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 Right to vote to all persons with disabilities – no exceptions UN Committee: observations on Tunisia, Spain 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 found to be incapable of voting after an individual assessment Including those who are indeed incapable of voting 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 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 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 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 The question is the legitimacy of individualized assessment S.H. v. Hungary (European Court of Human Rights) S.H. v. Hungary (European Court of Human Rights) Zs. B. and Others v. Hungary (UN CRPD) 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 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 Fraud Incompetence Incompetence Manipulation Manipulation

10. Is it unique to PWD? Fraud – not a disability issue (but: institutions) Fraud – not a disability issue (but: institutions) Incompetence – 3% of all votes are a result of mistakes; people vote strangely sometimes Incompetence – 3% of all votes are a result of mistakes; people vote strangely sometimes Manipulation – if done without force or deceit, legitimate – and widespread 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 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 First rational explanation: assumption that contrary to others, the incompetent PWD can be identified

12. Individual assessment Few methods exist in the World Few methods exist in the World CAT-V (USA): most well known 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 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? 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 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? 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 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 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 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 Support not only ensures that PWD can participate, but also that they cast a competent vote What was the aim of the measure? What was the aim of the measure?

18. Solution Maybe the basic contradiction of electoral systems does not exist 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 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 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 disabilities Thank you for your attention! Janos Fiala-Butora Janos Fiala-Butora jfiala@freemail.hu jfiala@freemail.hu jfiala@freemail.hu Disability Rights Center (DRC) Disability Rights Center (DRC) Budapest, Hungary