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Friday, August 28, 2020

Guardianship and Voting Rights

Today under federal election law, there are only two groups that states may exclude from voting—felons and persons categorized in some way as having mental impairments. Restoring the right to vote to felons who have served their time has gained much-needed attention in recent years, but access to the polls by persons having mental impairments who are under guardianship is rarely seen as a priority inquiry. The inattention is inexcusable.
More recently, Pennsylvania’s Senator Bob Casey introduced the Accessible Voting Act of 2020 in Congress. The bill includes several supports to enable older adults and adults with disabilities to exercise their right to vote, including an explicit provision on voting by persons under guardianship that draws directly upon ABA policy:
A State shall not determine that an individual lacks the capacity to vote in an election for Federal office on the ground that the individual is subject to guardianship, unless a court of competent jurisdiction issues a court order finding by clear and convincing evidence that the individual cannot communicate, with or without accommodations, a desire to participate in the voting process.
While applicable only to federal elective office, the provision would have the practical effect of bending the curve dramatically even in state and local elections, bringing guardianship law closer to contemporary scientific knowledge of capacity, and helping to ensure that every American retains the right to vote. In a time when the franchise is increasingly under siege, small advances represented by this kind of legislation make a huge difference.
A 2017 table of state laws.  (See a recent change in Wisconsin.)

Carli Teproff at The Miami Herald:
At 22, Tyler Borjas had a job, a bank account and got around using Uber and Metrorail.
But he couldn’t legally vote, buy a house or make travel plans. That’s because a Miami-Dade court deemed Borjas, who has autism, “incapacitated,” and placed him under guardianship.
”I want to make my own decisions,” Borjas, who is now 25, said. “I want my rights back.”
Guardianship essentially stripped Borjas of his rights, meaning he couldn’t legally make decisions for himself, said Viviana Bonilla López, an attorney working with Disability Rights Florida, an advocacy group.
Bonilla López has set out to change that for Borjas and other adults by promoting a mechanism known as Supported Decision Making instead of guardianship. If Borjas succeeds, it’s believed he’ll be only the second person in the state to reclaim his rights back in this manner.