Getting to fairness

At first, it seems contradictory that the Maine Attorney General’s Office would seek to expand voting rights by expanding the conditions under which voting rights can be denied. Given the contradictory way society deals with the mentally ill, it may be one of the few things that makes sense.

As amended by voters in 1965, the Maine Constitution denies the vote to only one category of eligible adult – those under guardianship for mental illness. Voters have turned down attempts to delete that provision twice in the last four years, most recently in November.

An estimated 1,000 mentally ill Mainers are affected by this provision, now the target of a federal lawsuit brought by the Maine Disability Rights Center. The suit claims that section of the state constitution conflicts with the federal constitution by disenfranchising an entire category of people based solely upon a medical condition, noting that the state does not deny the vote to people afflicted with other mental impairments, such as retardation, brain injury or Alzheimer’s disease.

It is a good argument, one that illustrates the stigma attached to mental illness. The center makes an even better argument in noting that the probate judges who approve guardianships often fail to tailor those arrangements to accommodate the mentally ill who, when getting proper care and treatment under a guardian’s supervision, could cast informed votes.

The Attorney General’s Office is, of course, charged with defending the state constitution in the case. In a motion filed this week, the state argues that the voting ban should apply to those other types of mental incapacitation – retardation, injury and Alzheimer’s.

The reason for the motion, says Assistant AG William Stokes, is not to deny the vote to more people but to fulfill the intent of the 1965 amendment and to clarify the entire issue so that those with mental illness as defined 35 years but with the ability to make informed judgments can vote. The reason probate judges rarely tailor guardianships to preserve voting rights, Mr. Stokes adds, is not that probate judges are unaware they can do so, but that there is no provision under the law, either explicit or implied, that allows them to do so.

The 1965 amendment, Stokes explains, was part of a process begun by lawmakers six years earlier to expunge the term “insane” from Maine law and the substitute term “mental illness” was understood to mean all forms of incapacitation, not just the clinical conditions that comprise the current definition.

That interpretation would remove the blatantly discriminatory application of today – the vote is not denied to those with particular illnesses, but to all, who for a variety of reasons, cannot understand what it means to vote.

A second part of the AG’s motion would complete the clarification process. It asks U.S. District Court Judge George Singal, who will hear the federal case in Bangor, to refer several questions regarding the law back to the state Supreme Judicial Court. In addition to having the state’s highest court define mental illness, this process also could result in a clear understanding of the conditions under which probate judges can impose a guardianship without taking away the right to vote. It is a roundabout way to fairness, but given the complexity of the issue and the vagueness magnified by 35 years, it may be the only way to go.