Looking Ahead to the 2024 Election through a Lens on Mental Capacity and Voting

• Date: 01 March 2024

Bifocal Vol. 45 Issue 4

132

Looking Ahead to the 2024

Election through a Lens on

Mental Capacity and Voting

By George Shalloway

University of Maryland,

Carey School of Law ’24

Now that we are settling into 2024, the election cycle is

gearing up to be a landmark time in our nation’s

history with a presidential race unlike any we have

ever seen. Regardless of one’s political belief or party

aliation, an issue that may aect Democrats, Re-

1 Courtney Schiler, Note, Voting Rights for People with Diminished Mental Capacity, 48 Mitchell Hamline L. Rev. 657, 664

(2022).

2 U.S. CONST. amend, XIV §1; Id. at 664, 665.

3 Schiler, supra note 1 at 665.

4 See generally U.S. CONST. amend, XIV §1

5 Id.

6 Schiler, supra note 1 at 665.

7 Id. Also see generally Voting Rights Act of 1965, 52 U.S.C. § 10101.

8 See generally Americans with Disabilities Act, 42 U.S.C. § 12101.

9 See generally Help America Vote Act of 2002, 52 U.S.C. § 20901.

10 See generally Rehabilitation Act of 1973, 29 U.S.C. § 701.

11 See generally National Voter Registration Act of 1993, 52 U.S.C. § 20501.

12 Schiler, supra note 1 at 665.

publicans, and Independents alike is the right to vote

if one suers from mental incapacity. This article

will focus on the major issues regarding voting and

capacity as we are only a few short months away from

another presidential election.

Federal Laws Related to Voting and Capacity:

In our dual system of government with federal and

state, the federal laws regarding voting and capacity

stem from the Fourteenth Amendment of the Constitu-

tion and various legislative laws passed by Congress.1

The Fourteenth Amendment states, “[n]o State shall…

deny to any person within its jurisdiction the equal

protection of the laws.”2 Thus, if one meets the age

and residency requirements to vote in the jurisdic-

tion according to the Fourteenth Amendment’s Equal

Protection Clause, people with diminished mental

capacity cannot be prevented from voting.3 In addi-

tion to the Equal Protection Clause of the Fourteenth

Amendment, there is also the Due Process Clause of

the Fourteenth Amendment.4 The Due Process Clause

grants protections that, “[n]or shall any State deprive

and person of life, liberty, or property, without due

process of law…”5 In order to be legally declared

mentally incapacitated, one must be adjudicated men-

tally incapacitated by a judge. Since one must have a

hearing to be declared mentally incapacitated, the Due

Process Clause may be implicated.6

Congress has passed various legislation over the years

that relates to voting rights for those with disabilities

that may include mental capacity issues. The legis-

lation includes: Voting Rights Act (“VRA”)7, The

Americans With Disabilities Act (“ADA”)8, Help

America Vote Act (“HAVA”)9, Rehabilitation Act10,

and National Voter Registration Act (“NVRA”)11.

However, these laws all primarily focus on voting for

those with physical disabilities, not mental disability

or diminished capacity.12 Each law addresses dierent

specic issues. For example, the VRA banned using