The Supreme Court upheld the Indiana law by a vote of 6-3, announcing its verdict in April 2008. In the lead opinion, Justice John Paul Stevens maintained that the “risk of voter fraud” was “real” (citing as one example New York’s infamous election of 1868) and that there was “no question about the legitimacy or importance of the state’s interest in counting only the votes of eligible voters.” He also concluded that for voters who lacked ID, the “inconvenience” of gathering documents such as birth certificates and traveling to a motor vehicle bureau office did not amount to an “excessively burdensome” requirement. Justice David Souter, in one of two dissents, disagreed strongly, insisting that the burden imposed would be “nontrivial” for some voters, particularly the poor and the elderly, and that, in the absence of known cases of voter impersonation, there was no demonstrable need for the law. The “onus” of the law, Souter concluded, “correlates with no state interest so well as it does with the object of deterring poorer residents from exercising the franchise.” All of the justices who voted to uphold the law had been appointed by Republican presidents.89
“This is over,” declared Mark Hearne, after the decision was announced. “The whole debate over voter ID is over.” Hearne may have exaggerated, but the political conflict over voter ID had surely entered a new phase. In several states, legal challenges to photo-ID laws were expected to recede, or become more difficult, in the wake of the Supreme Court’s decision. Buoyed by the Court’s ruling, moreover, Republicans across the nation began to press for the passage of new photo-ID laws, often modeled on Indiana’s. In nineteen states, they followed Arizona’s example and went a step further, sponsoring legislation or constitutional amendments that would require all prospective voters to also provide proof that they were United States citizens. (In some locales where immigration was a heated issue, such proposals had significant public support.) Democrats meanwhile stuck to their strategic guns in state legislatures, resisting both photo-ID and citizenship requirements, blocking their passage wherever they held legislative majorities. In Indiana, a new lawsuit was filed, claiming that the state’s photo-ID law violated the Indiana State Constitution.90
How many people would be prevented from voting by the new ID laws remained unclear. The first scholarly studies, as well as common sense, suggested that the laws would definitely have an impact; and, sure enough, within weeks of the Supreme Court decision, several elderly nuns were prevented from casting ballots in the Indiana primary elections because they lacked photo identification. Yet just how large that impact would be was difficult to gauge, nor was it clear whether Democrats and voting rights groups would be able to narrow the bite of the laws by devising methods of helping the poor and the elderly to obtain their photo IDs (much as the urban machines had helped immigrants satisfy registration requirements in the late nineteenth century). In the wake of the 2008 election, the impact of Georgia’s law was disputed, while in Indiana the most visible effect was upon out-of-state students who tried to register in the cities where they were studying. How many states would end up adopting photo-ID laws was a large, lingering question, the answer to which hinged less on the virtues of the measures themselves than on the shifting partisan currents of the post-Bush era.91
What was clear by 2008, however, was that parts of the nation were once again experiencing a narrowing of the portals to the ballot box, and a significant segment of the American populace favored tilting election law in the direction of “security” rather than “access.” As had been true during earlier episodes of effective franchise contraction, in particular the years between 1870 and 1915, this narrowing was brought about by a convergence of partisan interest and class apprehensions, by the intermingling of a calculated desire to win close elections and a more inchoate fear that poor people, African Americans, and immigrants were particularly prone to corruption and fraud. It did not seem coincidental that this most recent spasm, this willingness to disfranchise in the name of the “purity of the ballot box,” occurred, yet again, at a moment when African Americans were gaining some political power and immigration levels were at historic highs.
Boundaries of Competence
The right to vote is fundamental and undeniable, and it does not expire with age.
—SENATOR HERB KOHL, JANUARY 31, 200892
Far from the partisan rancor and newspaper headlines that enveloped the photo-ID debates, another cluster of voting rights issues was gaining prominence and garnering offstage attention. These pertained to men and women with physical, cognitive, and emotional disabilities. The policy questions raised by the disabled were not new, but they loomed larger as the American population aged, augmenting both the number and the proportion of voters with one or another type of disability. Between 1960 and 2000, the number of Americans over the age of 64 more than doubled, to 35 million; the same period witnessed a threefold increase in the population 75 and over to 16.6 million. By 2030, it was expected that 70 million Americans, 20 percent of the population, would be at least sixty-five years of age, with the number over eighty growing rapidly. Equally important was the steady rise in the number of Americans who resided in long-term-care facilities, settings in which the exercise of political rights could hinge on the decisions and actions of staff rather than individual voters or family members.93
For voters with physical disabilities, the core problem was access to polling places and to ballots: throughout the country, many of the locations traditionally used as polling places had long been difficult or impossible to navigate for the disabled. During the final decades of the twentieth century, however, an increasingly organized disability community succeeded in persuading both state and federal governments to help remove obstacles to voting. The amended Voting Rights Act of 1982 mandated that voters who were blind or had other disabilities could receive assistance from a person of their own choosing (other than employers and union representatives). The 1984 Voting Accessibility for the Elderly and Handicapped Act required states to insure that there were accessible polling places for the physically disabled and to provide voters with auxiliary aids, such as large-type instructions or special devices for the deaf. Six years later, the landmark Americans with Disabilities Act of 1990 embraced the broad principle that state and local governments ought to make “reasonable modifications” of rules and practices to avoid discriminating against the disabled.94
The Help America Vote Act of 2002 carried the mandate further—from the polling place to the actual casting of ballots: HAVA required every polling place to have at least one voting mechanism that would be accessible to persons with disabilities, including visual impairments. Although the implementation of this requirement was slow, the disability community applauded the law for permitting many disabled men and women to vote as everyone else did: privately and independently. In fact, implementation of nearly all these laws was uneven, and turnout among the physically disabled remained lower than it was for their more able peers. Nonetheless, the federal legislation passed between 1982 and 2002—coupled with state statutes and the widening availability of absentee ballots—created a legal framework that significantly enhanced the ability of the physically disabled to exercise their right to vote.95
Men and women with cognitive and emotional impairments inhabited an altogether different legal terrain: in most states, they were, or could be, excluded from the franchise by law. These exclusions had originated in the middle decades of the nineteenth century when first a few, and then most, states enacted constitutional or statutory provisions that explicitly disfranchised “idiots,” “insane persons” and those “under guardianship.”96 The emergence of these laws stemmed both from an impulse to keep the franchise out of the hands of the “dependent” (akin to the measures excluding paupers) and from changing ideas about mental illness and its treatment.97 By the end of the nineteenth century, state laws of this type had become the norm, signaling a widespread—yet not widely aired—conviction that citizens with certain types of cognitive and emotional impair
ments could not be entrusted with the right to vote.98
With a few exceptions, these laws remained on the books throughout the twentieth century. Many states modernized the language of the exclusions, replacing “idiots” and “insane” with phrasings such as “mentally incompetent” or “mentally incapacitated”; fourteen states retained the more archaic language, while eleven continued to disfranchise individuals who had been placed under guardianship or conservatorship. (Some of these laws also addressed in detail the processes through which a person could, or could not, lose the right to vote.) Overall, forty-four states in 2000 had constitutional provisions, statutes, or case law that could bar men and women with cognitive or emotional disabilities from the polls.99
These legal barriers to voting came under increased scrutiny between 1980 and 2008—in part as a legacy of the revolution in voting rights of the 1960s and in part because the aging of the American population greatly increased the number of citizens potentially affected by the laws. (By 2000, it was estimated that 4.5 million Americans suffered from dementia alone.) This scrutiny came largely from legal and mental health professionals who worked with the impaired and who were aware of anomalous, uneven, and sometimes arbitrary applications of the exclusionary laws. These professionals brought to the fore questions that had long lurked in the shadows, questions of ethics, law, and science regarding a population that had little political visibility or clout. Was it indeed fair and democratic—and constitutional—to deny the suffrage to men and women with cognitive and emotional impairments? Did the state have a clear interest in doing so? If so, were the categories and concepts inscribed in state laws appropriate and meaningful ones? Such questions led to others, equally basic. What exactly did it mean to be “competent” to vote? And who ought to make the determination of a citizen’s competence?100
Within this small reform community, there was widespread agreement both that it was legitimate for the state to bar some seriously and unmistakably impaired individuals from the polls and that the existing legal structure needed to be modified to protect the rights of citizens with mental disabilities. In 1982, the American Bar Association’s Commission on the Mentally Disabled proposed that states repeal their disfranchising provisions—which appeared, to the ABA, to violate the equal protection clause of the Fourteenth Amendment. In their place, the ABA advocated adoption of a minimal competency test that would be applied to all citizens: voters had to be able to provide the basic information (name, address, age, and assurance of citizenship) required to register to vote. Any citizen who could give such information to a registrar, in writing or orally, would be permitted to vote regardless of his diagnosis or status. The far-reaching ABA proposals, however, were largely ignored by state governments, and in 1985, in a case not directly related to voting, the Supreme Court declined to designate the mentally impaired a “suspect class” that would receive strengthened protections under the equal protection clause.101
Nonetheless, state laws gravitated away from the blanket disfranchisement of all individuals who were formally members of an excluded group or category. The election statutes of numerous states were more nuanced than their constitutions and more open to the view, advocated by the reform community, that the disfranchisement of an individual had to be based on an assessment of his or her capacities, rather than on membership in an ill-defined category such as “idiots” or “mentally incapacitated.” In addition, the 1990s witnessed a wave of changes in guardianship laws, grounded in the recognition that a person’s capacities could vary over time and across different domains of activity: a person who could not be entrusted with investment decisions, for example, might well be capable of deciding what to eat and when to get medical care. Accordingly, numerous states began to encourage “limited guardianship,” and many insisted that individuals under guardianship retained all legal and civil rights not explicitly delegated to a guardian. The implication of such laws was that a person under guardianship would not be disfranchised unless a court expressly said so.102
This perspective was furthered by a 2001 federal district court decision in Maine, in the case of Doe v. Rowe. The case arose when three women who suffered from mental disorders sued to overturn a clause in Maine’s constitution that excluded from the franchise anyone who was under guardianship for reason of mental illness. Twice in the recent past, efforts to repeal that provision of the constitution had been rebuffed by the state’s voters. The district court, however, overrode the voters, ruling that the challenged provision violated the plaintiffs’ due process and equal protection rights, as well as the antidiscrimination guarantees of the Americans with Disabilities Act. Importantly, the court also went a step further and articulated what it considered to be an appropriate test of an individual’s capacity to vote: whether or not a person possessed “the capacity to understand the nature and effect of voting such that they can make an individual choice” among the candidates and questions on the ballot.103
The “Doe voting-capacity standard” was welcomed by many reformers as a significant step forward in protecting the voting rights of citizens with cognitive and emotional impairments. Yet implementation of this legal standard proceeded slowly—which was hardly surprising given the complexity of the task. Fully implementing Doe (or any comparable standard) required the revision of state statutes, the generation of an instrument or test that could accurately gauge an individual’s ability to meet the standard, and the development of fair procedures for administering such a test. These would not—and could not—happen quickly. Resistance to the Doe standard also came from within the reform community: some professionals feared that Doe could lead to broadly applied competency tests for voting and argued that any person who wanted to vote should be enfranchised. This latter standard was endorsed by the American Bar Association in August 2007, when it called for state laws to be modified so that the only persons excluded from the franchise would be those whom a court found to be unable to communicate “a specific desire to participate in the voting process.”104
The ABA’s commission on law and aging was, in fact, at the center of a network of reformers promoting a multifaceted approach to electoral issues of particular concern to the elderly. In March 2007, it helped to convene an unprecedented national symposium on the topic “Facilitating Voting As People Age: Implications of Cognitive Impairment.” The stated goal of the symposium was “to promote a more fair, more effective, and more responsive electoral process for this group of voters, whose participation is often overlooked and whose vulnerabilities can be exploited.” The gathering—consisting largely of lawyers and physicians—explored an array of interrelated issues, including not only the legal framework of exclusions but the advantages and shortcomings of absentee voting; the desirability of mobile voting stations; the training of poll workers and care givers; and the particular problems of access, abuse, and manipulation faced by residents of long-term-care facilities. The major recommendations of the symposium were endorsed by the American Bar Association and circulated to policy makers at all levels of government. In January 2008, the Senate’s Special Committee on Aging heard testimony from several key members of this reform community. Its chair, Senator Herb Kohl, then asked the General Accounting Office to monitor the accessibility of polling places to the elderly and the disabled; he, along with other senators, also asked the EAC to launch a study of “voting practices and procedures” within long-term-care facilities. Vermont’s innovative secretary of state, Deb Markowitz, announced that her state would launch a “mobile polling” project, bringing bipartisan pairs of trained election workers to residential care facilities to facilitate the voting of residents.105
In part, these efforts were designed to respond to a complex procedural and administrative challenge: how best to make the casting of ballots accessible to a growing population of elderly citizens who lived in institutional settings and/or were encumbered by the physical and mental frailties that accompany aging. Yet this movement for reform—particularly with res
pect to the cognitively disabled—went far beyond procedural matters and was evocative of earlier struggles to expand the franchise. As was true of the women’s suffrage and civil rights movements, a core goal of the reform effort was to remove historically implemented exclusions that no longer appeared to be sensible or just. As had been the case when the voting age was lowered and literacy tests abolished, a reframed definition of “competence” was being pressed forward, with an eye towards maximizing both the breadth of the franchise and the protection of individual rights. The “last suffrage movement”—as several scholars labeled it—was unlikely to generate large protest gatherings or marches on Washington, but strong threads linked it to its predecessors.106
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