Ignorance is Never Bliss in Election Law: What Lawyers Think Doctors Know About the Human Brain and Decisional Capacity Analysis

Abstract

In 2015, one marginalized group still endures systematic discrimination in the right to vote, based on labels and social stigmatization: those suffering from cognitive and intellectual impairment. The individualized testing currently used to determine individual voter capacity do not enjoy a consensus of scientific support and increasingly outdated as scientific opinion about mental disability has evolved. Current interpretations of mental disability urged by some legal scholars as well as the medical community are exemplified in recent changes to the Kansas state constitution. This Comment proposes nationwide adopt of the ‘Kansas model’ as a possible solution to facilitate the transition from the old exclusive regime of voting rights to the new regime among states incorporating a presumption of inclusion. This Comment concludes by exploring the implications of recent state voter identification laws in that such restrictions act as proxies for the disenfranchisement of the same citizenry, albeit in a more subtle manner, potentially undermining any positive changes made in state or federal election law for mentally disabled persons. While individualized testing is widely preferable to blanket disenfranchisement, whether any of the proposed individualized tests for voter capacity constitute a sound legal standard remains to be seen. Psychological tests assess the cognitive and emotional functioning of individuals. They are routinely used in legal contexts to formulate clinical opinions and provide useful data that can corroborate or contradict hypotheses. In fact, elite scientists currently disagree as to the validity or accuracy of such evaluations garnered by the most technologically sophisticated testing available.