Should people with intellectual disabilities be allowed to vote? What about those with dementia?

The Waikato Times has carried a couple of interesting stories in recent days about the issue of people with intellectual disabilities being entitled to vote. The first revolved around the family of a woman with "the mental age of a 2-year-old" concerned that she was allowed to vote at all.

And a second, more wide-ranging piece published today carries allegations that some caregivers regularly influence their client's voting intentions:

"By the time they [clients] get taken to the voting booths, they already know the colour that they have got to vote for," the former staffer said. "They get told things like you can vote for whoever you like but Labour is the only political party that cares what happens to you."

This is, of course, just a claim by an anonymous individual, so let's not treat it as gospel truth. And what is alleged isn't of itself illegal - the Electoral Act only requires that a person helping someone else to vote mark the ballot paper "in accordance with the instructions of the voter"; as well as prohibits "interfer[ing] with any elector, either in the polling place or while the elector is on the way to the polling place with the intention of influencing the elector or advising the elector as to the elector’s vote."

So even if caregivers really are encouraging (instructing?) their clients to vote in a particular way in the days running up to the election, they aren't breaking the law as long as they stop doing so when taking them to cast their vote (as well as mark the ballot paper as their clients want, if their client needs their help to do so). They may, however, be acting in a somewhat dubious ethical fashion, given the nature of the power imbalance between them - although again we have to be a bit careful with that conclusion. After all, assuming that people with intellectual disabilities are just passive clay that can be moulded into any shape by others is a pretty demeaning position to take. And for many in care, their caregivers will be friends with whom they discuss all sorts of issues - including politics - just as everyone else does.

(I admit that if the allegations in the Waikato Times article that management were instructing caregivers to influence their clients to support Labour are true, then that is completely outrageous and wrong. But, as I say, they are as yet anonymous allegations only.)

Furthermore, even if the reported actions are correct, it doesn't really matter that much in terms of what will happen on September 20th. According to IHC's 2014 Annual Report, it provides services through its various subsidiary agencies to some 7000 people. Not all of these people will then require any help to vote (if they vote at all); and no doubt some will vote with the help of family members, etc, who may well be exerting a different political influence over them. So even at its worst - even if there is a systemic effort by at least some carers to pressure people with intellectual disabilities into voting for a party (Labour, say) - it isn't really likely to change the election outcome.

What is perhaps a more important issue, certainly long-term, is individuals who suffer from forms of dementia. At present, there is nothing in the Electoral Act that specifically prevents them from being enrolled and casting a vote (although, as I'll get to, there are provisions that appear to stop those suffering from severe dementia from doing so in practice).

John Barrett discussed this issue in a 2011 article in the New Zealand Law Review (not freely online, sorry, but the full citation is John Barrett, "The Young, the Senile and the Franchise" [2011] New Zealand Law Review 1). He outlines the problem like this:

A person over the age of 80 has a 20 per cent likelihood of developing Alzheimer's disease. It is estimated that by 2050 some 147,000 New Zealanders (of a projected population of 4.6 million) will suffer from dementia (mostly Alzheimer's) compared with a projection of approximately 75,000 in 2026 (of a population of 4.48 million) and some 41,000 (of a population of 4.3 million) in 2008. In the light of this demographic shift, the issue of mentally incapable people voting cannot be considered trivial. Elections are commonly decided by small margins, and older people are more likely to vote than younger people. Allowing people "with cognitive impairments so severe that they are unaware of the very nature of the process in which they are participating to vote" may challenge the concept of voting as a rational act, and facilitate electoral fraud. When a sufficient proportion of the voting population lacks requisite mental capacity, some means of excluding incompetent voters must be considered if the electoral process is to maintain its integrity. Whether these means can be consistent with respect for human dignity or social solidarity is not obvious.

He then goes on to cautiously advocate for creating a system to prevent future threats to the integrity of the voting system by preventing those suffering from dementia from registering to vote (while, it should be noted, also suggesting that there are grounds for lowering the voting age to 16):

A notification agent could be charged with informing the relevant registrar that an elector has become senile and should be removed from the electoral roll. The informant could be the senile elector's welfare guardian or attorney with an enduring power of attorney, but could be any registered elector, such as a caregiver. Certification of a person's electoral incompetence would be made by her physician and confirmed by a gerontologist. This decision would be based on the application of a socially negotiated national competence standard to the senile elector's particular circumstances.

Whether this really is needed is debatable. Even if, with increasing rates of dementia in the future, there does exist a much larger pool of voters that can be taken advantage of (in the sense of being used by others to cast votes they didn't actually want to cast), the effect of this would seem to be evenly distributed. Dementia is an equal opportunity curse, so those suffering from it will come from familial backgrounds of all different political hues. If those families then take advantage of their relative's diminished mental capacity to (in effect) vote for them, then you wouldn't really expect the effect to generally favour one party over another.

Well, what about those suffering from dementia who end up not in the care of their families, but in residential care facilities? Doesn't this represent a potential pool of votes that could be improperly manipulated by the staff of those facilties in favour of one party or another (as is alleged in the Waikato Times article, only on a much larger scale)?

Possibly - but only if such individuals are able to cast votes at election time. And interestingly, it appears that in practice they are being stopped from doing so. According to the Waikato Times article:

In Hamilton, Bupa Rossendale and Dementia Care Hospital manager Adriana Ciolpan said their 90 residents were deemed incompetent by medical professionals and could not vote.

"Medically, they are not deemed able to vote. They are all under power of attorney," Ciolpan said.

"We follow legal requirements.

"We can't make them vote. We cannot accept voting papers for them because we don't want someone else to abuse them. They have been deemed incompetent and that's a legal document," she said.

"All the letters we receive, we send them back saying they're incompetent and can't vote. It should be the same everywhere," Ciolpan said. "But if they are not deemed incompetent by a doctor, we cannot stop them from voting."

As I mentioned earlier, there's nothing in the Electoral Act that specifically says a doctor or anyone else can "deem" someone to be unable to vote. It's not a ground for disqualifying someone from registering to vote under s.80, and all registered voters are entitled to vote under s.60. Furthermore, everyone who is eligible to register (and, remember, mental capacity is not a disqualifying ground) actually must register to vote under s.82, while anyone who has "a physical or mental impairment may apply for registration ... through a representative" under s.85.

However, when it comes actually casting a vote, s.168 sets out the process that must be followed:

The voter, having received a ballot paper,—

(a) shall immediately retire into one of the inner compartments provided for the purpose; and

(b) shall there alone and secretly vote—

(i) by marking the party vote with a tick within the circle immediately after the name of the party for which the voter wishes to vote; and

(ii) by marking the electorate vote with a tick within the circle immediately before the name of the constituency candidate for whom the voter wishes to vote.

This process is then amended slightly in s.169 for:

any elector who is wholly or partially blind, or (whether because of physical handicap or otherwise) is unable to read or write or has severe difficulty in reading or writing, or is not sufficiently familiar with the English language to vote without assistance ... .

Such a voter is entitled to request that someone accompany them into the voting booth;

and the ballot paper may there be marked by the voter with the assistance of the [other] person ... or may be marked by the [other] person ... in accordance with the instructions of the voter.

Note what is common across the voting process. The marking of the ballot paper must be done in accordance with the voter's intentions. So, in a case where the voter is incapable of forming a voting intention - as, where, a person has been "deemed incompetent by medical professionals" - then they cannot complete the voting process as required by the Electoral Act.

Whether that is sufficient protection for our electoral processes is, as I say, debatable. And as John Barrett notes:

At present, it seems politically implausible that government in New Zealand might have the will to disqualify the senile from registering to vote: the opportunities for an opposition party to garner the electoral support of the elderly would be too great a risk to assume.

Or, to put it another way, what do you think Winston could do with this issue?