The Question of Capacity to Vote
The right to vote is one of the most sacred privileges in a representative
democracy and it should be available to all citizens, whether they are
cognitively impaired or unimpaired. Evaluating a person’s capacity to vote
outside the voting process itself is inappropriate and should not be done
except by a court authorized to do so.
Ask a person if he or she wants to vote. If he or she answers yes, ask if any
assistance is needed with registering, ordering, or completing the ballot.
Your opinion of a person’s choice—their vote and rationale—is not relevant.
If the individual indicates a choice among available ballot selections, their
reasons for such choice are not relevant. The helpers’ opinion of the choice is
not relevant. What matters is that the person for whom you provide support
is allowed to vote and his or her preferences are respected. People who are
otherwise cognitively healthy may base their votes on any whim or reason.
Similarly, persons with cognitive impairment may also choose according to
their own preferences. If a person can indicate a desire to vote, he or she can
also indicate a choice among available ballot selections.
Capacity to vote is much like the capacity to ride a bicycle, which can be
determined accurately only by allowing the individual to mount a bike
and start pedaling. If capacity is lacking, the task just won’t be completed.
Likewise, an individual simply will not be able to make or communicate a
choice on a ballot, even with assistance, if capacity to vote is lacking. The
process stops by its own lack of momentum. It may mean that only part of
the ballot is completed, but that is perfectly okay. There is no requirement to
complete every ballot.
A medical diagnosis does not disqualify a person from voting. A diagnosis
of Alzheimer’s disease, traumatic brain injury, or other cause of cognitive
impairment does not disqualify a person from being eligible to vote. In
fact, many persons diagnosed with a condition that involves cognitive
impairment are able to cast a ballot. This means that chart notes, medical
diagnoses, or cognitive test scores do not disqualify a person from voting.
Everyone should be approached about voting, and everyone who wants to
vote should be given the opportunity.

2020-voting-guide.pdf (americanbar.org)

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