Who Decides If People with Dementia Should Vote?

Richard Bonnie
September 22, 2004

Are the four million Americans with Alzheimer's disease or other forms of dementia entitled to vote this November? How do we prevent fraudulent voting on behalf of people in nursing homes and other long-term care facilities who have lost the capacity to vote? This problem cuts across all party lines, income levels, and racial identities. Who decides if people with dementia have the capacity to vote? How is that assessment made?

These questions were addressed by a multi-disciplinary, multi-institutional group of 11 experts in law, ethics, government, neurology, geriatrics and psychiatry, co-led by U.Va. law professor Richard Bonnie ; Dr. Jason H. Karlawish, assistant professor of medicine at University of Pennsylvania and director of Penn's Alzheimer's Disease Center's Education and Information Core; and Dr. Paul Applebaum, professor and Chair of Psychiatry at the University of Massachusetts. Their 18-month study, published in the Sept. 15 issue of Journal of the American Medical Association (JAMA),reveals an alarming inconsistency in voting policy regarding citizens with dementia. "We found that judges, family caregivers, and long-term care staff do not have adequate guidance to determine whether individuals with dementia have the capacity to vote," said Karlawish.

By 2050, an estimated 15 million Americans will have dementia. Since age is the chief risk factor for the disease and voter turnout is highest in the 65 to 74 age bracket, the needs defined in this study will impact the electoral process for years.

"The 2000 election demonstrated how a small number of votes in a single state-in this case Florida, home to one of the nation's largest concentrations of elderly persons-can affect the outcome nationwide," said Bonnie. "Local elections are frequently decided by margins no greater than the number of residents in area nursing homes."

The researchers looked at existing voting laws and discovered them to be inadequate. Most states disqualify people who have been found incompetent to care for their personal needs or financial affairs without a specific finding that they lack the ability to vote. As a result, these laws may well violate the Constitution, as well as the Americans with Disabilities Act (ADA). Researchers recommend changing state laws to conform to modern constitutional principles, incorporating a test to assess competence to vote, simplifying ballots to eliminate voter confusion, educating the public regarding the appropriate assistance for voters with dementia, formulating policies for voting in long-term care settings, and further studies to develop more effective voting policies.

Even with a clear test for capacity to vote, there remains a risk that elderly persons' choices will be impermissibly influenced by their caregivers. The limits of acceptable assistance are most difficult to define when absentee ballots are used, Bonnie said. "Nationwide, absentee voting rates are twice as high among voters 65 years and older than for younger age groups, and state laws are making it easier for people to vote as an "absentee" without giving any reason. Some experts predict that one fifth of the votes cast on November 2 will be by absentee ballot. But the potential for abuse is obvious, as it is never clear exactly who has completed the ballot. Sixty percent of all allegations of voter fraud in Chicago involve absentee ballots."

Karlawish, whose scholarship focuses on the ethics of research and care of people with dementia, stressed the importance of objectivity, simplicity, and clarity in assessing capacity to vote. "We recommend focusing on whether a person can understand the nature and effect of voting and can make a choice. For example, ask the person with dementia how people will choose the next president and when the voting is over how will it be decided who is the winner," he explained. "If they understand these concepts and they want to vote and can make a choice, that is all that is necessary. They do not need to comprehend the details of each candidate's platform."

It is not hard to outline what a reasonable set of new regulations might look like, Bonnie said. "Election officials should be charged with notifying long-term care staff of deadlines for registration and absentee ballot applications, delivering absentee ballots, resolving questions of voting capacity, and conducting voting at the facility.

"Once we start paying attention to the emerging problems related to voting by elderly people with cognitive impairment, it should be possible to find fair and effective solutions," he said. "Ignoring them, however, is a recipe for chaos in the electoral process."

The project was supported by a grant from the Greenwall Foundation and the Virginia Brown Fellowship for Aging.


Founded in 1819, the University of Virginia School of Law is the second-oldest continuously operating law school in the nation. Consistently ranked among the top law schools, Virginia is a world-renowned training ground for distinguished lawyers and public servants, instilling in them a commitment to leadership, integrity and community service.

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