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Official Opinion 95-27

Official Opinion 95-27

June 7, 1995
To: 

Director
Elections Division Office of the Secretary of State

Re: 

A judicial determination that a person is incompetent is required before a person may be denied the right to vote.

You have requested my official opinion as to whether a person must be adjudicated mentally incompetent by a court prior to being denied their right to vote and what constitutes "mental incompetence" for the purpose of this inquiry. It is my official opinion that a judicial determination must be made on a case-by-case basis where the reviewing judge specifically finds a person is mentally incompetent, which determination then results in the person losing their right to vote.

Georgia law provides that:

No person who has been judicially determined to be mentally incompetent may register, remain registered, or vote unless the disability has been removed.

Ga. Const. 1983, Art. II, Sec. I, Para. III(b). This constitutional provision is codified under O.C.G.A. § 21-2-216(b). These provisions clearly contemplate that a separate, judicial determination must be made that a person is "mentally incompetent" prior to the removal of a person's right to vote. See 1985 Op. Att'y Gen. 85-48 ("A judge of probate court may, in the course of a proceeding for the appointment of a guardian for an incapacitated adult, judicially determine a person to be mentally incompetent and thereby remove the person's right to vote.").

The Constitution and O.C.G.A. § 21-2-216(b) do not contemplate that a determination of any mental disability, such as mental retardation or substance addiction, is sufficient to remove a person's right to vote. 1985 Op. Att'y Gen. 85-48, p. 112. Instead a reviewing judge must make a specific factual determination, on a case-by-case basis, that a person is mentally incompetent. Id. Once such a determination has been made, then the incompetent person loses their right to vote. This is analogous to the situation where a person convicted of a felony involving moral turpitude also automatically loses their right to vote upon the conviction becoming final. See Ga. Const. 1983, Art. II, Sec. I, Para. III(a); 1986 Op. Att'y Gen. 86-15.

However, neither the Constitution nor the corresponding statutory provisions specifically define the term "mental incompetence." This term is not synonymous with mental disability, mental illness or mental retardation. 1985 Op. Att'y Gen. 85-48. Even where a guardian is appointed for an incapacitated adult, the law provides that there must be an independent determination of whether such an incapacitated person would also be "mentally incompetent" so as to lose their right to vote. O.C.G.A. § 29-5-7(f).

In trying to give content to the term "mental incompetence," you must first look to the intent of the General Assembly, keeping in view the problems which were addressed by the legislation. O.C.G.A. § 1-3-1(a). Words must be given the ordinary meanings, except where they relate to particular trades or subject matters. O.C.G.A. § 1-3-1(b).

"Mental incompetence" has been defined as a situation where, "[T]here is found to exist an essential privation of reasoning faculties, or when a person is incapable of understanding and acting with discretion in the ordinary affairs of life." Black's Law Dictionary 889 (5th ed. 1979).

In other areas of Georgia law where the term "mental incompetence" is used, various functional definitions of the term have developed. In the context of criminal law, "mental incompetence" includes an evaluation of whether a defendant has an awareness of his situation and an ability to assist his counsel in presenting a defense. O.C.G.A. § 17-7-130; Johnson v. State, 209 Ga. App. 514, 516 (1993).

In the area of worker's compensation, court's have defined "mental incompetence" to include one whose, "mind is so unsound, or is he so weak in his mind, or so imbecile, no matter from what cause, that he can not manage the ordinary affairs of life." Royal Indem. Co. v. Agnew, 66 Ga. App. 377, 380 (1941); Mayor of Athens v. Schaefer, 122 Ga. App. 729 (1970).

All of these give guidance to a reviewing court when called upon to determine under the Constitution whether a person is "mentally incompetent," which then results in their being unable to exercise the right to vote. As such, it is my official opinion that a judicial determination that a person is incompetent is required before a person may be denied the right to vote.

Prepared by:

DENNIS R. DUNN
Senior Assistant Attorney General