The Question

This question was posted on behalf of Kristjan H Kristjansson, member of the regional election administration of the southern part of Reykjavik, Iceland.

How do you ensure the secrecy of voting of a handicapped person, who is not able to write on the ballot paper in your country?

According to Article 5 of the Icelandic Constitution, the President shall be elected by direct, secret ballot. There is an Act on Candidacy and Election of the President of Iceland, 1945 No. 36, 12 February, but some of the articel in the Act No. 24, from 16 May 2000 Concerning Parliamentary Elections to the Althing, is also used in the election of the president, including Article 86:

 “If the voter informs the election official that he or she is not able to write on the ballot paper in the prescribed manner because of loss of eyesight or because the voter is not able to use his or her hand, an election official of the voter's choice shall provide assistance in doing so in the balloting booth, provided that the official is bound by professional secrecy not to disclose what has transpired between the two. This assistance should be mentioned in the election log book and the reasons for it should be mentioned. Assistance to write on the ballot paper shall only be rendered if the voter is able to explain to the person rendering the assistance in an unequivocal manner for whom the voter wishes to cast his or her vote. It is not permitted to offer assistance to those who are in need of such aid.”

After the election on the 30th of June 2012, three handicapped voters sent complaints alleging the invalidity of the presidential election because they could not use the assistance of their personal assitant instead of an electional official.

Summary of responses
There is consensus among the practitioners that the voter with a disability should be able to choose who will assist them in marking the ballot and not have the choice restricted to among polling officials. If the voter does not have someone present who they wish to entrust with this task, the majority view is that they should then be able to select a polling official to aid them.

In all the examples given (South Africa, Nigeria, the Netherlands, Cameroon, Nepal, New Zealand, Canada, Malaysia and Tanzania) the voter may nominate their own assistant. In the absence of the voter nominating an assistant, a polling official or the presiding officer may be chosen instead. The exception is Tanzania, where only a relative may be of assistance.

In New Zealand, the voter in need of assistance may, as an additional measure, request that an official or party representative check the ballot that has been marked on their behalf. 

In some cases, criteria are listed concerning who may assist a voter with disabilities. In Cameroon, an assistant must be a registered voter at the polling station in question, be politically neutral and may not assist more than one elector on polling day.  This last criterion also applies to Canada, as well as the assistant needing to be a registered voter and sign a form undertaking to follow the voter’s instructions, maintain the secrecy of the vote and not try to influence the voter’s choice. In Malaysia, anyone over the age of 21 may accompany a voter requiring assistance.

It is also noted that in South Africa and Cameroon, a tactile (braille) ballot template is available to assist the visually impaired.

In some countries, similar provisions are also made to provide assistance while protecting the secrecy of the vote for illiterate voters.

Examples of related ACE Articles and Resources
Encyclopaedia:
• Focus on Elections and Disability

Names of contributors
1. Granville Abrahams
2. Staffan Darnolf
3. Kisimba Albert
4. David Arabambi
5. Melle Bakker
6. Idi Boina
7. Atem Oben Henry Ekpeni
8. Ali Salatou
9. Bhojraj Pokharel
10. Robert Marsh
11. Kout Sene
12. Michael Clegg
13. Amon Emmanuel Chaligha
14. Manogran Paramasivam

Dear Kristjan 

I am not to sure what your question is.

Allow me however to make a few comments:

Your  legislation though making provision for assistance, limits choice of assistance to voting officials - i am having difficulty in understanding how this constitutes a choice since the chances are that none of the officials would be known to the voter and the choice would therefore be made some arbitary basis which has no relation to the key element the voter is looking for i.e. the element of trust and secrecy.

In providing assistance to voters one should perhaps differentiate between illiteracy and physically challenged. Physically challenged voters depending on the disability with or without voting aids or assistance of their choice (inlcuding personal aid or family member) are able to cast a vote in secret of at least in an environment of trust. This trust however becomes compromised when the choices are limited and any other voting procedures prescribed by law potentially impact on the secrecy of the vote. 

Whether or not the potential compromise of secrecy of the ballot of three handicapped voters constitutes sufficient grounds to challenge the validity of the outcome is a matter to be decided on materiality i.e. would the result have been much different if the three voters would not feel aggrieved, i think not. The issue that should however be highlighted for the future is how the legislation should address the sensitivity the secrecy of the ballot of disabled voters. 

Hope this is of some help. as mentioned i did not see a specific question.

Granville Abrahams

Dear Kristjan 

Only saw the question now. 

We differentiate between physical disabled and illiteracy. Visually challenged is list as handicapped and not illiterate. 

Handicapped voters may be accompany by a person of their choice to assist them to cast their vote. If no one is accompanying them then they may be assisted by the the presiding officer or another voting official. We have also developed a tactile ( universal ballot template) to assist the visually impaired and anyone having challenges of control over their wrinting ability. The UBT allows the voter independance i.e. to cast a vote without assistance.

Illiterate voters requiring assistance must be assisted by the presiding officer only in the presence of two part agents. All officials and party agents have to sign a declaration of secrecy. 

Good Morning,

The solution outlined by Mr. Abrahams whereby the person is allowed to bring his/her person of choice as the primary solution is probably the solution most commonly advocated for. In addition, blind people can also be offered a tactile ballot, the electoral system permitting.

A la suite de stafan, je pense qu’il est vraiment judicieux de demander aux personnes vivant avec handicap et ne pouvant écrire de venir avec une personne de son choix pour cette opération, aussi il toujours important que l’assistance dans l’isoloir soit accompagnée d’un témoin de parti politique présent dans le bureau de vote.  Si le bulletin de vote porte des photos, il est donc préférable que le concerne montre la photo et appose, s’il le peut une empreinte sur la photo.

 I will like to suggest that you go through the electoral act of Nigeria 2006 which I think protects the right to secrecy for handicap and illiterate voters to some degree. Below is what the electoral act 2006, partIV, section 57 says:

 "57. (1) A voter who is blind or is otherwise unable to distinguish symbols or who suffers any other physical disability may be accompanied into the polling station by a person chosen by him and the person shall, after informing the Presiding officer of the disability, be permitted to accompany the voter into the voting compartment and assist the voter to make his mark in accordance with the procedure prescribed by the Commission.

  (2) The Commission may take reasonable steps to ensure that voters with disabilities are assisted at the polling place by provision of suitable means of communication, such as Braille, Large embossed print or electronic devices or sign language interpretation, or off-site voting in appropraite cases."

  The Commission as used above means an EMB.

In the Netherlands the Election Law states that if the pollingstation officials notice that a voter needs help (for physical reasons only) casting his vote, they allow him to be assisted.

During the parliamentary debate it was stated that the assistance preferably comes from a third party (chosen by the voter) and only if that is not possible, by one of the pollingstation officials. The idea is that if the assistance comes from a trusted person the voter will not mind that this person knows about his choice.  

Melle Bakker,

secretary-director Dutch Electoral Management Board 

Le processus électoral est régi par une loi et des dispositifs réglementaires constitutionnels, il suffit de les appliquer. Si il y a des manquement c'est à dire, au cas ou rien n'est prévu alors il y a un minorité de gent privait de leur droit de vote, si (la loi n'a pas prévu une telle assistance des personnes handicapées), il fallait réunion les acteurs clés du processus pour une solution facilitant l'accès de ces personnes à leur droit civique. D'habitude ces personnes font leur choix à des personnes de leur famille pour les accompagnées ou des amis. Mais si la loi a prévu un fonctionnaire du corps électoral alors il est obligatoire de suivre la loi. D'ailleurs les fonctionnaires sont des personnes qui avant d'entrée en fonction portent serment, on ne peut pas les mettre en cause. Elles sont des juges électorales qui sont censées être des personnes intègres et transparentes.

Pour l'exemple, "Après l'élection le 30 Juin 2012, trois électeurs handicapés ont envoyé des plaintes alléguant l'invalidité de l'élection présidentielle parce qu'ils ne pouvaient pas utiliser l'aide de leur assistante personnelle au lieu d'un fonctionnaire Elections." Sachez que annuler ou invalidé des élections demandent beaucoup des conditions, qui sont d'ordre juridique, politique et sociale  des fois on tient compte aussi des conditions économiques du pays avant de prendre une décision d'invalidé une élection; invalidé un bureau de vote n'est pas du tout simple n'en parlant plus d'une élection de grande envergure comme des présidentielles.

It is important however to admit that the complain tendered by the three handicaps or disabled voters attracted concerns on the secrecy of their ballot though not sufficient enough to invalidate the election results. Depending on the electoral systems used, issues like this may attract protestation in constituencies where results are very close (a 2 to 4 vote difference).

The Electoral Code of Cameroon (2012) outlines in Section 105 as follows:

SECTION 105: (1) Any elector suffering an infirmity or whose physical state makes them unable to carry out on their own, any voting operation , may enlist the assistance of an elector of their choice.
(2) The elector chosen must be registered on the electoral register of the polling station concerned and shall not be a candidate or representative of a candidate, list of candidates or political party. They may not assist more than one elector on polling day.

During the 2011 Presidential election, besides the above provisions of the law, the Electoral Commission made available Brailles in polling stations to help disabled voters.

I think this subject should not only be limited to voting. Voter information/education programs should also be designed to accommodate disabled persons. This will help them to understand the provisions and procedures long before E-Day.

La question pose la problématique du vote des personnes ayant un handicap ne leur permettant pas d'exprimer leur préférence dans l'isoloir. Quelle assistance garantissant le secret de leur choix ? Il est exclu, pour plusieurs raisons que les membres du bureau de vote , les différents délégués ou des observateurs s'y impliquent. Il appartient à la personne à handicap d'assumer la responsabilité du choix d'une personne pour l'assister en espérant que celle-ci en gardera le secret sous peine de sanction.

In addition to the polling officials a provision can be made in the law to allow other person of the choice of the voter to use the ballot. In Nepal we have both the alternates to the voters or either request to the polling official or ask to the person of their choice. Following is the spirit of the law. 

Article 46 of the Constituent Assembly Election Act, 2008 has made special arrangement to protect the voting right of the voters who are not able to use (stamp/write/mark/cast..any) their ballot due to physical disability or any other reason. On the request of such voter the presiding officer, if satisfied with the reason, can allow another person of voters’s choice to enter the polling booth along with the voter to assist the voter to use his/her ballot as per the choice of the voter.  Similarly, due to the above reasons, if any voter request to the presiding officer to assist to use the ballot in that case it is the duty of the officer to assist.

In addition to it the act has authorized to the election commission to make any arrangements in facilitating the polling of the blinds, physical disabled, aged persons, pregnant women, or with any other physical disabilities.

 Bhojraj Pokharel

In New Zealand the provisions are similar to those discussed above.  Those who are unable to vote without assistance may be assisted to vote by a person of their choice.  They may also, if they choose, ask another person to check that the vote has been correctly marked before it is deposited in the ballot box.  Either or both of these people may be an official or a party representative.

I also note that enabling people with various disabilities to vote without assistance is one of the key drivers toward electronic voting.

I think that in most of the electoral laws, the provisions are similar and allow the person who is suffering from hadicap to choose a voter of his own to provide him from assistance. By the way the problem of confidence will be solved by himself. The person who will be providing the assistance must also be himself a voter who is registered in the same circumscription. If the person does not have a person of his confidence in the neighborhood, he may ask help from the officials of the polling station. 

This reply is posted on behalf of Michael Clegg Q.C.

In Canada, as with many countries:
 
1. Any voter who has literacy or ability issues that would prevent him or her reading or marking a ballot, may request the president of the polling station to allow assistance by having a person accompany him/her to the voting screen. 
2.  Asistance may be given by another qualified voter of the disabled voter's choice or by the president of the polling station. 
3. No one may assist more than one voter in an election (this is to prevent party agents having a position of significant influence).
4. The person assisting is bound by law not to influence the voter, to follow the voters wishes in marking the ballot and to keep the voters choice secret.
5. The person assisting also signs a form undertaking to do the things in 4, and the form includes the names of the assisted voter and the assister and is kept with the sensitive materials.
 
It is best to warn presidents to watch out for party agents who look for people who might want assistance and then "provide" a volunteer assistant who might be biased.

Michael Clegg Q.C.

In Tanzania the election laws stipulates that a person who is handicapped or cannot read or write can bring a relative who can assist in the voting process. Polling station officials and political party agents are not allowed to assist such a voter.  No one may assist more than one person save where there is more than one person with such disabilities from the same family.

Dear Kristjan,

In Malaysia, previously we allowed a relative nominated by the incapacitated voter and whose name appears in the electoral roll for any constituency in Malaysia to mark the ballot paper on his/her behalf.  If the incapacitated elector has no relatives, the Presiding Officer shall mark the ballot paper on his/her behalf in a manner dictated by the voter. Relative here means father, mother, brother, sister, wife, husband, son or daughter of the voter.  

Agents of candidates were not happy with the Presiding Officer marking the ballot paper on the voter's behalf.  Further, it was difficult for the relatives to fullfil the requirements to accompany the incapacitated person.  Thus, the regulations have now being amended to allow any person who is above 21 (not necessarily registered as an elector yet) but trusted by the voter to accompany him and mark the ballot paper on is behalf.  

Thanks, P. Mano