California recently amended its laws regarding the limitation of a person’s right to vote based on his or her mental incompetence and conservatorship status. Specifically, Senate Bill (SB) 589 (Block, Chapter 736 of the Statutes of 2015) amended several sections of the Elections Code and the Probate Code related to the voting rights of persons subject to a conservatorship (conservatees). The information below focuses only on the changes to the Elections Code as a result of SB 589.
Voter Registration Application
SB 589 amended Elections Code section 2102 to require that an individual with a disability who is under a conservatorship be permitted to register to vote unless that individual has been disqualified from voting. Section 2102 also requires that an individual with a disability, who is otherwise qualified to vote but needs accommodations to complete an affidavit of voter registration, be granted such necessary accommodations to the extent they are reasonable.
Elections Code section 2150, which specifies the minimum content of a voter registration affidavit, now also requires that an individual with a disability be permitted to complete the affidavit of registration with reasonable accommodations, as needed. If another person helps the voter to complete the affidavit, that person must also sign and date the affidavit.
Presumption of Competency to Vote
Elections Code section 2208 now establishes a presumption that a person is competent to vote regardless of his or her conservatorship status. A person may be declared mentally incompetent and therefore disqualified from voting only if a court or, in certain cases, a jury finds by clear and convincing evidence that the person cannot communicate, with or without reasonable accommodations, a desire to participate in the voting process and the person is subject to a conservatorship or is gravely disabled, as specified.
Elections Code section 2208 also prohibits a person’s disqualification from voting simply because he or she needs to sign the affidavit of registration with a mark, a cross, or a signature stamp; completes the affidavit with help from another person; or completes the affidavit with other reasonable accommodations.
Yearly or Biennial Review
Elections Code section 2209 was also amended to provide that during the yearly or biennial review of probate conservatorships, including limited conservatorships, the court investigator must review the conservatee’s capability of communicating, with or without reasonable accommodations, a desire to participate in the voting process. If the conservatee was disqualified from voting because he or she could not communicate that desire or because he or she could not complete an affidavit of voter registration and the investigator finds that the conservatee is currently incapable of communicating a desire to vote, then the disqualification from voting may continue without a court hearing.
If, however, the conservatee was disqualified under either standard—inability to complete a registration affidavit or inability to communicate a desire to vote—and the investigator finds that the conservatee is capable of communicating a desire to vote, the investigator must notify the court, which must then hold a hearing regarding capability. Unless it determines by clear and convincing evidence that the conservatee is incapable of communicating a desire to vote, the court must restore the conservatee’s right to register to vote.
On the other hand, if the conservatee has not been disqualified from voting and the investigator determines that the conservatee cannot currently communicate a desire to vote, the investigator must inform the court, and the court must hold a hearing regarding capability. Again, unless it finds by clear and convincing evidence that the conservatee cannot communicate a desire to vote, the court must affirm the conservatee’s right to register to vote.
Finally, if the conservatee was not disqualified from voting and the investigator finds that he or she is currently able to communicate a desire to vote, no further judicial action is needed.
It is important to note that restoration of a conservatee’s right to register to vote does not automatically lead to his or her registration. A newly eligible conservatee must register to vote as described below.
More Information and Resources
✆ If you have any questions about your voting rights as a conservatee or the voting rights of a loved one, please call the Disability Rights California Voting Hotline at (888) 569-7955.
Judicial Council of California’s Self-Help section addressing Conservatorships can be found at http://www.courts.ca.gov/selfhelp-conservatorship.htm.
✆ If you are not registered to vote and are eligible, you may fill out an online voter registration application. You may also pick up an application at your county elections office, any Department of Motor Vehicles office, and many post offices, public libraries, and other government offices. To have a paper application mailed to you, call your county elections office or the Secretary of State's toll-free voter hotline at (800) 345-VOTE.
The full text of SB 589 can be found at http://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201520160SB589.
