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Voting Rights Upheld for Mentally Disabled

Under a new state law that took effect June 1, a Marylander who is under guardianship for mental disability maintains their right to vote. Previously in Maryland, the right to vote was automatically surrendered when guardianship was appointed, without an appropriate assessment by a court.

According to the statute, the appointment of a guardian is not evidence of incompetency, and only a court can determine the ability of the person to exercise the right to vote.

AARP Maryland testified in support of the law before the General Assembly this spring. AARP’s testimony stated, in part:

“Generally, a guardian is appointed for an individual when a circuit court determines that the individual cannot make or communicate responsible decisions concerning his or her person, or cannot manage his or her property and affairs effectively for reasons including mental disability. Under current law, a person’s capacity to vote is not part of the court’s determination.

“In a statement to the U.S. Senate Judiciary Committee by AARP in May of 2008 on protecting the constitutional right to vote for all Americans, AARP noted that ‘Consistent with the constitutional right to vote and democratic principles, governments should aim to expand the franchise and enhance access to the ballot for those capable of voting.’ We should be very cautious to ‘avoid inappropriate deprivation of the right to vote based on mental impairment.’

“In 2001, a federal District Court found that a prohibition in Maine that is roughly similar to Maryland’s violated the Due Process and Equal Protection clauses of the U.S. Constitution and that the Maine defendants, in implementing the prohibition, had violated two federal statutes, the Americans with Disabilities Act and the Rehabilitation Act.

“In addition, the Governor’s Transition Election Work Group Report recommended modifying the voting prohibition regarding individuals under guardianship for mental disability, stating that it ‘broadly denies a specific group of individuals with disabilities the right to vote without a specific finding that they are not competent to vote.’

“[This bill] will provide Maryland with an opportunity to enhance access to the ballot for those capable of voting.”

Read the full text of the legislation, named in honor of Lorraine M. Sheehan, a former secretary of state who championed the rights of people with disabilities.

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