At the UN, there is a Committee for disabled persons which oversees the international Convention on the Rights of Persons with Disabilities (CRPD). One might be forgiven for thinking that this Committee’s purpose is to work for the disabled. I submit to you that the Committee is itself mentally disabled, that the “for” above refers not to a committee whose work is on behalf of mentally disabled so much as consisting of the mentally disabled. Kind of like the Special Olympics is “for” the disabled – it’s not a special part of the stadium from which the disabled watch the regular Olympics.
The Problem: If you are mentally disabled, you may not be able to effectively exercise the right to vote.
The Scenario: In Hungary, people were dropped from the roles of eligible voters and then sued in the UN at the Committee under the Convention CRPD. They were identified under the law as mentally disabled and needing a guardian, pursuant to judicial decision. Under Hungarian law, this is automatically followed by removal from the rolls for eligible voters.
The Convention. CRPD Article 29 says the following:
States Parties shall guarantee to persons with disabilities political rights and the opportunity to enjoy them on an equal basis with others, and shall undertake to:
a. Ensure that persons with disabilities can effectively and fully participate in political and public life on an equal basis with others, directly or through freely chosen representatives, including the right and opportunity for persons with disabilities to vote and be elected, inter alia, by:
i. Ensuring that voting procedures, facilities and materials are appropriate, accessible and easy to understand and use;
ii. Protecting the right of persons with disabilities to vote by secret ballot in elections and public referendums without intimidation, and to stand for elections, to effectively hold office and perform all public functions at all levels of government, facilitating the use of assistive and new technologies where appropriate;
iii. Guaranteeing the free expression of the will of persons with disabilities as electors and to this end, where necessary, at their request, allowing assistance in voting by a person of their own choice;
b. Promote actively an environment in which persons with disabilities can effectively and fully participate in the conduct of public affairs, without discrimination and on an equal basis with others, and encourage their participation in public affairs, including:
i. Participation in non-governmental organizations and associations concerned with the public and political life of the country, and in the activities and administration of political parties;
ii. Forming and joining organizations of persons with disabilities to represent persons with disabilities at international, national, regional and local levels.
Six affected persons sued to get Hungary to change the law. Among many things they allege, one position they allege is that because the result under Hungarian law is automatic, there is no valid rationale by which Hungary could claim that the denial of a protected right was narrowly just to those to whom it is “necessary” to protect the integrity of the voting system – there are OTHER people unable to carry out a valid vote that the law doesn’t exclude, so the law singles out disabled people unfairly.
Hungary’s Attempted Fix: Hungary responded to the lawsuit by amending their laws. Their fix is to provide individual assessment of each person who is mentally disabled to discern who is to be deprived of their franchise because they cannot exercise it, and to leave the rest alone. This was to be administered by psychiatrists – probably the same people whose expertise was to be used to establish the existence of the mental disability itself, although I don’t have the specifics on that.
The 6 who sued rejected the fix as being irrelevant. They objected on several grounds, among others on the simple, straightforward grounds that IT DOESN’T MATTER whether you perform an individual assessment to establish that they cannot freely vote, the sheer fact that you make them unable to vote by law is ITSELF the discriminatory act regardless of context. They also objected that the mere act of performing such an assessment is also discriminatory.
The Decision. The Committee (if you didn’t learn to fear the term “the Committee” from the French Revolution’s Committee of Public Safety, you ignore history at your peril) swallowed the plaintiff’s arguments hook, line and sinker, with nary an objection, qualification, or limitation (put in the following to a google search and take the first item: CRPD/C/10/D/4/2011 ).
Consideration of the merits
9.1 The Committee on the Rights of Persons with Disabilities has considered this communication in the light of all the information received, in accordance with article 5, of the Optional Protocol and rule 73, paragraph 1, of the Committee’s rules of procedure.
9.2 The Committee notes the authors’ claim that the automatic deletion of their names from the electoral registers, by operation of article 70(5) of the Constitution, in force at the time of submission of their communication, breached article 29, read alone and in conjunction with article 12 of the Convention. The authors claimed, more specifically, that their automatic disenfranchisement regardless of the nature of their disability and their individual abilities was discriminatory and unjustified. The Committee also takes note of the State party’s arguments, whereby since the adoption of the Fundamental Law, pursuant to which article 70(5) of the Constitution was repealed, and the adoption of the article 26, paragraph 2 of the Transitional Provisions to the Fundamental Law, which provides for an individualized assessment of a person’s right to vote, based on his/her legal capacity, its laws are now in conformity with article 29 of the Convention.
9.3 The Committee observes that the State party has merely described, in abstracto, the new legislation applicable to persons under guardianship, stating that it has brought it in conformity with article 29 of the Convention, without showing how this regime specifically affects the authors, and the extent to which it respects their rights under article 29 of the Convention. The State party has not responded to the authors’ contention that they were prevented from voting in the 2010 parliamentary elections, and remain disenfranchised pursuant to their placement under guardianship, despite the legislative changes introduced.
9.4 The Committee recalls that article 29 of the Convention requires States parties to ensure that persons with disabilities can effectively and fully participate in political and public life on an equal basis with others, including by guaranteeing their right to vote. Article 29 does not foresee any reasonable restriction, nor does it allow any exception for any group of persons with disabilities. Therefore, an exclusion of the right to vote on the basis of a perceived, or actual psychosocial or intellectual disability, including a restriction pursuant to an individualized assessment, constitutes discrimination on the basis of disability, within the meaning of article 2 of the Convention. The Committee refers to its Concluding Observations on Tunisia, in which it recommended that the State party adopt urgent legislative measures to ensure that persons with disabilities, including persons who are currently under guardianship or trusteeship, can exercise their right to vote and participate in public life, on an equal basis with others [emphasis added]. The Committee further refers to its Concluding Observations on Spain, in which it expressed similar concern over the fact that the right to vote of persons with intellectual or psychosocial disabilities can be restricted if the person concerned has been deprived of his or her legal capacity, or has been placed in an institution. The Committee considers that the same principles apply to the present case. Accordingly, the Committee concludes that article XXIII, paragraph 6 of the Fundamental Law, which allows courts to deprive persons with intellectual disability of their right to vote and to be elected, is in breach of article 29 of the Convention, as is article 26, paragraph 2 of the Transitional Provisions to the Fundamental Law.
9.5 The Committee further recalls that under article 12, paragraph 2 of the Convention, States parties must recognize, and uphold the legal capacity of persons with disabilities “on an equal basis with others in all aspects of their lives”, including political life, which encompasses the right to vote. Under article 12, paragraph 3 of the Convention, States parties further have a positive duty to take the necessary measures to guarantee to persons with disabilities the actual exercise of their legal capacity Accordingly, the Committee is of the view that by depriving the authors of their right to vote, based on a perceived or actual intellectual disability, the State party has failed to comply with its obligations under article 29 of the Convention, read alone and in conjunction with article 12 of the Convention, in their regard.
9.6 Having found the assessment of individuals’ capacity to be discriminatory in nature, the Committee holds that this measure cannot be purported to be legitimate. Nor is it proportional to the objective to preserve the integrity of the State party’s political system. The Committee recalls that, under article 29 of the Convention, the State party is required to adapt its voting procedures, by ensuring that they are “appropriate, accessible, and easy to understand and use”, and allowing, where necessary, assistance in voting upon request of the person with disability. It is by so doing that the State party will ensure that persons with intellectual disability cast a competent vote, on an equal basis with others, while guaranteeing the secrecy of the vote.
According to the Committee, then, the vote MUST be extended to all the mentally disabled, no matter how disabled they are. If there are some who will not be able to exercise their vote unaided, then the state must help them vote. The existence of an inability to vote without aid as such establishes the obligation to help them vote regardless of obstacles. This is true across the board for every mentally disabled person of whatever form, sort, or degree. Therefore, every Down’s person, every microcephalic person, every person identified as a cretin, everyone in a coma, MUST BE GRANTED THE RIGHT TO VOTE. Indeed, since nobody can distinguish, for the latter groups of persons, any practical difference between their “wanting” to vote and “not wanting” to vote, every such person MUST VOTE, and must be given “assistance” so that they do in fact vote.
Now you know why I say the Committee is mentally disabled. The number of logical fallacies, logical holes, and irrational conclusions in their decision above almost defies analysis. THIS “decision” is, itself, proof positive that Hungary needs to keep its laws about denying the vote to those unable to validly vote freely. As does every other nation; and every nation not yet under the Convention needs to not sign up. Thank God the US is one of these.
Now, there is one more result I would draw out of their conclusions. On their own logic, there is no basis for refusing the vote to the young. Every young person is a citizen, and by definition holds the civil rights of citizenship. The fact that a young person may have some difficulty using the franchise is only proof positive that they need help from their guardians to carry out the act, not that they are to be EXCLUDED from voting. Conclusion: big families get lots of votes.
The only reason why this Committee won’t press for just this result is that the Convention is about disabled people. So what we need next is a UN Convention on the Rights of Large Families. For instance: parents of large families are allowed to take their eyes off their kids for a few seconds (minutes, hours) at a time, so that if the kids get hurt this is NOT a parenting mistake. Parents of Large Families are allowed to get vehicles that do not have seat belts for every kid. Parents of Large Families are allowed to spank their children to make them conform to family rules. (By the way, we define “large” in such a way that parents of one child may determine that they qualify to fall under the Convention.) Parents of Large Families are allowed to teach their children their own religion as if that religion were the only true religion. And of course, Parents of Large Families can cast their children's votes for them.
You might notice that this Committee’s conclusion also runs roughshod over the liberal theory that the Convention leaves national sovereignty intact. That’s a lie. They are telling Hungary that Hungary’s own constitution has to be changed to make it conform to the ruling of an unelected bureaucratic organ of the UN, a body wholly unresponsive to any elected official in the world.