Arizona Court of Appeals Strikes Down Arizona’s Guardianship Process That Determines Whether an Individual Has the Capacity To Vote

[author: Heather Reed¹]

To vote in Arizona, an individual must not be “adjudicated an incapacitated person.” This is an addition to other requirements such as being over 18 years old, a U.S. citizen, and an Arizona resident. Capacity to vote arises in guardianship proceedings when an individual is no longer able to care for themselves and manage their financial affairs. In this situation, the question then becomes whether the individual retains sufficient understanding to exercise their right to vote. How this determination is made was the subject of a recent Arizona Court of Appeals decision, Wood v. Coconino (In re Wood)², which found the existing process unconstitutional.

In Wood, the superior court determined that Annette Wood, a 63-year-old woman residing in an assisted living facility, needed a guardian to make her financial and medical decisions. She had been diagnosed with dementia and other cognitive impairments, including memory loss, anxiety, and depression.

Under Arizona law, a person will be placed under a guardianship if the court finds the person incapacitated — unable to make decisions for themselves due to mental or physical illness, disability, or other chronic conditions — such that they require a guardian to provide for their needs. The Arizona Constitution, however, provides that “[n]o person who is adjudicated an incapacitated person shall be qualified to vote at any election.”³ In a general guardianship, a ward loses the right to vote without any recourse. A ward, however, may retain the right to vote under a limited guardianship if the ward files a petition, has a hearing, and a judge finds by clear and convincing evidence that the ward retains “sufficient understanding to exercise the right to vote.” Here, the court placed Ms. Wood under a general guardianship.

Although Ms. Wood agreed she required a guardian to assist with medical decisions, she still wished to retain her right to vote. To determine whether Ms. Wood retained sufficient understanding to vote, the court asked her a series of questions. For example, when asked, she was initially unable to recall the President’s name, but was able to describe the process by which she votes by mail. The court ultimately concluded she did not provide clear and convincing evidence to support that she retained sufficient understanding to vote and therefore denied her request. Ms. Wood subsequently challenged the constitutionality of the guardianship statutes under the Due Process Clause of the 14th Amendment to the extent the statutes disenfranchise her and other wards.⁴ 

On appeal, the court sided with Wood, holding that Arizona’s guardianship statutes violate the due process rights of wards to the extent they terminate their right to vote under a general guardianship without an assessment of the ward’s voting capacity. Moreover, the court held that the existing process improperly shifts the burden to the ward to prove they possess a “sufficient understanding to exercise the right to vote” under a limited guardianship.

Because this process implicates the right to vote, the court applied strict scrutiny to the guardianship statutes, evaluating whether they were narrowly tailored to serve a compelling state interest and employed the least restrictive means possible to achieve that interest. The court concluded that the statutes fell short on both analyses. The court further noted that the State failed to identify any state interest, compelling or otherwise, served by terminating a ward’s voting rights without assessing their voting capacity.

The court concluded that 1) terminating a ward’s right to vote without a hearing to assess the ward’s voting capacity and 2) placing the burden of proof on the ward to prove their voting capacity violate due process. In doing so, the court shifted the burden of proof to the guardian to prove by clear and convincing evidence that the ward lacks the capacity to vote. The court also clarified the definition of a “sufficient understanding to exercise the right to vote” as having enough comprehension to know that one is expressing a preference on a ballot for a particular candidate for a political office or, for or against a policy measure. The court made clear, however, that this analysis must be detached from “the wisdom of a particular vote (or a particular voter),” as this determination is subjective.

The court’s decision is likely to have a significant impact on wards in Arizona. Arizona courts must now hold hearings to determine a ward’s voting capacity prior to terminating their right to vote, and the petitioner seeking to become the individual’s guardian will bear the burden of showing that the ward lacks the ability to express their ballot preferences. The required clear and convincing evidentiary showing may result in fewer wards losing the right to vote, but only time will tell. Notably, however, the court did not address how the holding will affect the voting rights of wards currently under guardianships in Arizona.

Footnotes

1. Heather Reed is a 2024 summer associate at Snell & Wilmer and a 2025 J.D. candidate at the University of Arizona. She is not admitted to practice law. [Back]
2. No. 1 CA-CV 22-0710 (Ariz. App. May 30, 2024). [Back]
3. Ariz. Const. art. 7, § 2(C). [Back]
4. A.R.S. §§ 14 5101(3), 14 5304, 14 5304.02 (collectively, the “guardianship statutes”). [Back]