The right to vote of persons with severe disabilities – recent developments in international human rights law

1. The right to vote of persons with severe disabilities – recent developments in international human rights law Janos Fiala-Butora Disability Rights Center (DRC) Budapest, Hungary

2. CRPD – Article 29 • Right to vote to all persons with disabilities – no exceptions • UN Committee: observations on Tunisia, Spain

3. All persons with disabilities • Including those who are found to be incapable of voting after an individual assessment • Including those who are indeed incapable of voting

4. Individual assessment of voting capacity • Some countries do not conduct individual assessments, they chose not to exclude anybody

5. In Europe: Kiss Alajos v. Hungary • European Court of Human Rights: the automatic disenfranchisement of persons under guardianship without an individualized assessment violates the European Convention

6. In Europe: Kiss Alajos v. Hungary • The Court left open the possibility that exclusion after an individual assessment is acceptable – but did not actually say so

7. New developments in international law • The question is the legitimacy of individualized assessment • S.H. v. Hungary (European Court of Human Rights) • Zs. B. and Others v. Hungary (UN CRPD)

8. Restrictions on the right to vote • All electoral systems have to comply with two seemingly contradictory requirements • Accessibility to as wide segment of the population as possible • Maintaining the integrity of the electoral system

9. What interferes with the integrity of elections? • Fraud • Incompetence • Manipulation

10. Is it unique to PWD? • Fraud – not a disability issue (but: institutions) • Incompetence – 3% of all votes are a result of mistakes; people vote strangely sometimes • Manipulation – if done without force or deceit, legitimate – and widespread

11. Why are PWD singled out for disenfranchisement? • Seems to be problematic – they are the only ones the system is protected from • First rational explanation: assumption that contrary to others, the incompetent PWD can be identified

12. Individual assessment • Few methods exist in the World • CAT-V (USA): most well known • All of them are bound to produce false positives and negatives in the grey zone between clearly incapable and capable

13. Individual assessment • Given the prevalence of incompetent votes in general, and thus the lack of compelling justification to disenfranchise, is the exclusion of even one competent person justified?

14. Individual assessment • In practise: hugely over-inflated numbers of excluded persons (UN CRPD Spain). This is what worries PWD, not the few ones in coma • Would the states really invest enough resources to conduct proper assessments?

15. Why are PWD singled out for disenfranchisement? • Second rational explanation: assumption that most PWD (/those under guardianship) are incompetent to vote

16. Why are PWD singled out for disenfranchisement? • The fact that many are unable to vote is related to their historic exclusions: they never learned to vote. Their situation is similar to non-nobles, working class people, racial minorities and women who gained access to the franchise gradually

17. Solution • The CRPD does not allow for disenfranchisement – it requires support of the person with disability • Support not only ensures that PWD can participate, but also that they cast a competent vote • What was the aim of the measure?

18. Solution • Maybe the basic contradiction of electoral systems does not exist • Supporting measures not only ensure that PWD can participate, they also protect the integrity of the electoral system • Paradigm shift: it does not matter that PWD cannot participate “alone”, without support – the process needs to accommodate their needs, they need to be supported, not excluded

19. The right to vote of persons with severe disabilitiesThank you for your attention! • Janos Fiala-Butora • jfiala@freemail.hu • Disability Rights Center (DRC) Budapest, Hungary