RALEIGH — The director of state facilities for the mentally ill and developmentally disabled said his department will continue to offer annual voter registration and voting assistance for patients and residents. He also said that while efforts are made to notify patients’ guardians about voting activities, a patient’s right to vote takes priority over any objections from guardians.
J. Luckey Welsh, director of the Division of State Operated Healthcare Facilities at the Department of Health and Human Services, told Carolina Journal there are about 3,000 people residing in the state facilities. Voting records obtained by CJ showed only 73 individuals from six facilities cast votes that were accepted for the Nov. 6 election. Sixty-one of those voters were new registrants. “I think we allowed our citizens the right to vote. I am happy we allowed them to do it,” he replied.
The laws and rules governing voting by mentally challenged individuals remain murky, and it’s unclear whether state employees who assisted disabled patients and residents to cast ballots at early voting sites were complying with the law.
The registration drives were conducted for the Nov. 6 election even though federal law requires facilities to determine whether patients and residents want to register and want to vote at the time they’re admitted. The state stepped up its registration efforts this fall after a request to increase voter turnout at state-run facilities from Disability Rights North Carolina, a nonprofit that advocates for the rights of the mentally and developmentally disabled.
The N.C. Department of Health and Human Services operates 14 residential facilities. Managed by the Division of State Operated Healthcare Facilities, the facilities serve alcohol and drug abuse patients, the developmentally disabled, and the mentally ill.
Disability Rights North Carolina is a nonprofit organization serving persons with mental illness, developmental disabilities, and other disabilities. In 2007, Gov. Mike Easley designated the organization as the “protection and advocacy” agency for North Carolina.
As part of the Help America Vote Act, state protection and advocacy organizations such as DRNC have received specific federal grants aimed at improving voting access for persons with disabilities.
With the guidance of DRNC, employees of the Murdoch Developmental Center, a state-run facility in Butner for the mentally retarded and developmentally disabled, registered 36 new voters out of a total of approximately 500 residents. Only 12 residents actually cast ballots. Records indicate that there were no registered voters at Murdoch prior to the recent registration effort.
Chapel Hill killer
The recent voter registration efforts also resulted in the registration of Wendell Justin Williamson, who in 1995 killed two people in Chapel Hill and was judged not guilty by reason of insanity. Election records show Williamson, a patient at Central Regional Hospital in Butner, was registered on Sept. 13 as an unaffiliated voter. He cast an absentee ballot that was accepted Oct. 15 by the Granville County Board of Elections.
In a street shootout in January 1995 near the UNC-Chapel Hill campus, Williamson, a law student, used an M-1 rifle to kill two strangers. The not-guilty verdict caused a national furor.
Many residents in state facilities have been declared incompetent by a judge, and have been assigned guardians to make their decisions. A North Carolina law governing persons with the treatment of persons with mental health and developmental disabilities, G.S. 122 C-58, states that “each adult client of a facility keeps the same right as any other citizen of North Carolina to exercise all civil rights, including the right to dispose of property, execute instruments, make purchases, enter into contractual relationships, register and vote, bring civil actions, and marry and get a divorce, unless the exercise of a civil right has been precluded by an unrevoked adjudication of incompetency.”
Based on the above language, some guardians of persons who have been judged incompetent believe their wards have lost the right to vote.
In 1973, then-state Attorney General Robert Morgan’s office issued an opinion saying that the state constitution does not prohibit the incompetent from voting. Since then, North Carolina apparently has allowed persons judged incompetent to vote.
But that issue remains unclear to some. In an Aug. 21 memo from DRNC to the state-run facilities, the organization stated, “There is a misperception that individuals with guardians are not allowed to register to vote,” based on an incorrect reading of a state law. “Thus, there is no legitimate basis under state law for limiting the right to register and vote because someone has a guardian.”
Even if the right to vote is secure, other laws affect the act of voting. There are three basic ways to vote in North Carolina: Absentee by mail, early voting (aka one-stop absentee voting), and in-person voting on election day.
Class I felony
North Carolina General Statute 163-226.3 makes it a Class I felony for anyone other than the legal guardian or close relative of a hospital or nursing home patient to apply for an absentee ballot or fill out that ballot on the patient’s behalf. The law was enacted in the 1980s to prevent the political exploitation of elderly and disabled residents of hospitals and nursing homes. The lone exception allowed is if the hospital or nursing home asks the county board of elections to bring in a multipartisan team of registrars, trained by the county, to assist the patients.
According to G.S. 163-166.8, a voter who goes to the polls in person can receive assistance in voting from a close relative without stating a reason to polling place officials. If a voter is physically disabled, illiterate, or blind, he can ask for assistance from a polling place official or any other person he chooses as long as that person is not the voter’s employer, the agent of the employer, or an agent of the voter’s union.
State law treats ballots cast at early voting sites as absentee ballots, suggesting that staff members of state-run facilities are not allowed to assist patients or residents of with absentee ballots, even at early voting sites. When asked what safeguards DHHS takes to ensure that staff or an outside group doesn’t influence a resident’s choice when filling out a ballot or transporting the resident to the polling place, Welsh said, “Our staff knows they cannot do it.”
But Welsh told CJ that one incident at Cherry Hospital appeared to violate this law. He said a caregiver at Cherry had helped a patient complete an absentee ballot. DHHS spokesperson Julie Henry told CJ that the staff discovered the incident and hospital leadership reported it to local law enforcement official who then took it to the local district attorney. She said the district attorney did not pursue charges.
Voters by facility
State Board of Elections records examined by CJ show voting activity in six of the 14 facilities.
• J. Iverson Riddle Developmental Center in Morganton: eight voters (five new registrations), all voted by mail.
• Murdoch Developmental Center in Butner: 12 voters (all registered on Oct. 11), 11 early voting, one voted in person on election day.
• Black Mountain Neuro-Medical Treatment Center: four voters (one new registration), all early voting.
• Broughton Hospital in Morganton: 17 voters (12 new registrations), all voted by mail. Registrations totaled 81.
• Central Regional Hospital in Butner: 22 voters (all new registrations), 10 voted by mail, 12 used early voting. Registrations totaled 63.
• Cherry Hospital in Goldsboro: 10 voters (nine new registrations), three voted by mail, six used early voting, one voted in person. Total registrations were 34 with 21 of them new.
Don Carrington is executive editor of Carolina Journal.