A blog post by Jade Pagel, Junior Associate

While there are roughly three legal regimes for dealing with the right to vote for individuals with intellectual disabilities – full political participation, individual capacity assessment by a judge, and automatic blanket deprivation[1] — the ultimate goal should be the elimination of all restrictions and the protection of the right to vote for persons with intellectual disabilities. International standards including the Convention of Human Rights for Persons with Disabilities and the International Covenant on Civil and Political Rights have laid the framework for establishing the right to vote as a fundamental right deserved to be exercised by all citizens, including those with intellectual or mental disabilities.[2] Across EU Countries, there has been an increasing push to eliminate bans of this fundamental right and ensure that citizens with intellectual disabilities can readily be heard in the electoral process.[3] Courts have determined that automatic blanket disenfranchisements cannot be justified by any legitimate means as held in Alajos Kiss v. Hungary.[4]  However, in the 2021 case Strøbye and Rosenlind v. Denmark, the European Court of Human Rights has accepted justifications for deprivation of the right to vote when it is based upon an assessment of that person’s individual capacity. [5]

This turn is disheartening because the right to vote is fundamental to democracy [6] and crucial to the inclusivity and autonomy of persons with intellectual disabilities. It is also important to recognize that infringement of the right to vote for these individuals is rooted in hurtful and historical stereotypes.[7] Further, depriving a person with an intellectual disability from voting based on their perceived capacity is too arbitrary[8] and against the ideals of pluralism and diversity in a representative government.[9] If EU Member States work towards delinking the legal capacity that is limited under guardianship from the capacity to vote,[10] and promote accessibility and support of these persons,[11] safeguarding the right to vote for individuals with metal disabilities is be possible. Therefore, international organizations and advocacy groups must continue to encourage countries to expand and protect that right for those with mental health disorders and intellectual disabilities because it is their fundamental right as a citizen of their country.

 

 

[1] Sanja Jovicic, ECHR V. UNCRPD: Ending Restrictions on Voting Rights of Persons with Disabilities, 22 ERA FORUM 699, 703 (Oct. 11, 2021) https://link.springer.com/article/10.1007/s12027-021-00692-4.

[2] The International Covenant on Civil and Political Rights, General Assembly 16 December 1966 at art. 25; G.A. Res. A/61/106, Convention on the Rights of Persons with Disabilities, art. 1 (Dec. 13, 2006).

[3] See eg., Jovicic, supra note 1, at 703-4 (stating that in 2018, the European Parliament stressed that the EU should adopt measures to ensure that all persons with disabilities can exercise all of the rights protected in European Union treaties and laws).

[4] Alajos Kiss v. Hungary, App. No. 38832/06, ¶ 1 (May 20, 2010), https://hudoc.echr.coe.int/eng-press#{%22itemid%22:[%22003-3130633-3471579%22]}..

[5] See Strøbye and Rosenlind v. Denmark, App. Nos. 25802/18 and 27338/18, 1 (Feb. 2, 2021), https://hudoc.echr.coe.int/eng-press#{%22itemid%22:[%22003-6924523-9305141%22]} (holding that the deprivation had been proportionate and was satisfied that the disenfranchisement had not been applied automatically).

[6] The Right to Vote, Univ. of Minnesota Human Rights Center (2003) http://hrlibrary.umn.edu/edumat/studyguides/votingrights.html.

[7] Schriner and Ochs, supra note 75, at 3-4.

[8] Third party intervention by the Council of Europe Commissioner for Human Rights, CommDH(2018)16 (July 9, 2018) ¶ 37 [hereinafter Third Party Intervention].

[9] Id. at ¶ 30; Oliver Escobar, Pluralism and Democratic Participation: What Kind of Citizens are Citizens Invited to Be?, 14 Contemporary pragmatism 416, 417 (2017), https://brill.com/view/journals/copr/14/4/article-p416_416.xml?language=en.

[10] Third Party Intervention, supra note 8.

[11] CRPD Committee: Concluding observations on the initial report of the European Union, CRPD/C/EU/CO/1, (Oct. 2, 2015) ¶ ¶ 68–9, https://tbinternet.ohchr.org/_layouts/15/ treatybodyexternal/Download.aspx?symbolno=CRPD%2fC%2fEU%2fCO%2f1&Lang=en.