Some years ago, the novelist Nevil Shute wrote a future vision of an Australian society where every citizen in good standing had the right to one vote — nothing unusual about that, of course: it’s the foundation of democracies everywhere. But Shute went a step farther, suggesting in his fictional future that by virtue of certain accomplishments, talents, or contributions to society, certain citizens could earn additional votes, up to 6 or 7 if memory serves.
Now that fictional future, for a number of reasons that have nothing to do with the logic of the proposal, will probably never be seen. But under current discussion is the opposite dilemma: When if ever is it appropriate and acceptable to remove or rescind the right to vote?
In Canada, until recently, individuals incarcerated in prisons following convictions under the criminal code did not have the right to vote. This was seen as consistent with the general principle that committing a crime deemed sufficiently serious and/or dangerous to the public welfare placed that individual in the position where s/he for the duration of the sentence imposed for the crime lost certain basic rights and privileges enjoyed by those citizens who obeyed the laws of the land.
Until recently. Until the Canadian government in its wisdom decided that not being allowed to vote was an overly harsh punishment. Why it came to this conclusion has never really been clear, or at least not to me. Since then, we are now in a position where in order to be elected to Parliament in certain jurisdictions one must be careful to endorse policies which receive the approval of or at least not offend convicted felons. This raises the disturbing even if perhaps improbable specter of convicted criminals holding the deciding vote on issues of law and order in a society which has deemed them to offensive and dangerous to be allowed freedom of movement within that same society.
More recently, another issue is being raised, this one getting at the very foundation of what the popular vote really means in a democracy: At what point do we deem someone to be too mentally incompetent or too mentally ill or too out of contact to be allowed to vote?
According to a recent article by Randy Dotinga of HealthDay News, “a new report suggests [that people with Alzheimer’s or other cognitive impairments lose the right to vote] when they can’t pass a standardized competency test.” Interestingly, the panel of doctors and attorneys who formulated this proposal reportedly “cautioned that mental illness itself isn’t a good enough reason to deny access to the voting booth.”
The recommendations appear in a commentary in the current issue of the Journal of the American Medical Association. Co-author Jason Karlawish, an assistant professor of medicine at the University of Pennsylvania, said the panel decided to tackle the issue of voting rights for the mentally ill — especially those suffering from senility — after reading online posts from caregivers of Alzheimer’s patients. The caregivers were discussing the 2000 presidential election and the voting habits — if any — of the people they cared for… On the one hand, it appears that some caregivers illegally cast the votes of people with cognitive difficulties, he said. (Assisting people with voting is legal; actually voting for them is not). At the same time, many state laws disenfranchise people if they’re under guardianship, or considered “insane.”
In the report, the panel supported the use of a standard set down by a Maine court, which threw out a law that banned voting by mentally ill people under guardianship. The standard “is objective and it gets to the heart of the matter,” Karlawish said. “Do you understand what is voting, do you understand the nature and effect of voting, and can you make a choice?” A test to answer the questions would make sense in situations when someone is being put under guardianship, Karlawish said. Tests could also be appropriate in places such as nursing homes, he added. “A variety of people with a variety of mental illnesses would still be competent to vote,” he said, adding that some conditions — such as depression, mild senility and schizophrenia — don’t necessarily disrupt the ability to make decisions in an election.
Not surprisingly, this proposal has met with some resistance:
Mathis, the legal advocate for the mentally ill, doesn’t like the idea of a test, especially if it’s administered by nursing home staff members. (The report suggests that election officials could take on the role.) “This type of test is extremely subjective, and it’s fraught with the potential for abuse,” she said. A better approach, she said, would be to bring up the issue of voting competence during hearings to determine whether someone should be placed under guardianship because of mental illness.
The issue is admittedly a complex one. For example, many mental illnesses may render an individual temporarily incompetent but are amenable to effective treatment such as medication. What do we do about the so-called “revolving door” syndrome in psychiatric hospitals, where someone suffering from, as an example, acute schizophrenia is judged to be a suitable candidate for involuntary hospitalization and medication, is stabilized under that treatment regime, and regains the right to choice and informed consent, only to subsequently begin a slow deterioration back to the former “incompetent” state? Presumably, at the point where s/he has the right to refuse treatment, that individual should also be judged competent to vote. To repeatedly revoke the right, rescind that revocation, and then revoke it again would seem to be an enormous waste of manpower and resources requiring yet another unmanageable government bureaucracy. But at the same time, failure to recognize that patients with mental illness can and do regain their ability to function in a reasonably adaptive fashion and to make informed choices would obviously be an enormous injustice.
What’s next? “We’re eager to work with any secretaries of state or state attorney generals who’d like to look at their voting laws and clean them up to make sense out of them,” Karlawish said. “Almost every state in the union needs to clean up their laws that describe what it means to be competent to vote.”