The move to reinstate the total ban on prisoners voting resurrects a deeper debate over who deserves to be a part of our political community, writes Andrew Geddis.
Sigh. Looks like I’m going to have to join the battle again over the issue of voting rights and, specifically, should people who are in prison get to cast one. I feel a bit like Al Pacino in The Godfather Part III: wheeled out to play the same role for diminishing returns in a storyline that has pretty much run its course.
The lines have been drawn by Paul Goldsmith’s announcement that the current National/New Zealand First/Act government plans to reverse a law passed in 2020 by the then Labour/New Zealand First government. That law in turn reversed a law passed in 2010 by the then-National/Act government. And that law repealed a law passed in 1993 by every MP in parliament. Honestly, the amount of parliamentary time and political energy spent on this particular issue in an era of collapsing everything is just a little bit silly.
Nevertheless, here’s where Goldsmith’s proposal would take us. All people serving a sentence of imprisonment will lose the legal right to enrol to vote. That means, if you are in jail when an election takes place having been convicted and sentenced to that punishment, you won’t be able to vote in it. This would be a change from the current rule that only prisoners serving sentences of three years or more lose their right to vote. In practice, some 2,000 people would be affected (on current prisoner populations, which very likely will go up given other changes to sentencing laws).
Beyond such raw numbers, the move resurrects a deeper debate over who deserves to be a part of our political community. Goldsmith told RNZ that: “A total prison voting ban for all sentenced prisoners underlines the importance that New Zealanders afford to the rule of law, and the civic responsibility that goes hand-in-hand with the right to participate in our democracy through voting.” On this view, the right to take part in collectively choosing our nation’s leaders is a privilege that can be taken from you if you fail to exhibit the right moral virtues.
Given the cyclical nature of this debate, I’ve had cause to disagree with this view before. And the Independent Electoral Review that I was a part of also rejected it in our final report at the end of 2023: “The New Zealand Bill of Rights Act 1990 provides for the right of citizens to vote. Voting is an inherent right that should not be removed when a person is in prison without strong justification. The law has generally moved away from the concept of voting as a privilege and by extension the need for a person to prove their moral worth to be able to vote. What society seeks to achieve by sentencing a person to prison is fundamentally different from what it seeks to achieve through voting in elections, which upholds the principles of participation and representation. On that basis, the loss of voting rights should not generally be used as an additional form of punishment.”
There’s then a bunch of more technical reasons why (as both the attorney general and Supreme Court have found) a total ban on prisoner voting will result in arbitrary, and thus unjustifiable, limits on the right to vote. The consequence is tied to when a person is sentenced and so happens to be in prison, not to what they have done to be imprisoned in the first place. A person sentenced to five years’ imprisonment the day after an election likely will be free on parole at the next election and so can vote, while a person sentenced to two months’ imprisonment a few weeks out from it cannot. The sentencing decision that puts a person in prison doesn’t just reflect their offending. For example, a person whose actions would attract a sentence of two or fewer years in prison but with access to suitable accommodation can get a home detention sentence instead (and so retain their right to vote). A person who has no such access will be sent to prison and so lose their right to vote. Same crime, different consequences.
And we cannot ignore the differential impact on Māori of the removal of voting rights from prisoners. As Carwyn Jones has pointed out, the Waitangi Tribunal found in its quite blistering report in 2020 that the consequence of our shamefully racialised criminal justice process is that any law that impedes the rights of prisoners to vote will disproportionately impact Māori more than any other group. It consequently recommended that the Electoral Act 1993 “is amended urgently to remove the disqualification of all prisoners from voting, irrespective of their sentence. … All Māori have a Treaty right to exercise their individual and collective tino rangatiratanga by being able to exercise their vote in the appointment of their political representatives.”
All of which is to say that the government’s proposal is a pretty terrible one for a lot of reasons. But, for all that, it’s odds on that it will still get passed. The current coalition is so wedded to the wedge-issue “we’re tough on crime, the opposition aren’t” mantra that pesky things like individual rights and the reasons for limiting them can’t be allowed to get in the way. And the hostility shown by various ministers to institutions like the Waitangi Tribunal and “activist” courts makes it unlikely that it’ll be swayed by their views of the matter. Added to that, the last time National and Act collaborated on a total ban on prisoner voting back in 2010 we saw some of the worst law-making behaviour in parliamentary history. I’m being serious about that; take a look at the Act Party’s explanation in the House (via then MP Hillary Calvert) for why it was supporting the legislation.
Yep. This is, apparently, all the respect that our democratic rights deserve.
