A tarnished reputation: prisoners and the vote

As a Canadian, I have long admired many aspects of the Australian electoral system. Canada’s voter turnout currently hovers at an embarrassing 60 per cent and efforts to reform the pure “first past the post” system never seem to get off the ground, to say nothing of the embarrassment that is Canada’s unelected senate. By contrast, Australians can be proud of this country’s use of preferential balloting and proportional representation, as well as its 95 per cent voter turn-out rate, albeit achieved at least in part through compulsory voting.

However, one aspect of Australian electoral policy that does not fit the country’s tradition of promoting the universal franchise is its persistence in disenfranchising prisoners. Recent international court decisions have declared prisoner voting bans invalid in Canada, the United Kingdom and South Africa.

In the face of this international trend upholding the right of all citizens to vote, the Australian Federal Government recently moved to further restrict prisoner voting, rather than eliminate the ban. Until 2004, the federal voting ban applied only to prisoners serving sentences of five years or more, but now it has been extended to prisoners serving sentences of three or more years. In fact, the government had tried to deny the vote to all sentenced prisoners, but finally backed off when it could not get majority support for that more draconian amendment. Most recently, a report of the federal parliamentary inquiry into the conduct of the 2004 election recommended doing just that: denying the vote to all prisoners, regardless of sentence.

In taking steps to further restrict voting by incarcerated citizens, Australia has the dubious distinction of moving its policies closer to that of the United States, the world leader in both imprisonment and criminal disenfranchisement. At last count, nearly five million Americans were barred from voting under state laws that disenfranchise prisoners and ex-prisoners, many for life. In seven US states (including notably, Florida) more than one in four African American men is disenfranchised for life.

In a further three states, one in five African American men is similarly denied the vote. A University of Minnesota sociologist recently crunched the numbers and determined that, based on the past voting behaviour of the disenfranchised population, at least six senate seats and two presidential elections since 1978 (including the 2000 election) would have been decided differently had ex-prisoners voted.

What is interesting about the recent court decisions in Canada, the United Kingdom and South Africa is the way that the government in each case simply could not offer a convincing justification for maintaining the ban on prisoner voting.

Usually, when courts are considering restrictions on prisoners’ rights, they are faced with an argument from the government based on public safety and security (for example, to justify strip-searches, random urine tests and limiting contact with visitors). Not so in the case of prisoner voting bans where the government is left with purely symbolic and expressive arguments, such as that disenfranchisement “promotes civic responsibility” or “morally educates” prisoners. The question of whether a constitutional democracy can legitimately deny a group of (admittedly unpopular) citizens the vote without any evidence of the benefits of denying such a fundamental right is at the heart of the Canadian decision in Sauvé v Canada.

Admittedly, the constitutional terrain is somewhat different in Canada than in Australia. Section 3 of the Canadian Charter of Rights and Freedoms explicitly guarantees that “every citizen of Canada has the right to vote in an election of members of the House of Commons or of a legislative assembly and to be qualified for membership therein.” Australia’s constitution has no such express right to vote. However, some scholars of electoral law - and at least one High Court judge - have opined that the constitution’s requirement of representative government (one “directly chosen by the people”) includes an implied right to vote. It is also arguable that international law, including Australia’s ratification of the International Covenant on Civil and Political Rights, compels the conclusion that universal adult suffrage is a right that cannot lightly be set aside.

Leaving aside the question of whether a court challenge to prisoner disenfranchisement might succeed in Australia, it is worth examining the reasoning of the majority in the Canadian decision for its consideration of the strength of the case against prisoner voting. The interpretive framework under the Canadian charter requires the government to articulate clearly its objectives for limiting a right and to prove that the limit on the right is proportionate and necessary to achieve that compelling objective. As a result, Canadian courts have subjected the normative justifications for prisoner disenfranchisement to close scrutiny and have found the government’s defence wanting.

In seeking to convince the court that the ban on prisoner voting was a justifiable limit on voting rights, the Canadian Government relied heavily on the purported expressive power of disenfranchisement to morally educate prisoners.

One of the government’s key witnesses, the late American moral philosopher Jean Hampton, testified that through the imposition of disenfranchisement as additional punishment, crime victims and the community symbolically express that they will not tolerate the violation of trust and values that the criminal conduct represents. Therefore, as part of the individual’s punishment, he or she will not be entitled to participate in the decision-making process which is committed to those values.

Chief Justice Beverly McLachlin agreed that the prisoner voting ban sent a message to prisoners, but not the one intended. Instead, she concluded that the voting ban “sends the unacceptable message that democratic values are less important than punitive measures ostensibly designed to promote order.”

In describing disenfranchisement’s second purported objective, promoting civic responsibility and respect for the rule of law, a political philosopher called by the government advanced the theory that criminal behaviour indicated disrespect for the welfare of fellow members of society, for the rule of law and for the electoral process. He then reasoned back from that proposition to conclude that denying the vote to people who have committed serious crimes makes the franchise seem more valuable both to those prisoners and to the general public, thereby promoting the virtues of responsible citizenship.

Again, the Canadian Supreme Court majority disagreed, saying that the government gets the connection between obeying the law and having a voice in making the law “exactly backwards.” The right of all citizens to vote is the basis of democratic legitimacy. Therefore, when the state disenfranchises a group of citizens, it undermines its ability to function as the legitimate representative of those citizens. In doing, so, it “erodes the basis of its right to convict and punish law-breakers.”

Disenfranchisement laws in Canada carry some heavy historical and contemporary baggage, particularly for Aboriginal people who are grossly overrepresented in prison populations and to whom the vote was only fully extended in 1960. The situation is remarkably similar in Australia. Surely the way to promote social inclusion of an already marginalised and disaffected population is not to turn back the clock and deny that population the most basic of citizenship rights.

The Supreme Court of Canada pronounced a limit on popular punitiveness, finding this particular form of symbolic punishment inconsistent with Canada’s normative human rights commitments and its growing “Charter culture.” The courtroom musings and opinions of various philosophers and public intellectuals called by the Crown who suggested that disenfranchising prisoners might promote civic responsibility or might morally educate prisoners were properly considered insufficient to justify denying the fundamental right of citizens to vote.

The rejection of popular punitiveness was even more pronounced in the 2004 South African Constitutional Court decision (pdf file 126KB) declaring that country’s prisoner voting ban unconstitutional. The government had defended the prisoner ban on the basis that, in light of alarmingly high crime rates in South Africa, the government could not afford to be seen as being “soft on crime.” However, Chief Justice Chaskalson had little time for this argument, stating that “it could hardly be suggested that the government is entitled to disenfranchise prisoners in order to enhance its image”.

The recent proposal to extend the voting ban to apply to all Australian prisoners appears to be rooted in a similar desire to look “tough on crime” without having to spend a dime to address crime or its root causes. And with the targeted population being as unpopular as it is, politicians can count on little opposition. Is this really the way Australia wants to treat its reputation for promoting democratic rights?