The Right to Vote

Interplay of Federal and State Law on Voting Rights

ADA to Today

People with developmental disabilities are frequently denied the right to vote.

The 15th and 19th Amendments to the Constitution prohibit the government from denying the right to vote to any U.S. citizen on account of “race, color, or previous condition of servitude” or sex. Other than those prohibitions, however, the Constitution gives States the power to set qualifications for voting, as long as these qualifications are “not discriminatory”, and do not violate the Constitution or any restrictions that Congress imposes in federal voting laws. (Constitution, Art. I, s.4) The Federal Voting Rights Act specifically gives states permission to enact laws to deny the right to vote to people for two reasons: “by reason of criminal conviction or mental incapacity.” [42 U.S.C. § 1973gg-6(a)(3)(B)]

Constitutional Law & Voting Rights

Even though there’s no specific ‘right to vote’ in the Constitution, like the “right to free speech”, or the “right to bear arms”, there are general protections that apply. The right to vote has been recognized by the Supreme Court as a “liberty interest” protected under the 14th Amendment to the Constitution. If a state interferes with a fundamental “liberty interest” of a US citizen, it cannot do so without “due process”, or in a way that violates the “equal protection” clause of the 14th amendment.

Complexities of Voting Law

Indeed, the majority of states today do have some sort of legal provisions that deny the right to vote to people with mental incapacities. Some states do this in their state constitutions, other by statute. [See here for State Laws Affecting the Voting Rights of People with Mental Disabilities] The rationales given for this restriction include protecting the validity of the voting process by distinguishing voters who intend to express some preference and affect the election results from those who do not understand the nature of voting, and the preventing voter fraud, by ensuring that mentally incompetent persons are not manipulated into voting for other people’s preferences.

Voting is a Fundamental Liberty Right

Provisions in State Constitutions that deny the right to vote to people with developmental disabilities take many different forms, reflecting the fact that they were typically added to state constitutions in the late 19th & early 20th centuries, around the same time that people with disabilities were being isolated in large institutions and subject to eugenic practices and policies. The general rationale for enshrining these restrictions into state Constitutions was that people who needed state assistance (whether because of poverty or disability) were isolated from the rest of society; losing the right to vote was one of the freedoms they gave up in exchange for the support the state gave them.

Voting Rights MN

Our attitudes about people with disabilities have changed since then, but few of these state Constitutions have been changed. Many state Constitutions use language reflecting outdated ways of thinking about citizens with developmental disabilities:

  • 7 states deny the right to vote to: “idiots or insane persons
  • others deny the vote to those of “unsound mind, non compos mentis, or those who are not of “quiet and peaceable behavior
  • 16 states bar those adjudged mentally incompetent or incapacitated from voting
  • 4 state constitutions bar people “under guardianship” from voting[1]

State election laws also often address the voting rights of persons with disabilities. Some of these state laws seem to ignore the state constitutional provisions, and some are inconsistent with the state Constitutions.

Your Vote Your Voice, a website sponsored by the Minnesota League of Women Voters, traces the history of voting rights for specific minority populations, including people with disabilities; addresses current voting rights issues and barriers that still exist; and features video clips of Judge Donovan Frank and Professor Elizabeth Schiltz, highlighting the ADA and constitutional issues regarding voting rights.

Stereotypes & Voter’s Rights

Recent Challenges to State Restrictions on the Voting Rights of People with Developmental Disabilities

Maine: Doe v. Rowe

In Doe v. Rowe, 156 F. Supp. 2d 35 (D. Maine 2001), Federal District Court Judge George Singal held that Maine’s Constitutional restrictions on voting affecting people with developmental disabilities violated the 14th Amendment. Maine’s Constitution had originally disenfranchised “paupers and persons under guardianship”, but was amended in 1965 to disenfranchise persons “under guardianship for reasons of mental illness.” For about 20 years, Maine’s Secretary of State interpreted this to mean that people who were mentally ill, but not under guardianship, could vote, and that people under guardianship for reasons other than mental illness could vote; only people whose court order placing them under guardianship for “mental illness” were denied the right to vote. When this interpretation was challenged as arbitrary, the State changed its interpretation, holding that everyone under full guardianship for any reason – not just a mental illness, but also developmental disabilities or other unsoundness of mind – should lose the right to vote.

However, even this interpretation was not consistently applied by the Probate Judges in Maine who established guardianships. The Maine Probate Code directed courts to establish guardianships only “to the extent necessitated by the incapacitated persons’ actual mental and adaptive limitations.” Some Probate judges in Maine were interpreting that to grant limited guardianships to people with mental illness, specifically preserving the right to vote; other Probate judges were deciding that the Constitution prohibited them from granting the right to vote when the guardianship was the result of a mental illness.

In Doe v. Rowe, the Federal District Court held that the Maine’s denial of the right to vote in guardianship proceedings violated the Due Process Clause of the 14th Amendment, because the disenfranchised persons were not given advance notice they might lose their right to vote because of the guardianship proceeding, leading to an inadequate opportunity to be heard.

The Court also held that Maine was violating the Equal Protection Clause of the 14th Amendment. The Court accepted that the 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.”[2] However, the Court held that the means that Maine had chosen to protect this interest was too broad. The category of those “under guardianship for mental illness” was not held to be a permissible surrogate for “mental incapacity to vote.” Many people with traditional psychiatric disorders disenfranchised under this provision were capable of understanding the nature and effect of the act of voting; conversely, many people permitted to vote under this standard – those with developmental disabilities or senility – might not understand the nature and effect of voting.

Minnesota: Minnesota Voters Alliance v. Ritchie and In re Guardianship of Brian W. Erickson

Minnesota’s Constitution disenfranchises “people under guardianship” and “people who are insane or not mentally competent” (as well as “people convicted of treason or felony”). Minnesota’s voting laws, and laws governing guardianship, on the other hand, both provide that people under guardianship retain the right to vote unless that vote is specifically revoked in the guardianship proceeding, or the person is judged legally incompetent.

These restrictions have been successfully challenged in two recent cases in federal and state courts, under different rationales.

In Minnesota Voters Alliance v. Ritchie, 890 F.S. 2d 1106 (Aug. 17, 2012), Federal District Court Judge Donovan Frank held that the Minnesota Constitution and the state statutes worked together in a way that did not violate due process. Although the Constitution’s plain language prohibits individuals “under guardianship” from voting, it does not define “person under guardianship.” The regulation of guardianship is left to the state legislature, which has exercised that power by enacting a law under which “persons under guardianship are presumed to retain the right to vote unless otherwise ordered by a court.” [Minn. Stat. §201.014, subd. 2(b); Minn. Stat. § 524.5-313(c)(8)] Thus, Judge Frank concluded, Minnesota’s constitutional prohibition against voting based on guardianship status applies only when there has been a specific judicial finding of incapacity to vote.

In In re Guardianship of Brian W. Erickson, 4th Judicial District, Dist. Ct., Probate/Mental Health Division (Oct. 12, 2012) Judge Jay M. Quam disagreed with Judge Frank’s conclusion that the MN Constitution delegated to the legislature the power to decide who under guardianship could vote, and who could not vote. Instead, relying on the reasoning of the Maine case of Doe v. Rowe, Judge Quam held that Minnesota’s constitutional provision, denying all under guardianship the right to vote, violated the 14th Amendment’s guarantees of Equal Protection and Due Process. He concluded that all those presently under guardianship specifically retain the right to vote, and that all future guardianship proceedings would include an independent evaluation of the voting capacity of each ward, to determine whether the right to vote would be taken away.

The Help America Vote Act of 2002:

“As a nation we believe that we are throwing off the yokes of prejudice and myth by adopting broad federal antidiscrimination protections such as the ADA, but we cling to distinctions when we believe they really “matter…”[3]

Despite the fundamental liberty interest at stake, this nation has disenfranchised women, racial minorities and people with disabilities, presumably because of these kinds of “distinctions”. Historically it is the Federal government and advocacy groups that lead the way in counter-balancing such bias. Broader electoral participation is encouraged through education, policy development and statutory reform. In the last fifty years, Congress has passed sweeping statutes aimed at expanding the right of people with disabilities to participate in the democratic process. Voting reform for individuals with disabilities began by requiring states to reduce and eventually eliminate accessibility barriers. But despite the modern voting technology and the increased availability of accessible polling places, barriers are still numerous and voter turnout reflects this problem. The 2013 GAO report, Voters with Disabilities: Challenges to Voting Accessibility, found that 27% of polling places still have potential impediments to voting and don’t offer the option of curbside voting.[4]

For decades, many of these barriers were challenged under laws like Title II and Title III of the ADA and the Voting Accessibility for the Elderly and Handicapped Act of 1984, but with limited success. Tennessee v. Lane, et al, 541 U.S. 509 (2004), opened the door to suits under Title II of the ADA, however, it is still uncertain how broadly the Court will interpret the exception to state sovereign immunity set forth in Lane. [Although the Court did note that the sheer volume of evidence demonstrating the nature and extent of unconstitutional discrimination against persons with disabilities in the provision of public service justified the ADA’s requirements.[5] They also noted that voting was an example of a fundamental right numerous times in dicta.] Even so, it was clear that the ADA is not a complete solution. However, in response to the events of the 2000 presidential election, Congress passed another piece of legislation pertaining to the electoral process: The Help America Vote Act of 2002. The Act specifies minimum accessibility standards for polling locations and voting equipment.

The major drawback of HAVA is its failure to provide a private right of action.[6] The only enforcement available is a civil action brought by the Attorney General for failure to comply with the requirements of HAVA and the remedies are limited to declaratory or injunctive relief. There is no provision for reimbursement of attorney’s fees. Nevertheless, HAVA might still prove to be a touchstone of change for the disability voting community. Because HAVA provides funds to assist states in bringing their voting programs into compliance with the new standards, many more state entities now receive Federal funding. Any entity receiving such funds is subject to the Rehabilitation Act of 1973. Section 504 of the Rehabilitation Act provides in part that “No otherwise qualified individual with a disability in the United States, as defined in section 705 (20) of this title, shall, solely by reason of his or her disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.”[7] The Rehabilitation Act allows for both a private right of action and the recovery of monetary damages.[8]

HAVA is another step forward toward full and fair enfranchisement of the disability community. However, its impact will be primarily on those with physical disabilities. Emotionally and cognitively disabled individuals have unique challenges in securing their right to vote. The decision to grant this right is often left to vague and over-broad state standards. Other efforts are being undertaken to change overbroad and subjective disenfranchisement.

What Happens Next?

Changes to the Voting System

Underlying many of these voting restrictions is the outdated assumption that people with developmental disabilities are incapable of making reasoned judgments about what candidates they prefer. Blanket restrictions of voting for those under guardianship based on false assumption that everyone under guardianship is incapable of understanding the act and effect of voting. In In re Erickson, Judge Quam wrote “At least as it pertains to those under guardianship, Article VII of the Minnesota Constitution is a vestige of a bygone era. That era was one that did not recognize the many talents and capabilities of those under guardianship, including the ability of many to properly exercise the fundamental right to vote. Rather than leaving that vestige intact and with illusory vitality, it is best to declare its day done.”[9]

Though some states have taken steps to eliminate outdated language in their constitutions reflecting unjustified stereotypes against people with developmental disabilities, others have resisted. New Jersey in 2007 eliminated by a referendum voting restrictions on “idiots or insane persons.”[10] However, two recent referendums in Maine to address the constitutional problem raised in Doe v. Rowe failed to pass. What kind of a message are we sending our fellow-citizens with disabilities if we retain such language in our State’s Constitution?

American Bar Association Recommendation: In 2007, the American Bar Association, made the following recommendation [Symposium: Facilitating Voting as People Age: Implications of Cognitive Impairment.]

State Constitutions and statutes that permit exclusion of a person from voting on the basis of mental incapacity, including guardianship and election laws, should explicitly state that the right to vote is retained, except by court order where the following criteria must be met:

(1) The exclusion is based on a determination by a court of competent jurisdiction;
(2) Appropriate due process protections have been afforded;
(3) The court finds that the person cannot communicate, with or without accommodations, a specific desire to participate in the voting process; and
(4) The findings are established by clear and convincing evidence.[11]

The Presidential Commission on Election Administration, June 23, 2013

The Presidential Commission on Election Administration was established by Executive Order in March 23, 2013. The Commission identifies best practices regrading voting accessibility and makes recommendations to improve the experiences of voters with disabilities. This White Paper discusses progress that has been made and then sets out significant improvements that remain to assure our election system is fully accessible.

The American Voting Experience: Report and Recommendations of the Presidential Commission on Election Administration, January 2014.

Following six months of public hearings, consultations with election officials, academic experts, and organizations involved with voting or election administration, this report was prepared and submitted to the President.  The Commission’s 19 recommendations were unanimous and address a range of issues from the location and management of polling places to voting technology, and polling place audits.


From NBC Washington, May 17, 2016

Dozens of DMV-polling places may be inaccessible to voters with disabilities on Election Day

Many polling places in Virginia, the District of Columbia and Maryland are at risk of being inaccessible to voters with disabilities. Hurdles to accessibility include: steep wheelchair ramps, narrow entranceways, inoperative doorbells and heavy doors. Election officials have been notified of the issues, but not all of have been corrected. (Added 6-2-16)

Council Eyes Barriers to Court Access for New Yorkers with Disabilities

Courtroom accessibility was the subject of a hearing of the New York City Council  on June 23,2016.  New York Lawyers for the Public Interest (NYLPI) investigated 10 of the city’s courts and found widespread problems including inaccurate and/or poorly placed signage, and separate entrances with barriers at most “purportedly accessible entrances.  Every courtroom had an access barrier.

From Portland Press Herald, June 11, 2016

New voting machines will help Mainers with disabilities

Maine has implemented an ExpressVote system that is designed to make voting easier by providing audio and visual cues, while eliminating the delays of the previous system. The Secretary of State noted the system allows people to vote without assistance, protecting their right of a private ballot. The new system is not connected to the internet, quashing concerns of hackers or voter privacy.

From ACLU, June 9, 2016

I want to vote, so why is New York making it so hard for people with disabilities?

A lawsuit has been filed against the New York State Board of Elections and state department of Motor Vehicles after plaintiffs faced obstacles accessing the websites of the DMV and the Board of Elections. One plaintiff, who is blind, was unable to access the DMV website to change her name after getting married. She was only able to access the Board of Elections online registration after getting sighted technical and non-technical assistance, which compromised her privacy and independence. She stated, “A lot of people paved the way and fought for me to be able to vote, so why is New York making it so hard? Encountering these barriers was dehumanizing, degrading, and intrusive.”

Voting Rights Resources and References

Web Links and Documents Related to Voting Issues:


U.S. Constitution
Article I, Section 4
14th Amendment
15th Amendment
19th Amendment

Americans with Disabilities Act: Defines and objectifies who is disabled and codifies civil rights protections for this group. Title II provides that no qualified individual with a disability may be excluded from participation or denied the benefits of the services, programs or activities of, nor subjected to discrimination by, public entities (including the government).

Federal Voting Rights Act (42 U.S.C. § 1973gg-6(a)(3)(B)) (1965, 1970, 1982): Provides that an individual with a disability may be provided with assistance by a person of the voter’s choice so long as that person is not the voter’s employer, the employer’s agent or an agent of the voter’s union.

Help America Vote Act of 2002

National Voter Registration Act of 1993: Mandates that states designate disability service agencies as voter registration agencies for the purpose of offering registration services to the consumers.

U.S. Department of Justice, A Guide to Disability Rights Law (2009) (excellent source for Federal Laws concerning disability)

United States Government Accountability Office (statement of Barbara Bovbjerg), Voters With Disabilities:
Challenges to Voting Accessibility, 2013.

American Bar Association Symposium on Facilitating Voting as People Age: Implications of Cognitive Impairment Recommendations, 2007

American Bar Association Commission on Disability Rights

Judge David L. Bazelon Center for Mental Health Law

“The Right to Political Participation of Persons with Mental Health Problems and Persons with Intellectual Disabilities”, European Union on Fundamental Human Rights (2010)


Your Vote Your Voice,  a website sponsored by the Minnesota League of Women Voters, traces the history of voting rights for specific minority populations, including people with disabilities; addresses current voting rights issues and barriers that still exist; and features video clips of Judge Donovan Frank and Professor Elizabeth Schiltz,  highlighting the ADA and constitutional issues regarding voting rights.

Voting Rights Cases

Minnesota Voter’s Alliance v. Richie, 890 F.S. 2d 1106 (2001)

In re Guardianship of Brian W. Erickson, 4th Judicial District, Dist. Cr., Probate/Mental Health Division (Oct. 12, 2012)

Harper v. Virginia State Board of Elections (The Supreme Court will use strict scrutiny when it addresses the constitutionality of laws limiting the right to vote)

Lassiter v. North Hampton County Bd. Of Elections, 360 U.S. 45 (U.S. 1959) (The ruling of the Court has since been overturned, it is cited only with respect to affirming the state’s right to establish voting standards.)

Tennessee v. Lane, 541 U.S. 509 (U.S. 2004) (Ruling cleared the way for voting rights litigation under Title II of the ADA)

*Doe v. Rowe, 156 F. Supp. 2d 35 (D. Me. 2001)

Law Review Articles

Jennifer Bindel, Equal Protection Jurisprudence and the Voting Rights of Persons with Diminished Mental Capacities, 65 N.Y.U. Annual Survey of American Law, 87 (2009).

Nicholas F. Brescia, Modernizing State Voting Laws That Disenfranchise the Mentally Disabled with the Aid of Past Suffrage Movements, 54 St. Louis U. Law Journal, 943 (2010).

Michael Ellement, Enfranchising Persons with Disabilities: Continuing Problems, an Old Statute, and A New Litigation Strategy, (May 13, 2013). Available at SSRN: or

Kathleen Harris, Guardianship Reform, 79 Michigan Bar Journal, 1658 (2000) (This is a bit older and mostly specific to Michigan)

Sally Balch Hurme and Paul S. Appelbaum, Defining and Assessing Capacity to Vote: The Effect of Mental Impairment on the Rights of Voters, 38 McGeorge Law Review 931 (2007)

Ryan Kelley, Toward an Unconditional Right to Vote for Persons with Mental Disabilities: Reconciling State Law with Constitutional Guarantees, 30 Boston College Third World Law Journal, 359 (2010).

Kay Schriner et al., Democratic Dilemmas: Notes on the ADA and Voting Rights of People with Cognitive and Emotional Impairments, 21 Berkeley Journal of Employment & Labor Law, 437 (2000).

Michael Waterstone, Constitutional and Statutory Voting Rights for People with Disabilities, 14 Stan. L. & Pol’y 421, 454 (2005).

Henry G. Watkins, The Right to Vote of Persons Under Guardianship-Limited or Otherwise, 44-NOV Ariz. Att’y, 34 (2007). (Specific to Arizona, but good model for analysis)

Yale Law Journal Company, Inc. Note, Mental Disability and the Right to Vote, 88 Yale Law Journal, 1644 (1979).

Sharing the Dream: Is the ADA Accommodating All?, U.S. Commission on Civil Rights publication, Chapter One (2000).

Harvard Law Review Association, Developments in the Law–The Law of Mental Illness: Voting Rights and the Mentally Incapacitated, 121 Harvard Law Review, 1179 (2008).

  1. ^Kay Schriner, Lisa Ochs, & Todd Shields, Democratic Dilemmas: Notes on the ADA & Voting Rights of People with Cognitive and Emotional Impairments, , 21 BERKLEY J. EMP. & LAB. L. 437 (2000). (Updated by the
    Bazelon Center for Mental Health Law and the law firm of Schulte Roth & Zabel LLP in 2012)
  2. ^Jane DOE, Jill Doe and June Doe, by and through their guardian, Maine Department of Human Services, and the Disability Rights Center of Maine, Inc., Plaintiffs v. G. Steven ROWE, Attorney General for the State of Maine, et al., Defendants, 156 F.Supp.2d 35, 51 (D. Maine, 2001)
  3. ^Kay Schriner et al., Democratic Dilemmas: Notes on the ADA and Voting Rights of People with Cognitive and Emotional Impairments, 21 Berkeley Journal of Employment & Labor Law, 437 (2000).
  4. ^United States Government Accountability Office (statement of Barbara Bovbjerg), Voters With Disabilities:
    Challenges to Voting Accessibility, p. 2, 2013.
  5. ^Tennessee v. Lane, 541 U.S. 509, 528 (U.S. 2004)
  6. ^Michael Waterstone, Constitutional and Statutory Voting Rights for People with Disabilities, 14 Stan. L. & Pol’y 421, 454 (2005).
  7. ^United States Department of Labor, Section 504, Rehabilitation Act of 1973 [29 U.S.C. § 701], Section 794(a), ¶1.
  8. ^Michael Ellement, Enfranchising Persons with Disabilities: Continuing Problems, an Old Statute, and A New Litigation Strategy, (May 13, 2013). Available at SSRN: or
  9. ^In re Guardianship of Brian W. Erickson, 4th Judicial District, Dist. Ct., Probate/Mental Health Division, 1, 24 (Oct. 12, 2012)
  10. ^ ., 2006–2007 Leg. Sess. (N.J. 2007) (a concurrent resolution to amend Article
    II, Section 1, Paragraph 6 of the New Jersey Constitution) and ballot referendum, New Jersey Public Question No. 4
    (approved Nov. 6, 2007)
  11. ^ American Bar Association Commission On Law And Aging Standing Committee On Election Law, Commission On Mental And Physical Disability Law, Report To The House Of Delegates, at 14-21, August 13, 2007.