With the Fall elections approaching, I thought it would be a good time to address voting rights of people under guardianship and/or conservatorship in Minnesota.
Can a person that is under guardianship and/or conservatorship in Minnesota vote?
Yes. As long as the Court has not restricted the right to vote of someone under guardianship, that person may do so. See Minn. Stat. 524.5-313(c )(8)
Here is what the Minnesota Secretary of State says on someone under guardianship voting.
Can a person that is under guardianship and/or conservatorship in Minnesota have the assistance of someone else in voting?
Yes. You can bring your guardian, a family member, a friend or neighbor to help you vote. They can go in the booth with you and help you fill out your ballot. There is even something called “Curbside Voting”, for people who can’t easily get out of their vehicle but want to vote. Here is what the Minnesota Secretary of State says about helping someone vote and curbside voting.
When does a Court restrict the right of someone under guardianship to vote?
Courts typically only restrict a person’s right to vote in extreme circumstances. Usually the person has to be severely impaired, so that if they were given information about two candidates, they could not understand the difference and pick one. In some counties (Hennepin), the Court will have the petitioner address the ability of the respondent to vote at the hearing on the petition for guardianship. If the Court determines that a person does not have the capacity to exercise his/her voting rights, the Court will remove that right. When the Court does remove the right of someone to vote, the Court sends that person’s name to the Secretary of State’s office and the person is removed from the list of eligible voters.
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.
With election day soon approaching, you may be wondering if your loved one that is under guardianship or conservatorship in Minnesota retains the right to vote. The answer is yes, they mostly likely do still have the right to vote. Minnesota Statute 524.5-313, which sets forth the powers and duties of a guardian, states “unless otherwise ordered by the court, the ward retains the right to vote.” Further, the Bill of Rights For Wards and Protected Persons, Minnesota Statute 524.5-120, also delineates: “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 . . . (14) vote, unless restricted by the court.”
So, it is necessary for you to look at the Order that was issued by the Court initially appointing the guardian (and any Orders subsequently issued by the Court) and see whether that somehow restricts the right to vote. If it doesn’t, then the ward may still vote. Despite the guardianship, the ward is still an individual whose voice still matters, so encourage him or her to have their voice heard and get out and vote!
As always, if you have specific questions about the rights of individuals under guardianship in Minnesota, please contact Buffalo, Minnesota Attorney Cindi Spence Matt.