Why I’m voting ‘no’ on Question 8

By Matthew Gagnon

There are, as I’ve noted before, a lot of referendums on your ballot this year. There are eight in total, including four legislatively referred constitutional amendments, which are Questions 5 through 8 on your ballot. Each of those four questions deals with a fairly esoteric issue that voters won’t know much about, but I’d like to take a deeper look and one of those in particular: Question 8.

Let’s start with the basics. 

In the Maine Constitution — Article II, Section 1 to be specific — there is a provision that states that individuals with mental illness under guardianship are not allowed to vote. Guardianship, which is sometimes known as conservatorship, is defined as “a legal proceeding where a person or entity (the guardian) is granted the authority to make decisions for another person (the ward).” This could be any person experiencing certain mental health challenges, including elderly Mainers who are experiencing a cognitive decline.

The intent of this text is to ensure that people who do not have the capacity to make their own decisions are not voting. This is, of course, common sense as people who are unable to reason through decisions cannot be expected to make informed choices in elections. They are also possible targets for those who wish to manipulate them for their own purposes. 

The problem, though, comes from the use of guardianship as the standard by which the state would judge mental incapacity. Undeniably, many, if not most, people who are under guardianship are unable to make critical decisions. But is everyone?

No, they’re not. Think back to the controversy swirling around the conservatorship of Britney Spears. Her father was initially granted guardianship due to several very public mental health breakdowns and her inability to manage her estate. 

I’m not foolish enough to think I know what Spears’ mental capacity was at that time, but I know that in the 13 years that the conservatorship lasted, she released four studio albums, did four international tours and had a 4-year-long Las Vegas residency. It seems rational to think that while experiencing mental health challenges, she was able to make decisions about who to vote for or whether to vote yes or no on a referendum question. Put another way, she was clearly not mentally incapacitated simply because she was under guardianship.

Should a person like that be barred from voting?

Not according to District Court Judge George Singal, who in 2001 ruled in Doe v. Rowe that Article II, Section 1 violates the due process clause and equal protections clause of the 14th Amendment of the U.S. Constitution. In the decision, Singal acknowledged a compelling state interest in limiting the ability to vote of the mentally infirm, but he held that the use of guardianship as a standard was too broad.

I must admit, I agree with this perspective. Using guardianship as a proxy for mental incapacity is not a narrowly tailored standard. This is why my initial instinct would be to vote for Question 8, which seeks to simply strike the guardianship clause to align with the court ruling.

However, by getting rid of the guardianship language, there is no denying that some Mainers who can not reason through a voting decision will be able to vote. Even advocates admit as much. In his testimony at the public hearing for this question, John Brautigam of Legal Services for the Elderly acknowledged that his organization does not “question the fact that some citizens who have the right to vote no longer have the capacity to vote.”

This leaves us with two options, both of them bad. If we vote yes, we remove a constitutional provision that seeks to prevent those who can’t make rational decisions from voting. If we vote no, we undoubtedly prohibit people who actually can reason through decisions from exercising a right they should possess, and we leave a provision on the books that has been ruled invalid in court. 

A better option would have been to propose an amendment to the language that was much more specific and narrowly tailored to more clearly define who was and was not capable of voting. But that isn’t the option presented to us. Instead, we are asked to simply eliminate it entirely or do nothing at all.

Given this, I will vote no, but with the hope that in the next legislative session, a new proposal is put forth that actually changes this clause, to both protect the state and Mainers with mental health issues, while also protecting voting rights and expanding them to people who deserve to be enfranchised. This seems like the most logical path forward.

Gagnon of Yarmouth is the chief executive officer of the Maine Policy Institute, a free market policy think tank based in Portland. A Hampden native, he previously served as a senior strategist for the Republican Governors Association in Washington, D.C.