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The United States needs a consistent set of testable criteria that captures the essence of what it means to have the “capacity to vote” – in other words, that determines whether a person understands the nature and effect of voting and can make a choice. The University of Pennsylvania’s Dementia Voting Project is currently testing an instrument that operationalizes the Doe standard. To assess whether a person understands the nature of voting, the person is asked to imagine that it is election day for governor of his or her state and is then asked how the people of the state will pick the next governor (the correct answer is that people will vote). To assess whether a person understands the effect of voting, the person is asked how it will be decided who won the election (the correct answer is that whoever gets the most votes wins). The individual is then presented with a short description of two candidates and is asked to choose one of the candidates. The candidate the person chooses is, of course, irrelevant. The critical issue is whether the person is able to express a choice.
Traditionally, there have been several points along the path to casting a ballot at which an individual with dementia might become disenfranchised. First, registration forms may ask for information – such as whether an individual is under guardianship – that causes the application to be rejected. Second, when a person attempts to register or vote, a voting official might doubt his capacity and refuse to supply a registration form or ballot. Third, staff at long-term care facilities or family caregivers may serve as gatekeepers, deciding whether to inform people of their right to vote and whether and how to assist them in registering or voting. Such gatekeepers might systematically assume that people with dementia lack the capacity to vote.
Prior to implementing a national standard, discussion is needed as to where the test of this standard should be implemented. In particular, it is unclear that such a critical decision should be delegated to poll workers acting in the heated, partisan environment of election day, rather than being entrusted to officials earlier in the process, at which point it is possible to have effective review of the decision to disenfranchise a citizen.
But even if the test is administered earlier in the voting process, fundamental problems still exist in implementing it. To begin with the very tests that diagnose dementia (such as the MMSE standard) are themselves far from foolproof and bear little relationship to the performance of competent voting. Thus it will be difficult to determine who in fact needs to take this proposed “capacity to vote” test. The broadest approach, screening all people over a certain age, would probably violate the 26th Amendment by discriminating on the basis of age. Furthermore, dementia is a progressive disease, so even if the “capacity to vote” test is taken successfully by a patient in April, that patient’s condition can worsen so that by November the original determination of competence may not hold true.
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