Protecting Cognitively Impaired and Disabled Pennsylvania Residents During Elections
Federal and Pennsylvania laws that address voting sometimes change, so it is important that facility staff receive legal guidance prior to every election. Facility staff and leadership who are not trained to uphold election laws can make mistakes that could result in criminal prosecutions. Such was the case when a Michigan nursing home employee was sentenced to 45 days in jail and probation for forging signatures on absentee ballot applications in 2022.
Residents who are cognitively impaired:
Some of your residents may be considered “non compos mentis” — a term that means they are “not of sound mind.” Whether those residents have been legally adjudicated as mentally incompetent, or not, staff and family members need to be careful to not violate state and federal laws during the voting process.
Residents who cannot EITHER express that they wish to vote in the election or cannot freely indicate their preferred choice on the ballot should not have a ballot requested for them or marked for them. As we see in the Michigan example, forging absentee ballot applications can bring just as severe penalties as filling out a ballot for a person who is unaware.
Residents who are disabled:
Federal law defines a qualifying “disability” as “a physical or mental impairment that substantially limits one or more major life activities.” 42 U.S.C. § 12102(1)(A). Pennsylvania law refers specifically to voters who are “unable to sign the [mail-in ballot] declaration because of illness or physical disability,” and requires a disabled voter seeking assistance completing their mail-in ballot declaration to declare that “I am unable to sign my declaration for voting my mail-in ballot without assistance because I am unable to write by reason of my illness or physical disability.” 25 Pa. Stat. § 3150.16(a.1) (emphasis added).
Likewise, a voter who has requested an absentee ballot may only “receive assistance in voting (1) if there is recorded on his registration card his declaration that he has a physical disability which renders him unable to see or mark the official absentee ballot, the exact nature of such disability being recorded on such registration card; (2) if such elector requiring assistance submits with his application for an official absentee ballot, a statement setting forth the precise nature of the disability which renders him unable to see or mark the official absentee ballot and that to the best of his knowledge and ability he will still suffer from the said physical disability at the time of voting his official absentee ballot.” 25 Pa. Stat. § 3146.6a. In other words, it does not matter whether the voter has requested a mail-in ballot or an absentee ballot: any disabilities that are unrelated to a voter’s ability to read or mark their ballot do not qualify for assistance
The disabled resident must have the ability to choose the individual who assists them in casting their ballot. If the resident is unable to make such a specific request for assistance or offer instructions concerning their desired vote choice, then assistance cannot be rendered. Family members who are assisting their loved ones should also be made aware of these regulations.
An informational handout for family members and/or the Pennsylvania voting assistance legal guide can be requested (no cost) by emailing Laura.Williams@centerforvulnerablevoters.org. Additional training materials are available at www.centerforvulnerablevoters.org and the Center also provides in-person training upon request.
Disclaimer: This information is being provided for educational purposes and should not be construed as legal advice. You should always consult an attorney before taking action to ensure that recent changes in law have not altered your obligations.
