Mr. Robert R. Osgood
State Council for Persons with Disabilities
Margaret M. O'Neill Building
P.O. Box 1401
Dover, DE 19903
RE: Voting By Incompetent Persons
Dear Mr. Osgood:
You have asked whether the language "idiot or insane person" as it appears in 15 Del. C. § 1701 and "idiot or insane" as it appears in 15 Del. C. § 1703 is contrary to superceding law and unenforceable. These laws, part of Delaware's election code, address qualifications for voting and proscribe voting by "idiots" and "insane persons." We note that the language "idiot or insane person" appears in the Delaware Constitution as well as the election code. Del. Const. art. V, Section 2.(1) This opinion memorializes the extensive discussions and recommendations we have made to the Department of Health and Social Services and the Commissioner of Elections over the past several months. As discussed below, we conclude that §§ 1701 and 1703 are enforceable, provided that the language is interpreted to prohibit voting only by persons who have been adjudged mentally incompetent by a court of law. However, as discussed below, we recommend that each of these sections be rewritten to eliminate the phrase "idiot or insane" and to proscribe voting by persons adjudged mentally incompetent by a court of law. Our analysis is based largely on principles of statutory construction and constitutional law.
The terms "idiot" and "insane persons" are not defined in the election code. Principles of statutory construction authorize reliance upon dictionary definitions to define the meaning of these terms. Moore v. Wilmington Housing Authority, Del. Supr., 619 A.2d 1166, 1174 (1993). "Idiot" is not defined in Black's Law Dictionary. However, it is defined in American Heritage as follows: "[A] person of profound mental retardation having a mental age below three years and generally being unable to learn connected speech or guard against common dangers. The term belongs to a classification system no longer in use and is considered offensive."(2) American Heritage Dictionary (3d ed. 1996). Black's Law Dictionary defines insanity as "more or less synonymous with mental illness or psychosis." Black's Law Dictionary 794 (6th ed. 1990). Merriam-Webster defines insanity as "a deranged state of the mind usually occurring as a specific disorder (as schizophrenia) and usually excluding mental retardation, psychoneurosis, and various character disorders." Merriam-Webster OnLine: WWWebster Dictionary. 1997. http://www.m-w.com/dictionary.htm (18 April 2000). These definitions are consistent with the discussion in In the Matter of Susan S., Del. Ch., C.M. No. 7764, Allen , C. (Feb. 8, 1996)(adopting final report of Master Kiger) at 5, which stated "While the general usage of the terms 'lunatic' and 'idiot' has been loose and coarse, the law ascribes different meanings to these words. It has traditionally distinguished between lunatics and idiots by holding that the former are people who once had the ability to reason, but lost it through 'disease, grief or other accident,' or 'by visitation of God.'" (citations omitted). For these reasons, we conclude that the prohibition on voting by "idiots" and "insane persons" applies to persons with a mental disability. Given this interpretation, the next issue is whether the interpretation is sufficiently narrow as to be consistent with the concept of due process.
We apply the principle of statutory construction that imposes a duty to interpret the terms "idiot" and "insane" as used in Delaware's election code and Constitution so as to avoid constitutional infirmity. Moore v. Wilmington Housing Authority, 619A.2d at 1173 ("a court has a duty to read statutory language so as to avoid constitutional questionability and patent absurdity and to give language its reasonable and suitable meaning." (Citations omitted)). Indeed, we are required to interpret these terms as constitutional even if the interpretation strains the statutes that contain the terms. Mills v. State, Del. Supr., 256 A.2d 752, 758 (1969)("If this appears to be a strained construction of §4702(c), it is to be remembered that a strained construction of a statute is permissible to save it against constitutional attack so long as the construction is not carried 'to the point of preventing the purpose' of the statute." (Citations omitted)). Consistent with these principles, we have reviewed, and find persuasive, the relevant caselaw from jurisdictions other than Delaware that have interpreted like prohibitions on voting.
Rejecting the proposition that residency at a state school for the mentally retarded categorically disqualifies persons with mental retardation from voting, the Superior Court of New Jersey stated "...but we should say at least this much, that a mentally retarded person need not be a 'idiot' and a mentally ill person need not be 'insane.' We leave for another day the determination of where to draw the line of demarcation, beyond which disenfranchisement results." Carroll v. Cobb, N.J. Super., 354 A.2d 355, 360 (1976). The Supreme Court of Massachusetts, faced with a similar issue, ruled that persons with mental retardation may not be precluded from voting simply because they live at a state-operated facilities for persons with mental retardation. Recognizing its duty to interpret the statute so as to maintain its constitutionality, that court stated that "[the words 'persons under guardianship'] could not have been intended to foreclose competent adults from exercising the franchise. We cannot read the language loosely because to do so would tend to deprive numerous persons of a basic right of citizenship." Boyd v. Board of Registrars of Voters of Belchertown, Mass. Supr., 334 N.E. 2d 629, 631 (1995). Finally, an Ohio trial court wrote "[f]rom my review of legal literature going back to 1800 it seems apparent that the common definition of the word 'idiot,' as understood in 1851 when our present constitution was in the main adopted, meant that it refers to a person who has been without understanding from his nativity, and whom the law, therefore, presumes never likely to attain any. I am unable to find anything indicating any real change in this definition to this date. Our Mr. J is clearly not an idiot. The words 'insane person', however, most commonly then as now, refer to a person who has suffered such a deprivation of reason that he is no longer capable of understanding and acting with discretion and judgment in the ordinary affairs of life." Baker v. Keller, Ohio Ct. Com. Pleas, 237 N.E. 2d 629, 638 (1968). Despite Mr. J's multiple hospitalizations for treatment for mental illness, Mr. J had never been adjudicated incompetent and therefore was deemed by the Court to be qualified as an elector. Id. at 640.
We agree with these courts' interpretation that the right to vote turns upon legal competence, not simply the diagnosis of mental illness or the residency of a person with mental illness. Accordingly, we conclude that the language, "idiot" and "insane persons," should be read to mean persons who have been adjudged incompetent by a court of law. We conclude that such a prohibition is enforceable.
The United States Supreme Court has characterized the right to vote as "of the most fundamental significance under our constitutional structure." Burdick v. Takushi, 504 U.S. 428, 433 (1992)(Citations omitted). When a state statute or constitution seriously interferes with the right to vote, the state provision is subject to strict scrutiny. Kramer v. Union Free School District, 395 U.S. 621, 633 (1969); Harper v. Virginia Board of Election, 383 U.S. 633, 670 (1966). Our interpretation of Delaware's election code and Constitution will cause disenfranchisement of a narrow class of Delaware residents -- persons adjudicated incompetent by a court of law. We believe that a court would apply a strict scrutiny analysis to these provisions. The provisions will be upheld only if they are "narrowly drawn to advance a state interest of compelling importance." Norman v. Reed, 502 U.S. 279, 289 (1992).
No courts in Delaware have addressed the constitutionality of disenfranchising persons adjudged incompetent by a court of law. However, the issue has been addressed by courts in other jurisdictions. Courts that have addressed the issue of voting by persons adjudged incompetent by a court of law have upheld the power of the state to prohibit voting by such persons. See Miller v. State Board of Election, N.D. Ill., No. 89 C 2444, Parsons, J. at 2 (April 10, 1989); 1989 W L 36212 (Illinois does not prohibit voting by persons with mental incapacity but it does prohibit voting by persons who are mentally incompetent, which is consistent with federal law); Manhattan State Citizens' Group v. Bass, 524 F. Supp. 1270 (discussing with approval a New York law that prohibits voting by persons adjudged incompetent but striking down a New York law that prohibits voting by persons involuntarily committed to hospitals). The interest cited by states is the interest in an electorate that has the ability to cast a rational vote. We believe that an interpretation of Delaware's election code and Constitution to prohibit voting only by persons with mental illness adjudged incompetent by a court of law is narrowly drawn to further just this interest.
There are restrictions on the power of the state to proscribe voting even by persons adjudged incompetent. First, a finding of incompetence by means other than judicial findings may be constitutionally deficient. Manhattan at 1275 n.11. Second, courts have ruled that a judicial order of involuntary commitment is not a judicial finding of mental incompetence and is not constitutionally sufficient when used as a ground for disenfranchisement. Id. at 1273-1275. We believe that a Delaware court would rule the same way on these issues, and interpret the statutory and constitutional provisions to be so applied.(3)
Although we believe that one may construe the language "idiots" and "insane" to be legally enforceable, we do not recommend leaving the language unchanged. First, the language "idiots" and "insane" is outdated, having been enacted over 100 years ago. 21 Del. Laws Ch. 36 (enacting statutory qualifications for voting). Although the language may have been acceptable terminology when the statutes were enacted, the language now is strongly pejorative and so imprecise that its interpretation requires significant legal analysis. We recommend legislative amendments to both 15 Del. C. § 1701 and § 1703 and article V of the Delaware Constitution to bring the words of these legislative enactments into comprehensible modern parlance. We recommend that both article V, Section 2 of the Delaware Constitution and 15 Del. C. §§1701 and 1703 be legislatively amended to replace the language "idiot," "insane," and "insane person" with the language "person adjudged incompetent by a court of law."
We believe this addresses the inquiry contained in your request. Please do not hesitate to contact us if you would like further assistance with this issue.
Very truly yours,
A. Ann Woolfolk
Deputy Attorney General
Michael J. Rich
cc: M. Jane Brady
1. This provision reads: "...and no idiot or insane person, pauper, or person convicted of a crime deemed by law felony, or incapacitated under the provisions of this Constitution from voting, shall enjoy the right of an elector;..."
2. We are mindful of the definition of "mentally ill" that appears at 1 Del. C. § Section 302 (11). We do not believe this definition is significant in this analysis. It defines "mentally ill" but not "idiot."
3. The distinction discussed in cases from other
jurisdictions between the findings that support an order of commitment
and the findings of incompetence exists in Delaware as well. The finding
to support the commitment signed by a Delaware Superior Court Commissioner
and adopted by the Delaware Superior Court is that the person being committed
is unable to make a responsible decision concerning the need for treatment
for his mental illness. This does not necessarily mean that such person
is mentally incompetent to conduct any of his personal or business affairs.
Therefore, we believe that commitment to a hospital for treatment, standing
alone, does not permit disenfranchisement.
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