The Case for a Constitutional Right to Barrier-Free Voting for Electors with Disabilities

Abstract

Through a constitutional challenge at the Federal Court of Canada, formal limits on the right to vote for peoples with disabilities were abolished in 1988. Despite this expansion of formal voting rights, peoples with disabilities continue to face barriers in Canadian electoral processes with lower rates of voting and continued reports of barriers in casting a ballot. In this article, I explore voting barriers for electors with disabilities from a constitutional perspective. Instead of focusing on potential legislative and administrative responses to voting barriers, I seek to make the broader case for the constitutional right to a barrier-free voting for electors with disabilities. Specifically, I argue that the right to vote under section 3 of the Canadian Charter of Rights and Freedoms imposes a positive obligation on federal, provincial, and territorial governments to offer barrier-free voting options for electors with disabilities. The recognition of a section 3 right to vote without disability barriers creates a minimum constitutional threshold for any future legislative or executive action (or lack thereof) that impacts electors with disabilities. My proposed right to barrier-free voting for electors with disabilities has three components: (1) the right to a private vote, (2) the right to actively cast a vote, and (3) the right to verify a vote.