State Law Controls Voter Qualification by Hammerle Finley Law Firm

For well over a century, idiots and lunatics were prohibited from voting in Texas. There had been some discussion about also prohibiting drunkards, but that was dropped when the legislators realized it would disqualify most of them.

Texas has not been alone in its thinking. Eleven states still have laws banning “insane persons” or those who are “non compos mentis” from voting. More than 25 states ban people who have a court-determined incapacity.

Notably, no state prohibits idiots or lunatics from running for, or holding, public office.  There is a lesson in there somewhere.

In 1982, the Texas idiot and lunatic voting law ran into some trouble when the Texas Attorney General opined that it was not up to an election judge to determine whether a potential voter was an idiot or lunatic. Yet the law remained on the books until 2001, when a new law containing more precise language replaced it. Now a person is prohibited from voting if a court has determined, by final judgment, that he or she is either totally mentally incapacitated or is partially mentally incapacitated without the right to vote.

This whole notion of taking away someone’s right to vote because of mental illness or cognitive or emotional impairment is a bit controversial. Some people have opined that it disenfranchises a group that is especially vulnerable. There is not, however, a federal law prohibiting it.

That brings up the push-pull between federal laws and state laws. The right to vote is given by the US Constitution, which is further fleshed out with 4 constitutional amendments.  However, the right to establish a voter’s qualifications is left up to individual states. Those qualifications could be related to residence, citizenship, criminal record or mental capacity.

So it has come to pass that your address determines which set of qualifications you must meet in order to vote. You could be disqualified by one state’s laws only to be qualified under the laws of a different state. For example, while convicted felons in Vermont and Maine never lose their right to vote, convicted felons in Texas cannot vote until they complete their sentence, including any parole or probation.

Mental capacity is another state-specific rule. In Texas, mental capacity is a legal determination made by a judge with probate jurisdiction. We start out with a presumption that every person has mental capacity. It takes a court case and a final judgment signed by a judge to remove that presumption.

Boiled down, that means that a lot of people living in Texas who are mentally ill, have dementia, or have some other type of incompetency can still legally vote merely because their case has never come before a judge.

While that may be a bit disconcerting, consider that there are a number of studies that conclude that people with mental illness or mild dementia demonstrate voting patterns that are common with their geographic area.

As to understanding the issues in an election, one survey revealed that hospitalized psychiatric patients revealed a high level of political knowledge.

Those are the basics. You are free to draw your own conclusions.

Virginia Hammerle is a Texas attorney whose practice includes estate planningguardianship and probate. Sign up for her newsletter at Contact Hammerle Finley Law Firm to schedule a consultation at

This column does not constitute legal advice.