By: James M. Dore, J.D., [email protected], 443-393-7696
As we look back on the tumultuous 2016 Presidential campaign and election, we are reminded of the importance of that most fundamental of civil rights afforded us as citizens of these United States—the right to vote. As you may pause to reflect on this precious right, you may be interested to know that in Maryland the right to vote is extended to those citizens who are subject to a Guardianship of the Person, and only in a specific circumstance can the right be denied them.
Maryland law provides that a Guardian of the Person “…shall be appointed if the court determines from clear and convincing evidence that a person lacks sufficient understanding or capacity to make or communicate responsible decisions concerning his person, including provisions for health care, food, clothing, or shelter, because of any mental disability, disease, habitual drunkenness, or addiction to drugs, and that no less restrictive form of intervention is available which is consistent with the person’s welfare and safetyi.”
Guardianships of the Person are most commonly sought when an individual has lost the ability to care for himself or herself responsibly due to disability, and the individual had previously failed or refused to appoint a fiduciary to act on his/her behalf during periods of incapacity through the execution of a valid Power of Attorney and Advance Directive/Appointment of Health Care Agent. Although the definition of an “Interested Person” eligible to petition for Guardianship of the Person is broadii, family members of the alleged disabled person typically initiate the Guardianship petition itself and seek appointment as the individual’s Guardian subject to statutory priority of appointmentiii.
Upon finding that a Guardianship of the Person is necessary, the Court issues an Order specifying the powers and obligations of the Guardian in providing for the disabled person’s needs and managing his/her personal affairsiv.
Notwithstanding the obvious implications to the disabled person’s autonomy and self-determination as a result of his/her being under Guardianship, the right of that person to vote is not impaired except under a specific circumstance. A Guardianship of the Person does not, in and of itself, void the individual’s civil rights, including the right to vote. On this point, Maryland law is clear: “Appointment of a guardian of the person: (1) Is not evidence of incompetency of the disabled person; and (2) Does not modify any civil right of the disabled person unless the court orders, including any civil service ranking, appointment, and rights relating to licensure, permit, privilege, or benefit under any lawv.”
With respect to the regulation of voting in Maryland, the Maryland General Assembly is granted that authority under the Constitution of Maryland. Specifically, Article 1, Section 4 of the Constitution of Maryland provides that“[t]he General Assembly by law may regulate or prohibit the right to vote of a person convicted of infamous or other serious crime or under care or guardianship for mental disability.”
Prior to 2010, Maryland law included persons subject to Guardianships due to mental disability among the class of individuals ineligible to register to vote. Section 3-102(b)
of the Election Law Article formerly provided that
“…[a]n individual is not qualified to be a registered voter if the individual: (1) has been convicted of a felony and is actually serving a court-ordered sentence of imprisonment, including any term of parole or probation, for the conviction; (2) is under guardianship for mental disability
or (3) has been convicted of buying or selling votes.”
In 2010, House Bill 816 was introduced in the General Assembly to broaden voting rights for individuals under disability. HB 816 arose, in part, from the Governor’s Transition Election Work Group Report which 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 votevi.’” Of particular import to the legislative analysis of HB 816 was a decision in a 2001 Federal case in Maine.[i] The committee reviewers found the case relevant because “…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.[ii]” HB 816 passed in the General Assembly and was signed into law by the Governor in 2010.
As amended by HB 816, Section 3-102(b) of the Election Law Article now provides as follows:
“An individual is not qualified to be a registered voter if the individual: (1) has been convicted of a felony and is currently serving a court-ordered sentence of imprisonment for the conviction; (2) is under guardianship for mental disability and a court of competent jurisdiction has specifically found by clear and convincing evidence that the individual cannot communicate, with or without accommodations, a desire to participate in the voting process; or (3) has been convicted
of buying or selling votes. (Emphasis added).”
Thus, we see that the prior blanket disqualification of voters under Guardianship for mental disability is removed. The burden to disqualify an individual under Guardianship of the Person from voting is shifted to the party seeking disqualification, and the individual under Guardianship no longer faces the presumptive statutory bar against exercising the franchise. A Maryland Court cannot and will not disqualify a voter under Guardianship of the Person– whether in its Order appointing the Guardian or otherwise– unless specifically requested to do so, and then only after being persuaded under the highest civil evidentiary standard.