THE LAST FRONTIER OF DISENFRANCHISEMENT: A FUNDAMENTAL RIGHT FOR INDIVIDUALS WITH COGNITIVE DISABILITIES.

• Author: May, Hillary
• Position: NOTES

TABLE OF CONTENTS INTRODUCTION 695 I. DEVELOPMENT OF VOTING RIGHTS FOR INDIVIDUALS WITH COGNITIVE DISABILITIES 698 A. Historical Foundations of Election Administration 699 B. Legal Evolution of Individuals with Cognitive Disabilities 700 1. Historical Prelude 701 2. Change in Election Laws 702 3. A Legal and Societal Shift 702 C. Federal Legislation Missing an Opportunity for Change 703 1. Early Legislation 704 2. Modern Legislation 705 II. THE CURRENT STATE OF THE RIGHT TO VOTE FOR INDIVIDUALS WITH COGNITIVE DISABILITIES 706 A. Current State Policy 707 1. State Specific Determination 708 2. Laws Within Each State 709 B. Doe v. Rowe 710 C. American Bar Association Recommendation 712 1. Content of the Recommendation 712 2. Praise and Criticism 713 III. UNINTENTIONAL ISSUES OF THE PAST 715 A. Unique Legislation for Cognitive Disabilities 715 B. Screening Tests 717 IV. SLOW AND STEADY: AN INCREMENTAL AND PRACTICAL SOLUTION 719 A. An Overview 719 B. A Step Toward Uniformity 722 C. Avoiding Federalism Problems 725 D. As Applied to Modern Concerns: Voter Fraud 726 CONCLUSION 729 INTRODUCTION

In July 2008, National Public Radio producer David Rector moved from Washington, D.C., to San Diego to live with his fiancee, Rosalind Alexander-Kasparik. (1) One of the first things Rector did was register to vote. (2) After eight months in his new home, Rector suddenly suffered a tear in his aorta that resulted in severe brain trauma. (3) As a result, he was left unable to use his arms and legs and could no longer speak. (4)

In 2011, Alexander-Kasparik and Rector entered into a conservatorship, (5) a legal process wherein a citizen whom a court has determined to be civilly incompetent transfers decision-making authority to a conservator or guardian who will act in his or her favor. (6) Guardianship laws vary by jurisdiction, and the scope of the guardianship can range from complete coverage of almost all legal decisions to more limited guardianship, granting the guardian power over decisions such as handling of the conservatee's finances. (7) In Rector's case, the appointment of Alexander-Kasparik as his conservator resulted in the loss of something he deeply cherished: his right to vote. (8)

Seven years after his aortic tear, Rector uses a wheelchair to get from place to place. (9) He expresses himself using a variety of electronic equipment. (10) Rector collaborates with his fiancee on a comic book series, enjoys Star Wars, and wanted to vote in California's 2016 elections on November 8. (11) The California legislature recently passed new legislation presenting Rector with the opportunity to make that dream a reality, subject to a judicial determination restoring Rector's voting rights. (12)

Senate Bill 589, amending various sections of California Elections Code and Probate Law, became effective on January 1, 2016. (13) This law expands the number of California citizens with disabilities who can retain or regain their voting rights, beginning with the provision that "[a] person is presumed competent to vote regardless of his or her conservatorship status." (14) A California citizen is now disqualified from voting only if "the court finds by clear and convincing evidence that the person cannot communicate, with or without reasonable accommodations, a desire to participate in the voting process." (15) It is thanks to this change that, after initially having his request denied in August, Rector's voting rights were restored by the San Diego Superior Court in September, just in time to vote in the 2016 elections. (16)

Rector and the state of California are success stories in the long and arduous journey that is the fight for a fair determination of voting rights for citizens with disabilities, specifically those with cognitive disabilities. The fundamental right to vote is engrained in the American conscience, and historically has been expanded to include previously marginalized groups as this country's understanding of capability develops. (17) But a large segment of the population has been systematically denied the opportunity to participate in a robust democracy. In spite of California's success, a wide variety of vague and outdated laws remain in the constitutions and election laws of other states, making it difficult for these citizens to participate in the political process. (18)

In the past several years, this issue has been a topic of discussion on both a state and national level. (19) Some states, like California, have taken steps to update their laws and have provided the opportunity for a larger number of Americans with cognitive disabilities to vote. (20) On a national level, the Help America Vote Act, (21) the American Bar Association, (22) and the Americans with Disabilities Act (23) have intended to make voting more accessible. Although this movement has greatly enabled voters with physical disabilities to participate, skepticism remains about the propriety of granting an unconditional right to vote to those with cognitive disabilities. (24) Fears of unconstitutional testing and voter fraud cause lawmakers to hesitate for the sake of election integrity. (25)

Further, cementing an unconditional right to vote for people with cognitive disabilities is, in some sense, an exercise in line drawing: the spectrum of cognitive disabilities is vast and far from stagnant. Granting this right to vote requires an individualized review to guarantee that those with the capacity and desire to vote can do so. In this sense, sweeping definitions and broad, overly ambitious legislative schemes may leave gaps that, while well-intentioned, do not actually progress the movement for the voting rights of people with cognitive disabilities.

This Note proposes that the most practical and effective next step in effecting change for voting rights of Americans with cognitive disabilities is enacting national legislation that would incentivize states to implement education measures about voting rights for those with cognitive disabilities, with a particular focus on educating judges, guardians, and conservators. Part I discusses the historical evolution of the movement to grant the right to vote to people with cognitive disabilities, and how history, the developing view of disabilities in the American legal system, and the holes left by previous federal voting rights legislation all suggest that now is the time for real progress in this area. In Part II, this Note explores the current haphazard state of voting rights for those with cognitive disabilities, and the legal roadblocks that make it difficult to obtain uniform application of the law.

With this background in mind, Part III notes how previously offered solutions to the disenfranchisement of voters with cognitive disabilities run into problems with overbreadth, vagueness, and constitutional questions. Finally, Part IV outlines a potential solution through a federal education program. This Part highlights how the proposed solution may be used to provide a workable step toward solving current problems without running into common fears that are part and parcel to restoring the right to vote for people with cognitive disabilities, such as federalism concerns inherent in questions of state election administration.

1. DEVELOPMENT OF VOTING RIGHTS FOR INDIVIDUALS WITH COGNITIVE DISABILITIES

   The right to vote is fundamental to American democracy, but it has been abused in the past to exclude disfavored groups, resulting in a patchwork of legal provisions that often specifically grant the right to vote to certain previously alienated demographics. (26) As understanding of democratic principles has expanded, United States election doctrines have been adjusted and strengthened. However, people with cognitive disabilities have been consistently left behind. This mistake is particularly egregious when viewed in the context of the American relationship to voting: the right to vote is a form of communication and participation, and the exclusion of people with cognitive disabilities prevents those citizens from exercising their democratic right to make their voices heard.

   It is significant that many democratic countries in some way exclude citizens with cognitive disabilities from voting. (27) However, the convergence of voting history, the position of citizens with cognitive disabilities in the law, and previous voting rights legislation creates a modern-day environment that is ready to accept a solution to the disenfranchisement of these citizens.

   1. Historical Foundations of Election Administration

      The right to vote is an incredibly personal right, one that is unique and may not be given to another. (28) With regard to election administration, Article I, Section IV of the United States Constitution specifies that "[t]he Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators." (29)

      This provision was intended to clarify that election responsibility was first under the purview of the states, and rested only secondarily with Congress. The potential federalism implications that this clause presented did not go unrecognized even in the drafting of the Constitution, as this section came to be highly contentious throughout the ratification process. (30) However, fears were assuaged by framing Congress's power over election administration as a type of default power to be used only when necessary for the federal government to intervene, and not before. (31) In spite of this assurance, contentious voting affairs have raised federalism issues in the past, (32) although the majority of changes to individual election administration are, by and large, handled at a state level through state constitutions and election laws. (33)

      However, there are certainly instances where federal, rather than state...