Nine words in the Maine constitution were found to be unconstitutional 22 years ago, yet remain in the state’s guiding document. Voters will decide in November if they should be removed.

Every Maine resident aged 18 and over who is also a U.S. citizen can vote, “excepting persons under guardianship for reasons of mental illness,” according to the state constitution. 

Maine’s Secretary of State Office has not enforced the prohibition on voting for more than 20 years, since a federal judge ruled that the disenfranchisement of some people with mental illness violated federal anti-discrimination laws and the U.S. Constitution.

Maine and Vermont are the only states that do not restrict citizens’ rights to vote in some fashion, Bellows said. Some states prohibit people in prison from voting, and others prohibit convicted felons from voting.

Guardianship restricts a person’s ability to make their own decisions. Probate judges decide in Maine whether adults incapacitated by age, disability or mental illness can safely make their own decisions or if they need a guardian to make choices about housing, medications or finances on their behalf. 

Question 8 on the ballot this November asks voters if they would like to remove the phrase “excepting persons under guardianship for reasons of mental illness” from the voting rights section of the state constitution.

The constitutional amendment received bipartisan support from state lawmakers earlier this year. It will be decided by voters.

“Maine voters should vote ‘yes’ to this question to demonstrate that we are a welcoming state that upholds the principle of the freedom to vote for all,” Bellows said. “We should be very proud of that record of extending the right to vote to every Maine citizen, and our constitution language should reflect that pride.”

“My hope is that the voters will reject the antiquated language of the past that is not even legally enforceable and finally align our constitution with our principles and the law today,” she added. 

The Maine constitution has been amended 175 times since it went into effect on March 15, 1820, according to state records.

Only men could vote under Maine’s early constitution. Later the state constitution blocked paupers, people under guardianship and Native Americans from voting, until 1954 when Native Americans were given the right, leaving “paupers and persons under guardianship” exempted from voting.

In 1965 lawmakers and voters changed the constitution again, this time, “excepting persons under guardianship for reasons of mental illness.” 

Voters rejected attempts in 1997 and 2000 to remove the same language from the constitution. This November is the first time they will take up the question since a federal judge said it was unconstitutional.

The question comes before voters amid increased scrutiny of guardianships in Maine and the state’s antiquated probate court system, which is run by part-time, elected judges. 

The Maine Monitor has revealed several examples of spotty oversight of public guardianships.

The question before voters this November is one small aspect of a large system that includes some 1,200 adults under public guardianship of the state Department of Health and Human Services, and thousands of people under the guardianship of family members. 

The exact number of adults in guardianships in Maine is unknown because several probate courts said they don’t track it, the Monitor reported. 

‘It’s due time to change’

In a landmark decision, U.S. District Court Judge George Z. Singal ruled in August 2001 the state could not restrict people under guardianship for reasons of mental illness from registering to vote or voting.

Disability Rights Center, now called Disability Rights Maine, brought the lawsuit “Doe v. Rowe” on behalf of three women who were under guardianship due to mental illness diagnoses and wanted to vote in the 2000 election. 

“The state has disenfranchised a subset of mentally ill citizens based on a stereotype rather than any actual relevant incapacity,” Singal wrote.

Mark Joyce, a managing attorney with Disability Rights Maine, represents individuals diagnosed with mental illness. There continues to be a risk that people under guardianship will be disenfranchised because of the plain language still in the state constitution. 

“The problem that we’ve had is that the constitution reads this way but the law is not that way,” Joyce said. “So there’s confusion when people are reading the constitution.” 

Disability Rights Maine perennially has to educate people about their right to vote. Some Maine newspapers have continued to reference the restriction in the constitution even after the state stopped enforcing it, Joyce said.

“It’s due time to change it,” Joyce said.

While the prohibition isn’t enforced, the language in the constitution is still viewed as discriminatory by families whose loved ones are in guardianships. 

Cheryl Ramsay gave birth to identical twin boys, Derek and Scott, a minute apart by cesarean section on April 5, 1986. They grew up in Topsham, and both were later diagnosed with schizophrenia.

Scott Ramsay, now 37, spent a year at the Riverview Psychiatric Center in Augusta twice during his early 20s. During his second admission, Cheryl Ramsay said it was recommended she apply to be Scott Ramsay’s guardian through the Kennebec County Probate Court so she could sign paperwork and approve medications on his behalf.

Cheryl Ramsay was granted full guardianship of Scott Ramsay in 2010. The order left his voting rights intact, which Cheryl Ramsay said she is grateful for even though Scott Ramsay has never expressed interest in voting.

“There’s a presumption of incompetency just because guardianship is in place, and I just don’t feel that should be the case,” Cheryl Ramsay said. “There’s all kinds of different situations where a guardianship may have been put in place. In terms of Scott, getting guardianship was one of many difficult pieces of the journey that we’ve been on, and it wasn’t anything that I took lightly.”

“We have to be incredibly mindful that just because someone has a mental health challenge or they’re experiencing a mental health crisis, it does not negate their constitutional rights,” Longley said. 

Longley said it is “horrific” that Maine has allowed discriminatory language that restricts the voting rights of one group to remain in its state constitution.

One voice of opposition is Matthew Gagnon, who is the chief executive officer of the Maine Policy Institute, a free market policy think tank.

Writing a column in the Bangor Daily News, Gagnon notes guardianship is too broad to be used as a proxy to determine whether someone has the mental capacity to vote. He would prefer a more narrowly tailored approach that defines mental incapacity more precisely.

The November ballot question, he said, leaves voters with two bad options.

“If we vote yes, we remove a constitutional provision that seeks to prevent those who can’t make rational decisions from voting. If we vote no, we undoubtedly prohibit people who actually can reason through decisions from exercising a right they should possess, and we leave a provision on the books that has been ruled invalid in court,” he wrote in the Bangor Daily News. 

Voting rights still vulnerable

Although a federal court found it to be unconstitutional for Maine to automatically take away the voting rights of all people under guardianship for reasons of mental illness, the state still can have laws restricting voting rights, said Joyce, the Disability Rights Maine attorney.

“The state can make these laws that do impact fundamental rights, but there is a very big body of law about restrictions about how they would be able to do it,” Joyce said.

State law says adults under guardianship retain three rights: to vote, marry and have a lawyer.

But state law also allows probate judges to restrict voting rights of an adult under guardianship as long as they explain their specific reasons why they believe the adult cannot vote.

“A court order removing the right to vote must include a finding that the adult cannot communicate, with or without support, a specific desire to participate in the voting process,” according to Maine law.

Lyman Holmes was first elected the Washington County Probate Judge in 1989. He cannot recall in his 34 years purposefully restricting a person’s right to vote. 

Maine’s probate laws were heavily revised in 2019. It is possible under the old laws that people lost their right to vote automatically when Holmes approved a guardianship, he said.

“I thought the federal case has done away with that, but on an individual basis I guess it gives us the right to deny a person a right to vote,” Holmes said.

David Paris, who was elected the Sagadahoc County probate judge in 2020, said he also hasn’t taken away the right to vote during any guardianship proceedings.

“I have never restricted any voting privileges in any guardianship that has come before me as Probate Judge nor could I fathom any circumstance that would be appropriate either,” Paris wrote in an email.

Voting is the way for people to participate and have a say in how their government operates from the local to the federal level, Hickman said. Voting also allows people to have a say in if their rights are supported or infringed upon.

“Our vote is our voice,” Hickman said. “It’s the primary power that we have as individuals in a democratic society.”

Finding the political will

Maine’s constitution is a “unique” and “quirky” document, Hickman said. He proposed the Legislature form a study commission to review the entire constitution, but the bill didn’t gain enough support this year and did not pass.

Election Day will be the 56th anniversary since Maine voters approved a constitutional amendment to repeal registers of probate and part-time probate judges as elected officials and to replace them with a system of full-time probate judges.

The constitutional amendment would not take effect until the Legislature created a probate court system with full-time judges. State lawmakers have completed numerous studies and proposed bills to transition the probate courts to a system with full-time judges, but the Legislature has not approved any of the proposals.​

A Monitor investigation this year uncovered that Maine’s 16 independent probate courts have too few employees and insufficient budgets to consistently screen, train or monitor the guardians that probate judges appoint. Most probate courts do not know how many guardians they have approved or whether the people under guardianship are still alive. 

The probate courts do not employ full-time investigators to check on adults after they’ve been placed under guardianship. Probate judges instead depend on a once-a-year report to learn about the care and well-being of incapacitated adults, sometimes with devastating outcomes, as was the case of Norman Fisher, who died in 2019, the Monitor reported.

Probate Judges also infrequently opt for a less restrictive alternative to guardianship, known as “supported decision-making,” which judges are required to rule out before appointing a guardian. 

In the past three years, eight individuals under public guardianship of the state have died in unexplained ways, the Monitor reported in September.

Lawmakers including Hickman, who is chairman of the Government Oversight Committee, are now demanding answers from the state Department of Health and Human Services after it failed to report these kinds of deaths to legislators for more than 25 years.

“At some point the Legislature is going to have to find the political will to do something that establishes a probate court system that hires full-time judges, because that’s what the constitution has told the Legislature to do,” Hickman said.