"A staggerint two-thirds of those with serious mental illness end up homeless at some point during their lives."
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However, several problems militate against the adoption of such reforms. First, a test of competence, even if straightforward in form, would be difficult to apply. Whether a person truly understands the voting process can almost never be determined objectively. A reviewer would have great discretion in determining what it meant to understand the voting process and whether the individual’s degree of understanding was sufficient. Also, it is unrealistic to assume that judges can carefully investigate each of an individual’s separate capacities, rather than make decisions based on a more general test of competence.
Second, competence testing may conflict with the Voting Rights Act. The Act prohibits states from disenfranchising a person who fails to “demonstrate the ability to…understand, or interpret any matter.” Competence tests fall within the language of this proscription. Congress outlawed such tests because they granted local officials broad discretion to determine whether an individual was fit to vote, and this discretion was often used to discriminate against particular groups.
Finally, adoption of a broad system of competence adjudications would erect a substantial barrier between citizens and the ballot box. Many people, whether cognitively disabled or not, might not be able to pass the understanding test. Others might simply be unwilling to try. The expansion of suffrage of recent decades would be partly undone if citizens perceived mental capacity tests to be intelligence or literacy tests and were therefore discouraged from voting.
Still, something has to be done to update the current system of managing franchise rights for people with dementia. State laws should be changed to conform to modern constitutional principles and to incorporate the test for competence enunciated in Doe v Rowe. Voting officials should take the necessary steps to educate the public regarding the applicable law, to provide guidance regarding assessment of capacity to vote, and to use a standardized instrument that is brief and simple to administer. Observational studies and surveys of potential voters and their caretakers are needed to develop rules for assisting voters who have dementia and other cognitive impairments. Studies may clarify which forms of voter assistance and redesign of ballots are especially helpful to cognitively impaired voters and, conversely, which techniques are ineffective or especially prone to abuse.
By living in a democracy, we are destined repeatedly to have to balance various rights. As we allow voting to become more accessible to people with cognitive disabilities, we also open the door to coercion and fraud in the voting process. But as America’s demographic profile continues to shift, with more and more voters at an age when dementia becomes a real concern, there is urgent need to develop a legal and ethical consensus on how to manage this new question of American democracy.
Justin Ross is a sophomore in Trumbull College