Prior to 16 December 2010 prisoners who had been sentenced to preventative detention or imprisoned for a term of 3 years of more were disqualified from voting, or enrolling to vote. After this date the Electoral (Disqualification of Sentenced Prisoners) Amendment Act 2010 disqualified people sentenced to any term of imprisonment after the Act's commencement from enrolling or voting. Prisoners on remand were still entitled to vote, as were those sentenced to home detention.
The introduction of this Act has flown in the face move of current trends and thinking in most of the rest of the world. In 2006 the Irish Government passed a law allowing prisoners to vote. In Israel prisoners are allowed the vote. Following the 1995 assassination of the then Prime Minister Yitzak Rabin there was a move to prevent the killer Yigal Amir being allowed to vote in the election to replace Rabin. The Supreme Court rejected the call, declaring, “disenfranchisement would hurt not Amir, but Israeli democracy. Imprisonment was his punishment” (Behan & O’Donnell 2008, p.320).
In South Africa the Courts have stated, “The vote…declares that whoever we are, whether rich or poor, exalted or disgraced, we all belong to the same democratic South African nation; that our destinies are intertwined in a single interactive polity." (August v. Electoral Commission, CCT 08/99, 1999).
In Canada, the Supreme Court declared that the “right to vote is fundamental to our democracy and rule of law and cannot be lightly set aside”, and ruled that it could not “permit elected representatives to disenfranchise a segment of the population” (Sauvé v. Canada, 2002).
Furthermore, the European Court of Human Rights has ruled that the UK government in denying prisoners’ right to vote has breached their human rights. In bringing this to the attention of the UK Government it pointed out that even prisoners held in British jails in Iraq were allowed the right to vote, which the occupying forces had argued aided the democratic process.
Prisoners are still citizens
In a democratic society, the denial of the right to vote to any section of the population has implications, in terms of devaluing citizenship and of possibly affecting electoral outcomes. The fact that a person has been sentenced to prison should not mean that that person has ceased to be a citizen. In Werewolf Gordon Campbell quotes Richard Sauvé (this man took the Canadian Government to court to fight for his right to vote whilst serving a prison sentence). Sauvé states
when I was sent to prison I was a father, still. I had a daughter. I was married. I had a family. I had always exercised my right to vote. So, even though I was sent to prison it didn’t stop me from having an interest in my community, and in the fact that I had a family in the community. I had a sister who was in the Air Force, so I cared about how our foreign policy affected her. My brothers and sisters with their kids – and with my own daughter going to school – meant that the education system still applied. So, even though I was in prison, it didn’t mean that I wasn’t still a part of my community - (Campbell 2010).
Similarly, if one is imprisoned by a law that the person considers unjust, shouldn’t that person be allowed to have a say against the law that imprisoned them.
In the USA, some states even bar those with a past record of imprisonment from the electoral process. In an analysis of the 2000 presidential election it was found that in the state of Florida if those disqualified from voting had in fact voted, then Al Gore would have won the state by over 30,000 votes. Instead George Bush won with a disputed majority of 537 votes (Uggen & Manza 2002).
The Bill also presents a potential issue whereby a prisoner who is sentenced to a two and a half year sentence between elections will be able to vote, but those sentenced to any length of time coinciding with an election will not be able to. In fact if two prisoners both receive two years in prison for the same offence, if one could note vote because of the timing of the sentence it would in fact mean that that punishment is unfairly harsher.
Universal suffrage is usually considered to be one of the most basic criteria for an election to be deemed democratic, The Attorney General has highlighted how the new law is inconsistent with the Bill of Rights Act where Section 12 states that every New Zealand citizen who is over the age of 18 years has the right to vote and stand in genuine periodic elections of members of the House of Representatives. Any notion of a democracy seems incompatible with an idea of the state deeming who is and who isn’t fit to vote.
Behan, C., & O'Donnell, I. (2008). PRISONERS, POLITICS AND THE POLLS Enfranchisement and the Burden of Responsibility. British Journal of Criminology, 48(March), 319 -336.
Campbell, G. (2010). Robbing the Vote Why the current plan to take the right to vote away from prisoners is a terrible idea. Werewolf(16).
Uggen, C., & Manza, J. (2002). Democratic Contraction? Political Consequences of Felon Disenfranchisement in the United States. American Sociological Review, 67, 777-803.