Missouri elections clerk vows to remove people in court guardianships from voter rolls

In a rural Missouri county, people with a court-appointed guardian because of a disability may soon lose the ability to vote.

Pamela Grow, the Republican clerk of Phelps County in central Missouri, told the Phelps County Commission last week she would remove the voter registrations of all people considered by a court to be incapacitated — even if a court has expressly said a person has the ability to vote.

“I would submit, ‘How is a person who is unable to manage their own financial affairs to be allowed to vote on someone else’s taxes?’ That’s just kind of putting it a little bit bluntly,” Grow told the commission, according to a report in the Phelps County Focus.

“I don’t mean to be hard hearted, but you have to think about the people who are working hard, paying their taxes and voting. Where are their rights? Elections can be won or lost with one vote.”

Grow’s comments indicate she plans to directly challenge rulings by a court that preserve an incapacitated person’s right to vote. Her plans, which legal experts say would violate state and federal voting laws, come as voting rights advocates across the country worry about purges of voter registration lists ahead of the 2022 elections.

But, in Missouri, the removal of voters for mental capacity reasons has existed for years. Between the 2008 and 2016 election, the state purged more than double the number of voters for mental incompetence than any other state, an investigation by APM Reports and KCUR found in 2018.

“The bigger picture is that this is part of a phenomenon that’s going on in the United States to, in my opinion, deny people the right to vote,” said Mark Johnson, a partner at Dentons law firm in Kansas City who teaches election law at the University of Kansas School of Law.

It’s unclear how many voters would be removed from the voter rolls under Grow’s plan. She told the Phelps County Focus the figure would be in the “low double digits.”

The National Voter Registration Act allows states to remove voters due to mental capacity. But when an official removes a voter in defiance of a court order, that official is no longer operating under state or federal law, according to David Becker, executive director of the nonpartisan Center for Election Innovation and Research. Becker previously served as a senior trial attorney for the voting section of the U.S. Department of Justice’s Civil Rights Division.

“I don’t know any election official in the country that I’ve worked with that would ignore a clear court order and disenfranchise a voter in violation of state laws defined by the court,” Becker told The Star. “And that would be a violation of federal law as well.”

The dispute in Phelps County has renewed focus on a so-called conflict between the Missouri Constitution and state law that experts say needs to be clarified. State legislation or legal action could prevent local election officials from removing eligible voters from registration lists because of a court-appointed guardianship.

The state’s probate code allows judges to issue orders that preserve an otherwise incapacitated person’s right to vote and their abilities to drive a vehicle or get married.

But the state constitution is more broad.

It says: “No person who has a guardian of his or her estate or person by reason of mental incapacity, appointed by a court of competent jurisdiction and no person who is involuntarily confined in a mental institution pursuant to an adjudication of a court of competent jurisdiction shall be entitled to vote.”

Grow pointed to this discrepancy in a statement to The Star, saying that the state constitution does not address “partial incapacity.” She painted the decision as upholding her oath to the constitution. She said the Missouri Secretary of State’s Office told her that people deemed incapacitated “were to be deleted” from the statewide voter database.

“I do believe there are individuals who are categorized as partially incapacitated that likely have the ability to reason well enough to vote,” the statement said. “Perhaps the law needs to have a different category for them.

“I am really stuck here between the state’s constitution and court order establishing guardianship. It seems to me that this problem has been ignored by some, prior to my taking office, when it could have been addressed.”

JoDonn Chaney, a spokesperson for Republican Missouri Secretary of State Jay Ashcroft, said he “does support Missouri’s clerks and election authorities in their efforts to maintain accurate voter rolls.”

But he was “unaware of anyone in the secretary of state’s office giving information to clerks – specifically to the Phelps County clerk – to remove incapacitated individuals from the voter database even if a court order says otherwise.”

Voting rights advocates have been aware of the conflicting Missouri laws for years. In 2004, Bob Scaletty, a retired electrician with paranoid schizophrenia, challenged state law in court after he received a letter saying he could no longer vote. A federal appeals court in 2007 found that although Missouri law bans voting by people deemed “incapacitated,” the ban could not be applied across the board because probate courts have preserved the rights of some voters.

Over the last few years, legislation that would have allowed voters to amend the constitution to remove the voting ban for incapacitated people has gained little traction. A constitutional amendment proposed this year by Rep. Yolanda Young, a Kansas City Democrat, never reached the House floor for a vote.

Without a change to state law or a challenge in courts, more people under court-appointed guardianships could lose the ability to vote, said Denise Lieberman, director of the Missouri Voter Protection Coalition.

“I’ve represented such people in the past – people who maybe need some additional help at home, who may be physically frail, who may need just some help managing their finances, but who still fully are engaged, watch the news, participate, are able to vote,” she said. “And it’s those people that stand to be affected by this discrepancy.”

After reading Grow’s comments, Lieberman said she anticipates litigation.

“It’s definitely an issue that needs to be resolved in the law and it needs to be resolved in favor of the voter.”

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