Nursing home residents have always faced challenges voting — because of limited mobility, physical infirmity and the restrictive reality of institutional life. But there were many ways to get help: Residents who were mobile and had access to transportation could vote at general polling places, families could freely visit to help residents vote by mail, and, in some states, election officials conducted voting in nursing homes. Now, the novel coronavirus has changed much of that: In-person voting risks infection, and visitors who might help with mail-in voting are barred from many homes. Short-staffed and still concentrating on other challenges posed by the pandemic, facilities do not seem ready to step up.
“Facilities throughout the state have made little or no efforts to assist residents” to vote by mail in “what may be the most important election in their lifetimes,” representatives of a dozen community advocacy groups wrote to Pennsylvania health officials late last month.
In fact, at a time when residents need more help, some states are withdrawing assistance they previously provided. For example, Wisconsin’s Election Commission suspended a process (mandated by statute) of sending bipartisan teams of election officials into nursing homes to conduct absentee balloting; it dismissively deemed the work “nonessential.” Similarly, Maryland’s State Board of Elections has announced that election officials are no longer authorized to conduct absentee balloting or voter registration in long-term care facilities, as they have in past years.
Some states that ordinarily send election staff to nursing homes are adapting their procedures to address concerns about infection control. Minnesota and Tennessee are permitting facilities that don’t want outside election officials entering to instead designate staff to be trained and designated as election officials to conduct in-person voting. But many states have yet to publicly announce how they will reconcile established practices — including, in some states, statutory mandates that election officials conduct in-person voting in nursing homes — with virus-related infection control procedures and access restrictions
The inability of friends and family to help residents because of social distancing and visitor bans is particularly problematic for residents who live in North Carolina and Louisiana, because those states ban nursing home staff from helping residents vote — ostensibly on the theory that staffers could manipulate choices. Such blanket prohibitions run afoul of the Voting Rights Act, which grants voters who are blind or have other disabilities the right to have a person of their choosing help them vote. (Indeed, in August, a federal court held that North Carolina’s prohibition “impermissibly restricts” who may assist voters with disabilities in a suit brought by Democracy North Carolina and the state’s League of Women Voters, among others. Yet the court refused to enjoin the state from enforcing the ban; it simply required the state to allow staff to help the nursing home resident named in the complaint.)
Federal law requires nursing homes that accept Medicaid or Medicare to support residents in exercising their rights as citizens — including the right to vote. And the Centers for Medicare and Medicaid Services this month put state regulators on notice that they must “ensure a resident’s right to vote is not impeded” during the pandemic. But my research suggests, judging at least from past elections, that there will be little enforcement of such requirements. In reviewing inspection reports of nursing homes from 2016 through 2019, I found that violations of voting rights are typically classified as causing, at most, “minimal harm or potential for actual harm.” That means facilities can be confident that fines will not be imposed. In a skilled nursing facility in Osawatomie, Kan., for example, only nine of 44 “alert and orientated” residents voted — either by absentee ballot or after being driven to polls by family members. One resident was promised a ride by the facility but it didn’t happen; when she complained, she was told it was “not the facility’s problem.” A staff member interviewed by inspectors said they were unaware that it was their duty to identify residents who wanted to vote.
Despite the stakes — both for candidates and for citizens — neither the Democratic nor Republican parties has expressed much concern about the disenfranchisement of nursing home residents. Perhaps that is because it is unclear which political party would most benefit from increasing voting by nursing home residents. On one hand, nursing home residents are older (more than 40 percent are 85 or older) and whiter (three-quarters are non-Hispanic Whites) than the general population. This suggests that their votes would benefit the GOP. On the other hand, approximately two-thirds are women, a demographic that favors Democrats. Six in 10 rely on Medicaid, a program given greater priority by the Democratic Party.
Stereotypes of nursing home residents may also play a role: They are often assumed to largely lack the cognitive capacity to vote. That is true for some, but it is hardly the norm: Nearly 40 percent — or over half a million residents nationally — have either no cognitive impairment or only mild impairment.
Fortunately, it is not too late to help nursing home residents who want to vote in the presidential election. Many states already possess the legal authority for election officials to conduct supervised voting in nursing homes: This would include getting ballots to residents and helping them complete them. With proper personal protective equipment and careful preparation, this can be done safely even amid the pandemic. But for it to happen, states must make it a priority: Officials must treat it as truly essential work.
Where election officials aren’t providing in-person assistance, nursing homes should ascertain which residents want to vote, help them fill out any application or satisfy other requirements to qualify for a mail-in ballot, assist residents who need help reading and marking their ballots and ensure that ballots are submitted in compliance with state law. They should be doing this every election — it’s the law — but it’s especially crucial this year, with family and friends shut out of facilities.
Voting is the only remaining source of political power for most nursing home residents. They can’t knock on doors or march; many can’t even mail a letter, send an email or make a telephone call without assistance. And the casual, all-too-tolerated disenfranchisement of nursing home residents sends the message that they are not full citizens worthy of respect. As a resident of a facility in Virginia Beach told an inspector in 2017, after missing his opportunity to vote for president: “I didn’t realize once you come into a facility, your voting rights could be taken away from you … my vote may not have made a difference but dear God give me the opportunity to vote; that should have been my decision” and not the facility’s.