By Elena Edwards
Voting Rights Project Legal Intern — Summer 2025
While the right to vote is foundational in a democracy, not all Americans have equal access to the ballot––including a group which may not get as much attention in voting rights discourse: Americans under guardianship or with mental disabilities.
When reviewing absentee ballot records from a Wisconsin town, I was surprised to find that two ballots were rejected because the voter was adjudicated “incompetent.” While I was vaguely aware of “competency” laws, it wasn’t until I conducted some research of my own that I realized just how restrictive they can be—one of the many ways in which voters may be disenfranchised.
Voter competency laws should be narrowly tailored to maintain the balance between election integrity and civil rights and prevent the disenfranchisement of capable voters. Instead, these laws vary by state and often raise legal and ethical concerns. There is no one-size-fits-all definition of mental capacity, and in many states, broad disqualifications may exclude otherwise able and eligible voters.
So, how exactly is one deemed “incompetent” in relation to voting? First, incompetency must be adjudicated by a court. According to A Class Left Behind: an Assessment of State Voter Competency Laws and the Disenfranchisement of People With Mental Disabilities by legal scholar Lily Verbeck, in most states, the loss of voting rights because of mental incapacity occurs at a conservatorship or guardianship hearing. At such hearings, a judge determines whether an individual lacks the capacity to manage their personal affairs and make decisions relating to health, finances, and safety.
Most states lack a standard definition of mental incapacitation or incompetence; instead, the judge has sole discretion to make this determination. Judges can revoke the right to vote from any individual presented to them in a conservatorship case. In some cases, again, according to Verbeck, they may even ask these individuals to demonstrate knowledge of elections and politics––an expectation far beyond what is required from the public.
States generally fall into three categories when it comes to voting and mental competency:
- Automatic Disqualification: Some states, such as Missouri, remove voting rights from anyone adjudicated incompetent/incapacitated or under full guardianship, regardless of the individual’s actual ability to vote.
- Capacity-Based Restrictions: Others, like California, allow courts to assess whether an individual specifically lacks the capacity to vote, often based on whether they understand the nature and effect of voting.
- No Disqualification: A growing number of states, including Maine and New Hampshire, place no restrictions on voting based on guardianship or mental capacity, affirming the principle that all citizens should be presumed competent to vote. Currently, 10 states have no disqualification statutes or provisions in their constitutions.
While national sentiment toward mental health and disabilities has progressed into a more positive stance, many laws remain stuck in the past––reminiscent of an era of asylums and lobotomies. Some states even retain archaic language in their constitutions barring “idiots and insane persons” from voting, such as Kentucky, Mississippi, and Ohio.
So, how do we bring voter competency laws to the present? The American Bar Association promotes a presumption of capacity, with disqualification only if there is a clear finding that the individual cannot communicate, with or without accommodation, a desire to vote. Adopting this inclusive standard across all states would ensure that everyone has a voice in our democracy, regardless of disability. This is important because a government cannot properly represent its constituents if significant numbers of capable voters have been barred from participating in the election process; nor can it effectively govern on disability-related matters if the very people impacted have no say in their representation.