Protecting Cognitively Impaired and Disabled Wisconsin Residents During Elections
Federal and Wisconsin 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). This requirement is replicated in Wisconsin law for any voter that “declares that he or she is unable to read, has difficulty in reading, writing or understanding English or due to disability is unable to mark his or her ballot.” Wis. Stat. § 6.87(5). 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 Wisconsin voting assistance legal guide can be requested (at 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.
