I had to address this issue of whether a person under guardianship can still vote in a case last week involving parents seeking guardianship for their 18 year old son who was autistic and unable to manage his own affairs. However, the parents knew that their son was interested in politics and they wanted to make sure the guardianship did not remove his right to vote.
Our Case Law
There is case law going back over 40 years supporting the right of people with developmental disabilities to vote, even if they are residents of an institution. Generally speaking, our courts have consistently held that voting is a “fundamental right” and that developmentally disabled people can vote so long as they are able to complete the voter registration form asking basic questions like your name, age, address, and the like.
This case law was codified in 2007 when the New Jersey Constitution was amended to further clarify this right, stating that only a person who has been determined by a court of law to “lack the capacity to understand the act of voting” can be deprived of the right to vote. Article 2, Section 1, Paragraph 6 of the New Jersey Constitution states as follows:
“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.”
Based on this constitutional provision, only a judge can remove from a person the right to vote. In other words, in order to deprive a person the right to vote, there must be a specific finding by a judge that the person lacks the capacity to “understand the act of voting.” Without such a specific finding, an otherwise full guardianship does not remove from the person the right to vote.
A tidbit for parents seeking guardianship over their disabled child who want to preserve their voting rights: Try to have the two doctors who will be submitting Certifications in your guardianship case address this issue specifically in their reports. This will help the court understand this issue better and allow a provision to be included in the Final Judgment specifically stating the right to vote has not been removed.
Needless to say, my clients were happy with this result and thrilled that their son can continue his interest in politics knowing he can vote this November and any time in the future.
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