Pennsylvania Advisory Opinions July 12, 1973: AGO 48 (July 12, 1973)

Advisory Opinion Text

Mentally disabled—Residence for voter registration—Voting

1. A person residing at an institution for the mentally ill or mentally retarded cannot be denied the right to register to vote because of such residency.

2 . The mentally retarded or mentally ill cannot be disenfranchised merely because they are undergoing treatment for a mental disability or reside in an institution for the mentally disabled.

3. Denial of an absentee ballot to mentally disabled, institutionalized persons does not prohibit that person from voting at his place of institutional residence.

Honorable C. DeLores Tucker

Secretary of the Commonwealth

Harrisburg, Pennsylvania

Dear Secretary Tucker:

Recent litigation in the Commonwealth of Pennsylvania had led to concern and confusion as to the voting rights of the mentally ill and the mentally retarded who reside in this State. Inquiries from your office and from concerned citizens have focused on two problems:

1. Can a person who is an inmate of an institution for the mentally ill or the mentally retarded claim that institution as his legal residence for purposes of voter registration in the voting district in which that institution is located?

2. Under the Constitution and laws of this Commonwealth, can a mentally ill or a mentally retarded person be denied the right either to register to vote or to vote merely because he or she is Known to be undergoing treatment for a mental disability or is known to be residing in an institution for the treatment of the mentally disabled?

The answer to question #1 is clear. In the recent opinion of the Commonwealth Court in Commonwealth v. Parkhouse, et at., 969 CD. 1972, the defendants contended that Section 703 of the Pennsylvania Election Code, 25 P.S. §2813, constituted a bar to individuals who were attempting to qualify as registered electors of Montgomery County by claiming Norristown State Hospital as their place of residence. Section 703 provides, in relevant part, as follows:

"For the purpose of registration and voting, no person shall be deemed to have gained a residence by reason of his presence, or lost it by reason of his absence. . . while kept in any poorhouse or other asylum at public expense."

Citing Newport Township Election Contest, 384 Pa. 474, 121 A.2d 141 (1956), the court concluded on page 3 of the Opinion that "... the defendants should not refuse to open the door of the registration bureau. . . simply because they (the registrants) are currently living at the Norristown State Hospital as patients of said hospital."

Therefore, it is my opinion, and you are so advised, that no person who resides at an institution for the mentally ill or mentally retarded in the Commonwealth who otherwise meets the residency requirements of Section 704 of the Election Code (25 P.S. §2814) can lawfully be denied the right to register as a qualified elector in the voting district in which the institution is located.

As to question #2, it is my opinion, and you are so advised, that there is no legal basis in this Commonwealth upon which a mentally retarded or mentally ill person can be disenfranchised solely because he or she is undergoing treatment for a mental disability or is known to reside in an institution for the treatment of the mentally disabled.

Article 7, §1 of the Pennsylvania Constitution sets forth the qualifications of electors in Pennsylvania. Briefly, they are U.S. citizenship, Pennsylvania residence, and residency in the election district. Mental health or competency is not a prerequisite to the right to vote. No other provision of the Constitution nor of any state law requires any specified degree of mental health or mental competence as a precondition to the right to vote. The Legislature's silence on this issue may well be an indication of its desire to avoid the inequities, irregularities, and complexities that would surely arise if one attempted to establish arbitrary levels of mental ability or competence below which a person would be disenfranchised. For example, what standard of incompetence is applicable? A person unable to tend to his own business and financial affairs may need a guardian. But that same person may still be quite able to make a considered choice of a candidate.

Nevertheless, it has been argued that the definitional section of the Election Code (25 P.S. §2602 (w) (12)) and the section on absentee ballots (25 P.S. §3146.1) express the Legislature's intent in this area. Enacted pursuant to Article 7, §14 of the Constitutions, both of these sections, in identical language, provide the following:

"Provided, however, that the words 'qualified absentee elector' shall in nowise be construed to include persons confined in a. . .mental institution. ..."

Article XIII, Voting by Qualified Absentee Electors, is the title of that section of the Election Code devoted to absentee ballots. Beginning with 25 P.S. §3146.1 through 3146.9, this article contains detailed information on absentee balloting including such things as voter qualifications (3146.1), manner of application (3146.2), date of application (3146.2a), type of envelopes (3146.4), and grounds for challenges (3146.8). These few examples illustrate that absentee voting is a highly regulated process which carefully scrutinizes all attempts to cast an unqualified ballot. These procedures are, of course, necessary to prevent abuses. They do not, however, purport to regulate all voting in Pennsylvania, just the limited right to cast an absentee ballot. Thus, the legislative intention to deny an absentee ballot, which is a qualified right, to all persons confined in mental institutions does not mean that all mentally retarded or mentally ill persons of varying disabilities can be denied the right to vote at the place of their residence. Neither the Constitution nor the Statutes of Pennsylvania provide for such a result. Additionally, the few courts which have considered the issue of mental competency for voting have either dealt with an absentee ballot situation ( In re 223 Absentee Ballots , 81York137, 431 Pa. 178, 245 A.2d 265 (1967)), or with a case in which mental competency was not an issue, but which was mentioned in passing by the court without explanation or substantiation. Thompson v. Ewing, 1 Brewst. 67 (1861).

It is our suggestion that this opinion be distributed to all local election officials for immediate implementation in an effort to insure that all qualified voters of Pennsylvania have an equal opportunity to cast their ballots in subsequent elections.

Very truly yours,

Larry B. Selkowitz Deputy Attorney General

Israel Packel Attorney General

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Notes:

Commonwealth v. Parkhouse, et al., 969 CD. 1972; Pennsylvania Association for Retarded Children v. Commonwealth of Pennsylvania, 334 F.Supp. 1257 (E.D. Pa. 1971).

"Article 7, §1—Every citizen, eighteen years of age, possessing the following qualifications, shall be entitled to vote at all elections, subject, however, to such laws requiring and regulating the registration of electors as the General Assembly may enact. 1. He or she shall have been a citizen of the United States at least one month. 2. He or she shall have resided in the state ninety (DO) days immediately preceding the election. 3. He or she shall have resided in the election district where he or she shall offer to vote at least sixty (60) days immediately preceding the election, except that if qualified to vote in an election district prior to removal of residence, he or she may, if a resident of Pennsylvania, vote in the election district from which he or she removed his or her residence within sixty (60) days preceding the election.

The Legislature shall, by general law, provide a manner in which and the time and place at which, qualified electors who may, on the occurrence of any election, be absent from the State or county of their residence, because their duties, occupation or business require them to be elsewhere or who, on the occurrences of any election, are unable to attend at their proper polling places because of illness or physical disability, may vote, and for return and canvass of their votes in the election district in which they respectively reside.

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