Disfranchisement

Disfranchisement (also called disenfranchisement) is the revocation of the right of suffrage (the right to vote) of a person or group of people, or rendering a person's vote less effective, or ineffective. Disfranchisement may occur explicitly through law, or implicitly by intimidation or by placing unreasonable registration or identification impediments in the path of voters.

Voting systems

While disfranchisement literally refers to the right to vote rather than the right to direct representation, various polities have adapted their voting systems to attempt to reduce the number of "unrepresented" voters.

Proportional representation voting systems

In proportional representation systems which use election thresholds, parties which do not receive enough votes to meet the specified thresholds claim^[who?] that their supporters have been disfranchised since their votes do not translate into any legislative seats. In Australia the use of preferential voting in federal Senate elections minimizes the extent of disfranchisement as votes for minor candidates are redistributed to other candidates, which then form part of the winning quota, according to the voter's order of preference.

First-past-the-post voting systems

Under the first past the post (FPTP) single member voting system the highest polling candidate is elected as opposed to a candidate that has an absolute majority of votes. A candidate can be elected with less than 50% support with the majority of voters remaining unrepresented. As an example, if three candidates receive 40%, 32% and 28% of the vote respectively, the candidate with 40% of the vote is elected whilst 60% of the electorate go unrepresented. FPTP is used in most jurisdictions in the United States, Canada and the United Kingdom.

Preferential voting systems

Preferential voting systems (also referred to as instant run-off voting and alternative vote) redistribute votes for minor candidates according to the voter's expressed order of preference without the need for a second run-off ballot. Preferential voting is used throughout Australia, Ireland, and in some states in the United States. This reduces but does not eliminate lack of representation, because the winner always ends up with more than 50% of the votes

By place of residence and ethnicity

United States

Washington, D.C.

Main article: District of Columbia voting rights

In the largest known ongoing case of federal congressional and state disfranchisement in the United States, about 600,000 US Citizens of the District of Columbia (DC) are no longer allowed to vote for full Congressional or Senate candidates. DC citizens ask for restoration of all elections, full Congressional representation, and all nationally standard rights for full US Citizens. These "inalienable rights" had been conferred by the State of Maryland, prior to conversion to a national capital, and are revoked, or not enforced by the US Congress. In 1846, the Virginian portion of Washington, DC, contributed from Virginia, was "retrocessioned" (returned) to Virginia to protect slavery and today has had all US Citizen rights restored to that area. Congress uses the same portion of the US Constitution to exclusively manage local and State level law for the citizens of Washington, DC and US Military Bases in the US. Since 1986, reversing prior Congressional law, Congress passed a law restoring all State and Federal voting rights for US Military personnel living on Bases in the US, but Congress did not include Washington, DC, in that 1986 law. Several Million US Citizens on US Bases have rights restored, while 600,000 US Citizens of Washington, DC, do not. All other lawful US Citizens disenfranchised (prior voting rights actively removed by State or Federal Government) have had their Voting Rights restored, except for Washington, DC Citizens.

US Constitutional mechanism to disenfranchise

In the United States, the US Congress is not only the national legislature, but also is the States Rights Legislature on US Military Bases in the US and the District of Columbia (under Article I, Section 8, Clause 17 of the US Constitution), replacing the State Legislature when State Legislature jurisdiction is transferred to the Federal Government. The US Congress is the "exclusive legislature" on these Bases, Washington, DC, and similar Federal Zones. US Congress interprets this "exclusive legislature" as powerful enough to disenfranchise lawful US Citizens living under I-8-17 of the US Constitution. US Congress also interprets the mechanism of I-8-17 powers as strong enough to re-enfranchise, such as the US Military being restored voting in 1986, where these Citizens vote in the US State that contributed the land for the Base. By cancelling elections, Congress never enforced the Voting Rights Amendments in Washington, DC, such as Amendments, 14, 15, 19, 24, and 26 for Federal or State Legislative Elections. No resident of Washington, DC, can vote for US Senators in Washington, DC, because neither Amendment 17 (direct election of US Senators) nor 19 (Women's Suffrage) have been enforced by Congress in Washington, DC. These amendments grant citizenship (14th), and voting rights to all races (15th), women (19th), without poll tax (24th) and youth 18–21 years old (26th).

Creation of Washington, DC

Congress "cessioned" (transferred) land for the District of Columbia from the states of Maryland and Virginia in the Residence Act of 1790 and the District of Columbia Organic Act of 1801 to establish a national seat of government, taking charge with a simple law that put Congress in charge of the District of Columbia.

Taking control of the District of Columbia, the US Congress interpreted that Maryland law no longer applied, such as for elections. Yet Maryland Law permitting the land transfer for the establishment of Washington, DC, stipulated that the rights of the Maryland Citizens continue for these citizens transferred, such as voting rights. The US Congress simply ignored this Maryland negotiated stipulation. Through intentional omission of law, the US Congress deliberately cancelled all elections since 1801, removing the voting and election traditions that preceded Congress in the area converted into the National Capital. Congress took over, with a simple Federal Law, and did not reenact the Maryland legislation that simple Federal law struck down. This strategy for disenfranchising DC Citizens was openly discussed in Congressional Debates as recorded in the Annals of Congress from New Year's Eve 1800 until final passage in March 1801. Congressional power over aspects of local government and elections increased from 1801 to 1965, but with restoration of Presidential elections, and reestablishment of locally elected Mayor and Council, has very slowly moved back toward the rights Maryland had provided from 1776 to 1801.

Removal of US Congressional Districts and Presidential Elections

The portion of Maryland converted into Washington, DC, had been involved in all Maryland elections form before 1776, until 1802. From 1789 until 1802, the portion of Maryland converted into Washington, DC, was part of two US Congressional Districts, represented in 1801 by US Rep. John Chew Thomas from Maryland's 2nd, and US Rep. William Craik from Maryland's 3rd.

Given the variety of laws passed by Congress to disenfranchise US Citizens in Washington, DC or on US Bases, it is nearly impossible to thoroughly summarize two hundred years of history of disenfranchisement and alienation of in alienable rights, for Local, State and Federal Rights levels in these places. By Congress banning elections in Washington, DC, since 1801, later Amendment, such as 17, the direct election of US Senators, were never enforced in Washington, DC.

Between 1804 and 1964, the US Congress cancelled US Presidential elections in Washington, DC, while the rest of State of Maryland continued to vote in these elections. Unlike Military Bases where the US Congress simply changed the law in 1986, Washington, DC, had to get Constitutional Amendment passed (Amendment 23) to restore US Presidential elections, after 164-year gap.

Twenty-third Amendment to the United States Constitution

The Twenty-third Amendment to the United States Constitution, nationally ratified in 1961, permits Washington, D.C. voters to elector Presidential electors along with residents of U.S. states. The district is uniquely provided no more electoral college votes than states with a single Congressional Representative, or three. Amendment 23 permits limited application of Article Two of the United States Constitution, and also permits Amendments 15, 19, 24, and 26. Amendment 23 limits some of Congress's "Exclusive" powers. Amendment 23 might not apply if Congress changes the name of the District of Columbia. Amendment 23 marks the start of partial re-enfranchisement status for the 1964 Presidential Election.

Delegate and Local Offices

DC had a non-voting delegate in Congress from 1871 to 1875, but that post was also abolished by the US Congress. The post was reestablished in 1971. The delegate cannot vote for bills before the House, nor floor votes, but may vote for some procedural and committee matters. In 1973, the District of Columbia Home Rule Act reestablished local government after a hundred-year gap, with regular local elections for mayor and other posts.

US Constitution as applied to DC Citizens

Since 1801, most of the United States Constitution has not applied to the District, because of Congress's "exclusive" interpretation (Rights Supporters say "unchecked and unbalanced", but a neutral reporter might say "without Checks and Balances") of Article One, Section 8, Clause 17. Most of Articles One, Three, Four, Five, Six, of the United States Constitution are no longer enforced for these US Citizens. Amendments 14, 15, 19, 24, and 26 are not enforced unless subsequent to Amendment 23.^{[citation needed]} Article II-2-2, "Advice and Consent" in the appointment of Federal Judges, as well as State and Local judges, is no longer available to Washington, DC Citizens, since 1801. Article IV,4,1, the "Guarantee of the Republican Form of Government" at the State Level, has not been enforced by the US Congress for Washington, DC, citizens since 1801.

Comparisons

No NATO (US Military Allies) nor OECD Country (US Industrialized Allies) until 2009, disenfranchises Citizens of their respective National Capitals for national legislature elections. No US State disenfranchises citizens of their own Capital.

Residents of the former portion of the District of Columbia that was returned to Virginia (through retrocession) vote under the same rules as other Virginia residents, despite a significant Federal presence, including the Pentagon, Washington Reagan National Airport, the Patent and Trademark Office, US Marshals Headquarters, Drug Enforcement Agency Headquarters, US State Department's training campus, and Central Intelligence Agency offices.

The "National Capital Area" imprecisely composed of Washington, DC, and neighboring counties in Maryland and Virginia has increased from a population nearly 1 million citizens with almost 903,000 (or 90%) disenfranchised during World War II, to nearly nearly 4 million today, but only 600,000 (or 15%) disenfranchised. Lack of Representation in US Congress has been a major factor in removing national head quarters to neighboring counties that still have voting rights and Congressional vote trading. Re-enfranchisement of intelligence officers since World War II to minimize national security concerns has been major source of Executive Branch support for moving intelligence agency headquarters such as the CIA, NSA, NRO, CSS, and NIMA headquarters to neighboring counties with voting rights.

Quasi State

Because Maryland was extremely interested that the national capital be near Maryland, it did little to protect rights of Maryland Citizens converted into Washington, DC Citizens. Washington DC has been described as either "reduced to a US territory", or a quasi state, or a portion of Maryland. US Territories, such as Puerto Rico's, are neither taxed, nor fully represented, nor permitted to vote in Presidential elections, yet Washington, DC, is taxed, and votes in Presidential Elections, but not fully represented in Congress. DC Citizens are full US Citizens, and if they move to another State have full voting rights in that State. Some suggest that Washington, DC, should be clearly "retroceeded" (returned) to Maryland. Others suggest that DC should be treated as a Military base, and have its full voting rights restored by an act of Congress. The passage of the 23rd Amendment, restoring US Presidential Elections to DC, has re-affirmed the District of Columbia is no longer a portion of Maryland, but rather a federal district.

Opponents of Voting Rights Arguments and Time Line

Opponents of restoring voting rights are almost always politically conservative representatives, and since the President Nixon's Southern Strategy (1968 and 1972) almost exclusively Republican. The largely urban, African American, liberal constituency almost invariably votes for the opposing Democratic party. Support of full voting rights to the district undoubtedly would cede a certain amount of power, however small, to the party's political opponents. Southern Conservatives have, unsurprisingly, strenuously opposed restoring full voting rights to Washington, DC citizens' through various legislation. This notedly included opposition among the most conservative states to the 23rd Amendment, which restored (limited) presidential voting rights to the district.

Puerto Rico (a U.S. commonwealth territory)

U.S. federal law applies to Puerto Rico, even though Puerto Rico is not a state. Due to the Federal Relations Act of 1950, all federal laws that are "not locally inapplicable" are automatically the law of the land in Puerto Rico (39 Stat. 954, 48 USCA 734).^[1] According to ex-Chief of the Puerto Rico Supreme Court Jose Trias Monge, "no federal law has ever been found to be locally inapplicable to Puerto Rico.^[2] Puerto Ricans were conscripted into the U.S. armed forces; they have fought in every war since they became U.S. citizens in 1917.^[3] Puerto Rico residents are subject to most U.S. taxes.^[4] However, these American citizens have no Congressional representation nor do they vote in U.S. presidential elections.

Various scholars (including a prominent U.S. circuit court) judge conclude that the U.S. national-electoral process is not a democracy due to issues around voting rights in Puerto Rico.^[5] Both the Puerto Rican Independence Party and the New Progressive Party reject Commonwealth status. The remaining political organization, the Popular Democratic Party has officially stated that it favors fixing the remaining "deficits of democracy" that the Clinton and Bush administrations publicly recognized through Presidential Task Force Reports.

Pre-revolutionary America

The disfranchisement of British subjects in America led to the American Revolutionary War under the rallying cry "No taxation without representation".

Minors

Minors under the voting age can be considered disfranchised. While this is because most of those under the age of majority lack the capacity to cast an independent vote, minors are fully subject to taxation by regional and federal governments.

Disability

Failure to make adequate provision for disabled electors can result in the selective disenfranchisement of disabled people. Accessibility issues need to be considered in electoral law, voter registration, provisions for postal voting, the selection of polling stations, the physical equipment of those polling stations and the training of polling station staff. This disenfranchisement may be a deliberate facet of electoral law, a consequence of a failure to consider the needs of anyone other than non-disabled electors, or an ongoing failure to respond to identified shortcomings in provision.

Note that in the case of disabled voters the issue may be actual disenfranchisement of someone previously able to vote, rather that ab initio disfranchisement. This may result from the transition from non-disabled to disabled, from changes in the effects of a disability, or changes in the accessibility of the electoral process.

Access Issues

Access presents special difficulties for disabled voters.

• Eligibility—Some nations restrict the franchise based on measured intellectual capacity. Potential voters with learning impairments, mental health issues or neurological impairments may also find themselves barred from voting by law.

• Registration—Registration difficulties may disenfranchise disabled people through inadequate access provisions. For instance the UK Electoral Register is updated annually by a largely paper-based process offering poor accessibility to people with visual or learning impairments.

• Postal Voting—Postal voting for disabled voters requires ballots that are appropriate for visually impaired voters. The lack of a private, accessible voting booth makes postal voting inappropriate for others with specific physical and other disabilities.

• Polling Stations—Polling stations must offer the same physical accessibility that apply to other public facilities (parking, ramps, etc.) There must be sufficient polling stations to minimize queueing, which discriminates against those with mobility, pain or fatigue based impairments. In 2005, 68% of polling stations were potentially inaccessible to disabled voters.^[6]

• Equipment—Polling stations must be clearly signposted. Low-to-the-ground polling booths and voting equipment must be available. Equipment must enable independent voting by visually and/or physically impaired voters. In 2005 30% of UK polling stations were not in compliance with the law that requires a large print ballot and a physical template.^[6]

• Staff—Staff must understand the necessity of taking steps to ensure access and be able to show how to use equipment such as physical templates, as well as in "disability etiquette" to avoid patronizing these voters.

Campaigns for Improvement

The disability rights movement has increased attention on electoral accessibility. Campaigns such as Scope's 'Polls Apart' have exposed violations at polling stations.^[6]

Criminal conviction

Main article: Felony disenfranchisement

In the USA

Many states intentionally retract the franchise from felons. Alaska, Arkansas, Georgia, Idaho, Iowa, Kansas, Louisiana, Maryland, Minnesota, Missouri, Nebraska, New Jersey, New Mexico, North Carolina, Oklahoma, South Carolina, Texas, Washington, West Virginia, and Wisconsin do not allow persons convicted of a felony to vote while they are in prison or on parole.^[7] Delaware extends the disfranchisement period five years after release.^[8]

A single felony conviction results in permanent disfranchisement in 10 other U.S. states, as does a second conviction in Maryland. In addition to these 11 states, 19 disfranchise felony probationers. These 30 plus five others disqualify parolees from voting.^{[citation needed]} Two states—Maine and Vermont—allow prison inmates to vote. Disfranchisement is a separate, optional punishment.

Some states consider dishonorable discharge a felony conviction and disfranchise those receiving one.^{[citation needed]}

Felons are also prohibited from voting in federal elections, even though their convictions were for state crimes. States with permanent disfranchisement prevent ex-convicts from ever voting in federal elections, even though ex-convicts in other states convicted of identical crimes may be allowed to vote in such elections.

As of 2005 at least two court cases are challenging felony disfranchisement: Locke v. Farrakhan in Washington State and Hayden v. Pataki in New York. The NAACP LDF was involved in both cases.

Disfranchisement due to criminal conviction is discussed extensively by the Sentencing Project, an organization attempting to reduce prison sentences and ameliorate negative effects of incarceration. Although the information provided by this organization is biased against various practices, the website provides a wealth of statistical data that reflects opposing views, and from the United States government and various state governments.

In the UK

The United Kingdom suspends suffrage of some but not all prisoners. For example, civil prisoners sentenced for nonpayment of fines can vote. Prior to the judgment in Hirst v United Kingdom (No 2) convicted prisoners had the right to vote in law but without assistance by prison authorities voting was unavailable to prisoners. In Hirst, the European Court of Human Rights ruled that First Protocol Article 3 requires Member States to proactively support voting by authorized inmates.^[9] In the UK this policy is under review.^[10]

Lord Falconer of Thoroton, former Secretary of State for Constitutional Affairs who stated that the ruling may result in some, but not all, prisoners being able to vote.^[11] The consultation is to be the subject of Judicial Review proceedings in the High Court. Separate challenges by the General Secretary of the Association of Prisoners, Ben Gunn, by way of petition to the European Union Parliament, and John Hirst to the Committee of Ministers are underway.

In Ireland

To comply with the judgment in Hirst v United Kingdom (no 2), the Republic of Ireland passed a statute allowing convicted prisoners to have postal votes.^{[citation needed]}

In Germany

In Germany, all convicts are allowed to vote while in prison unless the loss of the right to vote is part of the sentence; courts can only apply this sentence for specific "political" crimes (treason, high treason, electoral fraud, intimidation of voters, etc.) and for a duration of two to five years.^[12] All convicts sentenced to at least one year in prison also automatically lose the right to be elected in public elections for a duration of five years, and lose all positions they held as a result of such an election.

In Israel

Inmates are allowed to vote in Israel, and there is no subsequent disfranchisement following parole, probation, or release from prison. Neither courts nor prison authorities have the power to disqualify any person from exercising the right to vote in national elections, whatever the cause of imprisonment. Local scholarship suggests that criminals have a special interest in influencing the political process.

In other countries

In some countries, such as China and Portugal, disfranchisement due to criminal conviction is an exception, meted out separately. Losing voting rights is usually imposed on a person convicted of a crime against the state (see civil death) or one related to election or public office.

See also

• Disfranchisement after Reconstruction era (United States)
• Felony disenfranchisement
• Hirst v. the United Kingdom (No. 2)
• Lishenets (disfranchised in the Soviet Union)
• Non-citizens (Latvia)
• Nuremberg Laws
• Political alienation

Notes

1. ^ 39 Stat. 954, 48 USCA 734 "The statutory laws of the United States not locally inapplicable, except as hereinbefore or hereinafter otherwise provided, shall have the same force and effect in Porto Rico as in the United Status…".
2. ^ Puerto Rico: The Trials of the Oldest Colony in the World. By José Trías Monge. Page 43
3. ^ Puerto Rico Herald
4. ^ Contrary to common misconception, residents of Puerto Rico do pay U.S. federal taxes: customs taxes (which are subsequently returned to the Puerto Rico Treasury) (See http://www.doi.gov/oia/Islandpages/prpage.htm Dept of the Interior, Office of Insular Affairs.), import/export taxes (See http://stanford.wellsphere.com/healthcare-industry-policy-article/puerto-rico/267827), federal commodity taxes (See http://stanford.wellsphere.com/healthcare-industry-policy-article/puerto-rico/267827), social security taxes (See http://www.irs.gov/taxtopics/tc903.html), etc. Residents pay federal payroll taxes, such as Social Security (See http://www.irs.gov/taxtopics/tc903.html) and Medicare (See http://www.reuters.com/article/healthNews/idUSTRE58N5X320090924), as well as Commonwealth of Puerto Rico income taxes (See http://www.puertorico-herald.org/issues/2003/vol7n19/USNotInnocent-en.html and http://www.htrcpa.com/businessinpr1.html). All federal employees (See http://www.heritage.org/research/taxes/wm2338.cfm), those who do business with the federal government (See http://www.mcvpr.com/CM/CurrentEvents/CEOsummitarticle.pdf), Puerto Rico-based corporations that intend to send funds to the U.S. (See http://www.jct.gov/x-24-06.pdf Page 9, line 1.), and some others (For example, Puerto Rican residents that are members of the U.S. military, See http://www.heritage.org/research/taxes/wm2338.cfm; and Puerto Rico residents who earned income from sources outside Puerto Rico, See http://www.jct.gov/x-24-06.pdf, pp 14-15.) also pay federal income taxes. In addition, because the cutoff point for income taxation is lower than that of the U.S. IRS code, and because the per-capita income in Puerto Rico is much lower than the average per-capita income on the mainland, more Puerto Rico residents pay income taxes to the local taxation authority than if the IRS code were applied to the island. This occurs because "the Commonwealth of Puerto Rico government has a wider set of responsibilities than do U.S. State and local governments" (See http://www.gao.gov/products/GAO-06-541). As residents of Puerto Rico pay into Social Security, Puerto Ricans are eligible for Social Security benefits upon retirement, but are excluded from the Supplemental Security Income (SSI) (Commonwealth of Puerto Rico residents, unlike residents of the Commonwealth of the Northern Mariana Islands and residents of the 50 States, do not receive the SSI. See http://www.socialsecurity.gov/OP_Home/handbook/handbook.21/handbook-2114.html), and the island actually receives less than 15% of the Medicaid funding it would normally receive if it were a U.S. state. However, Medicare providers receive less-than-full state-like reimbursements for services rendered to beneficiaries in Puerto Rico, even though the latter paid fully into the system (See http://www.prfaa.com/news/?p=252). It has also been estimated (See http://www.eagleforum.org/column/2007/mar07/07-03-28.html) that, because the population of the Island is greater than that of 50% of the States, if it were a state, Puerto Rico would have six to eight seats in the House, in addition to the two seats in the Senate.(See http://www.eagleforum.org/column/2007/mar07/07-03-28.html, http://www.crf-usa.org/bill-of-rights-in-action/bria-17-4-c.html# and http://www.thomas.gov/cgi-bin/cpquery/?&sid=cp1109rs5H&refer=&r_n=hr597.110 [Note that for the later, the official US Congress database website, you will need to resubmit a query. The document in question is called "House Report 110-597 - PUERTO RICO DEMOCRACY ACT OF 2007." These are the steps to follow: http://www.thomas.gov > Committee Reports > 110 > drop down "Word/Phrase" and pick "Report Number" > type "597" next to Report Number. This will provide the document "House Report 110-597 - PUERTO RICO DEMOCRACY ACT OF 2007", then from the Table of Contents choose "BACKGROUND AND NEED FOR LEGISLATION".]). Another misconception is that the import/export taxes collected by the U.S. on products manufactured in Puerto Rico are all returned to the Puerto Rico Treasury. This is not the case. Such import/export taxes are returned only for rum products, and even then the US Treasury keeps a portion of those taxes (See the "House Report 110-597 - PUERTO RICO DEMOCRACY ACT OF 2007" mentioned above.)
5. ^ Torruella, Juan R. (1985). The Supreme Court and Puerto Rico: The Doctrine of Separate and Unequal.
6. ^ ^{a b c} http://www.pollsapart.org.uk/docs/reports/Polls%20Apart%20report%20final.pdf The 'Polls Apart' campaign, run by the UK disability charity Scope
7. ^ American Civil Liberties Union
8. ^ http://electionsncc.delaware.gov/votreg.shtml#register
9. ^ [1]
10. ^ "Voting Rights of Convicted Prisoners Detained within the United Kingdom, Second stage consultation". Ministry of Justice. April 8, 2009. http://www.justice.gov.uk/consultations/docs/prisoner-voting-rights.pdf. Retrieved July 6, 2010. 
11. ^ Convicts 'will not all get vote', BBC News, October 6, 2005, accessed December 9, 2005
12. ^ (German) §45 StGB, accessed July 28, 2006

References

• "Election Readiness: It Is Never Too Late for Transparency", October 2004, from Fair Election International (FEI), a project of Global Exchange, quoted in part in AfricaFocus Bulletin Oct 26, 2004