The right to vote in an election is a fundamental right of every citizen. When a person is conserved that right can be taken away if the court determines that the person lacks the capacity to vote. Beginning January 1, 2016, the legal standard for determining one’s capacity to vote in California has changed. Let’s examine California’s new law as it applies to a person who is being conserved.
Prior to 2016, a conservatee who was not capable of completing the affidavit of voter registration could be disqualified from voting. Courts have often decided the issue by asking the conservatee to provide the necessary information to complete the voter registration affidavit, i.e., asking the person to provide his or her own name, address, and date of birth. Voter literacy tests were prohibited by federal law in 1970.
In the last couple of years, the following protections were added to that standard in order to protect disabled persons who otherwise knew what they needed to complete the registration form: (1) Signing the affidavit of voter registration with a mark or a cross; (2) Signing the affidavit of voter registration by means of a signature stamp; and (3) Completing the affidavit of voter registration with the assistance of another person.
Now in 2016 the new law also allows a disabled person to complete the voter registration form with “reasonable accommodations”. The “reasonable accommodations” requirement is rooted in Americans with Disability Rights law. It is a legal term of art. It means allowing disabled persons a fair chance to accomplish a particular task by making reasonable accommodations suited to their particular disability.
Being conserved does not automatically entail losing one’s right to vote. Under the new law, a conservatee can only lose his right to vote if the court finds, by clear and convincing evidence that the proposed conservatee is unable to communicate a desire to vote, with or without reasonable accommodations.
Presently, the existing form of the petition to appoint a conservator asks the petitioner whether the petitioner believes the proposed conservatee is capable of completing a voter registration form. This question is not really appropriate as it is not for the petitioner, but for the court, to make that determination. Nor can petitioners be expected to correctly determine the issue. Fortunately, a new conservatorship petition form is expected to appear that no longer asks that question.
It is up to the court’s investigator to determine, after interviewing the proposed conservatee, whether the conservatee is able to express a desire to vote. Only if the court determine that there is clear and convincing evidence that the conservatee cannot express the desire to vote can the conservatee be disqualified from voting.
The capacity to vote issue is never the motivation for why a conservatorship is needed. The petition is filed to protect the conservatee. Nonetheless, the right to vote is often a cherished fundamental right for many people. The hope is that the new law does more to protect disabled persons, who are otherwise qualified to vote, from losing their right to vote if and when they are conserved for their own protection.