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Some People With Disabilities Can Be Stripped of Their Right to Vote — My Brother Might Be Next

Though their wellbeing is often dependent on government spending and politics, “incompetency laws” are taking away their right to have a say in the process

My brother Maxwell doesn’t know the difference between leftists and conservatives. He doesn’t know about tax structures, foreign policy or the federal deficit. But he does understand compassion, freedom and the fact that his life, like many Americans, relies upon the care of others. And so, he votes accordingly. 

Maxwell is 28 and has cerebral palsy. He cannot walk, and has limited mobility in his upper body. He has partial brain atrophy, and it limits some of his cognitive abilities. Our family has always thought other parts of his brain are enhanced because of it: He couldn’t, for example, solve a complex math problem, but if you hadn’t seen him in a decade, he could tell you the make and model of the car you were driving when you last met. 

He voted in the last presidential election, as well as the midterm in Massachusetts. He doesn’t yet know who he’ll vote for in November, though that’s only because the options haven’t yet been explained to him. 

My brother Maxwell, right, and his caretaker Zachary after the 2018 midterm election.

I’m sure that, like myself, my mother and the rest of my immediate family, he will likely be voting for Bernie Sanders. Trump, whom he calls “Donald,” is too aggressive and mean-hearted for Max. 

As I spoke to him over the phone yesterday, Max recalled voting for a specific question on the 2018 midterm. The question would have enforced a limit upon the number of patients a nurse could be assigned at a time in a hospital, thereby requiring more nurses to work. For Max, the logic was simple: He likes nurses. More nurses sounded good. 

Sure, there was more nuance to the question at hand, and maybe a more “informed” voter would know that. But it’s just as easy — and arguably more common — for a non-mentally disabled person to walk into a voting place and cast their opinion with even less prior knowledge of the problems at hand than Max. And ultimately, no one would think twice about that person’s right to do so. 

It wasn’t until the passage of the Americans with Disabilities Act in 1990 that people with disabilities truly had the right to vote, as it prohibited discrimination based on disability and put in place requirements for accessible polling places. Even so, according to Rebecca Cokley of the Center for American Progress, nearly 60 percent of voting places are inaccessible in some form. What’s more, in most states, a judge can decide that people like Max shouldn’t have a political voice at all. Citing “incompetence laws,” thousands of people have had their voting rights stripped. This often occurs as an unintended side effect when parents (or others) file for legal guardianship of disabled people older than 18, which they do in order to continue managing the health care and finances of someone who might otherwise struggle to do so themselves. 

There are no particular guidelines determining when and for whom a judge may apply such laws. In some states, like Mississippi, these laws are written in archaic language, using terminology like “idiot” to describe mentally disabled people. Because of these loosely worded and flawed laws, it’s essentially up to the discretion of the judge (rarely a good idea) to decide who qualifies. As such, they’ve affected people with a wide range of abilities: According to an article from Pew Trusts, a young man with autism who worked three different part-time jobs had his voting rights taken away for over a decade; in other cases, the law has only been applied to those not alert enough to express their vote. 

“States have different policies, and it really varies,” says Cokley. “In 39 states and D.C., a judge can strip the voting rights of who they see as incapacitated or incompetent. There’s no set standard across the country as to what that means.”

There is, at least, some hope. “The California standard, which was put in place in 2016, says that the only way [a judge] can take away the right to vote is if a court finds clear and convincing evidence that the person doesn’t express a desire to vote,” says Cokley. This type of policy, which places the desires of the individual in question at the forefront, is what organizations like the Center for American Progress and the Bazelon Center for Mental Health Law are hoping to see implemented nation-wide. 

As for the 2020 presidential election, all Democratic candidates except for Joe Biden and Michael Bloomberg have published comprehensive disability platforms. And both Sanders and Elizabeth Warren included people with intellectual disabilities on the committees that designed these platforms. “People with intellectual and developmental disabilities have opinions about things, and make decisions about their lives,” says Cokley. “The focus needs to be, if someone has expressed an opinion or the desire to vote, they should be able to vote. They should be able to maintain the same rights as people without disabilities.” 

Not only does Max have the desire to vote, but his wellbeing is almost entirely dictated by such political decisions, particularly government welfare spending. Every aspect of his health care is paid for by the state of Massachusetts, from his medications to his wheelchairs to the formula that’s pumped into his stomach for adequate nutrition. On top of that, the state pays for him to attend a day program with other people with various disabilities, as well as attendants who care for him during the evenings and weekends. We’ve occasionally even received stipends for things like blenders and iPads. 

Politics dictates all of this. Massachusetts spends nearly $20 billion a year on welfare, one of the highest expenditures for welfare in the nation, and that money goes toward caring for people like Max. If at some point a more conservative authority took control of Massachusetts’ welfare resources, Max’s daily routine could be entirely disrupted. Out-of-pocket, his wheelchair costs around $30,000. His medications and formula would cost several hundred dollars per month. The value of his day program and the caretakers he enjoys being around is incalculable, though the workers are paid $15 per hour. More so than my life and most others, Max’s life is at the whim of the government. For that reason, he deserves the right to vote. 

And it’s possible he may lose it. Max is currently legally independent: Because Max lives at home under her care, my mother doesn’t yet have the need for legal guardianship over him. But at 28, Max is ready to move out. He wants to live in a group home with other people like him. He wants a girlfriend. He wants, essentially, to feel like an adult and the freedoms that come with it. Naturally, though, my mother would want to maintain authority over Max’s finances and health-care decisions, which may require legal guardianship. Massachusetts is one of the 39 states with incompetency laws, and one of 11 that connects incompetency and voting rights with legal guardianship, specifically. 

There’s a chance, then, that in my brother’s pursuit of the fundamental right to life, liberty and the pursuit of happiness, he’d lose a right in exchange. For myself and my family, Max’s interest in voting is clear. The question is, will a judge who doesn’t know him feel the same?