Legal outlier, again? U.S. felon suffrage: comparative and international human rights perspectives

The judiciousness of American felon suffrage policies has long been the subject of scholarly debate, not least due to the large number of affected Americans: an estimated 5.3 million citizens are ineligible to vote as a result of a criminal conviction. This article offers comparative law and \ninternational human rights perspectives and aims to make two main contributions to the American and global discourse. \n \nAfter an introduction in Part I, Part II offers comparative law perspectives on challenges to disenfranchisement legislation, juxtaposing U.S. case law against recent judgments rendered by courts in Canada, South Africa, Australia, and by the European Court of Human Rights. The article submits that owing to its unique constitutional stipulations, as well as to a general reluctance to engage foreign legal sources, U.S. jurisprudence lags behind an emerging global jurisprudential trend that increasingly \nviews convicts’ disenfranchisement as a suspect practice and \nsubjects it to judicial review. This transnational judicial discourse follows a democratic paradigm and adopts a “residual liberty” approach to criminal justice that considers convicts to be rights-holders. The discourse \nrejects regulatory justifications for convicts’ disenfranchisement, and instead sees disenfranchisement as a penal measure. In order to determine its suitability as a punishment, the adverse effects of disenfranchisement \nare weighed against its purported social benefits, using balancing or proportionality review. \n \nPart III analyzes the international human rights treaty regime. It assesses, in particular, Article 25 of the International Covenant on Civil and Political Rights (“ICCPR”), which proclaims that “every citizen” has \na right to vote without “unreasonable restrictions.” The analysis concludes that the phrase “unreasonable restrictions” is generally interpreted in a manner which tolerates certain forms of disenfranchisement, whereas \nother forms (such as life disenfranchisement) may be incompatible with treaty obligations. \n \nThis article submits that disenfranchisement is a normatively flawed punishment. It fails to treat convicts as politically-equal community members, degrades them, and causes them grave harms both as individuals and as members of social groups. These adverse effects outweigh the \npurported social benefits of disenfranchisement. Furthermore, as a core component of the right to vote, voter eligibility should cease to be subjected \nto balancing or proportionality review. \n \nThe presumed facilitative nature of the right to vote makes suffrage less susceptible to deference-based objections regarding the judicial review of legislation, as well as to cultural relativity objections to further the international standardization of human rights obligations. In view of \nthis, this article proposes the adoption of a new optional protocol to the ICCPR proscribing convicts’ disenfranchisement. The article draws analogies between the proposed protocol and the ICCPR’s “Optional Protocol Aiming at the Abolition of the Death Penalty.” If adopted, the \nproposed protocol would strengthen the current trajectory towards expanding convicts’ suffrage that emanates from the invigorated transnational judicial discourse. \n

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