Election Law

DOJ investigates California court restrictions on voting by intellectually disabled persons

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The U.S. Department of Justice is investigating a complaint that California courts systematically and illegally strip the intellectually disabled of their right to vote.

When Teresa Thompson applied for a guardianship to oversee health care and legal matters for her 18-year-old autistic son, Stephen Lopate, an attorney was appointed by the court to help. “His attorney told me that it would be inconsistent with the concept of conservatorship for Stephen to have the right to vote,” Thompson told the Los Angeles Times (sub. req.).

Upset because her son had been looking forward for many years to voting, she made the complaint, through a Los Angeles disability-rights group, that launched the DOJ probe. Although the voting restriction on Stephen Lopate was lifted after his mother fought the ban, with the help of attorney Tom Coleman, the family wants others to have the same voting rights.

“Na├»ve me. I thought in the courtroom the law was followed,” said executive director Nora Baladerian of the Disability and Abuse Project. “It wasn’t so. The rights of individuals with disabilities were not being upheld in court.”

A lawyer with her group reviewed 61 conservatorship cases in Los Angeles Superior Court and found that voting rights were stripped from 90 percent of the individuals concerned, the newspaper reports. The group filed a complaint last year contending that the court is banning individuals who can’t fill out a voter registration affidavit from voting. That resulted in an announcement by the DOJ that it is investigating, throughout the state, how many disabled people have been disqualified from voting and the policies applied in doing so.

The DOJ informed the California secretary of state and the state supreme court in a May 15 letter, reports KPCC.

A Los Angeles Superior Court spokeswoman told the Times the court will respond to the DOJ, once it receives the complaint. A spokesman for the state’s Judicial Council said it will provide the documents requested by the DOJ and said the council and the state supreme court’s chief justice “are committed to the civil rights of all Californians.”

Professor Michael Waterstone of Loyola Law School in Los Angeles said requiring a voter registration affidavit is effectively a literacy test (these are generally banned by the Voting Rights Act, the Leadership Conference notes).

In addition, the Americans with Disabilities Act says the disabled have a right to get assistance both while filling out voting registration forms and when they vote, Waterstone told the newspaper.

Meanwhile, the state senate is expected to vote soon on a bill that would require courts to presume that a disabled person is able to vote, regardless of whether there is a conservatorship.

The standard for determining if an individual is qualified to vote should center on his or her ability to make an informed decision, Waterstone said. “It has to be something more than ‘you can’t fill out a form by yourself,’ or ‘someone else told us you can’t fill out a form.’”

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