Intellectual Disability and the Human Right to Vote: Evolving Conceptions of the Universality of Suffrage

Abstract

One of the important contributions of the 2006 Convention on the Rights of Persons with Disabilities is to make clear that restricting voting rights on the basis of disability is a violation of human rights. As in the case of women or racial minorities, the disenfranchisement of persons with disabilities is at odds with the principle of “universal and equal suffrage” articulated in the Universal Declaration of Human Rights. At the same time, the right to vote is standardly been taken to be a qualified right, permitting the exclusion of children, prisoners, noncitizen residents, and persons who lack mental capacity. Although these restrictions on voting rights are imposed by nearly all UN Member States, they have become topics of debate in recent years. In light of the CRPD, the disenfranchisement of persons with psychosocial or intellectual disabilities has come be seen as particularly problematic. The issue that is central to the present discussion is whether capacity-based restrictions on the voting rights of persons with intellectual disabilities are fundamentally at odds with the letter and spirit of the CRPD or whether, if formulated and implemented in a precise and proportionate fashion, they are permissible exceptions to the principle of universal suffrage. My aim in this paper is not argue for one particular way of resolving this issue. Rather, my more modest aim to articulate the issue, the underlying jurisprudence (leading up to and in the wake of the CRPD), and the wider issues raised in the debate, so as to make clear that this is not an issue that can be avoided. What is at stake are fundamental principles that are in deep conflict. I begin by recalling four central arguments for universal suffrage. I then summarize the central claims of the CRPD with regard to political rights (and especially the right to vote), highlighting its implications for various forms of passive discrimination and the importance of ensuring real accessibility. In section 3, I focus in on the disenfranchisement of persons who lack mental capacity, reviewing several of the human rights documents that have supported restrictions on “universal suffrage”, before turning to the recent shift away from making suffrage conditional on capacity. I conclude by identifying some of the issues that must be addressed by critics of capacity- based restrictions on the voting rights of persons with intellectual disabilities.