Cognitive disability and voting

The rights to vote and participate in political life more generally have been routinely denied from intellectually disabled and mentally ill persons. According to the most recent data I’ve found, in the United States, disabilities (both physical and cognitive) prevent or deter 33.7 million Americans of voting age from casting a ballot— in fact, despite the Americans With Disability Act (ADA), only 10% of polling stations comply fully with accessibility standards. Every state still has laws on the book prohibiting adult citizens under guardianship for a cognitive disability or mental health condition from voting, and five of these states still use the terms ‘idiots’ and ‘the insane’ in their legislation or state constitutions. Worldwide, the picture is similarly bleak for intellectually disabled and mentally ill persons. Most countries, even those who have ratified the United Nation Convention on the Rights of Persons with Disabilities (UNCRPD), maintain prohibitions on voting for cognitively disabled and mentally ill persons.

This is alarming, given that the right to vote is typically regarded as a mark of full legal personhood and citizenship.  Universal suffrage is increasingly becoming the norm, and as disability rights activists astutely note, it seems problematic that cognitively disabled persons are denied the ballot as a means of expressing their opinions.  Authors such as Nussbaum (2010) note that denial of the right to vote violates the one-person-one-vote system and leaves some of the most vulnerable people in society voiceless.  Disabled persons are some of the persons who are most likely to be affected by policy changes, such as welfare reforms and reforms to guardianship or capacity laws, and as such, leaving them without a means of political expression should at the very least be treated as a cause for concern.

However, according to many scholars and indeed, traditional capacity-based social understandings of the right to vote, extending the right to vote to disabled persons, irrespective of capacity creates a philosophical and social minefield. This blogpost seeks to make sense of some of the issues surrounding the right to vote for cognitively disabled persons by discussing in context of human rights caselaw on the subject. I suggest that capacity-based conceptions of political involvement are ultimately unjustified. To this end, I will be breaking my argument into numbered sections to make it easier to follow.

1. Not all cognitively disabled persons under guardianship lack the capacity to participate in political life. This should be pretty self-evident. People may be put under guardianship for a variety of different reasons, such as a mental health condition, that affect certain decision-making capabilities but not others. This was the concern raised in Kiss v Hungary, which was brought to the European Court of Human Rights. Kiss v Hungary established that blanket prohibitions on voting for people under guardianship are unjust and discriminatory for these reasons— the case suggests that when courts make a decision to put people under guardianship, they should also make a decision about whether or not that person has the capacity to vote.

2. Even if a person is deemed to be ‘incapacitous,’ it’s unjust to prevent a person from voting under any circumstances. This principle was upheld in Zsolt Bujdosó and five others v. Hungary (2011), which was heard by the UNCRPD Committee in 2011. There are a few reasons for this. First, capacity assessments can themselves be discriminatory. There is no value-neutral way of determining whether someone has the capacity to vote or participate in public life; therefore, capable individuals will inevitably face exclusion as the result of these rules. There is a far greater probability that someone who genuinely possesses the capacity to vote (either by themselves or with support) will be excluded from voting than for someone who genuinely lacks the capacity to vote to bias the political process in any way.

3. Capacity shouldn’t be a metric for determining political participation anyway. Using capacity as a metric for judging whether someone deserves to participate in politics excludes cognitively disabled persons from the political process altogether, which seems problematic both because it denies participatory parity and because they are the most likely to be adversely affected by political decisions, such as welfare cuts. It also creates a self-fulfilling prophesy, as Pavey (2003) notes. When we assume that someone can’t participate politically, we guarantee that they will not be civically engaged. This is why disability activists put forward the idea of supported rather than substitute decision-making— instead of deciding what’s in a disabled person’s ‘best interests,’ we should be enabling disabled persons to make their own decisions about things that affect them. Politically, this translates into providing support for peoples’ political participation— this can be through concrete steps such as allowing someone to help a disabled person in a voting booth or simply providing information in a more accessible way. I also argue in my own work that we construct theoretical barriers to participation that a support-based framework can overcome. This and a more thorough defense of the idea of support in politics will be the topic of a further blogpost. But for now, the important takeaway is that we should probably be finding ways to allow people to participate politically instead of excluding them from the beginning.

4. But what about the children? This is a question that disability scholars get all of the time. And it makes sense— people fundamentally don’t want to give children the right to vote, because we don’t think of them as having the capacity to do so. While I think the premise of this question is pretty infantilizing and reinforces the problematic notion that disabled people are perpetual children, I’ll lay that aside for now and discuss how disability scholars can respond to this problem. There are a few potential responses that disability rights advocates may give to this argument. Some might  bite the bullet and say that we should give the right to vote to children, or at the very least give substitute votes to parents (or even partial votes— lots of options here). However, some critical disability theorists may want to maintain that we should give all disabled persons the right to participate in politics while denying those rights to persons under the (admittedly arbitrary) age of legal majority. This seems valid for a few reasons:

  • It is often understood that children’s rights are ‘rights held in trust,’ or in other words, that these rights will be granted when the child reaches the age of majority, whatever that age may be. With disabled persons, there is no understanding that these rights will ever be granted— the disenfranchisement is permanent.
  • When children DO reach the age of majority, there is no competency test imposed on the right to vote, except the one for cognitively disabled persons. This creates a fundamental, permanent inequality between neurotypical and disabled people. It also creates a double standard between disabled persons and the rest of society, which is discriminatory.

I personally am a bit torn about the child question; however, for the reasons outlined in this post, I am vehemently in favor of extending the right to vote to cognitively disabled persons regardless of their actual or perceived capacity. We should be finding ways to enable people to participate in politics rather than finding ways to keep them from doing so.

I’ll be writing a lot more about disability and politics and a support-based paradigm in future posts, as this is my current research area. Stay tuned!

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