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 international human rights perspectives and aims to make two main contributions to the American and global discourse. After 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 views convicts’ disenfranchisement as a suspect practice and subjects 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 rejects 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 are weighed against its purported social benefits, using balancing or proportionality review. Part 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 a 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 other forms (such as life disenfranchisement) may be incompatible with treaty obligations. This 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 purported social benefits of disenfranchisement. Furthermore, as a core component of the right to vote, voter eligibility should cease to be subjected to balancing or proportionality review. The 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 this, 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 proposed protocol would strengthen the current trajectory towards expanding convicts’ suffrage that emanates from the invigorated transnational judicial discourse.

The First Universal Suffrage Election, at County (Gewog) Level, in Bhutan

Following a Royal Edict to adopt universal suffrage in election for local government institutions, maiden elections were held in 199 gewogs (counties) in Bhutan in 2002 to elect their chief executives. This paper gives an account of this first time event in a country where most villagers had never seen secret ballots and poll booths. It synthesizes detailed data, mostly qualitative, collected soon after the election was over, and assesses aspects of electoral participation that His Majesty the King of Bhutan has introduced steadily to deepen democracy. Beginning with a glance at the territorial organization of the Bhutanese state within which the counties are embedded, the paper compares the electoral results with the relevant election rules.

Les débats parlementaires autour du suffrage universel dans la construction de la représentation politique en Espagne et en Argentine: vers une analyse comparée (1860-1870)

This article aims to undertake a preliminary comparative review of the concepts of political representation developed by the Spanish and Argentinean liberalism during the construction of the parliamentary and constitutional regimes in the nineteenth century. The idea of the representative government, as a regulatory mechanism of political participation, is considered in terms of an analysis of the right to vote, of the processes to develop citizenship, and of political modernization. Legislation on the right to vote, born as the political right par excellence during the nineteenth century, gives an excellent guide to these political processes of major scope and depth that characterize the contemporary world. The comparison between the Spanish and Argentinean cases shows that exchanges, transfers of legislative models and cultural movements took place in the birth of the concept of political representation in both countries. This enables us to identify the differences of in each case.