Friday, September 17, 2004

Voting Rights

Should ex-felons be permitted to vote? In the United States, approximately 4,700,000 citizens will be unable to vote in the upcoming general election because they have been convicted of a felony. One might argue that it is proper to suspend the right to vote while the convicted felon serves time in prison, but what about the loss of suffrage that, in some parts of the United States, lasts for the life of the felon? Is this a violation of international human rights law?

Article 25 of the International Covenant on Civil and Political Rights states:

Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in article 2 and without unreasonable restrictions:
(a) To take part in the conduct of public affairs, directly or through freely chosen representatives;
(b) To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors;
(c) To have access, on general terms of equality, to public service in his country.

The phrase "without unreasonable restrictions" may, of course, be construed as permitting a restriction on the right of felons to vote. It is worth noting, however, that the United Nations Human Rights Committee, addressing the question of felon disenfranchisement as it relates to Article 25 of the ICCPR, has said that "if conviction for an offence is a basis for suspending the right to vote, the period of such suspension should be proportionate to the offence and the sentence."

Upon release from prison, those who have committed criminal offenses in the United Kingdom have voting rights restored automatically (as a consequence of the 1983 Representation of the People Act). In South Africa, the Constitutional Court has ruled that prison inmates may not be disenfranchised. Germany, Denmark, Sweden, Switzerland, Israel, Peru, and Zimbabwe (among others) also permit prisoners to vote, a right granted in the United States by Maine and Vermont only. In contrast, a minor in Florida who is charged as an adult and convicted of a felony could be disenfranchised for life without ever having served time in prison. (Only 40 percent of felony convictions in the United States are punished by imprisonment.)

The Canadian Charter of Rights and Freedoms states 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." In 2002, Canada's Supreme Court determined that this clause protects even the right of prisoners to vote.

Felon disenfranchisement laws in a number of states are relics of the era of Jim Crow legislation. Their original purpose--to establish a barrier to voting by African Americans--is being realized today as large numbers of African Americans have been disenfranchised due to convictions for drug offenses or infractions as minor as writing a bad check. (The proliferation of three-strikes laws has dramatically increased the number of small-time criminals who qualify as felons in the United States.) In Florida and Virginia, 16 percent of African Americans have been disenfranchised.

A number of constitutional challenges to the disenfranchisement of felons in the United States have been raised. More such challenges are on the way. Some state legislatures have begun to consider reforms in laws that appear to a growing number of Americans to be unjust. Meanwhile, felon disenfranchisement as it exists in some states is almost certainly a violation of international human rights law.