Having a Say: Prisoners and Voting Rights

By Graeme Orr

This article is part of our February theme, which focuses on one of the great silences in the human rights conversation in Australia: Prisoners’ Rights. Read our Editorial for more on this theme.

This weekend we took our children to the Boggo Road markets in inner-south Brisbane. Most of those looking for vegies and curios seemed oblivious to the decaying mortar of the old Brisbane gaol, now the heritage backdrop to a lavish university Ecosciences precinct”. Inmates have long gone to somewhat newer, more efficient” prisons on the urban outskirts. Out of sight, out of mind is the philosophy. But whilst buildings may crumble, attitudes seem harder to shift.

Prisoners are still regarded not only as less-than-human, but the archetype of that category. Just consider how another group of illegals” – asylum seekers who come by boat – are treated as quasi-prisoners, through both the regime of incarceration and the rhetoric which places them in a class outside the law.

This is not to say that more than two centuries of prison reform has achieved nothing. Conditions are less inhumane, rehabilitation has a foothold and the laws of civil death are mostly gone. But the underlying attitude, that longer-term prisoners deserve civil death, persists. And it is to those attitudes that politicians retreat, and even pander, when the question of prisoner voting rights arise.

Some US states still strip all or many felons” of their vote for life – unless they can beg for clemency, a gift at the discretion of a political figure.  Such long term loss of voting rights is particularly egregious. It not only excludes the individual from the most basic act of political participation, but also dilutes the voting power of those groups disproportionately imprisoned, notably Hispanic, Native, poorer White and especially African American men. In a 2006 survey, 5.3 million voting age Americans were found to be disenfranchised because of a conviction; 4 million of these were ex-prisonersUS reformers are reduced to campaigning not for prisoner voting rights, but for the automatic restoration of voting rights (and enrolment) on release.

Prisoners are still regarded not only as less-than-human, but the archetype of that category.

Fortunately, whilst Australia adopts much from the US, including private prisons, it hasn’t swallowed its approach to politics. Still, in Australia, the enfranchisement of those currently in Australian jails became a classic case of a political football in the 1990s-2000s. Labor sought to maximise enfranchisement gradually, based on arguments about fundamental rights. Conservative politicians resisted this, claiming that breaching the social contract” meant prisoners forfeited the right to be even indirectly part of governmental processes, at least for the duration of their term.

By 2006, the Howard government managed to legislate a complete ban on voting at federal elections for those serving prison sentences. But an indigenous woman, Vicki Roach, partly overturned that ban before the High Court.  Roach’s case caused the law to spring back to a ban on those sentenced to three years or more. In theory this should flow through to become a minimum practice for State and Territory elections. South Australia and the ACT alone allow all prisoners to enrol. (The formal right to enrol and vote of course must then be backed up by the practical ability to enrol and to obtain a ballot.)

Public sentiment, especially in criminal justice issues, is usually against not only prisoners, but judges. There are, however, good democratic arguments against prisoner disenfranchisement. One is that the right to vote is so fundamental it isn’t undemocratic to put some limits on parliament’s ability to tinker with it:  it needs to be protected, judicially if necessary. The other is that it seems perverse to compel people to attend the polls in Australia – on pain of a fine – then deny the vote as an automatic consequence of a prison sentence.

Without a bill of rights, there is only so much judges can do in terms of enhancing rights. Political action, rather than heavy reliance on judges, is always preferable. But the politics of prison reform is easily swamped by law and order” rhetoric. One way around this, paradoxically, might be to treat prisoner disenfranchisement as a criminal law issue (and not just as one of electoral law) and hence as one to be decided by sentencing judges in individual cases to which voting is relevant.

A decent society should not deny one group of people the vote.

German federal electoral law, for instance, legislates for a broad right to vote.  But its Article 13 then allows that an individual may be disenfranchised as the result of a judicial decision”. Article 6 of the French national electoral code similarly limits disenfranchisement to specific judicial orders for particular offences. This approach is not perfect. It relies on prosecutors and judges using their discretion wisely and consistently.

Still, it would be much narrower than our current blanket bans, whilst also being politically more palatable than seeking 100 per cent enfranchisement in the present climate. The list of offences and circumstances permitting disenfranchisement could be constrained to serious political offences or breaches of public trust, such as corruption in public office, or crimes of violence or hate with a political, racial or other social order element.

It’s important not to lose sight of the fact that prisoner voting is largely a symbolic issue:  there are much more concrete reforms needed in the corrections system. Victorian electoral commission figures suggest only about one quarter of prisoners eligible to enrol in that state are enrolled. Prisoners are not so numerous in Australia that they could form a swing” group whose voting patterns had clout; indeed no conceivable law reform would leave them voting from their prison address.

And yet, so what?  No individual’s vote, whatever their social status, itself makes a difference. The vote may be largely symbolic, but it’s a fundamental symbol.  It delimits membership of the political community. It is often said that the mark of a decent society is one that treats those who are outcasts with equal dignity. Another way to put it is that a decent society should not deny one group of people the vote, least of all in a game of political football.

Graeme Orr teaches at the University of Queensland Law School, is a member of the editorial board of the Election Law Journal, and most recently authored The Law of Politics (2010, Federation Press) and Electoral Democracy: Australian Prospects (2011, Melbourne University Press). His in-depth research article arguing against prisoner disenfranchisement, ‘Ballotless and Behind Bars’, is available here.