Protecting the Rights of Massachusetts Voters with Disabilities

By Rebecca J. Benson


About 35 million eligible voters in the U.S. have a disability – close to
one in six. Although voting is one of the most fundamental rights granted to
American citizens, nearly a third of voters with disabilities reported facing
obstacles to voting in the 2012 election, including difficulties with physical
access to the polling place, reading the ballot or operating the voting machine.
The good news is that federal and state law provide significant
protections for disabled voters. Among other things, the U.S. Department of
Justice’s Civil Rights Division has expanded the scope of its election day
monitoring to include handicap access.

Voters with Physical Disabilities
The Massachusetts Voters’ Bill of Rights, published by the Secretary of
State’s Office, affirms the right of persons with disabilities to vote. Polling places
must offer accessible parking, provide handicap access and make an accessible
voting booth available.

Since individual cities and towns are responsible for elections, individuals
who face physical barriers to voting should contact the ADA compliance officer
in their particular municipality. In addition, voters can contact the Massachusetts
Office on Disability (MOD – 617-727-7440), which serves as a statewide
resource for voters who have questions about access issues. MOD’s primary
mission is to insure access and ADA compliance for Massachusetts residents of
all ages.

On a national level, the American Association of People with Disabilities
addresses the fundamental inequalities faced by voters with disabilities, and
works in a nonpartisan manner to ensure full accessibility to all polling places and
voting equipment.

Voters with Cognitive Impairments
Massachusetts voters with mental illness, developmental disabilities or cognitive
impairments have the right to register and vote absent a specific court order to the contrary. Even
those who have been placed under guardianship by the Probate Court retain the right to register
and vote unless the court order specifically strips them of those rights.

Although the Massachusetts constitution (Amendments Article III) and state law (G.L. c.
51, §§ 1, 36) specifically provide that individuals “under guardianship” are not eligible to vote,
these provisions are not enforced in practice and are most likely unconstitutional. The
Massachusetts Secretary of State Elections Division’s Legal Counsel, in consultation with the
state’s Department of Mental Health, Department of Mental Retardation and Office of the
Attorney General, noted in a 1992 legal opinion that courts and commentators had expressed
“substantial” doubts about the constitutionality of a blanket provision that deprived all individuals
under guardianship of the right to vote. The Election Division therefore concluded that the terms
“under guardianship” must be interpreted for voting purposes to refer only to those guardianship
decrees that contain an express order depriving the individual of the right to vote.

This article should not be considered as legal advice or opinion on any specific facts or circumstances, and are
intended for general informational purposes only. A competent attorney should be consulted for legal advice about
a client’s particular situation. These materials might constitute "advertising" under Rule 3:07 of the Canons of
Ethics and Disciplinary Rules Regulating the Practice of Law of the Massachusetts Supreme Judicial Court.



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