Prisoner Disenfranchisement Before the European Court of Human Rights
In a decision that may be useful in domestic challenges to felony disenfranchisement, the Fourth Section Chamber of the European Court of Human Rights on August 12, 2014, reiterated its view (over two dissenting opinions) that blanket bans on prisoner voting violate human rights norms articulated in the European Convention on Human Rights and the International Covenant on Civil and Political Rights, among others.
The United States is one of the leading nations in the world when it comes to felony disenfranchisement, denying the vote to about 5.85 million individuals. According to the Sentencing Project, thirty-five of the fifty states impose post-sentence restrictions on individuals’ voting rights and twelve states deny voting rights even to those who have successfully fulfilled their prison, parole, or probation sentences. However, the U.S. is not completely alone, and a number of other countries, including the United Kingdom and Russia, practice milder forms of prisoner disenfranchisement, barring individuals from voting during the time they are serving in prison with eligibility to vote generally reinstated after their are released.
In 2005, the ECtHR ruled that Scotland’s blanket policy of denying prisoners the right to vote violated the ECHR protocol guaranteeing participation in free elections. A more recent case addressing Italy’s law barring certain convicted felons from both holding public office and voting reiterated that blanket bans on prisoner voting would violate the European Convention. The decision delved into a discussion of comparative practices in Canada, South Africa, and Australia before concluding that the Italian law was sufficiently narrow and tailored to the particular offenses to pass muster.
On August 12, the Fourth Section Chamber of the European Court concluded in Firth and Others v. U.K. that the Scottish prisoners who were denied voting rights in the 2005 case were not entitled to compensation for that denial, but at the same time, the Court stated once again that the blanket ban on voting in prison violated the UK’s obligations under the ECHR.
Commentary on Firth can be found here, here and here. While the European case law may be helpful to domestic U.S. advocates, many commentators express concern that U.K. legislators will simply defy the European Court and perpetuate the disenfranchisement policy, in derogation of the rule of law.