by Julia Métraux
A voter drops off her ballot at a drop box in Arizona.Matt York/AP
When Becky King’s daughter Beth Papp turned 18, she couldn’t register to vote in her home state of Arizona. Five years later, she still can’t.
Papp is autistic and nonspeaking; when she was in her teenage years, King was advised that placing her daughter under full legal guardianship, a process she applied for when Papp was 17, was the right thing to do. Various frameworks for guardianship, or conservatorship, exist in all 50 states—in all cases stripping both minors and adults of a variety of rights then granted to a third party.
“Nobody told me specifically what the implications would be,” King said. “It didn’t even occur to me that anything else would be an option.”
King was far from the only parent to receive such guidance. Sey In, a staff attorney for Disability Rights Arizona, calls it the “school to guardianship” pipeline.
“Many schools are telling parents that guardianship is the only option,” In told Mother Jones. “Parents aren’t really apprised of other alternatives, like a power of attorney arrangement.”
In Arizona, a contentious swing state, people placed under full or plenary guardianships are unable to participate in a central part of democracy—casting a vote—regardless of their age or the specifics of their condition. That can include people with intellectual disabilities like autism, as well as those with mental health conditions like bipolar disorder. As is typical with guardianship data throughout the US, the number of people under full guardianship in Arizona isn’t clear. (Adults in Arizona under limited guardianship can vote if their guardian requests it.)
Since she turned 18, Papp’s ability to communicate has improved. She’s still nonspeaking, but now uses text-based assistive technology to share her thoughts with those around her. In early 2023, Papp told her mother about changes she wanted to make in her life—among them, wanting her voting rights restored.
“The reason voting is important,” Papp said through her assistive
technology, “is that I’m a citizen of this country and I matter.”
King was “determined to help her get” that right. But trying to change Papp’s guardianship, even with the full support of her mother, has been a challenge.
The disenfranchisement of disabled people highlights how restrictive the guardianship system can be, said Zoe Brennan-Krohn, the head of the American Civil Liberties Union’s disability rights program. And for something as serious as taking away people’s civil liberties, there isn’t a lot of information available: “We have no idea how many people in this country have lost their voting rights because of guardianship,” Brennan-Krohn said.
The National Council on Disability estimated that, as of 2018, there were 1.3 million people under guardianship in the United States. Guardianship laws vary by state on voting and other rights: In some, all people in guardianship can vote; in others, voting rights can be taken away; some states force people to petition a court for the right to vote, and in seven states—Utah, Missouri, Lousiana, Tennessee, West Virginia, Virginia and South Carolina—people under any type of guardianship cannot vote at all.
A complete ban on voting for people under guardianship stands at odds with recent Justice Department guidance on protections for disabled voters through laws including the Americans with Disabilities Act. “Our position is having that categorical ban on voting for people under full guardianship violates the ADA,” In, the attorney with Disability Rights Arizona, said.
In late May, the Arizona Court of Appeals agreed that a total ban on voting for people under full guardianship violates due process. But the judges also wrote that a trial court would have to establish that the specific individual would have the capacity to vote, rather than automatically granting everyone currently under guardianship that right.
Though voting is central to American citizenship, losing voting rights isn’t even mentioned in some guardianship hearings. “Guardianship hearings and determinations rarely include inquiries into a person’s understanding of voting issues,” Bazelon Center for Mental Health Law attorney Monica Porter Gilbert said. “Often, neither the person being considered for guardianship, nor the person who might be seeking guardianship, is even aware that the right to voting is at stake.”
King and Papp stood in front of a Maricopa County judge in March of last year to try and modify Papp’s guardianship, after filing the associated paperwork—but the request was rejected.
“The court did not recognize her communication method as valid,” King said.
A few months later, in June, Arizona joined states including California and Virginia in adding supported decision-making as an alternative to guardianship after a bill was signed into law by Democratic Gov. Katie Hobbs.
As its name suggests, under supported decision-making, people with disabilities work with a chosen person in their life to make important decisions around, for example, healthcare and living situations—and they retain the right to vote in elections.
King and Papp are looking into moving from guardianship to a supported decision-making process, but are concerned about running into another wall. Experts I spoke to agree that it’s still going to be difficult to make the transition.
“To undo a guardianship, you need to show that there is a change in the individual’s condition,” In said. Whether a person’s communication improving through assistive technology could constitute such an improvement is up to individual judges’ discretion.
In addition, Brennan-Krohn said, “the whole concept of guardianship is premised on this idea that capacity is a ‘yes, no’ premise,” when it’s in fact much more nuanced. Most states also allow a trusted person or election volunteer to help a disabled voter, meaning people under guardianship could be held to higher standards than other voters.
While trying to help her daughter reestablish her civil rights, King
hopes that other families will also learn about alternatives to full
guardianship—a system she described as “very antiquated, and not useful
for the people it’s supposed to protect.”
Full Article & Source:
Disenfranchised For Disabilities: Arizona’s Guardianship Law Is a Voting Rights Nightmare
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