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Change Urged for Nursing-Home Voters
Denise Grady, The New York Times
September 15, 2004
Election officials should supervise voting in nursing homes and other long-term-care facilities and give brief mental tests to residents with dementia to determine whether they are competent to vote, a panel of experts in law and medicine is recommending.
The experts are also urging changes in voting laws involving mental competence, which vary by state, to conform to a 2001 court decision that helped define a person's "capacity to vote."
Voting by people with Alzheimer's disease and other forms of dementia is "an emerging policy problem," the experts warn, in an article being published today in the Journal of the American Medical Association.
About 4.5 million Americans have dementia, and by 2050 the figure is expected to be 15 million. Voting rates are highest among people 65 to 74, and age is the main risk factor for dementia. About 1.6 million Americans are in nursing homes, and a million are in assisted-living centers.
Many elderly people, especially those in long-term care, use absentee ballots, which - unless supervised by election officials - are the type of voting most susceptible to fraud.
The recommendations have two purposes, the authors say. The first is to prevent fraud by political groups that would take advantage of patients with dementia by completing their absentee ballots, telling them what to fill in or accompanying them into the voting booth and casting votes for them.
Workers for a party or a candidate who show up at a nursing home to "assist" with voting can accomplish "wholesale fraud," essentially stealing a bloc of votes, said Pamela S. Karlan, a law professor at Stanford University and an author of the journal article. That kind of fraud can have a big impact on small local elections where voter turnout is low, Ms. Karlan said.
"We want to make sure there aren't a pool of people whose names can be used," she said. "It's a sort of identity theft."
The second purpose of the recommendations is to protect the right to vote for people who are in the early stages of dementia but are still competent. If they can answer a few simple questions, no one can bar them from voting just because they have an Alzheimer's diagnosis, and it would then be considered reasonable to give them whatever help they needed to cast their votes.
Testers would ask how people elect a governor or president (by voting) and what determines who wins an election (whoever gets the most votes), the article states. Then the tester would describe two candidates and ask the voter to pick one. It would not matter which one the voter picked; the point is to find out whether the person can make a choice.
Most people with mild dementia could easily pass that test, said Dr. Jason H. Karlawish, the first author of the article and a geriatrician at the University of Pennsylvania's Institute on Aging. Those with severe dementia could not.
"The extremes are easy," Dr. Karlawish said, adding that the test may be most useful for people in the middle, whose mental ability might not be clear to family members or others taking care of them.
The experts said the questions were based on a 2001 decision by a federal district court in Maine in the case of Doe v. Rowe. The court ruled that people have the "capacity to vote" if they understand the nature and effect of voting and can choose among candidates and questions.
Charles Sabatino, assistant director of the American Bar Association's commission on law and aging, said 23 states had laws that addressed voting by people in nursing homes. Some require election officials to oversee voting by absentee ballots if more than a certain number are requested, but the number varies by state. The other 27 states have no such laws and may be more vulnerable to voting fraud, Mr. Sabatino said.
Dr. Karlawish said, "The more we pondered the issues, the more we thought poll workers needed to be in the front line of handling matters around the registration and delivery of absentee ballots,'' to nursing homes and similar facilities. Perhaps nursing homes could even be made polling places, he said.
But it is not known whether there are enough poll workers to do what the group recommends. Members of the expert panel said they had not yet discussed their ideas with government officials or lawmakers.
Richard J. Bonnie, a law professor at the University of Virginia, said the majority of states had laws to prevent voting by people who had had guardians appointed. And some states bar voting by people labeled "insane," though what that means is not well defined. In any case, Mr. Bonnie said, if tested, those laws would most likely be found unconstitutional.
"There is an amazing shortage of direct law on the subject," he said.
In a conference call yesterday, Dr. Karlawish and other authors of the article said they were not recommending that elderly people be singled out for screening at polling places, which would constitute age discrimination. Rather, the questions are meant to be used in nursing homes and similar facilities.
Although it is too late to change voting laws in time for the November elections, Ms. Karlan said, "there are ways in which somebody who read the paper and is in a position to do something might make some changes in his or her behavior."
For instance, she said, nursing home personnel, family members or others taking care of someone with dementia could use the questions to decide whether or not patients should be offered a ballot or taken to the polling place.
Members of the expert group said they were surprised to hear how often spouses and other relatives of people with dementia acknowledged to doctors or friends that they voted in the patient's place, either with absentee ballots or in voting booths, reasoning that they knew how the patient would have voted.
Voting on behalf of someone else in that way is illegal, they experts said. People can appoint proxies to make financial or business decisions for them but not to vote.
"There are people in federal prison for casting ballots in the name of elderly relatives," Ms. Karlan said.
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