Prisoner Disenfranchisement: Four Judicial Approaches

Abstract

Many legal systems employ rules disenfranchising convicted prisoners. Such laws pose a special challenge to courts charged with reviewing their consistency with doctrines of constitutional or human rights. We consider here the approach of courts in four jurisdictions to this problem: the Supreme Court of Canada, the Constitutional Court of South Africa, the High Court of Australia and the European Court of Human Rights. Each has identified a ban on prisoner voting as being in breach of the relevant constitutional or human rights principles. No court has unambiguously said that all prisoners enjoy a right to vote. In their decisions the judges respond to claims that disenfranchisement is inconsistent with the notion of “universal suffrage.” Counter-claims center on ideas about prisoners’ lack of civic responsibility; breaches of the social contract; punishment; and the rule of law. We consider the courts’ responses to these arguments, and the strategies of constitutional reasoning employed to determine the boundaries of the right to vote. We examine the cases as instances of contests between indeterminate democratic principles that support the right to vote – such as universal suffrage and rule ‘by the people’ – and political theories that are presented in defense of the disenfranchisement. The paper appraises the judges’ efforts to handle such contests within the context of constitutional adjudication, and observes that the decisions represent a positive – if partial and at times uncertain – contribution to the project of reconciling the practice of disenfranchisement with the notion of a constitutional or human right to vote.