The last suffrage movement in Japan: Voting rights for persons under guardianship

ABSTRACT

In the 1990s, only four of the 63 democratic countries of the world opted to give the right to vote to people with mental health problems and/or intellectual disabilities. However, by the late 2000s, 11 countries, including Japan, had lifted all restrictions and granted those people the right to vote. These changes were justified based on international factors such as the Convention on the Rights of Persons with Disabilities, which was drafted in 2006. However, as shown by the fact that some countries have granted this right and other countries have not, even among countries that ratified the Convention on the Rights of Persons with Disabilities, foreign pressure has had varying effects. Therefore, it is necessary to analyze domestic political processes in order to explain the increasing number of countries granting full voting rights to people with mental/intellectual disabilities.

In Japan, people under guardianship gained the right to vote in 2013. Why and how did this happen? This article examines Japan’s domestic political processes regarding this right, and clarifies the conditions under which it was recovered. The article reveals how the investigation into the process of making domestic legal changes, which is required to ratify treaties related to the rights of people with mental and/or intellectual disabilities, led to an important discovery regarding the constitutional basis for denying voting rights. People with disabilities and their supporters claimed that the qualification clauses of the Public Offices Election Act were unconstitutional. The resultant rulings in favor of the plaintiffs directly led to legal revisions.

KEYWORDS:

• Political participation
• political exclusion
• right to vote
• persons under guardianship
• disability

Introduction

In recent years, scholars have increasingly debated how groups that have been excluded from political participation, such as people with disabilities, can be included in the political process (Ryan, Henderson, & Bonython, 2016; Savery, 2015; Schur, Kruse, & Blanck, 2013). Previous studies have established that while many people with disabilities have both the ability and desire to take part in elections, they still find themselves disenfranchised because they lack the necessary knowledge, information, or support to vote (Argan & Hughes, 2013; Argan, MacLean, & Kitchen, 2016; Bell & Horsler, 2003; Femec, Kis-Glavas, and Masic, 2017; Inoue, 1993; Kjellberg, 2002; Schriner & Ochs, 2000; Schriner, Ochs, & Shields, 1997; Scotch, 1988, 2001). In this article, however, I focus on the right to vote, which is the most essential condition of political participation.

The right to vote is a crucial aspect of democracy. Yet even in many democratic countries, citizens sometimes find their voting rights restricted because they have an intellectual or mental disability or suffer from declining cognitive function. Voting restrictions typically take the form of limitations on the right to vote of people who are wards in an adult guardianship system or people whose legal competency has been restricted by a court decision (Beckman, 2012; pp. 167–171; European Union Agency for Fundamental Rights, 2010; p. 15). Specifically, an investigation of the election laws of 63 countries that were considered fully democratic during the 1990s found that only four of these countries did not restrict the voting rights of people with mental or intellectual disabilities (Massicotte, Blais, & Yoshinaka, 2003, pp. 17–27). In recent years, however, some countries have revised voting restrictions that are grounded in restricted legal capacity based on the impairments above. By the latter half of the 2000s, the number of countries that did not restrict the voting rights of people with mental or intellectual disabilities had increased to 11, including Japan. This will be discussed in detail later.

Most countries that moved to restore voting rights were prompted to do so by international treaties and actions taken by international organizations in response to those treaties. Such international agreements included the Convention on the Rights of Persons with Disabilities (CRPD), which was adopted in December 2006; advice by commissions established in response to the CRPD; rulings by the European Court of Human Rights; and the recommendations of the Council of Europe (Schur et al., 2013; p. 90; Tsunamori, 2015; p. 5). These developments came about because the CRPD mandates that signatories ‘actively promote an environment in which persons with disabilities can effectively and fully participate in the conduct of public affairs, without discrimination and on an equal basis with others, and encourage their participation in public affairs’ (Article 29). However, while 177 countries and territories have ratified the CRPD as of April 2018, not all of them have actually eliminated voting restrictions that target voters with mental disabilities and similar impairments. This shows that international pressure alone is not enough to push countries to revise their laws. While international pressure is a primary factor in domestic legal reforms, countries are often selective in what they choose to do in response to such pressure.

From this perspective, Japan provides a fascinating example. In Japan, people who are adult wards (成年被後見人, seinen hikōken’nin)(formerly known as ‘legally incompetent individuals’ (禁治産者, kinchisansha)) were deprived of the right to vote until 2013, when the ‘disqualifying clause’ that disenfranchised them was struck from the Public Office Election Law. ‘Adult wards’ are citizens who make use of the adult guardianship system because they have dementia, an intellectual disability, or a mental disability that makes it difficult for them to manage their assets or their daily lives by themselves (Hōmushō Minjikyoku, 2017, p. 1). The government’s stated reasons for disenfranchising adult wards were, first, that such people lack the ‘mental capacity to adequtely understand a situation’ (事理弁識能力, jiri benshīkī nōryoku), meaning that they cannot be expected to participate in politics in a typical fashion, and moreover, that the limited decision-making capacity of adult wards makes it difficult for them to exercise individual judgment at the ballot box (Iida, 2012, Chapter 3). However, in 2013, the disqualifying clause was struck from the Public Office Election Law, restoring adult wards’ right to vote.

Why did people with disabilities recover their right to vote in Japan, and through what process was this goal reached? In this article, I examine the political process that led to the restoration of adult wards’ right to vote in Japan in order to identify the conditions that led to this achievement. My broader aim is to contribute to discussions about how people with disabilities can be guaranteed their right to political participation, and how groups that have been excluded from such participation can be included in the political process.

The structure of this article is as follows. In Section 2, I draw on data from existing research from around the world to lay out the connection between intellectual or mental disabilities and the right to vote. In doing so, I pinpoint the differences between signatory countries of the CRPD who have restored voting rights and those who have not. In Section 3, I use Japan as a case study and describe the political process that led to the restoration of adult wards’ right to vote. I also examine the number of adult wards in Japan who have actually been voting in elections since their voting rights were restored. In Section 4, I summarize my findings and describe their implications.

Section 2: restrictions on the right to vote based on intellectual and mental disabilities

Conditions in 38 countries

How does having an intellectual or mental disability affect a person’s right to vote? How has the link between disenfranchisement and intellectual or mental disability evolved over the years? Massicotte et al. (2003) investigated the election laws of 63 countries that were considered fully democratic in the 1990s. They found that only four of these countries, Canada, Ireland, Italy, and Sweden, did not restrict the voting rights of people with mental disabilities. In the remaining 59 countries, such people were disenfranchised to some degree. Moreover, in 12 of those 59 countries, this disenfranchisement was enshrined in the constitution.

How has this situation changed over the past 20 years? In the following paragraphs, I use research from the European Union Agency for Fundamental Rights and the Essl Foundation to analyze the link between disenfranchisement and intellectual and mental disability after the year 2000. In 2009 and 2010, the European Union Agency for Fundamental Rights examined the impact of intellectual or mental disability on a citizen’s right to vote in each of the 27 countries that make up the EU (European Union Agency for Fundamental Rights, 2010). From September to November 2014, the Essl Foundation surveyed 275 disability organizations in 150 countries on the topic of political participation by people with disabilities (Essl foundation, 2015a). By analyzing these previous studies, I identified the particular conditions in 38 countries (see Table 1). Notably, all 38 are signatories of the CRPD.

Table 1. The connection between disabilities and the right to vote.

(1) Countries that restrict the voting rights of people with intellectual or mental disabilities to some degree (27 countries)

Right to vote restricted for all individuals that meet certain criteria: Australia, Greece, Switzerland, Germany, Belgium, Hungary, Bulgaria, Poland, Portugal, Latvia, Lithuania, Luxembourg, and Romania Right to vote restricted as a rule, but can be restored in some circumstances: Cyprus, Slovakia, Slovenia, the Czech Republic, Denmark, Malta, and Estonia Right to vote decided case-by-case: Spain, France Other: the United States, India, South Africa, Tanzania, Saudi Arabia

(2) Countries that do not restrict the voting rights of people with intellectual or mental disabilities (11 countries)

Ireland, Italy, the United Kingdom, Austria, the Netherlands, Canada, Sweden, Norway, Finland, Ecuador, and Japan

Source: Beckman (2012); European Union Agency for Fundamental Rights (2010); Essl Foundation (2015a, 2015b); Kajitani (2012); Matsuura (1987); Nihonbengoshirengōkai (2012); Shimura (2012); Yamashiro (2012).

Table 1 divides the 38 countries between 1) countries that restrict to some degree the voting rights of people with intellectual disabilities or mental disabilities and 2) countries that do not impose any such restrictions. My analysis confirms that among these 38 countries, 11 do not impose voting restrictions. The remaining 27 countries sometimes restrict a person’s right to vote based on their legal capacity. 13 of these 27 countries deny voting rights to anyone who uses an adult guardianship system or a similar system. Looking at the results from a synchronic perspective, we can see that even in the second half of the 2000s, most countries still restricted the voting rights of people with intellectual or mental disabilities. When we take a chronological perspective, however, we see that the number of countries that do not restrict voting rights has increased since Massicotte et al. (2003) published their research.

Countries that restrict the right to vote

Let us take a look at which countries restrict the voting rights of people with disabilities and why. The 27 countries that restrict voting rights (see Table 1) all do so based on whether a person’s legal capacity is restricted because of some impairment, although these countries all impose restrictions based on different criteria and to different degrees. In other words, we can say that people with disabilities remain at least partially disenfranchised in these countries, despite international developments in the other direction. In these countries, doubts about people’s ‘capacity to vote’ have long been used to justify depriving individuals of their voting rights. Such doubts center on the question of how people with mental or intellectual disabilities or reduced cognitive function can cast a well-reasoned and logical vote (Robertson, 1994, pp. 289–292). We can assume that the 27 countries shown in Table 1 are still restricting individuals’ right to vote based on their disabilities because of continuing doubts about their capacity to vote.

However, every country imposes these restrictions based on different criteria and to different degrees. First, 13 countries use the strictest possible standards, banning from the ballot box all people whose legal capacity is restricted because of some impairment: Australia, Greece, Switzerland, Germany, Belgium, Hungary, Bulgaria, Poland, Portugal, Latvia, Lithuania, Luxembourg, and Romania. Of these countries, eight have these restrictions enshrined in their constitution: Greece, Switzerland, Hungary, Bulgaria, Poland, Portugal, Lithuania, and Luxembourg.

Seven more countries, Cyprus, Slovakia, Slovenia, the Czech Republic, Denmark, Malta, and Estonia, also bar anyone who does not possess legal capacity from voting. However, in these countries, individuals without legal capacity can win the right to vote if a court or doctor certifies that they are capable of casting their ballot. In two countries, Spain and France, courts determine on a case-by-case basis whether individuals are capable of voting. As a general rule, Spain does not restrict people’s right to vote based on their possession of legal capacity. However, an individual can be disenfranchised if a court rules that he or she does not possess the capacity to vote. In France, courts determine on a case-by-case basis whether people have the ability to vote; individuals can be barred from voting only if a court rules that they lack the ability to do so. France asserts that ‘while restrictions on the right to vote can be imposed to a certain degree, it is not permissible to automatically restrict an individual’s right to vote when they become a ward in an adult guardianship system’ (Yamashiro, 2012, p. 229).

Four countries, India, South Africa, Tanzania, and Saudi Arabia, restrict the voting rights of people with disabilities to some degree, although it is not clear which criteria they use. The Essl Foundation study contains a variety of responses from organizations based in these countries: ‘Mentally ill not allowed to vote’ (India), ‘Yes, although persons with certain mental illnesses are excluded and especially persons with Mental Illness who have committed a crime and who are in prison for it’ (South Africa), ‘The main challenge is found [with] person[s] with intellectual or psychosocial disabilities who are considered [to have] unsound mind and therefore not eligible to vote’ (Tanzania), and ‘People with mental disabilities, people with intellectual disabilities, and people who lack legal competency do not have the right to vote’ (Saudi Arabia).

Finally, in the United States, regulations differ from state to state (Argan & Hughes, 2013; Schriner & Ochs, 2000; Schriner et al., 1997; Shimura, 2012). At present, many states still restrict the voting rights of people with mental disabilities. Based on information from 2008, Shimura (2012) found that out of 52 jurisdictions in the United States (50 states plus the District of Columbia and Puerto Rico), only six jurisdictions (about 11.5%) do not restrict the voting rights of people with mental disabilities in any way.

Countries that do not restrict voting rights: A focus on countries that restored voting rights since the 2000s

On the other hand, 11 countries do not restrict the voting rights of people with disabilities: Ireland, Italy, the United Kingdom, Austria, the Netherlands, Canada, Sweden, Norway, Finland, Ecuador, and Japan. Five of these countries, Italy, Austria, Sweden, Ireland, and Canada, had already lifted voting restrictions by the early 1990s. Four others did not lift restrictions until the second half of the 2000s: the United Kingdom (in 2006), the Netherlands (in 2008), Ecuador (in 2009), and Japan (in 2013). In other words, we can assume that these four countries restored the voting rights of people with disabilities in response to international developments that took place after 2000.

Before discussing the case of Japan in detail, I will first give an overview of how the three other countries that restored the voting rights of people with disabilities after 2000 came to do so. The United Kingdom used to deny voting rights to people without legal capacity, in line with a common-law rule. However, the 2006 revision of the Electoral Administration Act restored this group's right to vote (European Union Agency for Fundamental Rights, 2010, p. 20). In the Netherlands, the right to vote and the eligibility to run for elected office of people who spent a significant amount of time as adult wards were restricted under the 1983 constitution. In 2003, however, the Administrative Jurisdiction Department of the Council of State held that these restrictions violated the International Covenant on Civil and Political Rights. After this, the Dutch constitution was amended in 2008 to restore the right to vote to adult wards (European Union Agency for Fundamental Rights, 2010, pp. 19–20). For its part, Ecuador enacted a new constitution in 2009 that enshrined social changes, gender equality, the multi-ethnic nature of the country, and so on. In line with this new constitution, restrictions on the right to vote of people with intellectual or mental disabilities were also lifted.

The above information shows that even countries that have ratified the CRPD can still be divided into those that continue to restrict voting rights based on the ‘capacity to vote’ and countries that have eliminated such restrictions. As the examples of the United Kingdom, the Netherlands, and Ecuador show, international developments may provide an impetus toward change, but the actual extension of the right to vote to people with mental disabilities still depends on the revision of domestic law. Following these examples, I now turn to Japan for a detailed analysis of the domestic political process that led to the lifting of voting rights restrictions in that country.

Section 3. how Japan restored voting rights to adult wards

Which people used to be excluded from the right to vote?

Japan realized universal suffrage for men and women over the age of 20 in 1945. The Japanese constitution states that citizens have the right to choose and dismiss civil servants (Article 15 (1) of the Constitution of Japan) and establishes universal adult suffrage for the purpose of choosing civil servants (Article 15 (2) of the Constitution of Japan). Article 44 of the constitution stipulates that no one may be disqualified from standing in parliamentary elections or from voting because of race, creed, sex, social status, family origin, education, property, or income.

Despite this constitutional guarantee, adult wards (formerly ‘legally incompetent individuals’) were disenfranchised until 2013, when the clause that disqualified them from voting was struck from the Public Office Election Law. As explained above, adult wards are citizens who make use of the adult guardianship system because they have dementia, an intellectual disability, or another mental disability that makes it difficult for them to manage their own assets or their daily lives. The adult guardianship system was established in 2000 to replace the system of those known as ‘legally incompetent individuals.’ By the end of December 2012, a total of 136,484 citizens were making use of the adult guardianship system, mainly in order to safeguard their assets (Saikōsaibansho jimu sōkyoku katei-kyoku, 2016).

Table 2 shows the evolution of the disqualifying clause that applies to the Lower House elections. Occurrences of the provision about adult wards are underlined. The system of adult wards can be traced back to legislation from the Meiji era (1868–1912), where the concept of ‘intemperate idiot’ (癇癪白痴者, kanshaku hakuchisha) appears. In 1919, this was amended to ‘legally incompetent individuals and quasi-incompetent individuals.’ ‘Legally incompetent individuals’ (禁治産者, kinchisansha) were people who were consistently of unsound mind and had been pronounced incompetent by a family court. ‘Quasi-incompetent individuals’ (準禁治産者, jun-kinchisansha) were people who showed diminished mental capacity and prodigality and who had been pronounced quasi-incompetent. Before it was eliminated during a partial revision of the civil code in 1979, the category of ‘quasi-incompetent individuals’ had included not only people who were of unsound mind and/or body but also people who were deaf, mute, blind, or prodigal and who had been pronounced quasi-incompetent. As a result of their inclusion in this category, such people found themselves barred from voting. When the Public Office Election Law was enacted in 1950, the concept of ‘quasi-incompetent individuals’ was removed, leaving only ‘legally incompetent individuals’ disenfranchised (Inoue 1993, pp. 14–16). The system of ‘legally incompetent individuals’ was changed to the adult guardianship system in 2000, but the clause that disqualified those ‘legally incompetent individuals’ from voting was retained. With the revision of the Public Office Election Law in 2013, however, the words ‘adult wards’ were removed from the disqualifying clause, restoring the right to vote to over 130,000 adult wards.

Table 2. The evolution of the disqualifying clause.

1889	(1) Intemperate idiots and prodigal people (2) People whose civil rights have been revoked or suspended (3) Prisoners (4) People who committed crimes related to an election
1900	(1) to (4), plus: (5) Noble heads of households (6) Soldiers (7) Students and pupils
1919	(1) and (2) amended to legally incompetent and quasi-incompetent individuals and prodigal people (3) to (7) stay the same
1925	(1) to (6) stay the same (7) Students and pupils who have been added to the military register (8) People without a fixed address (9) People who receive public assistance or aid for reasons of poverty
1945	(1) to (5) stay the same (6) and (7) are removed (8) to (9) stay the same
1947	(1) to (4) amended to legally incompetent and quasi-incompetent individuals and people who have been sentenced to penal servitude or imprisonment and are currently serving their sentence (5), (8), and (9) are removed
1950	(1) Legally incompetent individuals (category of quasi-incompetent individuals is removed) (2) Prisoners (except those whose sentence has been deferred) (3) People who committed crimes related to an election
2000	Move from system of legally incompetent individuals to adult guardianship system. Disqualifying clause is retained
2013	Mention of adult wards is removed

Source: based on Inoue (1993, 5), revised and amended by the author. Note: Post-1990, only revisions related to adult wards (formerly known as ‘legally incompetent individuals’) are shown.

As explained above, doubts about an individual’s ‘capacity to vote’ have long been used to justify depriving such people of the right to vote in countries around the world (Robertson, 1994, pp. 289–292). This used to be more or less the case in Japan as well. Specifically, adult wards were considered to lack the mental capacity to adequately understand a situation (in other words, to consider the facts of particular matters and the consequences thereof, then to declare their intentions in a valid way), meaning that they could not be expected to participate in politics in a typical fashion. Moreover, adult wards were thought to have difficulty making their own judgments at the ballot box because of their limited decision-making capacity. These doubts about adult wards' capacity to vote were the Japanese government’s stated reasons for disenfranchising them as a group (Iida, 2012, chapter 3). When the ‘legally incompetent individuals’ system changed to the adult guardianship system in 2000, attempts were made to incorporate respect for individual autonomy in the new system as much as possible (Arai and Homma, 2005). However, a highly paternalistic way of thinking was still applied to the connection between voting and ‘capacity’ (nōryoku) in Japan. After restrictions on the right to vote were eliminated, however, there was a notable switch to a comprehensive approach that focused on suffrage for all individuals and eschewed the use of abstract criteria related to the ‘capacity to vote’ (Ryan et al., 2016, p. 1055).

The political process that led to the restoration of voting rights

What kind of political process resulted in the restoration of voting rights to adult wards in Japan? Two factors contributed to the removal of the disqualifying clause in the Public Office Election Law that barred adult wards from the ballot box. The first factor was that Japanese domestic law had to be amended after the country ratified the CRPD. The second factor was that disability organizations and others filed lawsuits seeking to have the disqualifying clause in the Public Office Election Law removed so that adult wards would be able to vote.

The United Nations General Assembly adopted the CRPD in December 2006. In May 2008, the CRPD came into effect. Japan signed the CRPD in September 2007 and ratified it in January 2014. After Japan signed the CRPD in 2007, efforts to amend domestic law accelerated. In December 2009, the Cabinet Office established a Council for Disability Policy Reform that was headed by the prime minister and included all members of his cabinet. This council was tasked with spearheading the targeted reform of domestic law to prepare for the day when the CRPD would come into effect in Japan.

The Council for Disability Policy Reform mainly focused on amending the Basic Act for Persons with Disabilities, the Act for Employment Promotion of Persons with Disabilities, the Act for Comprehensive Services and Support for Persons with Disabilities (an amended version of the Act on Self-Reliance Support for Persons with Disabilities), and the Act for Health and Welfare of Persons with Disabilities, as well as on creating the Act on Elimination of Disability Discrimination and the Act on the Prevention of Abuse of People with Disabilities (Okamura, 2015). This meant that removing the disqualifying clause from the Public Office Election Law was not high on the council’s agenda. However, the September 2011 Section Meeting to Eliminate Discrimination of the Disability Policy Reform Working Group included the ‘Hearing about Causes for Disqualification.’ At this hearing, Kumiko Usui, then secretary general of the Citizen’s Committee to Eliminate Disqualifying Clauses on Disability, stressed, ‘The right to vote is one of the things that people with disabilities have been robbed of through disqualifying clauses,’ and added ‘Countless people see their basic rights in society threatened via a system of state-ordained discrimination. […] This would not have happened if our laws did not include disqualifying clauses. I want this council to take this reality into account during their debates.’ This is most likely the point where the government also realized that disqualification from voting under the Public Office Election Law was a genuine problem not only for citizens who were already wards under the adult guardianship system but also for those who might potentially use the system one day, such as citizens with dementia or intellectual or mental disabilities.

Another direct impetus toward legal reform came on 1 February 2011, when a woman with Down syndrome filed suit with the Tokyo District Court after her right to vote was taken away when she became a ward under the adult guardianship system. She alleged that her right to political participation was being infringed upon unconstitutionally and asked the court to rule on whether she had the right to vote. After the woman reached the age of majority and thereby gained the right to vote, she had accompanied her parents to the ballot box during every election and cast her vote after consulting official campaign bulletins. Moreover, the woman’s father – who was also her guardian – had been active as an advocate for the human rights of people with disabilities for many years. After the father consulted a group of lawyers who were passionate about defending the rights of disabled citizens, they decided to file suit. This lawsuit was followed by others around the country, leading to trials in four localities: Tokyo, Saitama, Sapporo, and Kyoto. Since the Tokyo lawsuit called for developing constitutional arguments that had not been raised before, the group of lawyers joined forces with several academics. For example, they asked Waseda University professor Teruaki Tayama to study whether ‘ability’ (能力 nōryoku) was considered a sine qua non for retaining one’s right to vote in other countries, a matter that was of great concern to the courts. The results of Tayama’s research on other countries were submitted in court (Sugiura, 2013). Moreover, supporters from several local associations of parents of people with intellectual disabilities or developmental disorders formed the Association for Reconsidering the Voting Rights of Adult Wards and threw their support behind the lawsuits. Various groups of lawyers and support organizations studied the state of affairs in other countries and the court strategies used there as they pressed forward with their suits. On 14 March 2013, the Tokyo District Court ruled that the provision in the Public Office Election Law that deprived adult wards of the right to vote was unconstitutional.

In response to these developments, eight opposition parties submitted a joint proposal in the National Diet on May 17 to remove the clause that disqualified adult wards from the Public Office Election Law. The proposal was approved on May 27. This means the law was revised in great haste, only two months after the disqualifying clause was ruled unconstitutional (the amended law came into effect on June 30 that same year). Some say that the government moved so quickly because New Komeito, the coalition partner of the ruling Liberal Democratic Party (LDP), was already involved in promoting the adult guardianship system. That meant that New Komeito had a strong interest in amending the provision that caused adult wards to lose their right to vote, as it could discourage people from using the adult guardianship system more. On the morning of 15 March 2013, one day after the disqualifying clause was ruled unconstitutional, Yoshihisa Inoue, then secretary general of New Komeito, held a press conference in the National Diet at which he expressed his desire to revise the law by removing the disqualifying clause, calling upon the LDP for support (Kōmeitō, March 16, 2013a). In response, the LDP set up a ‘Project Team for Adult Wards and the Right to Vote’ on April 9. The president of the LDP’s Election System Research Council, Ichiro Aizawa, was optimistic that the law could be revised, saying, ‘We want to waste no time and produce positive results’ (Kōmeitō, April 13, 2013b). At the time, the majority of seats in the House of Councilors were in the hands of the Democratic Party of Japan, creating what is called a ‘twisted parliament’ (ねじれ国会, nejire kokkai (literally ‘contorted Diet’)), meaning that a different political party controlled each house of parliament. However, because eight opposition parties banded together to produce a joint proposal, the revision was nevertheless approved quickly.

This was the chain of events that enabled Japan to revise the law that had disenfranchised people with disabilities. As the country was moving to amend domestic laws in order to enable Japan’s ratification of the CRPD, the government recognized that the disqualifying clause in the Public Office Election Law was a policy challenge. This opened the door to lawsuits by disability organizations and likeminded complainants. After a court ruled that the disqualifying clause was unconstitutional, the issue was taken up by the opposition parties.

How many adult wards are voting in elections?

Now that adult wards are no longer denied the right to vote, how many of them are voting in elections? It is known that while many people with disabilities have both the ability and desire to take part in elections, they still find themselves disenfranchised because they lack the necessary knowledge, information, or support to vote (Argan & Hughes, 2013; Argan et al., 2016; Bell & Horsler, 2003; Femic et al., 2017; Kjellberg, 2002). However, how many voters have actually been barred from the ballot box by the legal hurdles thrown up by voting rights restrictions?

Legal-Support Adult Guardian Center, a nationwide public interest incorporated association made up of judicial scriveners, twice organized a ‘Survey on the Exercise of Voting Rights’ during the July 2013 regular House of Councilors election and the December 2014 general House of Representatives election (Seinen kōken sentārīgaru sapōto, 2013, 2015). The surveys were sent to judicial scriveners who were members of the organization. 330 members (who were responsible for a total of 1,241 adult wards) responded to the survey in 2013, while 114 members (responsible for a total of 710 adult wards) answered in 2014. The survey asked several questions about the political participation of adult wards, for example, if the judicial scriveners had informed their charges in some way or another that adult wards now had the right to vote; if they had not, why they had not done so; and if their charges had voted in the elections. Both surveys returned broadly comparable results, so we will take a detailed look only at the 2013 survey, which had the most respondents.

Table 3 shows the responses to the question ‘Have you informed the adult wards in your charge in some way or another that they have the right to vote?’ About 33% responded, ‘I informed them that they have the right to vote,’ while 67% stated, ‘I have not informed them that they have the right to vote.’ Table 4 shows the responses to the question ‘Why have you not informed the adult wards in your charge that they have the right to vote?’ About 8% answered, ‘[I believe that] they already know they have the right to vote.’ About 70% answered, ‘I concluded that they would not be in a condition to vote even if I informed them they could.’ About 9% answered, ‘I concluded that it is not my responsibility to tell them about something like their right to vote,’ while a final 13% indicated ‘Other.’

Table 3. Have you informed the adult wards in your charge that they have the right to vote?

	%	N
1. Yes	33	382
2. No	67	762
Total	100	1,144

Note: N is not the number of judicial scriveners who responded to the survey, but the number of adult wards.

Table 4. Why have you not informed the adult wards in your charge that they have the right to vote? (multiple answers possible).

	%	N
1. [I believe that] they already know they have the right to vote	8	23
2. I concluded that they would not be in a condition to vote even if I informed them they could	70	198
3. I concluded that it is not my responsibility to tell them about something like their right to vote	9	25
4. Other	13	37
Total	100	1,209

Note: N is not the number of judicial scriveners who responded to the survey, but the number of adult wards.

Table 5 shows the responses to the question ‘Did adult wards in your charge vote in the election?’ About 5% answered ‘Yes,’ while about 65% answered ‘No.’ The remaining 30% responded ‘I do not know whether they voted or not.’ It is difficult to say whether adult wards voted in large numbers or not, since there is no obvious category of people to which this group of voters could be compared. However, it is clear that some adult wards had both the desire and the ability to vote in elections but found themselves barred from the ballot box before the disqualifying clause was removed.

Table 5. Did the adult wards in your charge vote in the 2013 regular house of councilors election?

	%	N
1. Yes	5	64
2. No	65	783
3. Do not know	30	362
Total	100	1,144

Note: N is not the number of judicial scriveners who responded to the survey, but the number of adult wards.

Conclusion

An investigation of the election laws of 63 countries that were considered fully democratic during the 1990s found that only four of these countries did not restrict the voting rights of people with mental or intellectual disabilities. By the latter half of the 2000s, the number of countries that did not restrict the voting rights of people with mental or intellectual disabilities had increased to 11, including Japan. This change has been credited primarily to the influence of international developments. However, when we divide the signatories of the CRPD into countries that have restored voting rights and those that have not, it becomes clear that countries are selective in what they choose to do in response to such developments. This is why countries’ domestic political processes must be analyzed alongside international developments in order to explain the change in the number of countries allowing people with disabilities to vote. Based on this perspective, I used Japan, which restored the voting rights of adult wards in 2013, as a case study, examining why and through what sort of process adult wards recovered their right to vote.

This article has shown that as Japan sought to amend domestic laws so that it could ratify of the CRPD, the government also recognized that the disqualifying clause in the Public Office Election Law was a policy challenge. This opened the way for disability organizations and others to file lawsuits. After a court found the disqualifying clause unconstitutional, opposition parties took the issue forward. Moreover, after recovering their right to vote, 5% of adult wards in Japan participated in the 2013 election.

These results have two implications. First, I have ascertained that restoring the voting rights of people with disabilities requires not only policy development on an international level, but also that the issue be taken up in countries’ domestic political processes. In Japan, the efforts made by the disability movement – and the fact that courts and political parties were receptive to these efforts – contributed greatly to the restoration of the voting rights of people with disabilities. Second, a problematic aspect of limiting voting rights based on individuals’ use of adult guardianship systems and the like is that it excludes an entire category of people from political participation, including people with disabilities who do possess the ability and desire to vote. Previous studies have provided empirical evidence that many people with intellectual disabilities possess the ability and desire to vote but find themselves disenfranchised because they use some form of adult guardianship system. In practice, 5% of adult wards in Japan participated in an election. Since about 130,000 people in Japan are users of the adult guardianship system, it appears that about 6,500 people who possessed the desire and ability to vote were previously excluded from political participation. However, it is likely that the actual number was much greater. That is because 67% of guardians of adult wards did not inform their charges that they had regained the right to vote. If all adult wards knew that they can now vote, it is likely that a higher percentage of adult wards would cast their ballot. Of course, no one has established whether these other adult wards have a desire to vote. However, considering that a certain number of adult wards have the desire to vote and did turn out on election day, it appears there is a need to inform more adult wards that they can vote.

This research leaves many questions unanswered. Among others, the conclusions drawn here cannot be generalized without additional comparative research on a global scale. A specific key point to consider in future research is what separates countries that restrict the political participation of people with disabilities from countries that have eliminated such restrictions. Comparative research on a global scale could provide a valid answer to this question.

Additional information

Funding

This work was supported by the Japan Society for the Promotion of Science [grant number 17K13668].

Notes on contributors

Sae Okura

Sae Okura is an assistant professor in the Faculty of Humanities, Law and Economics at Mie University in Japan. She conducts research in politics and social policy studies. Her recent research interests focus on political participations by minority groups such as the disability community, sexual minorities, and single-parent families. She analyzes quantitative survey data collected in Japan.