In The Politics of Autism, I write: "Support from the general public will be an important political asset for autistic people. Another will be their sheer numbers, since a larger population of identified autistic adults will mean more autistic voters and activists" But disabled people sometimes face barriers to voting.
Laws in 39 states and Washington, D.C., allow judges to strip voting rights from people with mental disorders ranging from schizophrenia to Down syndrome who are deemed “incapacitated” or “incompetent.” Some of those states use archaic language like “idiots” or “insane persons” in their statutes.
The states that do not have similar restrictions are Colorado, Idaho, Illinois, Indiana, Kansas, Maine, Michigan, New Hampshire, North Carolina, Pennsylvania and Vermont.
Not only is there no agreement among legal and psychological experts over whether certain people with disabilities should be disenfranchised, but there is also no set standard for measuring the mental capacity needed to vote. There is a tension between protecting the integrity of the electoral process and the civil rights of a person under guardianship, said Dan Marson, a professor emeritus at the University of Alabama at Birmingham’s department of neurology.
Without a standard for measuring capacity, people with mental disabilities need to be properly represented in court, said Tom Coleman, the legal director of the Spectrum Institute. Coleman analyzed six months of court records and found that 90 percent of people with developmental disabilities placed under conservatorship in Los Angeles County were losing their right to vote. Statewide, 32,000 Californians have lost their right to vote in the past decade, he said.
“They were being pushed through the system as a matter of routine.”
Coleman lobbied for the California law, which took effect in 2016 and says the right to vote can be taken away only if a court finds “clear and convincing evidence” the person can’t express a desire to vote.
California, in its new law, joined Maryland, Nevada and New Mexico in adopting a standard promoted by the Bazelon Center and the American Bar Association. The standard is simple, Mathis said: Can a person communicate, with or without accommodations, a desire to vote?
“Can you make a choice?” she said. “It’s self-selecting. If someone with dementia can’t make a choice, yeah, that person doesn’t have the capacity to vote.”
However, a 2001 decision from the U.S. District Court for the District of Maine offered a stricter standard: Does a person understand the “nature and effect” of voting? Washington state uses that language in its statutes.
Appelbaum from Columbia University helped create that standard. He argued that people should know what they’re doing when they’re voting — both the process of casting a ballot and the consequence of that vote. If people don’t understand, it could “cast a shadow on the legitimacy of the process.”