A tarnished reputation: prisoners and the vote

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?