Legal Outlier, Again? U.S. Felon Suffrage: Comparative and International Human Rights Perspectives
70 Pages Posted: 10 Oct 2010 Last revised: 30 Sep 2015
Date Written: October 1, 2010
The judiciousness of American felon suffrage policies has long been the subject of scholarly debate, not least due to the large number of affected Americans: an estimated 5.3 million citizens are ineligible to vote as a result of a criminal conviction. The political implications have brought the issue to the U.S. Congress: On March 16, 2010, the House of Representatives’ Judiciary Committee held hearings on The Democracy Restoration Act of 2009. The act proclaims that the right of ex-convicts to vote in any federal election ‘shall not be denied or abridged’. This article offers comparative and international human rights perspectives, and aims to make two main contributions to the American and global discourse.
Part I offers comparative perspectives on challenges to disenfranchisement legislation, juxtaposing U.S. case-law against recent decisions rendered by courts in Canada, South Africa, Australia, and by the European Court of Human Rights. Due to its unique constitutional stipulations, as well as to its general reluctance to engage foreign legal sources, U.S. jurisprudence appears to be lagging behind an emerging global jurisprudential trend which increasingly views disenfranchisement as a suspect practice, and subjects it to ever-stricter judicial review. The discourse follows a ‘residual liberty’ approach according to which convicts remain rights-holders, views universal suffrage as the democratic ideal, and rejects regulatory justifications for disenfranchisement. The realization that the American legal position bucks a global trend may affect the debate about the pending Congressional bill, as well as prompt other initiatives.
Part II analyzes the international human rights treaty regime. It assesses, in particular, Article 25 of the International Covenant on Civil and Political Rights (ICCPR), which proclaims that ‘every citizen’ has the right-to-vote ‘without unreasonable restrictions’. As the article discusses citizens, the analysis focuses on an interpretation of the phrase ‘unreasonable restrictions’, it is concluded that, while the treaty regime currently tolerates certain forms of felon disenfranchisement, there is a noticeable trend towards a more inclusive suffrage.
Against this background, the paper advocates drafting a new optional protocol to the ICCPR, which will proscribe disenfranchisement outright. Following the normative framework that, arguably, frames the transnational discourse, it is submitted that disenfranchisement should be considered a punishment which causes grave harms to individuals and collectives that outweigh its contentious social benefits. Furthermore, it is submitted that, since voting eligibility constitutes the essence of the right-to-vote, it should not be subjected to balancing/ proportionality review; rather, its use should cease. Moreover, the presumed facilitative nature of the right-to-vote makes it less susceptible to cultural relativity and deference-based objections to further international standardization.
The paper draws analogies between the proposed protocol and the ICCPR’s ‘Optional Protocol Aiming at the Abolition of the Death Penalty’. The proposed protocol will set a higher standard for guaranteeing the right-to-vote of convicts. The invigorated transnational judicial discourse will impact more jurisdictions, so that more countries may decide to meet that standard.
Keywords: voting, disenfranchisement, suffrage, convicts, prisoners, ICCPR, judicial review, comparative law
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