Voting rights are in the forefront of minds and media attention in this election year. But not much is written or discussed about the ability of someone under guardianship to exercise their right to vote. This week an Arizona appellate decision created a slight opening to discuss the topic further.
Angie Weber’s story
Angie Weber (we’ve changed her name here to keep her from showing up in any searches) was living in an assisted living facility in Flagstaff, Arizona. By all reports, she needed help with most of her activities of daily living. The Coconino County Public Fiduciary, charged with handling guardianships for folks like Ms. Weber, filed a guardianship petition.
The court set a hearing and appointed a lawyer to represent Ms. Weber. That attorney visited her to see what her position might be.
What Ms. Weber told her attorney, as he later related to the court, was that she was not opposed to the Public Fiduciary being appointed as her guardian. But she objected to any move to restrict her right to vote. She voted regularly, and prized that right.
So Ms. Weber and her attorney went to a hearing on the guardianship petition. The court listened to the discussion of her right to vote and her position on the Public Fiduciary appointment — and appointed the Public Fiduciary as Ms. Weber’s guardian without any limitations.
Arizona law on guardianship and voting rights
Arizona’s law on voting rights and guardianship has been confused for years. In fact, Arizona’s Constitution has, since statehood, included a provision that prohibited anyone “under guardianship” from voting. That legacy may, frankly, have a racist tinge; “under guardianship” was (from an early time) interpreted to include all Native Americans who were enrolled for federal tribal recognition. But the early language of the provision applied to those were “non compos mentis, or insane,” as well.
Two decades ago Arizonans “modernized” the Constitution’s language. But it was really window dressing. Appointment of a guardian is a determination of incapacity, and the loss of voting rights remains automatic.
Meanwhile, voting rights for people under guardianship became an important civil rights issue across the country. Legislatures and courts in Minnesota, Vermont, Oklahoma and other states have focused on voting rights in recent years. Arizona took a stab at liberalizing its law in 2012. It adopted a statute that permits the court to appoint a “limited” guardian. A person under limited guardianship can try to prove that they should be able to vote.
But there are at least two problems with Arizona’s approach. First, it puts the burden on the individual to prove (by “clear and convincing evidence”, no less) that they have “sufficient understanding to exercise the right to vote” (with no definition of what that actually means or how to prove it). Second, the idea of a “limitation” on guardianship speaks to the guardian’s powers, not the individual’s capacity.
What does that mean for Ms. Weber?
So, when Ms. Weber asked the judge to leave her right to vote intact, the judge declined. In essence, she told Ms. Weber: “there’s no reason to limit your guardian, and I don’t see how to determine that you have sufficient understanding to exercise the right to vote.”
Ms. Weber’s appeal was heard by the Arizona Court of Appeals. Public interest groups and their supporters (including Fleming & Curti, PLC principal Robert Fleming) supported her right to vote. And last week the Court of Appeals agreed that Ms. Weber’s case was strong — and she was right!
The appellate court ruled that Ms. Weber — and others in her situation — have a right to the due process of law before losing their voting rights. Rather than Ms. Weber having to prove that she should be able to vote, the tables are turned. If someone wants to restrict her voting rights, they have the burden of proving that she lacks that capacity. They must prove it by clear and convincing evidence. And the test isn’t whether Ms. Weber needs a guardian — it’s whether she lacks sufficient understanding to exercise the right to vote.
The Court of Appeals returned the case to the probate court in Coconino County. If Ms. Weber’s guardian wants to pursue the suspension of her voting rights, they will have to file something and prove it. Our best guess: they’ll probably decide it’s not important to them as guardian, and Ms. Weber will vote this year! Wood v. Coconino County, May 30, 2024.
What about other people under Arizona guardianship?
But what about someone other than Ms. Weber? If you have a guardian, can you still vote in Arizona?
It’s too early to know for sure how this will play out. But if the County Recorder hasn’t already cancelled your registration, we think you can vote with impunity. If someone wants to challenge your gith to vote, they will have the same burden that Ms. Weber’s guardian faced.
If your registration has been cancelled because of your guardianship, we think you can ask to have it reinstated. But we just don’t know — yet — how that will work. Will it require a court hearing? Will there be an administrative mechanism to address it? Or will your County Recorder read the court’s decision in Ms. Weber’s case and decide that the right thing to do is to let you vote? We hope for that last one, but look forward to the individual advocacy it might take to improve voting rights for those under guardianship in Arizona.
A note to those not in Arizona: This recent decision does not apply to you. The logic might be similar in your jurisdiction, but your statutes (and state constitutional provisions) are different, and we can’t predict how things will play out in your case. But if you’re intrigued by Ms. Weber’s story, you absolutely should talk to an elder law attorney or advocacy group in your community. Good luck!
One Response
Thanks, Mr. Fleming, for this article. My husband has voted D straight down the ballot in every election (not just Presidential) since I met him. He had a delusion in front of our R nephew recently. The nephew’s reaction was not to care for his uncle. His reaction was to ask me if his uncle still votes! What? Seriously? I’m thrilled to read this decision.