Original Question

This question was posed by an ACE user through the "Ask a question" function in Electoral Advice.

In Timor-Leste, the law regulating voter enfranchisement might be seen as unclear when considering the exclusions from the right to vote due to mental illness. "Individuals clearly and publicly known as mentally ill even where they are not judicially disabled" are excluded from voting. As some voices have claimed that this definition is too broad, I am interested in comparative experiences from other countries and in some of the common ways of determining whether a person is fit to vote or not, in terms of mental health.

Introduction

Despite the fact that democratic countries consider election rights to be essential and absolute, and emphasize the notions that every vote counts and is universal, there are still groups of people within these democratic societies to whom election rights are not extended. In fact, as stated in the ACE Focus on Elections and Disabilities, the electoral laws of most countries deliberately disenfranchise citizens with mental disabilities. Yet the criteria that distinguish those fitting in this category from the ‘mentally sane’ citizens vary greatly. Hence, some electoral laws do not clearly define who can be considered mentally disabled, and they fail to explain the rationale behind using this particular health condition for striping a group of citizens off their fundamental democratic right. The nature of this question has led to an interesting discussion among the Members of the Practitioners’ Network, who not only compared the variety of the criteria and the different practices used for designating people as mentally disabled, but also voiced some doubts regarding the usefulness of such regulations. 

“… revoking the right to vote to any member of a society is a severe measure that must never be underestimated.”

Antonio Spinelli

Summary of the Responses

The Problems of Vague or Broad Definitions of ‘Mental Illness’

As the Legal Framework chapter of the ACE Encyclopaedia states, the main guiding principles for designing a good electoral legal framework require legal provisions to be straightforward, intelligible and clear; inclusive of all the electoral components that are necessary for undertaking of democratic elections. Electoral law likewise has to contain features that ensure the protection of civil rights, including the right to vote. The clarity that should apply to the overall legal framework ought to be taken into account especially when dealing with such a contentious issue as voter exclusion. As Antonio Spinelli points out, if a definition of the ‘mentally disabled’ is as broad as in the case of Timor-Leste, where electoral law defines the mentally disabled as: “Individuals clearly and publicly known as mentally ill even where they are not judicially disabled”, it becomes not only a discriminatory measure, but it also lacks sufficient legal basis.

According to Spinelli, the main problem with such a broad definition is that it leaves the ultimate decision making regarding people’s ‘sanity’, to the judgment of electoral officials rather than psychiatrists, whose medical assessment could be required to be backed by a court. Furthermore, this type of definition fails to provide a clear list of the symptoms that a person has to display in order to be considered ‘mentally disabled’. Neither does it specify the threshold a person has to ‘reach’ in order to be no longer considered mentally sane. This could in turn lead to very subjective judgments based on people’s own perceptions and experiences.   

Who Determines Citizens’ ‘Mental Disability’ in regards to Elections?

Instead of having broad definitions, several countries apply the principle of universal right of all citizens to vote unless this right is taken away from them by court or a judicial authority. Hence, one of the common criteria used to determine citizens’ mental disability is through court orders. As Michael Hendrickse points out, this is the case for instance in South Africa. It is only the High Court of South Africa or if more applicable a criminal court, that can find citizens to be of ‘unsound mind’. Being incapable of distinguishing right from wrong, these individuals have to be detained at an institution for mentally disabled. A certified copy of a court order declaring a person ‘mentally disordered’ or of ‘unsound mind’ is then required for the Electoral Commission to make a decision that the person cannot be registered as a voter or vote as such. The situation is similar in the United States, where only a state court can declare a person mentally disabled in regards to their electoral rights. As decisions are made on an individual basis, there are no general rules in the US that would apply to the ‘mentally disabled people’ or citizens who are under guardianship and their electoral rights. Similarly, Ross Attrill notes that although the Commonwealth Electoral Act states that, ‘people of unsound mind’ who cannot understand the nature and significance of enrolment and voting are neither entitled to be on the electoral rolls nor vote, it is the court system based on the advice of doctors that decides whether the person is of unsound mind. Hence, it is not the Electoral Commission itself.

In some other countries citizens lose their right to vote if a court appoints them a legal guardian or when they are put into an institution for mentally disabled by a court order. As David Henry points out, in New Zealand only those citizens who are “compulsorily detained in a hospital or a secure facility and to whom specific court orders apply” are not allowed to vote. This stipulation in the electoral law is mostly directed towards people who were found ‘innocent’ on account of insanity or people who would have normally been jailed for more than 3 years, but because of their mental conditions they cannot stand trial. (It should however also be noted that all criminals who serve a sentence for more than 3 years are not allowed to vote and therefore this last provision is not considered discriminatory towards people with mental disabilities).

Going even a step further in minimizing the voter exclusion, the UK passed an Electoral Administration Act in 2006, which abolished the law that had not allowed people with certain mental deficiencies to vote. This Act has thus enabled the ‘mentally disabled’ to participate in the electoral process. Thereby even those patients who are detained in the mental institutes have been granted a right to either temporarily leave the hospital in order to vote in person, or vote by post or proxy. Finally, there are also countries such as Canada, Ireland, Italy and Sweden, where there are no national restrictions at all in regards to the right to vote for mentally disabled citizens.   

Why Exclude the Mentally Disabled from Voting?

Considering the variety of different practices illustrated above, Antonio Spinelli poses a broader and more general question: Why do there have to be any provisions discriminating the mentally disabled and taking their right to vote? While the most often cited reasons include the assumption that the mentally disabled citizens are not capable of understanding the election process and its implications and that they are especially prone to manipulation, as Spinelli emphasizes, many times, the electoral laws simply fail to take into consideration the variety of mental illnesses and their different effects. Even though mental infirmity may cause intellectual as well as other impediments, not all mental illnesses have an impact on the individual’s ability to understand political issues. After all, as both Spinelli and Wall note, it is often the case that even those voters who are not deemed mentally ill make uninformed choices. Considering the latter as well as the problem of declining voter turnout faced by many countries and the assumption that the more seriously mentally disabled the citizens are, the less interested they will be in voting, Spinelli argues that disenfranchising this group of people may not be necessary at all. Instead, he suggests corrective measures such as the production of user-friendly informative literature and voting materials or voting assistance to the mentally disabled.      

Developing the Standards

As Spinelli notes, if the law makers in a particular country come to the conclusion that it is necessary to disenfranchise the group of mentally disabled citizens, they should at least try to ensure that the law contains some fundamental provisions that will allow to precisely determine:

 -    whether the individual is mentally disabled at all

-    what exactly is the mental disability/ impairment that s/he is suffering from

-    how, and if at all, the mental disability affects the individual’s ability to make an informed political choice at elections

 Several organizations, including IFES, International IDEA as well as the International Covenant on Civil and Political Rights (ICCPR) have also been pursuing a diverse range of activities aimed at improving the status of the people with disabilities and their electoral rights. Specifically, a project was launched to develop international standards of electoral access for people with disabilities. Multiple stakeholders, including the representatives of global and national disability organizations, regional and national electoral bodies as well as agencies that promote democracy and human rights were involved in the process. Based on this initiative, the Bill of Electoral Rights for Persons with Disabilities and accompanying guidelines for election agencies were established during a 2002 meeting in Sweden, at which approximately 45 representatives of disability organizations, election agencies, parliaments, and international democracy agencies met and discussed this important issue.

 If there are certain criteria followed to disenfranchise voters based on their mental health, Alan Wall concludes with a suggestion that there could be similar criteria also for the candidates running in the elections. A precedent seems to have been set already for instance by Indonesia where one of the candidacy requirements for people running for the office of president/ vice-president, includes physical and mental health check. Hence, the candidates are required to be able to “physically and mentally perform their duties and obligations as President and Vice President.” The details determining the physical and mental capacity of the candidates were based on the advice of the Indonesian Medical Association, and each of the candidates in the 2004 elections had to undergo a 9.5 hour examination by a panel of doctors, which was in turn evaluated by a special evaluation team.

Replies were received with thanks from:

Ross Attrill

Michael Hendrickse

David Henry

Antonio Spinelli

Alan Wall  

 Other Sources:

ACE Encyclopaedia: Legal Framework – Guiding Principles

ACE: Focus on Elections and Disabilities

ACE Encyclopaedia: Parties and Candidates – Criteria to Stand as a Candidate

Global Initiative to Enfranchise People with Disabilities: http://www.electionaccess.org/

In South African law, mental illness is dealt with in terms of a person’s legal capacity, and therefore only the High Court can determine a person’s legal status and capacity to do certain lawful actions vis a vis their mental status. In the criminal field, a person can found by a criminal court to be of unsound mind to the extent that he/she in incapable of understanding the wrongfulness of his/her actions or the criminal proceedings, and that person ordered by that Court to be detained at a mental institution.

Therefore a formal objection to the Electoral Commission regarding a person’s mental capacity to register as a voter, or to vote is determined by submission of proof (certified copy of a Court Order) by the objector that the person has been declared by the High Court to be of unsound mind or mentally disordered; or that the person has been detained under the Mental Health Act. The decision is therefore pre-determined by our Courts after hearing expert medical opinion.

The approach of the South African Electoral Commission is thus based on the inherent right of a citizen to vote unless they can be lawfully excluded. We do not expect our officers to entertain allegations of mental illness without substantive legal basis (in this case a Court Order), as such serious allegations can otherwise be made lightly and/or for nefarious motives.

Regards

Michael Hendrickse

The wording of the Commonwealth Electoral Act concerning this matter is also broad. It states that:

"A person is not entitled to:

• have their name placed on the electoral roll,

• be kept on the roll, or

• vote in any federal election

if they:

• are of unsound mind such that they cannot understand the nature and significance of enrolment and voting [s.93(8)(a) CEA ]"
• However,  the court system, on the advice of medical practitioners is the place where this is to be tested. Decisions on "soundness of mind" can not be determined by the Electoral Commission.

I am sure that everyone would agree that revoking the right to vote to any member of a society is a severe measure that must never be underestimated. Personally, I am against any forms of voting discrimination and legal exclusion, particularly when they affect an already vulnerable and socially stigmatised part of the society, such as those individuals suffering from mental impairments.

Voting exclusion based on mental infirmity is a contentious issue, but it becomes even more controversial when its application is loosely defined in an electoral legislation.  I fully agree that the way in which the electoral law of East Timor sets barriers to disenfranchise “individuals clearly and publicly known as mentally ill, even where they are not judicially disabled” is vague, extremely broad and discriminatory.

A first consideration is that the words “clearly” and “publicly” do not seem to establish a sufficiently solid legal (and even diagnostical!) basis that could be used to unequivocally evaluate the mental capacities of an eligible Timorese citizen who, supposedly, is deemed to be mentally ill. Such a basis does not seem sufficiently solid to legitimise the revocation of someone’s voting rights. 

As currently stipulated, these provisions:

• leave the determination of the mental capacities of a prospective voter to the judgment of an election officer (entirely based on a personal perception) and not to the expert assessment of qualified health professionals backed by the ordinance of a relevant judicial body; and
• fail to elaborate on (1) what degree and symptoms of mental impairment a person must have for a election officer to consider this individual as “clearly” and “publicly” mentally disabled; and (2) on what infirmity’s threshold must be based the decision on whether the right to vote of that person must be granted or denied (in other words, how “clearly” and “publicly” insane an individual must be to be deprived of the right to vote).

In any society, personal perception may vary considerably, particularly when a person who is not a health professional has to judge the actions, the behaviour, the choices or the intellectual reasoning of another individual. For example, the former Italian Prime Minister, in one of the most controversial and provocative statements made in his full institutional capacity, publicly defined as “mentally infirm” all Italian voters who would not vote for his party.  Arguably, other people would find voting for him and his party as an act of total insanity. Obviously this is a paradox, but it demonstrates how extensively individual perception of mental sanity/insanity could vary.

Furthermore, it is also questionable when the electoral law of East Timor stipulates that such citizens have to be disenfranchised even “where they are not judicially disabled”. As I stated above, when taking such a stern measure of depriving someone of his/her right to vote, the personal perception of a election officer cannot have more legal power (and equivalent legitimacy) than the combination of an ordinance of a judicial body based on the assessment of qualified health professionals.

As a minimum, to assess whether an eligible voter is mentally fit to vote or not – and certainly before revoking the right to vote of this citizen on the basis of mental infirmity - one would expect the electoral law of East Timor to contain clear provisions that would allow to carefully and precisely ascertain three fundamental aspects, in the following order:

(1) whether that individual is mentally impaired or not;

(2) what exact type of mental impairment this individual has; and

(3) if and how the impairment affects the ability of this individual to make an informed and “intelligent” political choice.

Frankly, I don’t believe that an election officer possesses the required notions of diagnostic psychiatry to make such an important determination in an entirely legitimate and professional manner.

So, in terms of voting access for mentally disabled electors, in my view, the electoral law of East Timor is certainly inadequate. I would strongly advise the relevant authorities amending it, by:

• “softening” and clarifying the way in which these exclusionary provisions are expressed in the electoral law;
• transferring the decision, in the case of allegations of mental infirmity, to revoke the voting right of a mentally disabled voter to a qualified medical body/board and a relevant judicial body rather than to an unaware election officer;
• starting to debate and consider the possible abrogation of the disenfranchisement provisions altogether (becoming a leading example for other countries).

The interesting case of East Timor brings up broader questions. 

• Why mentally disabled voters have to be discriminated at all?
• Why the vote of a mentally disabled person should count less than those of other citizens?

As a good starting point, it is important to consider that there are different types of mental disabilities that can have diverse impairing effects in the way in which a person reasons, communicates or behaves. Most commonly, mental infirmities can be categorised into: mental disabilities; cognitive/intellectual disabilities; and mental illnesses/psychiatric disabilities.  

Therefore, when dealing with mental infirmity and voting rights, it is important to take into account that, while mental infirmity can cause intellectual, personal and social impediments, not all mental illnesses necessarily impair a disabled person's ability to understand political issues or make reasonable decisions and choices when casting his/her vote.

A very sad reality is that, in the wide majority of world’s countries, electoral frameworks have rules and procedures laying down barriers to limit equal participation in the electoral process of mentally disabled citizens. 

The study “Deciding who has the right to vote: a comparative analysis of election laws” (conducted in 2000) examines the electoral laws of 63 democratic countries to conclude that there are only four countries – namely Canada, Ireland, Italy and Sweden – without any restrictions at the national level on the right to vote for persons with mental disabilities.

Typically, the most obvious justifications for the adoption of exclusionary provisions are that:

• voters with mental disabilities are/may be incapable of understanding the process, its mechanisms and the political issues at a stake well enough to cast a “legitimate” vote; and
• voters with mental disabilities are/may be particularly vulnerable to undue influence and manipulation by other individuals when expressing their voting rights.

Yet, one could easily argue that in many consolidated democracies a wide number of voters who are not affected by any mental disabilities usually cast their votes without being minimally informed (or at least with minimal information) about the process, the mechanisms and the social and political issues at a stake in an election. Then, it is quite inexplicable why these voters are free to exercise their voting right and mentally disabled voters are instead being widely and consistently discriminated.

For years now, in the US and UK, the extension of voting rights to mentally disable voters has been a hotly contested topic. In some recent cases, this form of legal discrimination has been addressed by electoral reforms.

In the US, only a state court may declare a person mentally incompetent and, therefore, unable to exercise the right to vote. These decisions are made on a case-by-case basis by a Superior Court judge and it cannot be assumed by default that anyone under a guardianship, due to his/her mental capacity, is ineligible to vote. Whether a person under guardianship may vote depends on when the guardianship was imposed, and whether the guardianship is full or partial.

Still in the US, the practice of revoking voting rights for people with mental disabilities dates back to the 18^th century when, drafting and ratifying the earliest constitutions in the various states, legislators opted to exclude "the idiot and insane" as a restrictive measure to ensure that the active electorate consisted only of those capable of making informed and intelligent political decisions. Interestingly, while in the course of the last centuries psychiatric and notions and social prejudices of mental disability have made significantly advances, these obsolete exclusionary legal provisions were neither amended nor abolished.

In the UK -- on a more positive note -- the Electoral Administration Act passed in 2006 abolished the common law rule that prevented certain people with mental impairments from voting, in order to facilitate their participation in the electoral process. The Act went as far as extending the right to vote for detained mental health patients (other than those detained under criminal powers) who have been given permission to leave hospital on a temporary basis to vote in person, as well as by post or proxy.

In Canada, at the federal level, every citizen who is 18 years of age or older on election day is entitled to vote. Until 1993, however, the Canada Elections Act excluded from voting "every person who is restrained of his liberty of movement or deprived of the management of his property by reason of mental disease." This provision was abrogated in 1993.

The disenfranchisement of mentally disable voters not only deprives these individuals of their inviolable right to vote, but also represents an act of arbitrary exclusion and legalised discrimination based on archaic and obsolete values. Regrettably, another negative effect of disenfranchisement laws is that, as long as many countries worldwide continue to exclude the mentally disabled from voting, political parties and candidates will have no incentives in pursuing issues, protecting the interests and advancing policies that are relevant to this vulnerable category of citizens.

With voter turnout increasingly declining throughout the world, excessive legal restrictions to voter participation are quite illogical, particularly when the “harm” made by the presumably non-informed vote of a mentally disabled voter is certainly minimal. Also, it should be considered that the more serious is the mental illness is, the less are the chances that a disable voter would be interested (or even able) to vote and appear at a polling station, so that enacting legislative provisions to prevent their participation seem to be quite an excessive measure.

What also seems completely illogical is that, before going as far as disenfranchising any individual, there could be a number of corrective measures to be adopted, such as: producing informative literature and voting materials in simple language and in a user-friendly format to facilitate mentally disabled voters in understanding and using them; or providing voters with mental disabilities with voting assistance from persons of their choice in reading a ballot paper or in going through any other step of the voting process. 

Rather than worrying of a few votes of mentally disabled voters, I think that, more realistically, there should be barriers on grounds of mental infirmity not so much for those who vote, but for those who want to be elected, where the harm to a society (and even to the whole humanity) can be much more extensive. Unfortunately, in recent times, we seem to have enough reasons to be greatly concerned for the behaviour and the actions of democratically elected leaders, who have “clearly” and “publicly” demonstrated not to be in their full mental capacities.

In New Zealand the circumstances under which a mentally impaired person is disenfranchised are very limited - in effect only people who are compulsorily detained in hospital or a secure facility and to whom specific court orders apply. The provisions are aimed at people who would have been imprisoned for more than 3 years on criminal charges but cannot stand trial because of their mental state or  have been acquitted on account of insanity. (This mirrors the provisions that disenfranchises convicted criminals only if they are serving a sentence of more than 3 years.) Outside these limited circumstances mental impairment is not a barrier. After all we do not attempt intelligence tests to determine whether a voter is fully informed in regard to the vote he or she is going to cast!

David Henry

I'd agree with the views that a mental health disqualification  from voting is one to be used minimally - as per New Zealand, and certainly not be adjudged by electoral officials. 

I'm interested in Antonio's  point on mental health tests for candidates for office - a bit off track, but .....  Indonesia in 2004 included a physical/mental health qualification in its candidacy requirements for the presidency and vice presidency. Candidates were required  to be 'physically and mentally able to perform their duties and obligations as President and Vice President' . This was widely and correctly seen as a direct attempt  to prevent the physically disabled and somewhat erratic former president Gus Dur from being a candidate. Which it did. 

Anyway,  the National Election Commission,  issued 17 pages of regulatory guidelines, on the basis of Indonesian Medical Association advice, detailing just how the physical and mental capacity of candidates was to be determined. Each candidate was to submit to a a nine and a half hour examination by  panels of doctors specialising in various ailments, and the results evaluated by an Evaluation Team comprising a Steering Team, an Executive Team and the various members of the specialist Assessment Teams.  Hopefully the candidates could also use the results for their next life insurance update.

The evaluation was to record a diagnosis of mental disability if it found evidence of the candidate:

a. Suffering from psychosis (the problem of schizophrenia, the problem of moods   with psychotic image, the problem of fixed suspicion, the problem of acute psychosis, etc);

b. Suffering from serious neurosis;

c. Suffering from mental retardation and other intellectual handicaps (such as  decreasing memory like in minimal cognitive impairment);

d. Suffering from personality complex;

Many presidential candidates the world over would, I suspect, have problems with at least (d). A copy of the full medical examination guide is attached.

Leave it to the voters. 

Regards

Alan