Loss of voting rights for mentally disordered persons can be an exception to that global right. But it generally requires impairment of function that requires the person to be under guardianship. Not all persons institutionalized with mental illness are considered under guardianship, and even those that are can petition for the right to vote.
here is a bit of information on how things go in Massachusetts from https://www.naela.org/Public/Library/Publications/Publications_Main/NAELA_Journal_Archive/NAELA_Journal_2014/Fall_2014/Feinstein_Webber.aspx
The Massachusetts Constitution grants voting rights to every citizen over 18 years of age, except for “persons under guardianship,” incarcerated felons, and persons disqualified because of corrupt election practices.11 In 1822, these three exceptions were enacted in the voter qualification statute.12 That statute also requires the Secretary of the Commonwealth to promulgate affidavits of voter registration.13
In 1975, Massachusetts’ highest court considered the scope of the guardianship exclusion in Boyd v. Board of Registrars of Voters of Belchertown.14 In Boyd, several individuals who were committed to a state-run residential facility for individuals with developmental disabilities, but who were not under guardianship, sued when the local registrar refused to allow them to register to vote.15 At that time, the Massachusetts voter registration form required a sworn affirmative statement that voters were not under guardianship.16 The Massachusetts Supreme Judicial Court narrowly construed the state constitution and voter registration statute, holding that the residents were not “under guardianship” and so were entitled to vote as “a basic right of citizenship.”17
A decade later, the disenfranchised plaintiff in a second case, Guardianship of Hurley, was under full guardianship at election time, but a petition to limit his guardianship and allow him to vote was pending.18 The local election commissioner refused Mr. Hurley’s affidavit of voter registration, because Mr. Hurley could not swear that he was not under guardianship.19 With his full guardianship still in place, Mr. Hurley successfully obtained a probate court order declaring that he was capable of making informed voting decisions and therefore was not “under guardianship” as the term was used in the constitution and voting statute.20 The Massachusetts Supreme Judicial Court upheld the probate court’s order and remanded the case for an award of Mr. Hurley’s reasonable attorneys’ fees, holding that because he was “sufficiently competent to warrant a limited guardianship … any derogation of his right to vote under [const. amend.] art. 3 and G.L. c. 51, § 1 may have deprived him under color of law of secured rights.”21
Relying on the Boyd and Hurley decisions, the Massachusetts Elections Division in 1991 issued an opinion with the self-explanatory title Persons Subject to Guardianships That Do Not Specifically Forbid Voting Are Eligible Voters.22 In issuing the opinion, the Elections Division consulted with the state’s departments of Mental Health and Mental Retardation and the Attorney General.23 The Opinion directs local election officials not to deny registration based on guardianship, unless the guardianship decree contains “specific findings that prohibit voting.”24
In 2008, the Massachusetts legislature overhauled the guardianship statute and adopted the Massachusetts Uniform Probate Code (MUPC), embodying a legislative intent to limit guardianships wherever possible.25 The MUPC does not address voting rights specifically, but under the MUPC, as with the Uniform Probate Code generally, courts must limit the scope of guardianships to “encourage the development of maximum self-reliance and independence of the person under guardianship.”26 The MUPC goes on to say that, once appointed, guardians should “encourage the person under guardianship to participate in decisions, to act on his own behalf, and to develop or regain the capacity to manage personal affairs. A guardian, to the extent known, shall consider the expressed desires and personal values of the person under guardianship when making decisions.”27 These aspects of the MUPC are consistent with the Boyd and Hurley decisions and with the opinion of the Elections Division.
With respect to guardianship, the current version of the Massachusetts Official Mail-In Voter Registration Form also reflects the position of the Elections Division. Unlike the 1985 registration form that Mr. Hurley encountered, the current form requires only that the voter swear “I am not a person under a guardianship which prohibits my registering to vote.”28 And the current guardianship order promulgated by the Massachusetts Probate and Family Court includes an enumerated list of limitations on guardianship, among them the right to vote.29 While the Massachusetts constitution and voter qualification statute still expressly prohibit voting by persons under guardianship, agency rules and guardianship procedures provide some protection for persons “under guardianship” who want to vote. Where does this place Massachusetts in the federal voting scheme and in relation to other states?
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