Voting Behind Bars

The will of the people shall be the basis of the authority of

government; this will shall be expressed in periodic and genuine
elections which shall be by universal and equal suffrage and shall be
held by secret ballot or by equivalent free voting procedures.

The Universal Declaration of Human Rights, Article 2

In recent years, a great deal of scholarly attention has been paid to the
1
issue of prisoner disenfranchisement in different jurisdictions. The
denial of voting rights to prisoners has led to considerable criticism and
it is argued that voting rights should be restored to convicted prisoners
on the grounds of both principle and policy. Much of the debate stems
from recent high court rulings over the constitutionality of prisoner
voting. Specifically, in countries with restrictive or blanket prisoner
disenfranchisement, litigation has been used as a successful strategy
to help broaden the franchise for prisoners. Countries which employed
this technique include: South Africa, Canada, the United Kingdom, and
Australia, among others (Sauve v Canada (Chief Electoral Officer) 2;
Minister of Home Affairs v NICRO3; Hirst v United Kingdom no. 24;
Roach v Electoral Commissioner5.
1http://sentencingproject.org/doc/ publications/fd_ballotboxesbehindbars.pdf
(April 25, 2015)

2 3 SCR 519 October 31, 2002

3CCT 03/04 March 3, 2004

4 Case No. 74025/01 October 6, 2005

5 HCA 43 September 26, 2007

Voting Behind Bars 1

In the United States of America, 19 states have amended felony
disenfranchisement policy in an effort to reduce their restrictiveness
and expand voter eligibility.6 In the Philippines, in connection with the
2010 elections, the Commission on Elections issued a resolution which
approved and adopted resolution mechanisms for the registration and
voting of detainees or of those prisoners with no final judgment from
the court or those convicted with offenses punishable by less than one
year of imprisonment.7 The mechanisms allowed for an unprecedented
increase of the right of suffrage to detainees, making a major step to
preserve the suffrage of thousand of detainees.8

With the recognition of prisoners right to vote, an issue of particular

interest to this study is prisoner voting in the Philippines. Filipinos put
behind bars were effectively locked out of their democracy,
undeserving of casting a ballot. When a person offends the law, such
persons franchise in the political community is forfeited. By
committing crime and breaching social rules, a prisoner loses the right
to participate in how the country was governed for the duration of his
sentence and five years thereafter. Research, however supports the
proposition that when prison inmates are given greater control over
their lives while incarcerated, the result will be an increase of their
independence and self-control after their release.9

6
http://www.sentencingproject.org/doc/publications/fd_statedisenfranchisemen
t.pdf. September 2008. (April 26, 2015)

7http://www.comelec.gov.ph/?
r=Archives/RegularElections/2013NLE/Resolutions/ResolutionNo9371 (June
20, 2015)

8 http://www.rappler.com/nation/politics/elections-2013/28988-prisoners-vote-
election-day (June 20, 2015)

Voting Behind Bars 2

The effects brought about by the prohibition to vote were devastating
for the disenfranchised prisoners. In November 24, 2003, a The
Nations article entitled The Last Disenfranchised Class10, tells the
story of Jan Warren, 35, who in 1986, was penniless, in a dead-end
relationship, pregnant and desperate, made a mistake. She agreed to
sell cocaine for her cousin and it was the only time Warren had ever
sold drugs, and it turned out to be a police sting. Under the strict New
York Drug laws, Warren was given fifteen years to life. And one sunny
Memorial Day in the prison yard, Warren suddenly understood that
serving time in prison was going to cost her more than her physical
freedom. I didnt realize that part of the whole prison system is set up
to alienate you from society, because now I cant vote. And without
being able to vote, what politician is going to say, Well, Ms. Warren,
you have a very good point and because youre one of my constituents
Im going to listen to you?11

The same sentiment was shared by the author of this work who
believes that the vote in the Philippines is power, because, come
election day, when we go to the voting booth all of us have one vote,
the President, Marian Rivera, and Mang Juan, the buko vendor in the
street and its probably the only time in the Philippines that we are all
equal. Allowing prisoners to vote means politicians will have to engage
with prisoners and actually understand and listen to them. We can
expect people who have committed crimes to be fully rehabilitated
afterwards if they have reason to follow or understand current political

9 http://aspe.hhs.gov/hsp/prison2home02/haney.htm. The Psychological

Impact of Incarceration: Implications for Post-Prison Adjustment (April 16,
2015)

10
http://www.thirdworldtraveler.com/Election_Reform/Last_Disenfanchised_Class
.html . The Nations. (June 20, 2015)

11 Supra Note 10

Voting Behind Bars 3

matters. One of the fundamental aims of punishment is to eventually
rehabilitate those who offended back into the society; with no
involvement of what has happened in politics since they first went into
prison, and no need to know, prisoners cannot be reintegrated
successfully into society.

Suffrage is the right to vote and, for the Philippines, is indicated in

three documents: the Universal Declaration of Human Rights; the
International Covenant on Civil and Political Rights; and the Philippine
Constitution. They all call for the universality of the right. Every
political choice and decision one makes will determine the kind of
government that will serve the country. The Constitution guarantees
that we are a sovereign people, where all government authority comes
from. Casting a ballot, is by far, the most common act of citizenship in
any democracy.

Voting Behind Bars 4

Statement of the Problem

This study explores the suffrage of a prisoner and its effects in the
legal system. In particular, the following questions are addressed:

1. Is the legal basis to disqualify persons convicted by final

judgment with at least one year imprisonment or for the specific
crimes of rebellion, sedition etc. while serving sentence and five
years thereafter from voting justified?
2. How can the restoration of voting rights of the prisoners be
justified?
3. What effect can the restoration of the voting right of the prisoner
have on the legal system?
4. What are the objections and limitations given to the restoration
of prisoners voting rights?

Objective and Significance of the Study

For seven years, I was not allowed to see the moon and the stars.
There were days when they left me all alone by myself. I had no
reading material. I had nothing. I was twiddling my thumb. I would
walk and walk and walk across my room; it was a room about four

Voting Behind Bars 5

meters by five meters, hoping that Ill get tired. And when I get tired, I
would fall asleep, knowing that tomorrow will be the same.

Benigno Aquino

Prisoner disenfranchisement is a threat to democracy. It has no basis in

law and equity. The denial of the voting right is not directed at a
pressing and substantial purpose. Proponents of the
disenfranchisement of prisoners in foreign countries actually fail to
establish the rational connection of denying prisoners the right to vote
and its stated objectives.12 Thus initiatives for the advancement of the
prisoner voting rights have increased over the years.

The primary objective of this study is to determine the problem

brought about by stripping prisoners of their right to vote and the good
that will be caused by its restoration. It aims to examine the legitimate
interests of the State justifying the disqualification. This study seeks to
present how fundamental the voting right of each prisoner each is and
must not be taken by the government absent any valid justification.

In 1948, the United Nations General Assembly adopted the Universal

Declaration of Human Rights, which recognizes the integral role that
transparent and open elections play in ensuring the fundamental right
to participatory government. The declaration embodies the
international standards for the observance of equal and universal
suffrage. The study aims to identify whether government actions meet
these standards and apply the principles contained therein.13

12 Sauve v Canada (Chief Electoral Officer) 2002

13 General Assembly resolution 217 A (III), annex adopted December 10,

1948

Voting Behind Bars 6

This study also seeks to give a more humane countenance on the
justice and political system, one which acknowledges the value of
every human life and gives a voice to the victim. Thus, it is hoped that
this paper will help in the furtherance and development of legal rights
for the prisoners and suffrage in the Philippines.

Scope and Limitations

This study adopts the definition of prisoners same as the term

persons deprived of their liberty under international human rights
law. Persons deprived of their liberty includes all categories of persons
who are detained while awaiting trial and those imprisoned as a result
of their final conviction for an offense. On the other hand, detainees,
for purposes of detainee voting, is understood to be any person:
confined in jail, formally charged for any crime or crimes and awaiting
or undergoing trial; or serving a sentence for not less than one (1)
year; or whose conviction of a crime involving disloyalty to the duly
constituted government such as rebellion, sedition, violation of the
firearms laws or any crime against national security or for any other
crime is on appeal in consonance with the definition provided for in the
Commission on Election Resolution No. 8811.14

Registration refers to the act of accomplishing and filing a sworn

application for registration by a qualified voter before the election
officer of the city or municipality wherein he resides and including the

14 COMELEC Resolution No. 8811.

Voting Behind Bars 7

same in the book of registered voters upon approval by the election
registration board.15

This study focuses on the issue of whether a prisoner should be given

the right to vote. This does not necessarily include the determination
of the right of the prisoner to be voted or run for public office.

THE REVIEW OF RELATED LITERATURE

The fundamental principle of suffrage consists of two things: first

that every man entitled to vote may vote; second, that his vote may
be sent forward and counted and so he may exercise his part of
sovereignty in common with his fellow citizen.16

SUFFRAGE IN THE PHILIPPINES

The first section on the Declaration of Principle and State Policies of the
1987 Constitution explains the nature of the Philippine Government as

15 THE VOTERS REGISTRATION and, Politics and

PhilosophyOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOO
OOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOO Republic Act no. 8189, Section 3(a) (1996)

16 Paine, Law of Election, p. 2

Voting Behind Bars 8

a democratic and republican State. Sovereignty resides in the people
and all government authority emanates from them.17 This
constitutional mandate makes it evident that it is a primordial policy to
ascertain the will of the people.18

The right to vote is granted in the 1987 Constitution, in Article V,

Section 1, which states that the right of suffrage shall be exercised by
the countrys entire citizenry unless disqualified by law; without which
the principle of sovereignty residing in the people becomes nugatory. 19

The right to vote is a constitutional guarantee of the utmost

significance.20 In the traditional terminology, it is a political right
enabling every citizen to participate in the process of government to
assure that it derives its power from the consent of the governed.21
What was so eloquently expressed by Justice Laurel comes to mind:
"As long as popular government is an end to be achieved and
safeguarded, suffrage, whatever may be the modality and form
devised, must continue to be the means by which the great reservoir of
power must be emptied into the receptacular agencies wrought by the
people through their Constitution in the interest of good government
and the common weal.

Suffrage is exercised not only during elections, but also during

initiatives, referendums, plebiscite, and recalls. Election is the means

17 1987 Philippine Constituion, Article II, Section I

18 Bellosillo et.al., Omnibus Election Code with Rules of Procedure and

Jurisprudence in Election Law

19 Section 1, Article V of the Philippine Constitution, Suffrage may be

exercised by all citizens of the Philippines not otherwise disqualified by law
xxx

20 Pungutan vs. Abubakar GR No. 33541 January 20, 1972, Moya v. Del
Fierro, 69 Phil. 199, 204

21 Supra. Note 18.

Voting Behind Bars 9

by which the people choose their representatives who are entrusted
the exercise of the powers of the government.22 Initiative is the means
by which people directly propose and enact laws, that is, they initiate
the law-making process. Referendum refers to process by which the
people ratify or reject a law or part thereof referred or submitted to
them by the national or local law-making body. Plebiscite entails a
process by which the people either ratify or reject an amendment or
revision to the Constitution. And recall is a mode of removing an
incumbent official from office by a vote of the people upon proper
registration of a petition signed by the required number of qualified
voters. In all these instances, a qualified citizen can rightfully exercise
suffrage.23

Voting may be exercised by qualified citizens only. It can be exercised

only by a citizen of the Philippines, who has none of the
disqualifications, at least eighteen years of age on the day of the
election, and a resident of the Philippines for at least one year and of
the place where he intends to vote for at least six months immediately
preceding the election.24

When the polls open on election day, every citizen at the age of
eighteen will be able to cast a vote. It is a right we often take for
granted, one that defines our nation as a democracy. But universal
suffrage, letting everyone vote, did not appear overnight with the
ratification of our Constitution. In the early development of voting
system, suffrage is the privilege of the few chosen. In our jurisdiction,
the right of suffrage has evolved from a mere statutory right to a

22 FATHER BERNAS BOOK CITATION

23 Law Politics.https://tamayaosbc.wordpress.com/2014/08/02/citizenship-and-
suffrage/. August 2, 2014 (April 25, 2015)

24 Article V, Section 4. Philippine Constitution

Voting Behind Bars 10

constitutional right.25 We had no elections during the Spanish
occupation of the country and our first election law was Act No. 1582,
which took effect on January 15, 1907.26 Like its foreign counterparts,
the qualifications for the exercise of the right of suffrage set in section
14 of Act No. 1582 were elitist and gender-biased.27 The right of
suffrage was limited to male citizens twenty-three years of age or
over.28 Women were not allowed to vote for they were regarded as
mere extensions of the personality of their husbands or fathers, and
that they were not fit to participate in the affairs of government.29 But
even then, not all male citizens were deemed to possess significant
interests in election and the ability to make intelligent choices. Thus,
only those falling under any of the following three classes were allowed
to vote: those who, prior to the August 13, 1898, held office of
municipal captain, governadorcillo, alcalde, lieutenant, cabeza de
barangay, or member of any ayuntamiento; those who own real
property with the value of five hundred pesos or who annually pay
thirty pesos or more of the established taxes; or those who speak, read
and write English or Spanish.30 As male suffrage was gradually
extending considerably, women became increasingly active in the
quest for their own suffrage anchoring their cause on the equal
protection of the laws. In the plebiscite held on April 30, 1937, more
than three hundred thousand women voted for woman suffrage;

25 Macalintal v COMELEC. G.R. No. 157013. July 10, 2003.

26 Id.

27 Act No. 1582

28 Id.

29 Id.

30 Id.

Voting Behind Bars 11

thenceforth, Filipino women were allowed to vote, paving the way for
women participation in the government.31

The 1935 Constitution gave a constitutional status to the right of

suffrage.32 Moreover, to broaden the mass base of voters, the voting
age was lowered down from 23 to 21 years old. The literacy
requirement was also relaxed and the property qualification was
removed. The requirement that only those who can read and write
English, Spanish, or other local dialects should be allowed to vote was
defeated because such was thought to be unnecessary and would
amount to a discrimination against the respectable minority of the
population of the Philippines i.e. Mohammedans whose Arabic writing
is not included in the local dialects.

The march towards the liberalization of the right of suffrage continued

with the 1973 Constitution; removing the literacy requirement, further
lowering the voting age requirement from 21 to 18 and providing that
no other property or substantive requirement shall be imposed on the
exercise of suffrage.33 Being democratic and republican, the State
endeavors for the establishment of a wide base of electoral
involvement by the people, not only by the rich minority who enjoy the
privilege of formal education, but also by the poor majority who are
usually unlettered because of poverty.34

Because of the phenomenon of Filipino labor explosion overseas, for

the first time, the 1987 Constitution required Congress to provide a
system for absentee voting by qualified Filipinos abroad and to design

31 http://teacher.scholastic.com/activities/suffrage/history.htm (December 19, 2015)

32 SEE FATHER BERNAS BOOK CITATION..

33 Supra. Note 22.

34 https://tamayaosbc.wordpress.com/2014/08/02/citizenship-and-suffrage/
(December 22, 2015)

Voting Behind Bars 12

a procedure for the disabled and the illiterates to vote without
assistance from other persons. Be that as it may, four qualifications
existing since the 1935 Constitution were retained: Filipino citizenship;
age; one year residence in the Philippines; and six months residence in
the place where the voter proposes to vote. The wisdom of these four
qualifications has not been questioned at any given time in the history
of our suffrage because of it being a political right appertaining to
citizenship.35 Each individual qualified to vote is a particle of popular
sovereignty, hence, the right of suffrage cannot be extended to non-
citizens and as an attribute of citizenship, suffrage is reserved
exclusively to Filipinos whose allegiance to the country is undivided.36
But citizenship and age requirements are not enough for the vote to be
more meaningful as an expression of sovereignty.37 A voter must
possess more than a passing acquaintance with the problems and
prospects of the country, thus, residence is imposed as a qualification
to exclude a stranger and a newcomer, unacquainted with the
conditions and needs of the community and not identified with the
latter.38

Still in keeping with the preservation of every citizens right to vote,

the Commission on Elections issued a resolution to give flesh to the
mandate of the Constitution for universal suffrage and to put an end to
the continued deprivation of persons deprived of their liberty of their
ability to exercise their suffrage because of the failure of the
government to provide them with the necessary special facilities and
procedures for voting inside or near their places of detention.39 The
35 Laurel, Philippine Law on Elections 2 (1940)

36 Id.

37 Gallego v. Vera, 73 Phil. 453, 459 (1941).

38 Id.

39 COMELEC Resolution No. 8811.

Voting Behind Bars 13

resolution established guidelines and rules and regulation for the
realization of the right to vote of detainees enabling 40,000 to 45,000
detainees to participate in the 2010 elections.40

As a final note, the importance of suffrage cannot be overemphasized

as it is the bedrock of Philippine democracy and republicanism.
Removed, then the Philippines is no longer democratic and republican.
When people vote, they feel like they're part of something bigger than
themselves. They feel like they are part of the nation. They know that
they have a say in the way things are run in this country.

Prisoner Disenfranchisement in the Philippines

Suffrage however, is not absolute. No political system in the whole

world has literally practiced universal suffrage, even among its
citizens.41 The scarlet history of the right of suffrage shows that
restrictions have always been imposed on its exercise. In the
Philippines, registration determines who are qualified to vote.42 The
constitution, by carefully prescribing the qualifications of voters,
necessarily requires that an examination of the claims of persons to
vote must at some time be had by those who are to decide on them.43

40 http://www.rappler.com/nation/politics/elections-2013/28988-prisoners-vote-
election-day (December 22, 2015)

41 Brent & Levinson, Process of Constitutional Democracy: Cases and Materials 1053
(1992).

42 http://lente.ph/election-offenses-on-registration-of-voters/#return-note-825-6
(December 22, 2015)

43 Hector S. de Leon & Hector M. de Leon, Jr., The Law in Public Officers and Election
Law 527 (2003) p. 527

Voting Behind Bars 14

As provided for by law44, disqualified from registering is: any person
who has been sentenced by final judgment to suffer imprisonment for
not less than one year, such disability not having been removed by
plenary pardon or granted amnesty, such person however shall
automatically reacquire the right to vote upon expiration of five years
after service of sentence; any person who has been adjudged by final
judgment by competent court or tribunal of having committed any
crime involving disloyalty to the duly constituted government such as
rebellion, sedition, violation of the firearms laws, or any crime against
national security, unless restored to his full civil and political rights,
such person shall regain his right to vote automatically upon expiration
of five years after service of sentence; and insane or incompetent
persons as declared by competent authority unless subsequently
declared by proper authority that such person is no longer insane or
incompetent. Moreover, the aforementioned circumstances constitute
causes for the deactivation of registration and the removal of the
registration records of the person under such situation, from the
corresponding precinct book of voters.45

The Omnibus Election Code prohibits the act of any person who
knowingly makes any false or untruthful statement relative to any of
the data or information required in the application for registration or
votes more than once in the same election, or who, not being a
registered voter, votes in an election.46

Moreover, the Revised Penal Code imposes the accessory penalty of

44 Section 11, Republic Act No. 8189 An Act Providing For A General Registration of
Voters, Adopting A System of Continuing Registration, Prescribing the Procedures
Thereof and Authorizing The Appropriation of Funds Therefor

45 Id.

46 Section 261 par. y (2) & z (2) Omnibus Election Code.

Voting Behind Bars 15

perpetual absolute disqualification, as an inherent penalty of the
principal penalty reclusion perpetua, reclusion temporal and death,
when not executed by reason of commutation or pardon; the accessory
penalty of temporary absolute disqualification and perpetual special
disqualification for the principal penalty of prision mayor and prision
correccional; and suspension of the right to hold office and the right of
suffrage during the term of the sentence for arresto.47

The Philippine Supreme Court in the case of People v Corral,48 in

justifying the stripping of the prisoners of the right to vote, had an
occasion to state that, The right of the State to deprive persons to the
right of suffrage by reason of their having been convicted of crime, is
beyond question. The manifest purpose of such restrictions upon this
right is to preserve the purity of elections. The presumption is that one
rendered infamous by conviction of felony, or other base offense
indicative of moral turpitude, is unfit to exercise the privilege of
suffrage or to hold office. The exclusion must for this reason be
adjudged a mere disqualification, imposed for protection and not for
punishment, the withholding of a privilege and not the denial of a
personal right.

Characterization of Prisoner Disenfranchisement

Felon disenfranchisement has its origins in Ancient Greek civilization.49

In ancient Greece, those who committed a crime would be named
infamous and would be subject to a range of disabilities, including

47 Luis B. Reyes, The Revised Penal Code pp. 659-660. Eighteenth Edition.
2012.

48 G.R. No. L-42300, January 31, 1936.

49 The Collateral Consequences of a Criminal Conviction. 23 Vand L. Rev. 929, 941-

42 (1970)

Voting Behind Bars 16

prohibitions on voting etc.50 This concept of infamy later found its way
to ancient Roman civilization, where individuals convicted of serious
crimes would be subject to the penalty of infamia.51 Individuals
tainted with infamia could not vote, hold office, or serve in the
Roman legions.52 The severity of these disqualifications was
aggravatedcompounded by the deep importance that Greek and
Roman culture placed in citizenship and participation in the political
process.53 Since removing those rights deeply affectedimpacted ones
ability to exercise privileges highly cherished by the two respective
cultures, it has been suggested that such penalties were motivated
primarily by retribution and deterrence.54 Therefore, by isolating
criminals from the acceptance of society, the Greek and Roman
civilizations attempted to both punish the individual actor for his
transgressions and preventdeter other individuals from similar
conduct.55

In the present day society, among the common reasons cited for
disqualifying prisoners from voting include that it will promote civic
responsibility and respect for the law; offenders have lost the right to
vote since they violated the social contract; it is a method of crime
control; the purity of the ballot box needs to be protected from
offenders who may corrupt it, act subversively, or commit election

50 Alec C. Ewald, Civil Death: The Ideological Paradox of Criminal

Disenfranchisement Law in the United States, 2002 WIS. L. REV. 1045, 1060-61
(2002).

51 Ewald, supra note 2, at 1060-61.

52 Howard Itzkowitz & Lauren Oldak, Restoring the Ex-Offenders Right to Vote:
Background and Developments, 11 AM. CRIM. L. REV. 721, 722-23 (1973).

53 Collateral Consequences, supra note 1, at 941-42.

54 Id.

55 Id.

Voting Behind Bars 17

fraud; and it is costly and impractical to allow prisoners to vote.56

By virtue of having broken the law, prisoners lose their right to vote
and the ability to participate in selecting a politician to represent them,
and are muted from most forcefully voicing their opinion of the policies
and laws to which they will be subjected.57 Philosophers have long
debated the merits of restricting the franchise to those who faithfully
obey the laws.58 Social contract theorists like Thomas Hobbes, John
Locke, and Jean-Jacques Rousseau envision a compact wherein citizens
consent to be governed by and submit to the laws of society in return
for the protections and benefits that an organized governmental
structure provides.59

Applying the social contract to justify felon exclusion seems almost a

natural consequence since a person who breaks the law has broken his
bond to the rest of society and the government, and has abandoned
civilized, law-abiding society.60 How can a man who cannot live up to
his end of the bargain expect to receive the protection and benefits
that organized government structure offers over the lawless state of
nature? More specifically to voting, a man who cannot abide by the
basic tenets and values of society should not be entrusted with
selecting our nations leaders or voting on policy initiatives.

56 http://www.sentencingproject.org/doc/publications/fd_Felony
%20Disenfranchisement%20Primer.pdf (December 27, 2015)

57 Felony Disenfranchisement Laws in the United States, THE SENTENCING

PROJECT, 2 (2008)

58 MICHAEL LESSNOFF, SOCIAL CONTRACT THEORY 5 (Michael Lessnoff ed.,

New York Univ. Press 1990).

59 http://openscholarship.wustl.edu/cgi/viewcontent.cgi?
article=1004&context=law_jurisprudence ( December 27, 2015)

60 http://www.iep.utm.edu/s/ soccont.htm (December 28, 2015)

Voting Behind Bars 18

Social contract theories have long been used to justify felon
disenfranchisement, contending that the innate defects of a convict
make him incapable of respecting societys laws.61 During the debate in
the Senate in 2002 over a bill to secure federal voting rights to ex-
felons, Senator Mitch McConnell took to the floor to proclaim:

Voting is a privilege; a privilege properly exercised at the voting booth,

not from a prison cell. States have a significant interest in reserving
the vote for those who have abided by the social contract that forms
the foundation of a representative democracy. Those who break our
laws should not have a voice in electing those who make and enforce
our laws. Those who break our laws should not dilute the vote of law-
abiding citizens.62

Social contract theory is a philosophical explanation for how and why

civilized society came about which states that legitimate state policy
and police authority arises only through consent of the people and
those who breach the social contract should be excluded from it.

As part of the social contract formed with the state, John Locke
believed that people cede their natural right to punish to the state
creating an executive right in the state to punish as a common judge
and administrator of justice.63 Locke combined his social contract
theory with theories of punishment to provide justification to state-
administered punishment: The State has the authority and commission
delegated from the people, which it exercises in a utilitarian manner to
bring about the greater good.64
61 http://openscholarship.wustl.edu/cgi/viewcontent.cgi?
article=1004&context=law_jurisprudence (December 27, 2015)

62 Id.

63 A. John Simmons, The Lockean Theory pf Rights 153 (1992).

64 Id.

Voting Behind Bars 19

Courts relying on the social contract theory have argued that when an
individual breaks the law that he authorized the government to make
when first forming the social contract, he abandons the right to
participate in further shaping the provisions of the contract.65 The
provisions of the social contract are shaped in the ongoing negotiations
of the government and the people through the exercise of the
franchise. Thus, losing the right to participate is disenfranchisement.66
This approach to disenfranchisement emphasizes the deliberate nature
of the criminals decision to breach the social charter as justification for
withholding the franchise and effectively silencing the felon in the
ongoing contract negotiations.67

Some consider disenfranchisement a deterrent: A potential law breaker

will consider the overall ramifications of his actions, including
disenfranchisement, in assessing costs and benefits of a criminal
activity; others will abstain from committing criminal actions when
they find out about the additional sanction of disenfranchisement.68

Denial of the franchise is also sometimes justified as an incapacitative

measure and directly denies those who may engage in voting fraud or
other abuses of the ballot the facility to do so.69 Moreover, it keeps
from voting a large group of individuals who may subvert the
democratic process by electing pro-crime or at least pro-criminal
defendant candidates from voting.70 Although this claim may be

65 http://archive.fairvote.org/righttovote/scb.pdf (December 27, 2015)

66 Id.

67 Id.

68 Alec C. Ewald, Criminal Disenfranchisement in an International Perspective (2000)

p. 100

69 Ramirez v Brown, 507 P.2d 1345

70 Id.

Voting Behind Bars 20

defensible, it is simply not true that all felons are likely to engage in
such offenses, let alone all former inmates.71

The incapacitative rationale overlaps somehow with a non-punishment

related argument that because voting is so important to a democracy,
a conviction justifies disenfranchisement. One version of this claim, the
purity of the ballot box argument, asserts that because offenders
cannot be presumed to act in the best interest of the community, they
must be excluded from the franchise.72 In our jurisdiction, the
justification for stripping the prisoners of their voting rights rests
primarily on the legitimate interest of the state in maintaining the
purity of the ballot. This was emphasized in a case73 decided by the
Supreme Court stating that: The right of the State to deprive persons
to the right of suffrage by reason of their having been convicted of
crime, is beyond question. The manifest purpose of such restrictions
upon this right is to preserve the purity of elections. The presumption
is that one rendered infamous by conviction of felony, or other base
offense indicative of moral turpitude, is unfit to exercise the privilege
of suffrage or to hold office. The exclusion must for this reason be
adjudged a mere disqualification, imposed for protection and not for
punishment, the withholding of a privilege and not the denial of a
personal right.

No one has raised rehabilitation as a justification for

disenfranchisement, although some commentators have argued that
the denial of the franchise impedes rehabilitation, especially when it
continues long after incarceration. A five-year study on felon

71 Id.

72 Supra. Note 67.

73 Supra. Note 47.

Voting Behind Bars 21

disenfranchisement found that felons who voted were less likely to be
re-arrested than those who did not.

Finally, from a political perspective, disenfranchisement as a

punishment raises serious questions about the democratic process.
Ultimately, large-scale exclusion, has a stark impact on the
composition of the voting population.

Reforms in Foreign Jurisdictions

The United States is the only democracy that indefinitely bars so many
ex-offenders from voting.74 State legislation determines whether an
individual with a felony conviction has the right to vote in both state
and federal elections.75

Other countries do not restrict the voting rights of citizens who have
completed their sentences yet many states in the United States refuse
to allow such individuals to vote.76 As a result, at least 5.85 million
Americans, 2 million of whom are African-American, are barred from
having their voices heard in our political process. Nearly 4 million of
these people are released from prison, but still cannot vote.

Vermont and Maine are the only two states that do not have any laws
depriving people the right to vote because of a criminal conviction
while the remaining 48 other states have constructed a variety of legal

74 http://www.prisonpolicy.org/scans/demos/punishing_at_the_polls.pdf
(December 28, 2015)

75 Mandeep K. Dhami. Prisoner Disenfranchisement Policy: A Threat to

Democracy?

76
http://www.sentencingproject.org/doc/publications/publications/vr_Expandingt
heVoteFinalAddendum.pdf (December 28, 2015)

Voting Behind Bars 22

barriers.77 Currently, 16 states deny the vote to incarcerated felons, but
grant the vote to those who are out of prison on probation or parole; 4
states only allow felons on probation to vote and disenfranchise both
parolees and those in prison; 31 states disenfranchise all felons on
probation, in prison, and on parole; and finally, 14 states effectively
remove the vote from all those with felony convictions, including those
who have completed their sentence while 5 states permanently
disenfranchise ex-felons while in the other 9 states ex-felons may
regain the right after a period of time.78

Felony disenfranchisement laws themselves have their roots in the Jim

Crow tradition which produced poll taxes, literacy tests, and other
racially-biased schemes for diluting black voting power in the post-
Reconstruction era.79 The 1965 Voting Rights Act mandated the end to
overtly discriminatory practices; however, without an explicit
proclamation of a right to vote in the United States Constitution, so-
called facially neutral policies such as disenfranchisement laws are
constitutionally permissible.80

According to Department of Justice data, black males have a 28.5

percent chance over their lifetimes of being convicted of a felony,
much higher than for any other demographic group and the disparately
high number of black felons means that currently 6.3 percent of the
81
national black population is disenfranchised.

77 Id.

78 Id.

79 http://www.adaction.org/media/lizfullpaper.pdf (December 28, 2015)

80 Id.

81 Id.

Voting Behind Bars 23

The repercussions of this large-scale disenfranchisement were felt in
Election 2000, when a mere 537 votes in Florida determined a victory
for George W. Bush.82 Demographic statistical data show that because
of their likely race and socioeconomic statuses, the vast majority of
disenfranchised felons align themselves politically with the Democratic
Party.83 Among other lessons learned in the wake of the 2000
presidential election was the power of every vote; this makes the fact
that in Florida alone, for instance, over 700,000 felons were unable to
cast ballots simply inexcusable.84

Florida has one of the nations highest felon populations coupled with
harsh disenfranchisement laws which penalize ex-felons along with
felons.85 To date, almost one in three black male Floridians has been
permanently barred from voting.86

The political impact of the unprecedented disenfranchisement rate in

recent years is not insignificant. One study found that
disenfranchisement policies likely affected the results of seven U.S.
Senate races from 1970 to 1998 as well as the hotly contested 2000
Bush-Gore presidential election.87

82 Shapiro, A. (1993). Challenging criminal disenfranchisement under the

Voting Rights Act: A new strategy. Yale Law Journal, 103 (2), 537-566.

83 Id.

84 Id.

85 Id.

86 Id.

87 Uggen, C. & Manza, J. (2002). Democratic contraction? Political

consequences of felon disenfranchisement in the United States. American
Sociological Review, 67 (6), 777-803.

Voting Behind Bars 24

Despite the extensive reach of disenfranchisement policies, there is
growing momentum for reform.88 Since 1997, 16 states have
implemented policy reforms that have reduced the restrictiveness of
felony disenfranchisement laws; these include three states that
eliminated lifetime disenfranchisement provisions, four additional
states that scaled back their lifetime disenfranchisement laws to apply
to a narrower category of individuals, four states that simplified the
restoration process for persons who have completed sentence, and two
states that reformed interagency data sharing procedures to address
issues of accuracy in compiling the lists of persons to be removed or
89
restored to voting eligibility.

In just seven of these states, reforms resulted in the restoration of the

right to vote to an estimated 621,400 residents.90 With each passing
legislative session more reform bills are introduced, while state
agencies are increasingly modifying the protocol by which they
administer disenfranchisement provisions and with the majority of the
public supporting reform, it is likely that additional states will be
reconsidering disenfranchisement laws in upcoming legislative
sessions.91

Despite these developments, the number of people who cannot vote

due to a felony conviction continues to rise with the implications of this
expansion in the numbers of disenfranchised Americans have been
particularly acute in communities of color.92 Moreover, in an era when a

88 http://www.sentencingproject.org/doc/publications/fd_decade_reform.pdf
(December 28, 2015)

89 Id.

90 Id.

91 Id.

92 http://www.adaction.org/media/lizfullpaper.pdf (December 29, 2015)

Voting Behind Bars 25

record number of Americans are being released from prison to the
community, this exclusionary practice of denying the vote is difficult to
reconcile with the increased need for reentry based services and the
struggle to ease this critical transition which suggests that any reason
for optimism on the policy front should be tempered by the reality that
United States disenfranchisement laws remain some of the most
restrictive in the world.93 Thus, continued momentum to expand voting
rights is essential; otherwise, the United States commitment to
universal suffrage remains illusory.

As the issue gains increasing national attention and more people

become aware of the laws in their state, the public has indicated
support for reform.94 Eight in 10 Americans believe that persons who
have completed their sentence should have their right to vote restored
and nearly two-thirds support voting rights for persons on felony
probation and parole.95

Moreover, there is a growing chorus of organizations and high-profile

individuals from both sides of the political aisle who are calling for
reform.96 In July 2006, the United Nations Human Rights Committee,
when evaluating the United States compliance with the International
Covenant on Civil and Political Rights, called for the extension of voting
rights to persons upon release from prison.97

93 Id.

94 http://www.prisonpolicy.org/scans/demos/punishing_at_the_polls.pdf (December
29, 2015)

95 Id.

96 http://www.sentencingproject.org/doc/publications/fd_liberalrepublican_argum.pdf
(December 29, 2015)

97 Id.

Voting Behind Bars 26

The foundation for reform of disenfranchisement laws remains in place,
with the public and domestic and international organizations
recognizing the need for change. There is every reason to expect that
this pressure for reform will remain a mainstay on legislative calendars
across the country for the foreseeable future.

It has been the established policy of successive United Kingdom

Governments that convicted prisoners should lose their right to vote
for the period for which they are incarcerated. Currently, prisoners who
are serving a custodial sentence in a place of detention within the UK
are barred from voting under section 3 of the Representation of the
People Act 1983 and related legislation.98

In March 2004, the European Court of Human Rights (ECHR), in the

case of Hirst v UK99, unanimously ruled that the maintenance of an
absolute bar on convicted prisoners voting was in breach of Article 3 of
the First Protocol to the ECHR, the right to free and fair elections. This
followed a successful legal challenge by John Hirst, a prisoner who, in
1980, had been sentenced to a term of discretionary life imprisonment
after pleading guilty to manslaughter. The UK Government asked for
the case to be referred to the Grand Chamber of the ECHR.

On October 6, 2005, in the case of Hirst v UK (No 2)(Application no.

74025/01), the Grand Chamber upheld the judgment by a majority of
12 to 5. The Court was clear in its judgment that it was for the UK
Government to determine exactly where the balance should be struck
in terms of deciding how far enfranchisement should be extended to
98 https://www.leighday.co.uk/LeighDay/media/LeighDay/documents/MoJ---Voting-
Rights-of-Convicted-Prisoners-Detained-within-the-United-Kingdom---Second-
Consultation--Apr-09.pdf?ext=.pdf (December 29, 2015)

99 Supra Note 4.

Voting Behind Bars 27

prisoners: but the Court was also clear that the discretion afforded to
Governments in complying with the ECHR did not extend to
maintaining absolute disenfranchisement for all convicted prisoners.
The Courts judgment means that some form of enfranchisement must
be pursued.

Seven years after the European Court of Human Rights in Strasbourg

ruled that banning convicted killer John Hirst from the polls had
breached his right to participate in the democratic process, the
government is set to allow prisoners the vote but it wants the right
limited to those sentenced to a year or less, rather than the four years
previously considered.100

In South Africa, where its Constitution guarantees specifically that

every of its adult citizens have the right to vote, some legal
controversy on the questions of whether it is unconstitutional to limit
the right of a prisoner to cast a vote in national elections arose.101

When the Parliament amended the Electoral Act in 2003, in effect,

deprive convicted prisoners serving sentences of imprisonment without
the option of a fine of the right to participate in elections the
Constitutional Court declared these amendments to be invalid in the
case of Minister of Home Affairs v NICRO.102

In the NICRO case, the Constitutional Court has to decide whether the
changes to the Electoral Act curtailed the Constitutional right to vote of
prisoners in an unjustifiable manner.103 The court came up to the
conclusion that the limitation in this instance was unjustifiable stating

100 http://www.bbc.com/news/uk-11674014

101 http://cspri.org.za/publications/research-reports/South%20African%20Prisoners
%20Right%20to%20Vote.pdf (December 29, 2015)

102 Id.

Voting Behind Bars 28

that, where the purpose of the law is not self-evident, there is a need
for the government to place sufficient information before the Court to
enable it to know exactly what purpose the disenfranchisement was
intended to serve, this the Government fails to do.104

In the case of Sauve v The Attorney General of Canada, the Chief

Electoral Officer of Canada and the Solicitor General of Canada (2002),
Richard Sauve, an ex-inmate, challenged the section of the Canada
Elections Act that prohibited voting by inmates serving a sentence of
two years or more.

In this case, the Attorney General of Canada did not dispute that the
law infringed upon the right of inmates to vote. However, the
government did argued that denying this right was justifiable under the
Charter as it served several purposes best determined by Parliament.
Those purposes included the goal of promoting civic responsibility and
respect for the law and that denial of the vote was a reasonable
punishment in addition to that specified by the court. However, in a 5-4
ruling, the Supreme Court ruled against the government.

First, the Court found that as voting was a fundamental right in a

democracy, any attempt made to restrict that right had to be made on
the basis of a compelling reason that met specific legal tests. In
particular the restriction had to be justified on the basis of necessity,
could not be arbitrary, and the objectives of the ban could not be met
through other measures. In dismissing the arguments put forward by
the Government, they rejected the argument that denying the vote will
help reach the objective of promoting civic responsibility and respect

103 Minister of Home Affairs v National Institute for Crime Prevention and the Re-
Integration of Offenders (NICRO) and Others (CCT 03/04) [2004] ZACC 10; 2005 (3)
SA 280 (CC); 2004 (5) BCLR 445 (CC) (3 March 2015)

104 Id.

Voting Behind Bars 29

for the law. In fact, the Supreme Court found that denying
penitentiary inmates the right to vote is more likely to send messages
that undermine respect for the law and democracy than messages that
enhance those values. The legitimacy of the law and the obligation to
obey the law flow directly from the right of every citizen to vote. To
deny inmates the right to vote is to lose an important means of
teaching them democratic values and social responsibility. The
government's novel political theory that would permit elected
representatives to disenfranchise a segment of the population finds no
place in a democracy built upon principles of inclusiveness, equality,
and citizen participation.

Second, the Supreme Court found that denying a fundamental right is

arbitrary because it is applied to all offenders regardless of the
circumstances relating to the offender or his/her offence. By definition,
blanket punitive measures are arbitrary.

Finally, the court said that those positive benefit which may come from
denying this right are outweighed by the negative aspects. According
to the court, denying inmates the right to vote imposes negative costs
on inmates and on the penal system. It removes a route to social
development and undermines correctional law and policy directed
towards rehabilitation and integration. In light of the disproportionate
number of Aboriginal people in penitentiaries, the negative effects of
this law upon inmates have a disproportionate impact on Canada's
already disadvantage Aboriginal population.

In sum, Canadas highest court found that the federal government did
not have sufficient reason to deny inmates the right to vote.

Discussion

Voting Behind Bars 30

The expansion of suffrage to all sectors of the population is one of our
countrys most important political success. Once the privilege of the
men, literates, and wealthy, the vote is now a basic right held by the
women, the illiterates, the underprivileged and the young adults.
Today, all mentally competent adults have the right to vote with only
one exception: prisoners serving more than one year of imprisonment
and ..) Conviction carries with it not only imprisonment but also the
loss of the right to vote. Among the severe and long-lasting effects of
conviction includes the collateral consequences involving the actual
and potential loss of civil rights, political rights, parental rights, public
benefits, other opportunities and the unofficial social stigma that even
those freed from the prison suffer such as trouble of finding a job. In
terms of stripping the prisoners of their right to vote, our laws and
jurisprudence offers unclear reason for its valid justification as a policy.
When a person is put on jail, he loses right beyond those necessary for
purpose of serving a penalty. Research shows that disenfranchising a
prisoner have adverse impact on the psychological well-being of a
prisoner that is not helpful in his eventual reintegration in the
society.105 This holds true because although in theory, those who have
served sentence can regain the right to vote, in reality, this possibility
is illusory. Ex-convicts rarely acquire interest in exercising their
suffrage; a right that is fundamental to our citizenship as a Filipino and
is the foundation of our democracy.

Because of the far-reaching effect of denial of voting rights, prisoners

should be afforded rights to address their needs. Article II, Section 11
of the Philippine Constitution provides that: The State values full
respect for human person and guarantees full respect for human

105 http://www.thedailybeast.com/articles/2015/06/12/the-real-felony-
denying-prisoners-the-right-to-vote.html (December 30, 2015)

Voting Behind Bars 31

rights. International law sets out the basic principles for electoral
democracy, including the right of every citizens to vote. Under Article
25 of the International Covenant on Civil and Political Rights (ICCPR),
for example, every citizen has the right to vote and that right may not
be subject to discrimination on the basis of race, sex, religion, and
other enumerated categories or to unreasonable restrictions.

The Interest of the State in Disenfranchising the Prisoners

The Supreme Court, in explaining the nature of the exercise by the

state of its power in denying the prisoners of their right to vote states
that its purpose is to maintain the purity of the ballot.106 The law, in
defining the franchise and setting the disqualification intends to
protect the purity of the elections rather than punish the offender. The
manifest purpose of the restriction was interpreted to be the
withholding of the privilege and not a denial of the right.

The Four Judicial Approaches

http://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?
article=1378&context=bjil

The Post Prison

http://aspe.hhs.gov/hsp/prison2home02/haney.htm

Discussion and Analysis

The crime and the punishment connection

106 People v Corral. Gr. No. L-42300 January 31, 1936

Voting Behind Bars 32

Civil Interdiction Reasons

Overall, the punishment rationales put forward are insufficiently

theorized and lack persuasive power. Justification for
disenfranchisement may not be easy to articulate and should perhaps
be left to philosophers, as Lord Justice Kennedy noted in Pearson. In the
United States, the denial of the franchise to prisoners is generally
defended by a bland statement that those in prison should not be
allowed to participate in the democratic process, without further
explanation. Sometimes further point is added to the effect that in-
prison voting would constitute a burden on the efficient running of a
prison. Meanwhile, even prominent arguments for rights restoration
offer tacit support for some elements of this approach.

Political disagreement about prisoner voting tends to present itself as a

clash of principle.107 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 cant 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

107 http://theconversation.com/prisoners-should-not-be-locked-out-of-
democracy-19255. The Conversation. October 17, 2013. (April 26, 2015)

Voting Behind Bars 33

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 seem
to be 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 arent 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.

Voting Behind Bars 34

Couldnt they argue against it even if they dont 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 cant.
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 arent human rights. Indeed, we accept that there
may be something to be said in favor 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

Voting Behind Bars 35

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.

Disenfranchisement as a Legitimate State Regulation

The early exclusion of felons from the franchise by many states could
well have rested on Locke's concept, so influential at the time, that by
entering into society every man 'authorizes the society, or which is all
one, the legislature thereof, to make laws for him as the public good of
the society shall require, to the execution whereof his own assistance
(as to his own decrees) is due.108

A man who breaks the laws he has authorized his agent to make for his
own governance could fairly have been thought to have abandoned the
right to participate in further administering the compact. On a less
theoretical plane, it can scarcely be deemed unreasonable for a state
to decide that perpetrators of serious crimes shall not take part in
electing the legislators who make the laws, the executives who enforce
these, the prosecutors who must try them for further violations, or the
judges who are to consider their cases. This is especially so when
account is taken of the heavy incidence of recidivism and the
prevalence of organized crime.

The theory of such a contract, first formulated by the English

108 Fordham Urban Law Journal. Felon Disenfranchisement: Law, History,

Policy and Politics. George Brooks (2005)

Voting Behind Bars 36

philosophers Thomas Hobbes (in The Leviathan, 1651) and John Locke,
assumes that men at first lived in a state of anarchy in which there was
no society, no government, and no organized coercion of the individual
by the group. Hobbes maintained that by the social contract men had
surrendered their natural liberties in order to enjoy the order and
safety of the organized state.

Locke made the social contract the basis of his advocacy of popular
sovereignty, the idea that the monarch or government must reflect the
will of the people. Like Locke, the French philosopher Jean Jacques
Rousseau, in Le Contrat social (1762), found the general will a means
of establishing reciprocal rights and duties, privileges, and
responsibilities as a basis of the state. Similar ideas were used as a
justification for both the American and the French revolutions in the
18th century.

Thomas Jefferson held that the preservation of certain natural rights

was an essential part of the social contract, and that 'consent of the
governed' was fundamental to any exercise of governmental power."

Voting Behind Bars 37