California recently amended its laws regarding the limitation of a person’s right to vote based on his or her mental incompetence and conservatorship status. Specifically, Senate Bill (SB) 589 amended several sections of the Elections Code and the Probate Code related to the voting rights of persons subject to a conservatorship (conservatees).
Prior law required that a conservatee be able to complete an affidavit of voter registration in order to maintain his or her right to vote under a conservatorship. SB 589 now authorizes an individual with a disability who is otherwise qualified to vote to complete an affidavit of registration with reasonable accommodations as needed. By explicitly adding the concept of reasonable accommodation to state laws on voter qualification, the bill brings the state into compliance with federal standards.
Under the prior law, a person deemed mentally incompetent was therefore disqualified from voting if, during certain proceedings including conservatorship proceedings, the court found that the person was incapable of completing an affidavit of voter registration. This bill instead requires that a person be presumed competent to vote, regardless of his or her conservatorship status, and would require that a person be deemed mentally incompetent, and therefore disqualified from voting if, during certain proceedings including conservatorship proceedings, the court or a jury finds by clear and convincing evidence that the person cannot communicate, with or without reasonable accommodations, a desire to participate in the voting process.
In order to codified these changes, SB 589 revises several statutes of the Elections Code. First, SB 589 amends Elections Code section 2102 to require that an individual with a disability who is under a conservatorship be permitted to register to vote unless that individual has been disqualified from voting. Section 2102 also requires that an individual with a disability, who is otherwise qualified to vote but needs accommodations to complete an affidavit of voter registration, be granted such necessary accommodations to the extent they are reasonable.
Elections Code section 2208 now establishes a presumption that a person is competent to vote regardless of his or her conservatorship status. A person may be declared mentally incompetent and therefore disqualified from voting only if a court or, in certain cases, a jury finds by clear and convincing evidence that the person cannot communicate, with or without reasonable accommodations, a desire to participate in the voting process and the person is subject to a conservatorship or is gravely disabled, as specified.
Elections Code section 2208 also prohibits a person’s disqualification from voting simply because he or she needs to sign the affidavit of registration with a mark, a cross, or a signature stamp; completes the affidavit with help from another person; or completes the affidavit with other reasonable accommodations.
Elections Code section 2150, which specifies the minimum content of a voter registration affidavit, now also requires that an individual with a disability be permitted to complete the affidavit of registration with reasonable accommodations, as needed. If another person helps the voter to complete the affidavit, that person must also sign and date the affidavit.
SB 589, through its changes to the Elections Code and California conservatorship law, significantly limits the circumstances in which a conservatee may be stripped of their voting rights. Conservators should keep these changes in mind and take steps to evaluate whether their conservatees can vote, if they express a desire to do so.