Chapter I: Introduction

The will of the people shall be the basis of the authority of

government; this will shall be expressed in periodic and genuine

elections which shall be by universal and equal suffrage and shall be

held by secret ballot or by equivalent free voting procedures.

The Universal Declaration of Human Rights, Article 2

In recent years, a great deal of scholarly attention has been paid to the issue of

prisoner disenfranchisement in different jurisdictions.1 The denial of voting rights to

prisoners has led to considerable criticism and it is argued that voting rights should be

restored to convicted prisoners on the grounds of both principle and policy. Much of the

debate stems from recent high court rulings over the constitutionality of denial of

prisoner voting. Specifically, in countries with restrictive or blanket prisoner

disenfranchisement, litigation has been used as a successful strategy to help broaden

the franchise for prisoners. Countries which employed this technique include: South

Africa, Canada, the United Kingdom, and Australia, among others.2

In the United States of America, 19 states have amended felony

disenfranchisement policy in an effort to reduce their restrictiveness and expand voter

1
http://sentencingproject.org/doc/ publications/fd_ballotboxesbehindbars.pdf (April 25, 2015)
2
http://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?article=1378&context=bjil (February 20, 2016)

The Last Disenfranchised Class 1

eligibility.3 In the Philippines, in connection with the 2010 elections, the Commission on

Elections issued a resolution which approved and adopted resolution mechanisms for

the registration and voting of detainees or of those prisoners with no final judgment

from the court or those convicted with offenses punishable by less than one year of

imprisonment.4 The mechanisms allowed for the realization of the right to vote of

detainees, making a major step to preserve the suffrage of thousand of detainees. 5

With the recognition of prisoners right to vote, an issue of particular interest to

this study is prisoner voting in the Philippines. Filipinos put behind bars were effectively

locked out of their democracy, undeserving of casting a ballot. When a person offends

the law, such persons franchise in the political community is forfeited. By committing

crime and breaching social rules, a prisoner loses the right to participate in how the

country was governed for the duration of his sentence and five years thereafter.

Research, however supports the proposition that when prison inmates are given greater

control over their lives while incarcerated, the result will be an increase of their

independence and self-control after their release.6

The effects brought about by the prohibition to vote were devastating for the

disenfranchised prisoners, especially in the United States where there is huge number of

citizens imprisoned. In November 24, 2003, an article entitled The Last Disenfranchised

3
http://www.sentencingproject.org/doc/publications/fd_statedisenfranchisement.pdf. September 2008.
(April 26, 2015)
4
http://www.comelec.gov.ph/?r=Archives/RegularElections/2013NLE/Resolutions/ResolutionNo9371
(June 20, 2015)
5
http://www.rappler.com/nation/politics/elections-2013/28988-prisoners-vote-election-day (June 20,
2015)
6
http://aspe.hhs.gov/hsp/prison2home02/haney.htm. The Psychological Impact of Incarceration:
Implications for Post-Prison Adjustment (April 16, 2015)

The Last Disenfranchised Class 2

Class7, tells the story of Jan Warren, 35, who in 1986, was penniless, in a dead-end

relationship, pregnant and desperate, made a mistake. She agreed to sell cocaine for

her cousin and it was the only time Warren had ever sold drugs, and it turned out to be

a police sting. Under the strict New York Drug laws, Warren was given fifteen years to

life. And one sunny Memorial Day in the prison yard, Warren suddenly understood that

serving time in prison was going to cost her more than her physical freedom. I didnt

realize that part of the whole prison system is set up to alienate you from society,

because now I cant vote. And without being able to vote, what politician is going to say,

Well, Ms. Warren, you have a very good point and because youre one of my

constituents Im going to listen to you?8

The same sentiment was shared by the author of this work who believes that the

vote in the Philippines is power, because, come election day, when we go to the voting

booth all of us have one vote, the President, Marian Rivera, and Mang Juan, the buko

vendor in the street and its probably the only time in the Philippines that we are all

equal. Allowing prisoners to vote means politicians will have to engage with prisoners

and actually understand and listen to them. We can expect people who have

committed crimes to be fully rehabilitated afterwards if they have reason to follow or

understand current political matters. One of the fundamental aims of punishment is to

eventually rehabilitate those who offended back into the society; with no involvement

7
http://www.thirdworldtraveler.com/Election_Reform/Last_Disenfanchised_Class. html. The Nations.
(June 20, 2015)
8
Supra Note 10

The Last Disenfranchised Class 3

of what has happened in politics since they first went into prison, and no need to know,

prisoners cannot be reintegrated successfully into society.

The continued exclusion of a segment of society from voting is a threat to our

democracy. The fundamental principle of suffrage is that every man entitled to vote

may vote; and second, that every vote may be sent forward and counted and so each

may exercise his part of sovereignty in common with his fellow citizen.

Suffrage is the right to vote and, for the Philippines, is indicated in three

documents: the Universal Declaration of Human Rights; the International Covenant on

Civil and Political Rights; and the Philippine Constitution. They all call for the universality

of the right. Every political choice and decision one makes will determine the kind of

government that will serve the country. The Constitution guarantees that we are a

sovereign people, where all government authority comes from. Casting a ballot, is by

far, the most common act of citizenship in any democracy.

The Last Disenfranchised Class 4

 Chapter II: Statement of the Problem

This study explores the suffrage of a prisoner and its effects in the legal system.

In particular, the following questions are addressed:

1. Is the denial of the voting rights of certain prisoners a legitimate state policy?

2. How can the restoration of voting rights of the prisoners be justified?

Objective and Significance of the Study

For seven years, I was not allowed to see the moon and the stars. There

were days when they left me all alone by myself. I had no reading material. I had

nothing. I was twiddling my thumb. I would walk and walk and walk across my

room; it was a room about four meters by five meters, hoping that Ill get tired.

And when I get tired, I would fall asleep, knowing that tomorrow will be the

same.

Benigno Aquino

Prisoner disenfranchisement is a threat to democracy. It has no basis in law and

equity. The denial of the voting right is not directed at a pressing and substantial

purpose. Proponents of the disenfranchisement of prisoners in foreign countries

actually fail to establish the rational connection of denying prisoners the right to vote

The Last Disenfranchised Class 5

and its stated objectives.9 Thus initiatives for the advancement of the prisoner voting

rights have increased over the years.

The primary objective of this study is to determine the problem brought about

by stripping prisoners of their right to vote and the good that will be caused by its

restoration. It aims to examine the legitimate interests of the State justifying the

disqualification. This study seeks to present how fundamental the voting right of each

prisoner each is and must not be taken by the government absent any valid justification.

In 1948, the United Nations General Assembly adopted the Universal Declaration

of Human Rights, which recognizes the integral role that transparent and open elections

play in ensuring the fundamental right to participatory government. The declaration

embodies the international standards for the observance of equal and universal

suffrage. The study aims to identify whether government actions meet these standards

and apply the principles contained therein.10

This study also seeks to give a more humane countenance on the justice and

political system, one which acknowledges the value of every human life and gives a

voice to the victim. Thus, it is hoped that this paper will help in the furtherance and

development of legal rights for the prisoners and suffrage in the Philippines.

9
Sauve v Attorney General of Canada (Chief Electoral Officer) Supreme Court of Canada October 31, 2002.
218 D.L.R. 4th 577 available at http://www.lexum.umontreal.ca/csc-scc/en/rec/html/sauve2.en.html

10
United Nations General Assembly resolution 217 A (III), annex adopted December 10, 1948

The Last Disenfranchised Class 6

Scope and Limitations

This study adopts the definition of prisoners same as the term persons deprived

of their liberty under international human rights law. Persons deprived of their liberty

includes all categories of persons who are detained while awaiting trial and those

imprisoned as a result of their final conviction for an offense.11

On the other hand, detainees, for purposes of detainee voting, is understood to

be any person: confined in jail, formally charged for any crime or crimes and awaiting or

undergoing trial; or serving a sentence for not less than one (1) year; or whose

conviction of a crime involving disloyalty to the duly constituted government such as

rebellion, sedition, violation of the firearms laws or any crime against national security

which is on appeal in consonance with the definition provided for in the Commission on

Election Resolution No. 8811.12

This study is limited to the research of the propriety of the restoration of the

voting rights of prisoners who are sentenced to imprisonment of more than one year by

virtue of final judgment and those who are convicted of rebellion, sedition, violation of

the firearms law, or any crime against the national security.

This study focuses on the issue of whether a prisoner should be given the right to

vote. This does not necessarily include the determination of the right of the prisoner to

be voted or run for public office.

11
http://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx (March 1, 2015)
12
COMELEC Resolution No. 8811 May 10, 2010

The Last Disenfranchised Class 7

 Definition of terms:

Offender a person who commits a crime

Detention Facility a place of confinement for detainees

Final Judgment a judgment that is no longer subject to appeal

Penalty the punishment for the commission of a crime which includes

imprisonment, fine, forfeiture, damages to the offended party and the victims

including restitution, reparation, indemnification, suspension or removal from

office, disqualification from practice of profession or vocation, deprivation or

curtailment of rights or priveleges and community service

The Last Disenfranchised Class 8

 Chapter III: The Review of Related Literature

Suffrage in the Philippines

The first section on the Declaration of Principle and State Policies of the 1987

Constitution explains the nature of the Philippine Government as a democratic and

republican State. Sovereignty resides in the people and all government authority

emanates from them. 13 This constitutional mandate makes it evident that it is a

primordial policy to ascertain the will of the people.14

The right to vote is guaranteed in the 1987 Constitution, in Article V, Section 1,

which states that the right of suffrage shall be exercised by the countrys entire citizenry

unless disqualified by law; without which the principle of sovereignty residing in the

people becomes nugatory.15

The right to vote is a constitutional guarantee of the utmost significance.16 In the

traditional terminology, it is a political right enabling every citizen to participate in the

process of government to assure that it derives its power from the consent of the

governed.17 What was so eloquently expressed by Justice Laurel comes to mind: "As

long as popular government is an end to be achieved and safeguarded, suffrage,

whatever may be the modality and form devised, must continue to be the means by

which the great reservoir of power must be emptied into the receptacular agencies

13
1987 Philippine Constitution, Article II, Section I
14
Bellosillo et.al., Omnibus Election Code with Rules of Procedure and Jurisprudence in Election Law
15
Section 1, Article V of the Philippine Constitution, Suffrage may be exercised by all citizens of the
Philippines not otherwise disqualified by law xxx
16
Pungutan vs. Abubakar GR No. 33541 January 20, 1972, Moya v. Del Fierro, 69 Phil. 199, 204
17
Supra. Note 18.

The Last Disenfranchised Class 9

wrought by the people through their Constitution in the interest of good government

and the common weal.18

Suffrage is exercised not only during elections, but also during initiatives,

referendums, plebiscite, and recalls. Election is the means by which the people choose

their representatives who are entrusted the exercise of the powers of the

government.19 Initiative is the means by which people directly propose and enact laws,

that is, they initiate the law-making process.20 Referendum refers to process by which

the people ratify or reject a law or part thereof referred or submitted to them by the

national or local law-making body.21 Plebiscite entails a process by which the people

either ratify or reject an amendment or revision to the Constitution.22 And recall is a

mode of removing an incumbent official from office by a vote of the people upon proper

registration of a petition signed by the required number of qualified voters. 23 In all these

instances, a qualified citizen can rightfully exercise suffrage.24

Voting may be exercised by qualified citizens only. It can be exercised only by a

citizen of the Philippines, who has none of the disqualifications, at least eighteen years

of age on the day of the election, and a resident of the Philippines for at least one year

18
Perez v Suller. G.R. No. L-46710 November 18, 1939.
19
Bernas, S. J. The 1987 Constitution of the Republic of the Philippines: A Commentary. 2009 Edition. P
652
20
Id.
21
Id.
22
Id.
23
Id.
24
https://tamayaosbc.wordpress.com/2014/08/02/citizenship-and-suffrage/ (April 25, 2015)

The Last Disenfranchised Class 10

and of the place where he intends to vote for at least six months immediately preceding

the election.25

When the polls open on election day, every citizen at the age of eighteen will be

able to cast a vote. It is a right we often take for granted, one that defines our nation as

a democracy. But universal suffrage, letting everyone vote, did not appear overnight

with the ratification of our Constitution. In the early development of voting system,

suffrage is the privilege of the few chosen. In our jurisdiction, the right of suffrage has

evolved from a mere statutory right to a constitutional right.26 We had no elections

during the Spanish occupation of the country and our first election law was Act No.

1582, which took effect on January 15, 1907. 27 Like its foreign counterparts, the

qualifications for the exercise of the right of suffrage set in section 14 of Act No. 1582

were elitist and gender-biased.28 The right of suffrage was limited to male citizens

twenty-three years of age or over.29 Women were not allowed to vote for they were

regarded as mere extensions of the personality of their husbands or fathers, and that

they were not fit to participate in the affairs of government.30 But even then, not all

male citizens were deemed to possess significant interests in election and the ability to

make intelligent choices. Thus, only those falling under any of the following three

classes were allowed to vote: those who, prior to the August 13, 1898, held office of

municipal captain, governadorcillo, alcalde, lieutenant, cabeza de barangay, or member

25
Article V, Section 4. Philippine Constitution
26
Macalintal v COMELEC. G.R. No. 157013. July 10, 2003.
27
Id.
28
Act No. 1582 June 16, 1956
29
Id.
30
Id.

The Last Disenfranchised Class 11

of any ayuntamiento; those who own real property with the value of five hundred pesos

or who annually pay thirty pesos or more of the established taxes; or those who speak,

read and write English or Spanish. 31 As male suffrage was gradually extending

considerably, women became increasingly active in the quest for their own suffrage

anchoring their cause on the equal protection of the laws. In the plebiscite held on April

30, 1937, more than three hundred thousand women voted for woman suffrage;

thenceforth, Filipino women were allowed to vote, paving the way for women

participation in the government.32

The 1935 Constitution gave a constitutional status to the right of suffrage.33

Moreover, to broaden the mass base of voters, the voting age was lowered down from

23 to 21 years old; and the literacy requirement was also relaxed and the property

qualification was removed.34 The requirement that only those who can read and write

English, Spanish, or other local dialects should be allowed to vote was defeated because

such was thought to be unnecessary and would amount to a discrimination against the

respectable minority of the population of the Philippines i.e. Mohammedans whose

Arabic writing is not included in the local dialects.35

The march towards the liberalization of the right of suffrage continued with the

1973 Constitution; removing the literacy requirement, further lowering the voting age

requirement from 21 to 18 and providing that no other property or substantive

31
Id.
32
http://teacher.scholastic.com/activities/suffrage/history.htm (December 19, 2015)
33
Bernas, S. J. The 1987 Constitution of the Republic of the Philippines: A Commentary. 2009 Edition. p.
652
34
Id.
35
Macalintal v COMELEC. G.R. No. 157013. July 10, 2003.

The Last Disenfranchised Class 12

requirement shall be imposed on the exercise of suffrage.36 Being democratic and

republican, the State endeavors for the establishment of a wide base of electoral

involvement by the people, not only by the rich minority who enjoy the privilege of

formal education, but also by the poor majority who are usually unlettered because of

poverty.37

Because of the phenomenon of Filipino labor explosion overseas, for the first

time, the 1987 Constitution required Congress to provide a system for absentee voting

by qualified Filipinos abroad and to design a procedure for the disabled and the

illiterates to vote without assistance from other persons.38 Be that as it may, four

qualifications existing since the 1935 Constitution were retained: Filipino citizenship;

age; one year residence in the Philippines; and six months residence in the place where

the voter proposes to vote. The wisdom of these four qualifications has not been

questioned at any given time in the history of our suffrage because of it being a political

right appertaining to citizenship.39 Each individual qualified to vote is a particle of

popular sovereignty, hence, the right of suffrage cannot be extended to non-citizens and

as an attribute of citizenship, suffrage is reserved exclusively to Filipinos whose

allegiance to the country is undivided.40 But citizenship and age requirements are not

enough for the vote to be more meaningful as an expression of sovereignty. 41 A voter

must possess more than a passing acquaintance with the problems and prospects of the

36
Supra. Note 22.
37
https://tamayaosbc.wordpress.com/2014/08/02/citizenship-and-suffrage/ (December 22, 2015)
38
The Overseas Voting Act of 2003. Republic Act No. 9189 February 13, 2003
39
Laurel, Philippine Law on Elections 2 (1940)
40
Id.
41
Gallego v. Vera, 73 Phil. 453, 459 (1941).

The Last Disenfranchised Class 13

country, thus, residence is imposed as a qualification to exclude a stranger and a

newcomer, unacquainted with the conditions and needs of the community and not

identified with the latter.42

Still in keeping with the preservation of every citizens right to vote, the

Commission on Elections issued a resolution to give flesh to the mandate of the

Constitution for universal suffrage and to put an end to the continued deprivation of

persons deprived of their liberty of their ability to exercise their suffrage because of the

failure of the government to provide them with the necessary special facilities and

procedures for voting inside or near their places of detention. 43 The resolution

established guidelines and rules and regulation for the realization of the right to vote of

detainees enabling 40,000 to 45,000 detainees to participate in the 2010 elections.44

As a final note, the importance of suffrage cannot be overemphasized as it is the

bedrock of Philippine democracy and republicanism.45 Removed, then the Philippines is

no longer democratic and republican. When people vote, they feel like they're part of

something bigger than themselves. They feel like they are part of the nation. They know

that they have a say in the way things are run in this country.

Prisoner Disenfranchisement in the Philippines

Suffrage however, is not absolute. No political system in the whole world has

42
Id.
43
COMELEC Resolution No. 8811.
44
http://www.rappler.com/nation/politics/elections-2013/28988-prisoners-vote-election-day (December
22, 2015)
45
https://tamayaosbc.wordpress.com/2014/08/02/citizenship-and-suffrage/ (March 1, 2015)

The Last Disenfranchised Class 14

literally practiced universal suffrage, even among its citizens.46 The scarlet history of the

right of suffrage shows that restrictions have always been imposed on its exercise. In the

Philippines, registration determines who are qualified to vote.47 The constitution, by

carefully prescribing the qualifications of voters, necessarily requires that an

examination of the claims of persons to vote must at some time be had by those who

are to decide on them.48

As provided for by law49, disqualified from registering is: any person who has

been sentenced by final judgment to suffer imprisonment for not less than one year,

such disability not having been removed by plenary pardon or granted amnesty, such

person however shall automatically reacquire the right to vote upon expiration of five

years after service of sentence; any person who has been adjudged by final judgment by

competent court or tribunal of having committed any crime involving disloyalty to the

duly constituted government such as rebellion, sedition, violation of the firearms laws,

or any crime against national security, unless restored to his full civil and political rights,

such person shall regain his right to vote automatically upon expiration of five years

after service of sentence; and insane or incompetent persons as declared by competent

authority unless subsequently declared by proper authority that such person is no

longer insane or incompetent. Moreover, the aforementioned circumstances constitute

46
Brent & Levinson, Process of Constitutional Democracy: Cases and Materials 1053 (1992).
47
http://lente.ph/election-offenses-on-registration-of-voters/#return-note-825-6 (December 22, 2015)
48
Hector S. de Leon & Hector M. de Leon, Jr., The Law in Public Officers and Election Law 527 (2003) p.
527
49
Section 11, Republic Act No. 8189 An Act Providing For A General Registration of Voters, Adopting A
System of Continuing Registration, Prescribing the Procedures Thereof and Authorizing The Appropriation
of Funds Therefor

The Last Disenfranchised Class 15

causes for the deactivation of registration and the removal of the registration records of

the person under such situation, from the corresponding precinct book of voters.50

The Omnibus Election Code prohibits the act of any person who knowingly

makes any false or untruthful statement relative to any of the data or information

required in the application for registration or votes more than once in the same

election, or who, not being a registered voter, votes in an election.51

Moreover, the Revised Penal Code imposes the accessory penalty of perpetual

absolute disqualification, as an inherent penalty of the principal penalty on perpetua,

reclusion temporal and death, when not executed by reason of commutation or pardon;

the accessory penalty of temporary absolute disqualification and perpetual special

disqualification for the principal penalty of prision mayor and prision correccional; and

suspension of the right to hold office and the right of suffrage during the term of the

sentence for arresto.52

The Philippine Supreme Court in the case of People v Corral,53 in justifying the

stripping of the prisoners of the right to vote, had an occasion to state that, The right of

the State to deprive persons to the right of suffrage by reason of their having been

convicted of crime, is beyond question. The manifest purpose of such restrictions upon

50
Id.
51
Section 261 par. y (2) & z (2) Omnibus Election Code.
52
Luis B. Reyes, The Revised Penal Code pp. 659-660. Eighteenth Edition. 2012.
53
G.R. No. L-42300, January 31, 1936.

The Last Disenfranchised Class 16

this right is to preserve the purity of elections. The presumption is that one rendered

infamous by conviction of felony, or other base offense indicative of moral turpitude, is

unfit to exercise the privilege of suffrage or to hold office. The exclusion must for this

reason be adjudged a mere disqualification, imposed for protection and not for

punishment, the withholding of a privilege and not the denial of a personal right.

Characterizing Prisoner Disenfranchisement

Felon disenfranchisement has its origins in Ancient Greek civilization.54 In ancient

Greece, those who committed a crime would be named infamous and would be

subject to a range of disabilities, including prohibitions on voting etc. 55 This concept of

infamy later found its way to ancient Roman civilization, where individuals convicted of

serious crimes would be subject to the penalty of infamia.56 Individuals tainted with

infamia could not vote, hold office, or serve in the Roman legions.57 The severity of

these disqualifications was aggravated by the deep importance that Greek and Roman

culture placed in citizenship and participation in the political process.58 Since removing

those rights deeply affected ones ability to exercise privileges highly cherished by the

two respective cultures, it has been suggested that such penalties were motivated

54
The Collateral Consequences of a Criminal Conviction. 23 Vand L. Rev. 929, 941-42 (1970)
55
Alec C. Ewald, Civil Death: The Ideological Paradox of Criminal Disenfranchisement Law in the United
States, 2002 WIS. L. REV. 1045, 1060-61 (2002).
56
Ewald, supra note 2, at 1060-61.
57
Howard Itzkowitz & Lauren Oldak, Restoring the Ex-Offenders Right to Vote: Background and
Developments, 11 AM. CRIM. L. REV. 721, 722-23 (1973).
58
Collateral Consequences, supra note 1, at 941-42.

The Last Disenfranchised Class 17

primarily by retribution and deterrence.59 Therefore, by isolating criminals from the

acceptance of society, the Greek and Roman civilizations attempted to both punish the

individual actor for his transgressions and prevent other individuals from similar

conduct.60

In present day society, among the common reasons cited for disqualifying

prisoners from voting include that it will promote civic responsibility and respect for the

law; offenders have lost the right to vote since they violated the social contract; it is a

method of crime control; the purity of the ballot box needs to be protected from

offenders who may corrupt it, act subversively, or commit election fraud; and it is costly

and impractical to allow prisoners to vote.61

By virtue of having broken the law, prisoners lose their right to vote and the

ability to participate in selecting a politician to represent.62 Philosophers have long

debated the merits of restricting the franchise to those who faithfully obey the laws. 63

Social contract theorists like Thomas Hobbes, John Locke, and Jean-Jacques Rousseau

see a compact wherein citizens consent to be governed by, and submit to the laws of

59
Id.
60
Id.
61
http://www.sentencingproject.org/doc/publications/fd_Felony%20Disenfranchisement%20Primer.pdf
(December 27, 2015)

62
Felony Disenfranchisement Laws in the United States, THE SENTENCING PROJECT, 2 (2008)

63
MICHAEL LESSNOFF, SOCIAL CONTRACT THEORY 5 (Michael Lessnoff ed., New York Univ. Press 1990).

The Last Disenfranchised Class 18

society in return for the protections and benefits that an organized governmental

structure provides.64

Applying the social contract to justify exclusion seems almost a natural

consequence since a person who breaks the law has broken his bond to the rest of

society and the government, and has abandoned civilized, law-abiding society.65

Social contract theories have long been used to justify felon disenfranchisement,

contending that the innate defects of a convict make him incapable of respecting

societys laws.66 During the debate in the Senate in 2002 over a bill to secure federal

voting rights to exfelons, Senator Mitch McConnell took to the floor to proclaim:

Voting is a privilege; a privilege properly exercised at the voting booth, not from

a prison cell. States have a significant interest in reserving the vote for those who have

abided by the social contract that forms the foundation of a representative democracy.

Those who break our laws should not have a voice in electing those who make and

enforce our laws. Those who break our laws should not dilute the vote of lawabiding

citizens.67

64
http://openscholarship.wustl.edu/cgi/viewcontent.cgi?article=1004&context=law_jurisprudence (
December 27, 2015)

65
http://www.iep.utm.edu/s/ soccont.htm (December 28, 2015)

66
http://openscholarship.wustl.edu/cgi/viewcontent.cgi?article=1004&context=law_jurisprudence
(December 27, 2015)
67
Id.

The Last Disenfranchised Class 19

 As part of the social contract formed with the state, John Locke believed that

people cede their natural right to punish to the state creating an executive right in the

state to punish as a common judge and administrator of justice. 68 Locke combined his

social contract theory with theories of punishment to provide justification to state-

administered punishment: The State has the authority and commission delegated from

the people, which it exercises in a utilitarian manner to bring about the greater good.69

Social contract theory is a philosophical explanation for how and why civilized

society came about. It states that legitimate state policy and police authority arises only

through consent of the people and those who breach the social contract should be

excluded from it.70

Courts relying on the social contract theory have argued that when an individual

breaks the law that he authorized the government to make when first forming the social

contract, he abandons the right to participate in further shaping the provisions of the

contract.71 The provisions of the social contract are shaped in the ongoing negotiations

of the government and the people through the exercise of the franchise. Thus, losing

the right to participate is disenfranchisement.72 This approach to disenfranchisement

emphasizes the deliberate nature of the criminals decision to breach the social charter

68
A. John Simmons, The Lockean Theory of Rights 153 (1992).
69
Id.
70
Id.
71
http://archive.fairvote.org/righttovote/scb.pdf (December 27, 2015)
72
Id.

The Last Disenfranchised Class 20

as justification for withholding the franchise and effectively silencing the offender in the

ongoing contract negotiations.73

Some consider disenfranchisement a deterrent: A potential law breaker will

consider the overall ramifications of his actions, including disenfranchisement, in

assessing costs and benefits of a criminal activity; others will abstain from committing

criminal actions when they find out about the additional sanction of

disenfranchisement.74

Denial of the franchise is also sometimes justified as an incapacitative measure

and directly denies those who may engage in voting fraud or other abuses of the ballot

the facility to do so.75 Moreover, it keeps from voting a large group of individuals who

may subvert the democratic process by electing pro-crime individuals from voting.76

The incapacitative rationale is somehow related with a non-punishment related

argument that because voting is so important to a democracy, a conviction justifies

disenfranchisement.77 One version of this claim, the purity of the ballot box argument,

asserts that because offenders cannot be presumed to act in the best interest of the

community, they must be excluded from the franchise. 78 In our jurisdiction, the

justification for stripping the prisoners of their voting rights rests primarily on the

legitimate interest of the state in maintaining the purity of the ballot. This was

73
Id.
74
Alec C. Ewald, Criminal Disenfranchisement in an International Perspective (2000) p. 100
75
Ramirez v Brown, 507 P.2d 1345
76
Id.
77
http://www.sentencingproject.org/doc/publications/fd_liberalrepublican_argum.pdf (March 1, 2015)
78
Supra. Note 67.

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emphasized in a case79 decided by the Supreme Court stating that: The right of the

State to deprive persons to the right of suffrage by reason of their having been

convicted of crime, is beyond question. The manifest purpose of such restrictions upon

this right is to preserve the purity of elections. The presumption is that one rendered

infamous by conviction of felony, or other base offense indicative of moral turpitude, is

unfit to exercise the privilege of suffrage or to hold office. The exclusion must for this

reason be adjudged a mere disqualification, imposed for protection and not for

punishment, the withholding of a privilege and not the denial of a personal right.

No one has raised rehabilitation as a justification for disenfranchisement,

although some commentators have argued that the denial of the franchise impedes

rehabilitation, especially when it continues long after incarceration.80 A study on felon

disenfranchisement found that felons who voted were less likely to be re-arrested than

those who did not.81

Reforms in Foreign Jurisdictions

The United States is the only democracy that indefinitely bars so many ex-

offenders from voting.82 State legislation determines whether an individual with a felony

79
Supra. Note 47.
80
http://sociology.as.nyu.edu/docs/IO/3858/Criminal_Disenfranchisement.pdf (February 20, 2016)
81
http://www.americanbar.org/content/dam/aba/events/criminal_justice/Fall2012/Roundtable_SpearIt_
CJ_Reform.authcheckdam.pdf (February 20, 2015)
82
http://www.prisonpolicy.org/scans/demos/punishing_at_the_polls.pdf (December 28, 2015)

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conviction has the right to vote in both state and federal elections.83

Other countries do not restrict the voting rights of citizens who have completed

their sentences yet many states in the United States refuse to allow such individuals to

vote.84 As a result, at least 5.85 million Americans, 2 million of whom are African-

American, are barred from having their voices heard in our political process; also, nearly

4 million of these people are released from prison, but still cannot vote.85

Vermont and Maine are the only two states that do not have any laws depriving

people the right to vote because of a criminal conviction while the remaining 48 other

states have constructed a variety of legal barriers.86 Currently, 16 states deny the vote

to incarcerated felons, but grant the vote to those who are out of prison on probation or

parole; 4 states only allow felons on probation to vote and disenfranchise both parolees

and those in prison; 31 states disenfranchise all felons on probation, in prison, and on

parole; and finally, 14 states effectively remove the vote from all those with felony

convictions, including those who have completed their sentence while 5 states

permanently disenfranchise ex-felons while in the other 9 states ex-felons may regain

the right after a period of time.87

83
Mandeep K. Dhami. Prisoner Disenfranchisement Policy: A Threat to Democracy?
84
http://www.sentencingproject.org/doc/publications/publications/vr_ExpandingtheVoteFinalAddendum.
pdf (December 28, 2015)
85
Id.
86
Id.
87
Id.

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 Felony disenfranchisement laws themselves have their roots in the Jim Crow

tradition which produced poll taxes, literacy tests, and other racially-biased schemes for

diluting black voting power in the post-Reconstruction era.88 The 1965 Voting Rights Act

mandated the end to overtly discriminatory practices; however, without an explicit

proclamation of a right to vote in the United States Constitution, so-called facially

neutral policies such as disenfranchisement laws are constitutionally permissible.89

According to United States Department of Justice data, black males have a 28.5

percent chance over their lifetimes of being convicted of a felony, much higher than for

any other demographic group and the disparately high number of black felons means

that currently 6.3 percent of the national black population is disenfranchised. 90

The repercussions of this large-scale disenfranchisement were felt in the 2000

elections, when a mere 537 votes in Florida determined a victory for George W. Bush.91

Demographic statistical data show that because of their likely race and socioeconomic

statuses, the vast majority of disenfranchised felons align themselves politically with the

Democratic party.92 Among other lessons learned in the wake of the 2000 presidential

88
http://www.adaction.org/media/lizfullpaper.pdf (December 28, 2015)
89
Id.
90
Id.

91
Shapiro, A. (1993). Challenging criminal disenfranchisement under the Voting Rights Act: A new
strategy. Yale Law Journal, 103 (2), 537-566.

92
Id.

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election was the power of every vote; this makes the fact that in Florida alone, for

instance, over 700,000 felons were unable to cast ballots simply inexcusable. 93

Florida has one of the nations highest felon populations coupled with harsh

disenfranchisement laws which penalize ex-felons along with felons.94 To date, almost

one in three black male Floridians has been permanently barred from voting. 95

The political impact of the unprecedented disenfranchisement rate in recent

years is not insignificant. One study found that disenfranchisement policies likely

affected the results of seven U.S. Senate races from 1970 to 1998 as well as the hotly

contested 2000 Bush-Gore presidential election.96

Despite the extensive reach of disenfranchisement policies, there is growing

momentum for reform.97 Since 1997, 16 states have implemented policy reforms that

have reduced the restrictiveness of felony disenfranchisement laws; these include three

states that eliminated lifetime disenfranchisement provisions, four additional states that

scaled back their lifetime disenfranchisement laws to apply to a narrower category of

individuals, four states that simplified the restoration process for persons who have

completed sentence, and two states that reformed interagency data sharing procedures

93
Id.
94
Id.
95
Id.

96
Uggen, C. & Manza, J. (2002). Democratic contraction? Political consequences of felon
disenfranchisement in the United States. American Sociological Review, 67 (6), 777-803.

97
http://www.sentencingproject.org/doc/publications/fd_decade_reform.pdf (December 28, 2015)

The Last Disenfranchised Class 25

to address issues of accuracy in compiling the lists of persons to be removed or restored

to voting eligibility. 98

In just seven of these states, reforms resulted in the restoration of the right to

vote to an estimated 621,400 residents.99 With each passing legislative session more

reform bills are introduced, while state agencies are increasingly modifying the protocol

by which they administer disenfranchisement provisions and with the majority of the

public supporting reform, it is likely that additional states will be reconsidering

disenfranchisement laws in upcoming legislative sessions.100

Despite these developments, the number of people who cannot vote due to a

felony conviction continues to rise with the implications of this expansion in the

numbers of disenfranchised Americans have been particularly acute in communities of

color.101 Moreover, in an era when a record number of Americans are being released

from prison to the community, this exclusionary practice of denying the vote is difficult

to reconcile with the increased need for reentry based services and the struggle to ease

this critical transition which suggests that any reason for optimism on the policy front

should be tempered by the reality that United States disenfranchisement laws remain

some of the most restrictive in the world.102 Thus, continued momentum to expand

voting rights is essential; otherwise, the United States commitment to universal

suffrage remains illusory.

98
Id.
99
Id.
100
Id.
101
http://www.adaction.org/media/lizfullpaper.pdf (December 29, 2015)
102
Id.

The Last Disenfranchised Class 26

 As the issue gains increasing national attention and more people become aware

of the laws in their state, the public has indicated support for reform.103 Eight in 10

Americans believe that persons who have completed their sentence should have their

right to vote restored and nearly two-thirds support voting rights for persons on felony

probation and parole.104

Moreover, there is a growing movement of organizations and high-profile

individuals from both sides of the political aisle who are calling for reform. 105 In July

2006, the United Nations Human Rights Committee, when evaluating the United States

compliance with the International Covenant on Civil and Political Rights, called for the

extension of voting rights to persons upon release from prison.106

The foundation for reform of disenfranchisement laws remains in place, with the

public and domestic and international organizations recognizing the need for change.

It has been the established policy of successive United Kingdom governments

that convicted prisoners should lose their right to vote for the period for which they are

incarcerated.107 Currently, prisoners who are serving a custodial sentence in a place of

103
http://www.prisonpolicy.org/scans/demos/punishing_at_the_polls.pdf (December 29, 2015)
104
Id.
105
http://www.sentencingproject.org/doc/publications/fd_liberalrepublican_argum.pdf (December 29,
2015)
106
Id.
107
https://www.leighday.co.uk/LeighDay/media/LeighDay/documents/MoJ---Voting-Rights-of-Convicted-
Prisoners-Detained-within-the-United-Kingdom---Second-Consultation--Apr-09.pdf?ext=.pdf (December
29, 2015)

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detention within the UK are barred from voting under section 3 of the Representation of

the People Act 1983 and related legislation.108

In March 2004, the European Court of Human Rights (ECHR), in the case of Hirst

v UK109, unanimously ruled that the maintenance of an absolute bar on convicted

prisoners voting was in breach of Article 3 of the First Protocol to the ECHR, the right to

free and fair elections. This followed a successful legal challenge by John Hirst, a

prisoner who, in 1980, had been sentenced to a term of discretionary life imprisonment

after pleading guilty to manslaughter.110 The UK Government asked for the case to be

referred to the Grand Chamber of the ECHR.

On October 6, 2005, in the case of Hirst v UK (No 2)(Application no. 74025/01),

the Grand Chamber upheld the judgment by a majority of 12 to 5. The Court was clear in

its judgment that it was for the UK Government to decide how far enfranchisement

should be extended to prisoners: but the Court was also clear that the discretion

afforded to Governments in complying with the ECHR did not extend to maintaining

absolute disenfranchisement for all convicted prisoners.111 The Courts judgment means

that some form of enfranchisement must be pursued.

Seven years after the European Court of Human Rights in Strasbourg ruled that

banning convicted killer John Hirst from the polls had breached his right to participate in

the democratic process, the government is set to allow prisoners the vote but it wants

108
Id.
109
Supra Note 4.
110
Id.
111
Id.

The Last Disenfranchised Class 28

the right limited to those sentenced to a year or less, rather than the four years

previously considered.112

In South Africa, where its Constitution guarantees specifically that every of its

adult citizens have the right to vote, some legal controversy on the questions of

whether it is unconstitutional to limit the right of a prisoner to cast a vote in national

elections arose.113

When the Parliament amended the Electoral Act in 2003, in effect, deprive

convicted prisoners serving sentences of imprisonment without the option of a fine of

the right to participate in elections the Constitutional Court declared these amendments

to be invalid in the case of Minister of Home Affairs v NICRO.114

In the NICRO case, the Constitutional Court has to decide whether the changes

to the Electoral Act curtailed the Constitutional right to vote of prisoners in an

unjustifiable manner.115 The court came up to the conclusion that the limitation in this

instance was unjustifiable stating that, where the purpose of the law is not apparent,

there is a need for the government to place sufficient information before the Court to

112
http://www.bbc.com/news/uk-11674014 (December 22, 2015)
113
http://cspri.org.za/publications/research-
reports/South%20African%20Prisoners%20Right%20to%20Vote.pdf (December 29, 2015)
114
Id.
115
Minister of Home Affairs v National Institute for Crime Prevention and the Re-Integration of Offenders
(NICRO) and Others (CCT 03/04) [2004] ZACC 10; 2005 (3) SA 280 (CC); 2004 (5) BCLR 445 (CC) (3 March
2015)

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enable it to know exactly what purpose the disenfranchisement was intended to serve,

this the Government fails to do.116

In the case of Sauve v The Attorney General of Canada, the Chief Electoral Officer

of Canada and the Solicitor General of Canada (2002)117, Richard Sauve, an ex-inmate,

challenged the section of the Canada Elections Act that prohibited voting by inmates

serving a sentence of two years or more.

In this case, the Attorney General of Canada did not dispute that the law

infringed upon the right of inmates to vote; but the government did argue that denying

this right was justifiable under the Charter as it served several purposes best

determined by Parliament.118 Those purposes included the goal of promoting civic

responsibility and respect for the law and that denial of the vote was a reasonable

punishment in addition to that specified by the court; however, in a 5-4 ruling, the

Supreme Court ruled against the government.119

First, the Court found that as voting was a fundamental right in a democracy, any

attempt made to restrict that right had to be made on the basis of a compelling reason

that met specific legal tests and such had to be made because of necessity and the

objectives of the prohibition could not be met through other measures.120 In dismissing

the arguments of the Government, the court rejected the argument that denying the

116
Id.
117
202 SCC 68 Supreme Court of Canada Case Information No. 27677 October 31, 2002
118
Id.
119
Id.
120
Id.

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vote will help reach the objective of promoting civic responsibility and respect for the

law, instead, it found that denying inmates the right to vote is more likely to send

messages that undermine respect for the law and democracy than messages that

enhance those values.121 The legitimacy of the law and the obligation to obey the law

flow directly from the right of every citizen to vote and to deny inmates the right to vote

is to lose an important means of teaching them democratic values and social

responsibility; disenfranchising a segment of the population finds no place in a

democracy built upon principles of inclusiveness, equality, and citizen participation. 122

Second, the Supreme Court found that denying a fundamental right is arbitrary

because it is applied to all offenders regardless of the circumstances relating to the

offender or his offense.123

Finally, the court said that the negative effects coming from denying this right

are greater than the positive effects and denying inmates the right to vote imposes

negative costs on inmates and on the penal system since it removes a way to social

development and undermines correctional law and policy directed towards

rehabilitation and integration.124 In light of the disproportionate number of Aboriginal

people in penitentiaries, the negative effects of this law upon inmates have a

disproportionate impact on Canada's already disadvantage Aboriginal population.125

121
Id.
122
Id.
123
Id.
124
Id.
125
Id.

The Last Disenfranchised Class 31

 In sum, Canadas highest court found that the federal government did not have

sufficient reason to deny inmates the right to vote.

The Purpose of Penalty

The State has always made provisions to punish those who violate its laws in the

exercise of its police power. The three-fold purposes of the penalty in our legal system

are: retribution or expiation, correction or reformation, and social defense. 126

Retribution, as a purpose of punishment, intends to make the offender suffer in

return for the pain they have caused.127 Persons who have committed crimes acted

immorally and punishment allow them to make amends for their action. 128 When the

individual breaks the law that he authorized the government to make when forming the

social contract, he abandons the right to further participate in shaping the provisions of

the contract. 129 The provisions of the social contract are shaped in the ongoing

negotiations between the government and the people through the exercise of the

franchise.130 Thus, losing the right to participate is disenfranchisement.

Furthermore, because a crime is an affront against the state, not allowing

prisoners to vote is a way to pay their debt to the society which involves removing

126
Luis B. Reyes. The Revised Penal Code Annotation. Eighteenth Edition. 2012.
127
https://www.brennancenter.org/sites/default/files/legacy/Democracy/RTV/Criminologists%20Brief.pdf
(March 1, 2016)
128
Id.
129
http://www.sentencingproject.org/doc/publications/fd_liberalrepublican_argum.pdf (March 1, 2016)
130
Id.

The Last Disenfranchised Class 32

criminals from society to reduce or eliminate their potential to continue to harm.131

Criminals were severed from the body politic and were refused to participate in its

affairs. Philosophers were clear about the need for the society to punish and remove

those who cannot abide by the law.132 The sanction of depriving prisoners their right to

vote is a forfeiture of a very important right for a single breach of the social contract.

Another aim of the penal system is the reformation of the prisoner for his

eventual reintegration in the community.133 Correction or rehabilitation is seen as a

means for enhancing civic responsibility and respect for the rule of law and not giving

prisoners the right to vote is a way to demonstrate to the offenders what is required of

them as a citizen.134

People assign their natural right to punish to the state creating an executive right

in the state to punish as a common judge and administrator of justice; it has the

authority and commission delegated from the people, which it exercises for the greater

good.135 The common view is that individual parties to the contract are aware that their

status under the terms of the contract depends on respecting those rules.136

Lastly, as a social defense, disenfranchisement serves as a deterrent. As a

method of crime control, excluding prisoners from voting deprives him of something he

131
Id.
132
http://openscholarship.wustl.edu/cgi/viewcontent.cgarticle=1004&context=law_jurisprudence (March
1, 2016)
133
Id.
134
Id.
135
http://sociology.as.nyu.edu/docs/IO/3858/Criminal_Disenfranchisement.pdf (March 1, 2016)
136
Id.

The Last Disenfranchised Class 33

values.137 This also sends educative message to the public that they must respect the

rule of law. Punishment redresses crimes already committed, giving example to

persuade the general public from not committing another crime.138

137
http://www.sentencingproject.org/doc/publications/fd_liberalrepublican_argum.pdf (March 1, 2016)
138
Id.

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