The Right to Vote
of Persons Under Guardianship –Limited and Otherwise
Henry G. Watkins
October 11, 2006
I am opposed to the granting of suffrage to the incapacitated because I believe it would be a loss to them. They will lose those aspects of their tenderness and fragility by entering the world of politics, which is a form of war. As by that transformation they will not only lose the sweet and noble influence of their character, but will be in an arena being asked to take up weapons (the franchise) with which they are unfamiliar and unable to wield. Further, I understand that they don’t want to vote anyway. Into my judgment, sir, there enters no element of the inferiority of those with incapacities. . . . No sir it is not that the incapacitated are inferior to others, but it is that they are different; that in the distribution of powers, of capacities of qualities our Maker has created the normal person adapted to the performance of certain functions in the economy of nature and society, and the incapacitated adapted to the performance of other functions. The incapacitated don’t need suffrage because it is our duty to protect them. In the divine distribution of powers, the duty and the right of protection rest with the non-incapacitated.
This apocryphal discourse might have superficial
appeal. The argument characterizes as
protectors those who would deny rights for purportedly benevolent
purposes. Denying the right to vote to
those with some incapacity is to protect them from taxing themselves beyond
their natural limits, and from having their sweet and noble characters sullied
by the seamy process of politics. The
quoted remarks, on further reflection are seen as condescending and demeaning. And yet it seems that many of the sentiments
expressed are held by some who would summarily deny the right to vote to
persons with varying degrees of incapacity.
The above remarks are actually taken in large part from the Arizona
Constitutional Convention and involved debates on whether the franchise should
be extended to women who were described as not inferior – just different. Though freely edited, the speech is an
accurate depiction, and often verbatim representation of the statements of a
century ago. This article considers the
legal basis for denying those under guardianship the right to vote and argues
that the law does not support what is often the reality in some
From the time of its admission to the Union,
In sum, the Arizona State Constitution by declaring that
persons under guardianship were ineligible to vote intended to disenfranchise
those deemed incompetent and subject to guardianship at common law. This “plenary guardianship”
stripped wards of all their rights since they were considered incompetent or
incapacitated in all respects.
It is submitted that presuming those under limited guardianship are capable of voting is entirely consistent with the Arizona State Constitution and guardianship statutes. It is axiomatic that where there is a conflict between a state constitution or statute and rights guaranteed by the United States Constitution the state constitution or statute must yield to the United States Constitution. As noted above, there is no conflict between presuming that persons under limited guardianship are capable of voting and the Arizona State Constitution’s stated disenfranchisement of persons under guardianship. However, if there were a conflict, the Arizona State Constitutional provision purportedly denying the franchise must yield to the United States Constitution’s right to the franchise.
Constitutional protections of the right to vote apply to those under full guardianship as well as those under limited guardianship. That is, even persons under full guardianship must be accorded due process before the right to vote is taken from them. It is not enough to blithely state that these rights are taken because the State Constitution says so. There are individuals under full guardianship who are able to capably exercise their right to vote and the state before depriving such persons of this bedrock right must afford them notice of the intention to deprive them of this right and an opportunity to meet the claim that they cannot do so.
Voting is a fundamental right. Therefore, to conclude that a guardianship automatically disqualifies wards from voting without giving them notice of an intention to strip them of the right to vote and an opportunity to address the contention and evidence of incapacity would run afoul of the United States Constitution. While those incapable of exercising the right to vote may be declared ineligible to do so such a determination must be based on an individualized assessment. Any process that denies the right to vote must be narrowly tailored to address the legitimate state interests of denying the franchise to those lacking the capacity to exercise their right to vote while not extending this bar to those who may be capable of voting. The Equal Protection and Due Process clauses of the United States Constitution guarantee 1) the right to vote absent a strong showing this right cannot be capably exercised, 2) notice and a procedure that is fundamentally fair prior to depriving a person of this right, and 3) a narrowly tailored process to achieve this. Further, these rights are also conferred by Title II of the Americans with Disabilities Act (ADA), and § 504 of the Rehabilitation Act.
Until the year 2000, Article 7, § 2(c) of the Arizona State Constitution read as follows:
No person under guardianship, non compos mentis or insane shall be qualified to vote at any election, nor shall any person convicted of treason or felony, be qualified to vote at any election unless restored to civil rights.
This version of Article 7, § 2(c) was a part of the original
Arizona State Constitution which was approved by the voters November 5, 1912, becoming
effective December 5, 1912. However, it is clear that the guardianship
mentioned in the State Constitution was plenary guardianship as
existed at common law. The Arizona State
Supreme Court has considered what constitutes a guardianship within the meaning
of Article 7, § 2(c) the State Constitution.
Initially, in Porter v. Hall, the
court held that American Indians were disenfranchised by Article 7, §
2(c). That court reasoned that many
United States Supreme Court cases had described Indians as “wards” of the
government. And, Chief Justice Marshall
in Cherokee Nation v. Georgia, stated
that Indian tribes had a relationship to the
Two decades later Porter v. Hall was revisited and
reversed in the case of
The term ‘guardianship’has a very
definite meaning, both at common law and under the
In 2000 the following changes were made to Article 7, § 2(c):
guardianship, non compos mentis or insane [who is adjudicated an
shall be qualified to vote at any election, nor shall any person convicted of
treason or felony, be qualified to vote at any election unless restored to
The term “guardianship, non compos mentis, or insane” was stricken and replaced by the term “who is adjudicated an incapacitated person” as a result of Proposition 101, passed on the November 7, 2000, General Election Ballot. The Arizona Secretary of State’s booklet promulgating this Ballot Proposition, at page 29, sets forth the following brief explanation:
Analysis by Legislative Council
Proposition 101 would amend several §s of the Arizona Constitution to modernize certain out-of-date language including references to people with disabilities.
101 would also amend the Arizona Constitution to change certain voting
requirements to conform with the United States Constitution and other federal
laws. Proposition 101 would change the
minimum voting age to 18 and eliminate the one-year residency requirements for
See also, Arizona State Constitution, Article 7, § 2, Annotated, which notes that this change was “modernizing language regarding disabilities and voting eligibility.” It is also there noted that this change was approved by the electors in the November 7, 2000 General Election as proclaimed by the Governor on November 27, 2000”.
This amendment was placed on the ballot as a result of House Concurrent Resolution 2004 (2000).
Arizona Revised Statutes 14-5101(1) defines an “incapacitated person” as:
Any person who is impaired by reason of mental illness, mental deficiency, mental disorder, physical illness or disability, chronic use of drugs, chronic intoxication or other cause, except minority, to the extent that he lacks sufficient understanding or capacity to make or communicate responsible decisions concerning his person.
The concept of “incapacity” within the meaning of the state’s guardianship provisions has a long history. The courts have taken pains to find a proper balance of competing interests in guardianship cases. That is, on the one hand, the court could invoke the extreme remedy of guardianship which, in turn, deprived individuals of their right of self determination in the most basic areas of their lives, e.g., where to live, with whom to associate, when to come and go. On the other hand, failure to order guardianship could imperil those individuals who lacking such protection would face dire and possibly life-threatening situations. This challenge was made all the more difficult given the fact that one was either placed totally under guardianship or not – there was no middle ground.
The evolving standard of whether guardianship is warranted
The standard of who is subject to the constraints of
guardianship, with its attendant deprivation of the ward’s rights, has been an
evolving one. However, as noted, until
2003 there was no express limited guardianship statute in
The contours of guardianship and the resultant authorities in the guardian and the ward evolved over the years. The case of Harrison v. Laveen, noted that the guardian has custody of the person of the ward and the ward is under duty to live where the guardian tells him to live. However, later it was held that one under guardianship and unable to manage his affairs could nevertheless have the intention and the capacity to change his state of domicile without the consent of the guardian.
That one is under guardianship does
not prevent him from performing the acts of which he is in fact capable, Anderson v. State, 54
The court’s statement “[t]hat one is under guardianship does not prevent him from performing the acts of which he is in fact capable,” was prescient in that it expressed a principle that was not much followed at that time, but is the prevailing rule today.
Further complicating the guardianship process is that courts and practitioners for a variety of reasons tend to prefer plenary guardianship over limited ones. Among other things, plenary guardianships will unlikely create further litigation as to whether the guardian exceeded his authorities, and will not require the guardian to return to court seeking expanded authorities. Thus, the simple fact is there are situations where a plenary guardianship will be ordered despite the ward retaining the capacity to exercise certain basic rights, including the right to vote. Specifying retention of the right to vote in letters of guardianship will not impede the guardian’s exercise of required duties. At the same time where the ward retains the capacity to vote that right should be expressly reserved. This is a matter of constitutional and civil rights. Further, this right implicates issues of self-determination and human dignity.
[The] determination that an adult cannot make ‘responsible decisions concerning his person’ and is therefore incompetent, may be made only if the putative ward’s decision-making process is so impaired that he is unable to care for his personal safety or unable to attend to and provide for such necessities as food, shelter, clothing, and medical care, without which physical injury or illness may occur.
In re Boyer thus
determined that the loss of autonomy resulting from placing persons under
guardianship could be supported only upon a showing that without such
protection their personal health or safety would likely be jeopardized. This case is so important in assessing the reach
and construction of
“Incapacitated person” means any person who is impaired by reason of mental illness, mental deficiency, physical illness or disability, advanced age, chronic use of drugs, chronic intoxication, or other cause to the extent that he/she lacks sufficient understanding or capacity to make or communicate responsible decisions concerning his or her person.
The Utah provisions authorize court appointment of a guardian if the court is satisfied that the person for whom a guardian is sought is incapacitated and that the appointment is necessary or desirable as a means of providing continuing care and supervision of the person of the incapacitated person. Appellant, Nelda Boyer, was found by a jury to be an “incapacitated person” by a “preponderance of the evidence.” A guardian was appointed and no limits were set on the guardian’s powers.
Ms. Boyer appealed this decision, challenging among other things, the constitutionality of two sections of the probate code dealing with the appointment of guardians for incapacitated persons. The court defined the issues as follows:
§ 75-1-201(18) defines “incapacitated persons” as:
… any person who is impaired by reason of mental illness, mental deficiency, physical illness or disability, advanced age, chronic use of drugs, chronic intoxication, or other cause (except minority) to the extent that he lacks sufficient understanding or capacity to make or communicate responsible decisions concerning his person. (emphasis added.)
§ 75-5-304 authorizes appointment of a guardian by the court and provides in part:
Appellant contends that because a determination of incapacity may result in a deprivation of such fundamental rights as the right of privacy, the right to travel, and the right to make various personal decisions, the statutory provisions must meet due process requirements and contain well-defined standards. The argument is that the term “responsible decisions concerning his person,” as used in § 75-1-201(18), is unconstitutionally vague and overbroad and that, because of the potential infringement of individual liberties, the statutory scheme is deficient in not incorporating the principle of the “least restrictive alternative.” Finally, appellant argues that due process is violated because a finding of incompetency may be based on a preponderance of the evidence rather than clear and convincing proof.
In beginning its analysis the court noted that there should be no undue intrusion on the ward’s basic rights:
Necessarily, there must also be sufficient flexibility to deal with the infinite variety of problems presented in guardianship cases, and yet sufficient limitations on the discretion of both courts and guardians to insure that the legitimate purposes of the statute will be effectuated without unjustifiable intrusion upon personal liberties.
In discussing the problems inherent in trying to apply the term “capacity to make or communicate responsible decisions concerning his person,” the court notes that use of the word “responsible” focused on the content of the decision rather than on the ability of the individual to engage in a rational decision-making process. After an entertaining and insightful discussion of the implications of various interpretations of the word “responsible” the court stated that is was possible to construe the term “responsible decisions” more narrowly so as to effectuate the statutory purpose and avoid constitutional difficulty.
The term “responsible decisions” is reasonably susceptible of a construction giving effect to the statute’s basic purpose without improperly impinging on an individual’s liberties of self-determination, right of privacy, right to travel, or right to make one’s own educational and medical decisions. . . . The benign purposes of the statute can be effectively accomplished without improperly trenching on those liberties by defining “responsible decisions” in terms of specific, objective standards for determining the ability of one to care for oneself. (emphasis added).
The court in the emphasized language above, lists some of the basic rights which could not, consistent with the Constitution, be restricted absent a clear showing the individual was incapable of exercising those rights. In other words, it would not be constitutional to conclude that simply because one was incapacitated in one area of his life that he was likewise incapacitated in all others.
The court proceeded to define the standard by which one’s decisions would be assessed in determining whether a guardian was necessary. It held that a determination that an adult cannot make:
[R]esponsible decisions concerning his
person, and is therefore incompetent, may be made only if the putative ward’s
decision-making process is so impaired that he is unable to care for his
personal safety or unable to attend to and provide for such necessities as
food, shelter, clothing, and medical care, without which physical injury or
illness may occur. (Footnote omitted) See
Fazio v. Fazio, 375
Next addressed was appellant’s argument that the statutory provision specifying the powers of the guardian is unconstitutionally overbroad because “the full scope of powers which may be, and in this case were, conferred on a guardian are not necessary in specific cases.”
In this case, the least restrictive alternative, is closely allied with the more general overbreadth issue[FN6] and, therefore, we address both together. Appellant specifically contends that the State must adopt the alternative least restrictive of the alleged incompetent’s liberty and that the Utah procedure sweeps too broadly in permitting a guardian to be invested with wide-ranging powers over the personal decision of one who has no need of complete supervision, although there may be a need for assistance in handling specific aspects of his or her personal affairs.
The court continued:
[A] court in appointing a guardian must consider the interest of the ward in retaining as broad a power of self-determination as is consistent with the reason for appointing a guardian of the person. [footnote omitted]
In re Boyer stated
that the nature and extent of powers to be conferred on a guardian is for the probate
court to decide. The
A guardian of an incapacitated person has the same powers, rights, and duties respecting his ward that a parent has respecting his unemancipated minor child . . . except as modified by order of the court … 
The court noted that while the powers conferred on a guardian may be broad, the court is authorized to tailor the powers of a guardian to the particular needs of the ward.
In appointing a guardian, the court
should state with particularity the powers granted, unless the full scope of
the statutory authorization is warranted.
The process should be individualized and based upon careful
consideration of the particular need for supervision. Cf. In
re Roe, 383 383
A challenge was made to the
In a brief decision the court ruled, first that because of the loss of liberty involved in appointing a guardian and the stigma associated with a judicial finding of incompetence “the need for appointment of a guardian must constitutionally be by clear and convincing evidence.”
Next, in assessing whether the definition of an incapacitated person was vague and overbroad, the court “to avoid any constitutional danger” adopted the construction of “incapacitated person” set forth in In re Boyer. That is, in deciding if one can make “responsible decisions concerning his person” the issue was whether:
The putative ward’s decision-making process is so impaired that he is unable to care for his personal safety or unable to attend to and provide for such necessities as food, shelter, clothing and medical care, without which physical injury or illness may occur.
Finally, the court responded to the argument that ARS 14-5312 which lists the powers of the guardian, is overbroad because it grants powers (and deprives the ward of rights) that may be unnecessary in any given case.
Because the statute by its terms
permits these powers to be modified by the trial court and because no request
for modification was made in this case, we reject the argument.
Did Reyes Wrongly Suggest that Limited
Guardianships Were Then Available in
Reyes appears yet to be good law in
Reyes has been cited for the proposition that a limited guardianship can save an otherwise plenary guardianship from constitutional infirmities. It is arguable that the court’s power to limit the guardian’s powers does not mean that powers withheld from the guardian are automatically reposed in the ward. Rather, the guardian would have to seek leave of the court for such powers not expressly conferred.
Whether Reyes’ suggestion
that limited guardianships were available in
The type of guardianship requested. If a general guardianship is requested, the petition must state that other alternatives have been explored and why a limited guardianship is not appropriate. If a limited guardianship is requested, the petition also must state what specific powers are requested.
Also, the amendments provided that:
In exercising its appointment authority pursuant to this chapter, the court shall encourage the development of maximum self-reliance and independence of the incapacitated person.
The court may appoint a general or limited guardian if it is satisfied by clear and convincing evidence that 1) the person for whom a guardian is sought is incapacitated, 2) the appointment is necessary to provide for the demonstrated needs of the incapacitated, and 3) the person’s needs cannot be met by less restrictive means, including the use of appropriate technological assistance. The legislation makes clear that in seeking to protect individuals the least restrictive approach that serves that purpose must be taken.
Representative Hershberger, one of the bill’s sponsors testified before the Arizona House Committee on Judiciary as to the intent of the limited guardianship provisions as follows:
Mr. Gray [House Judiciary Committee member] asked the difference between a full guardianship and a limited guardianship. Representative Hershberger explained that there is a national trend to allow individuals with disabilities the maximum amount of control over their life. He said there are different kinds of disabilities. A certain citizen might have some disabilities in some areas but be able to participate effectively in decisions for their life in other areas. The courts will determine that they may maintain those decisions and a guardianship will be appointed for other things such as finances. (emphasis added).
By their express Terms Reyes and the Limited Guardianship Provisions Retain in the Ward the Right to Vote Absent a Determination the Ward Lacks The Capacity to do so
To conclude that persons under limited guardianships were automatically ineligible to vote would emasculate the basis for the holdings in Reyes and Boyer. As discussed above, the Reyes and Boyer courts construed the guardianship provisions so that they could be applied in a constitutional manner. Essentially, the courts ruled it necessary to retain basic rights in the ward where there was no showing the ward was incapable of exercising those rights. The holdings of these decisions, as well as the clear language of the limited guardianship provisions, is that unless incapacity to exercise basic rights is shown wards retain powers of self-determination and those basic rights. It would fly in the face of Reyes and the limited guardianship provisions to now argue that one with the demonstrated capacity to vote will not be allowed to do so because of an overly broad reading of the term “guardianship” in the state constitution. The very purpose of Reyes and Boyer was to preserve the constitutionality of these statutory schemes by expanding the rights of wards. To refuse to even consider the capacity of a ward to vote would do violence to the express language of Reyes and the limited guardianship provisions.
Other States’ Constitutional Disenfranchisement Provisions
Other states with constitutional disenfranchisement
provisions similar to
The appeal from the probate court’s determination in Hurley did not challenge the court’s construction of the state’s constitutional provision in question. Rather, the primary issue was whether plaintiff prevailed in the action below so as to be entitled to attorney fees. The appellate court stated that the question whether one under limited guardianship could be denied the right to vote was a question of constitutional dimension. The court further noted that based on its prior decisions any limitations on the right to vote must be narrowly construed. Further, the probate court’s ruling that a limited guardianship did not fall within the ambit of the term “guardianship” in the state constitution was held to be a probable result but not one so devoid of substance as to preclude an award of attorney fees.
Prye v. Carnahan,
considered the effect of the
Thus, even without reaching the issue whether Arizona
Constitutional disenfranchisement provision for those under guardianship
squares with the United States Constitution’s protections the better view is
If the Limited Guardianship Provisions were Construed to Erect an Automatic Bar to Voting, this Would Run Afoul of the United States Constitution
As discussed above, the courts in Boyer and Reyes constructed limited guardianships by statutory interpretation. These mechanisms were constructed to restrict the powers of the guardian and retain in the ward maximum self-determination and the exercise of their basic rights and liberties consistent with their capacity to do so. This position was taken because as the courts noted, to do otherwise would likely render the guardianship statutes unconstitutional. The above discussion shows that the Arizona State Constitution does not disenfranchise wards under limited guardianship. However, were the provision in question construed to apply to limited guardianships such a construction could not survive constitutional scrutiny.
Harrison v. Laveen, discussed above, stressed the fundamental right to vote.
In a democracy suffrage is the most basic civil right, since its exercise is the chief means whereby other rights may be safeguarded. To deny the right to vote, where one is legally entitled to do so, is to do violence to the principles of freedom and equality.
Likewise the Supreme Court in Dunn v. Blumstein, stated that the right to vote is a “fundamental political right . . . preservative of all rights.” The Court cited a litany of cases for the proposition that citizens have a constitutional right to participate in elections on an equal basis with other citizens in the jurisdiction. Before the right to vote can be restricted, “the purpose of the restriction and the assertedly overriding interests served by it must meet close constitutional scrutiny.” Further, provisions affecting constitutional rights must be drawn with precision and must be “tailored” to serve their legitimate objectives so as to limit the burden on the exercise of those constitutional rights.
An instructive case in considering
Another judge, after denying the request of another plaintiff in the case to be placed under limited guardianship, denied an unopposed motion to allow her to vote. That motion was supported by an affidavit which “strongly suggested … [she] understood the nature and effect of voting such that she could make an individual choice about the candidates and questions on the ballot.” However, the judge denied the motion writing thereon that it was denied under the provisions of the Maine Constitution that barred persons under guardianship for mental illness from voting. Thus, probate judges held differing views on the meaning of the constitutional provision in question.
The court in Doe v. Rowe stated that in no case was notice provided to plaintiffs that the guardianship proceeding could deprive them of the right to vote, and that there was no specific consideration of plaintiffs’ capacity to vote.
Despite the differing views of the probate judges the state defendants, during the litigation, changed their position on the effect of the provisions in question and asserted that probate judges not only have the authority to specifically consider any mentally ill ward’s right to vote, but that they have a duty to specifically consider an individual’s capacity to vote and to disenfranchise only those who are found to lack the requisite capacity to understand the nature and effect of voting. The court noted that there was no requirement that the probate judges follow this practice, and that it appeared that a ward’s right to vote was dependent more on the individual probate judge hearing the case than on the ward’s actual capacity to understand the nature and effect of voting.
The court then considered and rejected state defendants’ arguments that the constitutional voting bar did not operate arbitrarily. The provision did not purport to bar from voting persons with some other incapacitating conditions. Further, it was left to the probate judge to list the basis for the guardianship, and if any condition other than mental illness was listed the Secretary of State did not view that as a bar to voting.
Evidently, believing they were losing ground on the constitutional arguments, the state defendants again changed their position and urged the court to issue a judgment declaring that plaintiffs:
[R]etain the right to vote unless that right has been expressly suspended by a judicial officer in a guardianship proceeding at which it has been determined that the ward lacks the mental capacity to understand the nature and effect of the act of voting.
Declining the invitation to issue such a judgment, the court
stated no existing guardianship order included an express suspension of the
right to vote and the effect would be to enable all persons under guardianship
to vote whether or not they lacked the capacity to understand the nature and
effect of voting. Also, the court
stated that it was questionable whether the
Addressing the due process issue, the court began by
observing that the denial of the right to vote is a denial of a fundamental
liberty and that in such instances an individual is entitled to basic
procedural protections that will ensure “fundamental fairness.” Employing the balancing test of Mathews v. Eldridge,
the court examined the sufficiency of the procedures used to disenfranchise
Maine voters by weighing 1) plaintiffs’ interest in participating in the democratic
process through voting; 2) the risk of erroneous deprivation of the right to
vote under the procedures used by the state, and 3) the state’s interest,
including any extra administrative or financial burden on the state which may
be imposed by requiring additional procedures. The court first found that the lack of notice
that guardianship proceeding could strip one of the fundamental right to vote
violated a rudimentary demand of due process.
Further, it was held that the lack of notice led to an inadequate
opportunity to be heard with the resultant risk of mentally ill persons subject
to guardianship proceedings being disenfranchised regardless of their capacity
to understand the nature and effect of voting.
Finally, the court found it would not be overly burdensome on the state
defendants to elevate the right to vote to the same level of notice and
opportunity for hearing that is provided for all other aspects of guardianship,
e.g., their individual housing, medical and social needs. Accordingly, the court found
In its Equal Protection discussion the court stated that the
state’s restrictions on voting is subject to strict scrutiny because it
restricts a fundamental right. Further, the state must show that denying the
vote to some citizens while granting it to others promotes a compelling state
interest. The parties in Rowe v. Doe agreed that
The court discussed the state defendants’ various interpretations and found no plausible interpretation could spare the voting restrictions under its Equal Protection analysis. The court then offered absurd examples of persons would be denied the vote due to being under guardianship because of mental illness. One example was a person placed under guardianship because of an eating disorder could be disenfranchised because they could be considered to be suffering from a form of mental illness. The court also noted that it has been recognized that “[i]t is a common phenomenon that a patient functions well with medication, yet, because of the mental illness itself, lacks the discipline or capacity to follow the regime the medication requires”. Thus, it may make sense to have such a person under guardianship to ensure they take their medications. However, it doesn’t logically follow that such person by virtue of being under guardianship is incapable of understanding the nature and effect of voting. The court stated:
In short, under any reasonable definition, “mental illness” cannot serve as a proxy for mental incapacity with regards to voting. (Citations omitted).
The court noted that the state defendants were subject to
suit under Title II of the Americans with Disabilities Act (ADA) and § 504 of
the Rehabilitation Act. Rejecting
sovereign immunity arguments as regards the
Thus, defendants were found to have violated the
Finally, there is no consistent or rational scheme of
determining which Arizonans under guardian are rendered ineligible to
This amendment is found in a provision entitled “Inpatient treatment; rights and duties of ward and guardian”, and reads as follows:
The court may decide that the ward’s right to retain or obtain a driver license and any other civil right that may be suspended by operation of law is not affected by the appointment of a guardian. (emphasis added).
Those civil rights suspended by operation of law are listed, inter alia, at ARS. 13-904. That provision states that a conviction for a felony suspends the civil rights there enumerated, the first of which is “the right to vote”.
The legislative history is sparse in explaining the intended reach of this provision. For example, was it to apply only to inpatient wards at treatment facilities? If so, why expressly give judges the power to order that inpatient wards retain the right to vote and not wards in a residential or group setting? Did the legislature assume that judges in non-inpatient guardianship cases already had the power to order the retention of the right to vote for wards? Or is this provision, despite being included in the provision addressing inpatient wards intend to apply generally to wards? If the intent was to give courts the power to retain voting privileges for inpatient wards but not others this would run afoul of the Equal Protection analysis in Rowe v. Doe and would seem to have no rational basis for excluding other wards ostensibly more capable of voting.
One might argue that ARS 14-5312.01(N) was intended to
address the situation in Manhattan State
Citizens’ Group, Inc. v. Bass,
It seems clear that one may not be denied the right to vote based on status –Rather an individualized assessment of the person’s capacity to vote is required
One earlier case that warrants mention is Manhattan State Citizens’ Citizens’ Group,
Inc. v. Bass.
This case involved a challenge to a
The court then explained that competency proceedings concern
the ability to conduct one’s personal or business affairs. Further,
On the other hand, if it’s determined that one is “unable adequately to conduct his personal or business affairs,” a committee is appointed to manage the affairs of that individual who is considered “incompetent”. Such a person was ineligible to vote, evidently on the presumption that the person lacked the ability to cast a rational vote. The law prefers appointment of a conservator over a committee and a conservator must be expressly considered before a committee can be appointed.
The court stated:
[W]e are confronted with a statute that
infringes upon the exercise of a fundamental right – the right to vote. Consequently, to justify these restrictions,
the state must meet the difficult burden of proving that they are narrowly
tailored to promote a compelling state interest. Dunn v.
The court then ruled that the statute was constitutionally defective because it was not narrowly tailored to effectuate the state interest of ensuring that voters were able to make rational choices.
Because the statute restricts the voting rights of persons involuntarily committed to hospitals by court order, as well as judicially declared incompetents, the statute disenfranchises individuals who might be capable of making rational voting choices. When one is declared incompetent, the court has found that person unable to conduct any of his personal or business affairs. Presumably, this includes the ability to cast a rational vote.” (emphasis added).
In discussing the lack of a nexus between certain kinds of mental illnesses and the capacity to vote, the court found that one’s inability to appreciate the need for medical care and treatment does not necessarily bear on one’s ability to make rational voting decisions. Therefore, because the statute did not meet the “exacting standard of precision” required when restricting the right to vote it was held unconstitutional.
In Bass, unlike Rowe v. Doe, there was no claim that one who had been adjudged incompetent yet retained the capacity to vote. Instead, plaintiff in this case successfully challenged the assumption that one involuntarily committed lacked the capacity to vote.
The courts in In re Boyer and Reyes discussed above, concluded that any constitutional difficulties resulting from guardianship provisions unnecessarily divesting wards of basic rights was sufficiently addressed by limiting the guardian’s powers to those areas in which the ward has been shown to lack capacity.
The United States Supreme Court has expressed disapproval of state constitutional and statutory disenfranchisement provisions that discriminate against the disabled
Tennessee v. Lane, considered whether Title II of The Americans with Disabilities Act effectively abrogated the state’s Eleventh Amendment immunity. That case concluded 1) that Congress unequivocally intended to do so, and 2) that Title II was a valid exercise of congressional power pursuant to § 5 of the Fourteenth Amendment. With regard to this latter finding, Title II was deemed a “proportional and congruent” remedy to the injury and the means adopted to remedy it.
It is not difficult to perceive the
harm that Title II is designed to address.
Congress enacted Title II against a backdrop of pervasive unequal
treatment in the administration of state services and programs, including
systematic deprivations of fundamental rights.
For example, “[a]s of 1979, most States … categorically disqualified
“idiots” from voting, without regard to individual capacity. [Fn5] [Fn5. “Cleburne
v. Cleburne living Center, Inc. 473
Continuing, the Court pointedly noted:
The decisions of other courts, too,
document a pattern of unequal treatment in the administration of a wide range
of public services, programs, and activities, including … voting. [Fn13]. [Fn13
E.g., Doe v. Rowe, 156 F.Supp.2d 35
(D.Me. 2001) (disenfranchisement of persons under guardianship by reason of
mental illness). See also, e.g.,
Prejudice, once let loose, is not
easily cabined. See University of California Regents v. Bakke, 438
Accordingly, Article 7, § 2(c) of the Arizona Constitution does not preclude persons under limited guardianship from voting. First, this disenfranchisement provision was not intended to reach persons who were not adjudicated fully incapacitated. And, the limited guardianship provisions enacted in 2003 don’t create the kind of guardianship contemplated by the Arizona Constitution. Moreover, were the constitutional disenfranchisement provision applied to bar wards under such guardianships regardless of their capacity to vote it would be held inconsistent with the United States Constitution.
In sum, any provision purporting to deny the right to vote on grounds of presumed incapacity cannot withstand constitutional scrutiny. Instead, such a provision it must provide for consideration of “the individual capacity” to vote of affected individuals. And, as held in Rowe v. Doe, such persons must be given notice of the possible loss of this right, and an opportunity to meet this issue. Further, the loss of this basic right must be based on a specific assessment of the capacity to vote.
author is a graduate of
 The Records of the
 The terms “plenary guardianship”, “general guardianship” and “full guardianship” will be used interchangeably in this article.
 The Records of the Arizona Constitutional Convention of 1910, Edited by John S. Goff, and Published by the Supreme Court of Arizona, has no meaningful or illuminating discussion concerning this provision Most of the discussion on suffrage and elections was devoted to a debate on women’s suffrage. See e.g., pp. 274-288, The Records of the Arizona Constitutional Convention of 1910.
 The term “plenary guardianship” is sometimes used to refer to a combination guardianship/conservatorship arrangement. Sometimes it is used to refer to a full guardianship where the guardian is empowered to make all decisions for the ward. However, in both cases it is premised on the theory that the ward retains no rights of self-determination.
 5 Pet. 1, 8 L.Ed. 25 (1831).
 Harrison, 67
 ARS 14-5312.A. This provision reads in full:
A guardian of an incapacitated person has the same powers, rights and duties respecting the guardian’s ward that a parent has respecting the parent’s unemancipated minor child, except that a guardian is not liable to third persons for acts of the ward solely by reason of the guardianship. In particular, and without qualifying the foregoing, a guardian has the following powers and duties, except as modified by order of the court.
 Farnsworth v. Hubbard, 78
 The “modernizing” language of Proposition 101 had no intention of expanding the constitutional disqualification of persons under “guardianship”. Accordingly, to the extent that the term incapacitated person is now used it must be construed to apply to one who is fully incapacitated just as the original provision applied to the fully incompetent.
Article 7, § 2, stated that a qualified voter had to be 21 years of age and
have resided in the state one year immediately preceding the election, United
States Supreme Court rulings had held such provisions unconstitutional. See, Oregon
v. Mitchell, 400 U.S. 112 (1970) (Court held that in enacting 1970
Amendments to Voting Rights Act Congress was empowered to enfranchise 18-year
olds in federal elections, to abolish literacy tests as prerequisite to vote
and to abolish durational requirement in Presidential elections. But held enfranchising 18-year olds in state
and local elections was beyond Congress’ power.) The United States Constitution
was amended a year later to address
 As noted above, the court in Harrison v. Laveen ruled that some of the “essential features of
guardianship were divesting the ward of the power to make decisions intimately
affecting the ward and placing such powers in the guardian. Included among these are the decisions where
the ward will live and with whom the ward may associate.
 Frolik, Plenary
Guardianship: An Analysis, A Critique and a Proposal for Reform, 23
 See generally e.g., Hovey v. Hobson, 55
 In re
Sherrill’s Estate, 92
 See Frolik, Promoting Judicial Acceptance and Use of Limited Guardianship, 31 Stetson L.Rev. 735 (Spring 2002).
P.2d 1085, 1089 (
 636 P.2d at 1087.
 636 P.2d at 1088.
 636 P.2d at 1089.
 636 P.2d at 1089.
 636 P.2d at 1090.
 Note 6 in Boyer
reads as follows: In Grayned v. City of Rockford, 408
In a series of decisions this Court has held that, even though the governmental purpose be legitimate and substantial, that purpose cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved. The breadth of legislative abridgement must be viewed in the light of less drastic means for achieving the same basic purpose. (Footnotes omitted.)
 636 P.2d 1090.
 636 P.2d at 1090-1091.
 Compare ARS 14-5312.A. which reads as follows:
A guardian of an incapacitated person has the same powers, rights and duties respecting the guardian’s ward that a parent has respecting the parent’s unemancipated minor child, except that a guardian is not liable to third persons for acts of the ward solely by reason of the guardianship. In particular, and without qualifying the foregoing, a guardian has the following powers and duties, except as modified by order of the court. . . .
 636 P.2d at 1091.
 Matter of Guardianship of Reyes, Id, citing Boyer, 636 P.2d at 1089.
 Matter of Guardian of Reyes, is cited
and discussed in Matter of Guardianship
of Hedin, 528 N.W.2d 567, 580 (
To insure that a ward’s or
proposed ward’s procedure due process rights are protected, we direct the
district court to make a determination in all
cases . . . whether limited guardianship as authorized in the above-stated
sections is appropriate. In making that
determination, the court shall make findings of fact to support the powers
conferred upon the guardian. With these
requirements, we think [the guardianship provision in question] is not
unconstitutionally overbroad. See In re Guardianship of Reyes, 152
Though Reyes seemed to hold that courts could fashion limited
guardianships and allow the ward to retain all rights not essential to the
purposes of the guardianship the authors of
 Boyer 636 P.2d at 1091.
above discussion of In Matter of Guardianship of Hedin, 528
N.W.2d 567, 580 (
 It is likely that the Boyer and Reyes courts engaged in this stretch of interpretation to preserve the constitutionality of the guardianship provisions under review. See discussion of Boyer, supra. Some would argue that rather than creating limited guardianship by case law the more appropriate vehicle to achieve this would have been legislative action. Although, it must be noted that the philosophical and theoretical underpinnings of the concept of plenary guardianship had experienced considerable erosion as a result of courts finding guardianship appropriate even when the putative wards seemed to have the capacity to function in certain areas of their lives. Indeed, the Boyer case arrived at its construction of minimal guardianship standards by balancing the theoretical concept of guardianship with the practical realities that one’s survival and safety were at least as important as one’s ability to rationally cope in various other parts of his or her life.
 ARS 14-5303(8).
 ARS 14-5304.A.
 ARS 14-5304.B.
HB 2181 – incapacitated persons; rights; guardianships – DO PASS
Ms. Landers [Assistant Analyst to the Committee] explained HB 2181 requires the court to encourage the development of maximum self-reliance and independence of incapacitated persons. The bill also requires the petition for appointment of a guardian to include why a limited guardianship is not appropriate, if a general guardianship is requested. H.B. 2181 also allows a judge to consider use of appropriate technological assistance when considering the least restrictive needs of an individual.
Representative [Pete] Hershberger, bill sponsor, explained that this bill came from the developmentally disabled (DD) community and it represents an effort to follow a national trend to allow maximum self determination for DD citizens and offer an alternative to full guardianship. The bill would allow the courts to determine, and prescribes that the courts must look at different criteria for, what an individual may be in charge of in his or her own life. Currently, there are only full guardianships and no guardianship options. (emphasis added).
156 F.Supp.2d 35 (Maine 2001).
 156 F.Supp.2d at 42, note 9.
 See also, Guardianship of Hughes, 715
A.2d 919 (
ward, armed with the limited guardianship, sought to register to vote, but
election officials refused to register him because he was under
copy, 2006 WL 1888639 (W.D.
 Slip copy, p.4.
 Slip copy, p.6.
 While constitutional challenges to some of these provisions have limited their application even more the author is offering these merely to show that states that have addressed the issue have declined to rule that persons under guardianship or some other status are barred from voting by a state constitutional or statutory provision despite having the capacity to vote. Moreover, in the cases involving limited guardianships states themselves usually take the position that such disenfranchisement provisions don’t automatically apply to persons under limited guardianships even though they may purport to apply to persons under “guardianship”.
 156 F.Supp.2d 35 (Maine 2001).
 156 F.Supp.2d at p. 42, note 9.
State’s shifting positions was noted by the court as an apparent effort to
address the constitutional infirmities with
 156 F.Supp. at 40. Also, another plaintiff thought it futile to seek leave to vote from this same judge. This plaintiff had evidence from her treating psychiatrist of more that twenty years that he had conducted a specific examination of plaintiff to assess her capacity to understand voting. He concluded that she “had the mental capacity to understand the nature and effect of voting such that she could make an individual decision with regard to candidates and questions on the ballot.” 156 F.Supp.2d at 41.
 156 F.Supp.2d at 43, note10.
 156 F.Supp.2d at 43.
 156 F.Supp.2d at 45.
 Mathews v. Eldridge, 424
 156 F.Supp.2d at 51, citing Dunn v. Blumstein, 405 U.S. 330 (1972).
 156 F.Supp.2d at 55.
F.Supp.2d at 41, note 7, quoting from
Justice Kennedy’s concurring opinion in
Olmstead v. L.C. by Zimring, 527
 156 F.Supp.2d at 55.
 156 F.Supp.2d at 58. As seen below in the discussion of Tennessee v. Lane, the court proved correct in its rejection of State defendants sovereign immunity claim.
 42 U.S.C. § 1973gg-6(a)(3)(B).
 In Raetzel v. Parks/Bellemont Absentee Election Bd., 762 F.Supp. 1354, 1357 (D.Ariz. 1990), the court ruled that:
Because voting is a fundamental right, the right to vote is a “liberty” interest which may not be confiscated without due process. (citation omitted).
The court quoting from Fuentes v. Shevin, 407
more than a century the central meaning of procedural due process has been
clear: “Parties whose rights are to be affected are entitled to be heard; and
in order that they may enjoy that right they must first be notified.”
 Arizona Revised Statute (ARS) 14-5312.01(N) was added by laws 1999, ch. 83, § 2. 44th, 1st Reg. Sess. (1999) SB 1146.
 524 F.Supp. 1270 (S.D.N.Y. 1981).
 524 F. Supp. 1270 (SDNY 1981).
 524 F. Supp. at 1273.
 524 F. Supp. at 1273-74.
 524 F. Supp. at 1275.
 524 F. Supp. at 1274.
 524 F. Supp. at 1274. Significantly, the court noted that those deemed incompetent had to be found “unable to conduct any of his personal or business affairs.” With this total incompetency the court noted in dicta that it might be reasonable to infer from this that the person was also unable to cast a rational vote.
 524 F. Supp. at 1275.
 See ARS 14-5303 and 14-5304.