Do Criminals Have The Right To Vote?

In a landmark decision, the High Court upheld the fundamental human right to vote, finding that the Howard Government had acted unlawfully and unconstitutionally in imposing a blanket ban denying prisoners the vote.

In 2006, the Howard Government passed legislation which denied all prisoners the right to vote.

This law was challenged in the High Court by Vickie Roach, an Aboriginal woman who is a prisoner at the Dame Phyllis Frost Prison in Melbourne, serving five years for negligent driving causing serious injury.  In orders made last week, the High Court struck down the blanket prohibition on prisoners voting.

The Court upheld the validity, however, of the law providing that prisoners serving a sentence of three years or longer are not entitled to vote.

Phil Lynch, director of the Human Rights Law Resource Centre, and pro-bono counsel for Vicki Roach described the decision as

An affirmation of the importance of the fundamental human right to vote.”

Convicted prisoners are not entitled to vote in the UK (though this is being challenged in the European courts) or the US. Iowa still has a blanket lifetime ban on voting for all ex-cons!

A ‘Rosa Parks moment’ according to the folk at Larvatus Prodeo.

But this ruling raises many questions;

i) Is voting a ‘right’ or a privilege?

ii) Suffrage is not universal in Australia. Permanent Residents and Citizens under the age of 18 are currently excluded. Why should criminals be enfranchised?

iii) Can anything that is mandatory be described as a ‘right’.

iv) If we are all agreed that convicted felons should have their right to liberty temporarily removed, then why are we so anxious about protecting their right to vote (a far lesser ‘right’ than liberty)?

Democracy originated in ancient Greece as a means for those who contributed to society to have a say in its running. It has come a long way since then.

39 thoughts on “Do Criminals Have The Right To Vote?

  1. I really doubt it makes that much of a difference either way to the effectiveness of political decision-making.

  2. I’m going to dodge the question of whether people currently serving a prison sentence have the right to vote. But people who have completed their prison sentence should have all the rights that regular citizens have.

  3. I think I’ll go along with L. Neil Smith on this one, and say we should let all punishments be in fines. A convicted person should have a levy placed on all future earnings until the fine is paid off. Some people will say that you can’t put a value on a human life, but you can take out life insurance, so a murderer would be paying the insurance company for the insurance payout.
    Therefore, nobody imprisoned, so all could vote.

  4. I don’t see a problem with banning criminals (currently serving their sentence) from voting. Of course, once you’ve done your time you should be able to vote.

    If you violate someone else’s rights (my definition of a criminal) you shouldn’t be granted a full set of rights yourself because you have demonstrated you can’t be trusted.

    The function of the laws should be rights protections. Voting is about choosing people to set laws that achieve this. Why would you let people who don’t obey these laws (don’t respect other’s rights), then have a say in making the laws?

  5. I think this goes back to the ‘social contract’ argument, in so far as real crime is concerned.

    If you violate the rights of another person or group you forfeit your own rights.

  6. If you violate the rights of another person or group you forfeit your own rights.

    Absolutely right. One of the few legitimate functions of the state is to reinforce that. Rob or physically harm someone and you should be locked up and lose the rights of a free citizen.

    Voting is not a “fundamental human right”, it is a civil right. (And it shouldn’t be a civil obligation.)

    Having said that, I expect most prisoners would not want to vote if it was voluntary. They’re either way outside the social contract or nutters.

  7. Is the left now trolling through prisons looking for votes? lol.

    I have always knew the next Rosa Parks would be a thrice convicted child rapist looking for his right to the ballot.

    Who knows the next leader of the US Dems or the Oz Australian Greens could be an ex con. Dave Hicks has often said how he is supportive of the green movement. Both he and Tim Flattery have exchanged pleasantries and showed mutual admiration over the Fairfax broadsheets. Who knows he may win support and eventually take over from Bob Brown and Kerry Kettle. It wouldn’t make much difference and about equal sense.

  8. Thanks, Pommy! But have you thought seriously about the number of imprisoned people in for victimless crimes, such as selling drugs to willing customers? Not many people should be in prison, from a libertarian viewpoint, and all politicians should be (false advertising). At least, if done my way, it would be easier to compensate someone wrongfully charged. Over To You!

  9. So is this ruling based on current Federal Law (Electoral Act 1919) or the Constitution?

    This wouldn’t be an issue at all if we separated victimless crimes which would be struck off the books, torts, property crimes (most of which converted to torts)and violent crimes. If the remaining property criminals and violent offenders were incarcerated (or executed), there would be little concern if the voting restriction was against all prisoners.

  10. I basically agree, Nick. I think the only people who should really be in prison are those charged with violent offences against other people. I see no reason why it wouldn’t be cheaper to have the rest out working and making a living to compensate their victims (with punitive damages) while being under electronic surveillance.

  11. Nicholas

    Not many people should be in prison, from a libertarian viewpoint, and all politicians should be (false advertising)

    I would hate to see Terje jailed :)

    I don’t see what is libertarian about wanting less people in prison. I do agree with Jason, though, that prison should primarily be reserved for violent offenders.

    I also fail to see what is victimless about selling crystal meth to a ‘willing customer’.

  12. There are no laws against stupidity. The issue is one of tort law. Tort law negligence can lead to criminal negligence.

    Both the anti-drug and anti-prohibitionists should be happy with that kind of rule.

  13. If you do let them vote, what electorate do they vote in? The one where the prison is located? That’d tip the balance :)

    My own view is that if they’re going to be locked up for the full term (eg, the next three years) then there really is no point in allowing them to vote. If they’re going to be freed at some point during the next term, then it’s reasonable to expect that they’d be allowed to vote.

    If you want to get ridiculously complicated, maybe we should start weighing votes… if they’re free half the term, they get half a vote.

  14. Pommy, I agree that drugs can be dangerous, but prison isn’t the answer. Just give people the facts. People know alcohol can be bad, and kills off brain cells- does that mean drink companies should be driven underground? Coca-Cola could, if you drank a million bottles of the stuff, possibly rot your teeth- Let’s Ban It!!! MacDonalds is not part of traditional french culture, so some Frenchmen want it to be banned!
    As a general principle, libertarians look first for market solutions. If the market can’t handle it, then the government might be a resource to think about. I think there are market solutions for crimes. O.T.Y.

  15. MacDonalds is not part of traditional french culture, so some Frenchmen want it banned!

    Most French talk sneeringly about MacDonalds. I’ve read that the most successful European country for MacDonalds has been France. If this is true it just shows the hypocrisy of your average socialist Frenchy.

  16. Ha, that’s a good one about French McDonalds. Closet McDonalds lovers lining up with their fake moustaches and disguises so no one sees them scoffing down their Mc-burger and Mc-fries.

    In June 2006, there were 1,035 McDonalds in France, making it the largest European market after Britain and Germany.

  17. We’ll have to modernise that poem- Old McDonald had a farm, AND a fast-food franchise, AND more overseas outlets than you could poke a stick at!
    I wonder if the protests were a clever form of advertising?
    They worked very well to publicise the product, after all!!
    See, Pommygranate, banning stuff is counter-productive. It gives it a glamourous reputation. I’ll bet that if Mcdonalds had been legally banned in France, their french business would be the most profitable one!

  18. This is more a symbolic issue than one of great practical significance. In general the prison population represents only a small proportion of the general population and their views on politics are probably not that divergent from the mainstream. I doubt any aspiring politician would gain anything by overtly pandering to this part of the political market. Quite the opposite one would suspect.

    On the flip side I would hate to think any politician would have something personal to gain by criminalising and imprisoning some section of the community.

    Perhaps a persons opinion on this will swing to some extent depending on whether they view prison mostly as retribution, redemption, deterent or merely as a place to immobilise the activities of bad guys.

    Personally I doubt that whether prisoners vote or not is of great consequence to the processes of our democracy. And I don’t think loosing the right to vote will amount to any form of significant deterrant. I think the boundary drawn by the high court is reasonable enough but it could move either way without offending me greatly. It is certainly of far less concern than the fact that we deprive non-criminals of their saturday afternoon by forcing them to vote. And even that is far from being the gravest problem in our political system.

  19. Terje, you don’t have to vote! BUT you do have to turn up and be ticked off an electoral roll. Frank Devine pointed this out some time ago. If you don’t make any ticks, and just put in an unmarked paper, you won’t get fined, and you haven’t voted.
    Of course, being compelled to turn up is an imposition, and I hope we can do away with it completely.
    Re MacDonalds being banned- I think I’ll put that in my novel, and set it in Australia of the near future, when foreign fast food firms are blamed for obesity, and banned, and my previously-mentioned Underdogs-United help these firms to reach their fast-food addicts by having eateries in trucks (eat-easies?). It won’t be the whole novel, but it will be an amusing sideline.

  20. Is it an offence to encourage informal votes if they won’t vote for your mob?

    I know in NSW that encouraging split votes in optional preferential elections was severely disliked by the SEO.

  21. Is it an offence to encourage informal votes…?

    Yes, it’s an offence to encourage informal votes in federal elections. The right to vote is really a series of coerced obligations.

    But as Nicholas points out, you don’t actually have to vote. You have to get your name marked off and put your paper in the box.

  22. It would pay to deface the ballot paper if you do. When I was scrutineering, a returning officer pointed out that that unmarked ballots could be filled in if the wrong people were there.

  23. I always suspected there was a reason for pencils! Now we know.
    I read earlier in the week that whilst the polls are giving the government to Labor, the bettors are backing the Coalition. Because I no longer support either big party, I’m hoping for a hung parliament.

  24. How can a court say it’s wrong to withdraw the right to vote for one class of prisoner, yet it’s perfectly okay to withdraw it from another class of prisoner?
    That’s just ridiculous.

  25. Different courts, of course! This could be a power struggle.
    As I said earlier, I’ll try the Anarcho-Capitalist solution of people paying fines. If they’re criminally insane, their insurance company can pay for the cure, and then get the patient to pay up. No prison means no reduction of the right to vote.
    And if we’re talking ideal situations, people would not be voting to give power to a Representative to vote on their behalf, but would be time-sharing in government, and voting directly on laws.

  26. How can a court say it’s wrong to withdraw the right to vote for one class of prisoner, yet it’s perfectly okat to withdraw it from another class of prisoner? That’s just ridiculous.

    How can a court sentence one class of prisoner to 10 years and then another to 20 years? That’s just ridiculous.

  27. First, mandatory voting is stupid. Second, non-citizen permanent residents can’t vote because they’re not citizens, and those under 18 cannot vote because they’re not adults. But adult citizen inmates are citizens and are adults. Finally, prisoners should be able to have a say on what laws should and shouldn’t be, otherwise all those in power have to do to stay in power is to make something that their opponents tend to do a criminal offense.

  28. Pommy, Crystal Meth wouldn’t exist if it wasn’t for the high cost of Cocaine.

    When you ban something and as a result send it’s price skyrocketing, people will turn to cheaper substitutes if any exist.

    Cocaine is very expensive in Australia, because Australia has very efficient customs and is an isolated island. An amount of Cocaine that costs $400 on the streets of Perth costs $15 on the streets of London. Most of the difference in cost is because of the difficulty of importing it here.

    Crystal Meth (or more accurately nowadays plain old Meth) on the other hand can be made in your spare room by anyone with a basic knowledge of Chemistry.

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