Waging a battle for ballot rights > Mentally ill with guardians eye vote

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BANGOR – Jane Doe was among the estimated 3,000 people to crowd into last week’s campaign rally for presidential hopeful George W. Bush at the Bangor International Airport.

After the event, the 50-year-old Bangor woman, who did not want to be identified, said she was impressed by the Texas governor and likely would vote for him on Election Day.

That’s if she were allowed to vote.

She has watched the debates. She is interested in the issues, and on Nov. 7 she wants to perform what she considers her civic duty.

But a 35-year-old provision of the Maine Constitution prohibits the woman, a former patient at the Bangor Mental Health Institute who is under guardianship because of mental illness, from casting her ballot.

“Some people aren’t interested in voting. They don’t care, and that’s a shame,” she said in a recent interview at her small, tidy downtown apartment, where she lives alone. “They say just one vote can’t make a difference, but every vote makes a difference. And, right now, I can’t have a chance to cast that vote.”

On Nov. 7, Maine voters, for the second time in four years, will consider removing language in the state constitution that prevents mentally ill people under the care of a guardian from voting.

In 1997, despite the absence of any organized opposition, the same measure was defeated 58 percent to 42 percent.

While many considered the 1997 question poorly worded, supporters say Question 5 on this November’s ballot is a little more straightforward. It reads, “Do you favor amending the Constitution of Maine to end discrimination against persons under guardianship for mental illness for the purpose of voting?”

This year, the measure again faces no established resistance, and instead enjoys the support of the offices of the governor, the secretary of state and the Department of Mental Health, Mental Retardation and Substance Abuse Services.

Nevertheless, voters again appear split on the issue, with 43 percent on either side of the measure, according to a recent statewide poll. Thirteen percent of the 404 people surveyed in the Oct. 16 poll conducted by the Portland-based marketing firm Critical Insights said they were undecided. The poll has a 4.1 percent margin of error.

This year, supporters are taking nothing for granted. They also are filing a federal lawsuit in Bangor to strike down the provision as unconstitutional and asking for an immediate injunction that would allow three mentally ill plaintiffs from Bangor and Limestone to vote on the matter in this year’s election.

Doe, who is not one of the plaintiffs, would be unaffected by any preliminary ruling.

However, should the court in a final ruling find the provision unconstitutional, the language would be stricken and Doe would gain the right to vote, according to Kristin Aiello, an attorney with the Augusta-based Disability Rights Center.

“We’re not going to sit around and wait for the public to come around and give these people what is their right under the U.S. Constitution,” said Aiello, who is representing the three plaintiffs. “Maine’s provision is so offensive. It’s not about whether someone has the capacity to vote. It’s only about discriminating against someone with a mental illness.”

On Tuesday, Aiello argued the case before U.S. District Court Judge George Singal, who is expected to rule on the request for a preliminary injunction within the week.

“This is a real insult, a real injury to them,” Aiello said of the provision’s effect on her clients, who are among the fewer than 1,000 people in Maine under guardianship for reasons of mental illness.

If voters approve the constitutional change on Election Day, the lawsuit would be moot, Aiello said.

The restriction is particularly unjust, Aiello argued, because it singles out the mentally ill while allowing those under guardianship for other reasons, such as senility, mental retardation or chronic alcoholism or drug use, to vote.

“That person may not be able to find their way home, or remember their name,” Aiello said of some people under guardianship for advanced age. “My clients have an appreciation for voting, more so than a lot of people in Maine.”

Attorneys for the state Tuesday argued against the preliminary injunction, countering that the three women could petition the probate court to amend their guardianship to allow them to vote – an option Aiello maintained would be too burdensome.

Maine and Maryland are the only states that prevent those under guardianship for mental illness or mental disability from voting, according to the Federal Election Commission.

Thirty-one other states and the District of Columbia currently have similar provisions within their constitutions preventing those judged to be “mentally incompetent” from voting. A few other states, including Wisconsin, Kansas, New Mexico and Massachusetts, require that a person must be found to be incompetent in the specific area of voting before being denied the right.

Nearby Vermont has no restrictions on voting other than normal citizenship and age requirements, and neighboring New Hampshire prohibits only convicted felons from voting.

Imposing limits on who can vote is rooted in common sense, said Rep. Vaughn Stedman, a Hartland Republican who opposes Question 5.

“I just feel that if a person is assigned a guardian for reasons that they cannot make decisions on their own, they shouldn’t be able to make the important decision that is voting,” said Stedman, who was one of just seven House members last year to oppose the constitutional amendment. “Voting is one of the major decision-making processes we have, and we have to make sure it’s not compromised.”

Stedman went on to say that he backed reviewing the state’s election regulations, and also would support denying convicted felons the right to vote. Forty-two states prohibit convicted felons or those serving a prison sentence from voting.

Maine’s provision was added to the constitution in 1965, when paupers regained the right to vote, leaving the mentally ill with guardians the only group besides minors without that right.

It has been the public’s mistaken perception of the mentally ill as raving lunatics that has kept the law on the books for so many years, supporters say.

“The organized opposition has been the stigma associated with mental illness,” said Arthur Keenan, a patient advocate at the Bangor Mental Health Institute.

It’s that stigma that has kept Doe as well as the three plaintiffs from revealing their identities. The four women only recently discovered that they no longer could vote after being placed under guardianship.

Sipping a cup of coffee in her Bangor apartment, Doe said she was crushed when she found out.

“I’m responsible for my clothes, my food and my job,” she said. “I just don’t understand why I’m not considered responsible enough to vote.”