Older adults represent the nation’s most dependable voters, voting at the highest rate of any age group. But what about the roughly 2 million older adults who live in long-term care facilities? How do they exercise their right to vote? And what is needed to ensure they can?
Long-term Care Residents’ Right to Vote
Votes cast by residents of long-term care institutions are sometimes treated with suspicion. Indeed, in the 2020 presidential election, a Wisconsin sheriff treated the fact that nursing home residents had voted as evidence of election fraud.
This suspicion is misplaced. There is no evidence of systemic voting fraud in long-term care institutions, and reports of incidents are extraordinarily rare. Nor does residence in a long-term care institution have any legal bearing on an individual’s right to vote.
And while it is true that many long-term care residents have some level of cognitive disability, that does not mean they lack capacity to vote. Voting “tests” fortunately fell by the wayside after the Jim Crow era. Today, as a general matter, all that is required to vote is the ability to express a voting preference, and even individuals with substantial cognitive disabilities may be able to form and express voting preferences. Moreover, to the extent that states allow an individual’s right to vote to be removed on the grounds that they lack capacity, this can only be done through a court proceeding.
Barriers to Voting by Long-term Care Residents
While they have the right to vote, citizens who are residents of long-term care institutions frequently have disabilities that make it difficult or impossible to vote without assistance. Individuals with mobility disabilities may need help to access a polling place. But even if residents are voting by mail, they may need help. Individuals with poor eyesight may need help reading a ballot. Individuals with muscular conditions may need assistance marking the ballot accurately. Individuals with cognitive disabilities may need help understanding and complying with confusing voting procedures.
Living in a long-term care institution can intensify the need for assistance with voting. Residents in many long-term care institutions lack direct access to a U.S. post box, instead relying upon staff to send and deliver mail. The result: they may need assistance to obtain or return voter registration forms or ballots.
Living in an institution also can result in limited access to voting-related information, such as details on candidates or propositions, the time and place of elections, and election procedures. Residents may therefore depend upon staff assistance to obtain election-related information, including information about how or when to vote, as well as the means to comply with administrative tasks associated with voting (such as returning a ballot).
‘Long-term care residents’ difficulty voting is exacerbated by laws that increase the procedural complexity of voting.’
Long-term care residents’ difficulty voting is exacerbated by laws that increase the procedural complexity of voting. For example, voter identification laws, proof requirements for obtaining a mail-in ballot and burdensome witnessing or notarization requirements mean that long-term care residents need greater help to vote—and are more likely to be unable to vote if help is not readily available.
Unfortunately, the needed assistance isn’t always forthcoming. As Casey Smith and I document in a forthcoming article, nursing homes may fail to provide residents with the assistance they need to vote, even if they explicitly request it and are legally entitled to it. Lack of help can reflect not only the fact that staff have substantial other demands on their time, but also a failure to value and prioritize voting by residents, especially in non-presidential elections. And some facilities actively disenfranchise residents by only helping those residents who staff believe are competent to vote, a practice that experts reject as inappropriate, and which is arguably unconstitutional.
Legal Protections for Long-term Care Residents Who Need Help to Vote
Fortunately, federal and state laws provide important protections for voters living in long-term care institutions who require assistance with voting.
Federal law requires that nursing homes help residents who wish to vote. Under the federal Nursing Home Reform Act, nursing homes that accept Medicaid or Medicare funds must support residents in exercising their rights as U.S. citizens. That includes helping them to exercise their right to vote, as the Centers for Medicare & Medicaid Services explained in an October 2020 notice. Thus, a nursing home should enable residents to vote by ascertaining which residents want to vote, helping them fill out any application or satisfy other requirements to qualify for a mail-in ballot, assisting residents who need help reading and marking their ballots, and ensuring that ballots are submitted in compliance with state law. This is not merely best practice: it’s how they must act to comply with their legal duty to support residents to exercise their rights as citizens.
'It is important to speak up when others act in ways that undermine residents’ right to vote.’
Second, federal law entitles long-term care residents to receive help with voting from others who are willing to provide it. Section 208 of the federal Voting Rights Act gives individuals who need help with voting by reason of blindness or disability the right to have a person of their choice assist them with doing so. This means that a state cannot bar facility staff from providing such assistance. Accordingly, last July, a federal court struck down a North Carolina statute that had made it a felony for nursing home staff to assist residents with voting because the statute violated the Voting Rights Act.
In addition, some states have election procedures that provide additional assistance for these voters. For example, some states require or permit election officials to conduct supervised voting in nursing homes or residential care facilities more broadly. By bringing the ballot box to long-term care institutions, and providing officials who can assist with voting tasks, these states may make it easier for residents to vote.
How to Help
Aging services professionals, including those who work in long-term care, have an important role to play in protecting voting rights. There are three key things they should do.
First, it is important to educate staff and others who interact with residents so that they understand that residents have the right to vote. Otherwise, they may not only fail to help residents, but also may unjustly limit access to voting by residents who they think lack the capacity to vote.
Second, it is important to affirmatively offer residents assistance with voting. Although staff should avoid influencing residents’ voting choices, they should not shy away from assisting residents with administrative tasks associated with voting. To ensure that assistance is offered in a way that is fair and unbiased, assistance should be offered to all residents—even those that staff may not identify as likely voters. For example, a long-term care facility might make available information about registering to vote, and assistance with completing that registration, as part of its routine admissions process.
Third, it is important to speak up when others act in ways that undermine residents’ right to vote. This may mean speaking up if states fail to provide legally required assistance to long-term care voters. It may mean advocating against changes to election laws that increase the procedural complexity of voting. And, increasingly, it may mean objecting when candidates who have lost an election attempt to challenge election results by casting unfounded suspicion on votes cast by long-term care residents.
Why it Matters
Whether long-term care residents can vote is not a trivial issue. Voting is a fundamental right, a powerful symbol of membership in the community, and can be an important source of self-worth. The right to vote also provides long-term care residents with an important opportunity to defend their interests—interests that are often pushed to the wayside. Moreover, long-term care residents’ votes could be decisive in critical races.
Nina A. Kohn is the David M. Levy Professor of Law at Syracuse University College of Law, and a Distinguished Scholar in Elder Law with the Solomon Center for Health Law & Policy at Yale Law School.
Photo: Steve Heap
Photo caption: Voted Today button.
