Can people with intellectual disabilities vote in Oregon?

Because there is no constitutional guarantee, every state in the country has different regulations about who is allowed to vote. But in many states, people with intellectual disabilities are denied the right to vote.

Paul Collins, an English professor at Portland State University, wonders why his 25-year-old son with Autism Spectrum Disorder can’t vote… or can he? Collins explores this issue in a new article for The Believer magazine. He joins us to talk about who votes and why it matters.

Note: This transcript was computer generated and edited by a volunteer.

Dave Miller: From the Gert Boyle Studio at OPB, this is Think Out Loud. I’m Dave Miller. “Why Can’t My Son Vote?” – that’s the title and the animating question of a new essay by the Portlander Paul Collins in the magazine, The Believer. Collins’ adult son, Morgan, has a serious intellectual disability, one that it seems prevents him from being allowed to vote in Oregon. I say “seems” because Oregon Law is actually a little bit confusing. That’s just a part of what Collins explores in his new essay. He argues that even if people do not have the capacity to understand what voting means, they deserve to have their interests represented. Paul Collins is a professor of English at Portland State University and the author of 10 books. He joins us now. It’s great to have you on the show.

Paul Collins: Oh, thank you for having me here.

Miller: I thought we could start with a short excerpt from the middle of your new piece. Do you mind reading it?

Collins: Yeah.

[Reading excerpt] “It was years before Morgan verbally responded to us about anything; he was hyperlexic and could read long before he could converse, so at first we resorted to writing out questions for him: DO YOU WANT A BAGEL? YES / NO. He’d grab my finger and jab it like a stylus at his answer. Now Morgan makes lots of decisions aloud every day, though sometimes it can be hard to tell what he wants. If you just ask him a question – ‘Does your foot hurt?’ – he may just answer ‘Yeah’ without considering it. Or he may echolalically repeat the final couple of words: ‘Foot hurts.’ But given a set of choices, he often weighs them. Waffles, pancakes, or toast? The pink shirt, the aqua, or the green? Goodwill, Target, or the supermarket? A matinee of ‘Inside Out’ or ‘Barbie’?

“He has strong opinions on these matters; he is decidedly not indifferent to his world. But the world is, much of the time, rather indifferent to him.”

Miller: Can you give us a sense for what an average day is like for Morgan right now?

Collins: Yeah. So he’s an erratic sleeper. So we try to wake him up around 7:30, 8:00 every morning. But if he wakes up at five, then that’s when we get up because he needs constant supervision. Ultimately, my wife and I get up when he gets up. At about 9:00, we have a couple of care aides that then take over with him for the day and that’s what allows me to teach, for instance, for me to work at PSU.

Miller: Otherwise you need to be with him.

Collins: Yeah, he needs constant supervision. Like for many parents in that situation, that’s a constant sort of thing that we have to juggle. And so, yeah, the aides will often take him out on an outing. He loves going to the Goodwill. He loves going to matinees. He loves going to things like, if it’s a special outing, we go to Enchanted Forest or something. He adores the light and water show there. And then, at other times, he likes to watch sort of Disney movies. He likes to look at books about player pianos and musical instruments. He’s fascinated by trivia cards for some reason. We don’t really know what he’s getting out of them, but just as a physical object to handle and look at, he’s fascinated by them

Miller: Like Trivial Pursuit cards.

Collins: Yeah. Stuff like that.

Miller: In 2017, you became his legal guardian when he was 18 years old. And then about a year after that, you write that the first ballot arrived for him in the mail. You wrote that Oregon was perhaps the only state in the country where that might have happened. Why?

Collins: Well, for one thing he was automatically registered. So we have motor voter here and also …

Miller: When he got, not a driver’s license, but a state ID.

Collins: Right, and we also have voting by mail. So that’s not to say that someone with a really serious intellectual disability in another state might not go and register to vote and might not go to a polling place. But I think it’s fair to say that the odds probably get considerably longer in those kinds of situations. In Oregon, it’s essentially automatic.

Miller: And frictionless.

Collins: Right.

Miller: What went through your mind when that first ballot arrived with his name on it?

Collins: I didn’t know what to do with it, because, just to make it clear, he is largely non-verbal. He’s able to answer very direct questions about what do you want for breakfast or something like that, but in terms of being able to hold a conversation or sort of more conceptual things, it’s very hard to tell to what extent he’s understanding those things. And so, yeah, we got this ballot and there was, practically speaking, no way he could fill it in and no way to sign it.

So I have like a banker’s box that just has all his paperwork, his insurance forms and things like that, where I put all his stuff, and I wound up just putting it in there. I couldn’t bear to just toss it into recycling it. It feels wrong to do that with a ballot.

Miller: I was moved by that moment in the essay. I mean, you treated this, as far as you could tell an unusable ballot, like it was still a special object, a kind of sacred civic object. These are my words, not yours, but I was trying to understand why it was that you didn’t toss it.

Collins: I think for a long time, I wasn’t sure why, that it felt wrong and I couldn’t quite put words to why it felt wrong. And I think what I eventually realized was, was that there was something about that that was bothering me, that he is recognized as a citizen. He is someone who has rights and who has interests, but at some fundamental level, he’s not able to vote.

Miller: How much variation is there in voter exclusion laws of the kind we’re talking about here, of excluding people for reasons of intellectual disabilities? How much variation is there around the country, state by state?

Collins: There’s a lot. One thing I should make really clear actually about Oregon is that in a way, Oregon is like a best case scenario, because we have motor voter and we have voting by mail. And Oregon’s been working towards trying to get registration through the Medicare roles as well, which, that’s a whole other group of people who may not have state IDs or it’s more current information than what’s on a driver’s license. And there’s been a lot of work in Oregon by the election board, by Disability Rights Oregon, to make sure that people with disabilities can vote.

But that said, there’s some gray area, particularly around more serious forms of intellectual disability. And yeah, from state to state, it’s wildly variable. Some states still have blanket exclusions in their constitutions for people under guardianship. I mean, some states, Kentucky for instance, still has not updated its language, so they still have an exclusion for quote, unquote, “idiots.” That’s the language that was used in the 19th century for this stuff.

And one way that that is reflected … there was a study done last year on what was termed “voting opportunity.” So basically, did someone with an intellectual disability, either vote or at least have the opportunity to vote? They may have chosen not to, but did they have the opportunity to? And I think, nationally, the figure was something like 54% and Oregon did pretty well. I think it was like the fifth in the country. It was 64%. Nevada had the most at 78%. Kentucky was at 25%. So that gives you some sense of, because of the way laws are structured, and even just the level of social services and things like that, the state that you’re born in has a tremendous effect on the likelihood of being able to vote in a situation like that.

Miller: To a great extent, voting laws are a state by state issue, but there is federal law as well. You note that the Federal Voting Rights Act states that “a voter may not be removed from the official list of eligible voters, except by reason of death, criminal conviction, mental incapacity, change in residence or a voter request.” Is it clear what mental incapacity means?

Collins: Not entirely. And so that’s something that states are still having to hash out. For instance, for a long time, a number of states simply said, if you are under guardianship, you can’t vote.

Miller: Meaning – although that could be an hour-long conversation itself – you are legally and basically in every way responsible for your son.

Collins: Right.

Miller: You sign on his behalf for basically every aspect of his life.

Collins: Right. So I advocate for his social services. I’m the one signing insurance forms, any financial transactions. I mean, he lives with us, but if he was getting a lease to live somewhere, I’d be the one signing the lease. I mean, life and death, medical decisions come up in guardianships. And so, yeah, it’s a big role.

However, guardianship varies a bit state to state, and some guardianships are more extensive than others. And there are lots of reasons why someone might have a guardianship. I mean, famously or infamously, there’s Britney Spears, someone who clearly has the capacity to vote. But for a long time, California’s law was that if you were under guardianship, you couldn’t vote. They actually changed that. They changed it to a more narrow standard of essentially if someone wishes to vote and shows a desire and communicates a desire to vote, that they can vote. So under that newer standard, which I think has been just in the last decade, even were she still under a guardianship, Britney Spears would now be able to vote.

Miller: You summarize some of the most common arguments against people with intellectual disabilities being allowed to vote. I wonder if you could read us that part of your essay.

Collins: Yeah. And these are things that have sort of come up both historically and even in more recent kind of debates over this.

[Reading excerpt] “Might people with intellectual disabilities be less informed about voting? Might they be unduly influenced by people around them? Might they fill in some gibberish? Perhaps, in some cases—and yet such acts do not stop any other American from being allowed to vote. Other voters are free to believe in QAnon, or to invoke numerology, or to write in ‘Deez Nutz’ for president if they like; but those with intellectual disabilities can be preemptively blocked. To ward off the hypothetical possibility of a ‘bad’ voter, states resorted to the certain and constant disenfranchisement of a marginalized class of citizens.”

Miller: How do other countries, democracies or not, around the world handle these questions right now?

Collins: That’s a great question because for a long time, many countries had laws that were actually quite similar. For instance, if you look at Japan, they had very similar provisions as far as who they barred from voting. And what has been happening, particularly in the last decade or so, is that that’s been changing pretty rapidly. A lot of the reason for that is there’s the U.N. Convention on the Rights of Persons with Disabilities. So this was a treaty in 2007. It’s actually inspired by essentially the ADA, the Americans With Disabilities Act. And so it’s kind of a global version of that, and that treaty is actually very clear. They just outright say people have the right to vote, you cannot exclude someone on the basis of a disability, period. And there’s not a bunch of ifs and buts in there. That’s it. They have the right to vote.

So not surprisingly, a lot of countries were a bit slow to adjust their laws even after that treaty was signed. In some cases, they did adjust the laws. In other cases, like in Japan, there was a lawsuit and the laws changed accordingly in the aftermath of that.

Miller: You note about that, about the Japanese case. It was a woman with Down’s Syndrome in Japan who brought that suit about 10 years ago. She eventually won, giving her the right to vote. And then you added this: “Very few people under guardianship actually did vote in that election. The greater effect may instead be in how recognizing the disabled affects the perspective of everyone else.” What do you mean by that?

Collins: Well, they started to get, in their parliament, the first people with extensive visible disabilities and that was after that decision.

Miller: So not necessarily electing people with severe intellectual disabilities. But following this debate and this conversation, people with, as you said, visible, say, physical disabilities were more likely to be elected themselves?

Collins: Yeah. And whether that was a direct result of that court decision, I don’t know. But it certainly seems significant that the timing of these things are kind of happening at around the same time. And I think, whether or not someone chooses to vote, the barring of them from voting says something about how they are valued by society, and what power they are given.

Miller: You put forward a relatively pointed question, one that I think might seem insensitive if it were not written by somebody who is the parent, the guardian of someone with an intellectual disability. You write this: “What does it mean to give a vote to someone who may ignore the ballot, scribble on it, ball it up or submit it blank.” You pose that question but you don’t explicitly answer it in the essay. I wonder if you could answer it now. What does it mean? And I think you write this other version of the question, which is another way to put it: “What does it mean to give somebody the right to vote who doesn’t understand what it means to vote?”

Collins: Yeah. Well, it’s a good question.

Miller: It’s your question. [Laughter]

Collins: Yes, it’s in a way, not one that I’m the first to pose. And in fact, I think it’s worth pointing out that the philosopher, Martha Nussbaum, brings this up in an essay in 2009. And she really made, I think, two basic points around this. The first is that when people are not recognized as voters, as having a political presence, that affects how we see them. And it’s a reflection of whether or not their interests are going to be accounted for by a society. She brings up, I think maybe a more controversial idea from that, which is she says essentially why are guardians not able to vote in that situation? If the issue is the person doesn’t understand or is not capable of communicating about a ballot, why is a guardian able to do everything else on their behalf?

Miller: Medical decisions, banking decisions, housing decisions, but not voting decisions.

Collins: Exactly. Even voting in stockholder situations. Oregon law, for instance – most states – allow guardians to vote on their ward’s behalf. If you’re voting about whether Elon Musk gets billions of dollars …

Miller: Oh, a board of directors kind of questions.

Collins: Yeah, that kind of voting is allowed. But there is a line or kind of a wall around whether or not they get to vote on who is the water commissioner.

Miller: As you made clear in the essay, this is not about Oregon’s laws. You’re interested, in many ways, the bigger picture of philosophical and just civil rights questions that are at play here. But since we are Oregonians, since your son is an Oregonian, I am curious what you found out about what would happen if you, along with your son, filled out a ballot, say, the coming presidential ballot that will be arriving in your mailbox soon, and then you signed it on his behalf, the way you can sign checks on his behalf. What might happen?

Collins: Nobody really seems to know. And that, to me, was what drove a lot of this essay, which is that guardians, caregivers, the disabled themselves are placed in this weird and vague area. And to make it clear, the elections board, and Disability Rights Oregon, and organizations like that make it very clear, if you have a disability, you are able to vote. If you need assistance with it, just physical assistance or even cognitive assistance to understand what the ballot is and things like that, you still have the right to vote. And they’re very clear about that.

But what about a situation where someone doesn’t even understand what the ballot is? They don’t know how to sign their name. They’re physically, maybe unable to communicate anything about it. That’s a lot more vague for a couple of reasons. The first is on the ballot itself. In big letters where you sign your name on it, it says, this is, I think, like a class C felony to sign someone else’s name on the ballot.

Miller: It’s a scary, criminal penalty to consider if you were thinking about being a test case.

Collins: And I’m not sure I would want to be a test case for that reason. But the funny thing about it is that they cite an Oregon law for that. But if you look at the actual law, what the law says is you cannot make false statements on a ballot. Well, if a guardian is signing something, what I sign is not “Morgan Collins.” I sign “Paul Collins, Guardian for Morgan Collins.” There’s no sleight of hand there. It’s very clear that I am someone else acting on his behalf. But when I’ve asked about that, it’s really not clear what the status of something like that is. So that’s one issue.

The other is that we actually have a clause in our state constitution that says that someone who is “adjudicated incompetent to vote,” cannot vote. And so this was State Measure 2 which was passed back in 1980. And that was meant to update the much older and much broader constitutional language for the state about disabilities. And the problem with that, and this was pointed out at the time, is that that phrase, “adjudicated incompetent to vote,” nobody knows what it means. I think City Club of Portland had a committee where they looked at that law before it went on the ballot, and they talked to people in the legislature who had referred it to the ballot. They said, what does that mean? Who even suggested this? And no one could tell them. There’s no specific process of adjudicating someone incompetent to vote.

Miller: We just have about a minute left, but has your son’s apparent disenfranchisement affected the way you think about your own right to vote?

Collins: Yeah, it makes me value it a lot, because I’m aware of how tenuous it can be. There’s been tremendous progress in voting rights in this country. However, there are always attempts to take it away and there still remain a lot of areas of vagueness where there’s a real disincentive for people to actually assert their rights in a case like this.

Miller: Paul Collins, thanks very much for coming in.

Collins: Oh, thank you.

Miller: Paul Collins is an author, English professor at PSU. His new essay in The Believer magazine is called “Why Can’t My Son Vote?”

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