Why some Wisconsin residents with mental disabilities lose voting rights

In Wisconsin and most states, judges may determine someone is 'incompetent' to vote — here's how people with mental disabilities can have be disallowed from voting and how those rights can be restored.

Wisconsin Watch

May 8, 2023

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One page of a government form shows a numbered list that includes point 14., which includes checkboxes for rights that cam be removed, including executing a will, serving on a jury, and registering to vote and voting in an election.

Frank Wallitsch's guardianship paperwork is photographed at his parents’' home in Mount Horeb. The box indicating Wallitsch's voting rights were to be removed was accidentally left checked when the paperwork was filed in 2010. Wallitsch, who was placed under a guardianship related to his disability, lost his voting rights even though his parents did not intend for those rights to be removed. But despite being on Wisconsin's ineligible voter list, he was able to vote in previous elections. (Credit: Drake White-Bergey / Wisconsin Watch)

Wisconsin Watch

By Zhen Wang, Wisconsin Watch

This article was first published by Wisconsin Watch.

Thousands of Wisconsinites have been “adjudicated incompetent” to vote under state laws designed to protect mentally incapacitated people from having someone else fill out their ballot.

Under laws in Wisconsin and many states, a court may determine someone is incompetent to vote. Ten states — including neighboring Illinois and Michigan — place no disability-related restrictions on voting rights, according to a 2018 Bazelon Center for Mental Health Law report.

But Wisconsin lacks a statutorily defined system for tracking people ruled mentally incompetent to vote, Wisconsin Watch reporting has revealed. That has led to instances of people casting ballots in recent elections despite being on the statewide ineligible voter list. They include two voters who told Wisconsin Watch they didn’t know they were ineligible.

Disability rights advocates and legal experts disagree over whether — and to what extent — certain people with mental disabilities should lose their voting rights.

“Historically, people with disabilities have experienced a lot of discrimination with certainly their rights, and that includes the right to vote,” said Barbara Beckert, external advocacy director of Disability Rights Wisconsin. “There is a lot of inconsistency from state to state and how this is currently in place.”

Why does Wisconsin disenfranchise certain people with mental disabilities, and how can some restore their right to vote?

Here’s what you need to know.

Who in Wisconsin could lose their voting rights for mental disability reasons?

A subset of people under legal guardianship — someone who has a court-appointed guardian to make health and financial decisions — may lose their right to vote.

People with degenerative brain disorder, including dementia, and developmental disabilities — such as cerebral palsy, epilepsy and autism — may be ruled “incompetent” or “incapacitated” and lose their voting rights.

Courts rely on opinions of medical professionals and a court-appointed guardian ad litem to assess a person’s capacity to make important decisions, such as those related to their health care or finances. During a hearing, a court will determine whether a guardian is necessary and will outline the scope of the guardian’s decision-making power.

Not everyone under guardianship loses the right to vote.

While people under the guardianship might struggle to make choices about health care and finances, many can still decide who they want to vote for, said Tami Jackson, a public policy analyst for the Wisconsin Board for People with Developmental Disabilities.

Under Wisconsin law, people disallowed from voting in Wisconsin include: “Any person who is incapable of understanding the objective of the elective process or who is under guardianship, unless the court has determined that the person is competent to exercise the right to vote.”

Under that broad definition, those who understand their reasons for voting, want to vote for a candidate and want that candidate to win should retain their voting rights, said Ellen Henningsen, who directs the Voting and Guardianship Project for Disability Rights Wisconsin.

“It’s a very simple standard. It’s a very low standard, frankly, because we don’t impose any capacity tests on average voters,” Henningsen said.

Who decides whether someone is competent to vote?

Only a judge can determine a person’s legal competence to vote in Wisconsin. No one else has that power — not a family member, caregiver, election official, doctor or designated power of attorney.

How many people in Wisconsin have lost their voting rights under this process?

A Wisconsin Elections Commission list contains more than 22,000 people who have been “adjudicated incompetent” to vote in Wisconsin. But that list is imperfect. Some, but not all, counties notify state elections officials when a person is found incompetent to vote, Joel DeSpain, a Wisconsin Elections Commission spokesman, previously told Wisconsin Watch. Additionally, the statewide list includes people who have since died.

Frank Wallitsch sits on a couch while Susan Wallitsch holds a piece of paper with letters printed on it in her right hand and a pencil in her left hand, in a room with a window, staircase, lamp, books and piano in the background.

Frank Wallitsch is photographed with his mother, Susan Wallitsch, in her home in Mount Horeb. Frank is functionally nonverbal, but he can point to letters on a sheet of paper to communicate. While being photographed, Frank spelled, “Navigating law is hard,” using the paper. (Credit: Drake White-Bergey / Wisconsin Watch)

Why disenfranchise people with certain mental disabilities?

The laws are designed to bolster election integrity and to protect mentally incapacitated people from having someone else fill out their ballot or manipulate them into voting a certain way.

“Individuals who do not understand the nature of voting creates a pool of potential votes that might be cast by anyone with the ability to gain access to those individuals’ ballots — a species of vote fraud,” Pamela Karlan, the co-director of the Supreme Court Litigation Clinic at the Stanford University Law School, wrote in the McGeorge Law Review.

For instance, an assisted living facility staff member could influence the votes of people with severe cognitive disabilities in their care, she told the nonprofit news outlet Stateline in 2018.

A partisan review of Wisconsin’s 2020 election raised those same concerns when it found a couple of examples of nursing home residents who had voted despite being on the state’s “adjudicated incompetent” list. But no cases of nursing home voter fraud have come to light.

Critics of disenfranchisement laws and practice point out such scenarios involve law-breaking by people other than the person with a disability, and they question the idea of protecting the rights of a cognitively disabled voter by stripping them away.

Can people restore their voting rights after losing them?

Yes. That involves petitioning the county probate court. Filing a petition carries no cost and should be done 180 days after a guardianship hearing.

Petitioners can get help from someone who supports the restoration of their voting rights, whether a guardian, family member, service provider or teacher.

There, petitioners can show they understand the election process, said Henningsen, who advocates for people to restore their voting rights. There are good reasons to do so, she said. Judges may have been mistaken in the first place. Or petitioners may now understand the election process, whether because they’ve matured or received education — or their health conditions have improved.

But once people lose the right to vote, they face a higher burden of proof in having it restored, Jackson said.

Petitioners should be prepared for the court to ask questions, says Disabilities Wisconsin Rights, which publishes a guide for voting rights restoration.

If a court restores a petitioner’s right, the person must register to vote before casting a ballot.

How have these issues been politicized in Wisconsin?

The issue first gained attention in 2022 as part of former Supreme Court Justice Michael Gableman’s partisan investigation into the 2020 election. Gableman identified a couple of cases of people in nursing homes who had voted despite a court removing their voting rights.

That unfolded as Republican backers of former President Donald Trump sought to sow doubts about the results of his 2020 election loss to Joe Biden — and to purge thousands of names from Wisconsin voter rolls.

“It’s unfortunate that people with disabilities are being looked at as somehow violators of election law when so many of them who have their right to vote experience incredible barriers to access voting,” said Jackson of the Wisconsin Board for People with Developmental Disabilities. “I just see that this is a solution that is looking for a problem.”

Although conservative activists pushed misinformation in that process, including conflating ineligible and eligible voters, they did help identify some holes in Wisconsin’s statewide voter database.

As Wisconsin Watch reported in March, Dane County Clerk Scott McDonell conducted a review of about 1,000 names from the state’s list of people a court deemed incompetent to vote and found 95 examples of people who voted after being added to the list.

While more examples than previously known, the number is small compared with the millions of votes cast in statewide elections — and not enough to alter past results as Trump and others have claimed. In reviewing some of the cases, Wisconsin Watch found examples of human error, rather than coordinated or intentional illegal voting.

“We all want our elections to have integrity, but we also want to make sure that doesn’t come at the expense of the rights of people with disabilities,” Beckert said.

The nonprofit Wisconsin Watch collaborates with WPR, PBS Wisconsin, other news media and the University of Wisconsin-Madison School of Journalism and Mass Communication. All works created, published, posted or disseminated by Wisconsin Watch do not necessarily reflect the views or opinions of UW-Madison or any of its affiliates.

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