The Right to Vote

of Persons Under Guardianship –Limited and Otherwise

By

Henry G. Watkins[1]

Executive Director,

Arizona Center for Disability Law

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.[2]  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 Arizona courts.

 

Introduction

From the time of its admission to the Union, Arizona declared that persons under guardianship were ineligible to vote.  As discussed below, this disenfranchisement was based on a provision in the Arizona State Constitution.   However, the intent of that constitutional provision, changes in Arizona law, and requirements of the United States Constitution all support the position that individuals under the relatively new mechanisms of limited guardianships are not, for that reason alone, ineligible to vote.  This article’s purpose is to show that the right to vote for individuals under limited guardianship should be presumed absent clear and convincing evidence that they lack the capacity to do so.

 

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”[3] stripped wards of all their rights since they were considered incompetent or incapacitated in all respects.  Arizona’s limited guardianship provisions, enacted in 2003, were designed to create a mechanism to address situations where individuals might be incapable of managing certain affairs of their lives while being fully capable of managing other areas of their lives.  In promoting self determination and autonomy, limited guardianships specifically intended that persons under such tailored guardianships retain those rights and decision-making authorities not reposed in the guardian.  Thus, the Arizona State Constitutional provision respecting persons under guardianship was directed at the “fully incapacitated.”  The enactment of the limited guardianship provisions recognized that some persons retain the capacity to make some basic life decisions but not others.  Accordingly, a limited guardianship does not erect an automatic disqualification from the right to vote.

 

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.

 

The Arizona State Constitution

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.[4]  However, it is clear that the guardianship mentioned in the State Constitution was plenary guardianship[5] 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,[6] 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,[7] stated that Indian tribes had a relationship to the United States government which “resembles that of a ward to his guardian.”  Thus, Porter v. Hall, with a strong dissent, concluded that Native Americans were barred from voting by Article 7, § 2. 

 

Two decades later Porter v. Hall was revisited and reversed in the case of Harrison v. Laveen.[8] The court noted that mere use of the term “guardianship”, especially by analogy, did not amount to a guardianship within the meaning of Article 7, § 2(c) of the State Constitution.    Harrison found that a guardianship as contemplated by the Arizona Constitution had a defined meaning.

  

The term ‘guardianship’has a very definite meaning, both at common law and under the Arizona statutes.  Some of the essential features of “guardianship”are: (1) that the guardian has custody of the person of the ward; (2) that the ward is under duty to live where the guardian tells him to live; (3) that the legal title to the property of a ward is in the ward, rather than in the guardian, but the ward may not make contracts respecting his property; (4) that the guardian may also decide what company the ward may keep.[9]

 

Arizona law provides that the guardian has the same powers over the ward as a parent has over a child.  A.R.S. 14-5312.A.[10]   Thus, a guardianship within the meaning of the Arizona Constitution must have the plenary powers and authorities described by the court in Harrison v. Laveen.[11]  To be subject to such a guardianship persons must be found incompetent to conduct any of their personal or business affairs.[12]

 

In 2000 the following changes were made to Article 7, § 2(c):

 

No person under guardianship, non compos mentis or insane [who is adjudicated an incapacitated[13] person] 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.

 

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.

            Proposition 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 voting.  Under Arizona law, there is a twenty-nine day residency requirement, which remains unchanged. These changes are already enforced in Arizona pursuant to federal law.[14]

 

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). 

 

Statutory Provisions

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.[15]  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.[16] 

 

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 Arizona.  One was either subject to guardianship or not.  The case law recognized that placing an individual under guardianship, although for paternalistic and protective purposes, involved denying the ward the most basic of rights including self determination.  Consequently, courts were inclined to find aberrant and bizarre behavior as eccentric rather than necessarily indicative of incapacity or incompetence.[17]  

 

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 Ariz. 387, 96 P.2d 281 . . . ; Concord v. Rumney, 45 N.H. 423; Hill v. Hopkins, 198 Ark. 1049, 133 S.W. 2d 634.  The Supreme Court of Oklahoma, on the facts of this case, has held that existence of a guardianship did not deprive the decedent of the capacity to acquire a new state domicile, Groseclose v. Rice, 366 P.2d 465 (Okl. 1961).[18]

 

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.[19]  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.[20]  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 Arizona courts, as others, struggled with deciding which situations were sufficiently extreme to warrant taking away individuals’ rights of self determination for their own good.  While the purpose was to protect such individuals the remedy was extreme.  In Matter of Guardian of Reyes[21], the court adopted the guardianship standard of the Utah Supreme Court’s decision in In re Boyer.[22]  Boyer held that in assessing whether one lacked “sufficient understanding or capacity to make or communicate responsible decisions concerning his person” the appropriate analysis follows:

 

[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.[23] 

 

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 Arizona’s limited guardianship provisions that a full explication is warranted.  The Utah Supreme Court in Boyer addressed various troublesome issues surrounding guardianship.[24]  The subject of guardianship proceedings, Nelda Boyer, was a 39-year-old woman with a mild degree of mental retardation and a slow learner.  The Utah statute defining “incapacitated person” was almost identical to the Arizona statute and reads as follows:

 

“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.[25]    

 

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.[26]

 

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.[27] 

 

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).[28]

 

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 Mass. 394, 378 N.E.2d 951 (1978).[29]

 

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.”[30]

 

In this case, the least restrictive alternative, is closely allied with the more general overbreadth issue[FN6][31] 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.[32]

 

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][33]

 

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 Utah guardianship provisions stated, in pertinent part, that:

 

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 … [34]

 

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 Mass. 415, 421 N.E. 2d 40 (1981).  To enable the court to fashion an appropriate remedy, the parties should submit evidence “…showing the proposed ward’s inability to think or act for himself as to matters concerning his personal health, safety and general welfare …”  Fazio v. Fazio, 375 Mass. 394, 403, 378 N.E.2d 951 (1978).  Based on this evidence, findings of fact should be made to support the powers conferred on the guardian, and those powers should be as clearly defined as the circumstances permit.  So construed, the guardianship statute is not unconstitutionally overbroad.  (emphasis added).[35]

 

 Arizona’s Adoption of In re Boyer

A challenge was made to the Arizona guardianship statutes in Matter of Guardianship of Reyes.[36]  Reyes embraced much of In re Boyer.  The appellant in Reyes challenged the Arizona guardianship laws as unconstitutional on the grounds that 1) the burden of proof should be clear and convincing rather than preponderance of the evidence, 2) the definition of “incapacitated person” is vague and overbroad, and 3) the powers of a guardian are overbroad. 

 

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.”[37] 

 

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.[38]

 

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.  Id.[39] 

 

Did Reyes Wrongly Suggest that Limited Guardianships Were Then Available in Arizona ?

Reyes appears yet to be good law in Arizona.  However, the court’s analysis of ARS 14-5312, and the similar analysis in Boyer, is open to question.  Interpreting a statute very similar to the pertinent language of ARS 14-5312, Boyer concluded that the court was empowered to tailor the powers of the guardian to the specific needs of the ward.[40]  The Reyes court echoed Boyer in noting the Arizona statute allowed the court to modify the guardian’s powers and duties.[41]

 

Reyes has been cited for the proposition that a limited guardianship can save an otherwise plenary guardianship from constitutional infirmities.[42]  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.[43] 

 

Arizona Enacted Its Limited Guardianship Provisions in 2003

Whether Reyes’ suggestion that limited guardianships were available in Arizona rests on sound legal footing was rendered academic in April of 2003 when Arizona expressly authorized limited guardianships and expressed a statutory preference for such guardianships over plenary guardianships.  In essence, ARS 14-5303 and 14-5304 were amended to provide that in petitioning for guardianship the petition must state:

 

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.[44]

 

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.[45]

 

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.[46]  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).[47]

 

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 Arizona’s have taken the position that those provisions were only intended to disenfranchise persons under full guardianship.  In Doe v. Rowe,[48] Maine’s disenfranchisement of persons “under guardianship for reasons of mental illness” was challenged as being unconstitutional and contrary to the Americans with Disabilities Act, among others.  The state in defending this action took the position that this constitutional prohibition did not apply to limited guardianships.[49]  Instead, the state’s position was that incapacitated persons subject to limited guardianship retain all legal and civil rights except those which have been suspended in the decree or court order.[50]  Thus, an incapacitated person under limited guardianship because of mental illness retains the right to vote unless that right is specifically suspended by the probate court.[51]  This case is discussed more fully below.

 

Also, Massachusetts has a constitutional provision disenfranchising “persons under guardianship”.[52]  In Guardianship of Hurley,[53] the probate court, based on a motion filed by the guardian, issued an order modifying a full guardianship to a limited guardianship.  This change, among other things, was intended to extend to the ward the right to vote.[54]  Plaintiff’s attorney duly notified the State Attorney General that the constitutionality of the state constitution’s disenfranchisement provision might be at issue.  The Attorney General’s office responded that while it did not wish to be directly involved in the case it wanted to be informed of the progress of the litigation as it concerned “whether the constitutional and statutory voting exclusion of persons under guardianship applies to persons under limited as well as full guardianships.”[55]  The probate court found that the ward was “capable of making informed decisions concerning the exercise of his right to vote”, and granted him the right to vote, effectively ruling that a limited guardianship was not the kind of guardianship contemplated by the Massachusetts Constitution.[56]

 

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.[57]

 

Prye v. Carnahan,[58] considered the effect of the Missouri state constitution that bars voting by those under guardianship.  The court noted that there was no automatic voting bar as relates to persons under limited guardianship.[59]  Further the court found that the Missouri probate courts engaged in an individualized determination of capacity to vote in both limited and full guardianships.[60]

 

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 that Arizona’s constitutional provision did not intend to automatically disenfranchise persons under limited guardianship.[61]

 

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.[62]

 

 Likewise the Supreme Court in Dunn v. Blumstein[63], 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.[64]  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.”[65]  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.[66]

 

An instructive case in considering Arizona’s guardianship provisions and the right to vote is Doe v. Rowe.[67]  As discussed below, this case has been cited with approval by the United States Supreme Court.  In Doe v. Rowe the court ruled that the Maine Constitution’s provision prohibiting voting by persons under guardianship for mental illness violated the Fourteenth Amendment, Due Process and the Americans with Disabilities Act.  Plaintiffs were persons under full guardianship because of mental illnesses.  It is noted that persons under limited guardianship for mental illness were not automatically barred from voting despite the Maine Constitution’s language.[68]  Further, the state defendants in this case took the position that even persons under full guardianship by reason of mental illness retained the right to vote if the Probate Court specifically reserved the person’s right to vote.  The state’s position during the litigation changed several times to further ease restrictions on the right to vote seeking to save the procedures from constitutional infirmity.[69]   However, the state’s position on the voting eligibility of those under guardianship was not shared by all of the probate judges.  One judge had granted a plaintiff’s unopposed motion to modify her full guardianship order to allow her to vote. 

 

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.”[70]  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.[71]  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.[72]  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.[73]

 

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.[74]

 

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 Maine courts or Legislature would endorse state defendants’ unique interpretation of Maine law.  The court then concluded that there was no reasonable construction of the Maine Constitution’s disenfranchisement provision that could save it from a fatal clash with the United States Constitution. 

 

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,[75] 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.[76]  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 Maine’s guardianship procedures violated due process in denying plaintiffs the right to vote.

 

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.[77]  Further, the state must show that denying the vote to some citizens while granting it to others promotes a compelling state interest.[78]  The parties in Rowe v. Doe agreed that Maine had a compelling state interest in ensuring that “those who cast a vote have the mental capacity to make their own decision by being able to understand the nature and effect of the voting act itself.”[79]  The court focused on whether Maine’s restriction was narrowly tailored to meet this compelling interest.  It was deemed important that there be a truly necessary correlation between the ends and the means.  In other words, does excluding persons under guardianship by reason of mental illness necessarily address the objective of excluding persons who lack the capacity to understand the nature and effect of voting such that they cannot make an individual choice?

 

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.[80]  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”.[81]  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).[82]

 

Maine’s disenfranchisement provision was ruled to violate Equal Protection.  It was held to be over inclusive by including in its sweep persons who possess the capacity to vote, and under inclusive by not addressing persons otherwise incapacitated but who were not under guardianship and who had incapacities other than mental illness.  Maine’s constitutional restriction was held to be facially invalid and invalid as applied.

 

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 ADA the court held that plaintiffs 1) were qualified individuals with disabilities, 2) were excluded from participation in a public entity’s services, programs, or activities or otherwise discriminated against; and 3) such exclusion or discrimination was by reason of their disability.[83]

 

Thus, defendants were found to have violated the ADA and § 504 as well.  Defendants argued that their proffered narrowing interpretation of the voting restriction disenfranchised only those who lacked the mental capacity to vote and that The National Voter Registration Act allows for states to restrict persons from voting based on “mental incapacity.”[84]  The court stated, among other things, that it was constrained to assess claims based on these provisions under past application of voting practices.  And, under the facts presented some persons with the mental capacity to vote were excluded from doing so.  Thus, the restriction was not based on “mental incapacity”.

 

 

Arizona State Constitution’s disenfranchisement provision suffers the same Due Process and Equal Protection difficulties as identified in Rowe v. Doe.  First, that provision is overbroad and bars from voting persons with the capacity to vote.  In guardianship proceedings there are no procedural safeguards to provide notice of possible disenfranchisement and a specific assessment of wards’ capacity to vote before stripping them of that fundamental right.[85] 

 

Finally, there is no consistent or rational scheme of determining which Arizonans under guardian are rendered ineligible to vote.  The Arizona legislature in 1999 conferred upon the probate court power to order retention of civil rights for persons under guardianship.[86]  

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,[87] where a New York law disenfranchising persons committed to an institution for the mentally insane was ruled unconstitutional.  The court reasoned that such persons had not been found incompetent, and to presume that they were was not justified.    However, ARS 14-5312.01(N) authorized court ordered retention of one’s civil rights even though under guardianship.  Persons under guardianship would have to be adjudged incapacitated.  Prior to 2003 when the limited guardianship provisions were enacted the only legislatively authorized form of guardianship was plenary guardianship.  Perhaps, ARS 14-5312.01(N) was the beginning of the legislature’s recognition that persons under guardianship were not necessarily incapacitated in all areas of their lives.   

 

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.[88]  This case involved a challenge to a New York statute which disqualified from voting eligibility persons adjudged incompetent and persons involuntarily committed to mental institutions.  The statute was found unconstitutional insofar as it applied to those involuntarily committed to hospitals pursuant to court order but who had not been adjudged incompetent.  The court carefully explained the differences in New York between competency proceedings and commitment proceedings.  To be involuntarily committed the person “must have a mental illness for which care and treatment in a hospital is essential to that person’s welfare and, in addition, the person’s judgment must be so impaired that he is unable to understand that he has a mental illness for which in-patient care and treatment in a hospital is appropriate.”[89]

 

The court then explained that competency proceedings concern the ability to conduct one’s personal or business affairs.  Further, New York has separate remedies for persons whose ability to conduct business had become totally as opposed to substantially impaired.  If it’s determined that one has “suffered substantial impairment of his ability to care for his property” the court may appoint a conservator to manage his property.  Appointment of a conservator does not affect one’s right to register or vote in New York elections.[90]

 

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.[91]  The law prefers appointment of a conservator over a committee and a conservator must be expressly considered before a committee can be appointed.[92] 

 

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. Blumstein, 405 U.S. 330, 337, 92 S.Ct. 995, 1000, 31 L.Ed. 2d 274 (1971); Dramer v. Union Free School District No. 15, 395 U.S. 621, 627, 89 S.Ct. 1886, 1889, 23 L.Ed.2d 583 (1969).[93]  

 

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.”[94] (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.[95]  

 

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,[96] 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 U.S. 432, 464, and n. 14 … (Marshall, J., concurring in judgment in part and dissenting in part) (citing Note, Mental Disability and the Right to Vote, 88 Yale L.J. 1644 (1970)”  Id. at 524.  The majority of these laws remain on the books, [Fn6] [Fn6 See Schriner, Ochs, & Shields, Democratic Dilemmas: Notes on the ADA and Voting Rights of People with Cognitive and Emotional Impairments, 21 Berkeley J. Emp. & Lab. L. 437, 456-472 tbl. II.] and have been the subject of legal challenge as recently as 2001. [Fn7] [Fn7 See Doe v. Rowe, 156 F.Supp.2d 35 (D.Me. 2001)].[97]  

 

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., New York ex rel. Spitzer v. County of Delaware, 82 F.Supp.2d 12 (N.D.N.Y. 2000) (mobility-impaired votes unable to access county polling places)].  Notably these decisions also demonstrate a pattern of unconstitutional treatment in the administration of justice. [Fn omitted].[98]

 

In Cleburne V. Cleburne Living Center, Inc,[99] Justice Marshall (joined by Justice Brennan and Justice Blackmun) concurring in the judgment in part and dissenting in part, noted:

 

Prejudice, once let loose, is not easily cabined.  See University of California Regents v. Bakke, 438 U.S. 265, 395, 98 S.Ct. 2733, 2801, 57 L.Ed.2d 750 (opinion of Marshall, J.)  As of 1979, most States still categorically disqualified “idiots” from voting, without regard to individual capacity and with discretion to exclude left in the hands of low-level election officials.”( Fn14) (Fn14 See Note, Mental Disability and the Right to Vote, 88 Yale L.J. 1644 (1979).[100]

 

 

 

Conclusion

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.