Disfranchisement

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Disfranchisement (also called disenfranchisement) is the revocation of the right of suffrage (the right to vote) of a person or group of people, or through practices, prevention of a person exercising the right to vote. Disfranchisement may be accomplished explicitly by law or implicitly through requirements applied in a discriminatory fashion, intimidation, or by placing unreasonable requirements on voters for registration or voting.

By place of residence and ethnicity[edit]

United States[edit]

In the United States, state governments have had the right to establish requirements for voters, voter registration, and conduct of elections. Since the founding of the nation, legislatures have gradually expanded the franchise (sometimes following federal constitutional amendments), from certain propertied white men to essentially universal adult suffrage of age 18 and over. Expansion of suffrage was made on the basis of lowering property requirements, granting suffrage to freedmen and free people of color following the American Civil War, to women in 1920, all Native Americans in 1924, and persons over the age of 18 in the 1970s.

Washington, D.C.[edit]

When the District of Columbia was established as the national capital, with lands contributed by Maryland and Virginia, its residents were not allowed to vote for local or federal representatives, in an effort to prevent the district from endangering the national government. Congress had a committee, appointed from among representatives elected to the House, that administered the city and district in lieu of local or state government. Residents did not vote for federal representatives who were appointed to oversee them.

In 1804, US Congress cancelled holding US Presidential elections in Washington, DC or allowing residents to vote in them. Amendment 23 was passed by Congress and ratified in 1964 to restore the ability of District residents to vote in presidential elections.

In 1846, the portion of Washington, DC, contributed from Virginia, was "retrocessioned" (returned) to Virginia to protect slavery. Persons residing there (in what is now Alexandria), vote in local, Virginia and US elections.

Congress uses the same portion of the US Constitution to exclusively manage local and State level law for the citizens of Washington, DC and US military bases in the US. Until 1986, military personnel living on bases were considered to have special status as national representatives and prohibited from voting in elections where their bases were located. In 1986, Congress passed a law to enable US military personnel living on bases in the US to vote in local and state elections.

The position of non-voting delegate to Congress from the District was reestablished in 1971. The delegate cannot vote for bills before the House, nor floor votes, but may vote for some procedural and committee matters. In 1973, the District of Columbia Home Rule Act reestablished local government after a hundred-year gap, with regular local elections for mayor and other posts. They do not elect a US senator. People seeking standard representation for the 600,000 District of Columbia residents describe their status as being disfranchised in relation to the federal government. They do vote in presidential elections.

Comparisons[edit]

No NATO (US military allies) nor OECD country (US industrialized allies) until 2009, disfranchises citizens of their respective national capitals for national legislature elections. Those capitals all developed historically by different processes than the political compromise by which Congress founded the District of Columbia. No US state prohibits residents of capitals from voting in state elections, and their cities are contained within regular representative state and congressional districts.

Puerto Rico[edit]

U.S. federal law applies to Puerto Rico, although Puerto Rico is not a state. Due to the Federal Relations Act of 1950, all federal laws that are "not locally inapplicable" are automatically the law of the land in Puerto Rico (39 Stat. 954, 48 USCA 734).[1] According to ex-Chief of the Puerto Rico Supreme Court Jose Trias Monge, "no federal law has ever been found to be locally inapplicable to Puerto Rico.[2] Puerto Ricans were conscripted into the U.S. armed forces; they have fought in every war since they became U.S. citizens in 1917.[3] Puerto Rico residents are subject to most U.S. taxes.

Contrary to common misconception, residents of Puerto Rico do pay U.S. federal taxes[4] and contribute to Social Security, Medicare and other programs through payroll taxes. But, these American citizens have no Congressional representation nor do they vote in U.S. presidential elections.

Juan Torruella and other scholars ( argue that the U.S. national-electoral process is not a democracy due to issues related to lack of voting rights in Puerto Rico and representation.[5] Both the Puerto Rican Independence Party and the New Progressive Party reject Commonwealth status. The remaining political organization, the Popular Democratic Party has officially stated that it favors fixing the remaining "deficits of democracy" that the Clinton and Bush administrations publicly recognized through Presidential Task Force Reports.

By disability[edit]

Failure to make adequate provision for disabled electors can result in the selective disenfranchisement of disabled people. Accessibility issues need to be considered in electoral law, voter registration, provisions for postal voting, the selection of polling stations, the physical equipment of those polling stations and the training of polling station staff. This disenfranchisement may be a deliberate facet of electoral law, a consequence of a failure to consider the needs of anyone other than non-disabled electors, or an ongoing failure to respond to identified shortcomings in provision.

Note that in the case of disabled voters the issue may be actual disenfranchisement of someone previously able to vote, rather that ab initio disfranchisement. This may result from the transition from non-disabled to disabled, from changes in the effects of a disability, or changes in the accessibility of the electoral process.

Access issues[edit]

Access presents special difficulties for disabled voters.

  • Eligibility—Some nations restrict the franchise based on measured intellectual capacity. Potential voters with learning impairments, mental health issues, or neurological impairments may also find themselves barred from voting by law.
  • Registration—Registration difficulties may disnfranchise disabled people through inadequate access provisions. For instance the United Kingdom (UK) Electoral Register is updated annually by a largely paper-based process; this provides poor accessibility to people with visual or learning impairments.
  • Postal Voting—Postal voting for disabled voters requires ballots that are appropriate for visually impaired voters. The lack of a private, accessible voting booth makes postal voting inappropriate for others with specific physical and other disabilities.
  • Polling Stations—Polling stations must offer the same physical accessibility that apply to other public facilities (parking, ramps, etc.) There must be sufficient polling stations to minimize queueing, which discriminates against those with mobility, pain or fatigue-based impairments. In 2005, 68% of polling stations in the UK were potentially inaccessible to disabled voters.[6]
  • Equipment—Polling stations must be clearly signposted. Low-to-the-ground polling booths and voting equipment must be available. Equipment must enable independent voting by visually and/or physically impaired voters. In 2005, 30% of UK polling stations were not in compliance with the law that requires a large print ballot and a physical template.[6]
  • Staff—Staff must understand the necessity of taking steps to ensure access and be able to show voters how to use equipment such as physical templates, as well as in "disability etiquette" to avoid patronizing these voters.

Campaigns for improvement[edit]

The disability rights movement in the UK has increased attention on electoral accessibility. Campaigns such as Scope's 'Polls Apart' have exposed violations at polling stations.[6]

Resulting from criminal conviction[edit]

United States[edit]

Many states intentionally retract the franchise from convicted felons, but differ as to when or if the franchise can be restored. In those states, felons are also prohibited from voting in federal elections, even if their convictions were for state crimes.

Maine and Vermont allow prison inmates as well as probationers and parolees to vote.[7]

Twenty states (Alaska, Arkansas, Georgia, Idaho, Iowa, Kansas, Louisiana, Maryland, Minnesota, Missouri, Nebraska, New Jersey, New Mexico, North Carolina, Oklahoma, South Carolina, Texas, Washington, West Virginia, and Wisconsin) do not allow persons convicted of a felony to vote while serving a sentence, but automatically restore the franchise to the person upon completion of a sentence.[8] In Iowa, in July 2005, Governor Tom Vilsack issued an executive order restoring the right to vote for all persons who have completed supervision, which the Iowa Supreme Court upheld on October 31, 2005.[9]

Thirteen states (Hawaii, Illinois, Indiana, Massachusetts, Michigan, Montana, New Hampshire, North Dakota, Ohio, Oregon, Pennsylvania, Rhode Island, and Utah) plus the District of Columbia allow probationers and parolees to vote, but not inmates.[10]

Five states (California, Colorado, Connecticut, New York, and South Dakota) allow probationers to vote, but not inmates or parolees.[11]

Eight states (Alabama, Arizona, Delaware, Kentucky, Mississippi, Nevada, Tennessee, and Wyoming) allow some, but not all, persons with felony convictions to vote after having completed their sentences.[12] Some have qualifications of this: for example, Delaware does not restore the franchise until five years after release of a person.[13] Similarly, Kentucky requires that the person take action to gain restoration of the franchise.[9]

Two states (Florida and Virginia) permanently disfranchise persons with felony convictions.[14]

Disfranchisement due to criminal conviction, particularly after a sentence is served, has been opposed by the Sentencing Project, an organization in the United States working to reduce arbitrary prison sentences for minor crimes and to ameliorate the negative effects of incarceration to enable persons to rejoin society after completing sentences. Its website provides a wealth of statistical data that reflects opposing views on the issue, and data from the United States government and various state governments about the practice of felony disfranchisement.

United Kingdom[edit]

The United Kingdom suspends suffrage of some but not all prisoners. For example, civil prisoners sentenced for nonpayment of fines can vote. Prior to the judgment in Hirst v United Kingdom (No 2), convicted prisoners had the right to vote in law but without assistance by prison authorities, voting was unavailable to prisoners. In Hirst, the European Court of Human Rights ruled that First Protocol Article 3 requires Member States to proactively support voting by authorized inmates.[15] In the UK, as of 2009 this policy is under review.[16]

Lord Falconer of Thoroton, former Secretary of State for Constitutional Affairs, stated that the ruling may result in some, but not all, prisoners being able to vote.[17] The consultation is to be the subject of Judicial Review proceedings in the High Court. Separate challenges by the General Secretary of the Association of Prisoners, Ben Gunn, by way of petition to the European Union Parliament, and John Hirst to the Committee of Ministers are underway.

Ireland[edit]

To comply with the judgment in Hirst v United Kingdom (no 2), the Republic of Ireland passed a statute allowing convicted prisoners to have postal votes.[citation needed]

Germany[edit]

In Germany, all convicts are allowed to vote while in prison unless the loss of the right to vote is part of the sentence; courts can only apply this sentence for specific "political" crimes (treason, high treason, electoral fraud, intimidation of voters, etc.) and for a duration of two to five years.[18] All convicts sentenced to at least one year in prison automatically lose the right to be elected in public elections for a duration of five years, and lose all positions they held as a result of such an election.

Israel[edit]

Inmates are allowed to vote in Israel. They do not suffer disfranchisement following release from prison after serving their sentence, parole, or probation. Neither courts nor prison authorities have the power to disqualify any person from exercising the right to vote in national elections, whatever the cause of imprisonment.

Others[edit]

In some countries, such as China and Portugal, disfranchisement due to criminal conviction is an exception, meted out separately in a particular sentence. Losing voting rights is usually imposed on a person convicted of a crime against the state (see civil death) or one related to election or public office.

See also[edit]

Notes[edit]

  1. ^ Since 1917 they have been considered American citizens. 39 Stat. 954, 48 USCA 734 "The statutory laws of the United States not locally inapplicable, except as hereinbefore or hereinafter otherwise provided, shall have the same force and effect in Porto Rico as in the United Status…".
  2. ^ José Trías Monge, Puerto Rico: The Trials of the Oldest Colony in the World, p. 43
  3. ^ Puerto Rico Herald
  4. ^ Dept of the Interior, Office of Insular Affairs
  5. ^ Torruella, Juan R. (1985). The Supreme Court and Puerto Rico: The Doctrine of Separate and Unequal.
  6. ^ a b c http://www.pollsapart.org.uk/docs/reports/Polls%20Apart%20report%20final.pdf The 'Polls Apart' campaign, run by the UK disability charity Scope
  7. ^ American Civil Liberties Union
  8. ^ American Civil Liberties Union
  9. ^ a b "Felony Disenfranchisement Laws in the United States" (pdf). The Sentencing Project. March 2011. 
  10. ^ American Civil Liberties Union
  11. ^ American Civil Liberties Union
  12. ^ American Civil Liberties Union
  13. ^ "State of Delaware - Department of Elections for New Castle County - Voter Registration". electionsncc.delaware.gov. Retrieved 2014-02-11. 
  14. ^ American Civil Liberties Union
  15. ^ "Matrix Chambers". matrixlaw.co.uk. Retrieved 2014-02-11. 
  16. ^ "Voting Rights of Convicted Prisoners Detained within the United Kingdom, Second stage consultation". Ministry of Justice. April 8, 2009. Retrieved July 6, 2010. 
  17. ^ Convicts 'will not all get vote', BBC News, October 6, 2005, accessed December 9, 2005
  18. ^ (German) §45 StGB, accessed July 28, 2006

References[edit]

  • "Election Readiness: It Is Never Too Late for Transparency", October 2004, from Fair Election International (FEI), a project of Global Exchange, quoted in part in AfricaFocus Bulletin, 26 Oct 2004