Lawyers debate Missouri's alleged ban on voting rights for mentally ill

ST. LOUIS -- Lawyers arguing a challenge to Missouri election law before a federal appeals court panel here disagreed Monday whether the state denies voting rights to some mentally ill people.

The lawyer for a mentally ill man in Kansas City said the Missouri Constitution and state law deny voting rights to Missourians assigned a guardian because of "mental incapacity."

Anti-discrimination law expert Samuel Bagenstos conceded that some counties have ordered individual assessments of those under guardianship to determine their competence to vote. But, he said, they have no authority, and are under no obligation to do so.

Bagenstos wants the court to declare what he calls the voting ban unconstitutional and in violation of the Americans with Disabilities Act. Ultimately, he said, it's up to the legislature to re-shape the law to allow for mentally ill people under guardianship to be assessed individually for voting competency.

A lawyer for the state, meanwhile, maintains Missouri does provide for individual assessments to determine whether a mentally incapacitated person is nonetheless competent to vote.

"No party in this suit is stopping anyone from voting," Assistant Attorney General Michael Pritchett said.

He said that Robert Scaletty, the mentally ill Kansas City man who filed the lawsuit, was declared incapacitated -- meaning he can't care for himself -- but found fit to vote.

Scaletty and the other plaintiff, Missouri Protection and Advocacy Services, sued Secretary of State Robin Carnahan. Bagenstos said Scaletty didn't get his voter registration card until after he filed the lawsuit.

U.S. District Judge Ortrie D. Smith ruled in July that Missouri law provides for people in guardianship to be assessed individually for competency to vote, and that there is no blanket denial of voting rights for those with guardians.

Bagenstos said a dozen states allow for individual assessments of mentally ill people under guardianship.

Thirty states categorically prohibit people under guardianship from voting. One such law, in Maine, was ruled unconstitutional in 2000.

Missouri maintains that states have leeway in establishing competency standards.

Retired U.S. Supreme Court Justice Sandra Day O'Connor, who's helping the appeals court this week, was one of three judges who heard the case and will decide its outcome. Her presence drew a packed courtroom.

Speaking from the bench, O'Connor referenced the majority opinion in a 2004 case, Tennessee v. Lane, which sided with paraplegics who claimed they were denied physical access to the state's courts, in violation of the ADA.

O'Connor asked Pritchett if he'd read the Lane decision, which addresses broader access to an individual's fundamental rights.

"I happened to join it," she said of the majority opinion. "I thought it covered voting."