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Dementia and the Voter

Research Raises Ethical, Constitutional Questions

By Shankar Vedantam
Washington Post Staff Writer
Tuesday, September 14, 2004; Page A01

Florida neurologist Marc Swerdloff was taken aback when one of his patients with advanced dementia voted in the 2000 presidential election. The man thought it was 1942 and Franklin D. Roosevelt was president. The patient's wife revealed that she had escorted her husband into the booth.

"I said 'Did he pick?' and she said 'No, I picked for him,' " Swerdloff said. "I felt bad. She essentially voted twice" in the Florida election, which gave George W. Bush a 537-vote victory and the White House.

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As swing states with large elderly populations such as Florida gear up for another presidential election, a sleeper issue has been gaining attention on medical, legal and political radar screens: Many people with advanced dementia appear to be voting in elections -- including through absentee ballot. Although there are no national statistics, two studies in Pennsylvania and Rhode Island found that patients at dementia clinics turned out in higher numbers than the general population.

About 4.5 million Americans have Alzheimer's disease, the most common cause of dementia. Florida alone has 455,000 patients, advocates estimate.

Concern is growing that people with dementia may be targets for partisan exploitation in nursing homes and other facilities. Even without abuse, family members and caregivers may unduly influence close elections.

"Precisely because Alzheimer's disease insidiously erodes the ability to make reasoned judgments . . . it is somewhat unnerving to consider that patients with dementia may routinely contribute to selecting the leader of the free world," Victor W. Henderson and David A. Drachman wrote after the 2000 election in the journal Neurology.

Many people with mild dementia are able to understand the issues in an election, but experts say there is no way to test voter competence. While many states have laws governing who is eligible to vote, attempts to disenfranchise voters with dementia could face constitutional challenge. Unlike driving, which is a privilege, voting is a right.

"I think it's a very important issue, and I think it is striking how little law there is on the subject," said Erwin Chemerinsky, a political scientist and constitutional scholar at Duke University. Although the state could deny voting rights to people incapable of understanding what was at stake, he said, "the legal challenges are going to be on how that's defined."

Jennifer Mathis, a Washington lawyer at the Judge David L. Bazelon Center for Mental Health Law, a disability rights group, said: "Our voting system does not require intelligent voting or informed voting. The Supreme Court has said the idea of informed voting is too susceptible to abuse."

Advocates such as Mathis say that disqualifying groups of voters usually leads to discrimination. Paupers, slaves and women were once ruled incompetent to vote -- and recent scrutiny of people with dementia has led to allegations of abuse.

In California, for example, Democrats are suing the Veterans Affairs Medical Center in Menlo Park for preventing activists from talking to residents and homeless veterans. Lawyer Scott Rafferty, a member of presidential candidate John F. Kerry's steering committee, said he was turned away on the grounds that residents have dementia.

Rafferty said that most of the residents were of sound mind -- and that most were Democrats. He charged the Bush administration with suppressing Democratic turnout. The Department of Veterans Affairs said it was protecting patients and was required by law to keep out partisan activity.

About 45 states have laws that address whether people who are unable to look after their own finances or health are allowed to vote, Chemerinsky said. About 25 states automatically terminate the right to vote if a person is under the care of a guardian, Mathis added, but those laws are often arcane -- and unevenly enforced.

The result could hardly be worse: a pastiche of outmoded laws that are out of touch with current science and are being applied inconsistently and arbitrarily. Many competent people in nursing facilities are being prevented from voting, advocates say, even as caregivers of other patients with severe dementia vote on their behalf.

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