Electoral Access: How International Law Defines and Protects the Right to Vote for People with Disabilities

August 12, 2011 - IFES

Print | Email | Share

Delivered Aug. 12 at InterAction Forum 2011 in Washington, D.C.

It’s a pleasure to be with you here today and to speak on this panel about efforts to advance “Disability Civil Society” around the globe. I hope my remarks will provide some additional perspective on how mainstream international organizations can commit to ensuring that their programming engages and benefits persons with or without disabilities on an equal basis.

IFES works with electoral management bodies, civil society and other stakeholders in the political process to guarantee the rights of individuals to freely and effectively participate in government. In the course of this work, we have discovered that one of the most frequently overlooked groups of voters is persons with disabilities, who, as you may know, make up an estimated 15 percent of the world’s population.

IFES recognizes that people with disabilities are rights-holders who can and should participate in the political process to the same extent as any other member of society. It would be disingenuous for a country to claim to be democratic with a 15 percent disenfranchisement rate, whether the exclusions result from specific policy decisions, or from simply neglecting to implement appropriate measures that guarantee access for all citizens.

I think it is clear that promoting the inclusion of voters with disabilities is the right thing to do, but it is also worth noting that it is the legal thing to do. States are under several international and regional obligations to increase access, and today I would like to discuss some of the main agreements that guarantee the right to vote to persons with disabilities. IFES’ approach to programming is to ground our activities in international public law, and specifically the governing documents to which most states have agreed.

The most recent and comprehensive international agreement that addresses the rights of persons with disabilities is the United Nations Convention on the Rights of Persons with Disabilities, also known as the CRPD. The United Nations adopted the CRPD in 2006, and 149 countries are currently signatories.

The CRPD does not create new rights, but rather seeks to strengthen existing rights and principles. The document contains 33 articles detailing how disability rights should be interpreted and applied. The treaty adopts a broad and flexible approach that allows for the legal particularities of each country to be taken into consideration.

Article 1 of the CRPD provides a useful definition and guidance for integrating these issues into the work of mainstream organizations. It notes that “persons with disabilities include those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others.”

The Convention has several articles which are particularly relevant to elections, the most comprehensive of which is Article 29. Article 29 stipulates that “States parties shall guarantee to persons with disabilities political rights and the opportunity to enjoy them on an equal basis with others.”

More specifically, states should guarantee this access in several ways:  

This includes ensuring that voting procedures, facilities and materials are appropriate, accessible and easy to understand and use. It also includes protecting the right to vote by secret ballot, without intimidation, and to stand for elections, to effectively hold office and perform all public functions at all levels of government. States must also facilitate the use of assistive and new technologies, as needed.

The CRPD also suggests that an inclusive environment for persons with disabilities to participate in the conduct of public affairs on an equal basis with others can be achieved by encouraging strong non-governmental organizations and associations concerned with the public and political life of the country, to participate in the activities and administration of political parties. States can also form and join organizations that represent and protect the rights persons with disabilities at international, national, regional and local levels.

I would also like to speak specifically about persons with intellectual disabilities, as this issue has, of late, become particularly controversial. As noted in Article 1 of the CRPD, the definition for persons with disabilities includes persons with intellectual impairments. IFES’ position, which I believe is amply supported by international law, is that inclusion is the primary goal. There must be a compelling government interest in order to disenfranchise a voter, and our research has not found legitimate reasons to exclude people with intellectual disabilities from voting.

Article 12 of the CRPD is particularly relevant here. It regards equal recognition before the law and stipulates that “States Parties shall recognize that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life.” In many countries, people with intellectual disabilities are denied the right to vote. This practice runs counter to Article 12.

When they are allowed to vote, people with intellectual disabilities are often not allowed assistance in the polling booth. The Convention says that “States Parties shall take appropriate measures to provide access by persons with disabilities to the support they may require in exercising their legal capacity.” This means voters with intellectual disabilities should be able to select a person they trust to accompany them into the polling booth.

The Convention acknowledges that this provision could be susceptible to fraud so it calls on States Parties to “ensure that all measures that relate to the exercise of legal capacity provide for appropriate and effective safeguards to prevent abuse.” I want to stress, the answer to potential fraud is not to disenfranchise an entire group of citizens. The answer is to improve our anti-fraud measures. To that end, IFES is working to develop a checklist for DPOs to use in conducting electoral observations. This observation process will help to identify areas susceptible to fraud that we can address with election management bodies.

An example of a restriction on legal capacity affecting the participation of a person with a disability was brought before the European Court of Human Rights in Kiss vs. Hungary. The 2010 ruling examined Hungary’s constitution, which provided that persons placed under guardianship did not have the right to vote. Kiss, an individual under partial guardianship, challenged this provision and asserted he retained a right to vote. The European Court decided in Kiss’s favor, ruling that a blanket, absolute ban on voting for every person under guardianship violated the CRPD. The decision did not invalidate every restriction on voting by persons with intellectual disabilities but it did make it nearly impossible to justify electoral restrictions that prevent all persons with intellectual disabilities from voting.

Issue specific restrictions on legal capacity can lead to discrimination and inequality. There are also many concerns over how the assessment of legal capacity is conducted and how it is decided that an assessment is required. These restrictions can lead to disenfranchisement and abuse for political reasons.

In addition to the very detailed standards described in the CRPD, there are numerous other international and regional commitments. For example, the International Covenant on Civil and Political Rights, or the ICCPR, which is a foundational document for IFES’ work, states in Article 25 that “Every citizen shall have the right and the opportunity … to vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage.”

IFES helps EMBs meet its Article 25 and other obligations in several ways:

First, we conduct assessments to determine what the local population deems as the most pressing needs and challenges for persons with disabilities. These assessments inform EMBs of the scale of the gaps in access and help them to plan for accommodations. We conduct research on standards and principles in electoral administration and share these best practices with EMBs.

We then provide onsite technical assistance to increase election administrators’ ability to conduct their work in an effective and efficient manner.  

Specifically, IFES helps EMBs ensure that poll workers are trained in the rights of voters with disabilities, are aware of accommodations that are allowed by law and are sensitized on how to interact with persons with disabilities. In Egypt, by way of example, IFES developed an action plan to address obstacles faced by persons with disabilities, and then worked with CSO partners to develop training for the election commission that addresses the right and importance of political participation among all members of society.

We also help EMBs to procure equipment and develop accommodations such as Braille ballot guides, ramps and wide polling booths. For example, in Kosovo, IFES worked with the Association of Blind and Partially Sighted People to support blind Kosovars to vote independently and in secret by designing and using Tactile Ballot Guides for mayoral and municipal assembly elections. In our Guatemala project, we trained guides to assist voters with disabilities on Election Day and built ramps to polling centers.

IFES also helps create national and regional networks of Disabled Persons’ Organizations and EMBs to share best practices and strengthen the capacity of election officials. IFES is currently working on a project, based in Indonesia, to launch a regional network that will have two main purposes: to expand Indonesian disabled people’s organizations’ regional leadership capabilities and to develop new tools and partnerships to monitor and raise awareness about disability access issues in elections.

And finally, voter registration and education programs are a key component to inclusive elections. IFES provides assistance in developing public information campaigns that are both targeted to people with disabilities and campaigns that sensitize the general public to the rights of persons with disabilities, such as in Guatemala, where we developed and distributed tactile voter education materials.

These are just a few of the examples of how IFES has worked to include and promote election access issues in our work around the world. Our immediate next steps are to:

  • Finalize a standardized observation checklist for both international observations and domestic DPOs;
  • Advocate for stronger global disability access standards and to include a reference to our checklists within the “Declaration of Principles for International Election Observation” and the “Code of Conduct for International Election Observers;”
  • Collect international data from these checklists and compare country performance to obligations as identified in the CRPD;
  • Maintain and strengthen our electoral access website where we currently index relevant laws from around the world; and
  • We intend to publicize the data that we collect from the standardized observation checklists.

As I have discussed, IFES strongly believes that it is both possible and necessary to promote inclusion and increased access in our work, regardless of the specific focus. We have formed this approach because we consider it to be a part of our mission to promote the rights of all persons, as well as to ensure that states live up to their international obligations as I have outlined. I hope that our experiences may show the range of opportunities available to other “mainstream” organizations to contribute to this important area of advocacy and technical assistance.

IFES e-NEWS

Sign up to receive our monthly newsletter and event, publication and research announcements.