Voting under Guardianship: Rediscovering a Fundamental Right

Disability rights advocates are currently working to solve the puzzle created by the legislature when it adopted the Uniform Guardianship […]

Disability rights advocates are currently working to solve the puzzle created by the legislature when it adopted the Uniform Guardianship and Protective Proceedings Act (UGPPA) in 2003. That law was enacted in order to change the way guardianship is viewed by the State of Minnesota. However, the legislature left many loopholes that may make it difficult for persons under guardianship to vote. The voter registration card available from the Secretary of State’s Office, in its certification clause, made things more confusing with the following language: “I am not under court-ordered guardianship of the person where I have not retained the right to vote.” (See page 15, Voter Registration Application, Question 15.) Persons under guardianship and their guardians are asking: what does this mean? – Particularly since the term “guardianship of the person” is no longer included in the new law. We are afraid that judges, county auditors, election officials and county attorneys may be confused as well. It is our hope to forestall challen! ges in the current election and to work on amending and fixing this legislation in the next session.

Background

From 1959 to 2003, persons placed under guardianship. were, by law, inherently precluded from voting. In fact, it would have been a felony for someone under “guardianship” to vote.

In 2003, the legislature adopted the Uniform Guardianship and Protective Proceedings Act (UGPPA). Among other changes, this new law guaranteed all persons under guardianship the right to vote unless that right is revoked by the court. In other words, the court now has to make a specific finding that a person under guardianship is incompetent and unable to vote. Theoretically, then, most persons under guardianship should be able to vote. Persons under guardianship may be incompetent to handle their personal affairs but may very well be able to make decisions about who to vote for.

Now let’s take this a step further. Persons under guardianship come up for renewal each year in order to determine whether or not that person still needs a guardian. The new law intends that judges actually review, among other issues, whether a person is competent to vote even if under guardianship. If the person is found to be competent, the judge is required to remove the preclusion from voting from the guardianship papers. Only if the person actually would be legally incompetent to vote as found by a court, would he/she be precluded from voting. . However, what we have seen happening is that judges do not know that the guardianship language regarding voting needs to be reviewed, and they often just rubber stamp the older guardianship language. Thus, these persons may actually have current guardianships that include language preventing them from voting.

The next thing that happens is that each month the State Court Administrator gives the counties a list of persons declared under guardianship that month. The counties traditionally have entered those persons into their rosters as persons who cannot vote. As far as we know, there is no specific language changing this practice. This means that persons under guardianship may be challenged when they go to vote.

Suggestions

We suggest the following ways to handle these challenges:

1. If a guardianship is coming up for renewal, make sure the judge removes any reference to preclusion from voting unless the person under guardianship is clearly unable to make decisions about voting.

2. If possible, register to vote before the end of the registration period, August 24th for the primary, October 12th for the general election. See the next article regarding voter registration requirements.

3. You have the option to vote using an absentee ballot. See the next article for absentee ballot requirements.

4. You can also register to vote on the very day of the election. See the next article for details. If you are challenged, contact the Minnesota Disability Law Center for help.

Conclusion

The current laws allow any person under guardianship the right to vote, unless the court chooses to revoke that right. As individuals under guardianship proceed through the voting process, assume that you have the right to vote unless you have specifically been declared incompetent to vote. Proceed to the polls and enjoy the inherent and fundamental right to vote.

It is important that individuals under guardianship are not disenfranchised in this, or any, election. They are entitled to participate in the electoral process. As we work to solve this puzzle, we would like to encourage every person with an interest in this issue to contact their legislators, County Attorney, and the Secretary of State’s office to seek clarification and realization of the right to vote of all persons under guardianship.

Groups such as the Minnesota Disability Law Center, Arc Hennepin-Carver, and the National Association for the Mentally Ill-Minnesota (NAMI) will be working on the issue prior to election with other advocacy groups and volunteer attorneys, so it is our hope that there will be few challenges. However, we do understand that there are loopholes in the current law which must be corrected in the next legislative session. We also understand that there may indeed be legal challenges to be addressed after the election.

For more information or to offer assistance, contact Kathy Hagen (612) 746-3717 or Tracy Reid-Selth at (952) 920-0855.

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