The COVID-19 pandemic has made voting in the 2020 presidential election more difficult for most Americans. But the challenges go beyond weighing the risks of going to the polls in person versus the security of mail-in ballots. Individual states have added to the hoops voters must jump through to vote, including new voter ID  requirements and poll-watcher statutes that allow individuals to challenge other voters’ eligibility.

Ostensibly designed to prevent fraud, some of these rule-tightening laws, which have proliferated over the last decade, also seek to limit who qualifies as a voter in the first place. Flying under the radar: legal and practical barriers to voting that disenfranchise people judged “mentally incompetent,” which have persisted for centuries and disproportionately affect people of color.

Each year, these provisions and practices, like other forms of voter suppression, mute the political voices of untold numbers of people with psychosocial and other mental disabilities who are capable of and interested in voting, including some of the 1.3 million adults under guardianship. Moreover, civil- and disability-rights advocates say, they hold them to a higher standard than the rest of the electorate, based on “false narratives” about their lack of capacity.

Little-Known Barriers

The barriers to voting by people with a psychiatric diagnosis are documented in a 2018 article published in The Journal of American Psychiatry and the Law. The research, by then-Harvard psychiatric residents Jennifer A. Okwerekwu, MD and James McKenzie, DO, reveals that “While the U.S. Constitution protects … the right to vote [it] has often conflicted with the eligibility to vote, an authority defined by each state.” The problem, the doctors write, is that despite the suffrage rights guaranteed in the U.S. Constitution and anti-discrimination provisions embedded in federal laws, there has yet to be a constitutional amendment “specifically grant[ing] the right to vote to those with mental illness or cognitive and emotional impairment.” This omission, along with “misunderstanding and ignorance of voting laws” leaves these citizens “especially vulnerable to exclusion from the democratic process.”

Their conclusion was not merely academic: Okwerekwu and McKenzie embarked on their research as members of the Social Justice Coalition at Cambridge Health Alliance, an interprofessional health-justice effort serving a Boston-area “public safety net” healthcare system, to assist recently admitted psychiatric inpatients at Cambridge Hospital to vote in the 2016 presidential election. The hospital had not thought to do so, and local election officials weren’t even sure it was legal.

Wielding civil rights and disability law and promoting the opportunity in the wards, the doctors, volunteering staff, and patient families ultimately arranged to be designated the patients’ official “proxies.” In this role, they were able to obtain registration forms and absentee ballots, help the patients complete them if requested, and then hand-deliver them to election offices.

State-by-State Laws

The effort succeeded, in part, because Massachusetts mental health statutes allowed it. However, if any of the patients had been under legal guardianship and adjudicated “incompetent,” those individuals might have been out of luck. The numerous legal obstacles to voting by people with mental health diagnoses are detailed state by state in a report from the Bazelon Center for Mental Health Law in Washington, D.C.

While arguably illegal (because they conflict with federal statutes), these longstanding laws against “voting while mentally ill” exist in all but 10 states.*  Twenty-two states and the District of Columbia disqualify people found to lack capacity; 13 exclude those under some form of guardianship, 7 bar those who are “insane” or other slurs, and 4 prohibit voting by the “non-compos mentis.” According to a Bazelon PowerPoint presentation, these laws can be divided into the “The Good, the Bad, and the Ugly.”

Pennsylvania’s, for example, are in the “good” category. The Commonwealth not only places no limits on the voting rights of people with mental illness, but also specifies that an institutionalized person may choose which jurisdiction to vote in: the facility’s or that of their permanent residence.

The “ugly” states’ criteria are boldly discriminatory. In Kentucky and Mississippi, among others, “idiots and insane persons” may not vote. In Arizona, “incapacitated persons” may not vote, and their registration may be canceled if they are “committed as an insane person.” Collectively, these types of provisions are known as “idiots and lunatics” laws, based on archaic terms used in earlier state prohibitions.

Most other states’ laws are “bad” or somewhere in the middle. Some, like Massachusetts’, seem internally inconsistent. In these states, a person under guardianship (think Britney Spears or an elderly Alzheimer’s patient) who is also judged “incompetent” may not vote. However, one can’t legally be deprived of voting rights solely based on admission to a mental health facility or receiving mental health services.

Other laws are simply vague. In Montana, someone judged “of unsound mind” cannot vote “unless he has been restored to capacity.” In Vermont (an otherwise “good” state), the constitution requires one must be “of a quiet and peaceable behavior.”

Complications

Complicating matters, the criteria for determining whether someone is mentally ill or competent to vote are seldom codified in these laws. That means whether someone keeps or loses their voting rights is decided on a case-by-case basis by a court, putting them at the mercy of the judge.

State laws are also sticky: Though legislatures have revised some of their archaic provisions over the years, often through ballot measures like those in Kansas and Arkansas, it has sometimes taken legal challenges to overturn them—or at least clarify their meaning, according to Jennifer Mathis,  Bazelon’s Deputy Legal Director and Director of Policy and Legal Advocacy. Mathis, who has represented plaintiffs seeking to regain their voting rights and still takes calls from citizens turned away at the polls, calls the rules “chaotic”: inconsistently interpreted and arbitrarily applied.

They can also create a kind of Catch-22. She explains, “Federal courts often say the law is not a problem because people can always have an individual interpretation [of mental competency], but when it happens that someone does go back for that in their state, they’ll get denied the right to vote because of the law!”

Capacity

The determination of mental competence hinges not on someone’s DSM diagnosis (be it a mental illness, dementia, or autism) but on their “capacity.” Here again, the standard varies by state and can guide a judge’s ruling. In Maine and Washington, for example, the person must be able to comprehend the “nature and effect” of voting. This benchmark is sometimes assessed using a six-item questionnaire called the Competency Assessment Tool for Voting (CAT-V). Among other things, the test asks the person being interviewed to explain how a winner is decided in an election and to choose between two imaginary candidates. Another five states follow the American Bar Association’s recommendation, which simply requires that the person can communicate a desire to vote—with or without accommodations such as help filling in their ballot.

Mathis calls such evaluations “a modern-day literacy test.” She explains, “Federal law says you can have a standard, but it has to be applied to all voters.” Moreover, says Michelle Bishop, Voter Access and Engagement Manager at the National Disability Rights Network, the rules hold people with mental disabilities to a higher standard. These disabilities “can be very different but do tend to get lumped together…[but] some of their consequences can be similar when voter competence comes into play. These are the type of disabilities that receive some of the harshest stigma in terms of whether or not you ‘should’ be voting.”

She says the state restrictions are based on “false narratives … the belief that someone is not smart enough or not with-it enough to make a decision about candidates or issues. And those things… don’t hold up to scrutiny.”

Case Studies

Mental Health Laws

In practice, many “mentally ill” people in states with problematic laws do vote, due to selective enforcement. But the rules can be used against individuals at any time.

For example, in 2007 in Cranston, Rhode Island, election officials sought to revoke the voting rights of two men, William Sarmento and John A. Sarro. Both had been charged with murder but were committed to a state psychiatric facility after being found “not guilty by reason of insanity.” The two were also long-term voters. Learning this, a political candidate contacted the local Board of Canvassers to complain, citing the state constitution, which banned voting by people adjudicated non-compos mentis. “We don’t need the additional burden of worrying whether an incompetent child murderer’s vote might affect the outcome of a close School Committee or other local race,” he wrote.

The board chair agreed, telling The New York Times, “I just think if you are declared insane you should not be allowed to vote, period…Some people are taking these two clowns and calling them disabled persons. Is insanity a disability? I have an answer to that: no.” After the local board voted to disenfranchise Sarmento and Sarro, lawyers from the Rhode Island Disability Law Center appealed the case to the state board, which affirmed the men’s rights in 2008.  

For others, a psychiatric diagnosis and state voting laws may not generate headlines, but create inconvenience, self-stigma, and intimidation. Patricia Bauerle of Arizona was involuntarily committed to treatment in 2000. She requested accommodations to vote at the hospital, citing the Americans with Disabilities Act (ADA). Someone from the voting recorder’s office brought her a ballot, and she was provided a private space to complete it.

However, she told Mad in America, “I have also been very much concerned that the public records which tend to show where people voted may actually show that I voted in the psychiatric hospital.” Because of this, “For the past two decades, despite being hospitalized many times, I haven’t again tried to obtain that type of accommodation for voting.”

When Bauerle later moved and tried to change the address on her registration, “I read that I had to declare that I had never been declared ‘incompetent.’ That very much concerned me because I knew that I had been declared ‘incompetent’ to make medical decisions” due to the court-mandated treatment order.  Though the public mental health advocate’s office reassured her that was OK, she recalls, “I was ‘paranoid’ that I would be persecuted and prosecuted for ‘perjury’ for re-registering to vote with a new residential address, and for voting when I had been declared ‘incompetent’ to make medical decisions.”

Bauerle later complained to the public mental health attorney’s office that the rules were “very confusing and not clear-cut” and could impede others from voting.

Guardianship Laws

But legal experts say statutes in nearly every state that limit the voting rights of the estimated 1.3 million adults under some form of guardianship likely disenfranchise more people than “mental incompetency” laws. According to California attorney Tom Coleman, executive director of the nonprofit Spectrum Institute, “Someone has to take the initiative to disfranchise someone under those laws, whereas once you’re in a guardianship, almost all of your rights to manage your own life and decisions are taken from you.” That typically includes voting, he notes: “It’s a tag-along issue.”

Coleman says court-appointed attorneys often aren’t aware of the ADA requirements that people under guardianship be granted an equal opportunity to vote, so judges “routinely” remove voting rights at guardianship hearings, sometimes without telling the person or their guardian.  This has happened even in states without mental competency restrictions.

Guardianship restrictions are also easier to enforce, notes Bazelon’s Mathis, though “probate courts are all over the map on this.” That’s meant people have had to fight to get their suffrage restored—sometimes successfully, sometimes not. And it’s particularly difficult if you live in states like Missouri, which has a system of public guardians, each of whom is responsible for managing the affairs of thousands of individuals, notes Mathis.

Assumptions about the voting capacity of those under guardianship—and varying interpretations of state laws—continue to slow progress on removing them. In 1997 and 1999, for example, Maine voters had an opportunity to approve ballot referendums that would repeal language in the state constitution banning voting specifically by people under guardianship due to mental illness. Mainers defeated both measures, meaning they believed the rule should stand.

Then, in 2001, the Disability Rights Center of Maine filed a federal suit to challenge the law’s constitutionality. They brought the landmark Doe v. Roe case on behalf of three women under guardianship due to various psychiatric diagnoses who lost their right to vote (identified as Jane, Jill, and June Doe). Though the judge in the Doe case ultimately found the rule unconstitutional and said it violated the ADA, it remains on the books. According to Mathis, Maine “argued [the language] didn’t mean what it said it meant.” The Secretary of State’s office has since instructed election officials to disregard it.

When it comes to making decisions, mental disability is a spectrum, notes Coleman: “Am I going to wear the red dress or the blue dress today? Versus making medical decisions that are high-risk.” He likens choosing a candidate to the former task, which almost anyone can do. Coleman, who calls voting laws based on guardianship status “remnants of a bygone era,” cites recent changes the Arizona legislature made to its law, which forbade voting by those under guardianship who have been “committed as an insane person.” Under pressure from both civil libertarians and conservative politicians, the lawmakers reached a compromise in which wards can keep their voting rights—if they can prove they are competent.

“I remember hearing about a particular case where the judge sat down with this young man for like half an hour, conversing back and forth about politics,” he recalls. “No one has to go through that type of a grilling except for people with disabilities.”

Coleman began to study the issue in the 2010s after being referred several clients being stripped of their voting rights. He discovered that, in California, 90% of individuals placed under “conservatorship” were being disenfranchised. That spurred him to file a 2014 complaint against the state with the U.S. Department of Justice. The following year, the DOJ launched an investigation, and the California legislature amended laws that limited voting rights based on “mental incompetence” and conservatorship status. Today, a conservatee’s ability to vote is presumed, and the burden is on the court to show “clear and convincing evidence” that they lack capacity. Coleman believes the change could have a “ripple effect” on other states.

But the new rules didn’t help the more than 30,000 would-be voters under conservatorship who had already lost their right to vote, leading Coleman to file a 2016 federal class-action suit to compel California to streamline the process of restoring suffrage.

David Rector at a protest
The late David Rector, in wheelchair, participating in a demonstration prior to asking a judge to restore his voting rights. Screengrab from the documentary “Pursuit of Justice,’ courtesy of Spectrum Institute.

Former NPR producer and conservatee David Rector was the first to ask a court to re-enfranchise him. Rector, who had suffered a paralyzing stroke in 2009, didn’t even have a mental illness or cognitive disability. But an election official presumed he lacked mental capacity, so he was disenfranchised in 2011. On his day in court, using assistive technology, he told a judge: “I, David Rector, want my voting rights restored immediately.” The skeptical judge “sort of held her nose…and reluctantly re-instated his right to vote,” Coleman told Al Jazeera.

Everyday Discrimination

Even in states without restrictive laws, people with DSM labels face numerous unofficial barriers to voting.  Often, a psychiatrist, hospital staff member, guardian, election official, or poll worker will misinform a patient that they cannot or should not vote because of their condition. Mathis observes that service providers tend to disenfranchise people because “they don’t know what the law is or they’re so used to controlling people’s lives and don’t realize they don’t have the authority to do that with voting, but do it anyway,”

At other times, the person will assume they aren’t allowed to vote, or simply lack information on how to register and cast a ballot—a task that may seem overwhelming during a mental health crisis, or under the sedating effects of psychiatric drugs. There is also “confusion and lack of knowledge of services available and rights of people with disabilities,” says Imani Barbarin, Director of Communications and Outreach at Disability Rights Pennsylvania. “People are afraid to ask for assistance when they go to vote because they don’t know they’re entitled to it.”

These reasons are borne out in the stories of people Mad in America spoke with, who found themselves hospitalized for mental health issues in the days before an election and were unable to vote. Besides the frustration of being deprived of a civil right, they felt erased by staff and administrators’ seeming indifference to Election Day.

Maria Mangicaro recalls being involuntarily admitted to a private hospital in her home state of Florida in the fall of 2008.  “I’d never missed a presidential election…there was no doubt in my mind who I wanted to vote for, but there was no way to vote….There was no option,” she told Mad in America. “You couldn’t get out; you couldn’t get mail-in voting. It wasn’t an issue.”

She still sees this type of apathy at the state hospitals where her brother has been treated. During the 2016 election, she recalls, “it was not a consideration for him to have an option to vote… ‘it’s just gonna be another day for you.’” Since he had been an inpatient for two years, she notes, the hospital could have arranged something. For Mangicaro, “The voting issue is part of a larger picture of [psych hospitals] not providing for human dignity and participation.”

W.B. (who prefers her name be kept private) had a similar experience. Canvassing around Miami for her preferred candidate in the runup to the 2008 election, W.B. was involuntarily admitted to a Florida psych ward. The New York State resident believes she voted absentee that year, but was “outraged” to realize her fellow patients weren’t given that opportunity. “There was no signage about voting despite the presidential election coming up, no mention of it at all.…I realized what should have been a given was just not happening. I don’t want to say there was an obstructionist effort, it was just something no one was thinking about.”

These scenarios happen, researchers and advocates say, because mental health professionals and institutions fail to recognize or fulfill their legal responsibility to assist eligible citizens under their care to vote. Among other things, federal laws mandate that a person be allowed to vote privately and independently, and to choose someone to help them vote, such as a friend or poll worker.

Disfranchisement has happened even when hospitals are well aware of their patients’ voting rights. In 2004, at her psychiatrist’s suggestion, Kelsey Osgood of New York had unexpectedly but voluntarily admitted herself to a private hospital in New York City. It was almost Election Day. “When we arrived at the hospital, we got an orientation folder and there was a clear statement of how just because you are hospitalized for mental health, you cannot be denied the full rights of U.S. citizenship, including voting. I told them I strongly wanted to vote… And it clearly says in materials that I can be allowed to.”

Yet she was told that wasn’t possible. In a series of conversations she describes as “Kafkaesque,” she was told, “You’d have to discharge and readmit yourself so you can go off the grounds. I remember arguing quite a bit with them, but when they told me that it was too complicated, I stopped arguing.” She wasn’t sure how to get to the polls anyway: “Was I supposed to take the subway or call my parents?… I was looking forward to voting, having my say, and was pretty disappointed when it was made so difficult.” Osgood says the process turned her off voting altogether for several years, though she resumed doing so without incident.

Incidents like these, say researchers and disability rights advocates, are likely based on ignorance and not wanting to run afoul of other healthcare-related laws, such as HIPAA. Eliana Blum, who coauthored a psychiatric journal article on voting by people with serious mental illness with psychology professor Sarah Kamens, says, “There’s a misunderstanding of the laws, especially the Hatch Act, which confuses providers into thinking they have no right to inform severely mentally ill people about their right to vote.”

She points to a lack of online resources on how to implement the laws, adding, “It’s kind of crazy to be a mental health provider and yet not understand what you can and what you can’t help people with.”

Assumptions about people with mental illness labels have also been intentionally weaponized in illegal voter intimidation and suppression efforts. As documented in a report by the Brennan Center for Justice, poll watchers or election workers have attempted to challenge voting by long-term residents of state hospitals, group homes, and homeless shelters whose addresses “give away” their status as psychiatric patients.

During the 2010 midterm elections, for example, “witnesses observed volunteer poll-watchers targeting voters who lived at a psychiatric hospital in Burrillville, R.I. and questioning their eligibility to vote” without offering evidence to buttress their challenge. They also “pressured poll workers to ask [them] impermissible questions.” In another case, ballots of voters residing in a New Jersey psych hospital were illegally tossed out on the assumption that the people who cast them were incompetent.

Impact

Restrictive state voting laws have both intended and unintended impacts, leading an untold number of people who want to and are capable of voting to be denied that chance.  This trend has larger implications for both politics and social justice.

As Sarah Kamens, who studies the intersection of extreme emotional distress and structural marginalization at SUNY-Old Westbury, writes in her 2019 article with Blum, these barriers have meant “individuals with [severe mental illness] are less likely to vote than the general population.”

They’re also less likely to vote than people with other types of disabilities. Recent research by Rutgers University’s School of Management and Labor relations, which publishes a biennial report on voting trends among the disabled population, found that people with “mental or cognitive impairments” had the lowest voting rates of all people with disabilities in both the 2018 midterm and the 2016 presidential elections.

How many people are officially or unofficially disenfranchised specifically due to “mental illness” is impossible to say, because it’s not consistently tracked and reported to, or by, election officials. “It’s hard to locate people prevented from voting because, in practice, it happens at a hyperlocal level, county by county,” says NDRN’s Bishop. “We’re not convinced all the data is even getting there, or is reliable.”

However, a small window into the answer can be found in the U.S. Election Assistance Committee’s biennial Election Administration and Voting Survey 2018 (EAVS report), which includes a state-by-state breakdown of the number of people officially removed from the voter rolls for various reasons. For the 2018 general election, nearly 10,000 U.S. citizens were purged for “mental incompetence.”  At the top of that list are Florida (which disenfranchised more than 2,003) and Missouri (1,989).

But the numbers are likely to be far larger than that, due to the large numbers of people considered mentally ill who are in the U.S. prison system, according to Barbarin. Justice Department statistics indicate that between about 45% and 56% of federal and state prisoners, respectively, “met criteria” or “reported symptoms” of DSM diagnoses; for local jails, it was over 64%. In most states, inmates aren’t allowed to vote.  And nearly a dozen states permanently disenfranchise people with a felony or other serious conviction.

This has a disparate impact on African Americans, who are incarcerated at five times the rate of whites. All told, according to the nonprofit Sentencing Project, millions of former felons have been purged from voter rolls—and they may or may not be able to regain their rights.

Why Voting Matters

When examining the content, history, and impact of the barriers to voting for people with “mental illness,” it becomes clear that they are inextricably intertwined with the larger struggle for the rights of people with permanent or temporary disabilities, especially people of color. “Disability, whether physical or mental, disproportionately affects black and brown people and [voter restrictions] prey upon that,” says Barbarin. She cites a September 2020 ruling in Mississippi that tightened early-voting rules for people with pre-existing conditions that make them more vulnerable to COVID-19.

As the “mentally incompetent” statutes illustrate, whether or not individuals with mental illness labels identify as disabled, for legal and statistical purposes they have long been grouped with people with a variety of cognitive-behavioral issues (be it autism, dementia, or Down’s Syndrome). As such, they are both members of historically oppressed groups and protected classes. So their ability to vote has broad implications on both the individual and population levels.

Personal Agency

Research (and common sense) suggests that participating in voting can help reduce a psychiatrically labeled person’s outsider status and promote a sense of agency. “Our research found that people more involved in their community and civically active feel more empowered, happier, etc. The act of voting is a good health practice,” observes McKenzie.  This concept is part of the Citizenship-Oriented Care model promoted by Michael Rowe, Co-Director of Yale University’s Program for Recovery and Community Health. The concept, Okwerekwu and McKenzie write, “goes beyond clinical and personal models of recovery to recognize the impact of discrimination and disenfranchisement in populations with mental illness…[and] promotes social inclusion by placing an emphasis on the person’s rightful place in society.” Social inclusion means the person has access to “5 Rs”: the same rights, responsibilities, roles, resources, and relationships that the rest of society enjoys.

To that list add another “R”: Representation. “Voting is the method by which we select the people to decide upon the laws that govern our country, so efforts to remove people from this process are creating a system that will be less responsive to the needs of those people,” McKenzie says. In simpler terms: Nothing about us without us. Besides issues everyone cares about such as education and employment, people with lived experience of mental illness may have a strong interest in voicing their stand on healthcare and issues like AOT laws. The 2020 presidential candidates’ positions on the rights of people with mental health disabilities are a case in point: Joe Biden’s platform includes a pledge to strengthen the rights of people under guardianships, while Donald Trump has advocated “red flag” gun laws and more involuntary institutionalization.

To make this point, the National Disability Rights Network’s Voters with Disabilities Activated campaign is promoting videos in which people share stories on why voting is important to them. In the one below, Valerie Novack, a disability-policy researcher and advocate from Utah with lived experience of mental illness, talks about an issue high on her agenda: police reform.

Political Power

People with actual or perceived disabilities, including psychiatric diagnoses, are also a potentially powerful voting bloc. According to the Rutgers team’s most recent analysis, “more than 38 million eligible voters have disabilities. That’s more than 16 percent of the electorate….The disenfranchisement of even a small fraction could swing the election.” So could a new or reinstated ability to vote: The portion of potential voters among the 13.1% of Americans collectively described as having “cognitive” impairments who are “mentally ill” could be significant.

Candidates would do well to court this population, Douglas Kruse, the director of Rutgers’ Program for Disability Research, told The New York Times recently. “The partisan breakdown of people with disabilities was similar to the breakdown of the overall population, which means ‘both parties have an interest in getting people with disabilities out to vote.’”

Origins

If that’s the case, why do so many barriers to voting exist? They are relics of the historic marginalization of and myths about “the mentally ill” worldwide, experts say. Globally speaking, the U.S. is not an outlier in its voting restrictions. Various human rights treaties, including Article 29 of the UN Convention on Disability Rights, protect a universal right to suffrage. But a 2016 study in the International Review of Psychiatry found that more than one-third of laws and/or constitutions in 167 of 193 U.N. member states “deny all persons with any mental health problems a right to vote without any qualifier.”

There’s an assumption, borne out in stories like those above, that psychosocial disabilities always cloud rational decision-making—and that “sane” people always have good reasons for voting for their candidate. But most arguments for disenfranchising “mentally incompetent” people, or making them take tests, center less on capacity than vulnerability. The concern is that partisans could manipulate them into voting a certain way, or that a person assisting them could substitute their own preferences for the voter’s.

James McKenzie says he was “unpleasantly surprised to see all the negative comments from other physicians,” on his and Okwerekwu’s efforts to help hospitalized psych patients to vote in 2016. “They said that really it was an effort to influence the election, that it was kind of taking advantage of patients, or this was activism and physicians shouldn’t be activists.”

As such, those who support mental competency requirements view them as efforts to protect the integrity of elections. Bazelon’s Mathis disagrees: “There are quite a few states that don’t have [such laws], and there’s been no suggestion that the election systems in those states have lost their integrity.”

Attempts at voter manipulation do happen, of course. Reddit user Emily T., responding to MIA’s call for stories on the social media platform, reported that in a New York state psych hospital, staff helped the residents to vote: “They brought in booths and everything. However, all of the workers were very liberal, and we were discouraged from talking about anything conservative. We really weren’t supposed to talk about politics at all, but they didn’t enforce that rule when discussing liberal viewpoints.” And credible charges of guardians exploiting the individuals under their care have led to reform campaigns by both those under guardianship and the Federal government.

Modern arguments aside, the origins of early state “idiots and lunatics” laws had a more discriminatory intent. This history is documented in a University of Michigan Ph.D. thesis by Rabia Shahin Belt, who drew on social scientist Kay Schriner’s groundbreaking work on the social construction of disability, along with legal debate transcripts, court cases, newspapers, and congressional hearings, among other documents.

In the early days of the republic, states were working out which citizens would be qualified to vote—and which citizens wouldn’t. Originally, voting rights were based on economic considerations such as wealth or property ownership. But with the rise of early social-welfare institutions like almshouses and asylums, the criteria changed to focus on a person’s alleged character: those whom political leaders deemed independent, rational, and moral. This “created a regime of ‘compulsory ablemindedness’ for voting, and established lunatics and idiots as a pariah group for disenfranchisement,” Belt writes.

By the Reconstruction Era, two-thirds of the states excluded people so defined (and those under guardianship) from voting. She notes psychiatry’s role in this process of “creating legal categories that ensnared people in a subordinate relationship with the state.”

Similarly, according to the Brennan Center’s report on voter challenges, such barriers were “enacted and used to suppress newly enfranchised groups, like African-Americans and women…the history of discriminatory voter challenges casts doubt on the fraud-prevention arguments traditionally used to justify these laws.”

The legacy of this process echoes in the evolving definition of severe mental illness: As psychiatrist Jonathan Metzl documents in his book The Protest Psychosis: How Schizophrenia Became a Black Disease, the association of a schizophrenia diagnosis with angry, violent men emerged as a reactionary response to the Civil Rights and Black Power political movements of the mid-to-late 20th century. (Today, Black and Latinx mental health consumers are diagnosed with schizophrenia at rates three to four times higher than white ones.)

In the 19th century, Belt writes, local election results often hinged on a small number of votes, so losing politicians often used voter challenges to “[flush] out lunatics and idiots who voted” in hopes of changing the result. In turn, legal determinations of competence “gained outsized significance.” Since there was no codified way to identify the mad or “feebleminded,” election officials would, for example, use their own judgment or the fact of someone’s residence in an asylum to discount their vote.

More than 30 formal Congressional hearings were held to assess the sanity of suspect voters in disputed elections. As Shriner herself wrote in a 2002 article in Disability Studies Quarterly, this process also shaped current attitudes about the place of “the mentally ill” in society, leading to political marginalization and stigmatization.

Creating Change

Reforms are happening, if slowly. Restrictive language in state voting statutes has continued to be removed or revised. However, that doesn’t always lead to better outcomes, says Bazelon’s Mathis. For example, in 2007, New Jersey voters approved an amendment to remove “idiots and insane” language from the state constitution which, “though offensive… probably resulted in less disenfranchisement because no one knows what that means or how to implement it.” Today, the state still removes the “right of suffrage” from those “adjudicated…to lack the capacity to understand the act of voting.”

There have also been efforts at the state level to assist people with mental health diagnoses to participate in elections. In Connecticut, “Our state hospitals do a fantastic job registering people to vote,” says Kathy Flaherty, Executive Director of the nonprofit Connecticut Legal Rights Project, which provides legal services to low-income individuals with mental health conditions. She adds, “Our Department of Corrections also sent info about voting rights to all incarcerated people, explaining who was eligible to vote (pre-trial detainees) and who isn’t (more complicated).”

Increasingly, civil- and disability-rights advocacy groups are pressing the issue of voting by people with all types of mental disabilities. Until recently, those interviewed say, voting rights campaigns have focused mostly on high-impact, visible issues like fighting racial discrimination and ensuring accommodations like wheelchair accessibility at the polls (issues that often overlap). And the Mad movement has understandably emphasized issues like resisting forced drugging.

Today, the disability community is increasingly organizing and speaking out about political participation through efforts like #CripTheVote, which uses a social media hashtag to spur online conversations about candidates and relevant concerns. And peer-led organizations like Worcester, MA’s Kiva Centers are helping youth experiencing trauma, mental health, and substance-use issues to navigate the voting process for the first time, says Vesper Moore, the nonprofit’s Senior Director of Organizational Equity and Young Adult Supports.

Post prompting discussion on a #CripTheVote Twitter chat, October 11, 2020.

Because of their relative power within the system and the requirements of laws like ADA, healthcare professionals are perhaps best positioned to protect the right to vote of patients—with and without mental illness diagnoses. The Social Justice Coalition’s effort to facilitate voting at Cambridge Hospital during the 2016 presidential election, for example, established procedures used there again in 2018, such as placing signage on hospital walls, passing out fliers inviting patients and staff to participate, and arranging for proxies to ferry forms to and from the hospital. Despite some naysayers, their work has generated interest from other hospitals and clinicians, says McKenzie.

He points to PatientVoting.com, a nonprofit that aims to streamline the process of voting while hospitalized for any reason. Founded by Rhode Island emergency medicine resident Kelly Wong, M.D. in 2018, it is a clearinghouse for state-by-state voter information and forms. The site aims to popularize the use of Emergency Absentee Ballots. Little known but available in most states, the emergency ballots enable registered voters suddenly unable to make it to the polls (and who missed the absentee-ballot deadline) to participate in elections.

And individual hospital systems have been making an effort to assist psych inpatients who want to vote. For example, Massachusetts General Hospital initiated a cross-departmental program to enable proxy voting and even has a voter registration kiosk in its emergency department. The hospital is working with other healthcare systems to grow the program.

Some well-meaning hospitals still have work to do, though. Michigan resident Amanda Absher, who was an inpatient at a state psychiatric hospital during the 2018 midterm elections, recalls, “The ‘election’ was the rec therapist coming in one evening with absentee ballots and asking who wanted to vote. I said that I didn’t know what county I was registered in … and was told to fill out the ballot and they’d ‘figure it out.’ It was pretty clearly haphazard.” She noted that since residents weren’t allowed pens, “we were given the option of using jumbo crayon.”

What’s needed, experts say, is to raise awareness of voting rights among both the doctor and patient communities and to arrange the types of accommodations that can increase participation by people with psychosocial and other types of disabilities. One option is to expanding mail-in voting. As Lisa Schur, co-director of Rutgers’ disability research program, told The New York Times, “Research showed higher turnout among people with disabilities when states allowed no-excuse absentee voting.”

The American Bar Association’s recommendations include establishing mobile polling stations in long-term care facilities, educating staff about anti-discrimination laws, and explaining how to properly assist patients without substituting one’s own judgment for the voter’s intent. These types of systemic changes can help minimize any concerns about voter fraud, according to research on mobile polling in nursing homes led by Jason Karlawish, MD, Professor of Medicine and Medical Ethics at the Center for Bioethics at the University of Pennsylvania.

Ultimately, the same psychiatric label that can be used to legally remove someone’s voting rights can be wielded to help them legally exercise them, observes NDRN-PA’s Imani Barbarin. “I would encourage anyone with a pre-existing [mental health] condition to contact their local advocate agency…I want people to recognize that even if you don’t identify as disabled, you may be entitled to services under the ADA…and there are many people fighting for you to cast your ballot, and you’re not alone.”

Voter Resources
  • Citizens can visit their state or territory election board or Secretary of State’s website, or call the office to find out how to register, vote, and what type of disability accommodations are available.
  • List of Protection and Advocacy agencies by state: https://www.ndrn.org/about/ndrn-member-agencies/

*Colorado, Idaho, Illinois, Indiana, Kansas, Michigan, New Hampshire, North Carolina, Pennsylvania, and Vermont

 

 



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