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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. CRPD – Article 29. Right to vote to all persons with disabilities – no exceptions

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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

crpd article 29
CRPD – Article 29
  • Right to vote to all persons with disabilities – no exceptions
  • UN Committee: observations on Tunisia, Spain
all persons with disabilities
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
individual assessment of voting capacity
Individual assessment of voting capacity
  • Some countries do not conduct individual assessments, they chose not to exclude anybody
in europe kiss alajos v hungary
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
in europe kiss alajos v hungary6
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
new developments in international law
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)
restrictions on the right to vote
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
is it unique to pwd
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
why are pwd singled out for disenfranchisement
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
individual assessment
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
individual assessment13
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?
individual assessment14
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?
why are pwd singled out for disenfranchisement15
Why are PWD singled out for disenfranchisement?
  • Second rational explanation: assumption that most PWD (/those under guardianship) are incompetent to vote
why are pwd singled out for disenfranchisement16
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
solution
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?
solution18
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
the right to vote of persons with severe disabilities thank you for your attention
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