HILJ Online Symposium: The Next Step

[Michael Waterstone is the Associate Dean for Research and Academic Centers and J. Howard Ziemann Fellow and Professor of Law at Loyola Law School Los Angeles.]

This post is part of the HILJ Online Symposium: Volumes 54(2) & 55(1). Other posts in this series can be found in the related posts below.

I am grateful that the Harvard International Law Journal and Opinio Juris have asked me to write a response to The Democratic Life of the Union: Toward Equal Voting Participation for Europeans with Disabilities, written by Janos Fiala-Butora, Michael Stein, and Janet Lord. This Article seeks to put forward “preliminary legal scholarship on equal political participation by persons with disabilities and what international human rights law requires for its attainment.” Given their various experiences as academics, international human rights lawyers, and academics, the authors are certainly well suited to this task (and I should note that two of the three are former co-authors and friends).

As I see it, this Article makes three significant points: (1) it describes Kiss, a European Court of Human Rights decision holding that Hungary had unjustly and indiscriminately taken voting rights away from someone solely by nature of his being placed under guardianship, and critiques the decision for offering limited standards for what type of individualized inquiry is required to restrict the franchise; (2) argues that under international law, states should not be able to disenfranchise persons on the basis of disability, even in the case where individual assessments are made; and (3) challenges Martha Nussbaum’s suggestion that states should authorize guardians to vote on behalf of individuals who are neither able to form a view on political issues for themselves nor communicate their choices to others (the authors would not have a guardian exercise decisionmaking, meaning that those who cannot vote – properly construed, a small number – do not vote).

There is a lot here, worthy of a response. In this post, I will primarily address the Article’s second point. Most other rights, as the authors explain, are derivative of voting, because participation in the political process is “one of the key avenues through which marginalized groups most effectively seek equality.” Thus, what law – whether domestic or international – has to say about voting is crucial (or in the language of American constitutional law, fundamental). The Article suggests that the disenfranchisement of people with disabilities generally, and people under guardianship specifically, is a failure of law. This is no doubt correct, but I would like to suggest incomplete. Law is an important step in the process, but only a first step. The history of people with disabilities being excluded from the political process demonstrates that full inclusion (something not fully and effectively realized in any state of which I am aware) requires culture change and vigorous efforts by advocates and lawyers to implement whatever changes are able to be made under the formal scriptures of law. In that sense, this Article offers an important and cogent narrative on what the law should be. I want to suggest that future work should move forward to discuss the hard work of implementing that law.

As a starting point, I find the authors’ legal arguments persuasive. States’ justifications for excluding individuals who are under guardianship from voting, either in the form of blanket exclusions or even given individualized assessments for voting competence, are inconsistent with their commitments under international law (at least for those countries who have ratified the CRPD, a list that sadly, at present, does not include the United States). The rationale that only votes that reflect competent decisionmaking should be allowed falls apart fairly quickly. Voters with and without disabilities make all kinds of determinations based on inaccurate or meaningless information (as the authors point out, including candidate hair style of artistic qualities of advertisements). And concerns about fraud or manipulation of the electoral process, though often made, are woefully short on any empirical basis. This battle is currently playing out in American election law, and an excellent analysis of the shortcomings of the fraud rationale can be found in Rick Hasen’s book The Voting Wars. In American law and elsewhere, it is unfortunate that claims about voting equality for people with disabilities have become so intertwined with concerns about voting fraud and election integrity.

Fortunately, the Kiss case and others cited by the Article demonstrate that emerging interpretations of the CRPD are trending toward that urged by the authors: that blanket exclusion of people under guardianship or even with individualized assessments is inconsistent with the goals and text of the CRPD. Yet even assuming that is the case, changing or clarifying what law requires will not automatically lead to these individuals being able to vote. Disability law generally, and voting in particular, demonstrates a wide gap between what law requires and what actually happens.

The authors note that voting rights for people with disabilities can be realized through measures like “provision of assisted voting by a designee selected by the voter requiring assistance, access to off-site or alternative voting venues, the availability of sign language interpreters, the introduction of tactile ballot guides or accessible electronic voting machines or the supply of plain language voting procedure instructions.” Certainly true, but not easily attained, even when required by law. Voting laws in the United States, including the Voting Rights Act and the Voting Accessibility for the Elderly and Handicapped Act, have provided broad language about accessibility and assistance for decades, yet provided no meaningful guidance on achieving these standards. It is generally accepted that these laws were ineffective in accomplishing their aims regarding disability and voting. Through vigorous participation in the political process, advocates were able to obtain more meaningful and specific legislative protections. Title II of the Americans with Disabilities Act requires polling places to be accessible to people with disabilities and required reasonable accommodation, yet a 2000 report by the General Accountability Office (and other academic studies) have demonstrated widespread inaccessibility in polling places. And, while provisions in the Help America Vote Act require each polling place to have technology available for people with visual and manual impairments to vote secretly and independently, the available evidence suggests this mandate is being unevenly complied with at best.

Advocates in the United States have responded vigorously to require states and local governments to comply with the law, with some notable successes. Yet even in a comparatively wealthy country like the United States, with a dedicated and resourced disability rights bar, allies in government offices which provide public enforcement of laws, and effective advocacy organizations, progress has been slow. Assuming the authors’ legal interpretation of international standards is increasingly recognized under international and domestic law, it will require sustained efforts at the grassroots and legal level to have these rights realized.

This is a difficult and long term proposition. Eighty percent of the world’s population with disabilities lives in the developing world, where they “experience material deprivation and social exclusion.” Advocates in these states, quite plainly, have their hands full with issues like lack of access to schooling, extreme poverty, institutionalization and exclusion, which in some cases amounts to torture. My work with the Harvard Project on Disability, which is involved in CRPD implementation in over 40 states, has demonstrated to me that dedicated advocates exist in most if not every state. But at present, they do not always occupy space near the centers of political power, although the CRPD gives them another lever for their work. And political participation, while crucial, may not be at the top of their list. The cases brought by the authors and others are groundbreaking and will hopefully lead to changes in prevailing legal interpretations. But future work will be in implementing those legal changes.

Focusing specifically on the issue this Article addresses, voting rights for people under guardianship, demonstrates the enormity of the task ahead. Indeed, by focusing on voting rights for people under guardianship or otherwise having some limited capacity, the authors focus on somewhat more complex (though no less important) issues than those involving voting for people with physical disabilities. Large scale social interventions will need to be planned and implemented to provide these individuals the social supports the will need to vote. Even in states that have established and effective structures for individuals to protect and enforce their own rights, individuals under guardianship may not be in an effective position to challenge the inevitable denials of these rights. Community members will need to find these individuals, who are too often not part of the social mainstream, and develop a plan, likely in connection with lawyers, to push governments to not just allow, but actively facilitate, voting. Scholar/advocates like Fiala-Butora, Stein, and Lord will be needed to help develop strategies for these efforts. Norm implementation under the CRPD is an area worthy of increased academic attention, complementing the growing literature on the role of cause lawyering and social movements in disability rights law.