Protecting Cognitively Impaired and Disabled Ohio Residents During Elections

Federal and Ohio 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:

Under Section 208 of the federal Voting Rights Act of 1965, “[a]ny voter who requires assistance to vote by reason of blindness, disability, or inability to read or write may be given assistance by a person of the voter’s choice, other than the voter’s employer or agent of that employer or officer or agent of the voter’s union.” 52 U.S.C. § 10508. 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). Ohio law refers to voters who are “unable to mark the elector’s ballot by reason of physical infirmity that is apparent . . . to be sufficient to incapacitate the voter from marking the elector’s ballot properly[.]” Ohio Rev. Code Ann. § 3509.08(A). 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. Ohio law specifically requires that a disabled voter may receive, “upon request, the assistance of [county board of election] employees in marking the elector’s ballot,” and that “[s]uch assistance shall not be rendered for any other cause.” Ohio Rev. Code Ann. § 3509.08(A). 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 Ohio 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.

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