By Hannah Behncke, Mathea Kristoffersen, Camila Salazar Larsen, Selma Zachariassen Nasby, Eylül Sahin and Sabrina Eriksen Zapata - ELSA Bergen, Human Rights Researchgruppen (2024)
This blogpost was written and finished on November 5th, right before the beginning of the US presidential elections. A more extensive version of this post can be found on Injuria[1].
The right to vote is a fundamental aspect of democracy, yet in the United States, millions of individuals with felony convictions are excluded from this process. As this article explores, the U.S. approach contrasts with global and European perspectives that emphasize reintegration and proportionality in restricting voting rights.
Overview over the American system
Disenfranchisement refers to the restriction of a person’s right to vote.[2]
Felon disenfranchisement is decided on a state level. The Richardson v. Ramirez 1974 case in which the US Supreme Court established that convicted felons could be prohibited from voting after completing their sentence and parole, without violating the “Equal Protection Clause” of the Fourteenth Amendment to the Constitution.
Whilst there has been a growing trend of restoring voting rights for convicted felons, the table below displays the limitations still imposed on convicted felons in the different American states.[3]
Problematics of Disenfranchisement
Global legal frameworks advocate for uniting punishment with rehabilitation measures to help individuals with felony records reintegrate into society after completing their sentence. The ICCPR emphasizes rehabilitation as a core goal of imprisonment[4]. Moreover, recent laws[5] aim to support reintegration through education and addiction treatment. An essential component of reinsertion into society requires participation in civic spaces, which includes the possibility to vote and choose your representatives[6]. Therefore, it seems contradictory that once an individual has complied with a felony sentence, and is ready to reintegrate into society, the person is still unable to participate in one of the most important processes one can find in a democracy. For that reason, excluding former felons from voting hinders full societal reintegration, perpetuating discrimination and second-class citizenship[7].
A European perspective
In Europe, prisoners’ voting rights are safeguarded under Article 3 of Protocol No. 1 of the ECHR, upholding democratic participation[8]. While a consensus supports detainees retaining this right[9], it is not absolute and may be limited[10]. Any restrictions imposed by states must undergo thorough judicial review of individual circumstances[11] or align with clear legislative standards[12] to ensure proportionality[13].
The Strasbourg Court has ruled that blanket bans on prisoner voting violate the Convention[14]. Yet, recent cases like Kalda v. Estonia (2022) allows broader restrictions if national courts assess proportionality on a case-by-case basis.
The Court also acknowledges that practical barriers, such as limited access to information, hinder prisoners’ full exercise of this right[15].
Final remarks
The exclusion of felons from voting in the U.S. raises issues related to justice, representation, democracy and reintegration. Although recent developments support restoring voting rights, significant practical and legal barriers still exist. Comparisons with international norms suggest that U.S. policies are unusually restrictive.
[1] For the entire article, visit the webpage https://injuria.no/arkiv/post-vKQPQ-restrictions-on-the-right-to-vote-for-convicted-felons-in-the-us?fbclid=PAZXh0bgNhZW0CMTEAAaaimgSDXdAkrEdt0G3BqJ1s7MKXzuAV9UKdy_btBXwb2zaqmCIvTZ0ct80_aem_C5Ggs66W0-ahT3w2Wz8UgA
[2] Retrieved 05.11.2024 from https://dictionary.cambridge.org/dictionary/english/disenfranchisement#google_vignette
[3] Human Rights Watch, 2024, https://www.hrw.org/sites/default/files/media_2024/06/Out%20of%20Step.pdf
[4] In particular, Article 10.3. While the U.S. ratified this covenant in 1992, it maintained reservations to prevent conflicts with its national laws, favoring historically punitive approaches.
[5] For example: The Second Chance Act (2008), The Fair Sentencing Act (2010), and The First Step Act (2018), which seek the adequate reinsertion of convicts providing programs related to education, employment, and treatment of addictions.
[6] “Civic Space.” European Union Agency for Fundamental Rights, September 25, 2024. https://fra.europa.eu/en/cooperation/civil-society/civil-society-space.
[7] Taxation without representation.https://static.prisonpolicy.org/scans/ririghttovote/RTVWhitePaper.pdf.
[8] ECHR, Thematic Note – Voting Rights of Inmates. December 2022.
[9] ECtHR, Mironescu v. Romania, no° 17504/18, para. 43 and 52
[10] ECtHR, Kalda v. Estonia (n°2), n°14581/20, para. 39.
[11] Dalloz Report, 2013, p. 2174, Prisoners’ Right to Vote: Conviction of Turkey, Judgment by the European Court of Human Rights, No. 29411/07.
[12] Olivier Bachelet, “Voting Rights of Prisoners: The Strasbourg Compromise”, Comment on ECHR, Grand Chamber, 22 May 2012, Scoppola v. Italy (No. 3), No. 126/05 in Dalloz News, 15 june 2012
[13] ECtHR, Frodl v. Austria, n°20201, and Cases like Hirst v. United Kingdom and Scoppola v. Italy have highlighted the limits of state discretion in this area.
[14] ECtHR, Hirst c. Royaume-Uni
[15] Élise Boulineau, “Convicted people’s right: a matured right?”, RFDA 2024, p. 125.