Voting is foundational to any democracy. In fact, “[v]oting provides citizens with an opportunity to make public decisions about policies that can impact their quality of life.” Thus, when the government denies specific subsets of the population the right to vote, it “becomes less democratic.” In the United States, the federal government permits states to disenfranchise people based on mental capacity. This Article will analyze the extent of disenfranchisement for those with diminished mental capacity (“DMC”) in the United States, including the variance in treatment among states, and it will recommend how states should amend their laws to re-enfranchise people with DMC as they are wrongly denied this aspect of citizenship, which further perpetuates mental health stigma. Given that citizens with DMC are wrongly being denied the right to vote, as described throughout this Article, state courts should adopt the model proposed by the American Bar Association (“ABA”) absent its third criterion regarding desire to vote.
Section I of this Article serves as the introduction. Section II describes the various terminology that has been used regarding mental capacity and provides a basis of understanding for terms that are used throughout this Article. Section III discusses the demographics of those impacted by disenfranchisement and why voting rights for this group should be protected. Section IV gives a brief overview of the federal laws that are implicated when disenfranchising people with DMC. Section V discusses the categories of state laws that disenfranchise those with DMC and the several states that have chosen not to disenfranchise this group.
Furthermore, Section VI briefly discusses how other electoral democracies around the world address voting rights for people with DMC. Section VII discusses the scope of the disenfranchisement of people with DMC by initially looking at when these laws first began in American history. Then the rationales for disenfranchisement will be discussed, followed by how those rationales manifest in society’s attitudes, which act as barriers to voting. Finally, this Section debunks society’s purported rationales and expose their weaknesses, thus prompting necessary solutions. Section VIII assesses the issues with measuring capacity and questions whether states should use capacity as a metric at all. Section IX will discuss various solutions offered by the literature, followed by recommendations for how states should proceed to bolster enfranchisement for those with DMC.