The following article, written by ACLU of Nebraska Executive Director Mindy Rush Chipman and Legal & Policy Counsel Jane Seu, will appear in the November/December issue of The Nebraska Lawyer.
Voting is the cornerstone of our democracy and the fundamental right upon which all our civil liberties rest. This is true for Nebraskans of all abilities. Some individuals with physical or mental incapacities may have a guardian appointed by the court to protect their personal and financial interests;1 however, being under a guardianship order alone does not prevent a person from being civically engaged and in no way makes a person ineligible to vote. This article aims to highlight the process by which Nebraskans who are under guardianship orders can exercise their voting rights and the important intersection of voting rights and disability rights.
Guardianships and Voting Rights
It is important for Nebraska attorneys and Nebraskans in general to understand that individuals under a legal guardianship do not necessarily lose their right to vote. Additionally, Title II of the Americans with Disabilities Act requires that all state and local governments ensure that people with disabilities have the full and fair opportunity to vote.2
Under Nebraska law, before the court will appoint a guardian for an individual or “ward,”3 the court must find that the person is “mentally incapacitated,” which could be due to mental illness, mental deficiency, physical illness, or chronic use of drugs.4 The petitioning proposed guardian must prove by clear and convincing evidence the proposed ward’s incapacitation and also show that there are no other less restrictive means that could meet the proposed ward’s needs.5 Guardianships may be “permanent” if the need for a guardianship is expected to be long-term, or “temporary” if the person is incapacitated and an emergency exists and a guardian is needed to address the emergency.6 Guardianships may also be “full,” which grants the guardian all powers or “limited,” where the guardian only makes decisions in the areas where the ward is unable to handle their own affairs.7
Regardless of whether the guardianship is temporary, permanent, limited, or full, the ward does not necessarily lose their right to vote.8 The Nebraska Constitution disqualifies from voting only those who are found to be “non compos mentis” or “mentally incompetent.”9 “Mentally incapacitated” for purposes of appointing a guardian is not the equivalent of a finding of being “mentally incompetent” that disqualifies the individual from voting.10 “Mentally incompetent” refers to a person “whose mind is so affected as to have lost control of itself[.]11 But even these findings must be made on a case-by-case basis depending on individual facts.12
Therefore, a Nebraskan under a guardianship only loses their right to vote if a court order expressly takes away their voting rights or they are additionally found by the court to be “mentally incompetent.”13 Absent these scenarios, all other Nebraskans under guardianship orders maintain their voting rights. With voting rights inextricable and central to our other freedoms, many of which Nebraskans under guardianships have no or limited control over, a guardian must act in the best interest of their wards and do all they can to empower their ward to understand and exercise their voting rights. It is imperative that guardians, including attorneys serving as guardians, understand that they can talk to their wards about voting, the voting process, and why voting is so important in our local, state and federal elections. Guardians should not impose their political views on their wards or encourage votes for certain candidates or ballot measures, but rather empower their wards to form their own opinions and understand their rights. Guardians can help their wards understand the requirements needed to vote and navigate the voting process.
Possible Barriers to the Ballot Box for Nebraskans under Guardianships
Nebraska now requires photo identification to vote. The new photo ID requirement allows voters to use IDs that include a voter’s photo and name that are issued by:
- The federal government
- The state of Nebraska
- Any postsecondary institution in Nebraska
- Local governments in Nebraska such as county-issued IDs
- The U.S. military including IDs for Veterans
- Patient records with photos from nursing homes, assisted living facilities, or hospitals.
It is important to note that IDs that meet these requirements can be expired and still be used for the purposes of voting.14
Even though Nebraskans under guardianship orders maintain their voting rights absent narrow circumstances, numerous barriers including those stemming from Nebraska’s new voter ID law may make voting more difficult for Nebraskans who are under guardianship orders. The below information outlines solutions to common issues surrounding registering to vote or voting for those under guardianship orders:
If the ward was born in Nebraska and does not have a copy of their birth certificate, they can receive a free state birth certificate for the purposes of obtaining a state ID to vote from the Department of Health and Human Services Office of Vital Records.
If the ward is not able to get an ID, they can complete a Reasonable Impediment Certification form to present when voting instead of a photo ID.15
The voter can complete a reasonable impediment form if they are unable to obtain an acceptable form of ID due to disability or illness or due to lack of birth certificate or other required documents. A reasonable impediment form can also be presented if the voter has a religious objection to being photographed.
If the ward cannot get to a physical polling place16 on election day, they can vote early or vote by mail. Voters who apply to vote by mail will need to include a photocopy of an acceptable form of photo ID or include their Nebraska driver’s license or state ID number or a reasonable impediment certification form.17
If the voter is permitted to vote early, the voter can appoint an agent to apply for an early ballot and have the ballot delivered to the voter by mail or have the agent pick up the ballot on behalf of the voter. The agent can be the ward’s guardian. When requesting an early ballot, the voter or the agent of the voter will need to present a photo ID of the voter or their Nebraska driver’s license or state ID number or a completed reasonable impediment form.18
Guardians should help facilitate their ward’s right to vote and legal practitioners should ensure guardians understand the parameters of how to do so, including how to utilize accessible voting options and meet the new voter ID requirements in Nebraska.19 Voting rights are central to our ideals of autonomy and self-determination and must be protected for all eligible Nebraskans.
For additional voting rights or disability rights related questions or concerns, Nebraskans can contact the ACLU of Nebraska team via email at gethelp@aclunebraska.org for more information, or via phone to our intake partner Legal Aid of Nebraska at 1-877-250-2016, Monday or Wednesday mornings 8:30 to 11:30 a.m. CT or Tuesday or Thursday afternoons from 1:00 to 3:00 p.m. CT.
Endnotes
1 Neb. Rev. Stat. § 30-2620.
2 42 U.S.C. § 12132.
3 The person whom the guardian is responsible for is called the ward. See Neb. Rev. Stat. § 30-2620; Ch. 3-Q2: What is a guardian and what is a ward?, State of Nebraska Judicial Branch, https://supremecourt.nebraska.gov/guardianship/con- servatorship-faq/3-general-information/ch-3-q2-what-guard- ian-and-what-ward#:~:text=The%20person%20that%20the%20 guardian,in%20the%20state%20of%20Nebraska (last visited July 12, 2024).
4 Neb. Rev. Stat. § 30-2601.
5 Neb. Rev. Stat. § 30-2620; In re Guardianship of Stierstorfer, 929 N.W.2d 87, 93 (Neb. Ct. App. 2019).
6 Neb. Rev. Stat. § 30-2626; see also Packet A–Guardianship Annual Report, State of Nebraska Judicial Branch, https://suprem- ecourt.nebraska.gov/sites/default/files/CC-16-2-33.pdf (last vis- ited July 14, 2024)(guardians must annually attest to the court that the need for a guardianship continues to exists and “should remain in place.”).
7 Neb. Rev. Stat. § 30-2601.
8 Charles P. Sabatino, Guardianship and the Right to Vote, American Bar Association, (June 25, 2020), https://www.americanbar. org/groups/crsj/publications/human_rights_magazine_home/ voting-in-2020/guardianship-and-the-right-to-vote/.
9 Neb. Const. art. VI, section 2.
10 Guardianship and Voting Explained, State of Nebraska Judicial Branch Office of Public Guardian, https:// supremecourt.nebraska.gov/sites/default/files/voting_infograph- ic.pdf (last visited July 12, 2024).
11 In re Cass’ Guardianship, 155 Neb. 792, 797 (1952).
12 Id.
13 Guardianship and Voting Explained, State of Nebraska Judicial Branch Office of Public Guardian, https:// supremecourt.nebraska.gov/sites/default/files/voting_infograph- ic.pdf. ("'Mentally Incompetent' is not synonymous with being under a guardianship/mentally incapacitated.")(last visited July 12, 2024).
14 List of acceptable forms of photo identification (ID), Nebraska Secretary of State’s Office, https://sos.nebraska.gov/sites/ default/files/doc/List%20of%20acceptable%20forms%20of%20 ID%20June%202024.pdf (last visited July 12, 2024).
15 Reasonable Impediment Forms can be found here: https:// sos.nebraska.gov/sites/default/files/doc/elections/VoterID/ Reasonable_Impediment_Certification_-_Fillable.pdf. Reasonable Impediment Forms can be dropped off, mailed, or faxed to the country election office.
16 Polling places must be physically accessible which includes, a level, hard-surfaced parking area with at least one van acces- sible parking space per twenty-five parking spaces, unobstructed pathways and entrances that are level and at least 36 inches wide and at least one accessible booth. Persons may call the Nebraska Secretary of State’s Office Election Division at 888-727-0007 or 402-471-2555 to report issues or concerns.
17 Voters can request an early ballot beginning 120 days from the day of the primary, general, or special election. Early voting applications are available here: https://sos.nebraska.gov/sites/ default/files/doc/elections/2024/earlyvote_app-fill_general.pdf. Early voting applications can be mailed, faxed or emailed to the local county election office. Early-voting ballots are sent out within 35 days before a primary or general election. Early-voting ballots can be mailed, placed in a county drop box, or delivered to the county election office and must arrive prior to the close of the polls on election day to be counted. Voters who are voting early in-person can vote at the county election office beginning 30 days prior to a primary or general election and up to the day before the election.
18 Neb. Rev. Stat. 32-943.
19 See note 11, supra (“1. Talk to your ward about what voting is and why it’s important, 2. Teach your ward about political parties and issues, 3. Don’t impose your own political vies on your ward; empower them to form their own opinions and understand their rights., 4. Help your ward get involved in their chosen political community through campaigning or volunteering to help get out the vote.”).
