Publisher's note: The author of this fine report is Don Carrington, who is executive editor of the Carolina Journal, John Hood Publisher.
Legal guardians were not consulted before ballots cast
RALEIGH Cecil Pearson's daughter Darlene told him she voted for Barack Obama for president. President of what? Cecil says Darlene couldn't tell you. Darlene, 40, is developmentally disabled and functions cognitively at about the level of a 7-year old. She lives in a group home with five other adult women in Roanoke Rapids.
"I was shocked when I learned she had voted," Pearson told Carolina Journal. "She has never voted. My wife and I became her legal guardians in 1996 to prevent exploitation like this. We were not consulted. She is not capable of making an informed choice, and as her guardians we would not have approved it."
Pearson said his daughter registered to vote at a Division of Motor Vehicles office in 1995 when staff at her group home took her to get a photo identification card. North Carolina Board of Elections records confirm that she registered in 1995, but the first vote she cast was Nov. 2 of this year. Cecil said he learned Darlene voted when he picked her up for a visit later the same day and she told him.
A series of CJ reports have unearthed organized efforts to register patients in state facilities for the mentally ill and developmentally disabled, and to assist them in voting. Advocates for the disabled contend these efforts are legal, but there appears to be some confusion involving state laws that govern voting rights. Cecil Pearson's concerns reveal additional ambiguities in the legal boundaries between patients, guardians, and public officials regarding voting rights of the mentally and developmentally disabled in group homes and other private facilities.
Cecil and his wife, Judy, live in Roanoke Rapids and run a small business there. Easter Seals of North Carolina and Virginia operates Darlene's group home. Darlene and the others were taken in a van to an early voting site in Roanoke Rapids and voted curbside with assistance of a Halifax County election board employee. Pearson contends that the only way she could have made a choice on a ballot would be if someone made it for her.
Halifax County Elections Board Chairwoman Marilyn Harris told CJ that she was aware of Mr. Pearson's concerns. "We had a registered voter who presented herself to vote. She asked for assistance and she was allowed to vote," Harris said.
Letter to home operator
Pearson sent an email Nov. 6 to Easter Seals President & CEO Connie L. Cochran expressing his frustration with the voting incident. It contained the following:
"I know who my daughter voted for and I also know that when I asked who else she replied that she did not know. She did not even know what the president was president of! Also of interest to me is the fact that she CANNOT read other than 'a dog, cat and such simple words' and does not even know her COMPLETE address or has not a clue what the phone number of the home is.
"HOW, if you can justifiably convince me that this is the action (or whatever) of a competent person then you sirs have [my] Full apology. To put it in short, blunt form so you can understand it is this. My daughter can be talked into, convinced to do anything at any time if conditions are right! However, it is my contention that if you wrote Barack Obama's name and Mitt Romney's name on a piece of paper today, right now, she could NOT tell you which was which. ...
"When I placed my daughter in your home it was not to exploit her in any way concerning politics or any other related activity. It is your duty and your job to provide a safe and enjoyable atmosphere for her."
Cochran told CJ that his organization operates 35 licensed homes in North Carolina. "For voting policy," he said, "we operate under the North Carolina Voter's Bill of Rights," a compilation of state laws addressing voting rights issues.
When asked of the precautions that are taken to prevent staff from influencing how residents vote, Cochran said, "We don't influence the votes in supporting one candidate or another."
Pearson believes group home staff should stay out of the election process. "Prior to an election, the homes could send reminder notices to the legal guardian or family contact," Pearson said. "If the guardian or family contact believes it is appropriate for the resident to vote, [he] can pick up the resident and take him to vote at an early voting site," he said. "This process would reduce the potential influence from the group home staff."
Cochran disapproves of Pearson's suggestion. "We don't support the guardian, but we support the individual," he said.
Rights in North Carolina
In 1995 Cecil and Judy Pearson asked a court to rule that Darlene was incompetent and establish them as Darlene's legal guardians. After Cecil Pearson learned of the voting incident, he consulted with the Halifax County Clerk of Court about his daughter's right to vote.
The clerk told him that in North Carolina, a ruling of incompetence does not take away a person's right to vote, get married, or enter into contracts, unless those rights are specifically spelled out and included in the competency proceedings, Pearson said. The clerk added that he could seek to have the order amended to state that Darlene has lost those specific rights, but that each exclusion requires a separate amendment and a separate fee.
Pearson contacted the State Board of Elections for a second opinion. "The North Carolina Constitution has no restrictions on the rights of incompetents, mentally retarded, or mentally impaired to register and vote. North Carolina is one of a handful of states that does not constitutionally restrict the incompetent from voting. [General Statute] 122C-58 allows an order of incompetency to exclude the right of the incompetent to register and vote if it is included in the order. There are some constitutional concerns over this statute," wrote the election board's General Counsel Don Wright.
"There is a possibility that this issue of voting rights of the mentally impaired may be getting some legislative attention next year. You may want to discuss this matter with your legislators," Wright added.
State of confusion
But the exact language of that statute may allow for another interpretation. It states:
"Except as otherwise provided in this chapter, each adult client of a facility keeps the same right as any other citizen of North Carolina to exercise all civil rights, including the right to dispose of property, register and vote, bring civil actions, and marry and get a divorce, unless the exercise of a civil right has been precluded by an unrevoked adjudication of incompetency."
The nonprofit advocacy organization Disability Rights North Carolina interprets the law to mean a person gets to vote unless the right specifically has been disallowed. Cecil Pearson never believed his daughter had the right to vote. He also pointed out that, based on Disability Rights' interpretation, she could marry and sign contracts.
The confusion over voting issues in state-run facilities for the developmentally disabled and mentality ill was evident in September and October, as facility administrators were trying to determine which patients wanted to vote.
A Sept. 14 memo to select staff from Betty Travis, director of programming at the Murdoch Center in Butner, addressed incompetent voters housed at the facility for the developmentally disabled. "Effective immediately we need to change our procedures for assessing our individuals regarding voting. NO ASSESSMENTS! I would like you all to meet on Monday and determine the process for deciding who really wants to vote. Folks should be able to let you know that they want to vote. We also need to get clarification on the process. ... Let's look at absentee voting this year. Thanks," the memo stated.
"It looks like our voter issues are more complex than we thought," responded Doug Irvin, one the recipients of the Travis email.
J. Luckey Welsh, director of the Division of State Operated Healthcare Facilities, approved an updated policy directive Oct. 1 for Murdoch and the other facilities under his supervision. "In accordance with the National Voter Registration Act of 1973, patients/residents receiving services of the facilities operated by the Division of State Operated Healthcare Facilities are to be provided the opportunity to register to vote or change voter registration information during their admission to the facility," stated the directive.
The directive says the policy applies to all patients who are U.S. citizens and are 18 or older prior to an election. It includes patients who have been adjudicated incompetent unless there is a specific court order stating that an individual's voting rights have been revoked. Facilities are not required "to actively offer voter
registration to patients or residents who are able to safely participate in the process until such time as the patient or resident is able to safely complete the process."
Rep. Marilyn Avila, R-Wake, told CJ that she is concerned about several voting issues, including the rights and procedures for voting among persons who have been declared mentally incompetent. "I expect the General Assembly will look into that issue next year," she said.