Original question:

This question was posed by an ACE user through the "Ask a question" function in Electoral Advice.

In East Timor, although prisoners were able to register on the electoral roll, no action was taken by the Electoral Management Body (EMB) to provide voting facilities inside prisons during the first round of the presidential elections. Prisoners who have been sentenced are excluded from voting, but there are still a substantial number of individuals in preventive detention who should not lose their right to vote. Is there a common method to implement voting in prisons? And would you say that it has to be specifically provided for in a regulation or law? Are there many countries that allow sentenced prisoners to exercise their right to vote by providing special voting facilities for them?

David Henry gives a detailed account of how prisoners are allowed to register and how votes are collected from prisoners in New Zealand, with mobile voting stations inside the prisons, while Alan Wall provides a long list of examples of how countries have dealt with the issue of voting for prisoners, e.g. Indonesia, Australia, Canada and South Africa. Debashis Sen says in reply to the questions that most prisoners in India are not allowed to vote; only persons on preventive detention can cast a postal vote if their names appear on the electoral rolls, however, all prisoners are allowed to stand for office – possibly an attempt to avoid the risk of the ruling political party eliminating competition by putting rivals behind bars close to an election.

Alan Wall argues that the voting facilities for prisoners, together with the provisions for how they can register, should be explicitly mentioned in the law, similar to the explicit provisions for other groups to vote, even though the general voting rights are stated in the constitution. This is to avoid situations where the voting rights are secured, but there is no way of implementing them, and no sanctions for failing to provide the facilities necessary. Explicitly mentioning voting by prisoners in the law may in some cases also be necessary in order to establish procedures needed to insure that prisoners can enjoy sufficient levels of accessibility and integrity in their voting. It is however also worth mentioning that the establishment of these provisions in the legislation also increases the possibility of the provisions being taken away after a change of government, through a simple vote in the legislature changing the law.

Other things to be considered are among others how to make sure that the vote is counted in the “right” electoral district, meaning the district in which the prisoner is registered. A related question is: which district should be considered the prisoner’s district? The one in which the prison is located, or the one in which he or she resides when not in prison? This is of greater concern in electoral systems with single-member districts compared to systems with large multi-member districts, and is important to consider as it has both logistical and political implications. Alan Wall states that overall, it is easier to ensure that the voting rights of prisoners are implemented in practice if there is a general system in place for absentee voting because that means there is an administrative structure and capacity available to deal with absentee voting, as well as a plausibly greater public acceptance for special voting arrangements for prisoners – whereas making these available for prisoners but nobody else might not be an easy sell.

Alan Wall also concludes that prisoners are not the most widely supported of lobby groups and that the voting rights and opportunities prisoners do enjoy therefore have been hard-fought.

Replies were received, with thanks, from:

• David Henry
• Alan Wall
• Debashis Sen

Links to the ACE Encyclopaedia and other related resources:

ACE Encyclopaedia: Early voting

ACE Encyclopaedia: Absentee voting

ACE Encyclopaedia: Locations for absentee voting

ACE Encyclopaedia: Proxy voting

ACE Encyclopaedia: Other special voting arrangements (including information about mobile voting stations and ballot boxes)

ACE Encyclopaedia: Voter education of prisoners

Voting by prisoners in Canada

Individual answers

I can give you a short description of the New Zealand position.

Prisoners serving a sentence of less than 3 years remain eligible to enrol and vote. 

The Chief Electoral Office (CEO) arranges for eligible prisoners to make a special (declaration) vote in advance of polling day. This is done under the general provisions of the legislation and regulations which allow advanced voting when a voter cannot get to a polling station on election day.  The CEO takes the view that since these people are eligible then the service should be provided in the prison.

The local Returning Officer for the electorate in which the prison is situated asks the prison manager to supply a list of prisoners who are eligible to vote and who wish to do so. The list is then checked again the electoral roll to determine in which electorate each prisoner is enrolled. A team is sent in with appropriate ballot papers and supplies and takes the votes. If a prisoner is not enrolled but wishes to vote they also complete an enrollment form on the spot  (enrolment is possible for all people up to and including the day before election day).

Local returning officers are also required to make similar arrangements for people who are in remand prisons awaiting court appearances,  or people who have been sentenced to home detention.

The key to all of this is close cooperation between the Returning Officer, the Registrar of Electors and local prison management.

David Henry

I don’t know how many countries actually provide facilities for prisoners to vote (as against not disqualifying them from voting) but there are a significant number.  But it has often been a long fight to have whatever voting rights are available to prisoners implemented - they are not the most widely supported of lobby groups. Details of a few countries are at the end of this response.

The disqualification issue is one worth considering separately  - whether sentencing for a crime in itself should eliminate voting rights or whether the right to vote should only be extinguished where the law specifically provides for this as part of a sentence. 

While international treaties such as the Covenant on Civil and Political Rights and regional instruments such as the European Declaration of Human Rights, and broad voting eligibility criteria in many constitutions, provide a basis for prisoner voting, I’d much prefer to have both prisoners’ voter registration rights and the voting facilities required to be provided to prisoners clearly defined in law.  It’s analogous to eligibility criteria/voting facilities for other special groups such as external voters, or absentee/postal voters, which would usually be defined in law.

Otherwise you can get into situations as in Canada where cases bounced around the courts for years on whether prisoners could or could not vote, or as in Ireland, where prisoners had rights to be registered to vote but until 2006 no means of implementing them.  Also, depending on the electoral system and election implementation arrangements, special procedures may need to be legally defined for voting by prisoners to ensure accessibility and integrity in their voting.

On the other hand, defining prisoner’s eligibility rights and voting facilities in law can mean that these can also be swiftly legislated away by governments wanting to restrict the political rights of those they do not like – as recently in Australia (though this is subject to a current constitutional challenge).

Where prisoners have voting rights, whether to provide and what types of voting facility are appropriate to provide will depend very much on the electoral system, usual voting procedures and the capacity of electoral administration.  A basic issue is what address is a prisoner registered for, and how can voting facilities be implemented that allow each prisoner’s vote to be counted for the electoral district in which the address of registration is located?

Even in a situation such as the East Timor presidential election, where there is a single nationwide electoral district and a single ballot paper, this is an issue.  How is the voters list for the election to be compiled for the prison inmates?  Are prisoners registered as voters for the prison address - in which case it may be relatively easy, depending on security considerations, to set up and administer a normal polling station within the prison. But this may not accord with the general structure for voter registration.

Where there is a requirement for prisoners in the one prison to vote in respect of various different electoral districts, a more sophisticated voting process and capacity to implement is needed.   This may be for reasons of principle/integrity -  of all voters voting for the electoral district of 'domicile', and a particular prison is not often regarded as a domicile. Where countries are divided into electoral districts,  rightly or wrongly vox pop is often very opposed to lumping all prisoners in a prison, no matter where their 'home electoral district' is,  into the electoral district in which the prison happens to be located, as this could significantly influence  the result in that district.   

In such cases providing voting facilities for prisoners, no matter what the electoral district configuration, is easier if there is a general system in place for absentee voting – by post and/or in person.  There is then an administrative structure and hopefully adequate capacity available to deal with absentee voting overall. It also may not be easy to get public acceptance for postal or other forms of absentee voting being made available to prisoners but not others.

In countries that struggle to manage normal voting stations effectively, it would need to be assessed if there is the capacity to deal with the significant additional administrative burden of an absentee voting process, even if only for prisons.

A few examples of current, and recent, practices follow.

In Indonesia, election regulations authorise sub district level election committees to create polling stations in prisons and correctional facilities to take the votes from voters there.  Voting is by normal ballot for whatever national electoral district the prison is in.   It’s never been clear to me the extent to which this is facility is actually made available, though all prisoners are eligible to remain registered to vote. Prisoners are one of the special target groups for voter information and education defined in the National Election Commission’s regulations.

In Australia, prior to mid 2006, eligible prisoners could vote in federal elections by post or by a declaration (absentee style) vote with a polling team visiting the prison – in a manner somewhat similar to the detail provided for New Zealand.  Eligible prisoners were those serving sentences of less than 3 years, serving periodic detention sentences, on early release or on parole. Eligible prisoners could register to vote for the electoral area where they were registered when they began serving their sentence, or if not then registered, for another area with which they could establish one of 4 legally defined associations. In June 2006 the federal government amended electoral legislation to bar all prisoners from voting in federal elections.

In the UK, eligible people in prison can vote either by absentee (postal) vote or by appointing a proxy.  Full details are at http://www.pso.hmprisonservice.gov.uk/PSO_4650_prisoners_voting_rights.doc (enter the link in the search field of a search engine, click the link that appears and download the document).  Currently the only people in prison eligible to vote are unconvicted prisoners, convicted but unsentenced prisoners, prisoners serving a sentence in lieu of a fine, and those imprisoned for contempt of court. These prisoners may register to vote for the home address at which they would be living if not in prison, or, if this is not appropriate (and except for convicted unsentenced prisoners) for the electoral district with which they have a local connection, or, for the prison address. Following a 2005 European Court of Human Rights decision that a blanket ban on sentenced prisoners voting is a breach of human rights, the UK government issued a consultation paper in December 2006 on extending voting rights to certain classes of convicted prisoners. The public consultation process is continuing, but with neither of the two main parties happy about extending any voting rights to prisoners under sentence.

In Canada, the right to vote in federal elections was extended to all federal prisoners by a Supreme Court decision on constitutional grounds in 2002.  There are voting stations in prisons, and prisoners vote 10 days before regular polling day by special (absentee type) ballot. Prisoners can register to vote and vote for their ‘home’ electoral district, or if not applicable, the electoral district where their spouse or partner lives, or , if not applicable, the electoral district in which they were arrested or convicted. Full explanation of the system is here. The opposition has indicated it will legislate to ban prisoners voting when/if it returns to power.

In the Republic of Ireland, the law allows prisoners to register to vote in the constituency in which they would normally live. However, until 2006, prisoners had no right to be given access to a ballot box by temporary release, postal vote or any other means.   Since 2006 - and prompted by the European Court of Human Rights decision re the UK situation -   postal voting arrangements similar those for ‘student’ or ‘occupational’ postal voters are available to prisoners.  Prisoners are registered to vote for their ‘home’ electoral district address, not a prison address.

In South Africa, all prisoners have had the right to vote since a Constitutional Court determination of 1999. In 2004 the Constitutional Court rejected attempts by the government to exclude some prisoners from voting facilities – the government’s main arguments being on cost and logistical grounds.

And in brief:

• In 18 European countries there are no legal restrictions on prisoners voting. In 8 – mainly in eastern Europe and the former soviet union – there are.
• Then we come to the USA, where not only do the vast majority of states not allow those in prison to vote, but many bar convicted felons from voting for life.

Regards

Alan

In India, the law is clear: prisoners not on preventive detention do not have the right to vote. Voters on preventive detention have the right to cast votes through postal ballots if their names appear on the electoral rolls.

Curiously, however, the law allows prisoners to contest in elections. I guess this is to prevent the ruling political party from eliminating competition by putting rivals behind bars using the police and doubtful allegations on the eve of elections.

Debashis Sen, CEO

THANKS TO ALL WHO HAVE CONTRIBUTED!

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opinions expressed by members of the ACE Practitioners' Network do not
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