Voting Rights of People with Psychiatric Labels

This is being provided in a rough-draft format. Communication Access Realtime Translation (CART) is provided in order to facilitate communication accessibility and may not be a totally verbatim record of the proceedings.

JENNIFER MATHIS:  We're going to get started.  Thanks everyone for coming.  This is the session on voting rights for people with psychiatric labels.  I am Jennifer Mathis.  I am a white woman with short hair of indeterminant color.  Sort of mousey brown.  And wearing a purple shirt and a black suit.  And my co-presenter. 

KRISTIN AIELLO:  Thanks everybody my name is Kristin Aiello my pronouns are she/her.  I'm a white woman with shoulder length hair that is finally gray, going gray.  Because when I was a young attorney, I wished that I would have gray hair so I would have a little credibility.  So I have lots of credibility right now.  

[ Laughter ]

 And I am wearing a black suit and a white shirt and black boots that were suitable to walk around Baltimore in, which has been really fun.  So thanks for being here.  This is a topic that is near and dear to us.  We first met more than 20 years ago when I was helping out when I was at the Bazelon center and Kristin is now in her own practice and I'm the Department of Justice civil rights division. But we both continue to focus on this issue where we can.  And a lot of interest in it.  And I should say at the justice department there is interest in this issue. So I would encourage people to think about that.  And if you have people who are impacted by this issue, think about filing complaints.  

This is an issue that got a lot of attention, a long time ago, I would say like in the 1980s.  The bar association focused on this issue a lot.  There has been on and off interest on this issue with state laws practices that disenfranchised people with disabilities based on voter confidence requirements, whether in the law or in people's heads.  And there have been very, very few cases challenging these requirements or practices.  So it continues to be an issue.  

The law has changed over time, we'll talk about it.  We'll talk about how the state laws have evolved.  Practices remain often the same. And it's an area that has been, for reasons we'll talk about, challenging to developed challenges in.  Because in part, disenfranchisement brings more disenfranchisement and it's hard to identify plaintiffs in this area.  Anyway, we will hopefully get some thoughts and practical tips about that, and we'll talk about the state laws.  We'll talk about federal law.  We'll talk about some of the cases that have been brought so I will turn it back to Kristin.  

>> KRISTIN AIELLO:  Thank you I'm so excited to tell you about Doe V. Roe.  Although it's a case rooted in Maine, it could happen anywhere in the country because the disqualifying often constitutional prohibitions on voting are really across the U.S. So I would recommend that everybody take a look at the wonderful Bazelon research which I have no doubt that Jennifer started years ago, it's called state laws affecting voter rights with people with mental disability.  It includes qualifying provisions, guardianship provisions, probate statutes, mental health statutes and so on.  But it's a really good overview and I would urge you all to take a look at it and double check your state provisions to make sure it's up to date.  But it's very helpful.  

In some states everyone guardianship automatically loses their right to vote.  Doe v. Roe found the case to be illegal and unconstitutional. In other states people subject to guardianship may retain the right to vote.  Depending on the state the person may lose their vote unless they show they're competent.  And other showing competence for the right to be taken away. Full guardianships are more likely to remove the right to vote in limited guardianship the court needs to make specific findings of incompetence. So if you do decide that you want to challenge your provision in your state, you should definitely look carefully at the plaintiffs that you choose.

When I was choosing our plaintiffs, I really look for people under full guardianship, because if they're under limited guardianship, you're much less likely to be able to have standing to challenge.  And there's some dramatic points in the Doe case that I can't wait to share with you not having standing.  There's a lot there when you're as paranoid as I am in litigation, it's a hard life but usually you make sure you cover your basis.  And having more than one plaintiff, plus we had the name the P&A was really helpful.  And having Jennifer on my side, that was invaluable. 

JENNIFER MATHIS:  We're going to start with just an overview of the laws and the practices.  As Kristin said, many states have laws that disenfranchised people on various types of grounds.  Typically related to guardianship status.  In many cases guardianship status plus.  Further capacity requirement. In addition to the state laws, there are many practices that happen where people, practically speaking, are denied the opportunity to register or to vote.  Not because of the state laws, but just because of maybe a service provider believed that they don't have the capacity to vote and shouldn't be voting.  Maybe a family member, maybe election official, poll worker.  And often what happens on the ground has little relationship to what's in the state law.  

One of the things that I have found interesting is that there have been some surveys done, Philadelphia in 2008, I think, there was a survey done of Philadelphia area nursing homes, surveying staff to identify what practices they use in helping residents who want to vote.  And it was widespread among staff that they reported asking people questions, deciding who they thought was competent to vote.  Certainly to the extent that state laws do have voter capacity requirements generally, they require a court to be the one who decides who has the capacity to vote.  Not random people, nursing home staff making capacity determinations.  But in Philadelphia, you were in a state that doesn't even have capacity requirement for voting.  So this is reflective of what happens in so many places.

It really has nothing to do with what's actually on the books, what's actually in state law.  It's just I think such a widespread notion that somehow people shouldn't be voting if they're quote unquote out of it and if it's appropriate for all manner of folks to decide who that is.  With election officials, poll workers.  There have been examples of poll workers requiring people coming from a group home to take a test before allowing them to vote. In one case, I think it was the Trenton State Psychiatric Hospital case.  Election officials were sitting there, I think it was Joe Young from the New Jersey P&A who went there to figure out who was tossing all of the ballots from the hospital, because they assumed that if you're in the state hospital that you shouldn't be voting.  And so those are I think some of the examples of practices that happen day to day that really have nothing to do with the state laws.  

>> KRISTIN AIELLO:  That's so true.  I mean in Maine we had our constitutional provision excised by the court    not excised but found to be unconstitutional.  And as Eve Hill knows, I always claim Eve because she is a native of Maine.  Maine is one big small town.  Everybody knows everybody, right, Eve?  And there are situations just when I was still with the P&A about five years ago, I got a call that a person, one of the clerks knew the people who lived in a group home and they came in and she wouldn't let them vote.  So we got that taken care of pretty quickly.  But it's still the same idea. So there are different levels of    this is just me talking, not Jennifer with the DOJ.  In fact, nothing you say is connected with the DOJ.  But there are some laws that are really bad.  Some that are bad, some that are not as bad.  And then some that are better.  

The bad, I think, from my perspective, my own opinion, is the categorical being under guardianship and getting immediately taken off the roles.  There was a P&A in Oklahoma that was really active when an individual who was 18 went under full guardianship and went to go vote and they told him sorry you're off the rolls.  There's a really good piece on 60 Minutes I would recommend everybody check it out Google 60 Minutes Oklahoma vote disability something like that.  But it's really moving because what happened from there is a terrible situation but the legislature got involved and ended up passing new statute that required probate courts, believe it or not, imagine that, to evaluate whether or not someone has capacity to vote.  That's the concept that we're going to get into a little more detail shortly.  But in any event, let's see.  The laws that are I think better let me make sure.

JENNIFER MATHIS:  We divided these into the good, the bad, and the ugly.  Sort of like a little bit it's fine. We're not using slides because I'm not going to try to get slides cleared through the DOJ. But you know, thinking about states with sort of maybe the ugliest terminology.  Back in the 1980s, 1990s, at least the 1980s, the majority rule, the majority of states had laws that said something like idiots can't vote, sometimes lunatics.  Whatever, offensive language, and that was the greatest number of states that had that type of voter capacity requirement, if you would call it that. The one thing that I have to say for those states is that when that was the norm, and that was a practice, I think they were used less because they were so ambiguous, so unclear, that nobody knew how to use them.

Nobody knew who was covered.  Who counts as quote unquote insane.  Ironically New Jersey at some point changed its constitutional provision, as well as its statutory provision, that disenfranchised people who were quote unquote idiots and people who were quote unquote insane and substituted a requirement that people should be disenfranchised only if a court finds they don't understand the act of voting.  I can't remember where the default was.  It matters what the default is.  If you keep the right to vote automatically, unless a court finds you lack capacity, or if you lose the right to vote automatically, unless the court determines that you should be voting.  

I can't remember which way the default was in New Jersey.  But I think more people ended up losing the right to vote under this new standard where the language was less ugly, but more amenable to use. I think very few states, there are now I think seven states that have these provisions disenfranchising.  Maybe all of them, except two Alaska, Arizona, Kentucky, Minnesota, Mississippi, Montana, and Ohio.  All of those except for Alaska and Montana have statutory provisions that are more specific.  And so those provisions tend to govern.  So people just interpret the idiot and insane language to be consistent with the narrow language or more up to date language in the statutes.  But those are the ugly statutes in terms of terminology.  Like I said, the one upside of the statutes is they were so rarely used because nobody knew what they meant.  

KRISTIN AIELLO:  So moving forward to what's considered a better standard, if there is a capacity to vote standard.  Every state is different, and there are real issues, as Jennifer alluded to, with having capacity tests.  And we'll talk more about that.  But the better law is a law that was recommended by the American Bar Association. Jennifer was there negotiating this.  And that law says that a person can vote if they can communicate with or without reasonable accommodation with or without accommodations, a choice whether to participate in the voting process.  So the states who have that, who have adopted that standard, are California, Maine, Maryland, Nevada, New Mexico, and Washington State.  We in Maine adopted that effective in 2019 when we did our probate code.  But this is the current consensus among legal and subject matter experts about communicating a choice.  

And it's important to note when you think about it, it's not a capacity or functional test.  It includes the important components of presumption, that the right to vote is retained.  A standard that doesn't exceed what's required of other voters.  And individually tailored accommodations consistent with equal protection and ADA requirements. So keep an eye out if there are different ways to get at these problems, and one is legislative.  And your state may be ready for an update to your statute and your probate code.  Maine has been a really advantage.  We adopted supported decision making, the standard for voting, and it's just been a real improvement. 

JENNIFER MATHIS:  I should go back, going down the chain again between sort of the ugly and the better, sort of the bad or the maybe less bad.  For a long time after some evolution happened, so after we moved away from most states having the really old offensive language, the majority rule became disenfranchising people under guardianship.  So categorically. What Kristin just talked about is sort of    I guess it's a variation of that.  Well, it's sort of    that's the bad.  That's the sort of problematic, I think from a legal perspective problematic.  From a policy perspective, to say if people are under guardianship they lose the right to vote.  Guardianship is about your ability to ensure your own health and safety.  There are a lot of issues around the guardianship system generally beyond voting, but certainly it really has little to do with your ability to vote.  

The plaintiffs in some of the cases that have been brought challenging these restrictions have been people who are under guardianship for one reason or another, and clearly have a lot of awareness of political process, about voting process.  We'll talk about some of the plaintiffs in cases and it is kind of stunning how much people have been aware of the cases. In fact there were a lot of people first people. People who were members of People First of Missouri, in that case.  And they had their own elections.  So a lot of these people had voted for people for office, had run for office, had held office.  Had lobbied their legislators around very important issues in their lives, including their Medicaid benefits.  And yet they were not allowed to vote because they were under guardianship. So that's sort of still really bad type of law.  

The majority rule now has moved to laws that say if you're under guardianship, you lose your right to vote if you lack the capacity to vote.  And that sounds better to a lot of people.  I think that sounds more tailored, it sounds like that's reasonable because you're talking about specifically someone's capacity to vote.  The issue is what does that mean.  And how would one determine capacity to vote.  And beyond that, the issue is if that's a voter qualification requirement, it's only being applied according to most of these laws to people who are subject to guardianship proceedings, which is really primarily people with disabilities.  So you're sort of singling out people with disabilities and saying whatever this standard is, you are the only people that have to meet it.  So you may have judges asking people who is the mayor in this city, who's the governor?  Why do you want to vote?  Why is voting important to you?  All manner of questions.  Some people have just gotten asked do you want to vote?  

I think we're not suggesting that the answer is having standardized question or set of questions that applies in guardianship proceedings.  Because you're still singling out people under guardianship or subject to guardianship proceedings for this type of question that you're not asking to allow any other person to vote.  But it just shows, I think, the arbitrary nature of determining capacity to vote.  And there has been sort of a    there was an effort at some point to set up a voter capacity test.  Which we'll talk about, which was a lit alarming in itself.  And so not advocating for that, certainly.  But what Kristin talked about in terms of that standard in those five states, the standard that the ABA adopted through a resolution after a symposium in 2007, we had a big negotiation about what the standard should be.  And the folks who were pushing this voter capacity test were there advocating that you should have this test that's done by professionals, health professionals or by poll workers, it was a little unclear.  

People from the disability community, a few of us managed to get ourselves invited to this symposium.  And essentially presented the problems with having that sort of standard was very interesting.  Because you have a lot of people who were professionals in the area of capacity, were very used to looking at capacity for all manner of things, for healthcare decisions, for many other types of decisions.  And it sort of doesn't strike them as weird to have capacity tests for voting, because they're the capacity folks.  So you had psychiatrists and psychologists who are saying we should have a 7 part test and safety should be an issue because you're going to injure yourself pulling a lever down or something?  Then you had voter people, Secretary of States, the election officials who understood the voting process better, but it was really weird to propose capacity requirements to decide who should be voting, because they understood that we don't really require much of anything.

To allow people to vote.  We don't scrutinize the rationality and people vote for all kinds of bizarre reasons.  And that's how our system works.  And so the idea behind the standard that we came up with, is if you can communicate a desire to participate in the voting process, if you can communicate with or without accommodations a desire to voting process, an effort to come as close as we could to what we expect of anybody is do you want to vote.  Because that is the only capacity standard that we apply if there is one to any other voter.  To voters without disabilities, is essentially do you want to vote.  And if somebody doesn't have the capacity to communicate a desire to vote, they're not going to vote.  Sort of self executing.  People have raised issues around fraud and the possibility that people will troll nursing homes or other facilities and substitute essentially their vote for their desires for somebody else's desires by quote unquote assisting somebody to vote who doesn't have the capacity to vote.

And to use that as a reason to say well, we should have these kinds of capacity standards.  And I think our answer has always been, you shouldn't take away somebody's right to vote if somebody else is acting inappropriately.  Obviously it's not legal.  It's not what somebody's supposed to do to make their own decisions.  That's not assisting somebody in voting, and you can educate folks about what they can and can't do in terms of assisting somebody to vote.  But it has to be the choice of the voter.  And not the choice of the assister.  But that's not a reason to remove people's right to vote.  It's a reason to ensure that if there is such activity, that it is addressed through ordinary channels, through criminal prosecutions where appropriate, through education where appropriate.  

And just as you wouldn't take away somebody's right to own property because you decided that person was vulnerable to being robbed, you shouldn't take away their right to vote because you decided that they're more vulnerable to somebody abusing the assistance process. So that was sort of the best standard that we could come up with, that basically tries to    if you have a voter capacity standard at all, to approximate what we apply to every other voter.  

KRISTIN AIELLO:  It's just incredible that we all know in this room when it comes to people with disabilities, it's not just responding to what happened. It's let's systemically take away rights of everybody with disabilities.  And I'm preaching to the choir here. I think I'm just looking at the time, and I think what I might do is skip right down and start talking about Doe V. Roe.  We were going to talk about the claim but I'm going to talk about that. Doe V. Roe brought four claims.  Violation of due process, violation of Americans with Disabilities Act, and violation of Section 504.  So in Doe V. Roe it was the your 2000, article 2 section 1 of the main constitution said persons under guardianship for reasons of mental illness are prohibited from registering to vote in any election.  This was in place since 1965.  It was a narrowing from prohibition against paupers and people under guardianship.  Thanks a lot, Maine.  

It caught the attention of legislators in 1997.  Instead of actually voting to get rid of this provision, they decided to do the unreasonable thing and send it out to referendum.  So why shouldn't we turn to the majority to protect the rights of the minority.  Right?  We know the answer to that question. So in 1997 it went to the voters of Maine who were asked if they favored amending the constitution removing the language and so on.  It didn't pass.  It was brought up again in 2000.  That was the year George W. Bush was running and Gore.  And also importantly on the ballot was whether or not people wanted to keep the provision.  And they changed the wording this time. They used discrimination.  Do you favor amending the Constitution of Maine and discrimination against persons under guardianship.

It was even worse, the margin was even greater.  People were saying really dumb things in the paper like enough crazy people vote already.  It was just outrageous and insulting. So during this time, it was the spring of 2000, and I thought I don't trust the public.  I think this needs to go before a federal judge.  So I was working for the P&A and I started looking for plaintiffs, looking to educate people about their right to vote, excuse me.  And see if they wanted to challenge this provision.  

[ Laughter ]

So it was, Maine is, again, a large small town.  The advocates across the state knew about this.  It was being talked about because it was on the ballot.  So I'm in institutions anyway because I was a mental health attorney then strictly.  So I was able to again, the importance of the P&A cannot be stressed enough here.  I was already in there, I was already talking to people.  The problem was I had a baby in June.  And Kay was born, not regarding all the work that I had to do to get this lined up.  So during my maternity leaves, Kate and I went to the institutions.  And I will tell you that babies are a great conversation starter. So in any event, we ended up having three plaintiffs plus the P&A.  Jane Doe was 33 years old, under full guardianship diagnosed with bipolar.  

She was never informed that she would lose her right to vote when she went under guardianship.  Jane Doe knew every issue on the ballot.  She knew the referenda, she knew the people running.  She identified with a party.  And she really wanted to vote. Jill was 75.  Diagnosed with bipolar was placed under guardianship in 1996.  She had always voted.  No one raised the right, again, that she lose her right to vote at the guardianship hearing, even though the guardianship hearing was fought and she wanted to limit it to finances and that didn't work.  She was placed under full guardianship and Jill was similar. Jill and June Doe both basically lived at Bangor Mental Health Institute.  And all of them had treatment providers who were really supportive.  All of them had public guardians, who, again, when you're looking at challenging these provisions, get the guardian on your side.  They were really helpful to me.  

So basically we were all in.  We went to court for preliminary injunction in October.  Judge Single was sitting on the bench, and we lost.  We lost, I was crushed.  The judge said go back to the probate courts and find out if you can live with the guardianships.  I probably called Jennifer and I was like Jennifer, this is what they're doing now. In any event, sometimes the stars occasionally line up in cases and in this case they did.  The judge in Bangor said no, I can't override the constitution.  The judge in Aroostook County said sure I'll amend your guardianship.  So it became very clear that there was unequal justice in Maine because the probate courts were kind of like the wild west.  They did what they wanted.  

And so I remember at the hearing when we were sitting there, and Judge Single was up there and the state was over here and the state said they haven't even been denied.  They've been voting.  Why is this a big deal?  No one has ever challenged this provision before. The room went silent.  And I am not exaggerating.  It was palpable when I watched Judge Single look up, laser ray at the state.  I was happy I wasn't sitting over there.  And he said, and do you know why?  It was like this I just imagine this growly voice because that was the mood in there. And he went on to say that he talked about people like the plaintiffs being marginalized and powerless.  And this is not a surprise.  

I later learned, actually this is my own guess, but I learned that Judge Single was born in a refugee camp in Italy in 1945.  His parents had escaped the Holocaust.  I'm attributing that, his appreciation for his own life experience, but it was incredible and it was so affirming as a disability rights attorney to be sitting there.  And I pass that on to all of you, because we're on the same fight. In any event, we ended up coming back, and the court found in our favor on the equal protection claim, on the due process claim, on the ADA claim, and on the 504 claim.  And Jennifer, if you want to talk about, because I don't want to take up the rest of the time, we getting late here.  If you want to talk about the equal protection claim, any of those claims so people have an idea of what they're looking at. 

JENNIFER MATHIS:  Sure.  So I think in all of these cases that had been brought, there had been equal protection claims, basically fundamental rights that's at issue.  A good standard has to be narrowly tailored to protect a compelling government interest.  And obviously the compelling government interests that states tend to assert, this voter fraud issue or just integrity of their voting systems, that people who lack capacity and therefore have a guardian can't understand the voting process, shouldn't be voting.  As we talked about, there's sort of not really much of any relationship between the standard for guardianship and sort of the concerns about voting. Who should be voting. The system.  There have been plaintiffs that Kristin described, the Doe plaintiff in our Missouri case, we had three plaintiffs.  

One of them, the lead plaintiff was a law professor who had developed a psychiatric disability late in life.  He could tell you the judicial philosophy of everybody on the Supreme Court.  He was a law professor.  He was the first African American man to graduate from Harvard Law School.  A lot of firsts, he had accomplished a lot in his life and he was a very, very aware person.  And he couldn't vote.  He moved to Missouri.  Actually he was taken by his state guardian out of Illinois.  He was in a facility in Illinois.  They drove him to Missouri because they felt he was being abused essentially in this Illinois facility.  Registered him to vote.  And got a response that he couldn't vote because he was under full guardianship.  And he clearly was somebody who had capacity.

And so that equal protection analysis seems like it's hard to defend law like this that is targeting the integrity of the voting process when it doesn't seem like the integrity of the voting process is really an issue here is at risk with people like this, who clearly understand like the Doe plaintiffs and like Steven Pride, know what they're doing when they're voting. So to kind of target with a broad brush anybody under a guardianship order seems overbroad and not narrowly tailored. Substantively due process essentially the same analysis.  There's procedural due process claims we wanted to bring also.  Did you have procedural due process claims?  

KRISTIN AIELLO:  Yeah.

JENNIFER MATHIS:  We didn't do it in Missouri because our legal director said there's something just a little bit off about suggesting that if you only had a process that worked, this would be okay.  If you had a law that disenfranchised people because of their race, you wouldn't say well, we should focus on procedural due process and see if they get process to determine if it's in fact they are the wrong race and shouldn't be voting.  So you know, I think we might have gotten actually a helpful ruling in the Missouri case if we had brought a procedural due process claim there.  Because Missouri was one of the places where the default is you just lost your right to vote.  So we had lots of folks who had just lost their right to vote altogether and guardians, as Kristin said it's helpful to have a guardian on your side and we had all these public guardians who said I'm not going to get him his right to vote back.

It's coming out of his money, it's coming out of his account and we would only go back to restore all rights.  We wouldn't go back to pick and choose because we just don't have the resources to do that.  And we don't want to take their resources.  So we've never done that in all of the decades that we've been public guardians.  And so we're not going to do it now.  In any event, that's are I think some of the equal protection analyses, of procedural due process.  You should have the right to a predeprivation hearing, a predeprivation notice if you're going to have the opportunity to contest it doesn't help if you get it post deprivation if you've lost the right to vote.  How important is the procedural due process as opposed to the substantive due process and then there's ADA504. 

KRISTIN AIELLO:  Yeah.  And under the Doe case, the court found that the due process claims and equal protection claims, they were both unconstitutional on their face and as applied.  So the, on their face is a really hard claim to bring.  Because basically the state has the opportunity to slice and dice and try to find any way to save it, as opposed to an ADA claim which the court has to look at at that moment is there a discrimination going on.  Not if you apply it a different way is there discrimination.  So it was a super exciting win on that part, that the judge made those findings.  As far as the ADA claims, the court found that the plaintiffs proved that they were qualified individuals, that they were discriminated against in services, programs, activities and such discrimination was because of their disabilities.  

 Now all of that is stuff that we all say in our sleep.  But when you think about the word "qualified" when it comes to the voting context, under what standard are we talking about qualified?  The court makes a fleeting reference to the state tried to get the court I think to find that their compelling state interest, which was the state has an interest in making sure people understand the nature and effect of voting.  I think the defendants tried to make that the capacity standard in Doe V. Roe and the court did not take the bait said regardless of what standard is applied, I find against you in the ADA claim.  

So I think Jennifer was talking about after Roe came out, there were all kinds of    there was a psychologist who got involved and wanting to take the standard, the compelling standard applied in Roe and make that a capacity test standard, which in theory  we couldn't control the psychologist. In any event, the court basically, when it comes to an ADA claim and a categorical exclusion, you're looking at the concept of screening people out because they weren't qualified and the court found they were screened out because of their disabilities and because they went under guardianship.  It really lent itself well to both the due process and substantive claims. 

JENNIFER MATHIS:  Let me talk a little about the Missouri case and maybe we can talk a little about sort of identifying the cases or what should we be looking for.  

KRISTIN AIELLO:  We have about 7 minutes.

JENNIFER MATHIS:  So in Missouri, we didn't have quite as much luck as Kristin did in Maine.  We actually could not find a probate judge who would say the law is categorical. The law says on its face if you're under guardianship you can't vote, and in fact it's a felony to vote if you're under guardianship.  But as happens in many of the states where the law says you can't vote if you're under guardianship, probate judges do all sorts of things in different places.  Sometimes even within the same jurisdiction.  So our one categorical person, actually the original plaintiff died.  So once he died in the middle of the litigation, we no longer had somebody who had been disenfranchised directly.  We had another plaintiff, Bob Scaletti, who had been disenfranchised.  He was under full guardianship.

And he tried to vote and couldn't vote.  But after the lawsuit was filed, the state went back and dug in its files and found that his original guardianship order had a little asterisk found at the bottom that said except for voting.  He retains the right to vote.  Hadn't come up, but it was in there.  And apparently that never got transferred when he had a subsequent updated guardianship order so he got taken off the voters roles but as soon as they discovered that, they said oh, we made a mistake and sent him a voter card and we then had no individual plaintiffs and we amended and added the P&A as an associational plaintiff.  And we did then find a bunch of the folks that I talked about who had public guardians.  Missouri has a public guardianship system, county level.  

And so all these people had been automatically disenfranchised by virtue of their guardianship order and they all had these public guardians that were submitting declarations saying he's not getting his right to vote any time soon.  We think he should be voting but it's not going to happen.  And even though there had been no challenge to P&A associational standing, I think what happens in district court, they said that actually there wasn't a categorical bar on the right to vote simply because Mr. Scaletti obviously got the right to vote, so therefore there was no categorical bar, end of story, we lose.  We went up to the 8th circuit, the judge writes an opinion that basically says no P&A standing.  Even though had never been briefed, had never been argued, had never been raised.  

There's a bad 5th circuit case on P&A standing that says people with disabilities obviously can't be controlling an organization like a P&A.  So the 8th circuit says we follow the 5th circuit.  Not going to consider any of the exemplars we had who had all lost their right to vote. So the only person that we lad is the plaintiff, was Mr. Scaletti, who had suddenly regained his Mr. Asterisk had regained his right to vote. The good thing about the 8th circuit decision is it does say, if in fact there was a categorical bar, then as applied, at least to people say, for example, people who lost their right to vote because of a physical disability, I mean were placed under guardianship because of a physical disability and therefore lost the right to vote, that wouldn't pass muster under the equal protection analysis.  

So in the end we thought that's actually a victory.  That is what we were trying to get to in the first place.  So even though we didn't have plaintiff who they felt satisfied, it's really a good ruling I think on the law.  Let's talk a little bit in a couple of minutes what we should be looking for.  I think certainly finding these people is hard.  We both I think spent time in institutions trying to find folks.  These are not folks we're going to be calling generally.  And even understanding they've got rights, because they are so used to not having any rights in any decision making to do themselves.  

Public guardians often are particularly helpful.  Any guardian, but particularly public guardians that support somebody's right to vote say they're not going to be able to get it. Try to get a probate judge who will in fact    if you're dealing with this type of law that says people under guardianship can't vote, I think trying to find a probate judge who says the law means what it says.  Finding associational plaintiffs.

KRISTIN AIELLO:  Absolutely.  Associational plaintiffs.  A judge who's the uncle of the current sitting federal judge John Wicok.  The stars lined up and I was going in to get the order amended, another advocate came racing in with his client with an intellectual disability and said I'm going to get this amended for Mr. Holt.  I'm like oh, my God this is litigation.  You don't know what's going to happen.  It could be good, it could be bad.  It turned out to be great because the judge said you're not under guardianship for mental illness, you're under guardianship for what used to be known as mental retardation.  And my people were under for mental health.  So it just created the equal protection case right there.  

    So having more than one plaintiff, having someone with a full guardianship, not a limited guardianship.  Working with the guardian is super important.  And we are at 11:00.  I can go on and on.  But I want to say thank you so much to Jennifer for coming.  I asked her to come, and I'm thrilled to have you.  And thanks to everyone for being here.  Jennifer? 

JENNIFER MATHIS:  We can run a couple of minutes over.  So we can take questions.

 

Question and Answer Section 

AUDIENCE MEMBER: This may just be my own paranoia and recent experience, but who were your defendants?  Because everywhere I go say you can't sue the state, you can't sue the county either, you can't sue the legislature.  Who can you sue?
 
JENNIFER MATHIS:  I think we both sued the state.  Obviously ex parte.  You have the Lightburn problem.  Here we're challenging a state law.  

AUDIENCE MEMBER: In Texas and Alabama, I would probably have to sue a probate judge or something. 

KRISTIN AIELLO:  We sued the Secretary of State, each clerk in each county.  We sued the Secretary of State and I think the attorney general too who enforces the law.  That was fun. I always like to bring in the county people whenever I can.  

AUDIENCE MEMBER: Is there a theory of liability if a private institution, a skilled nursing facility, kind of categorically says our people here aren't able to vote under the ADA?  I was thinking that through a little bit, it sounds like that's an issue and I've had parents who have been in nursing facilities and I've seen that go on.
 
JENNIFER MATHIS:  Not at the DOJ I don't. I mean, I do think that are issues if you look at the Bazelon Center's voter guide, there are some thoughts about that in there.  I do think that there is potentially a Title III discrimination problem that essentially  people don't leave their voting rights at the door when they go into a nursing home.  And if the nursing facility is going to essentially impose a condition of being there, that you essentially lose your right to vote by virtue of being there.  I think there may be Title III problems in certain circumstances.  But it's a little bit I think it's fact dependent.  

KRISTIN AIELLO:  It's tricky, and I was going to say Title II too and I would like in our state the Maine rights act to see if there's any hook there.  

AUDIENCE MEMBER: Thank you both so much.  

AUDIENCE MEMBER: I had a question about voting in a carceral context, if there is any type of comparative situation.  From the lens of my home state Indiana.  People have been languishing in jail pretrial due to lack of capacity, whatever that means.  And they're waiting for their capacity to be restored, whatever that means.  Obviously I'm skeptical. But I guess are the tests in voting and in carceral settings similar or different, and has there ever been a push to restore voters' capacity?  Which obviously I'm skeptical of, but I'm curious if you've seen trends in that overlap at all. 

JENNIFER MATHIS:  There was a case of people who were I think incarcerated, they may have been hospitalized but I think they were incarcerated.  They may have been yeah, I think they were, I don't think they were incarcerated.  And there was an election for about that whether they should be considered to lack voting capacity because of that.  And I think there was a decision that was overturned by the election board.  I think the election board said the fact that they were in GRI didn't mean they lacked the capacity to vote.  

But yeah.  I don'T. I can't think of any because there have been so few cases that has come up so infrequently, as a kind of a legal issue, it comes up all the time.  I think it just doesn't come to us. But I can't think of people in jail where it is come up. Certainly there have been all of these efforts to pass state laws that are restoring voting rights to people who are felons.  There's a lot of attention to that issue.  We always say what about people under guardianship because they're the only other group that sort of loses voting rights in that way.  And nobody seems to care.  But yeah.  I mean, I don't think certainly the same analysis applies if a person is incarcerated.  

JENNIFER MATHIS:  You were right.  The case is Sacramento versus Cranston board of canvassers.  And that was a Rhode Island P&A case where they successfully argued that GRI didn't equate with incompetency standards.  There's been other cases involving people who are in facilities holding things like ballots can be challenged simply based on the voters' residents in a state psychiatric hospital.  Holdings like that.  There was one in Massachusetts, residents in state institutions for individuals with developmental disabilities.  But there's some good precedent out there I think.  Good work to the P&A. 

To the extent I think you're talking about people who are in jail while they're waiting for capacity to be restored or to even have a capacity determination.  I think they are sort of similar to the NJRI the fact that they're there because they've been determined not to have capacity to stand trial has nothing to do with whether or not they understand voting and whatever that means.  

AUDIENCE MEMBER: Thank you so much.  

[ Applause ]