Planning for Life

Protecting the Rights of Massachusetts Voters with Disabilities

Posted by Elizabeth Stepakoff on November 1, 2016

About 35 million eligible voters in the U.S. have a disability – close to one in six. Although voting is one of the most fundamental rights granted to American citizens, nearly a third of voters with disabilities reported facing obstacles to voting in the 2012 election, including difficulties with physical access to the polling place, reading the ballot or operating the voting machine.

The good news is that federal and state law provide significant protections for disabled long-term-care.jpgvoters. Among other things, the U.S. Department of Justice’s Civil Rights Division has expanded the scope of its election day monitoring to include handicap access.  

Voters with Physical Disabilities

The Massachusetts Voters’ Bill of Rights, published by the Secretary of State’s Office, affirms the right of persons with disabilities to vote. Polling places must offer accessible parking, provide handicap access and make an accessible voting booth available.

Since individual cities and towns are responsible for elections, individuals who face physical barriers to voting should contact the ADA compliance officer in their particular municipality. In addition, voters can contact the Massachusetts Office on Disability (MOD – 617-727-7440), which serves as a statewide resource for voters who have questions about access issues. MOD’s primary mission is to insure access and ADA compliance for Massachusetts residents of all ages.

 On a national level, the American Association of People with Disabilities addresses the fundamental inequalities faced by voters with disabilities, and works in a nonpartisan manner to ensure full accessibility to all polling places and voting equipment.

Voters with Cognitive Impairments

Massachusetts voters with mental illness, developmental disabilities or cognitive impairments have the right to register and vote absent a specific court order to the contrary. Even those who have been placed under guardianship by the Probate Court retain the right to register and vote unless the court order specifically strips them of those rights.

Although the Massachusetts constitution (Amendments Article III) and state law (G.L. c.51, §§ 1, 36) specifically provide that individuals “under guardianship” are not eligible to vote, these provisions are not enforced in practice and are most likely unconstitutional. The Massachusetts Secretary of State Elections Division’s Legal Counsel, in consultation with the state’s Department of Mental Health, Department of Mental Retardation and Office of the Attorney General, noted in a 1992 legal opinion that courts and commentators had expressed “substantial” doubts about the constitutionality of a blanket provision that deprived all individuals under guardianship of the right to vote. The Election Division therefore concluded that the terms “under guardianship” must be interpreted for voting purposes to refer only to those guardianship decrees that contain an express order depriving the individual of the right to vote.

This article should not be considered as legal advice or opinion on any specific facts or circumstances, and are intended for general informational purposes only. A competent attorney should be consulted for legal advice about a client’s particular situation. These materials might constitute "advertising" under Rule 3:07 of the Canons of Ethics and Disciplinary Rules Regulating the Practice of Law of the Massachusetts Supreme Judicial Court.

Topics: special needs planning

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