Positive Discrimination Measures for Persons with Disabilities in the Exercise of Their Right to Vote
In Decision No. U-I-168/16, dated 22 October 2020 (Official Gazette RS, No. 168/20), upon the petition of several individuals and the Slovenian Disability Rights Association, the Constitutional Court reviewed the constitutional consistency of statutory measures for the positive discrimination of persons with disabilities in the exercise of their right to vote, which are regulated by the National Assembly Elections Act. The main allegation of the petitioners was that the legislature’s omission of voting machines is inconsistent with the Constitution as it fails to ensure persons with disabilities personal, independent, and secret voting at polling stations.
The right of persons with disabilities to non-discriminatory treatment requires that the exercise of their human rights and fundamental freedoms be in fact as similar as possible to the regular exercise of such rights. In order to ensure persons with disabilities exercise of their right to vote, the state must make the voting procedure accessible to such persons in the broadest sense of the word, by adopting so-called positive discrimination measures. When the active right to vote is at issue, this entails that the legislature must ensure persons with disabilities the possibility to exercise such right personally, independently, secretly, and possibly at polling stations, to the greatest extent possible and in a manner that is as similar as possible to the exercise of such right by other voters; however, the legislature does not have to adopt measures that would entail a disproportionate or unnecessary burden (reasonable accommodation).
The Constitutional Court established that the legislation in force requires that physical access to all polling stations be ensured to persons with disabilities, and, in addition, enables persons with disabilities to vote by means of ballot papers adapted to disabilities, by mail, with the assistance of another person, or at home before a polling station committee. With respect to voting by means of ballot papers adapted to disabilities, it held that such ballot papers must be available at all polling stations, that they must be available at least to blind and visually impaired persons, and that the term ballot papers adapted to disabilities must be understood in the broadest sense of the word, which includes various devices (such as templates, magnifying glasses etc.). With respect to voting by mail, it established that the National Assembly Elections Act enables wide application of such type of voting and that it entails a positive discrimination measure that in fact enables the equal treatment of persons with disabilities. With respect to voting with the assistance of another person, it held that the latter only acts as ‘an extended arm’ of the person with a disability, who thereby expresses his or her own will, and that the duty to protect the secrecy of voting and the prohibition of being held responsible applies to such assistants as well. The National Assembly Elections Act does not explicitly determine voting with the assistance of another person when persons with disabilities vote by mail, but it is not excluded that when voting by mail persons with disabilities may be assisted by another person whom they trust and choose themselves. With respect to voting at home before a polling station committee, the Constitutional Court established that, according to the National Assembly Elections Act, such type of voting is connected with an illness and not explicitly with a disability, but, based on the argument of analogy, the statutory wording must be interpreted in a manner that would allow such a voting possibility also for persons with disabilities. Such interpretation is consistent with the Constitution as it guarantees yet another positive discrimination measure that facilitates the exercise of independent, personal, and secret voting by persons with disabilities that is very similar to voting at polling stations. This is all the more important since voting before a mobile polling station committee is also carried out by means of ballot papers adapted to disabilities or with the assistance of another person, if the voter so wishes.
The Constitutional Court thus ascertained that the National Assembly Elections Act determines several positive discrimination measures for persons with disabilities in the exercise of their active right to vote. It assessed that by adopting the latest amendment to the law at issue the legislature made significant progress in facilitating the exercise of personal, independent, and secret voting by persons with disabilities and in ensuring their equal integration into society when it determined that all polling stations must be made physically accessible to persons with disabilities.
The Constitutional Court devoted special attention to persons with disabilities who need technical assistance in order to vote personally, independently, and secretly, and who previously exercised their right to vote by means of voting machines. It established that such persons with disabilities may vote with the assistance of another person at all polling stations, by mail, and at home before a polling station committee. It held that such voting is appropriate from the viewpoint of the right to personal, independent, and secret voting (the second paragraph of Article 43 of the Constitution) as well as from the viewpoint of the right to non-discriminatory treatment (the first paragraph of Article 14 of the Constitution). In such context, it emphasised that the assistance of another person must be limited to technical assistance in filling in and delivering the ballot paper; however, voting decisions must be made and expressed by voters themselves. It highlighted the significance of the relationship of trust that must be established between the person with a disability and his or her assistant, whereby the person with a disability can freely decide to whom he or she assigns the role of assistant, while the latter is bound by the duty to respect the free decision of the person with a disability and the duty to keep such decision secret.
In light of the above, the Constitutional Court decided that the elimination of voting machines, taking into consideration the regulation of other positive discrimination measures as a whole, does not interfere with the right of persons with disabilities to non-discriminatory treatment in the exercise of their right to vote and that the statutory regulation is thus not inconsistent with the Constitution.