The Right To Vote of Persons Under Guardianship...The Right To Vote of Persons Under Guardianship...

to whether the ward can vote. One par-ent/guardian reported that the superiorcourt administrators in her county advisedthat if she reapplied for limited guardian-ship her son would be able to vote.However, she stated that she cannot affordto pay again the $3,000 it cost her toaccomplish the full guardianship.

Some probate officials express the off-the-record view that individuals under anyform of guardianship are ineligible to vote.However, the voting rights of wards willnot be vindicated, or even addressed,unless the advocates for those placed underguardianship realize that this is an impor-tant issue they should raise on behalf oftheir clients. Furthermore, there must besome consistency of approach in the vari-ous Arizona county probate court systemson this issue.

I am opposed to the granting of suffrage to the incapacitated because I believe it would bea loss to them. They will lose those aspects of their tenderness and fragility by entering theworld of politics. And by that transformation they will not only lose the sweet and nobleinfluence of their character, but will be in an arena being asked to take up weapons(the franchise) with which they are unfamiliar and unable to wield. Further, Iunderstand that they don’t want to vote anyway. … No sir it is not that the inca-pacitated are inferior, but it is that they are different; our Maker has created thenormal person adapted to the performance of certain functions and the incapac-itated adapted to the performance of other functions. The incapacitated don’tneed suffrage because it is our duty to protect them.”1

The Right To Vote of Persons Under Guardianship–Limited or Otherwise

This argument characterizes as protectors those who woulddeny rights for purportedly benevolent purposes. But on evenbrief reflection the remarks are seen as condescending anddemeaning. Yet the sentiments expressed are held by somewho would summarily deny the right to vote to personswith varying degrees of incapacity. Those remarks are actu-ally taken in large part from the Arizona ConstitutionalConvention and involved debates on whether the fran-chise should be extended to women who weredescribed as not inferior—just different. Though freelyedited, the speech is an accurate depiction and oftenverbatim representation of the statements of a cen-tury ago.

Too often in guardianship proceedings, pro-tected persons are stripped of their right to votewithout any discussion or consideration ofwhether they retain the capacity to exercise thatright.2 The author has spoken to several per-sons who are the guardians of adult relatives,and they have experienced varying advice as

BY HENRY G. WATKINS

“

to hisguardian.”Thus, Porterv. Hall, with astrong dissent,concluded thatNative Americanswere barred fromvoting by Article 7, §2, because they weredeemed persons underguardianship.

Two decades later,Porter v. Hall was reversedin Harrison v. Laveen.8 TheCourt noted that mere use ofthe term “guardianship,” espe-cially by analogy, did not amountto a guardianship within themeaning of Article 7, § 2(c) of theState Constitution:

The term “guardianship” has a verydefinite meaning, both at commonlaw and under the Arizona statutes.Some of the essential features of“guardianship” are: (1) that theguardian has custody of the person ofthe ward; (2) that the ward is under dutyto live where the guardian tells him tolive; (3) that the legal title to the prop-erty of a ward is in the ward, rather thanin the guardian, but the ward may notmake contracts respecting his property;(4) that the guardian may also decidewhat company the ward may keep.9

Arizona law provides that a guardian hasthe same powers over the ward as a parenthas over a child.10 Thus, a guardianship

35w w w. m y a z b a r. o r g

This article considers the legal basis fordenying those under limited guardianshipthe right to vote and argues that the lawdoes not support what is often the reality insome Arizona courts.

BackgroundFrom the time of its admission to theUnion, Arizona, by constitutional pro-scription, denied citizens under guardian-ship the right to vote. However, the intentof that provision, changes in Arizona law,and requirements of the United StatesConstitution all support the position thatcitizens under the relatively new mecha-nism of limited guardianships are not, forthat reason alone, ineligible to vote.

Historically, Arizona’s constitutionaldisenfranchisement was aimed only atthose deemed incompetent and subject toguardianship at common law. This “plena-ry guardianship”3 stripped wards of all theirrights because they were consideredincompetent or incapacitated in allrespects.

Arizona’s limited guardianship provi-sions, enacted in 2003, created a mecha-nism for individuals who were incapable ofmanaging certain affairs of their lives,though fully capable of managing others.Limited guardianships were designed topromote self-determination and autono-my; the expressed intent of such guardian-ships was that wards retain those rights anddecision-making authorities not granted tothe guardian.

Thus, because Arizona’s constitutionalprovision respecting persons underguardianship was directed at the “fullyincapacitated,” it does not reach thoseunder limited guardianship. The right tovote for those individuals should be pre-sumed, absent clear and convincing evi-dence that they lack the capacity to do so.

Furthermore, even if Arizona’s

Constitution intended to reach personswith the capacity to vote, it would beinvalid. It is axiomatic that where there isa conflict between a state constitution orstatute and rights guaranteed by theUnited States Constitution, the state pro-vision must yield. The United StatesConstitution guarantees citizens the rightto vote where they are capable of doing soand not otherwise disqualified by a seriouscriminal conviction.

The Arizona StateConstitutionUntil the year 2000, Article 7, § 2(c) of theArizona State Constitution read as follows:

No person under guardianship, noncompos mentis or insane shall be quali-fied to vote at any election, nor shall anyperson convicted of treason or felony, bequalified to vote at any election unlessrestored to civil rights.

This language was a part of the originalArizona State Constitution, which wasapproved by the voters on Nov. 5, 1912,becoming effective Dec. 5, 1912.4 It is clearthat the guardianship mentioned in theState Constitution was plenary guardian-ship5 as existed at common law.

The Arizona State Supreme Court hasconsidered the meaning of “guardianship”as that term is used in Article 7, § 2(c). InPorter v. Hall,6 the Court held thatAmerican Indians were disenfranchised byArticle 7, § 2(c). That Court reasoned thatvarious United States Supreme Court caseshad described Indians as “wards” of thegovernment. For example, Chief JusticeMarshall in Cherokee Nation v.Georgia7 stated that Indiantribes had a relationship to theUnited States governmentthat “resembles that of a ward

Henry G. Watkins is a graduate of Arizona State University’sCollege of Law. Formerly the Executive Director of the Arizona Centerfor Disability Law, he is now doing volunteer legal work.

N O V E M B E R 2 0 0 7 A R I Z O N A AT T O R N E Y

within the meaning of theArizona Constitution is one

having the plenary powers described by thecourt in Harrison v. Laveen.11 To be subjectto such a guardianship, persons must befound incompetent to conduct any of theirpersonal or business affairs.

In 2000, the following changes weremade to Article 7, § 2(c):

No person under guardianship, noncompos mentis or insane [who is adjudi-cated an incapacitated12 person] shall bequalified to vote at any election, nor shallany person convicted of treason orfelony, be qualified to vote at any elec-tion unless restored to civil rights.

The term “guardianship, non compos men-tis, or insane” was stricken and replaced bythe term “who is adjudicated an incapacitat-ed person” as a result of Proposition 101,passed on the Nov. 7, 2000, GeneralElection Ballot. The Arizona Secretary ofState’s booklet promulgating this ballotproposition, at page 29, sets forth the fol-lowing brief explanation:

Analysis by Legislative CouncilProposition 101 would amend sever-

al sections of the Arizona Constitutionto modernize certain out-of-date lan-guage including references to peoplewith disabilities.

Proposition 101 would also amendthe Arizona Constitution to change cer-tain voting requirements to conformwith the United States Constitution andother federal laws. Proposition 101would change the minimum voting ageto 18 and eliminate the one-year resi-dency requirements for voting. UnderArizona law, there is a twenty-nine dayresidency requirement, which remainsunchanged. These changes are alreadyenforced in Arizona pursuant to federallaw.13

This change was approved by the electors inthe Nov. 7, 2000, General Election as pro-claimed by the Governor on Nov. 27,2000.14

Statutory ProvisionsArizona Revised Statutes § 14-5101(1)defines an “incapacitated person” as:

Any person who is impaired by reason ofmental illness, mental deficiency, mentaldisorder, physical illness or disability,chronic use of drugs, chronic intoxica-tion or other cause, except minority, tothe extent that he lacks sufficient under-standing or capacity to make or commu-nicate responsible decisions concerninghis person.

The courts have taken pains to find a prop-er balance of competing interests inguardianship cases. On the one hand, theextreme remedy of guardianship deprivedindividuals of their right of self-determina-tion in the most basic areas of their lives—where to live, with whom to associate, whento come and go.15 On the other hand, fail-ure to order guardianship could imperilthose individuals who, lacking such protec-tion, would face dire and possibly life-threatening situations. This challenge wasmade all the more daunting given that onewas either placed totally under guardianshipor not—there was no middle ground.16

The Evolving Standardof GuardianshipThe standard of who is subject to the con-straints of guardianship, with its attendantdeprivation of the ward’s rights, has been anevolving one. Until 2003, no express limit-ed guardianship statute existed in Arizona.Until then, it was widely believed that onewas either subject to guardianship or not.The case law recognized that placing anindividual under guardianship, although forpaternalistic and protective purposes,involved denying the ward the most basic ofrights, including self-determination.

The contours of guardianship and theresultant powers of the guardian over theward evolved over the years. For example,Harrison v. Laveen noted that the guardianhas custody of the person of the ward, andthe ward must live where the guardian tellshim to live. However, it was held later thatone under guardianship and unable to man-age his affairs could nevertheless have theintention and the capacity to change hisstate of domicile without the consent of theguardian. As the Arizona Supreme Courtstated in 1962, “That one is underguardianship does not prevent him fromperforming the acts of which he is in factcapable.”17

The Court’s statement was prescient in

that it expressed a principle that was notmuch followed at that time, but it is the pre-vailing rule today.

Further complicating the guardianshipprocess is that courts and practitioners for avariety of reasons tend to prefer plenaryguardianship over limited ones.18 Amongother things, plenary guardianships elimi-nate issues concerning the guardian’sauthorities and the need for the guardian toreturn to court seeking expanded authori-ties.19 Thus, there are situations in which aplenary guardianship will be ordered eventhough the ward retains the capacity toexercise certain basic rights, including theright to vote.

The Arizona courts, like others, strug-gled with deciding which situations weresufficiently extreme to warrant stripping anindividual’s rights of self-determination.Though the purpose was to protect suchindividuals, the remedy was extreme. InMatter of Guardianship of Reyes,20 the courtadopted the holding and analysis of theUtah Supreme Court’s decision in In reBoyer21:

[The] determination that an adult can-not make “responsible decisions con-cerning his person” and is thereforeincompetent, may be made only if theputative ward’s decision-making processis so impaired that he is unable to carefor his personal safety or unable toattend to and provide for such necessitiesas food, shelter, clothing, and medicalcare, without which physical injury or ill-ness may occur.22

In re Boyer thus determined that the lossof autonomy resulting from placing personsunder guardianship could be supportedonly upon a showing that without such pro-tection their personal health or safety wouldlikely be jeopardized. The Utah SupremeCourt in Boyer addressed various trouble-some issues surrounding guardianship.

The Utah statute defining “incapacitatedperson” was almost identical to the Arizonastatute.23 Ms. Boyer was found by a jury tobe an “incapacitated person” by a “prepon-derance of the evidence.” A guardian wasappointed, and no limits were set on theguardian’s powers. In appealing this deci-sion, Ms. Boyer challenged the constitu-tionality of the probate code procedure forthe appointment of guardians for incapaci-

36 A R I Z O N A AT T O R N E Y N O V E M B E R 2 0 0 7 w w w. m y a z b a r. o r g

Voting Rights and Guardianship

tated persons. The courtdefined the issues as whether:

[A] determination of incapacity (which)may result in a deprivation of such fun-damental rights as the right of privacy,the right to travel, and the right to makevarious personal decisions … must meetdue process requirements and containwell-defined standards. The argument isthat the term “responsible decisions con-cerning his person,” … is unconstitu-tionally vague and overbroad and that,because of the potential infringement ofindividual liberties, the statutory schemeis deficient in not incorporating the prin-ciple of the “least restrictive alterna-tive.” Finally, appellant argues thatdue process is violated because afinding of incompetency may bebased on a preponderance of theevidence rather than clear and con-vincing proof.24

The court started by articulating thebedrock premise that there should beno “unjustifiable intrusion upon [theward’s] personal liberties.”25 To avoidsuch an intrusion, the term “responsi-ble decisions” was narrowly construed:

The term “responsible decisions” isreasonably susceptible of a construc-tion giving effect to the statute’s basicpurpose without improperly imping-ing on an individual’s liberties ofself-determination, right of privacy, rightto travel, or right to make one’s own edu-cational and medical decisions. … Thebenign purposes of the statute can beeffectively accomplished withoutimproperly trenching on those libertiesby defining “responsible decisions” interms of specific, objective standards fordetermining the ability of one to care foroneself.26

Thus, it would not be constitutional to con-clude that simply because one was incapaci-tated in one area, incapacity is presumed inothers.

Next addressed was whether theguardianship statute was unconstitutionallyoverbroad because “the full scope of powerswhich may be, and in this case were, con-ferred on a guardian are not necessary inspecific cases”27:

In this case, the least restrictive alterna-tive, is closely allied with the more gen-eral overbreadth issue [FN6]28 and,therefore, we address both together.Appellant specifically contends that theState must adopt the alternative leastrestrictive of the alleged incompetent’sliberty and that the Utah proceduresweeps too broadly in permitting aguardian to be invested with wide-rang-ing powers over the personal decisions ofone who has no need of complete super-vision, although there may be a need forassistance in handling specific aspects ofhis or her personal affairs.29

The court continued, “[A] court inappointing a guardian must consider theinterest of the ward in retaining as broad apower of self-determination as is consistentwith the reason for appointing a guardian ofthe person.”30

The nature and extent of powers grant-ed a guardian is for the probate court todecide. The Utah guardianship provisionsstated, in pertinent part, that, “A guardianof an incapacitated person has the samepowers, rights, and duties respecting hisward that a parent has respecting his une-mancipated minor child … except as modi-fied by order of the court.”31

It was thus held that the probate courtwas authorized to tailor the powers of aguardian to the particular needs of theward. In discharging this task, the probatecourt is to make individualized findings asto the powers invested in the guardian, and

thus withdrawn from the ward. So constru-ing the guardianship provisions, the courtheld, would save them from being uncon-stitutionally overbroad.32

Arizona’s Adoption of In Re BoyerArizona’s guardianship provisions werechallenged in Matter of Guardianship ofReyes,33 which embraced much of In reBoyer. The appellant in Reyes argued thatthe Arizona guardianship laws were uncon-stitutional because (1) the burden of proofshould be clear and convincing rather thanpreponderance of the evidence, (2) the def-inition of “incapacitated person” was vague

and overbroad and (3) the guardian’spowers were overbroad.

In a brief decision the court ruledthat because of the loss of libertyinvolved in appointing a guardian andthe stigma associated with a judicialfinding of incompetence, “the need forappointment of a guardian must consti-tutionally be by clear and convincingevidence.”34

“To avoid any constitutional dan-ger,” the court adopted the construc-tion of “incapacitated person” set forthin In re Boyer. That is, in deciding if onecan make “responsible decisions con-cerning his person,” the issue waswhether “the putative ward’s decision-making process is so impaired that he isunable to care for his personal safety orunable to attend to and provide for such

necessities as food, shelter, clothing andmedical care, without which physical injuryor illness may occur.”35

Finally, the court responded to the argu-ment that A.R.S. § 14-5312, which lists thepowers of the guardian, is overbroadbecause it grants powers (and deprives theward of rights) that may be unnecessary inany particular case: “Because the statute byits terms permits these powers to be modi-fied by the trial court and because norequest for modification was made in thiscase, we reject the argument.”36

2003 Arizona LimitedGuardianship ProvisionsIn April 2003 Arizona statutorily created lim-ited guardianships and expressed a preferencefor such guardianships over plenaryguardianships. In essence, A.R.S. §§ 14-5303 and 14-5304 were amended to provide



The United States

Supreme Court has

expressed disapproval

of state constitutional

and statutory

disenfranchisement

provisions that discriminate

against the disabled.

that a petition for guardianshipmust state:

The type of guardianship requested. If ageneral guardianship is requested, thepetition must state that other alternativeshave been explored and why a limitedguardianship is not appropriate. If a lim-ited guardianship is requested, the peti-tion also must state what specific powersare requested.37

Also, the amendments provided that “Inexercising its appointment authority pur-suant to this chapter, the court shall encour-age the development of maximum self-reliance and independence of the incapaci-tated person.”38

The court may appoint a general or lim-ited guardian if it is satisfied by clear andconvincing evidence that (1) the person forwhom a guardian is sought is incapacitated,(2) the appointment is necessary to providefor the demonstrated needs of the incapaci-tated and (3) the person’s needs cannot bemet by less restrictive means, including theuse of appropriate technological assistance.39

The legislation makes clear that in seekingto protect individuals, the least restrictiveapproach that serves that purpose must betaken.

Representative Peter Hershberger, oneof the bill’s sponsors, testified before theArizona House Committee on Judiciary asto the intent of the limited guardianshipprovisions:

Mr. Gray [House Judiciary Committeemember] asked the difference between afull guardianship and a limited guardian-ship. Representative Hershbergerexplained that there is a national trend toallow individuals with disabilities themaximum amount of control over theirlife. He said there are different kinds ofdisabilities. A certain citizen might havesome disabilities in some areas but beable to participate effectively in decisionsfor their life in other areas. The courtswill determine that they may maintainthose decisions and a guardianship willbe appointed for other things such asfinances.40

To conclude that persons under limitedguardianships are automatically ineligible tovote would emasculate the basis for the

holdings in Reyes. As discussed previously,the Reyes and Boyer courts construed theguardianship provisions to harmonize themwith constitutional requirements.Essentially, the courts ruled it necessary toretain basic rights in the ward where therewas no showing that the ward was incapableof exercising those rights.

It should be noted that specifying reten-tion of the right to vote in letters ofguardianship will not impede the guardian’sexercise of required duties. Where the wardretains the capacity to vote, that rightshould not be denied. This is a matter ofconstitutional and civil rights, and impli-cates issues of self-determination andhuman dignity.

These decisions, as well as the clear lan-guage of the limited guardianship provi-sions, stand for the proposition that unlessincapacity to exercise basic rights is shown,wards retain those rights. It would fly in theface of Reyes and the limited guardianshipprovisions to now argue that one with thedemonstrated capacity to vote will not beallowed to do so.

Provisions in Other StatesOther states with constitutional disenfran-chisement provisions similar to Arizona’shave construed them not disenfranchisingthose under limited guardianship.

In Doe v. Rowe,41 Maine’s disenfranchise-ment of persons “under guardianship forreasons of mental illness” was challenged asbeing unconstitutional and contrary to theAmericans With Disabilities Act, amongothers. The state in defending the actionstated that this constitutional prohibitiondid not apply to limited guardianships42;instead, the state’s position was that inca-pacitated persons subject to limitedguardianship retain all legal and civil rightsexcept those that have been expressly sus-pended in the decree or court order.43 Thus,an incapacitated person under limitedguardianship because of mental illnessretains the right to vote unless that right isspecifically suspended by the probatecourt.44

Massachusetts also has a constitutionalprovision disenfranchising “persons underguardianship.”45 In In Guardianship ofHurley,46 the probate court, acting on amotion filed by the guardian, issued anorder modifying a full guardianship to alimited guardianship. This change was

intended to restore the ward’s right tovote.47 The probate court found that theward was “capable of making informeddecisions concerning the exercise of hisright to vote,” and granted him that right,effectively ruling that a limited guardianshipwas not the kind of guardianship contem-plated by the Massachusetts Constitution.48

Prye v. Carnahan49 interpreted theMissouri State Constitution that bars votingby those under guardianship. The courtnoted that there was no automatic votingbar as related to persons under limitedguardianship.50 Furthermore, the courtfound that the Missouri probate courtsappropriately engaged in an individualizeddetermination of capacity to vote in bothlimited and full guardianships.51

Thus, even without reaching the issuewhether the Arizona constitutional disen-franchisement provision for those underguardianship squares with the U.S.Constitution’s protections, the better viewis that Arizona’s constitutional provisiondid not intend to automatically disenfran-chise persons under limited guardianship.

Running Afoul of the U.S.ConstitutionAs discussed previously, the courts in Boyerand Reyes constructed limited guardianshipsby statutory interpretation. These mecha-nisms retained in the ward self-determina-tion and their basic rights and liberties con-sistent with their capacity. This position wastaken because, as the courts noted, to dootherwise would likely render the guardian-ship statutes unconstitutional.

Thus, the Arizona Constitution does notdisenfranchise wards under limitedguardianship. Moreover, were the provisionin question construed to apply to limitedguardianships, it could not survive constitu-tional scrutiny.

Harrison v. Laveen, discussed previously,stressed the fundamental right to vote:

In a democracy suffrage is the most basiccivil right, since its exercise is the chiefmeans whereby other rights may be safe-guarded. To deny the right to vote,where one is legally entitled to do so, isto do violence to the principles of free-dom and equality.52

Likewise, the U.S. Supreme Court inDunn v. Blumstein53 stated that the right to



vote is a “fundamental politi-cal right … preservative of all

rights.” The Court cited a litany of cases forthe proposition that citizens have a consti-tutional right to participate in elections onan equal basis with other citizens in thejurisdiction.54 Before the right to vote canbe restricted, “[T]he purpose of the restric-tion and the [claimed] overriding interestsserved by it must meet close constitutionalscrutiny.”55 Furthermore, provisions affect-ing constitutional rights must be drawnwith precision and must be “tailored” toserve their legitimate objectives so as tolimit the burden on the exercise of thoseconstitutional rights.56

An instructive case is Doe v. Rowe,57

which has been cited with approval by theUnited States Supreme Court. In this casethe court ruled that the provision of theMaine Constitution barring voting by per-sons under guardianship for mental illnessviolated the Fourteenth Amendment, DueProcess Clause and the Americans WithDisabilities Act. Plaintiffs were under fullguardianship because of mental illnesses.The parties agreed that persons under limit-ed guardianship for mental illness were notautomatically barred from voting despitethe constitutional language.58

The Court employed the balancing testof Mathews v. Eldridge59 in examining thesufficiency of the procedures used to disen-franchise Maine voters. It weighed (1)plaintiffs’ interest in participating in thedemocratic process through voting, (2) therisk of erroneous deprivation of the right tovote and (3) the state’s interest, includingany additional administrative or financialburden on the state that may be imposed byrequiring additional procedures.60 TheCourt found that due process was violatedbecause guardianship proceedings couldstrip one of the right to vote without evengiving notice that this right was in jeopardy.This lack of notice resulted in mentally illpersons being disenfranchised regardless oftheir capacity to understand the nature andeffect of voting. Accordingly, the courtfound Maine’s guardianship procedures vio-lated due process.

The state’s voting restrictions were heldto violate the Equal Protection Clause. Thestrict scrutiny analysis was applied because afundamental right was implicated.61 Theparties agreed that Maine had a compellingstate interest in ensuring that “those who

cast a vote have the mental capacity to maketheir own decision by being able to under-stand the nature and effect of the voting actitself.”62 Maine’s voting restrictions, it washeld, were not narrowly tailored to meetthis compelling interest.

Arizona DisenfranchisementThe disenfranchisement provision of theArizona Constitution suffers the same dueprocess and equal protection difficultiesidentified in Doe v. Rowe. That provision, ifread to apply to limited guardianships,would be overbroad and deny the vote topersons with the capacity to do so. Inguardianship proceedings, there are no pro-cedural safeguards to provide notice of pos-sible disenfranchisement and a specificassessment of wards’ capacity to vote beforestripping them of that fundamental right.63

In addition, there is no consistent orrational scheme of determining whichArizonans under guardianship are renderedineligible to vote. The Arizona legislature in1999 conferred upon the probate courtpower to order retention of civil rights forpersons under guardianship.64 This amend-ment is found in a provision titled“Inpatient treatment; rights and duties ofward and guardian,” and it reads as follows:“The court may decide that the ward’s rightto retain or obtain a driver license and anyother civil right that may be suspended byoperation of law is not affected by theappointment of a guardian” (emphasisadded).

Those civil rights suspended by opera-tion of law are listed, inter alia, at A.R.S. §13-904. That provision states that a convic-tion for a felony suspends the civil rightsthere enumerated, the first of which is “theright to vote.”

The legislative history is sparse inexplaining the intended reach of this provi-sion. For example, was it to apply only toinpatient wards at treatment facilities? If so,why expressly give judges the power toorder that inpatient wards retain the right tovote and not wards in a residential or groupsetting? Did the legislature assume thatjudges in non-inpatient guardianship casesalready had the power to order the reten-tion of the right to vote for wards? Or is thisprovision intended to apply generally to allguardianship proceedings? If the intent wasto give courts the power to retain votingprivileges for inpatient wards but not others,

this would run afoul of the equal protectionanalysis in Doe v. Rowe and would seem tohave no rational basis for excluding otherwards ostensibly more capable of voting.

The above-cited cases show that onemay be deprived of the right to vote onlyupon an individualized assessment of theperson’s capacity.65 In re Boyer ruled that anindividualized assessment was constitution-ally required so as to withdraw from theward only those rights the ward was inca-pable of exercising.66 Reyes embraced thereasoning of Boyer. Also, Arizona’s limitedguardianship provisions require an individu-alized determination of the ward’s capacitiesso as to impose the least restrictive alterna-tive and deprive the ward of only thoserights necessary to achieve the essential pur-poses of the guardianship.

The United States Supreme Court hasexpressed disapproval of state constitutionaland statutory disenfranchisement provisionsthat discriminate against the disabled.Tennessee v. Lane 67 considered whether TitleII of the Americans With Disabilities Acteffectively abrogated the state’s EleventhAmendment immunity. That case conclud-ed that (1) Congress unequivocally intend-ed to do so and (2) Title II was a valid exer-cise of congressional power pursuant to § 5of the Fourteenth Amendment. Withregard to this latter finding, Title II wasdeemed a “proportional and congruent”remedy to the injury and the means adopt-ed to remedy it:

It is not difficult to perceive the harmthat Title II is designed to address.Congress enacted Title II against a back-drop of pervasive unequal treatment inthe administration of state services andprograms, including systematic depriva-tions of fundamental rights. For exam-ple, “As of 1979, most States … cate-gorically disqualified “idiots” from vot-ing, without regard to individual capaci-ty. [Fn5. Cleburne v. Cleburne LivingCenter, Inc., 473 U.S. 432, 464, and n.14 … (Marshall, J., concurring in judg-ment in part and dissenting in part) (cit-ing Note, Mental Disability and theRight to Vote, 88 YALE L.J. 1644(1970).] Id. at 524. The majority ofthese laws remain on the books, [Fn6.See Schriner, Ochs, & Shields,Democratic Dilemmas: Notes on the ADAand Voting Rights of People with



Cognitive and EmotionalImpairments, 21 BERKELEY J.

EMP. & LAB. L. 437, 456-472 tbl. II.]and have been the subject of legal chal-lenge as recently as 2001. [Fn7. See Doev. Rowe, 156 F. Supp. 2d 35 (D. Me.2001)].68

Continuing, the Court pointedly noted:

The decisions of other courts, too, doc-ument a pattern of unequal treatment inthe administration of a wide range ofpublic services, programs, and activities,including … voting. [Fn13. E.g., Doe v.Rowe, 156 F. Supp. 2d 35 (D. Me.2001) (disenfranchisement of personsunder guardianship by reason of mentalillness). See also, e.g., New York ex rel.Spitzer v. County of Delaware, 82 F.Supp. 2d 12 (N.D.N.Y. 2000) (mobili-ty-impaired votes unable to access coun-ty polling places)]. Notably these deci-sions also demonstrate a pattern ofunconstitutional treatment in the admin-istration of justice. [Fn omitted].69

In Cleburne v. Cleburne Living Center,Inc,70 Justice Marshall (joined by JusticeBrennan and Justice Blackmun), concurringin the judgment in part and dissenting inpart, noted:

Prejudice, once let loose, is not easilycabined. See University of CaliforniaRegents v. Bakke, 438 U.S. 265, 395 …(opinion of Marshall, J.) As of 1979,most States still categorically disqualified“idiots” from voting, without regard toindividual capacity and with discretion toexclude left in the hands of low-levelelection officials.” [Fn14. See Note,Mental Disability and the Right to Vote,88 YALE L.J. 1644 (1979).71

ConclusionAccordingly, Article 7, § 2(c) of the ArizonaConstitution does not deny the vote to per-sons under limited guardianship.

First, this provision was not intended toreach persons who were not adjudicatedfully incapacitated. And the limitedguardianship provisions enacted in 2003 donot create the kind of guardianship contem-plated by the Arizona Constitution.Moreover, were the constitutional disen-franchisement provision applied to wards

under such guardianships regardless of theircapacity to vote, this would violate theUnited States Constitution.

In sum, any provision purporting todeny the right to vote on grounds of pre-sumed incapacity cannot withstand consti-tutional scrutiny. Instead, there must be anassessment of “the individual capacity” tovote of affected individuals. And, as held inRowe v. Doe, such persons must be givennotice of the possible loss of this right, andan opportunity to meet this issue.

8. 196 P.2d 456 (Ariz. 1948).9. Id. at 462.

10. A.R.S. § 14-5312.A. This provision reads inpertinent part, “A guardian of an incapacitatedperson has the same powers, rights and dutiesrespecting the guardian’s ward that a parenthas respecting the parent’s unemancipatedminor child.”

11. Farnsworth v. Hubbard, 277 P.2d 252, 258(Ariz. 1950), held that statutes should be con-strued consistent with common law where pos-sible. See also In re Beaumont, 1 Whart. 52 (Pa.1836), discussing common law standards forjudicial intervention to protect persons whowere unable to care for themselves or theirestates.

12. The “modernizing” language of Proposition101 had no intention of expanding the consti-tutional disqualification of persons under“guardianship.” Thus, to the extent that theterm incapacitated person is now used it mustbe construed to apply to one who is fully inca-pacitated as did as the original provision.

13. Though Article 7, § 2, stated that a qualifiedvoter had to be 21 years of age and haveresided in the state one year immediately pre-ceding the election, United States SupremeCourt rulings had held such provisions uncon-stitutional. See, Oregon v. Mitchell, 400 U.S.112 (1970) (Court held that in enacting 1970amendments to Voting Rights Act Congresswas empowered to enfranchise 18-year-olds infederal elections, to abolish literacy tests as pre-requisite to vote and to abolish durationalrequirement in presidential elections. But theCourt held enfranchising 18-year-olds in stateand local elections was beyond Congress’power). The United States Constitution wasamended a year later to address Oregon v.Michell’s conclusion that Congress lacked con-stitutional authority to enfranchise 18-year-oldsin state and local elections. The 26thAmendment, accomplishing this, was formallycertified by President Richard Nixon on July 1,1971. And, in Dunn v. Blumstein, 405 U.S.330 (1972), durational residency requirementsin state elections were deemed an unconstitu-tional burden on the right to vote and theright to travel. Arizona had adopted these con-stitutional rulings but had not previouslyamended the State Constitution to so reflect.

14. This amendment was placed on the ballot as aresult of House Concurrent Resolution 2004(2000).

15. As noted previously, the court in Harrison v.Laveen ruled that some of the “essential fea-tures of guardianship were divesting the wardof the power to make decisions intimatelyaffecting the ward and placing such powers inthe guardian. Included among these are thedecisions where the ward will live and withwhom the ward may associate. 196 P.2d at462-63.

16. Lawrence A. Frolik, Plenary Guardianship: AnAnalysis, a Critique and a Proposal for Reform,23 ARIZ. L. REV. 599, 616 (1981) (“[T]hecommon law … perceived incompetency as apermanent point on the spectrum of mental

1. The Records of the Arizona ConstitutionalConvention of 1910 (Ed. John S. Goff,Supreme Court of Arizona), at 279-282. Theargument for denying women the franchise wasspecious. On the other hand, some incapacitat-ed persons may not be able to understand thenature and effect of voting. But to deny per-sons under guardianship the right to vote with-out an individualized assessment of their capac-ity to do so is to engage in stereotyping andprejudgment.

2. See, e.g., the Opening Brief ofPlaintiffs–Appellants in Prye v. Carnahan,2006WL 1888639 (W.D. Mo., July 7, 2006);33 NDLR Par. 47. That brief can be viewed athttp://ls.wustl.edu/news/documents/OpeningBr.pdf. The record is cited to show that“[e]ven the attorneys appointed to representindividuals subject to guardianship do not dis-cuss voting issues with their clients.” Id. at 13.Furthermore, it is there noted that defendantstate officials do not provide information toprobate courts, public administrators, privateguardians or wards concerning the effect ofguardianship on voting rights.

3. The terms “plenary guardianship,” “generalguardianship” and “full guardianship” will beused interchangeably.

4. The Records of the Arizona ConstitutionalConvention of 1910, supra note 1, has no illu-minating discussion concerning this provision.Most of the discussion on suffrage and elec-tions was devoted to a debate on women’s suf-frage. See, e.g., id. at 274-288.

5. The term “plenary guardianship” is sometimesused to refer to a combinationguardianship/conservatorship arrangement.Sometimes it is used to refer to a full guardian-ship where the guardian is empowered to makeall decisions for the ward. However, in bothcases it is premised on the theory that the wardretains no rights of self-determination.

6. 271 P. 411 (Ariz. 1928).7. 5 Pet. 1, 8 L. Ed. 25 (1831).


endnotes

AZAT


ability. … Under common law, one either wasor was not competent (in a factual sense)”);Frolik, Promoting Judicial Acceptance and Useof Limited Guardianship, 31 STETSON L. REV.735, 747 (Spring 2002) (plenary guardianshipinvolved an “absolute labeling and stripping ofrights”). See also Neha Patel, The HomelessMentally Ill and Guardianship: An Assessmentof Current Issues in Guardianship and PossibleApplication to Homeless Mentally Ill Persons, 11GEO. J. ON POVERTY L. & POL’Y 495, 503(2004) (plenary guardianship, awarded incases where an individual is completely inca-pable of making decisions for himself or her-self, grants the guardian all responsibility anddecision-making authority for the ward).

17. In re Sherrill’s Estate, 373 P.2d 353, 356 (Ariz.1962).

18. See Lawrence A. Frolik, Promoting JudicialAcceptance and Use of Limited Guardianship,31 STETSON L. REV. 735 (Spring 2002).

19. Id. at 742-43.20. 731 P.2d 130, 131 (Ariz. Ct. App. 1986).21. 636 P.2d 1085, 1089 (Utah 1981).22. Id.23. UTAH CODE ANN. § 75-1-201(18) (1953). See

current Utah Code Ann. § 751-1-201(22)(1953) for slightly revised defining language.

24. 636 P.2d at 1087.25. Id. at 1088.26. Id. at 1089 (emphasis added).27. Id. at 1090.28. Note 6 in Boyer reads as follows: In Grayned v.

City of Rockford, 408 U.S. 104, 114, 92 S. Ct.2294, 2302, 33 L.Ed.2d 222 (1972), theCourt stated: “A clear and precise enactmentmay nevertheless be ‘overbroad’ if in its reachit prohibits constitutionally protected con-duct.” (Footnote omitted.) In Shelton v.Tucker, 364 U.S. 479, 488, 81 S. Ct. 247,252, 5 L.Ed.2d 231 (1960), the court stated:

In a series of decisions this Court has heldthat, even though the governmental pur-pose be legitimate and substantial, thatpurpose cannot be pursued by means thatbroadly stifle fundamental personal libertieswhen the end can be more narrowlyachieved. The breadth of legislativeabridgement must be viewed in the light ofless drastic means for achieving the samebasic purpose. (Footnotes omitted.)

29. 636 P.2d 1090.30. Id. at 1090-1091 (footnote omitted).31. Compare A.R.S. § 14-5312.A., which reads as

follows:A guardian of an incapacitated person hasthe same powers, rights and duties respect-ing the guardian’s ward that a parent hasrespecting the parent’s unemancipatedminor child … except as modified by orderof the court.

32. 636 P.2d at 1091.33. 731 P.2d 130 (Ariz. Ct. App. 1986).34. 731 P.2d at 131, citing In re Boyer, 636 P.2d

1085 (Utah 1981).35. Id., citing Boyer, 636 P.2d at 1089.36. Matter of Guardianship of Reyes, is cited and

discussed in Matter of Guardianship of Hedin,528 N.W.2d 567, 580 (Iowa 1995). In Hedin

the court cited Reyes for the proposition that“the liberties and prerogatives of the protectedperson” should not be intruded upon unlessfindings of fact showed that such an intrusionwas necessary.

Though Reyes seemed to hold that courtscould fashion limited guardianships and allowthe ward to retain all rights not essential to thepurposes of the guardianship the authors ofArizona’s limited guardianship provisions stat-ed that there was no limited guardianship pro-cedure prior to 2003 when those provisionswere enacted. See following discussion.

37. A.R.S. § 14-5303(B)(8).38. Id. § 14-5304.A.39. Id. § 14-5304.B.40. Arizona State House of Representatives, 46th

Legislature, 1st Regular Session, Minutes ofCommittee on Judiciary, Feb. 13, 2003. Seealso Arizona State House, 46th Legislature, 1stRegular Session, Minutes of Committee onHuman Services, Feb. 4, 2003. See alsoArizona State Senate, 46th Legislature, 1stRegular Session, Minutes of Committee onFamily Services, Mar. 6, 2003, stating that thebill would “follow a national trend to allowmaximum self determination for [developmen-tally disabled] citizens and offer an alternativeto full guardianship.”

41. 156 F. Supp. 2d 35 (Me. 2001).42. Id. at 42, n.9.43. Id., citing a Maine statutory provision. M.R.S.

A. § 5-105.44. See also Guardianship of Hughes, 715 A.2d 919

(Me. 1998). The ward appealed from theappointment of a limited guardian claimingthat various due process protections requiredin the guardianship proceedings were lacking.In arguing for a higher standard of proof ofincapacity, among others, she noted that atstake in guardianship proceedings were herbasic rights to marry, travel and vote. Id. at922. The court noted that there were safe-guards against serious risks of error includingthe statutory requirement that a court couldimpose guardianship, and thus deprive theward of rights, only to the extent of a person’sincapacity. Id at 923.

45. Mass. Const. Amend. Art III (1979). See also,MASS. ANN. LAWS ch. 51, § 1 (1990).

46. 476 N.E.2d 941 (Mass. 1985).47. The ward, armed with the limited guardian-

ship, sought to register to vote, but electionofficials refused to register him because he wasunder “guardianship.” Id. at 943.

48. Id. at 944.49. Slip op., 2006 WL 1888639 (W.D. Mo. July

7, 2006); 33 Nat’l Disability Law Rep. ¶ 47(2006).

50. Slip op. at 4.51. Id. at 6.52. 459 P.2d at 459. Harrison v. Laveen overruled

Porter v. Hall, which held that NativeAmericans were akin to wards and the UnitedStates their guardian. Based on this analogythe Porter ruled that Article 7, § 2 of theArizona Constitution rendered them ineligibleto vote.

53. 405 U.S. 330, 336 (1972), quoting from

Reynolds v. Sims, 377 U.S. 533, 562 (1964).54. Id.55. Id.56. Id. at 343.57. 156 F. Supp. 2d 35 (Me. 2001).58. Id. 42, n.9.59. 424 U.S. 319 (1976).60. Id. at 335.61. 156 F. Supp. 2d at 51, citing Dunn v.

Blumstein, 405 U.S. 330 (1972).62. Id.63. In Raetzel v. Parks/Bellemont Absentee Election

Bd., 762 F. Supp. 1354, 1357 (D. Ariz.1990), the court ruled that:Because voting is a fundamental right, theright to vote is a “liberty” interest which maynot be confiscated without due process. (cita-tion omitted). . . .

For more than a century the central mean-ing of procedural due process has been clear:“Parties whose rights are to be affected areentitled to be heard; and in order that theymay enjoy that right they must first be noti-fied.” Id quoting from Fuentes v. Shevin, 407U.S. 67, 81 (1972).

64. A.R.S. § 14-5312.01(N) was added by laws1999, ch. 83, § 2. 44th, 1st Reg. Sess. (1999),SB 1146.

65. See e.g., Prye v. Carnahan, slip op., 2006 WL1888639 (W.D. Mo. July 7, 2006).

66. 636 P.2d at 1091.67. 541 U.S. 509 (2004).68. Id. at 524.69. Id. at 525.70. 473 U.S. 432 (1985).71. Id. at 464.

The Right To Vote of Persons Under Guardianship...The Right To Vote of Persons Under Guardianship...

Documents

Transcript of The Right To Vote of Persons Under Guardianship...The Right To Vote of Persons Under Guardianship...