Next dispute: Should all the disabled have voting rights?

Rights of 22,000 in state are at stake in federal suit.

The summer of Minnesota's discontent over voting rules has spun off a related fight: whether disabled people who cannot handle their own affairs should retain the right to vote.

The debate has set off alarms among disabled people and their advocates, adding another layer of controversy to the legal and political battle over whether Minnesota needs a photo ID requirement for voters, changes in Election Day registration and a new provisional balloting system.

"I want to vote," said Dave McMahan, a 61-year-old military veteran with mental illness who lives in a Minneapolis group home and has his affairs controlled by a legal guardian. "I've been through sweat and blood to vote. I don't want my rights taken away, because I fought for my rights here in the United States and expect to keep them that way."

Equally passionate is Ron Kaus of Duluth, an activist and plaintiff in a federal lawsuit that has raised the issue. Citing allegations in Crow Wing County in 2010, Kaus worries that disabled people have been hauled to the polls and told whom to vote for, which would be a crime. "It's one of the sickest form of exploitation, political abuse," he said.

At stake are the voting rights of an estimated 22,000 people whose affairs are controlled in varying degrees under guardianships. Under current law, they retain the right to vote unless a judge takes it away. That presumption, and its apparent conflict with the state Constitution, has been questioned in the lawsuit and in debate at the Legislature earlier this year.

Adults who have court-appointed guardians to handle their affairs retain the right to vote unless a judge intercedes. Many under guardianship were profoundly disabled children who were placed under guardianship when they became adults so someone, often a parent, would have the legal authority to make medical and life decisions for them. Others are frail seniors without family, or those with severe, chronic mental illness.

Fears of manipulation

Rep. Mary Kiffmeyer, R-Big Lake, a former secretary of state who has led the charge for a photo ID requirement, also sponsored a bill this year to tighten up guardianship voting. She is the guardian for her own disabled sister, and views the limits as a way of protecting vulnerable adults from being manipulated at the polling place.

The bill stalled, but the cause has been taken up in a wide-ranging federal lawsuit filed in February by the Minnesota Voters Alliance, state Rep. Sondra Erickson, R-Princeton, and Kaus and his organization, the Minnesota Freedom Council. They note that the Minnesota Constitution prohibits those under guardianship from voting.

"Some people are so disabled, and they don't have the mental capacity to vote, and caregivers shouldn't bring them to the polling place," said Erick Kaardal, lawyer for Kaus and other plaintiffs. He said those who are so disabled that their affairs are completely controlled by a guardian should have to show a judge they are capable of voting.

Such a person could be asked "Do you know who the candidates are?" and "Do you understand a ballot question?" Kaardal suggested.

Stephen Grisham of Alternate Decision Makers Inc. of Minneapolis, whose firm oversees the care of some 80 adults and children, feels differently. He said the vast majority of his clients do not vote. One who does is an 89-year-old woman who asked him to help her get a photo identification, in case the photo ID ballot initiative passed. "That only took us four months," Grisham said, referring to the difficulty of obtaining her birth certificate.

County investigates

Kiffmeyer and Kaus point to a 2010 incident at the Crow Wing county auditor's office in Brainerd.

A few days before the election, a local man, Monte Jensen, saw what appeared to be special-needs people casting absentee ballots, apparently with prodding and assistance from their group-home workers. State law allows any voter to request and receive assistance, but it is a crime for helpers to influence voters or mark the ballots if the voter cannot communicate a choice.

Crow Wing County Attorney Don Ryan said his office and sheriff's deputies fully investigated the allegations, with help from the FBI. "I made the decision, we couldn't prove improper voter assistance," he said.

No charges were filed, and Ryan said he does not believe that workers were using the clients to influence the election, as some in the community have charged.

But Kiffmeyer said the case showed the need for stiffer laws. Her bill would have ended the presumption that people under guardianship automatically have the right to vote. In the future, she said, a judge would have to make that determination.

Cherished rights

Disability advocates say the right to vote, even if exercised infrequently, was an important part of the 1960s and 1970s reforms that moved mentally retarded and mentally ill people out of state hospitals and into community settings. The Supreme Court has ruled that "guardianship" as cited in the Constitution can be defined by the Legislature, getting around the constitutional prohibition, they argue.

Lawyer Robert McLeod, a guardianship expert who helped write the current law, argued against Kiffmeyer's bill and against the court petition.

"We're talking about taking a fundamental liberty and stripping it from 22,000 people," he said.

While abuse may occur, he said, that does not justify penalizing the disabled people who may be victimized. "The elderly are scammed every day by people calling them on the phone," he said. "Do we deprive the elderly of a phone?"

Brian Erickson, a 40-year-old Army veteran, is another of Grisham's guardianship clients who has a mental illness. "Once you're known as a vulnerable adult, they put controls on you," said Erickson, who lives his life by the orderly schedule worked out by his guardians and Veterans Affairs. When he went under guardianship, he had to give up his pets, his right to carry a firearm and agree to take medication that makes him gain weight.

He didn't want to give up his right to vote. "As a vulnerable adult, the only way we can speak is by voting. I don't want them making laws that take that right taken away from me," he said.

jim.ragsdale@startribune.com • 651-925-5042 jennifer.brooks@startribune.com • 651-925-5049

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