Voting Rights for the Incarcerated: Human Rights and Reform

Introduction: Voting as a Fundamental Human Right

One of the fundamental human rights established by the International Covenant on Civil and Political Rights (ICCPR) is access to the vote. The right to self-determination is critical, and without it, equality of treatment is impossible to realize. Politicians have no incentive to pass laws protecting the rights of groups whose opinions they are not beholden to for reelection. According to the ICCPR, the right to vote should be bestowed "without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status" (Dhami, 2005, p. 236). Other fundamental human rights — such as the right to pursue a livelihood of one's choice, to live free and unmolested, to express one's political opinions, to practice one's religion, and to be safe and secure in one's person — all extend from that right to political representation rooted in democratic ideals.

Unfortunately, despite the fundamental nature of this right, even many ostensibly democratic nations have passed restrictions on the right to vote. One of the most common is banning individuals in prison from voting, as is the case in the United Kingdom and in Australia for any prisoner serving a sentence longer than five years (Dhami, 2005). In the United States, because of its federalist system, laws often vary between states. But even when incarcerated individuals are eligible to vote, they may not be aware of this fact. Voters may lack the basic civic literacy to learn "they are eligible to vote, and others may ask for voter registration or absentee ballot request forms, only to be refused by local sheriffs or county clerks" (Paikowsky, 2019, p. 833).

The Case Against Disenfranchisement

Some argue that individuals who are incarcerated should not have the right to vote because they have transgressed the laws of society. This position is problematic on several grounds. First and foremost, in many nations such as China, officials incarcerate individuals for political reasons — such as demanding the right to exercise free speech. Second, not all prisoners have committed severe transgressions. Finally, the composition of the prison population is such that voter disenfranchisement can have a significant impact not simply on immediate electoral results, but on the societal changes those results produce. The incarcerated population is more likely to be indigent, due to the inability to secure bail and adequate legal representation, and the types of crimes that indigent populations commit are more likely to result in incarceration or denial of bail (Paikowsky, 2019). Likewise, incarcerated populations are more likely to be Black, Native, and Latino relative to the general population, as well as more likely to be homeless or disabled (Paikowsky, 2019).

Subsequent gerrymandering and further barriers to voting can make it even more difficult for certain groups to secure representation. In the United States, when nonvoting groups are substantially nonwhite, poor, and minority in character, the result is a less representative and less just government. In addition to prohibiting prisoners from voting, significant barriers already exist that prevent poor and minority groups from accessing the polls. For example, seemingly innocuous voter identification laws can significantly disenfranchise individuals who lack driver's licenses — people who may be poor or disabled (Zhang, 2019). Many felon disenfranchisement laws operate on the same principles, using confusing bureaucratic requirements to make voting so onerous that people who lack time, information, and access to transportation cannot participate (Zhang, 2019). This underlines how denying people the fundamental human right to democratic self-determination based on felonious status cannot be separated from denying them access based on race, religion, income, and disability. Individual circumstances should not strip people of their basic human rights.

Major Philosophical Frameworks

Allowing prisoners to vote is congruent with the major ethical theories: liberalism, libertarianism, socialism, and utilitarianism. From the standpoint of classical liberalism, self-determination through the voting process is a critical right and a critical check upon the power of a sovereign. From a libertarian perspective — a philosophy that stresses minimal government involvement — it is equally consistent that prisoners should have the right to limit their government, although some conservatives have argued that aggressive measures to inform prisoners of their rights are not in keeping with their philosophy.

Socialism advocates government support of social welfare programs and uses government mechanisms to address social injustices, including income inequality. From this standpoint, empowering some of the poorest and most disenfranchised members of society through the vote is essential. Even from a utilitarian standpoint, permitting the enfranchisement of socially disempowered groups can be broadly beneficial. The widening gap between rich and poor in the United States highlights the need for low-income individuals who lack access to resources to have a voice at the polls. As the United States becomes increasingly diverse, the principle of the greatest good for the greatest number is best served by enabling a more representative population to vote. Indeed, in many communities the prison population's composition may be more representative of the local population than the current demographics of its elected representatives. Substantive benefits can also be conveyed through the reintegration of prisoners into society, which can be furthered by voting enfranchisement (Dhami, 2005).

Conclusion

Felon disenfranchisement cannot be disentangled from the broader denial of rights based on race, income, disability, and social status. Individual circumstances should not strip people of their fundamental right to democratic self-determination. Recognizing prisoner voting rights as a genuine human rights issue — and pursuing the legal, informational, and structural reforms necessary to protect those rights — is essential to building a more just and representative democracy.