Suffrage and Disability: what has been done, what remains to be done (Full-length article)

The starting point is the International Convention on the Rights of Persons with Disabilities, adopted on 13 December 2006 by the United Nations General Assembly and entered into force on 3 May 2008. This International Treaty has been a change of paradigm in consideration of disability. It has grown from an essentially medical or rehabilitative model to a social model, which looks at disability as a human rights issue. The starting point is that the sources originating disabilities are not individual – as the rehabilitative model suggests – but primarily social. Thus, disability is a complex phenomenon that is not simply limited to an attribute of the person, but is the result of a set of conditions, many of which are created by the social context. This has generated a different look to the person with disabilities, focusing primarily on its status as human beings with equal rights and dignity of others and secondly, in a condition (disability) that goes with it, and that requires, under certain circumstances, of specific measures to ensure the enjoyment and exercise of rights on an equal basis as other people (Palacios and Bariffi, 2007: 24). These measures include promotion techniques such as positive action, reverse discrimination or duty to make reasonable adjustments. The aim is that people with disabilities can have equal opportunities as other people in the design and development of their own life plans. The social model is based on the values ​​that are the foundation of rights: the dignity of the person, freedom (as autonomy), equality and solidarity. It only focuses on the medical characteristics of the person incidentally and only when necessary. It places the individual at the center of all decisions affecting them, and it locates the root of the problem outside of the individual in society.

The text of the Convention addresses, among other issues, the recognition of a number of rights that require an added support to be fully effective in some cases. Firstly, Article 12 recognizes that all persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life.

Article 29 recognizes the right of political participation for persons with disabilities on an equal basis, directly or through freely chosen representatives, including the right and opportunity for people with disabilities to vote and be elected. It also establishes a mandate for the government to facilitate such participation, in particular demands them:

1. ensure that the procedures, facilities and materials are appropriate, accessible and easy to understand and use;
2. the protection of the rights of persons with disabilities to cast their vote in secret in elections and public referendums without intimidation, and indeed stand as candidates in elections, hold office and perform all public functions at all levels of government, facilitating the use of new technologies and assistive technologies where appropriate;
3. the guarantee of free expression of the will of persons with disabilities as electors and to this end, when necessary, at their request, allow a person of their choice to assist them to vote;

The Convention has been ratified by 147 States. In Europe, it has been ratified by both the European Union and the Member States and all member countries of the Council of Europe, except Liechtenstein. It is in Europe where there has been a clear trend determined to ensure the full participation of people with intellectual disabilities in the public sphere, through legal and constitutional reforms that allow the recognition of the right to vote to persons legally incapacitated. In this regard, the European Court of Human Rights (ECHR) has warned in the case Alajos Kiss c. Hungary (2010) that the deprivation of the right to vote automatically to all persons under full or partial guardianship is contrary to Article 3.1. of Protocol I (right to free elections).

The ECtHR has not yet had occasion to rule on deprivation of voting rights which are not automatic, but are declared so by a court decision individually. They are still pending cases Marinov c. Bulgaria and María del Mar Camaño c. Spain, but it looks like it might consider them also contrary to the art. 3.1. P I., given that the ECHR has used the Convention as an interpretative parameter in several judgments and the Committee of Ministers of the Council of Europe (2011), the Venice Commission (2011) and the Parliamentary Assembly (2017) have expressed support recognition of the right to vote to all persons with disabilities without limitation.

Spain ratified the Convention on April 21, 2008 and after its entry into force on 3 May the same year we proceeded to adapt and modify various standards for effective making rights that the Convention contains, including Law 51/2003 of equality opportunities, non-discrimination and universal accessibility for people with disabilities. But it has also reformed the Civil Code and the Code of Civil Procedure to change the perception of disability and its treatment through the figure of incapacitation. The method of incapacitation still consists of the same figures, but the order of preference of the protection figures has changed radically. Following the entry into force of the Convention curatorship has become the preferred figure and tutelaje has become a totally residual institution. Replacing incapacitation by modifying the capacity to act reveals a shift in perspective that goes beyond the strictly semantic or nominal. Now, the legal capacity of people with a certain intellectual disability is not automatically replaced, but its capacity changes so that people can receive the necessary support appropriate facets, and only those, being fully capable and independent for other areas of their life.

LOREG in its previous wording reform, established as causes of deprivation of the right to vote judicial declaration of incapacity (art. 3.1.b) and placement in a psychiatric hospital by court authorization (Art. 3.1.c). It also provided that "the judges or courts hearing procedures incapacitation or internment shall expressly rule on the incapacity for the exercise of suffrage" (art. 3.2).

The usual practice was being, in most cases, declaring the inability to exercise suffrage almost automatically, once appreciated the inability to work in other areas. This automation has been widely criticized by the doctrine, for leaving gray areas that allow flexibility to interpret this course (Gálvez, 2009: 82-85, Martinez Pujalte, 2016: 92-97). However, since the Judgment 282/2009 of 29 April, of the Supreme Court, many courts began to apply more rigorously the deprivation of the right to vote, meaning that the loss of this right is not an automatic or necessary consequence of disability, but are compatible incapacitation and unable to reserve the right to vote. One thing is that the person can not govern itself, or manage its wealth, and another thing is to prevent a person from properly exercising his vote. However, this greater accuracy in determining the ability to vote led to the practice of certain forensic examinations in which it was to determine the knowledge level of political affairs and the ability to make a rational vote of persons with intellectual disabilities . Tests that no citizen without disabilities is subjected to. Unfortunately, the only ruling of the Constitutional Court on this alleged discrimination (Case Maria del Mar Caamaño) resulted in the rejection of the demand, without being able to come to appreciate the merits of the case (ATC 196/2016, of November 28, 2016 ).

Given that the United Nations Committee on the Rights of Persons with Disabilities had demanded to Spain in 2011 the reform of the cited art. 3 LOREG to make all people with disabilities have the right to vote, it seemed that the need to accommodate our electoral legislation to the principles of the Convention brooked no further delay. In November 2017 the Assembly of Madrid presented a bill to the Congress of Deputies -an initiative of the associations of the disability- that finally got processed and approved unanimously.

LO 2/2018, of 5 December has led to the definitive abolition of the causes of deprivation of voting rights linked to the judicial declaration of incapacity and internment in a psychiatric hospital. Along with this, a new provision has been included, according to which "Everyone may exercise their right to vote, conscious, freely and voluntarily, whatever their way of communicating and the means of support required." Following this legal amendment, no person with disabilities will be withdrawn the right to vote in the future. In addition, according to the text published, people whom voting right was limited or canceled on grounds of disability "shall be fully reintegrated therein by operation of the law", without having to take any action.

So facing multiple electoral contests that took place in April and May 2019, the Central Electoral Board approved an instruction to guarantee the right to vote of all persons with disabilities. (Instruction 5/2019, Central Electoral Board, on March 11, 2019) in which second section stated:

"The polling stations must accept the vote of any person with apparent disabilities who is registered on the electoral census corresponding to the referred polling station. People with disabilities may rely on someone to accompany them, or any material means to transfer the electoral envelopes to the members of the Polling Station. In the event that any member of a polling station, or any of the auditors or attorneys assigned to the Bureau considers that the vote of a disabled person is not exercised consciously, freely and voluntarily, it may be noted in the minutes session, but it will not prevent that vote to be introduced into the ballot box. In this manifestation of record, the record will identify the elector only by the number of their National Identity Card or, where appropriate, the corresponding identity documentation.

The fourth section provided:

"The Area Electoral Boards shall ensure the correct implementation of this legal amendment and the provisions of this Code, taking appropriate measures to both enforce this regulation to ensure that the vote of people with disabilities can be exercised consciously, freely and voluntarily.”

This certainly unfortunate wording, was a clear outrage among the group of disabled and was contested by some political forces. It was pointed out, rightly, that paragraph 2 of art. 3 LOREG has two distinct parts: the first, "Any person may exercise his right to vote consciously, freely and voluntarily", it is of general application for all citizens and collect the guarantee of the free, already present in the art. 23 of the Constitution; the second, "whatever their way of communicating and the means of support required" is directed specifically to ensure the exercise of the right of persons with disabilities. In this regard, the wording of the second and fourth paragraph of the Instruction of the Board is notoriously discriminatory. Wisely, the Board modified its resolution a few days after, giving a new wording to those articles (Instruction 7/2019, from the Central Electoral Board, on March 18) and removing the reference to people with disabilities.

During 2019 there have been three electoral contests in Spain. General Elections in April, and European, regional and local elections in May, passed without significant incidents. However, according to the organization Full Inclusion, which brings together a network of nearly 900 associations representing intellectual disability, the reform is a step forward, but much remains to be done. Among the most significant problems they highlighted:

- The accumulation of several electoral processes in a short span of time has caused much confusion among groups of people with intellectual disabilities. The May elections were particularly complex, with three or four simultaneous elections requiring different ballots and envelopes.

- The website of the Electoral Census Office is very complex and simple consultation procedure is of enormous difficulty.

- Postal workers had not received the necessary information on the reform and its consequences, so that in many cases sought to deny the documents to persons with disabilities. In this regard, certain cases of notaries who refused to grant the power to withdraw the electoral documentation of post offices because they held these people lacked the capacity to grant such power were also recorded.

- There are still judgments of 2019 which deny the right to vote after the entry into force of the law.

- It seems that the Ministry of Internal Affairs, perhaps for lack of foresight or lack of time, did not properly adapted the necessary logistics. No easy to read polling station guides were published, nor information on the novelty of the reform. In this regard, the parties also published easy to read electoral programs.

Repetition of General Elections on November 10, 2019, provided an opportunity to improve some aspects, and also allowed to normalize the participation of people with intellectual disabilities. According to the Ministry of Internal Affairs on November 10, for the first time, two people with intellectual disabilities were designated as members of the polling stations. In one case, the appointment was as a substitute and finally did not have to perform their duties. As for the person who actually acted as a member of the Bureau, the Electoral Area received and approved the request for support from a person or assistant who helped on election day tasks with absolute normality. Thanks to the easy to read translation provided by Full Inclusion, could facilitate the polling station guide in that format, as well as programs of most political parties. Delegations and Sub-delegations of the Government launched various pilot projects endorsed by the Area Electoral Board and with the approval of the Ministry of Internal Affairs concerning the use of a specific signage on the premises and polling stations in easy language with the objective of facilitating access to these spaces for people with intellectual disabilities, older people with dyslexia, people with literacy difficulties, people with ADHD or any other specific need.

In short, some of the problems identified initially could be corrected in subsequent call, but still certain difficulties persist.

Among the different disabilities, sensory ones are the easiest to accommodate the electoral procedure, since the LOREG and other implementing rules have been implemented for a while some measures to adapt to their needs (vote braille, assisted voting, etc.). As for physical disabilities, there has been a remarkable progress in the elimination of architectural barriers. However, intellectual disabilities have not been adequately addressed yet. Interestingly, adaptation measures for them do not require much investment means. It would be enough to adapt all at an affordable format (readable, explanatory videos, specific design), and it has not been done.

It is important to remember that art. 29 of the Convention, in addition to recognizing the right to vote on equal terms, requires States parties to take the necessary measures to facilitate the participation of people with disabilities. It is useless to recognize the right to participate in public affairs if barriers - social, technical and material - remain preventing or hindering de facto.

Looking ahead to the future it is absolutely necessary to undertake a series of measures. To begin, it is essential to implement a massive information campaign, not only for persons with disabilities but to all citizens, to avoid situations of exclusion. In this regard special attention should be paid to persons who perform important functions during the electoral process as members of the Electoral Boards, the Postal, notaries, auditors and attorneys, etc. The Office of the Electoral Census information should provide clear, simple and accessible information.

The Ministry should adapt all election information to easy to read format. And not only that, it should raise the possibility of introducing improvements in the design of the process and the electoral material to facilitate the exercise of suffrage for persons with disabilities. Expediting procedures and simplifying documentation could be a good starting point. Electronic voting is another possibility, although it could also influence the design of ballots, with the inclusion of pictures or symbols which identify the party or candidate more easily. Political parties also have a great responsibility in this regard. It is important to try to develop their campaigns in an adapted language and to publish their easy to read programs too.

Full inclusion of people with disabilities in political life on an equal footing is not a chimera. It is a reality. LOREG reform was the first stone, but the entire building needs to be constructed. We must overcome resistance, eliminate prejudices and get to work, with effective reforms planned with sufficient foresight not leaving everything to chance. Barriers still found by many people should be removed with determination and courage when people want to do something so simple but so important to democracy such as voting.

Bibliography Cited:

• Gálvez Muñoz, l., (2009), El derecho de voto de los discapacitados y otras personas vulnerables. Teoría crítica y práctica, Valencia, Tirant monografías.
• Martínez Pujalte. A.L., (2016), Derechos Fundamentales y discapacidad, Madrid, Cinca.
• Palacios, A., Bariffi, F., (2007), La discapacidad como una cuestión de derechos humanos. Una aproximación a la Convención Internacional sobre los Derechos de las Personas con Discapacidad, Madrid, Cinca.