The Ban on Voting in Elections, Imposed on Persons With Mental Disabilities, Unconstitutional

On Thursday, 11 October 2018, the Constitutional Court of Moldova delivered a judgment on the exception of unconstitutionality of Article 13 para. (1) let. b) of the Electoral Code.

The circumstances of the case
The case originated in an exception of unconstitutionality of Article 13 para. (1) let. b) of the Electoral Code, invoked by attorney Alexandru Cebănaș in the case no. 2-2766/2017, pending before the Court of Law of Chișinău, Ciocana office.

The applicant alleged that the provisions of Article 13 para. (1) let. b) of the Electoral Code, which deprive of the right to vote the persons declared incapacitated by a final decision of the court of law, are in breach of Articles 1 para. (3), 4 and 8 of the Constitution, providing for the rule of law principle, human rights and freedoms, as well as the duty to observe international law and treaties.

The Court’s assessment
As a master of characterisation on constitutional review and considering the submissions it was presented with, the Court examined this exception in light of the right to vote and the right to be elected, safeguarded by Article 38 of the Constitution.

The Court noted that the ban on the right to vote of persons with mental disabilities is a disputed practice before the national courts of other States. The Court reviewed in particular a number of cases in the case law of the American courts. Thus, in the case of Doe v. Rowe, 156 F. Supp.2d 35 (D. Me. 2001), the United States District Court of the state of Maine struck down the ban on the right to vote in case of a person under guardianship. This District Court provided that, although the authorities had a compelling interest in ensuring participation in elections of the voters who understand the nature and effect of the voting act, no blanket ban  on voting shall be imposed. Therefore, due to the fact that the provision in question did not distinguish between the different categories subject to guardianship proceedings and was leading to a disenfranchisement of certain individuals who were aware of the voting process, the Maine’s District Court struck down the challenged provision. The solution of the Maine’s District Court was also based on the Equal Protection Clause of the Fourteenth Amendment of the US Constitution.

In the case of Carroll v. Cobb (N.J. Super. Ct. App. Div. 1976) from the US, when assessing the presumption on the inability of the individual declared incapacitated to understand the nature and the effect of voting (in the examined case, the plaintiffs suffered from mental retard and, at the material time, were residents of a specialised state school), the Supreme Court of New Jersey found that it was for the courts to decide on whether or not an individual under guardianship has the capacity to vote, and that it was not within the municipal clerk’s competence to determine such facts. This court noted that the New Jersey Constitution and election laws withdrew suffrage from any idiot or insane person. It also considered it abundantly evident that a lay person is completely unequipped to determine whether or not an individual with disabilities has the capacity to vote. Moreover, it held that mere residency at an institution for the mentally retarded did not raise a presumption of idiocy. Accordingly, the plaintiffs’ request on the recognition of their voting rights was declared admissible.

The Court also considered useful the considerations of the United States Supreme Court in the case of Carrington v. Rash, 380 U.S. 89, 93-94 (1965), where it invalidated provisions of the Constitution of Texas that prohibited “any member of the Armed Forces of the United States” who moves his home to Texas during the course of his military duty from ever voting in any election in that State “so long as he or she is a member of the Armed Forces.” It rejected the contention of the State of Texas in that the ban on the vote of military personnel pursues a legitimate interest in immunizing its elections from the concentrated balloting of military personnel, whose collective voice may overwhelm a small local civilian community. The court held that the risk of manipulating military personnel does not justify the restriction of the voting right. Furthermore, it held that the voting right can neither be restricted based on a presumed influence by their commander.

The Court noted that striking a fair balance between various interests, beliefs and ways of life is a fundamental value of democratic societies.

It referred to the case-law of the European Court of Human Rights, which held that in the twenty-first century, in a democratic State, the right to vote must not be a privilege of some small groups of people, it being a good of the whole society and the presumption shall operate in favour of its recognition for the largest possible number of people (see, Mathieu-Mohin and Clerfayt v. Belgium, 3 March 1987, § 51; and Hirst v. The United Kingdom [no. 2], 6 October 2006, § 59). Otherwise, the democratic legitimacy of the so elected legislating body and that of the laws adopted by it would be undermined (see, Hirst [no. 2], cited above § 62).

The Court further noted that the issue brought before it is marked by an emerging consensus on the capacity to vote of persons with mental disabilities. This consensus implies the existence of a standard that determines whether a person with mental disabilities has the capacity to understand the nature and the effects of the voting act, and therefore has the ability to vote.

This ability may include one or more of the following: (a) the person understands the information relevant to the decision he should take; (b) the person is able to assess the implications of this information for his own situation; (c) the person has the ability to compare available options; and (d) the person is able to choose the desired option from the list. The Court then assessed the extent to which those elements were taken into account when imposing an absolute bar on the right to vote of the persons with mental disabilities (declared “incapacitated”) by the challenged legal provisions.

The Court noted that, when declaring a person incapacitated, the raison d'être of protecting that person from the negative consequences of his own actions was also extended to the right to vote. Thus, the ban on voting provided by Article 13 para. (1) let. b) of the Electoral Code was grounded on the mere supposition that a person declared incapacitated is unconscious when exercising the right to vote. Such a presumption has been and is largely rejected by national and international courts, which have emphasized that, except for well-defined cases, people with mental disabilities must enjoy the right to vote.

In the case of Alajos Kiss v. Hungary of 20 May 2010, the Government of Hungary argued that disenfranchisement of those placed under guardianship aims at ensuring the society’s trust in the electoral system. The European Court confirmed the legitimacy of such an aim. (§ 40). The Court admitted that such a legitimate aim may also be applicable to the electoral legislation of the Republic of Moldova.

Although the state has an interest in protecting the integrity of the electoral process, the assumption that persons with mental disabilities are usually subject to manipulation is based on a bias (see, mutatis mutandis, Carrington v. Rash, 380 U.S. 89, 93-94 (1965), § 26).

Even if this bias would be true of persons admitted in medical facilities, it is not justified in the case of people living in the community. Moreover, even in the case of those admitted in medical facilities, there would be less drastic means than barring from voting in order to thwart their manipulation. By way of examples, the state could allow the free access of people with disabilities to electoral materials and information sources, thus mitigating the danger of unilateral influences, or could encourage, where possible, voting in the community where people lived prior to their institutionalization.

The Court made reference to the case of Alajos Kiss v. Hungary delivered by the European Court on 20 May 2010, as having a res interpretata effect. The mere finding of an automatic, blanket restriction on the franchise of incapacitated persons sufficed for the European Court to conclude on the violation of Article 3 of Protocol no. 1 of the Convention (§ 43).  The Court found no reason to depart from this finding.

Therefore, since the ban on the exercise of voting rights has been applied automatically and undifferentiated, with no substantiated assessment by a court of law on the capacity to vote of persons with mental disabilities, the challenged provision is unconstitutional.

Conclusions of the Court
Having regard to all the foregoing considerations, the Court declared admissible the exception of unconstitutionality invoked by the attorney Alexandru Cebănaș in the case no. 2-2766/2017, pending before the Court of Law of Chișinău, Ciocana office.

It declared unconstitutional Article 13 paragraph (1) letter b) of the Electoral Code, adopted by the Law no. 1381 of 21 November 1997.

This judgment is final, it cannot be appealed, shall enter into force on the date of its adoption, and shall be published in the Official Journal of Moldova.

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This a courtesy translation of the original text available in Romanian language.