The publication was released by the Center on Community Living, Training, and Research, which is a part of the Institute on Community Integration at the University of Minnesota’s College of Education and Human Development (UCEDD) in May 2000.
The stance of the U.S. Department of Education may not necessarily align with the viewpoints expressed by the authors. For more information, please reach out to Dr. Schriner at (501) 575-6417 or via email at kays@comp.Uark.Edu. Dr. Ochs serves as an Assistant Professor in the Department of Counseling and Psychology at Arkansas State University in Jonesboro. Dr. Schriner is the lead researcher for The Empowerment Project, a research initiative funded by the National Institute on Disability and Rehabilitation Research, which operates under the U.S. Department of Education (H133G990188). Additionally, Dr. Schriner holds positions as a Research Professor and Research Fellow at the University of Arkansas in Fayetteville. This Policy Research Brief is authored by Ph.D. Kay Schriner and Ph.D., J.D. Lisa Ochs. It examines the exercise of voting rights by individuals with intellectual and developmental disabilities, as well as the impact of current U.S. Laws and the obstacles they present.
Introduction
The self-determination philosophy advocates for the active engagement of individuals with intellectual and developmental disabilities in the civic life of their communities and country. They are encouraged to run for office, support their preferred candidates, communicate their opinions to elected officials, and participate in disability advocacy organizations. However, there are barriers to voting for people with disabilities due to existing election laws. These laws not only prevent individuals with disabilities from fully exercising their citizenship rights, but also create a powerful symbolic barrier. In many parts of this state and nation, individuals with developmental and intellectual disabilities lose their right to vote because they are under guardianship or deemed “mentally incompetent” according to state laws.
Finally, we will discuss the political and legal implications of laws. In order to underscore the similarities between these laws and historically devalued statuses based on race and gender, we will put them into historical context. Those who are interested in promoting opportunities for the involvement of this population in democratic governance should make use of this information. First, we will briefly review the state laws that disenfranchise individuals with developmental and intellectual disabilities.
The voting rights laws impacting individuals with intellectual and developmental disabilities can be located in the state constitutions and statutes that regulate electoral qualifications, rights and services for individuals with mental retardation and developmental disabilities, mental health legislation, and guardianship/conservatorship. Forty-four states have provisions that restrict voting rights either in their constitutions or statutes. Only Colorado, Indiana, Kansas, Michigan, New Hampshire, and Pennsylvania lack provisions that disenfranchise individuals in their constitutions or statutes.
1. The existence of these laws raises many questions about what the implications are for people with developmental and intellectual disabilities and when they were adopted. 2. In some cases, there is more than one term used in the same state to reference individuals with developmental and intellectual disabilities; other outdated or inappropriate terms such as “unsound mind,” “non compos mentis,” “insane,” “lunatic,” and “idiots” are commonly used in their constitutions. 3. (See table in the appendix for more detailed information) Many states either require or allow persons under conservatorship/guardianship to be prohibited from voting in their statutes or constitutions.
Table 1: States Utilizing Obsolete Terminology in Constitutions or Statutes
In this article, we will focus on state constitutions, as they describe in more detail the statutes that disenfranchise individuals with disabilities in 36 states. It is important to note that we will not describe these statutes in more detail due to space constraints.
Suffrage: A (Very) Concise Overview
According to Rogers (1992, p. 3), some individuals chose not to participate, while adult males who had paid taxes were able to vote freely. Over time, the colonies (and later, states) started using a tax-paying requirement as an additional or alternative qualification to property ownership. Even though social norms were so influential that these individuals seldom showed up at the polls, even if they met the property requirement (McKinley, 1905, pp. 35-37), electoral qualification laws typically did not address women, African Americans, and other individuals considered inferior. It was not until the property test was eliminated that the need to specifically disqualify them arose (Porter, 1918, pp. 20-21). As Porter points out, “[u]ndesirable individuals such as paupers, idiots, the insane, etc., Were effectively excluded by the property test. This approach eliminated the necessity for additional specificity when the colonies were established, as it was customary to define the qualifications for voters based on property ownership. Throughout American history, there have been numerous debates and conflicts surrounding voting rights.
During the nineteenth century, American representative government established laws that gave equal rights to groups such as these. The Voting Rights Act, along with the Civil War amendments and the Nineteenth Amendment, resulted in significant victories for civil rights and the suffrage of women. Throughout the second half of the twentieth century, women and African Americans fought contentious battles for voting rights, highlighting the importance of these groups. However, there were also forces that emphasized the exclusion of certain individuals, including people with disabilities, criminals, paupers, immigrants, African Americans, and women. These categorical exclusions were implemented by some states during the nineteenth century.
In the case of Wesberry v. Sanders, for instance, the court pronounced that the privilege to vote should not be curtailed by the states unless under exceptional circumstances. The U.S. Supreme Court has formulated its present-day perspective that the entitlement to vote should not be curtailed by the states unless under exceptional circumstances through an extensive series of judgments. Additionally, as political rights were being achieved in the legislature, the courts started to adopt a broader perception of voting.
In the election, the voice of citizens having the right to vote is more precious than even the most basic rights, which are illusory if the vote is undermined. We must live as good citizens in a free country, where laws are made by those who are elected. [1964] 17-18, U.S. 376 Sanders, v. Wesberry (
Disenfranchisement Based on Disabilities
In 1831, Delaware began to prohibit voting for insane and idiotic individuals, while in 1830, Virginia disqualified those with unsound minds. Massachusetts adopted a constitutional prohibition in 1821, and other states followed suit in subsequent decades. These measures disenfranchised individuals based on their disability. Vermont and Maine, under guardianship, and Maine, not “peaceable and quiet”, were also included in the language of the disenfranchisement laws. This review of state constitutions illustrates the history of state-sponsored voting rights discrimination. However, now there is a complete transformation of the legal and political aspects of voting, where voting is considered a fundamental right and privilege.
By 1860, the states of California, Delaware, Iowa, Louisiana, Maryland, Minnesota, New Jersey, Ohio, Oregon, Rhode Island, Virginia, and Wisconsin had all implemented the practice of disenfranchising citizens with disabilities, either upon their admission to the Union or through constitutional amendments. Numerous states had also embraced similar measures between 1840 and 1860.
After the Civil War, the majority of these states were located in the South and incorporated exclusionary wording into their newly established constitutions. By 1880, an additional 11 states (Alabama, Arkansas, Florida, Georgia, Kansas, Mississippi, Nebraska, Nevada, South Carolina, Texas, and West Virginia) implemented constitutional clauses that barred certain disabled individuals from voting.
In 1891, Kentucky revised its constitution to incorporate a ban on voting by “fools and mentally ill individuals,” and Missouri followed suit in 1945. Following 1880, Alaska (1959), Arizona (1912), Hawaii (1959), Idaho (1890), Montana (1889), New Mexico (1912), North Dakota (1889), Oklahoma (1907), South Dakota (1889), Utah (1896), Washington (1889), and Wyoming (1890) joined the Union with constitutions depriving individuals of their voting rights based on their disabilities.
In the midst of the 19th century, there was a significant rise in the number of states that implemented these regulations, as can be seen in Table 2. The inclusion of disenfranchising language by states upon joining the Union and the modification of their constitutions to incorporate exclusions were both influenced by this surge.
Table 2: Numbers and Percentages of States in the Union with Constitutional Voting Restrictions
In 1820, there were 23 states in the Union, with 2 (0.9%) of them having constitutional disenfranchising provisions. By 1840, the number of states in the Union increased to 26, and 5 (19%) of them had such provisions. This trend continued with 33 states in the Union in 1860, and 15 (45%) of them having constitutional disenfranchising provisions. In 1880, there were 38 states in the Union, and 26 (68%) of them had such provisions. The number of states increased to 45 in 1900, with 34 (76%) of them having constitutional disenfranchising provisions. By 1920, the number of states in the Union was 48, and 37 (77%) of them had such provisions. This pattern continued with 48 states in the Union in 1940, and 39 (81%) of them
The Louisiana constitution, adopted in 1859, originally excluded very few states from voting, only those who were considered insane or mentally incompetent. In 1974, the constitution was amended to provide for the exclusion of individuals with mental illnesses from voting. This amendment remained in place until 1845 when it was further amended to include individuals who were notoriously insane or idiotic. Similarly, in Oklahoma, the constitution of 1907 only allowed for the exclusion of “lunatics or idiots” from voting. However, this prohibition was recently repealed in Idaho in 1998, allowing individuals under guardianship to vote.
Reasons for an Exclusion Based on Disability
The debate focused more on African Americans and women, who were labeled as “incompetent” or “incapacitated” and excluded from adoption and guardianship. While proponents argued that individuals who were considered “incompetent” or “incapacitated” were incapable of self-governance, opponents claimed that there were no innate differences in preparation and experience. Various states believed that it was necessary to ensure that the electorate, including Native Americans, African Americans, and women, could independently and intelligently vote in government representative groups. This led to the development of laws to guarantee the competence of the electorate. Based on our research, there are two major reasons why these laws were developed. Firstly, states believed that it was necessary to ensure that people with disabilities had access to polling places and could participate in government representation. Secondly, they wanted to ensure that the electorate was intellectually and morally competent.
The portrayal of people with developmental and intellectual disabilities did not affect the perceptions of policymakers and the public in shaping the laws created by the governing bodies. In the early twentieth century and mid-nineteenth century, “insanity” and “idiocy” were paired with criminality, deviancy, social disorder, fear, concern, and pity. The responses and policies towards individuals labeled as “insane” or “idiots” were shaped by the nascent professions dedicated to their control, treatment, and care. As a recognition of the political and social problem during the nineteenth century, agencies with oversight responsibilities for disability policies were established, along with commissions created to provide advice to legislatures on disability policies. Additionally, asylums and “schools for idiots” were funded by the United States. Second, the recognition of “idiocy” and “insanity” began.
Individuals who were seen as morally and intellectually deficient were considered unfit to participate in democratic self-governance. Democracy was seen as too complicated for minds that were considered “demented” or “simple.” They could not gather or evaluate information about public policy matters or the qualifications of candidates for elected office. They were viewed as incapable of engaging in complex and reasoned political thinking. Laws justified labeling them as “incompetent,” placing them under guardianship, or considering them as “insane persons” and “idiots,” believing that they were unable to participate.
Many people probably thought it unnecessary for these individuals to participate and represent themselves in the political process. They could be legitimate proxies in the political system, acting as guardians for citizens who were targeted because of unfounded presumptions about their capacities and posed threats to order. By providing treatment and care for the unfortunate members of society, such as immigrants, African Americans, women, and people with disabilities, lawmakers could both protect the common good and exercise their authority as political representatives.
Laws Governing Voting Rights at the Federal Level
Federal laws established in this century protect against bias towards disabilities. Three federal laws address voting rights for individuals with disabilities. The Voting Rights Act of 1965 (amended in 1982) states that individuals who are visually impaired or have other disabilities can receive assistance from a person chosen by the voter, as long as it is not their employer, agent of their employer, or agent of their union. The Voting Accessibility for the Elderly and Handicapped Act of 1984 guarantees the right to vote in federal elections, but it narrowly defines persons with disabilities as those with a “temporary or permanent physical disability.” These individuals must be provided with additional aids, such as instructions printed in large font and information through telecommunication devices for the deaf.
The Americans with Disabilities Act (ADA), enacted in 1990, requires that public entities make reasonable modifications to their practices, policies, rules, and regulations to avoid discrimination based on disability. This includes providing auxiliary aids and services, removing architectural barriers, and ensuring accessible transportation and communication for individuals with disabilities. The ADA also addresses the essential eligibility requirements of programs and services, allowing individuals with disabilities to apply for and receive the same protections as those without disabilities. Additionally, the ADA extends its provisions to state and local governments, ensuring that all public activities, services, and programs are free from disability-based discrimination.
The discussion for this is most importantly that we have not found any laws in the state of ADA that challenge the ADA based on the discussed laws here. It has been disappointing because the ADA does not require state officials to ensure that all polling places are accessible or to ensure secret ballots for blind individuals. This is primarily because interpretations of the ADA’s anti-discrimination protections in the context of voting rights have mainly affected individuals with mobility impairments or blindness. Additionally, federal laws protecting voting rights have not been primarily affected by the application of the ADA. (Schriner, Batavia, & Shields, in press)
When viewed alongside the state laws that disenfranchise many individuals with developmental and intellectual disabilities, we see the ambivalence in our society towards political participation. The laws pertaining to voting rights, along with the electoral process, represent an important policy stance in ensuring the inclusion of people with disabilities.
The National Voter Registration Act requires agencies primarily engaged in serving people with disabilities to provide voter registration services to their consumers, despite some federal laws emphasizing the voting rights of people with disabilities. However, there has been no willingness to respect the voting rights of individuals with cognitive and emotional impairments, as states continue to disenfranchise individuals based on mental incapacity or criminal convictions. Congress’ willingness to view voting as a fundamental right for people with physical disabilities indicates that they recognize the flaws in these laws, although there are still several serious barriers to accessibility that people with disabilities may experience. Congress has required states to take steps towards ensuring that voters with disabilities will not experience barriers to accessibility, particularly in addressing the issue of physical accessibility. However, policymakers have taken a narrow approach that fails to appreciate the implications of state policies that exclude individuals based on perceived incompetence due to impairments and cognitive and emotional impairments. This approach does not fully draw out the implications of the Federal law that acknowledges the barriers of communication and physical accessibility that affect electoral participation and fails to appreciate the implications for the rights of the minority group that the Federal law is meant to protect.
Consequences of State Legislation
To ensure that the electoral process is not abused by those who would take advantage of individuals with severe intellectual impairments, it is necessary for everyone to undergo an objective competence test at the time of registration. In addition, there are other available measures, such as anti-bribery and anti-fraud laws, that states can implement. Shields & Ochs (1997), Schriner, and others argue that these exclusions must be narrowly-tailored and meet a compelling state interest. They demonstrate that states cannot argue that everyone should be excluded, nor can they argue that anyone who reaches a certain threshold should be excluded. To show how these exclusions infringe upon the right to vote, the state would need to subject them to strict scrutiny. Thus, any severe abrogation of the right to vote would be a fundamental violation. While it is the prerogative of the states to establish the qualifications of the electorate, these exclusions raise serious constitutional questions from a legal standpoint. The onerous nature of these state exclusions presents significant political and legal issues, as they conflict with voting rights laws affecting people with disabilities at both the state and federal levels.
As we have contended in other writings, these regulations seem to be founded on misconceptions, fables, and biases concerning the individuals being singled out. The political implications of states excluding certain citizens due to their categorization as disabled is concerning.
In the press, Shields, Ochs, and Schriner (in press) distinguished between individuals with intellectual disabilities and those who were mentally ill in society, just as they were becoming more segregated in the voting population. The political significance of this distinction was highlighted by the prejudice towards individuals with disabilities in electoral legislation. Individuals who would lose their right to vote were singled out based on disability-related clauses that states introduced in the 19th century, following a pattern similar to other personal characteristics. Bias against individuals with mental disabilities was just as prevalent as it was towards women, African Americans, immigrants, and certain religious groups.
Given the contentious history of our nation’s politics over the rights of other groups to vote, it is ironic that little critical attention has been paid to these disability-based exclusions. Voting is the ultimate act of American citizenship, and it makes one a member of the political community. The act of voting not only expresses the perspectives of the voter about what constitutes politically good common, but it also gives voice to the concerns and needs of the voter. Additionally, it ensures the necessary participation of those who are elected to represent them.
In order for the disability community to further enhance the quality of life for individuals with disabilities, it is crucial for individuals with disabilities themselves to have a stronger representation at the voting booth. Research indicates that the voting turnout among individuals with disabilities is 14-21 percentage points lower compared to those without disabilities (Kruse, Schriner, Schur, & Shields, 1999; Shields, Schriner, & Schriner, 1998). To safeguard the progress made and continue achieving policy objectives, individuals with disabilities must increase their participation in the electoral process. While the disability rights movement has achieved significant policy advancements in recent decades, it is anticipated that disability policy will become more contentious and polarizing in the future.
Policymakers in states should be encouraged to make necessary changes to ensure equal voting rights for people with disabilities. Many people with disabilities are unable to vote due to inaccessible democracy, outdated laws, and stringent voting-related competency tests. It is crucial for elected officials and candidates to pay attention to the concerns of individuals with developmental and intellectual disabilities, as the self-determination movement plays a key role in bringing awareness to these issues.
