Voting rights are on everyone’s mind right now and getting a lot of media attention this Presidential election cycle.  What has not received much attention, however, was a recent Court of Appeals case in Arizona, Wood v. Coconino (In re Wood) No. 1 CA-CV 22-0710 (Ariz. App. May 30, 2024), that held persons under general guardianship no longer automatically lose the right to vote.

For context, capacity to vote arises in guardianship proceedings when an individual is no longer able to care for themselves and manage their financial affairs. The Arizona Constitution provides that “[n]o person who is adjudicated an incapacitated person shall be qualified to vote at any election”.  Prior to this case, when the Court placed someone under general guardianship having made a finding the individual was incapacitated- unable to make decisions for themselves due to mental or physical illness, disability, or other chronic conditions- that individual automatically lost his or her right to vote.

But then came Ms. Wood.  In re Wood, the superior court determined that Ms. Wood, a 63-year-old woman residing in an assisted living facility, needed a guardian to make her financial and medical decisions. She had been diagnosed with dementia and other cognitive impairments, including memory loss, anxiety, and depression. Although Ms. Wood agreed she required a guardian to assist with medical decisions, she still wished to retain her right to vote. To determine whether Ms. Wood retained sufficient understanding to vote, the court asked her a series of questions. The court ultimately concluded she did not provide clear and convincing evidence to support that she retained sufficient understanding to vote and denied her request. Ms. Wood then challenged the constitutionality of the guardianship statutes under the Due Process Clause of the 14th Amendment to the extent the statutes disenfranchise her and other wards.

On appeal, the court sided with Ms. Wood, holding that Arizona’s guardianship statutes violate the due process rights of wards to the extent they terminate their right to vote under a general guardianship without an assessment of the ward’s voting capacity. Moreover, the court held that the existing process improperly shifts the burden to the ward to prove they possess a “sufficient understanding to exercise the right to vote” under limited guardianship.

The court concluded that 1) terminating a ward’s right to vote without a hearing to assess the ward’s voting capacity and 2) placing the burden of proof on the ward to prove their voting capacity violate due process. In doing so, the court shifted the burden of proof to the guardian to prove by clear and convincing evidence that the ward lacks the capacity to vote. The court also clarified the definition of a “sufficient understanding to exercise the right to vote” as having enough comprehension to know that one is expressing a preference on a ballot for a particular candidate for a political office or, for or against a policy measure. The court made clear, however, that this analysis must be detached from “the wisdom of a particular vote (or a particular voter),” as this determination is subjective.

The court’s decision is likely to have a significant impact on wards in Arizona. Arizona courts must now hold hearings to determine a ward’s voting capacity prior to terminating their right to vote, and the petitioner seeking to become the individual’s guardian will bear the burden of showing that the ward lacks the ability to express their ballot preferences. The required clear and convincing evidentiary showing may result in fewer wards losing the right to vote. The court’s decision did not address how the holding will affect the voting rights of wards currently under guardianships in Arizona.

At Bivens & Associates, we routinely handle guardianship matters and will monitor developments with the Court in light of this recent ruling. We have already handled hearings in which the proposed guardian must prove by clear and convincing evidence voting rights should be suspended. If you need advice or assistance with the Guardianship/Conservatorship matter, we are here to help. Contact our office at 480-922-1010 or email info@bivenslaw.com to schedule a consultation today.