The news that Peter Chester and George McGeoch have had their Supreme Court appeal against the ban on prison inmates voting dismissed will cause few people on the outside to lose much sleep - in fact the judgement, handed down yesterday in a unanimous decision, has been greeted with approval on all sides of the political spectrum.
The manner in which politicians of all stripes have taken to social media to applaud the decision bodes ill for the Draft Voting Eligibility (Prisoners) Bill. The bill is subject to an inquiry by a Joint Parliamentary Committee - to which we gave evidence last week. The draft bill sets out three options: to leave the blanket ban on prisoner voting unchanged, to withdraw the vote from people sentenced for six months or longer or to withdraw the vote from people sentenced to four years or longer.
We argued that only the third option would be anywhere near fair. Of course, practical concerns will influence politicians’ final decision. But at the heart of the matter there are two philosophical questions: why do we have voting rights in the first place? And how can we lose them?
A human right?
Political disagreement about prisoner voting tends to present itself as a clash of principle. On one side are those who say that voting rights are human rights. And human rights – the right against torture, say – are not normally lost if we commit a crime. On the other side are those who consider disenfranchisement - the loss of voting rights - appropriate punishment for crimes we commit. “Those who break the law can’t make the law,” they might say. But both positions are mistaken, because they each misunderstand why citizens have the right to vote in the first place.
Even though they reach very different conclusions, both views share the assumption that it is the fact that a voter benefits from having voting rights that justifies why he has them. The first assumes that the benefit we derive from the right to vote is so important that almost nothing – and certainly not the fact that we have committed a crime – can justify depriving us of that right. The second view starts from the thought that people should pay for their crimes; and that depriving criminals of the right to vote is justified precisely because having that right would benefit them.
Yet while being enfranchised is indeed usually good for us, that is not the main reason why we have the right to vote. By voting, we exercise political power over others. Directly, we play a role in determining which candidate can take a seat in parliament. Indirectly, we play a role in shaping the laws under which we all live.
However, we aren’t normally justified in having power over others simply because we benefit from that power. Rather, our power is justified insofar as others benefit from us having that power. Just think: I might greatly enjoy, and indeed benefit from, making decisions for my child. But if my power to do so is justified, this is because my child benefits from my having the right to make decisions for her.
For the public good
So if universal enfranchisement is justified, this is not because it is good for each of us to be enfranchised, but because it is good for all of us to live in a state where everyone is enfranchised.
How does universal enfranchisement benefit all? We all have an interest in living in a just society. Universal enfranchisement makes it less likely that MPs enact unjust laws. This is partly because those whose interests will be seriously injured by a policy will likely vote against it. But more importantly, they will argue against it, and persuade other citizens to also oppose a law that they recognise as unjust.
Couldn’t they argue against it even if they don’t have voting rights? Sure. But would they be listened to? MPs have a greater incentive to pay attention to the views of those who can vote than those who can’t. And as a politically active citizen, I too would engage more carefully with the views of those I need to persuade to vote for my cause.
If my right to vote is primarily justified, not by my interest in having it, but by the interests others have in living in a society in which everyone has a vote, then this requires us to fundamentally rethink the debate about prisoner voting. If, as is usually assumed, human rights serve to protect the interests of the right-holder, then our argument suggests that voting rights aren’t human rights. Indeed, we accept that there may be something to be said in favour of disenfranchising criminals: it expresses our objection to the crime they have committed and shows our solidarity with the victim, who might object to living under laws in which the perpetrator has an equal say.
But even if there is something to be said for disenfranchisement, and the criminal himself has no standing to object to it, this does not show that the punishment is justified, all things considered. An overall justification of punishment must also consider the costs the punishment would impose on innocent third parties. In deciding whether to send to prison a woman caught shoplifting, we must take into account how the punishment would affect her children, who might be forced into foster homes.
And since the right to vote is granted not, primarily, to benefit the voter, but to improve the quality of our collective decision-making and the justice of our laws, we must also take into account the losses that we all suffer when prisoners are barred from contributing to our collective decision-making. Sometimes the importance of distancing ourselves from the crime may be so great that this is a loss worth bearing. But often it is not. Thus disenfranchisement should be reserved for those prisoners whose crimes require the most severe condemnation – perpetrators of violent crimes like assault, rape, or murder. All or most other prisoners should be allowed to vote – not because they deserve it, but because it benefits us all to have them contribute to our political life.