In July 2020 the Romanian Constitutional Court declared that the institution of judicial interdiction, which deprived people deemed to have severe intellectual disabilities of numerous civil rights, is unconstitutional. Thus, while the Constitution itself still requires that people with intellectual disabilities placed under judicial interdiction are to be disenfranchised, the provision is de facto inapplicable, making the next round of elections the first in Romania’s history where people with severe intellectual disabilities will be included in the demos. Other countries have more explicitly embraced this type of enfranchisement, with both France and Spain making legislative changes that grant voting rights to people with intellectual disabilities in 2018. Consequently, about half of EU Member States now endorse the electoral exclusion of people with intellectual disabilities, in some form, while the other half fully include them. At a global level, the situation is starkly different, however, with a 2016 study on all 193 UN countries showing that only 11% had provided full enfranchisement up to that point. Thus, it can be said that as of 2022, only a small minority of states abide by Article 29 of the Convention on the Rights of Persons with Disabilities, according to which states should “ensure that persons with disabilities can effectively and fully participate in political and public life on an equal basis with others, directly or through freely chosen representatives, including the right and opportunity for persons with disabilities to vote […]”.
Of course, the normative force of arguments for or against any form of disenfranchisement cannot be primarily derived from the provisions of international law. And, in fact, even from this perspective any judgement would not be so clear-cut, considering the recent decision by the European Court of Human Rights to uphold the practice of disenfranchisement for reasons of intellectual capacity as legitimate in the case of Strøbye and Rosenlind v. Denmark. So what can be said in justification of this policy?