms with the help of a care­giver, but that’s not enough of a change to make the sys­tem ra­tio­nal.

Se­nate Bill 589, by Sen. Marty Block (DSan Diego), would es­tab­lish a more sen­si­ble bench­mark. As rec­om­mended by the Amer­i­can Bar Assn., the bill would cre­ate a pre­sump­tion that a de­vel­op­men­tally dis­abled per­son is el­i­gi­ble to vote un­less a judge ex­plic­itly de­ter­mines the per­son can­not ex­press a de­sire to do so. That ap­proach rec­og­nizes all Amer­i­cans’ in­her­ent right to vote, while al­low­ing a judge to dis­qual­ify those who are clearly in­ca­pable of par­tic­i­pat­ing. The bill has passed the Se­nate.

Ad­vo­cates be­lieve there may be more than 50,000 Cal­i­for­ni­ans un­der con­ser­va­tor­ship for de­vel­op­men­tal dis­abil­i­ties or agere­lated prob­lems, an un­know­able num­ber of whom have been un­fairly de­nied the right to vote. Of­ten they were de­clared in­el­i­gi­ble sim­ply be­cause a rel­a­tive with­out a legal back­ground or some­one else seek­ing to be­come a con­ser­va­tor checked a box on a form say­ing the per­son couldn’t fill out a voter reg­is­tra­tion form, and un­wit­tingly signed away their right to cast a bal­lot.

Restor­ing those rights will take time, and will likely be dif­fi­cult. But ul­ti­mately, the state has a re­spon­si­bil­ity to en­sure that those who can ex­press a de­sire to vote be able to do so.

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