So can an individual under guardianship in Minnesota vote or not?
The Minnesota Statutes say “yes”, a person under guardianship can vote. Minn. Stat. 524.5-313 states, “Unless otherwise ordered by the Court, the ward retains the right to vote.” Minn. Stat. 524.5-120 states, “the ward or protected person retains all rights not restricted by court order and these rights must be enforced by the court. These rights include the right to . . . vote, unless restricted by the court.” In practice, courts very rarely, if ever, restrict a ward’s right to vote in Minnesota.
But the Minnesota Constitution says “no”, a person under guardianship cannot vote. Article VII of the Minnesota Constitution states, “The following persons shall not be entitled or permitted to vote at any election in this state . . . a person under guardianship.”
So what’s an individual under guardianship to do? Vote, or not vote?
On October 4, 2012, Hennepin County District Court Judge Jay Quam decided the issue, declaring that the Minnesota Constitutional provision which prohibits those individuals under guardianship from voting is unconstitutional under the United States Constitution. See here for a full copy of the extensive Order from Judge Quam.
Ultimately, Judge Quam found that a person’s capacity to vote must specifically be analyzed at the initial hearing on a petition for guardianship (or subsequent hearings if the issue of whether a particular ward has the capacity to vote is raised by a guardian or interested person). In Judge Quam’s words, there must be evidence at the hearing that an individual has “sufficient capacity and understanding to make an informed and intelligent vote.” What does mean? Evidence should be presented that a person understands what voting is, who some of the candidates are and that they could articulate reasons why they would like to vote for a particular candidate. I think that this analysis and presentation of evidence on this issue is no different than what was already mandated under Minnesota Statutes. The difference now is that Judges in Minnesota – Judge Quam at least, according to his Order – may begin actually affirmatively addressing the issue and making a specific finding addressing each particular individual’s capacity to vote.
For questions concerning these and other guardianship issues, contact experienced guardianship attorney Cindi Spence Matt at Matt Legal Services.