Can a Person with Special Needs Under a Guardianship Still Vote?

Can a Person with Special Needs Under a Guardianship Still Vote?

In the United States, voting is one of the most important rights afforded to citizens. It may surprise you to learn that not every free citizen can actually exercise that right. Many people with special needs cannot vote because they have guardians, because they do not have the mental capacity necessary to vote, or because the equipment to help them vote is unavailable or difficult to access.

Under federal law, the states set most restrictions on voting. The Federal Voting Rights Act specifically allows states to deny the right to vote “by reason of … mental incapacity.” 42 U.S.C. § 1973gg-6(a)(3)(B). Illinois has no laws that specifically prevent people with special needs from voting. There are no tests of mental incapacity or reading and writing tests. People with special needs must register to vote, , meet all age, citizenship, and residency requirements, and understand the voting process.

In Illinois, a guardian should discuss the process of voting with the person with special needs and help him or her arrange appropriate accommodations if needed. For example, polling places should have direct responding electronic voting systems (DREs), usually touch screen voting machines with audio options. Illinois permits curbside voting, which allows voters to vote at inaccessible polling places. Voters may receive both “instruction”, meaning information about how to complete the ballot, and “assistance”, meaning casting a vote for a voter as directed by a voter. Vote by mail may be an option for some.

The Help America Vote Act of 2002 ensures that every voter will have the right to appropriate access to voting systems. Under the Act, every voting precinct must have a machine accessible to voters with special needs. It provides for grant applications by states that need federal funds to improve accessibility and train poll workers. Other federal laws ensure that rules regarding voting are applied equally to all voters and that voters with special needs are not singled out.

In many other states beside Illinois, being under a guardianship may restrict the right to vote. Activists and lawmakers are working to change these laws because many people under guardianships understand the voting process and want to participate in it but need a guardian to make other decisions for them. At guardianship hearings, judges rarely inquire into people with special needs’ understanding of voting or desire to vote. Instead, most focus on inability to meet basic needs or make certain types of decisions, such as financial decisions. Other states restrict voting if there is a specific finding that the person with special needs lacks the capacity to vote. Illinois is one of only a few states that have no specific restrictions on the rights of people with special needs to vote.

Again, in Illinois people under guardianships can vote with no particular restrictions besides the usual eligibility requirements. Still, guardians should ensure that their wards understand the voting process and have access to assistance and assistive devices as needed.

Rubin Law is the only law firm in Illinois exclusively limited to providing compassionate special needs legal and future planning to guide our fellow Illinois families of children and adults with intellectual disabilities, developmental disabilities, or mental illness down the road to peace of mind. For more information, email us at email@rubinlaw.com or call 866-TO-RUBIN.