My son doesn’t ask for stories at bedtime anymore, but he still wants me next to him when he’s falling asleep.
“This is the craziest elephant ride I’ve ever taken,” Morgan announces to me one night. Then he repeats it. “This is the craziest elephant ride I’ve ever taken. This is the craziest elephant ride I’ve ever taken. This is the craziest elephant ride I’ve ever taken.”
He tucks a plush doll of Pongo from One Hundred and One Dalmatians under his head, and then he talks and talks. Sometimes it’s a question, or he repeats something he heard on Sesame Street or a line from a video game. Other times I don’t know where it came from. But I listen to all of it, and stare at the posters on his bedroom walls as the room gets darker. They’re pictures of the things he loves: a Keith Haring graphic, a lobby poster of The Tigger Movie, a group photo of the Canadian Brass quintet, a Star Wars Podracing flyer.
“It’s the galaxy’s famous Gasgano,” he recites. Morgan loves Podracers but couldn’t care less about the rest of the Star Wars universe, which he regards as a rind to be discarded in order to consume the Podracing game. Eventually he drifts off and snores, sometimes after gregariously throwing his arm over me. It takes me a while to extricate myself when he does this, because my son is about six foot three and 240 pounds. He is twenty-five years old.
In 2017 the Oregon Circuit Court declared that I am, in the all-caps words of the red-stamped and signed court letter, “A GUARDIAN FOR AN ADULT FOR AN INDEFINITE PERIOD.” The process of taking over someone else’s life is generally, and fittingly, a difficult one. There are sworn statements, doctors’ reports, filings for the judge, and a court-appointed visitor, who comes to your house to see if the reality matches the paperwork. Our visitor was a psychologist named Angela, who arrived with little notice—social workers like to drop in by surprise, so they can see how you actually live, before there’s time to dismantle a meth lab. Anyway, his mother, Jennifer, and I rushed about our house, grabbing dolls off the floor, remaking beds, and frantically wiping down counters. A telltale smell of Windex still hung in the air as the psychologist walked in.
Angela took one look and we stopped worrying; she’d clearly seen it all before. She found Morgan in his favorite spot, on a sofa next to the upright piano, and asked him questions. We stood by, fretting, weirdly helpless. It was an evaluation of Morgan himself, not of our parenting, and so after the first few words to prompt him to say hello, we couldn’t answer for him; but also, he couldn’t really answer for himself.
“While the Respondent was able to provide a greeting to this Visitor when prompted by his mother he was not able to appreciably comprehend the current petition,” the psychologist reported to the court. “Mr. Morgan Collins is a 17-year-old young man who was diagnosed with Autism Spectrum Disorder when he was 2 years old… The Respondent has very limited verbal communication skills but is able to express basic physical needs, such as hunger, thirst, and a need to toilet…. He uses the toilet but needs to be reminded to wipe and wash his hands. He requires physical assistance with bathing, brushing his teeth and hair. The Respondent can dress himself with prompting, although he is reliant on others to put on his shoes and select his clothing. He would be unable to independently obtain food or engage in meal preparation.”
A couple of weeks later, the guardianship letter came from the court clerk.
About a year afterward, ballots arrived in our mail, including one addressed to Morgan. There was a Soil and Water Conservation District director standing unopposed; two people running for the same city council seat; five running for Congress, six for governor. Some initiatives trying to block abortion funding; others trying to fund clean energy. “Ballot Measure 26-199,” reads one. “Bonds to fund affordable housing in Washington, Clackamas, Multnomah counties.”
Morgan belongs to one of just two classes of citizens that that the US still permits to be disenfranchised: criminals and the mentally incompetent. Then again, Oregon was perhaps the only state in 2018 where our son might get a ballot at all: it was the first state to offer voting by mail, and one of the first to offer Motor Voter. Morgan was automatically enrolled to vote when we got him his state ID. You can be laughing at poop jokes and making Grover sounds in the DMV line and still get included in Motor Voter’s automatic registration. And since the ballot arrived by mail, there was no election worker to look at him askance, no amateur poll watcher outside to point their phone at him, nobody to justify him or ourselves to. Just a ballot envelope with his name on it.
“Please Use a Black or Blue Pen. Completely fill in the oval,” the form instructs. More ballots at our household for the 2020 primaries, and then for the 2020 election. By the 2022 midterms, Morgan’s younger brother was old enough to vote. There were four envelopes on our mantel, but only three got opened and mailed back.
Morgan couldn’t fill in a ballot. And I couldn’t bring myself to throw a ballot out.
Discarding his ballot seemed wrong somehow—just tossing it into a recycling bin with the flyer from Safeway and the Lands’ End catalog. It had meaning; it represented something, though I couldn’t yet say what, exactly. I put his ballots in the cardboard Bankers Box where I kept all of Morgan’s other paperwork: his insurance forms, his bank statements, his guardianship order. Ballot after ballot, accumulating.
“President and Vice President. Vote for One,” said the 2020 ballot. Five choices for that. Three running for state attorney general. A vote on funding our local parks, where Morgan likes to see ducklings. In 2022, a state initiative: “Oregon Measure 112: Amends Constitution: Removes language allowing slavery and involuntary servitude as punishment for crime.”
What did it even mean to save these unopened ballots? For a long time it meant I had the same stark thought that was presented by every other piece of paper in the box: that my son, adjudged incapacitated, a man of very limited verbal skills, my ward, can’t vote. But years passed, and slowly, a question formed from those words, from a statement to a query, evolving with each lifting of the lid of that box, with each new insurance bill and each copy of my Guardian’s Annual Report to the Court.
Why can’t my son vote?
I suppose I’d once imagined the history of American voting rights as a steady march toward greater equality. But the more you look at American suffrage, the more it feels like a visit to the Winchester Mystery House: there are bafflingly constructed chambers, grand and glorious halls, and stairways that lead nowhere. To begin with, there’s no specific right-to-vote clause in our Constitution, so the US lacks what is now an obvious provision for a modern democracy to include. Instead, there are the famed inalienable rights, and descriptions of how elections work, which imply and essentially necessitate a freely voting populace; plus there are many subsequent amendments, federal acts, and court decisions. But otherwise the Constitution hands over voting and voter qualifications to states. For many decades, states didn’t have laws barring the intellectually disabled from voting: they didn’t need to, because they allowed hardly any citizens to vote. For the election of George Washington in 1788 and 1789, Massachusetts required that voters be men aged twenty-one or older, and possessing an estate worth at least sixty British pounds. Most states had similar laws. That’s why, in a country of nearly four million people, just 43,782 votes were cast—slightly more than 1 percent of the population.
When property-ownership requirements for voting were removed in the nineteenth century, it didn’t happen through some great sweeping reform, but piecemeal, and state by state. And with the frightful prospect of voting by the masses—women! Blacks! renters!—on the horizon, other voting requirements, somewhat less onerous but more persistent, arose in place of property ownership. Viewed side by side, they were (and in many ways still are) an inconsistent hodgepodge. The 1860 election is a fair example of how someone who moved a hundred feet across a state line could vote in one state but be barred from voting in another. In Wisconsin, noncitizens could vote, but not in Illinois. New York permitted Black people to vote, but New Jersey did not. South Carolina didn’t allow anyone who had been party to a duel to vote, but you could blast and slash away in North Carolina. Kentucky required living two years in the state before voting there; Indiana had no length-of-residency requirement. Every state banned women—except New Jersey, at first—oh, and Kentucky, but they could vote only in school elections.
Along with women and Black voters, five groups regularly appear among those barred from voting in the nineteenth century: paupers, criminals, soldiers, students, and the legally incompetent, usually described as “insane” or “idiotic.” These groups seem like a confusing and motley assemblage at first glance. What did they have in common, besides a likely general lack of property or political power? Well, there was one thing: in the nineteenth century, poorhouses and capacious asylums meant many such citizens were concentrated in certain districts. Poorhouses, prisons, military bases, colleges, asylums: the upstanding citizens of towns and cities might have been happy to benefit from the jobs these institutions provided, but they did not much care to cede political power to their residents.
As the historian Kirk Harold Porter mused over a century ago, “The philosophy of suffrage has always been more or less opportunistic, if the word is permissible. Suffrage qualifications are determined for decidedly materialistic considerations, and then a theory is evolved to suit the situation.” Perhaps unsurprisingly, the philosophy among those who already had the right to vote was that the current system worked just fine. “Are the women and children neglected in legislation? Are the insane and foreigners neglected in legislation? I apprehend not,” opined a Massachusetts Constitutional Convention delegate in 1853.
Why worry about being able to vote, when there were sane white men looking out for you?
There is a world where Barack Obama is still the president.
I suppose it makes sense. That’s who Morgan saw in his school civics lessons and in his magazines from Scholastic. Obama was president from the time our son was in fourth grade until he dropped out in early eleventh grade. The end of his schooling was a while in coming. “Behavior of Concern: Work Refusal,” his school’s final behavior support report reads. “Morgan is completing 20% of requested tasks with maximum 1:1 adult support (visual/tactile/verbal).” By then his meltdowns in the Life Skills classroom had grown in intensity, and were happening earlier each day, until they finally started erupting on the walk to school, his hands and feet lashing out wildly even before we reached the end of our block. One morning, it became too risky for him, for the teachers, and for us to take him to school. It was still too risky the next morning, and every other morning after that. So Morgan’s education fell to us.
For a long time, Jennifer patiently worked with him through brightly colored homeschool workbooks—division and multiplication, currency and time, basic life science. We still have them on our shelves, volumes with half their pages torn out—most from completing the perforated pages of lessons, others from when he hurled the books at us. We imagined that at some point the school district would check in, make sure we were doing something with his learning, anything at all. But nobody called. It was as if they thought Morgan had moved to another country, and I suppose in a sense he had.
I leaf through one of the remaining pages in his civics book: “The people of Washington, D.C., elect a representative to Congress, but that person cannot vote on laws.” I gently slide the text back into our bookcase.
“Morgan, who is the president?” I ask him.
“Obama,” he responds, and rocks back and forth.
“That’s good!” I say brightly. “Barack Obama was the president for a long time. Now we have a different president, Joe Biden.”
I don’t try to explain the Trump years.
“Poop,” he adds, and starts laughing. “Eeyore poops in the toilet.”
We’re sitting by the piano, which has four old schoolhouse world globes crowded atop it, from when Morgan kept buying globes every time we went to Goodwill. Electronic ones that didn’t work, old brass-mounted ones that still showed the Soviet Union, newer ones that had both a Sudan and a South Sudan, until globes spilled from every flat surface in our house: they still fascinate him.
“Morgan, what country are we in?” I ask, pointing to one of the globes.
“Oregon,” he says.
“That’s the state we live in, yeah. Oregon is inside a country. What country is it in?”
He ponders this.
“United States of America,” he says.
“That’s right! Good job.”
“You did a great job,” Morgan says, referring to himself; he almost invariably switches pronouns, a linguistic hallmark of autism.
I decide to try again.
“Morgan, who is our president?”
He starts to rock back and forth again.
“Barack Obama,” he says.
Morgan wants his breakfast; I can tell he’s getting annoyed by the questions, and I have waffles to make. Barack Obama will continue on for a fifteenth year as president.
If you want to point out where mental exclusions started, Portland’s as good a place as any. Not the one that we live in: the other one, in Maine. They became our twenty-third state in 1820, but the first to formally exclude voters who were under guardianship. When representatives from across the District of Maine gathered in Portland and adopted a constitution, their document’s first words on “electors” were unambiguous: “Every male citizen of the United States of the age of twenty-one years and upwards, excepting paupers, persons under guardianship, and Indians not taxed, having his residence established in this State for the term of three months next preceding any election…” (A few lines later it hastens to add: also, no soldiers or students.) Other states steadily followed, and with some fluctuations up and down, since 1880 roughly three-quarters of US state constitutions have maintained some form of mental restrictions on voting, even as those for other groups have slowly fallen away. A 2020 overview by the Bazelon Center for Mental Health Law found just twelve states with no mental disqualification in their constitution, and they’re a mystifyingly scattershot group, both politically and geographically. They include Colorado and Vermont, but also Kansas and North Carolina. Most actually still have restrictions, but they are written somewhere in their more changeable statute law instead.
So who, exactly, can’t vote?
It’s hard to say. Some state constitutions still use versions of Maine’s old language barring those under guardianship. Kentucky and Mississippi have even retained language in their constitutions prohibiting “idiots”—and lest coastal readers feel superior, I’ll note that services for developmentally disabled New Yorkers are still provided by that state’s appallingly named Department of Health and Mental Hygiene. (Across the river, New Jersey still barred any “idiot” from voting as late as 2007. It didn’t then stop having a voting restriction, incidentally, but it did get rid of the word idiot.) The problems of such language were manifold, and have occupied courts for decades. What is the precise definition of idiot? And why was guardianship or incompetency, which can be invoked for a number of reasons, used as a standard to restrict voting? Is a poli-sci professor who is institutionalized with severe bipolar disorder incompetent to vote? How about a person with Down syndrome, who may hold a job, live semi-independently, and commute to work—are they incompetent to vote? How about Britney Spears? When she was the adult ward of her father, during a thirteen-year span when she could perform in Vegas but not manage her own affairs, was she incompetent to vote?
In fact, for a while Britney Spears probably couldn’t vote, and therein lies a tale. One doesn’t often hear about guardianship in the press, unless the process goes wildly awry—the ordinary day-to-day life of caring for someone with an intellectual disability does not attract sign-wielding crowds—but Britney Spears’s case did point out just how arbitrary the voting restriction can be. When Spears was made a ward of her father in 2008, California state law largely barred voting by those found incompetent. By 2016, California’s voting restriction had changed to a narrower one, barring those under conservatorship “only if a court… finds by clear and convincing evidence that the person cannot communicate, with or without reasonable accommodations, a desire to participate in the voting process.” That was clearly not the case for Britney, and so now she could vote. There has been gradual movement toward this more restrained language, a change bolstered by a 2001 federal court ruling (Doe v. Rowe) that blanket guardianship exclusions violate the Fourteenth Amendment. What’s more, provisions in the Americans with Disabilities Act (ADA) and the Voting Rights Act require states to offer voting assistance to the disabled. Yet an immovable core of exclusionary language still exists. The Voting Rights Act, for instance, still states that “a voter may not be removed from the official list of eligible voters except by reason of death, criminal conviction, mental incapacity, change in residence, or voter request.” The permission for some kind of mental exclusion, and the outdated language that amplifies it in state constitutions, fundamentally persist to bar people with intellectual disabilities from voting.
How many people is that, exactly? There’s no complete national accounting of people with intellectual disabilities, which is a slippery category, or even of people under guardianships, which is not. The one national figure for the number of people under guardianships that is commonly bandied about in reporting—approximately 1.3 million people—comes from a 2016 estimate by the National Center for State Courts. Its number was an extrapolation from sixteen states that sort of kept track of their data.
If it’s hard to say who can’t vote, though, it’s distressingly easy to ascertain who doesn’t vote. A 2023 Rutgers University study of the previous year’s midterms found a national voting rate among those without disabilities of 52.4 percent, while only 38.3 percent of those with mental disabilities voted. A 2023 study by the National Association of State Directors of Developmental Disabilities Services found that voting opportunity (“Has ever voted in local, state, or federal election, or had the opportunity and chose not to”) among the intellectually disabled varied widely by state—evidence of the immense effect of implicit and explicit state-level barriers—ranging from a high of 78 percent in Nevada to a low of 25 percent in Kentucky. And Kentucky, you’ll recall, is one of the states whose constitutional language still bars “idiots” from voting.
Words have meaning, even if wielded toward someone who might not understand them. They bear an intent.
“Do you want to trim your beard a little, Morgan?” Jennifer asks our son. “Or shave it all off?”
We have this conversation with him every month or so. It’s too hard to shave him daily—he wiggles, fidgets, starts laughing, or gets irritated—and so, like most Portland men, Morgan’s constantly in some stage of growing a beard. When we do ask if he wants to keep it or not, he’ll peer at himself in the bathroom mirror, smiling, sticking out his tongue, checking out all the angles; then he’ll go right up to the silvering, so close he can see his breath on the glass.
“You want to shave it all off,” he says to the reflection.
It was years before Morgan verbally responded to us about anything; he was hyperlexic and could read long before he could converse, so at first we resorted to writing out questions for him: DO YOU WANT A BAGEL? YES / NO. He’d grab my finger and jab it like a stylus at his answer. Now Morgan makes lots of decisions aloud every day, though sometimes it can be hard to tell what he wants. If you just ask him a question—“Does your foot hurt?”—he may just answer “Yeah” without considering it. Or he may echolalically repeat the final couple of words: “Foot hurts.” But given a set of choices, he often weighs them. Waffles, pancakes, or toast? The pink shirt, the aqua, or the green? Goodwill, Target, or the supermarket? A matinee of Inside Out or Barbie?
He has strong opinions on these matters; he is decidedly not indifferent to his world. But the world is, much of the time, rather indifferent to him. His opinions are not, at least in any obvious way, on things the world values or deems of national import. But then, what is a vote for? How much is it about expressing an informed opinion? How much is it about simply recognizing one’s rights and humanity? How much is it a practical assurance of the representation of one’s interests? Many voters—disabled or not—lack an informed opinion, and yet all have an interest in being represented.
The curious ambiguity about what voting is for is mirrored by incoherence about why someone cannot vote. There is a striking lack of research to back mental exclusions—just vague gesturing toward some notion of the integrity and sanctity of the vote, and dark mutterings about voter fraud.
“Ha! Ha-ha!” Morgan bursts out.
“Stay still,” I tell him with exasperation. He leans forward, examines the progress of my shaving work, then checks out his teeth in the mirror too.
Might people with intellectual disabilities be less informed about voting? Might they be unduly influenced by people around them? Might they fill in some gibberish? Perhaps, in some cases—and yet such acts do not stop any other American from being allowed to vote. Other voters are free to believe in QAnon, or to invoke numerology, or to write in “Deez Nutz” for president if they like; but those with intellectual disabilities can be preemptively blocked. To ward off the hypothetical possibility of a “bad” voter, states resorted to the certain and constant disenfranchisement of a marginalized class of citizens.
“Shaving cream,” Morgan announces as I finish buzzing away with the beard trimmer.
He already knows what’s coming next. If I can keep him in a chair in front of the bathroom mirror for long enough, then comes the hard part: a razor and shaving cream to actually make his skin smooth. Sometimes I have to split the task between two nights. But tonight he stays still. And when his face is covered with Barbasol foam, he is delighted. He looks elderly and wise.
“You have a white beard,” he cracks up. “You’re an old man.”
If you’re reading this in another country, it may be with a curious sense of déjà vu: Wait, didn’t we used to have exclusion laws too? It’s quite possible you did.
Japan is a fair example. Through the nineteenth and twentieth centuries, it maintained voting restrictions that looked quite recognizable to an American: on women, paupers, soldiers, students, the incompetent. And, as in America, by the twenty-first century, nearly all these restrictions had fallen away, save two: on some felons and adults under guardianship. But by Japan’s 2013 election, those people under guardianship were free to vote. In fact, in country after country, similar reforms were occurring, and at more or less the same time.
Why did so many other countries change, when the US did not? Oddly enough, the explanation may be found in a treaty whose roots are in the US itself. The 1990 passage of the ADA was a watershed moment in lawmaking, both in America and internationally. Despite a divided government—Democrats controlled Congress, but a Republican was president—it nonetheless passed by wide bipartisan margins and was signed into law. The ADA prefigured and inspired a similar international treaty in 2007, the UN Convention on the Rights of Persons with Disabilities (CRPD). Article 29 of the treaty is blunt in “guaranteeing the free expression of the will of persons with disabilities as electors and to this end, where necessary, at their request, allowing assistance in voting by a person of their own choice.” The CRPD has no provision for an exclusion; there’s no clause titled “But We Don’t Mean Those People, Right?” That hasn’t deterred most countries from embracing it: 164 out of 191 UN parties have now signed and ratified the treaty.
The US is not one of them. We are surrounded by ratifiers—Canada ratified it; Mexico ratified it; Cuba, the Bahamas, and Jamaica all ratified it—but the US has not. The US is now the only member of the G20—a group that, incidentally, includes such human rights hard cases as Russia, China, and Saudi Arabia—not to have ratified it. To be fair, President Obama did sign the treaty in 2007, but ratification requires a supermajority vote of the Senate, and… Need I finish that sentence? It got sixty-one votes in the Senate in 2012, and after a few years of occasional queries, news outlets pretty much gave up even asking about it.
In other countries, though, the CRPD has made its mark—when not from new laws, from new lawsuits. In Japan, the change was heralded by a lawsuit brought in early 2013 by Takumi Nagoya, a woman disenfranchised from voting for having Down syndrome. She won her case, and by that year’s national elections, Nagoya could vote. Very few people under guardianship actually did vote in that election, and the greater effect may instead be in how recognizing the disabled affects the perspective of everyone else. By the 2019 elections in Japan, candidates with Lou Gehrig’s disease and cerebral palsy, both in wheelchairs, won seats in the parliament—a first for the country.
But there are limits to the treaty’s success. Take, for instance, Caamaño Valle of Spain. When her intellectually disabled daughter was placed under guardianship, Valle asked the judge to still permit her daughter to vote. The judge said no, and Valle appealed. Even as Spain dropped its blanket exclusion against those under guardianship, it insisted it could strike specific individuals off the rolls for incapacity, and so Valle kept fighting, all the way to the top. In 2021, the European Court of Human Rights heard the case Valle v. Spain.
Valle lost. And she lost despite a UN commissioner reminding the court’s panel of seven judges that exclusions were not acceptable; she lost in spite of a UN committee pointing out that “a person’s decision-making ability cannot be a justification for any exclusion of persons with disabilities from exercising their political rights, including the right to vote.” No matter: the court decided there must be certain kinds of limits when someone doesn’t even understand what voting is. “The Court considers that the contested measure does not thwart the free expression of the opinion of the people,” its ruling stated. And how could that be? one may ask. It’s simple, they explained: someone so severely intellectually incapacitated has no opinion to freely express.
Voilà!
Valle v. Spain was not a close decision: it was a 6–1 ruling. Yet despite the lopsided vote—indeed, because of it—the ruling makes for extraordinary reading, on account of that singular dissenting opinion. Written by Belgian judge Paul Lemmens, it conceded that prior decisions, or what is termed case law, gave his six fellow judges ample justification for their vote. But when it comes to disability rights, the past is not exactly an admirable guide. “To reconsider the case-law is sometimes necessary,” Judge Lemmens gently noted.
The UN treaty, he pointed out, was already unambiguous on the matter: the court should have allowed Valle’s daughter to vote. Its workaround—that the most seriously disabled have no opinion to express—was wrong and reductive, he retorted: “In the first place, voting is more than just expressing a certain preference on a particular day, every few years. As it is confirmed by the title of Article 29 of the CRPD, it forms part of the broader right to participate in political and public life…. An electoral system providing for the disenfranchisement of a whole category of vulnerable persons is hardly able to ensure ‘the free expression of the opinion of the people.’”
What does it mean, exactly, to give the vote to someone who might not know what it means? It is, at first glance, a different sort of problem from installing wheelchair ramps or text-to-speech readers; it is different, even, from assisting someone who may need a careful and patient explanation of elections and a walk-through of the process. What does it mean to give a vote to someone who may ignore the ballot, scribble on it, ball it up, or submit it blank? It seems like an insurmountable objection.
Except, as Judge Lemmens pointed out, it really isn’t.
“I am the guardian for the protected person named above, and I make the following report to the Court as required by law.”
Every year it’s the same: Before Morgan’s birthday, I fill in the form for the Guardian’s Annual Report, and I mail it to the probate department of the circuit court. Name and address, whether he’s been to the hospital, which doctors he sees, his mental condition, his physical condition, whether his guardianship should continue. The exact amount of money in his bank account at the time of the last report, the exact amount in it now, and what it was spent on; whether there are any persons he is kept from associating with; whether or not one of those persons should be me.
Since my last report:
I have been convicted of the following crimes (not including traffic violations): NONE
I have filed for or received protection from creditors under Federal Bankruptcy Code: NO
I have had a professional or occupational license revoked or suspended: NO
I have had my driver’s license revoked or suspended: NO
One year, a court visitor schedules a required video visit, and I have to show her Morgan, and then walk around my house with my phone held up: See! Delicious food in the fridge! Delightful toys in his room! The good kind of toilet paper in the bathroom! Clean, potable water! Near the end of the call, she mentions offhandedly that she’s a student at the university where I teach, and I’m momentarily terrified without quite knowing why.
“Oh,” I manage, my mouth drying out. “Wow, that’s great.”
My mind turns back to the training session that the state requires when you first apply to be a guardian, after you get background-checked and fingerprinted. Mine was at night, in a low and nondescript building a hundred blocks out toward the suburbs, with folding chairs and a single carafe of coffee rapidly cooling to room temperature. We watched some training videos of the kind that, even when not actually shot in the 1980s, seemed like it anyway. Then we listened to our facilitators stress the same points repeatedly: You’re responsible for the ward now. If you go away for an hour, people must know where to find you. If you go out of town, you should be able to get back quickly. If you move, or your ward moves, you must clear it with the court first. You need to establish a separate bank account for their money; and for god’s sake, never mix their money with your own. Never borrow from them. Never just sign their name on checks or documents—that would be forgery. Here is the correct format. Practice it now.
I sipped my stone-cold coffee and practiced the correct signature diligently on my yellow legal pad: “Paul Collins, Guardian for Morgan Collins.” As a guardian, I would ultimately be responsible for where he lived, the food he ate, what medications he swallowed, the clothes he wore, all his belongings. If he had to be committed to an institution, I’d be responsible for that too. Any medical decisions, petty or profound? Also on me. And yet, aside from egregious cases of being overbearing or under-regulated, you don’t really hear about guardians much when talk turns to people with disabilities. Come to think of it, you don’t hear about the most severely intellectually disabled much, either. It’s neither an inspirational nor an aspirational situation; it’s just a situation, day in and day out, largely unchanging, with the constant and simple imperative of unambiguously necessary work.
What I remember most clearly from my guardian training is that when the session ended, I waited in the lobby and watched everyone else depart; it was late, and my bus wasn’t coming for a while. My fellow trainees went out to their cars in the parking lot, under the insufficient glow of streetlamps, and their taillights departed one by one—off to care for spouses, parents, children; off to duties of months, or years, or decades. They would file a Guardian’s Annual Report, too, and maybe also panic at the court visitor’s questions. Some would eventually hit the conviction or bankruptcy question and have to check, with rising dread, “YES.” But today we were all heading off to the quotidian business of doing everything for our wards from buying their groceries and making barber appointments to signing leases and approving chemo. There would be just one place where we couldn’t represent them.
In Valle v. Spain, Judge Lemmens’s dissent confronted an inconvenient question: If we withhold voting from a subset of disabled citizens, can they ever have truly equal rights?
“By barring the applicant’s daughter from the exercise of her right to vote,” he concluded, “the State reduced her to a second-class citizen. Unlike other citizens, she cannot make her voice heard, not even via a trusted person…. A much less far-reaching measure [than disenfranchisement] is possible, which fully respects the person’s legal capacity to vote, while at the same time ensuring that capacity is exercised by a person ‘capable of assessing the consequences’ of any vote cast…. Such an arrangement would reflect the principle ‘one person, one vote,’ a principle that is not observed when the person with a disability is excluded altogether from voting.”
In short: let a guardian do what they already do in every other regard, and act on their ward’s behalf.
The existing treaty already permitted this approach, Judge Lemmens pointed out, and arguably necessitated it. The CRPD bars exclusion, and requires giving necessary support to the disabled in voting. “Such an arrangement would be fully compatible with the CRPD,” he wrote. “The CRPD Committee explains that ‘support’ is a broad term.”
As the dissent itself notes, the notion of guardian voting is not an altogether new one—and rather like the CRPD, it has its roots in the United States, where it was raised by the philosopher Martha Nussbaum. In her 2009 essay “The Capabilities of People with Cognitive Disabilities,” Nussbaum advanced a proposal that is logically straightforward, if provocative, by virtue of pushing back against centuries of precedent. Accommodations are clearly needed for people who need assistance in the physical act of voting, she begins, but what about those who can’t form or communicate a preference? For them, she posits, voting should be treated like other ordinary but vital rights and actions.
“What does equal respect require in this case?” Nussbaum asks. “I would argue that it requires that the person’s guardian be empowered to exercise the function on that person’s behalf and in her interests, just as guardians currently represent people with cognitive disabilities in areas such as property rights and contract[s].” Otherwise, she argues flatly, “they do not count. Their interests are not weighed in the balance.”
They do not count. And they do not count, because they are not counted. Morgan has as much at stake in elections as any other American. He breathes the same air, goes to the same libraries, faces the same fires and floods, travels over the same bridges. But he and everyone like him have no representation for those interests.
All this—giving the severely intellectually disabled the vote, or even giving it to a guardian—will, I fear, strike some readers as strange and not a little alarming. Or, perhaps, as a lot of fuss and bother for not much result, or just plain irksome, as requests around disability can sometimes seem to the abled. Maybe it’s also discomfiting, amid lofty legal principles around inalienable rights and dignity, to see that other consideration baldly stated by Nussbaum: their interests.
Yet the tangible manifestations of disenfranchisement are dismayingly predictable, and just as evident every day in their lives. Take Supplemental Security Income (SSI), the sole income for the most vulnerable disabled Americans. SSI essentially demands permanent poverty from its recipients. The maximum monthly SSI benefit in 2024 is $943 per month; the national poverty line for an individual is $1,255 per month. Nor are SSI recipients allowed to own countable assets—money in the bank, or readily salable personal property—with a value totaling more than $2,000. That limit, initially set at $1,500 in 1972, has been frozen at $2,000 since 1989. If adjusted for inflation from the outset, it would be $11,399 today—but it never does get updated. Now, would these mandatorily impoverished Americans get more support if they were all permitted to vote?
Well, I don’t think they would get less.
Lemmens’s dissent remains one of the most striking modern statements on enfranchising the severely disabled. But when I contact him for further comment, he explains that, due to professional ethics, he really can’t talk. “It is an issue that deserves a debate in society,” he adds. “I must leave its interpretation, as well as any critical comments on it, to others, like you.”
I must confess I don’t feel entirely equal to the task. I remain stumped by the most basic question, the one I began with: Why can’t my son vote? Because here’s the curious thing: Morgan can vote, sort of. But he also sort of can’t vote.
Allow me to explain. Oregon has few voting restrictions, which is quite an achievement for a state whose original constitution barred every usual group and then tossed in “and Chinamen” for good measure. Thanks to its mail-ballot and Motor Voter systems, Oregon now has the United States’ highest rate of voter registration. It’s poised to go even further, by attempting to automatically register voters via Medicaid rosters, which can find citizens who may not have state IDs, or whose yearly Medicaid reenrollments bear more current addresses than Motor Voter data using old DMV renewals. And there is no obvious bar to most intellectually disabled Oregonians filling in a ballot, signing the envelope, and submitting it—even with some assistance.
But what does this mean in practice for the most severe intellectual disabilities? After so much reading on election law, I decide to find out: I pull the Bankers Box from my closet. Morgan, lolling on the daybed in my home office, observes this with mild interest. I lift the lid and leaf through months’ worth of hastily tossed-in insurance forms and doctors’ reports. Deeper in is a manila file on which I’d scribbled “Elections,” underlined in Sharpie. I open it, this time wondering not why my son can’t vote. Now I wonder: Can my son vote?
Long after receiving it, and months after the polls have closed, I select Morgan’s most recent ballot, for Oregon’s 2023 special election, and I slide my fingernail under the sealed flap of the envelope. It’s a ballot for school board seats, the continuation of a children’s levy (passed), a local capital gains tax (rejected). But the first item to emerge is a return envelope, which bears a blunt statement in thick black lettering: “WARNING: SIGNING ANOTHER PERSON’S NAME TO THIS ENVELOPE IS A CLASS C FELONY.” A large green arrow points to an empty rectangle awaiting a signature.
It’s heavy stuff: Class C felonies include dog fighting, third-degree robbery, and car theft, and carry up to five years in prison and a $125,000 fine.
Since Oregon employs voting by mail, the ballot itself is not identifiable to an individual voter, but the signed mailing envelope is; when received, the election board verifies the envelope’s signature, and then adds the anonymous enclosed ballot to the tally pile. There’s no guidance on the ballot itself about voting and the disabled, so I turn to the previous year’s Voters’ Pamphlet, which also includes the boldface statement “It is against the law to sign another person’s ballot return envelope for them.” Well, yes—I expected it was, just like you can’t normally sign another person’s checks. But I can and do sign his checks. Two pages later, an FAQ adds: “You’re the only person who can sign your ballot return envelope. Power of Attorney documents do not apply to voting.” Yet a guardianship is not quite the same as a mere power of attorney.
I dig deeper. Our state’s Elections Division has a fifty-three-page guidebook, the Election Law Summary. It’s more detailed, and for reasons that soon become apparent, considerably weirder. One can apply for a signature “stamp” for those who can’t sign the envelope on their own, it explains, but this requires a special form that seems intended for the physically disabled. And then on page 46 of the guidebook you run into this:
ORS 260.715(1); Voting or Signing Another Person’s Ballot Prohibited. Violation of this statute is a Class C felony. A first time violation of this statute, resulting from a person signing a ballot belonging to a different elector, may result in a civil penalty if the Secretary of State or Attorney General determine the violation was not made with the intent to commit fraud. (HB 2351)
ORS 260.715(1) states that a person may not knowingly make a false statement, oath or affidavit when required under election law. For purposes of voting, this means a person may not vote or sign any other person’s (including a spouse’s) ballot—not even with a power of attorney.
But when I look up the actual ORS 260.715 statute, rather than relying on what’s printed in the Election Law Summary, I find it’s not titled “Voting or Signing Another Person’s Ballot Prohibited.” It’s titled “Prohibited conduct.” Clause 1 reads, in its entirety: “A person may not knowingly make a false statement, oath or affidavit when a statement, oath or affidavit is required under the election laws.” But a guardian is not making a false statement when they sign: it’s clearly a signature on someone else’s behalf. When I check our state’s database of “Notes of Decisions,” which appends relevant case law to each statute, there’s nothing under ORS 260.715 about guardians or, indeed, about caregivers at all. Stranger still, when I access the legislature’s database for HB 2351, the other law referenced, I get a shock: it never passed. It was proposed in the 2017 legislative session, whereupon the reduced penalty clause was stripped out in committee, and then the whole thing was shelved anyway. There is no such law, and never has been.
I hold our election board’s guide at arm’s length, a bit dazed, and for a moment my eyes cross, like maybe it’s a Magic Eye puzzle. It doesn’t help.
“Not hardly!” Morgan calls out in a Tigger voice as he watches a Disney video. “Hoo-hoo!”
“That’s right,” I say, nodding from my desk. “Not hardly.”
I contact our secretary of state’s office, but it takes two months to get an explanation. Her chief of staff restates the law to me about electors signing their own ballots, and the law against false statements, and adds: “We interpret this to mean that a power of attorney is not allowed.” That’s pretty much it, but perhaps this doesn’t quite answer whether guardians can vote on their ward’s behalf. (He does agree, though, that citing an oops-not-actually-a-law is an error.) And he notes something else: there is a clause in Oregon’s constitution about competency.
And indeed there is. But it’s not quite clear what it means.
In 1980 the Oregon legislature forwarded an amendment to voters, State Measure 2, that lessened the state’s exclusions: “A person suffering from a mental handicap is entitled to the full rights of an elector, if otherwise qualified, unless the person has been adjudicated incompetent to vote as provided by law.” What is that adjudication, “provided by law”? Well, it’s hard to say, as a committee studying the proposal in 1980 discovered. “We were troubled by the introduction of the phrase ‘unless the person has been adjudicated incompetent as provided by law,’ as no method currently is specified under Oregon state law to adjudicate whether a person is incompetent to vote,” they concluded, adding: “In fact, the Committee was unable to locate a proponent of the measure who could explain the legislature’s intent in adding this language.”
State Measure 2 passed. For decades we’ve had this apparently inexplicable clause in our state constitution. Maybe there’s an exclusion, and maybe there isn’t.
At this point a reader may reasonably wonder: OK, but why are you dragging me through Oregon’s problems? It’s because Oregon has some of the highest voter engagement and the least restrictive voting policies in the US. Oregon also has, due to its registration and mail voting systems, one of the most centralized and carefully run election boards. Yet it’s a state with enough legal ambiguity that every disabled citizen may indeed get a vote… if you’re willing to risk a felony to find out.
Should it be that hard? If a college professor like me can’t figure out whether his son can vote, and if the election board and the state constitution can’t entirely clarify this either, then what is an inexperienced care worker supposed to make of the law? Or an overwhelmed grandma serving as her granddaughter’s guardian? Or someone who has difficulty with English? How are the intellectually disabled themselves supposed to figure this out? Recall that this dilemma comes not from asking for special rights: it comes from an exclusion, a singling-out, a targeted act of discrimination. If voting were treated like every other activity in Morgan’s life, then whether he can have representation would not even be a question.
So why are we still being made to ask it?
Sometimes I suspect that what’s really at stake was understood from the very beginning. I think of John Adams, writing from the Second Continental Congress just weeks before the Declaration of Independence was issued. His wife, Abigail, had recently pleaded with him to widen voting rights—“I desire you would remember the ladies, and be more generous and favorable to them than your ancestors”—but Adams refused. Writing to a friend, he explained why, in a tone meant to be despairing, but which today reads as one of the most hopeful statements he ever made. If voter qualifications were to be open to discussion, Adams fretted, “new claims will arise.” Women would demand the vote, “lads” under twenty-one would demand it, and so, too, would “every man who has not a farthing.” Such notions, he warned, would throw open the door to all sorts of equality.
And then, Adams wrote, “There will be no end of it.”
