The Right to Vote in New Jersey: What Adults with Disabilities Need to Know by Hinkle, Fingles & Prior, Attorneys at Law

With Election Day fast approaching, it is important to consider the voting rights of people with disabilities.

All citizens, regardless of their condition, who are over the age of eighteen and properly registered, have the right to vote. The mere fact a person has a disability is not an automatic bar to voting. In New Jersey, there are two leading cases involving the rights of individuals with disabilities to vote. Both cases were handled by attorneys at our firm.

A 1975 case, Carroll v. Cobb, involved residents of a State-operated institution for people with developmental disabilities who attempted to register to vote but were turned away by a municipal clerk because they lived in an institution. The court ruled that their residence in an institution did not preclude them from the right to register to vote, so long as they can answer the few basic questions asked of any other citizen on a voter registration form such as name, address, age and so forth.

In 2000, election officials refused to count absentee ballots submitted by voters hospitalized in a state-operated psychiatric hospital based on the assumption that they lacked the capacity to vote (In the Matter of Absentee Ballots Cast by Residents of Trenton Psychiatric Hospital). The court confirmed that voting is a “fundamental right” guaranteed by the United States Constitution, and ruled that anyone seeking to challenge an individual’s right to vote has the burden of proving the specific person in question lacks the capacity to vote.

As a result of these two cases, individuals with disabilities cannot be deprived of their right to vote by clerks, election officials, poll workers, or any other official involved in the election process.

In November 2007, the New Jersey Constitution was amended to further clarify this right, stating that only a person who has been determined by a court of law to “lack the capacity to understand the act of voting” can be deprived of the right to vote. Therefore, only a judge can deny an individual the right to vote. The appointment of a guardian for an individual with disabilities does not automatically prevent the individual from voting unless the judge specifically addressed and clearly stated that the individual lacks capacity to vote.

Additionally, everyone, including individuals with disabilities, has a right to receive help with the voting process including choosing someone to help you in the voting booth, as well as taking extra time to cast your vote. On Election Day, you have the right to have someone show you how to use the voting equipment. Further, if you make a mistake while voting, you have a right to have someone explain how to fix the mistake. All voters have the right to make up their own mind about who you want to vote for and how to vote on any ballot question.

It you have trouble voting at the polling place on Election Day, call your county Board of Elections. The Board of Elections’ staff should be able to address and correct the situation that day. You are allowed to have someone call on your behalf.

As Election Day approaches it is important for self-advocates, families, and other caregivers to understand these rights so that people with disabilities can fully and freely exercise their right to vote.

For more information, or to find your polling place, go to http://www.lwvnj.org/