Question 8: Voting Under Mental Illness Guardianship

The gist

This amendment would remove text from Article II Section 1 of the Maine Constitution that violates the Due Process Clause and the Equal Protection Clause found in the United States Constitution¹. The sentence of relevance in the Maine Constitution is bolded, “Every citizen of the United States of the age of 18 years and upwards, excepting persons under guardianship for reasons of mental illness, having his or her residence established in this State, shall be an elector for Governor, Senators and Representatives, in the city, town or plantation where his or her residence has been established, if he or she continues to reside in this State; and the elections shall be by written ballot.”²

Ballot question

Do you favor amending the Constitution of Maine to remove a provision prohibiting a person under guardianship for reasons of mental illness from voting for Governor, Senators and Representatives, which the United States District Court for the District of Maine found violates the United States Constitution and federal law?³

Tell me more

Guardianship is a legal relationship where one person is appointed by a court to manage the personal affairs of another person⁴. A Guardianship can be created over the objection of the person in question.

There are two types of guardianship in Maine: limited and full. In Doe vs Rowe, the three plaintiffs were under full guardianship. Probate court can make exceptions to allow for a person to vote in elections, but it must be specifically requested at the time the person is placed under guardianship. Further motions can be put forth to modify a guardianship at a later date. The theme of Doe vs Rowe is that the loss of voting privilege was not always communicated at the time that guardianship was implemented.

The restriction of voting by persons under guardianship due to reasons of mental illness was added to the Maine Constitution in 1965. Prior to the approval of the 1965 amendment, the Maine Constitution restricted voting to “paupers and persons under guardianship”. There have been many attempts to remove this language either through legislative action in Maine law or ballot referendums (1997 and 2000), but all have been unsuccessful so far.

Maine Legislative Document (L.D.) 1653, was introduced by Senator Craig Hickman on April 13th, 2023. This bill passed the Maine Legislature with the required supermajority to be placed on the November 2023 ballot.

Testimony given during the public hearing period came from the Legal Services for the Elderly (LSE) and a concerned citizen. LSE argued in favor of LD 1653 making a distinction in the full categorical exclusion of those under guardianship and the need to ensure that those that have the right to vote also need to have the capacity to vote⁵. The concerned citizen’s testimony was not in favor and emphasized that voters must be of sound mind to be able to understand the issues at hand⁶.

This question is a constitutional amendment, which, if passed, would make a change to the state constitution.

Follow the money

There’s no money directly involved with this referendum.⁵

Pros

The primary arguments for this referendum are:

• The state no longer enforces the provision in the Maine Constitution after resolution of the lawsuit Doe v. Rowe; therefore, the language should be removed.
• The Maine Constitution violates the Due Process and Equal Protection Clauses of the United States Constitution.

Cons

The primary arguments against this referendum are:

• Probate Court, as part of the determination of placing someone under guardianship, could possibly allow someone to vote who is not of sound mind.

Who cares ⁷

Support

• Disability Rights Maine
• Legal Services for the Elderly
• Bill (LD 1653) Sponsors and Co-sponsors: Senator Craig Hickman (Sponsor), Senator Stacy Brenner, Representative Karen Montell, Senator Cameron Reny, Representative Morgan Reilly, Representative Laura Supica

Opposition

No major opposition.

Further reading

• Full Text
  
• Ballotpedia Article
  
• Portland Press Herald Article

References

1. Doe v. Rowe, 156 F. Supp. 2d 35 (D. Me. 2001). Accessed 3 September 2023. ↩

2. Bellows, Shenna. Maine Citizen’s Guide to the Referendum Election. Accessed October 3, 2023. ↩

3. Maine Secretary of State. Proposing an Amendment to the Constitution of Maine to Allow Persons Under Guardianship for Mental Illness to Be Electors. Accessed October 6, 2023. ↩

4. Mainelse.org. (2021). Conservatorship & Guardianship: Maine Legal Services for the Elderly. Accessed 3 September 2023. ↩

5. Maine State Legislature. (26 April 2023). Testimony of John Brautigam, Esq., Legal Services for the Elderly. Accessed 3 September 2023. ↩ ↩²

6. Maine State Legislature. (n.d.) Testimony to oppose LD 1653. Accessed 3 September 2023. ↩

7. Ballotpedia State Desk. Maine Question 8, Allow Individuals Under Guardianship for Reasons of Mental Illness to Vote in Elections Amendment (2023). Accessed October 2, 2023. ↩