Nearly 250 years ago, our country’s Declaration of Independence unequivocally proclaimed that “all men are created equal.” Yet to physicians like me who diagnose and treat the more than 7 million Americans with intellectual and developmental disabilities (IDD), it would seem that these impassioned words present a logical fallacy. IDD has numerous causes including Down syndrome, Fragile X syndrome, Rett syndrome, autism, cerebral palsy and refractory epilepsy. Clearly, our patients are in fact unequal in cognition, strength, coordination, vision, hearing, temperament and disease burden. How then should we interpret the meaning of “equality” for the population we serve?
Nobel Prize-winning economist and philosopher Milton Friedman noted humans are obviously born with different strengths and weaknesses, so that is not the Declaration’s meaning of “equality.” Rather, since the rest of the sentence speaks to “inalienable rights endowed by their creator,” Friedman maintained that “equality” should be understood as “humans are equal before God.” Today, the interpretation of the Declaration’s words continues to evolve and is now commonly thought to mean “equality of opportunity.” Still, for those born with IDD, such opportunity remains elusive. Perhaps nowhere is this disparity more evident than in the relative lack of civil rights, particularly voting, for this population.
America has always restricted voting. At our founding in 1776, voting was limited to white male property owners, age 21 and older. It took nearly 200 years to remove the exclusions based on wealth, race and gender. The voting age was lowered to 18 during the Vietnam War. Thus, the final remaining barrier to voting eligibility is cognitive capacity. Although the landmark 1965 Voting Rights Act banned literacy tests, many state constitutions and statutes continue to disenfranchise American citizens with IDD. Courts have weighed in on the question and have generally ruled that voters should “have the mental capacity to make their own decision by being able to understand the nature and effect of the voting act itself.” However, since there is no cognitive poll test, Americans are presumed to have the capacity and competency to vote unless expressly removed by a probate court.
Typically, mental capacity is a medical determination that occurs in the context of a guardianship petition. The concept of guardianship dates to Roman law. Even then, civilized societies understood that certain people could not function as adults and would require the lifelong supervision by another. The male parent usually would be given this responsibility. The incapacitated person, or ward, could not engage in legal actions or make major decisions without the guardian’s consent. In the United States, the probate courts determine guardianship for those citizens with IDD, dementia and severe psychiatric disorders.
Physicians must provide medical verification of the ward’s mental status. For example, in Cook County, a physician completes a form explaining the ward’s diagnosis and advising the court whether the ward is totally or partially incapable of making personal and financial decisions. Interestingly, a physician is not asked to give input about the ward’s capability of making political decisions.
It would seem appropriate for the court to ask the physician whether the ward has the capacity to vote. Our replies should incorporate medical data including the ward’s history, examination, laboratory testing, neuroimaging and medications. Integrating this information, physicians should be able to forthrightly advise the court on whether the ward can understand the “nature and effect” of voting.
However, verification of political incapacity should not necessarily mean that the ward’s political voice is forever silenced. The Voting Rights Act and Help America Vote Act have legislated accommodations for illiterate, blind and physically disabled citizens. Specifically, they are allowed to have a helper of their choice assist them in the voting booth. Thus, it would seem entirely legal for a guardian to accompany a voter with IDD in order to assist his or her vote. However, the risk in such a scenario is that the guardian might direct the ward’s vote rather than simply “assist.” This would constitute a proxy ballot, which is currently illegal in the United States.
Assisted voting for adults with IDD is becoming a common practice. In some situations, the line between assisted voting and proxy voting is likely to be crossed by well-intended guardians either in the voting booth or in completing a mail-in ballot in private. It would seem prudent for our political system to acknowledge this reality and for the courts to legitimize it.
As the parent of an adult child with autism, I also understand the responsibilities of guardianship. In effect, guardians serve as their wards’ proxies in all other aspects of adult life. It is reasonable that the guardian should also be granted the ward’s political proxy. The relationship between guardian and ward is one of sacred trust. As such, the guardian has the moral obligation to vote for representatives and policies that will enhance the ward’s “life, liberty and pursuit of happiness.”
By developing the concept of the proxy franchise for guardians, we could enhance the voice of American citizens with IDD. In so doing, we could expand the Declaration’s vision of equality and move our country’s promise of inclusion forward toward greater fruition.
Dr. Eugene R. Schnitzler is a professor of neurology and pediatrics at Loyola University Chicago’s Stritch School of Medicine. The views presented are those of the author and are not necessarily those of the Stritch School of Medicine.
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