When a guardian is appointed for an adult under Arizona law, the ward’s right to vote is automatically forfeited. At least, that’s what the Arizona Constitution says. The reality, as it turns out, is a little different.

Article 7, Section 2 of the Arizona Constitution looks like the result is clear. It provides that "no person who is adjudicated an incapacitated person shall be qualified to vote at any election." Arizona Revised Statutes section 16-101 confirms that provision, listing a finding of incapacity (along with conviction of a felony) as a basis for denying the right to vote. "Incapacity" is the finding required before a court can appoint a guardian for an adult person. But that’s where the clarity begins to break down.

Arizona Revised Statutes section 16-165 directs the Clerk of the Superior Court in each county to notify the Secretary of State whenever a person has been found to be "incapable of taking care of himself and managing his property, and for whom a guardian of the person and estate is appointed." That list is supposed to be sent to the "appropriate county recorder," and the ward’s name canceled on the register of voters. The problem with that instruction: apparently no county’s Clerk of Court complies with that direction, and the terms "guardian of the person and estate" are no longer meaningful under Arizona law anyway.

The old "guardianship of the estate" concept was replaced in Arizona by the term "conservatorship" in 1974. Even if the language is updated, the instruction to the Clerk of the Court would be to report cases where both a guardian and conservator are appointed—and the Constitution does not say anything about conservatorship wards losing their voting rights.

Maybe the biggest problem with the law, though, is that it is likely a violation of the U.S. Constitution, as the Federal courts ruled when they invalidated a similar law in Maine in the case of Doe v. Rowe. A similar challenge is now pending against a nearly-identical voting law in Missouri. Even if it is a permissible restriction, it is unnecessary and overbroad, since the need for appointment of a guardian does not even address any inability to understand the voting process or make a rational choice.

To counter the Arizona limitation, disability rights activists have introduced Senate Bill 1300 in the current legislative session. The bill creates a new grounds for appointment of a guardian—so-called "diminished capacity." Since it is a finding of "incapacity" that triggers the voting limitation, the advocates say, judges should be permitted to find "diminished capacity" when they think the ward ought to be allowed to vote.

But what test should judges apply in deciding whether to find "diminished capacity" rather than "incapacity"? Voting history? Ability to name candidates? Party affiliation? Shouldn’t we go after the real problem, and just eliminate the disenfranchisement of wards? Legislators are waiting to hear your opinions, incidentally. You can locate your state legislator through the Arizona Legislature's website. The same resource will provide you with an update on the status of SB 1300, as well as other pending legislation.

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