Published In

Temple Political & Civil Rights Law Review

Document Type

Working Paper

Publication Date

2003

Subjects

prisons, voting rights, felon disenfranchisement, human rights, comparative constitutional law

Abstract

This paper takes seriously the objection that allowing prisoners to vote may have an impact on the outcome of elections or on the development of law and policy, given the extraordinarily high incarceration rate currently a reality in the United States. The reality that prisoners may have an impact on the outcome of elections is an argument in favour of allowing them to vote rather than against it. A progressive critique or constitutional challenge of prisoner disenfranchisement should call attention to the instrumental, as well as symbolic and constitutive functions of voting, and must defend the importance of having the views and preferences of prisoners voiced at the ballot box. This paper attempts to do that. Part II briefly surveys felon disenfranchisement laws in the United States. Part III discusses a recent Canadian decision which found that country's prisoner disenfranchisement law unconstitutional. The Canadian experience is instructive for its attention to, and ultimate rejection of, a number of common justifications for maintaining prisoner disenfranchisement laws. To understand the harm of prisoner disenfranchisement, Part IV examines three elements of the right to vote in American law (participation, aggregation and governance), as well as two distinct functions of the right to vote, namely the constitutive function and the instrumental function. Part V provides an analysis of the various constitutive and instrumental reasons for recognizing the right of prisoners to participate in the electoral process. Part VI offers some potential answers to the practical and administrative objections often cited by opponents of prisoner voting, drawing on the Canadian experience, and Part VII concludes with some thoughts on the prospects for change.

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