A vast majority of states allow for the right to vote to be stripped based on an individual’s mental status. However, the United States Constitution largely leaves voting qualifications to the states, so in practical effect the right to vote is largely determined by mental competency standards that vary between states. In this essay, I explore why mental competency voting restrictions persist, given the historical trend toward expanding the vote to vulnerable populations. Further, I question the “fraud prevention” justification for disenfranchisement based on mental status, given mixed reports on the actual prevalence of voter fraud. I conclude that the perception— not reality—of electoral integrity remains a compelling government interest recognized in election law, arguably served by restricting the vote from those who may not be making an individual, meaningful choice. I discuss proposed mental competency standards that may be narrowly tailored enough to gauge an individual’s actual ability to participate in the electoral process. Finally, I conclude by suggesting that the lack of nationwide uniformity supports the establishment of a national standard for competency-based disenfranchisement. I contend that a workable, constitutionally sound standard eliminates categorical disenfranchisement, and requires individualized judicial inquiry into a voter’s capacity to understand and participate in the electoral process.
Out of Mind, Out of Sight: Voting Restrictions Based on Mental Competency,
Idaho L. Rev.
Available at: https://digitalcommons.law.uidaho.edu/idaho-law-review/vol56/iss2/3