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János Fiala-Butora, Michael Ashley Stein & Janet E. Lord, The Democratic Life of the Union: Toward Equal Voting Participation for Europeans with Disabilities, 55 Harv. Int’l L.J. 71 (2014).

Abstract: This Article puts forward preliminary legal scholarship on equal political participation by persons with disabilities and what international human rights law requires for its attainment. The goal is to provoke an informed dialogue on the neglected but fundamental human right to enfranchisement by persons with disabilities while also acknowledging that a complete and just resolution requires further information and reflection. The Article argues that the fundamental right to vote cannot be curtailed on the basis of an alleged lack of capacity. Disenfranchisement based on individual assessment unjustly excludes a certain number of voting-capable individuals. Since all those affected are persons with disabilities, this violates the requirement of equality expressed in general international human rights law that recently was explicitly extended to cover disability. The Article also pushes the discussion forward by delving into the controversial and unsettling notion of proxy voting, suggested by philosopher Martha Nussbaum. Although a small number of individuals cannot currently be accommodated in the electoral process, this does not justify their disenfranchisement. Nor does it warrant a more intrusive measure, such as voting by proxy. In no circumstance should their situation justify singling out voting-incapable persons from other individuals or categorizing them differently before the law. Although the focus is often seen through a European lens, the questions raised are pertinent for the exercise of human rights by persons with disabilities around the globe.