Voting on The Spectrum: How Judges & Lawyers Can Encourage Enfranchisement & Accessibility for Voters with Autism Spectrum Disorder

• Author: Anna Butel
• Position: J.D., Georgetown University Law Center (expected May 2022); B.A., summa cum laude, Oklahoma State University (2013)
• Pages: 765-787

Voting on The Spectrum: How Judges & Lawyers

Can Encourage Enfranchisement & Accessibility for

Voters with Autism Spectrum Disorder

ANNA BUTEL*

You see, a still mind can still have great thoughts, and within even the quietest

person, there is a voice.

1

—Carrie Cariello

INTRODUCTION

People with disabilities make up more than sixteen percent of eligible voters in

the United States.

2

However, this population, particularly those with mental dis-

abilities, remains largely disenfranchised from the ballot box, with turnout per-

centages lagging well behind those of the general population.

3

People with

disabilities of all kinds “face more barriers in going to the polls” than those with-

out disabilities;

4

among them, lack of campaign engagement, “feelings of margin-

alization,” and accessibility barriers at polling places.

5

People with Autism Spectrum Disorder (“ASD”), a mental disability that

affects the social communication and interaction abilities of nearly 5.5 million

* J.D., Georgetown University Law Center (expected May 2022); B.A., summa cum laude, Oklahoma State

University (2013). Dedicated to ADG, my perennial inspiration, who lives in this difficult but beautiful ASD

reality; to my parents, whose unswerving perseverance carries us all; to my sisters, my empathetic and steady

partners in the quest for answers; and to Tyler, the multiplication of every joy and the shoulders to carry every

sorrow. © 2021, Anna Butel.

1. Carrie Cariello, Who Am I? A New Look at Autism, CTRS. FOR DISEASE CONTROL & PREVENTION, https://

www.cdc.gov/ncbddd/autism/features/who-am-i-new-look-at-autism.html [https://perma.cc/5VYL-YJJR]. Ms.

Cariello is an author, speaker, and mother of five, including 16-year-old Jack who has autism. See

carriecariello.com for more about her life and experience.

2. Elizabeth Pendo, Blocked from the Ballot Box: People with Disabilities, 45-3 ABA Human Rights

Magazine (June 26, 2020), https://www.americanbar.org/groups/crsj/publications/human_rights_magazine_

home/voting-in-2020/blocked-from-the-ballot-box/ [https://perma.cc/8ZBC-4L4U].

3. Id. In the 2018 midterm elections, people with disabilities were about five percent less likely to vote than

those without disabilities. However, among people with mental disabilities, this gap more than triples, meaning

people with mental disabilities are about seventeen percent less likely to vote than people without disabilities.

See Lisa Schur & Douglas Kruse, Fact Sheet: Disability and Voter Turnout in the 2018 Elections, RUTGERS

SCHOOL OF MANAGEMENT AND LABOR RELATIONS 2 (2019).

4. Abigail Abrams, Voter Turnout Surged Among People with Disabilities Last Year. Activists Want to

Make Sure That Continues in 2020, TIME (July 10, 2019 9:00 AM EDT), https://time.com/5622652/disability-

voter-turnout-2020/ [https://perma.cc/9WT9-KLFR] (quoting Douglas Krause).

5. Id.

765

adults in the United States,

6

face unique barriers to the polls. One such barrier

occurs when adults with ASD are placed under guardianship. A number of U.S.

states require the voting rights of these individuals to be automatically or pre-

sumptively stripped during the guardianship adjudication, meaning many adults

with ASD never have to opportunity to participate in the franchise.

7

For adults

with ASD who can and do make it to the polls, the realities of a typical polling

environment pose their own set of communication and information processing

challenges.

Recognizing the opportunity and urgency of enfranchising voters with disabil-

ities like ASD, the American Bar Association twice urged federal and state elec-

tion officials to take appropriate enfranchising measures to aimed voters with

disabilities.

8

Most recently, the ABA directed election officials and the judiciary

to ensure accessibility of “the electoral process and voting methods,” rid polling

places of “physical, technological, and administrative barriers,” and “use all

appropriate means to improve enforcement of voting rights for persons with dis-

abilities.”

9

Seven years prior, the ABA provided recommendations designed spe-

cifically to enfranchise individuals with mental disabilities.

10

Efforts, like the ABA’s, to enfranchise voters with disabilities appear to be

bearing promising results, as turnout of this population increased in the 2018

election.

11

But, the work of enfranchisement is far from complete, and judges and

lawyers have important roles to play in furthering its extension to the adult ASD

community. The ABA’s Model Code of Judicial Conduct directs judges to per-

form their duties “without bias or prejudice,” and expressly prohibits manifesta-

tions of bias or prejudice based on disability.

12

Judges may not make decisions

based on “negative stereotyping”

13

or public opinion.

14

Yet, in a number of states,

judges are permitted or required to strip people with mental disabilities like ASD

of their voting rights based on antiquated guardianship laws that are themselves

6. See Key Findings: First Estimates of the Number of Adults Living with Autism Spectrum Disorder in the

United States, CTRS. FOR DISEASE CONTROL & PREVENTION, https://www.cdc.gov/ncbddd/autism/features/

adults-living-with-autism-spectrum-disorder.html [https://perma.cc/ZU3D-7KN8].

7. See infra Part I(e).

8. See AM. BAR. ASS’N. HOUSE OF DELEGATES, Resolution on Accessibility of Electoral Process, Aug.

2014, https://www.americanbar.org/groups/public_interest/election_law/policy/14a113b/ [https://perma.cc/3ZYJ-

G99G] [hereinafter 2014 Resolution]; AM. BAR. ASS’N. HOUSE OF DELEGATES, Tr. of Proceedings, Aug. 13-14,

2007, https://www.americanbar.org/content/dam/aba/directories/policy/2007_am_121.pdf [https://perma.cc/ Y2AP-

JUYV] [hereinafter 2007 Recommendation].

9. 2014 Resolution, supra note 8.

10. See 2007 Recommendation, supra note 8, at 1-2.

11. See Abrams, supra note 4.

12. MODEL CODE OF JUDICIAL CONDUCT R. 2.3(A), (B) (2004) [hereinafter MODEL CODE].

13. MODEL CODE R. 2.3 cmt 2.

14. MODEL CODE R 2.4.

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