Idiots and insane persons: electoral exclusion and democratic values within the Ohio Constitution.

• Author: McHugh, James T.

1. INTRODUCTION

   Article V, section 6 of the Ohio Constitution declares that "[n]o idiot, or insane person, shall be entitled to the privileges of an elector." (1) It is the only official caveat to the otherwise general guarantee of voting rights for all citizens who have been residents within that state for at least thirty days with the exception of convicted felons--and that latter exception requires legislative action to be put into effect and can be eliminated as a source of exclusion in the same manner. (2) Therefore, unlike the status of a felon, the determination of a standard of "idiocy" and "insanity" is subject to executive determination and judicial interpretation. The fact that this language has been retained in its original form (despite a concerted constitutional revision process in 1975) (3) is, in itself, a curiosity--though Ohio is not the only state that has employed that language for the purpose of constitutionally restricting the franchise. (4) The fact that the Ohio government and legislature did not take advantage of a formal proposal to remove such language may be significant. Even more significant are the principles that it reflects, particularly relating to attitudes concerning the role of voting as part of the wider tradition of democracy within that state.

   Despite the legislative removal of the word "idiot" from the Ohio Revised Code in 2007, (5) the word not only persists (along with "insane") as a constitutional limit upon the electoral franchise but it also persists as a means of distinguishing political and cultural perceptions within Ohio society of the proper purpose and scope of democracy, the democratic process, and citizenship. (6) The persistence of that language within the Ohio Constitution document (despite the official recommendation of the Ohio Constitutional Revision Commission in 1975 that it be at least modified) (7) designates more than an anachronistic definition of mental disability. A recommended modification of article V, section 6 was not subsequently submitted to the amendment process, though the Ohio legislature eventually responded to part of the recommendation of the Constitutional Revision Commission in this area through a statute that requires an official adjudication of mental incompetence before a voter can be disqualified. (8) However, neither the commission nor the state legislature ever challenged or even addressed in a critical manner the underlying rationale for excluding a category of voters upon the basis of some form of mental disability nor has there been evidence of wider Ohio public support for such an assessment.

   That absence strongly suggests a consensus within Ohio that this sort of exclusion is, in principle, acceptable within the context of the state's electoral system and, more broadly, its democratic values. More significantly, it indicates a particular interpretation of democratic theory and values (arguably based upon a relatively parochial and exclusive definition of the concept) that differs from competing perceptions. This aspect of the issue is not generally examined, even though it is foundational to understanding any liberal democratic constitutional system such as the United States and its federal subunits, including the State of Ohio. (9) A factor that makes this subject especially significant is the multiple ideological interpretations of the concept of electoral participation.

   Therefore, this section of the Ohio Constitution, though seldom invoked and seemingly obscure, may reveal broad insights into the fundamental political and social values of that state. Political communities are reflected in their respective constitutional instruments (10) and Ohio is no exception. Article V, section 6 represents more than a particular electoral strategy. The extent to which the Ohio Constitution reveals fundamental attitudes about the role of the electoral franchise within its system of government is equally revelatory of the broader political culture of Ohio as it has evolved throughout its history.

2. FEDERAL DEFERENCE TOWARD VOTING RESTRICTIONS

   In general terms, federal courts have been willing to extend broad latitude to state voting restrictions of persons who are identified as having some sort of mental incapacity. This deference can be contrasted with the "strict scrutiny" test, developed under the Fourteenth Amendment to the U.S. Constitution, which has been applied to voting restrictions that affect certain other categories of persons. (11) Voting restrictions upon the basis of race, gender, or other societal classification have not been permitted by the federal courts (12) However, similar attempts to include people who have been identified as having a mental incapacity of some sort have been unsuccessful. (13)

   The seminal precedent in this area has been the 1985 U.S. Supreme Court decision in City of Cleburne v. Cleburne Living Center, Inc. (14) In that case (in which a special use permit was denied by a Texas city to the members of a group home because of the mental disability status of their domicile), the Court asserted that persons with mental disabilities do not constitute a suspect status or, even, a semi-suspect status, largely because this category includes people who are immutably different from other people in terms of demonstrable characteristics and capacities. (15) Justice White's majority opinion reflected the essence of that exclusion of this category of citizen from state action that otherwise would be considered discriminatory in relation to other citizens.

   [W]here individuals in the group affected by a law have distinguishing characteristics relevant to interests the State has the authority to implement, the courts have been very reluctant, as they should be in our federal system and with our respect for the separation of powers, to closely scrutinize legislative choices as to whether, how, and to what extent those interests should be pursued. In such cases, the Equal Protection Clause requires only a rational means to serve a legitimate end. Against this background, we conclude for several reasons that the Court of Appeals erred in holding mental retardation a quasi-suspect classification calling for a more exacting standard of judicial review than is normally accorded economic and social legislation. First, it is undeniable, and it is not argued otherwise here, that those who are mentally retarded have a reduced ability to cope with and function in the everyday world. Nor are they all cut from the same pattern: as the testimony in this record indicates, they range from those whose disability is not immediately evident to those who must be constantly cared for. They are thus different, immutably so, in relevant respects, and the States' interest in dealing with and providing for them is plainly a legitimate one. How this large and diversified group is to be treated under the law is a difficult and often a technical matter, very much a task for legislators guided by qualified professionals and not by the perhaps ill-informed opinions of the judiciary. Heightened scrutiny inevitably involves substantive judgments about legislative decisions, and we doubt that the predicate for such judicial oversight is present where the classification deals with mental retardation. (16) But Justice Marshall's dissenting opinion challenged the Court's underlying assumption that restrictions based upon mental capacity are neither impermissible, discriminatory, nor justified as a substantial state interest. (17) Public attitudes towards this category of citizen constituted, in his opinion, an irrational fear.(18) Indeed, rationales for such restrictions continued to be based upon assertions that could be classified as both naive and dangerous:

   During much of the 19th century, mental retardation was viewed as neither curable nor dangerous and the retarded were largely left to their own devices. By the latter part of the century and during the first decades of the new one, however, social views of the retarded underwent a radical transformation. Fueled by the rising tide of Social Darwinism, the "science" of eugenics, and the extreme xenophobia of those years, leading medical authorities and others began to portray the "feebleminded" as a "menace to society and civilization ... responsible in a large degree for many, if not all, of our social problems." A regime of state-mandated segregation and degradation soon emerged that in its virulence and bigotry rivaled, and indeed paralleled, the worst excesses of Jim Crow. Massive custodial institutions were built to warehouse the retarded for life; the aim was to halt reproduction of the retarded and "nearly extinguish their race." Retarded children were categorically excluded from public schools, based on the false stereotype that all were ineducable and on the purported need to protect nonretarded children from them. State laws deemed the retarded "unfit for citizenship." Prejudice, once let loose, is not easily cabined. As of 1979, most States still categorically disqualified "idiots" from voting, without regard to individual capacity and with discretion to exclude left in the hands of low-level election officials. Not until Congress enacted the Education of the Handicapped Act, were "the door[s] of public education" opened wide to handicapped children. But most important, lengthy and continuing isolation of the retarded has perpetuated the ignorance, irrational fears, and stereotyping that long have plagued them. (19) Despite that strong dissent, the majority opinion in this case prevailed and it is consistent with other federal decisions in terms of allowing enforced differential treatment of persons with mental disabilities. (20) By extension, it can be surmised that voting restrictions imposed upon such persons are uniformly permissible, provided that they conform to a demonstrable state interest. (21) The interests that are compelling in support of this...