Our case over competence seeks to square the law with the Constitution.
The July 28 article "Next dispute: Should all the disabled have voting rights?" may lead readers to believe that our pending federal lawsuit seeks to prevent all persons under guardianship from voting.
Let's be clear: No one is suggesting that all persons under guardianship should be prohibited from voting. Our view is that guardianship courts have a duty to affirmatively determine whether wards whose eligibility to vote is left intact, and whom the court finds to be mentally incapacitated, are nevertheless able to understand the nature and effect of voting.
Courts have that duty because the Minnesota Constitution says that "a person under guardianship, or a person who is insane or not mentally competent" "shall not be entitled or permitted to vote at any election in this state."
"Mentally competent" means that a person needs to know the nature and effect of his vote. And the guardianship court is in the unique position of authority to apply the constitutional requirement of being mentally competent to vote.
When a guardianship court finds that a person lacks "sufficient understanding or capacity to make or communicate responsible personal decisions," the court must assume the burden of showing that the person has, nonetheless, the mental competence to vote. But this determination appears never to be made as an independent inquiry by probate courts in guardianship proceedings.
Unfortunately, state law enacted in 2003 conflicts with the Minnesota Constitution. Current statutes allow the guardianship court to maintain the ward's eligibility to vote, without a separate determination of whether the ward is mentally competent to do so. Our federal lawsuit seeks to bring Minnesota statutes into compliance with the state Constitution.
There are two important benefits to having courts pay specific attention to a prospective ward's competence to vote. The first is helping to ensure that elections are determined only by votes based on a person's knowing action representing his or her choice or interest.
But there is an even more important benefit to requiring court examination of a mentally incapacitated person's competence to vote: to protect that person from partisan caregivers who would exploit him or her for political purposes.
Testimony in our lawsuit describes events during the hotly contested 2010 election in Crow Wing County, in which mentally incapacitated persons who had never voted before were transported to the polls by caregivers who "assisted" them with registering and voting. Some had previously been certified by a court as "incapable" of voting. Eyewitnesses have reported similar occurrences in Hennepin, Chisago and Ramsey counties.
Consider the example of James Stene, a hero who at age 12 suffered a traumatic brain injury while saving the life of his drowning sister. His mother and guardian, Sharon Stene, testified in our action to James' complete incompetence to cast a knowing vote. Yet, James' court order does not remove his voting eligibility, even though it concludes that he is mentally incapacitated. Indeed, he was permitted to register and vote in the 2010 election, under the "assistance" of staff from the group home where he lived at the time. Subsequently, James related how he could not remember whom he voted for or why, that he thought Gerald Ford was either on the ballot or elected as president, and that he "was made to vote or else."
James, and others like him, are susceptible to "abuse" by caregivers who manage their medications and daily affairs. Individuals in James' position should not be placed at risk of incurring the indignity, confusion and frustration that occurs when politically motivated caregivers seek to steal the votes that those in their care are unable to express for themselves.
Further, James' vote effectively canceled out the vote of an eligible voter. In close elections, the effect, when multiplied throughout the state, can be greater than one might think. The result is that the integrity of the election process is undermined along with public confidence.
There should be no disagreement with our goals: protecting the voting eligibility of those wards who are competent to vote, protecting the dignity and privacy of those who are not, and protecting the integrity of our elections.
A formal, legal process conducted by guardianship courts can accomplish all three, providing a needed boost to Minnesota's reputation for transparent, clear, orderly and fair election processes.
Andy Cilek is executive director of the Minnesota Voters Alliance. Ron Kaus is president of the Minnesota Freedom Council.
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