Inclusive elections? The case of persons with disabilities in the European Union

Abstract

ABSTRACTThe Convention on the Rights of Persons with Disabilities (CRPD) clarifies that persons with disabilities have the right to participate in political life and enshrines their right to vote and stand as candidates in elections. This article evaluates compliance and current practices in the European Union, finding a great variety of implementation to facilitate the electoral participation of persons with disabilities. Despite CRPD ratification by all EU member states, inaccessibility of elections, lack of suitable information, removal of legal capacity, and other disability-based discrimination remain barriers to political participation. Nevertheless, there are increasingly good practices of inclusion by which legislators and election administrators can learn from each other. Based on the example of the EU, the judicial activism of disabled persons organisations in particular highlights the key role of civil society organisations and their cooperation with public authorities to make electoral processes more inclusive, alleviating political inequality overall.KEYWORDS: Electionsinclusionaccessibilitypersons with disabilitiesEuropean UnionCRPDstrategic litigation AcknowledgementsThe authors would like to thank EDF member organisations for reviewing the initial findings and the EDF for granting the permission to use the research and findings for this article. We also thank the members of the Election-Watch.EU network for participating in the research.Disclosure statementNo potential conflict of interest was reported by the author(s).Notes1 Smets Kaat and C. van Ham, ‘The Embarrassment of Riches? A Meta-Analysis of Individual-Level Research on Voter Turnout,’ Electoral Studies 32, no. 2 (2013): 344–59.2 T.S. James and H.A. Garnett, ‘Introduction: The Case for Inclusive Voting Practices,’ Policy Studies 41, no. 2–3 (2020): 113.3 A. Blais, L. Massicotte and A. Yoshinaka, ‘Deciding Who Has the Right to Vote: A Comparative Analysis of Election Laws,’ Electoral Studies 20 (2001): 41–62.4 For the United States, compare for example L. Schur, M. Adya and M. Ameri, ‘Accessible Democracy: Reducing Voting Obstacles for People with Disabilities,’ Election Law Journal 14, no. 1 (2015); and A. Johnson and S. Powell, ‘Disability and Election Administration in the United States: Barriers and Improvements,’ Policy Studies 41, no. 2–3 (2020): 249–70. For Africa compare B. Virendrakumar et al., ‘Disability Inclusive Elections in Africa: A Systematic Review of Published and Unpublished Literature,’ Disability & Society 33, no. 4: 509–38.5 James and Garnett, ‘Introduction: The Case for Inclusive Voting Practices,’ 115, following inter alia L. Schur et al., ‘Enabling Democracy: Disability and Voter Turnout,’ Political Research Quarterly 55 (2002): 167–90.6 World Health Organisation, ‘Disability: Key Facts,’ https://www.who.int/news-room/fact-sheets/detail/disability-and-health (accessed August 23, 2023, last updated March 7, 2023).7 Among electoral practitioners, IFES has long been promoting disability rights: https://www.ifes.org/our-expertise/inclusion-human-rights/disability-rights. Among international election observers, the OSCE/ODIHR ‘Handbook on Observing and Promoting the Electoral Participation of Persons with Disabilities’ (2017) serves as a benchmark: https://www.osce.org/odihr/elections/handbook-observing-people-with-disabilities.8 Cf. James and Garnett, ‘Introduction: The Case for Inclusive Voting Practices’.9 The EDF HRR 2022 was authored by Alejandro Moledo and Marine Uldry. The comparative research for the EDF HRR was led by Armin Rabitsch and Michael Lidauer involving all 27 Election-Watch.EU focal points as well as EDF partner organizations at EU member state level. See: Alejandro Moledo and Marine Uldry, ‘Human Rights Report on Political Participation of Persons with Disabilities,’ European Human Rights Report no. 6 (2022).10 April A. Johnson and Sierra Powell, ‘Disability and Election Administration in the United States: Barriers and Improvements,’ Policy Studies 41, no. 2–3: 249–70.11 Emmanuel Sackey, ‘Disability and Political Participation in Ghana: An Alternative Perspective,’ Scandinavian Journal of Disability Research 17, no. 4 (2015): 366–81.12 Lisa Schur and Meera Adya, ‘Sidelined or Mainstreamed? Political Participation and Attitudes of People with Disabilities in the United States,’ Social Science Quarterly 94, no. 3 (2013): 811–39.13 T.S. James and A. Clark, ‘Electoral Integrity, Voter Fraud and Voter ID in Polling Stations: Lessons from English Local Elections,’ Policy Studies 41, no. 2-3 (2020): 190–209. Lisa Schur, Mason Ameri, and Meera Adya, ‘Disability, Voter Turnout, and Polling Place Accessibility,’ Social Science Quarterly 98, no. 5 (2017): 1374–90.14 Peter Miller and Sierra Powell, ‘Overcoming Voting Obstacles: Convenience Voting by People with Disabilities,’ American Politics Research 44, no. 1 (2016): 28–55.15 Research Alliance for Accessible Voting, 2014, ‘RAAV Poll Worker Training Project 2.’ Cited in Suzanne G. M. van Hees, Hennie R. Boeije, and Iris de Putter, ‘Voting Barriers and Solutions: The Experiences of People with Disabilities During the Dutch National Election in 2017.’ Disability & Society 34, no. 5 (2019): 819–36.16 James and Garnett, ‘Introduction: The Case for Inclusive Voting Practices,’ 113.17 See the United Nations overview of countries that have ratified: https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-15&chapter=418 When ratifying the CRPD, three EU member states (Estonia, France, and Netherlands) entered a declaration, and one Member State (Poland) raised a reservation with respect to CRPD article 12 on equal recognition before the law. This implies that these countries implement article 12 in accordance with their respective national legislation, which in each case allows for restrictions on the right to vote of persons deprived of legal capacity. Malta raised reservations with respect to article 29 on participation in political and public life, and reserved the right to continue applying its existing electoral legislation concerning voting procedures, electoral facilities and materials, and assisted voting.19 The EU as well its member states Bulgaria, Ireland, the Netherlands, Poland and Romania have not ratified the Optional Protocol.20 M. Priestley et al., ‘The Political Participation of Disabled People in Europe: Rights, Accessibility and Activism,’ Electoral Studies 42 (2016): 1–9.21 The research was conducted between 2021 and 2022 by Election-Watch.EU and the European Disability Forum (EDF) and its member organisations, which resulted in the EDF Human Rights Report 6 by M. Alejandro and M. Uldry (with support of A. Price and V. James): ‘Human Rights Report on Political Participation of Persons with Disabilities,’ Brussels: EDF, 2022 (https://www.edf-feph.org/publications/human-rights-report-2022-political-participation-of-persons-with-disabilities/).22 Countries such as Germany, France, Spain and Slovakia have removed such limitations, and Belgium, Denmark, Lithuania, and Portugal reduced them.23 FRA, ‘Who will (not) get to vote in the 2019 European Parliament elections? Developments in the right to vote of people deprived of legal capacity in EU member states,’ Vienna, 2019, https://fra.europa.eu/en/publication/2019/who-will-not-get-vote-2019-european-parliament-elections.24 EESC, ‘The Need to Guarantee Real Rights for Persons with Disabilities to Vote in European Parliament Elections (Additional Opinion),’ Brussels, 2020, https://www.eesc.europa.eu/en/our-work/opinions-information-reports/opinions/need-guarantee-real-rights-persons-disabilities-vote-european-parliament-elections-additional-opinion.25 Moledo and Uldry, ‘Human Rights Report on Political Participation of Persons with Disabilities’.26 Moledo and Uldry, ‘Human Rights Report on Political Participation of Persons with Disabilities’.27 These 8 are Austria, Denmark, Germany, Spain, Croatia, Italy, the Netherlands, and Sweden.28 Available information indicates that no candidate has ever been disqualified on the basis of ‘unsound mind’ in Ireland. Yet it is arguable that candidates could be disqualified based on psychosocial disabilities.29 Moledo and Uldry, ‘Human Rights Report on Political Participation of Persons with Disabilities’.30 Moledo and Uldry, ‘Human Rights Report on Political Participation of Persons with Disabilities’.31 Moledo and Uldry, ‘Human Rights Report on Political Participation of Persons with Disabilities’.32 https://www.scb.se/publication/2630733 Voters are required to mark their preference numerically, with their number ‘1’ being interpreted as the vote for the party as well as their preferred candidate. This is the single transferable vote system.34 https://social.desa.un.org/issues/disability/crpd/article-2-definitions (accessed August 28, 2023).35 R. Wolfinger and S.J. Rosenstone, Who Votes? (New Haven, CT: Yale University Press), 8, quoted in James and Garnett, , ‘Introduction: The Case for Inclusive Voting Practices,’ 118.36 For comparison, International IDEA provides an overview of special voting arrangements: https://www.idea.int/data-tools/data/special-voting-arrangements.37 Internet voting is only available in Estonia, where voters can decide to go to a polling station on election day or to cast their vote on a website during the elections period.38 Belgium and France provide proxy voting, but this is not meeting international standards as it transfers the right to somebody else. Whilethis can be convenient for persons with certain disabilities, it is not considered as a measure to facilitate their right to vote.39 Only those with officially confirmed severe or moderate disability. To access it one needs to put a motion and attach a copy of a valid decision of the competent authority on the degree (severe/moderate) of disability.40 Provision of mobile ballot boxes exists in Austria, Bulgaria, Germany, Croatia, Czechia, Denmark, Estonia, Finland, Hungary, Ireland, Italy, Latvia, Lithuania, Netherlands, Poland, Portugal, Romania, Slovakia and Sweden.41 In the case of Luxembourg, the possibility of changing polling station is only available in Luxembourg city. In Finland, voters can choose the polling station during the early voting period, but not on election day, when they are assigned to a specific polling station near their residence.42 International standards for democratic elections require ensuring the secrecy and equality of the vote and respect for voters’ choices; see: Article 25 of the ICCPR; General Comment to Article 25, paras 20–22; the 1950 Convention for Protection of Human Rights and Fundamental Freedoms, Protocol 1 of 1952, Article 3.43 None are available in Bulgaria, Cyprus, Greece, Italy, Romania, Slovakia, and Slovenia.44 European Union, ‘Directive (EU) 2016/2102 of the European Parliament and of the Council of 26 October 2016 on the accessibility of the websites and mobile applications of public sector bodies,’ https://digital-strategy.ec.europa.eu/en/policies/web-accessibility.45 Directive (EU) 2018/1808 of the European Parliament and of the Council amending Directive 2010/13/EU on the coordination of certain provisions laid down by law, regulation or administrative action in member states concerning the provision of audio-visual media services (Audio-visual Media Services Directive) in view of changing market realities.46 By law, during election day, the local health units must guarantee that there is an adequate number of doctors in the various municipalities.47 Organization for Security and Co-operation in Europe/Office for Democratic Institutions and Human Rights48 Law Society Gazette Ireland, ‘ECHR Ruling’s ‘Europe-Wide Implications’ on Disability,’ October 2021, https://www.lawsociety.ie/gazette/top-stories/2021/10-october/echr-ruling-has-europe-wide-implications-on-disability.49 Sinnott v Minister for the Environment [2017] IEHC 214, the High Court.50 Cf. T.X. James and H.A. Garnett, ‘Inclusive Voting Practices: Lessons for Theory, Praxis, and the Future Research Agenda,’ Policy Studies 41, no. 2-3: 292.Additional informationNotes on contributorsArmin RabitschArmin Rabitsch is a Senior Elections Expert and the Chairperson of Election-Watch.EU.Alejandro MoledoAlejandro Moledo is the Deputy Director and Head of Policy at the European Disability Forum (EDF).Michael LidauerMichael Lidauer is Senior Advisor at Election-Watch.EU and a doctoral researcher at Goethe University Frankfurt.