2

If a person had a durable general power of attorney for another person as a result of that person being disabled but not incompetent, would it be legal to sign a ballot and cast a vote on their behalf?

There is another question with good answers about proxy voting for someone who is mentally incompetent here: POA & Proxy voting

However, this scenario is the opposite. It this case the person is able to communicate their preferences, but unable to fill in the marks or sign their name to a mail-in ballot. (the only option in Washington State)

0

2 Answers 2

2

In Vermont, if the voter is able to indicate his or her preferences, the question of whether a person with a POA for the voter can vote on the principal's behalf can be avoided. As explained in a Vermont Secretary of State website, the voter may bring someone to assist to the polling place, or an election official may mark the ballot in accordance with the voter's instructions. The "Vermont Justice of the Peace Guide" explains that the ballot may be delivered to the home of the voter with a disability by two Justices of the Peace and returned to the polling place.

1

Does a Durable General Power of Attorney extent to voting rights?

No.

A voter who is mentally competent, but is not physically able to mark a ballot (to give a simple example, because they do not have hands or feet and aren't agile enough with their mouth to do so), may direct someone (authorized by state law to do so) in their immediate physical presence and at their contemporaneous direction to do so for them. Depending on state law, often a disclosure that it is being done is required, and often at least one witness to this being done is required.

For example, in a Colorado, the following statutory rule applies to signing the envelope of a mail-in ballots, which must be marked and then have the envelope in which they are submitted signed (and also by other provisions allows the marking of the ballot to do done in this fashion):

If the eligible elector is unable to sign, the eligible elector may affirm by making a mark on the self-affirmation, with or without assistance, witnessed by another person

Colo. Rev. Stat. § 1-7.5-107(3)(b.5)(II) (in the pertinent part) (the complete set of state statutes pertinent to elections in Colorado is found in this 553 page pdf document).

In the case of in person voting, this is usually done by an elections judge at the polling place, although some jurisdictions allow someone else, such as a family member, to assist.

Almost every U.S. state, territory, commonwealth, and district follows a similar rule, differing primarily in how the assistance rendered must be acknowledged or disclosed, and in who is legally permitted to mark a ballot on behalf of a disabled voter.

But one can't use a durable power of attorney as a basis for doing so. A durable power of attorney purports to give the agent marking the ballot discretion in how it is marked, which is not allowed.

Assistance in marking a ballot, even when a human is involved, is conceptualized more as a tool, just like glasses or a stylus or a pen, to mark the ballot, rather than as an ordinary common law agency relationship.

You must log in to answer this question.

Not the answer you're looking for? Browse other questions tagged .