W(ork) I(n) P(rogress) : 1

Enfranchising the cognitively disabled…

Introduction

There is little inter-jurisdictional consensus on the role played by cognitive disability in determining political inclusion.  That is, different jurisdictions treat the cognitively disabled significantly differently, in terms of their entitlement to vote, the restrictions place upon them in the exercise of both voting rights and other aspects of political participation, and in terms of the tests or thresholds that they must pass in order to be politically included.  In this article, I ask whether there is any reason to favour some particular approach to the enfranchisement of the cognitively disabled.  Potential reasons to favour a particular approach can be found in the UN convention on the rights of persons with disabilities (UNCRDP), in our democratic theory, particularly those aspects which limit the legitimate reasons to deny people rights to participation, and occasionally in the domestic law of particular jurisdictions, where the question of the enfranchisement of the cognitively disabled has arisen and been addressed.  I argue in light of these considerations that we should favour an inclusive approach to the enfranchisement of persons with cognitive disabilities, in which we only sparingly exclude these persons from political participation, and where possible, we provide them with opportunities to show that they are capable of participation.  For all who take these opportunities, we should, of course, enfranchise them.
The structure of the article is as follows.  In the first section, I describe the differing approaches taken to the enfranchisement of the cognitively disabled across a range of jurisdictions.  This explication is intended both to highlight the lack of agreement among the international community as to the best way to approach the enfranchisement of the cognitively disabled, and to illustrate the broad range of currently instantiated approaches that are available as options.  In section 2 I analyse the different sources that can bear on the question.  Using the examples discussed in section 1 I analyse the requirements imposed by the UNCRPD, by democratic theory, and by relevant aspects of jurisdiction specific legal practice.  Finally, I suggest that having taken all these into account, the approach to the enfranchisement of those with cognitive disabilities that best achieves our obligations is an inclusive one, in which significant numbers of the cognitively disabled are entitled to participate.

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Hoping to get this one wrapped in the next week or so.

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