“Nothing About Us Without Us”: The Legal Disenfranchisement of Voters With Disabilities in Germany and its Compliance with International Human Rights Standards on Disabilities

I. INTRODUCTIONGermany's atrocious treatment of persons with disabilities in the first half of the twentieth century is a dark chapter in its history.1 Within six months of taking power in 1933, Adolf Hitler and his Nazi regime initiated a genocide against persons with disabilities, portraying them as having "lives unworthy of living" and subjecting them to tremendous human rights violations.2 One of Hitler's first initiatives was to enact compulsory sterilization laws to prevent "genetically diseased offspring."3 The 1935 Nuremberg Laws prohibited persons with disabilities from marrying and thus furthered the dehumanization of persons with disabilities.4 By the late 1930s, such laws and negative propaganda fostered the general public perception that having a disability justified murder.5 In 1939, the government initiated the year of the "duty to be healthy," an extermination program for children with disabilities.6 Euthanasia programs for adults followed shortly.7 These programs subjected people with intellectual, emotional, and physical disabilities to the mass destruction techniques later used in the Nazi concentration camps.8 Ultimately, over 80,000 adults with disabilities died at the hands of the Nazi regime.9The International Bill of Human Rights, composed of the three human rights treaties that emerged after World War II,10 the Universal Declaration of Human Rights ("UDHR"),11 the International Covenant on Civil and Political Rights ("ICCPR"),12 and the International Covenant on Economic, Social and Cultural Rights ("ICESCR"),13 is remarkably silent on the rights of persons with disabilities. The UDHR was adopted in 1948 to condemn the human rights violations that occurred during World War II and the Nazi era and to prevent them from recurring.14 Nevertheless, while article 2 of UDHR stipulates that all human beings are entitled to the rights contained in the instrument "without distinction of any kind, such as race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status," disabilities are not explicitly referenced.15 Similarly, neither the ICCPR nor the ICESCR explicitly address the rights of persons with disabilities.16 Consequently, these legal instruments collectively ensured disability remained "an invisible element of international human rights law" for the last half of the twentieth century.17Yet, studies and statistics from UN agencies relating to the treatment of persons with disabilities reveal that such individuals continue to experience arbitrary and unfavorable treatment around the globe.18 In an attempt to improve this situation, in December 2006, the UN General Assembly adopted the Convention on the Rights of Persons with Disabilities ("CRPD")19 and its Optional Protocol to promote the "full and effective participation and inclusion" of persons with disabilities in society.20 Under this treaty, State parties must guarantee that persons with disabilities are treated equally and not discriminated against on the basis of their disability.21The right to non-discrimination and full inclusion in society encompasses the fundamental right to participate in political life, which requires that persons with disabilities have the right to vote on equal footing with others.22 Article 25(b) of the ICCPR provides that every citizen shall have the right to vote by equal suffrage "without unreasonable restrictions."23 Article 29(a)(iii) of the CRPD explicitly extends this right to persons with disabilities, setting out that State parties must guarantee persons with disabilities the right to "effectively and fully participate" in political life on an "equal basis with others" and guarantee the "free expression" of their will as electors.24As a party to the CRPD and its optional protocol25 and to the ICCPR,26 Germany is obligated to allow persons with disabilities to participate in political life on an equal basis with others by granting them the right to vote. …