I was recently asked whether a person under guardianship could vote.  Although my gut reaction was that the fundamental right to vote shouldn’t be stripped merely because one is under guardianship, as with many legal questions, the answer is not necessarily straight forward.

In 2000 a decision, recognizing that “the right to vote is quintessential to our democratic process”, the Appellate Division of the Superior Court found that residents of a psychiatric hospital did not lose their right to vote merely because of their involuntary admission.  Rather, the Court held that because voting involved a fundamental right of self-determination, “the burden of proof falls on those seeking to challenge the patients’ right to vote.”

In an earlier 1976 decision, the Appellate Division found that a municipal clerk, as a non-expert, was “completely unequipped” to make a determination of an individual’s capacity to vote.   The Court found that the mere fact that a person qualified for residential services for developmental disabilities did not create a presumption as to their capacity to vote.

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In 2007, New Jersey’s Constitution was amended to state that: “No person who has been adjudicated by a court of competent jurisdiction to lack the capacity to understand the act of voting shall enjoy the right of suffrage.”  (Article II, Section I, Paragraph 6). In other words, New Jersey’s constitution specifically excludes only those persons that a Court has determined cannot understand the act of voting.

So, does a person under guardianship have the right to vote?  That answer would seem to depend on whether the guardianship order specifically addresses the person’s understanding of their right to vote.  If the guardianship order says nothing on the matter, then that person should retain the right to vote. In any event, the burden would be on the person seeking to disenfranchise the voter (i.e., the clerk or board of elections) to set forth expert evidence of a person’s inability to understand the act of voting.

In short, don’t assume your dependents have lost their right to vote merely because they are under your guardianship.

If you care to do more reading on the subject, have a look at this article: “Defining and Assessing Capacity to Vote: The Effect of Mental Impairment on the Rights of Voters” by Sally Hurme and Paul S. Appelbaum.