The ability to vote in elections is one of the most important rights that a citizen of the United States can exercise. However, there are legal restrictions that may apply to certain classes of people to prevent them from voting. The Federal Voting Rights Act specifically permits states to exclude citizens from registering to vote “by reason of criminal conviction or mental incapacity.” 52 U.S.C. §20507(a)(3)(B). For mental incapacity, each state can determine if a person deemed to be legally incapacitated or developmentally disabled (and therefore under a court-appointed guardianship) should retain the right to vote. Can a person who is under a guardianship vote in Michigan?
The Michigan Constitution of 1963 specifically permits in Article II, Section 2 that “[t]he legislature may by law exclude persons from voting because of mental incompetence or commitment to a jail or penal institution”. While Michigan law does restrict the voting rights of felons that are serving a sentence, the Legislature has never passed any statutes that deny the right to vote to anyone with a mental deficiency. Michigan is one of eleven states that does not restrict the right to vote for individuals under a guardianship.
STATE AND FEDERAL LAWS HELP PERSONS WITH SPECIAL NEEDS ACCESS THE RIGHT TO VOTE
Federal law, including provisions from the Help America Vote Act of 2002, provides that people with disabilities are entitled to assistance in casting their vote. Specifically, state and federal voting systems shall “be accessible for individuals with disabilities, including nonvisual accessibility for the blind and visually impaired, in a manner that provides the same opportunity for access and participation (including privacy and independence) as for other voters.” 52 U.S.C. §21081(a)(3)(A). At polling places, there should be at least one voting terminal equipped to assist electors with disabilities. 52 U.S.C. §21081(a)(3)(B). To preserve the same opportunity for access, participation, privacy and independence as everyone else receives, the voting systems for individuals with disabilities must:
- “Permit the voter to verify (in a private and independent manner) the votes selected by the voter on the ballot before the ballot is cast and counted.” 52 U.S.C. §21081(a)(1)(A)(i).
- “Provide the voter with the opportunity (in a private and independent manner) to change the ballot or correct any error before the ballot is cast and counted (including the opportunity to correct the error through the issuance of a replacement ballot if the voter was otherwise unable to change the ballot or correct any error).” 52 U.S.C. §21081(a)(1)(A)(ii).
- “If the voter selects votes for more than one candidate for a single office—”
- “Notify the voter that the voter has selected more than one candidate for a single office on the ballot.” 52 U.S.C. §21081(a)(1)(A)(iii)(I).
- “Notify the voter before the ballot is cast and counted of the effect of casting multiple votes for the office.” 52 U.S.C. §21081(a)(1)(A)(iii)(II).
- “Provide the voter with the opportunity to correct the ballot before the ballot is cast and counted.” 52 U.S.C. §21081(a)(1)(A)(iii)(III).
Federal laws also requires service providers such as nursing homes, hospitals, group homes, day treatment centers, and other facilities providing care and services to individuals with disabilities to provide reasonable assistance that ensure those individuals they serve who need help with voting receive it. This assistance includes, but is not limited to:
- Providing information to individuals being served about how to register to vote.
- Allow voter education to occur on site and encourage participation in the election process.
- Offer assistance to individuals being served in applying for and submitting absentee ballots sufficiently in advance of the deadlines.
Finally, Section 7 of the National Voter Registration Act of 1993 requires state agencies that provide public assistance or disability services to assist their applicants and clients in registering to vote during the application process.
Michigan law also provides provisions to assist voters with disabilities in casting their vote at polling locations:
- “When at an election an elector shall state that the elector cannot mark his or her ballot, the elector shall be assisted in the marking of his or her ballot by 2 inspectors of election. If an elector is so disabled on account of blindness, the elector may be assisted in the marking of his or her ballot by a member of his or her immediate family or by a person over 18 years of age designated by the blind person.” MCL 168.751.
- “The inspectors upon whom shall fall the duty of assisting a voter shall render such assistance inside the voting booth by showing him how to mark his ballot in order to vote as he desires, or the inspector shall himself mark the ballot as directed by the voter, but no ballot shall be marked by the inspector from any written or printed list or slip furnished him by the voter or any other person. The inspector shall not suggest to the voter how he should vote, or in any manner attempt to influence him as to the marking of his ballot, nor allow any other person so to do: Provided, That the duties and restrictions with respect to inspectors as provided for in this section shall apply to and govern any person assisting the voter in the marking of his ballot.” MCL 168.754. “Any inspector who shall wilfully assist any elector in any manner contrary to the provisions contained in this section, shall, upon conviction, be guilty of a felony.” MCL 168.757.
- “If an elector is unable to write, or sign his or her name on an election document because of a physical disability, the elector may execute the election document where a signature is required either by making his or her mark or by using a signature stamp.” MCL 168.755a(1).
Individuals with disabilities can also vote by absentee ballot in advance of the election. There are a number of options available to help the individual deliver the return envelope containing the absentee ballot to the city or township clerk under MCL 168.764a:
- Place the necessary postage upon the return envelope and deposit it in the United States mail or with another public postal service, express mail service, parcel post service, or common carrier. If unable to do so personally, the voter can be assisted by a member of the immediate family of the voter including a father-in-law, mother-in-law, brother-in-law, sister-in-law, son-in-law, daughter-in-law, grandparent, or grandchild or an individual residing in the voter’s household to ensure mailing.
- Deliver the envelope personally to the office of the clerk, to the clerk, or to an authorized assistant of the clerk, or to a secure drop box located in the city or township. If unable to do so personally, the voter can be assisted by a member of the immediate family of the voter including a father-in-law, mother-in-law, brother-in-law, sister-in-law, son-in-law, daughter-in-law, grandparent, or grandchild or an individual residing in the voter’s household to ensure delivery.
- Request by telephone that the clerk who issued the ballot provide assistance in returning the ballot. The clerk is required to provide assistance if the ballot cannot be returned before the deadline by mail or personal delivery.
INTERFERING WITH THE RIGHTS OF DISABLED VOTERS, EVEN UNDER GUARDIANSHIP, CAN LEAD TO SERIOUS CRIMINAL PENALTIES
The right to vote is preserved to eligible U.S. citizens age 18 or over in Michigan regardless of any physical ailments, mental disabilities or whether or not they are under a court-appointed guardianship. Anyone who interferes with their right to vote can be found guilty of a crime.
A person who violates one or more of the following statutes is guilty of a felony punishable by up to five years in prison or a fine up to $1,000.00, or both:
- “A person shall not attempt, by means of bribery, menace, or other corrupt means or device, either directly or indirectly, to influence an elector in giving his or her vote, or to deter the elector from, or interrupt the elector in giving his or her vote at any election held in this state.” MCL 168.932(a).
- “A person shall neither disclose to any other person the name of any candidate voted for by any elector, the contents of whose ballots were seen by the person, nor in any manner obstruct or attempt to obstruct any elector in the exercise of his or her duties as an elector.” MCL 168.932(d).
- “A person who is not involved in the counting of ballots as provided by law and who has possession of an absent voter ballot mailed or delivered to another person shall not do any of the following:”
- “Open the envelope containing the ballot.” MCL 168.932(e)(i).
- “Make any marking on the ballot.” MCL 168.932(e)(ii).
- “Alter the ballot in any way.” MCL 168.932(e)(iii).
- “Substitute another ballot for the absent voter ballot that the person possesses.” MCL 168.932(e)(iv).
- “A person other than an absent voter; a person whose job it is to handle mail before, during, or after being transported by a public postal service, express mail service, parcel post service, or common carrier, but only during the normal course of his or her employment; a clerk or assistant of the clerk; a member of the immediate family of the absent voter including father-in-law, mother-in-law, brother-in-law, sister-in-law, son-in-law, daughter-in-law, grandparent, or grandchild; or a person residing in the absent voter’s household shall not do any of the following:”
- “Possess an absent voter ballot mailed or delivered to another person, regardless of whether the ballot has been voted.” MCL 168.932(f)(i).
- “Return, solicit to return, or agree to return an absent voter ballot to the clerk of a city, township, village, or school district.” MCL 168.932(f)(ii).
- “A person who assists an absent voter who is disabled or otherwise unable to mark the ballot shall only render his or her assistance by showing the absent voter how to vote the ballot as the absent voter desires or by marking the ballot as directed by the absent voter. A person who assists an absent voter who is disabled or otherwise unable to mark the ballot shall not suggest or in any manner attempt to influence the absent voter on how he or she should vote or allow any other person to do so.” MCL 168.932(g).
- “A person present while an absent voter is voting an absent voter ballot shall not suggest or in any manner attempt to influence the absent voter on how he or she should vote.” MCL 168.932(h).
- “A person shall not plan or organize a meeting at which absent voter ballots are to be voted.” MCL 168.932(i).
A person who violates one or more of the following statutes is guilty of a misdemeanor punishable by up to 90 days in jail or a fine up to $500.00, or both:
- “A person shall not, either directly or indirectly, give, lend, or promise valuable consideration, to or for any person, as an inducement to influence the manner of voting by a person relative to a candidate or ballot question, or as a reward for refraining from voting.” MCL 168.931(1)(a).
- “A person shall not participate in a meeting or a portion of a meeting of more than 2 persons, other than the person’s immediate family, at which an absent voter ballot is voted.” MCL 168.931(1)(m).
- “A person, other than an authorized election official, shall not, either directly or indirectly, give, lend, or promise any valuable consideration to or for a person to induce that person to both distribute absent voter ballot applications to voters and receive signed absent voter ballot applications from voters for delivery to the appropriate clerk.” MCL 168.931(1)(n).
These laws apply even to the court-appointed guardian if he or she attempts to wrongfully interfere with the ward’s right to vote.
OUR LAW FIRM IS AVAILABLE TO ANSWER FURTHER QUESTIONS ABOUT THE RIGHTS OF INDIVIDUALS UNDER GUARDIANSHIP IN MICHIGAN
If you or a loved one have questions about guardianships or need legal representation, then do not hesitate to contact the skilled attorneys at Kershaw, Vititoe & Jedinak PLC for assistance today.