Universal or qualified?
by Claude Couture
Currently, 1.4 million African-American men – 13 per cent of all black men – are disenfranchised because of a felony conviction. This is seven times the rate for all Americans. Even in a state like New York, race and ethnicity have a lot to do with whether a convicted felon gets sent to prison. Blacks found guilty of felonies are twice as likely as their white counterparts to be sentenced to prison as opposed to probation. Blacks constitute less than 16 per cent of New York state’s population but account for almost 51 per cent of the 71,000 people in prison and 50 per cent of those on parole. Latinos, about 15 per cent of the state population, are almost 30 per cent of the prison population and 32 per cent of those are on parole. Such numbers can be seen as the latest expression of discrimination going back to colonial days.
On November 8, 2004, the U.S. Supreme Court refused to hear two cases, one in New York state and the other one in Washington state, challenging laws stripping felons of the right to vote. Every state except Maine and Vermont disenfranchises people who have been convicted of crimes. The plaintiffs based their challenge on a provision of the federal Voting Rights Act, as amended in 1982, prohibiting any “voting qualification or prerequisite to voting” that results in any citizen’s right to vote being denied or abridged “on account of race or color.” The argument presented by the plaintiffs stressed that the impact of felon-disenfranchisement laws fell on minority groups, particularly black and Latino men. The number of people barred from voting under these laws is estimated at four million, of whom more than a third are black men.1
The Washington case, Locke v. Farrakhan, No. 03-1597, was filed by four black men, one Hispanic man and one American Indian. The Washington state constitution prohibits from voting “all persons convicted of an infamous crime.” The Federal District Court in Seattle dismissed the lawsuit, but the 9th Circuit, which sits in San Francisco, reinstated it. The state appealed to the Supreme Court.
In a similar case in October 2004, the 11 judges of the full United States Court of Appeals for the 11th Circuit, which sits in Atlanta, heard arguments in a case challenging Florida’s lifelong felon disenfranchisement law, which bans an estimated 600,000 state residents from voting. The plaintiffs presented evidence that Florida’s law, which dates to 1868, was enacted with the intention of keeping newly enfranchised blacks from voting. A three-judge panel of the 11th Circuit had ruled that the lawsuit could go to trial, but the full court vacated that decision and granted Florida’s request for reargument. In 2007, at the request of Governor Charlie Crist, the law was amended, allowing nonviolent offenders to regain their voting rights after having served their prison terms.
By contrast, in Canada today, the right to vote is defined as a universal right, not a qualified one. The Canada Elections Act sets out the qualifications and disqualifications for voting in federal elections, and these combine to establish a virtually universal adult franchise, even if, for much of Canadian history, federal and provincial rules worked to exclude – among others – women, Aboriginal peoples and racialized minorities.
Today’s universal right is the product of a gradual evolution, inspired by two major changes. First, the franchise, after having initially been defined by provincial legislation because of the absence of federal legislation (except during the period 1885 to 1898), was uniformly defined by federal legislation by 1920 – something that is still absent in the United States.
Except for the removal of the right to vote from British citizens after World War II (a right that had reflected the settler-colonial origins of the country), the trend in Canada has been toward extending the franchise and removing voting restrictions. The passage of the Canadian Charter of Rights and Freedoms in 1982 encouraged this trend. The Charter guarantees the right of every Canadian citizen to vote in federal elections, subject only “to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”
The Canada Elections Act also sets out categories of persons disqualified from voting. Such persons today are very rare. They include certain officials, such as the Chief Electoral Officer, the Assistant Chief Electoral Officer and returning officers (except in the case of tie votes), and judges. Mentally disabled persons were barred from voting, but after a series of court decisions based on the 1982 Charter of Rights, these provisions were struck down. Prisoners also used to be prohibited from voting. However, in 1993, this prohibition was restricted to those inmates serving sentences of two years and more, and the courts subsequently struck down even this prohibition. Thus in Canada, unlike the United States, incarceration does not affect citizens’ right to vote.
1 Alan Elsner, “Millions Blocked from Voting in U.S. Election,” Reuters, September 22, 2004.