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From Wikipedia, the free encyclopedia

Disfranchisement (also called disenfranchisement) is the revocation of the right of suffrage (the right to vote) to a person or group of people, or rendering a person's vote less effective, or ineffective. Disfranchisement might occur explicitly through law, or implicitly by intimidation. Indirectly, it may occur when certain groups are not properly registered to vote, either on purpose or because of serious technical (computer) problems. These people are willing to vote, but can not exercise their right, due to registration.

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Voting systems

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Proportional representation voting systems

In proportional representation systems which use election thresholds, parties which fail to meet the specified thresholds often claim that their supporters have been disfranchised since their votes do not translate into any legislative seats, and thus effectively do not count. 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 voters order of preference.

First-past-the-post voting systems

Under the first past the post 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 remainder being disfranchised as a result of the voting system. Example 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. First past the post voting systems are used in the United States, Canada and the UK.

Preferential voting systems

Preferential voting systems (also referred to as instant run-off voting and alternative vote) seeks to minimize the percentage of disfranchisement as a result of the voting system. Votes for minor candidates are redistributed according to the voters nominated order of preference to other candidates and form part of the winning candidate(s) quota without the need for a second run-off ballot. Preferential voting is used throughout Australia, Ireland and in some states in the United States.

Disfranchisement at place of residence and minorities

United States

Washington, D.C.

Voters in the District of Columbia, the U.S. capital, are subject to a partial disfranchisement: they are not represented in Congress. Until the passage of the Twenty-Third Amendment in 1961, they did not get to vote in presidential elections. Prior to the District of Columbia Home Rule Act in 1973, they did not elect their own mayor.

Puerto Rico (a U.S. commonwealth territory)

U.S. federal law applies to Puerto Rico, even though Puerto Rico is not a state of the American Union. Due to the establishment of 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 are also conscripted into the U.S. armed forces to fight in U.S. wars; they have fought in every U.S. since they became U.S. citizens in 1917[3]. Puerto Rico residents are also subject to most U.S. taxes[4]. However, these American citizens who live in Puerto Rico have no Congressional representation or are allowed to vote in U.S. presidential elections.

Various scholars (including a prominent U.S. judge in the United States Court of Appeals for the First Circuit) conclude that the U.S. national-electoral process is not a democracy due to issues around voting rights in Puerto Rico.[5] Citizens residing in Puerto Rico are not counted in the U.S. Census as part of the estimates it provides of the U.S. population. Furthermore, any U.S. citizen that moves to Puerto Rico (be it a Puerto Rican or not) loses his or her right to vote in any U.S. legislative and executive election at the national level. This is despite the U.S. Government Executive and Legislative Branches holding ultimate sovereignty over all U.S. citizens and the territory of Puerto Rico. Both the Puerto Rican Independence Party and the New Progressive Party have rejected the status quo that permits disfranchisement (from their distinct respective positions on the ideal enfranchised status for the island-nation of Puerto Rico). The remaining political organization, the Popular Democratic Party, is less active in its opposition of this case of disfranchisement but has officially stated that it favors fixing the remaining "deficits of democracy" that the Bill Clinton and George W. Bush administrations have publicly recognized in writing through Presidential Task Force Reports.

Rural west

Another example of unintentional disfranchisement of a group of people is expounded by supporters of the U.S. Electoral College. Briefly, electoral college supporters feel that strict majority vote would disfranchise the mostly rural American West, by denying them the ability to ever influence an election due to their small numbers. This would be unintentional disfranchisement as it is an effect of the change, not a direct goal of the change in voting law.

Handicapped

Even some that are physically disabled could be disenfranchised due to inaccessibility at voting areas.[6] This too might be considered unintentional disfranchisement, as it is an effect of the law, not a direct goal of the law.

Other Groups

An additional example is the disfranchisement of entire groups of people, such as fathers, women, unmarried or non-custodial parents, various racial, ethnic or religious minorities depending on the country, or members of some political groups. This has led to warfare, as in the case of the American Revolutionary War (the cry "No taxation without representation" conveys this message). This is a good example of the intentional disfranchisement of a group of people (British colonists in America) by the government in Britain.

Minors

Minors under the voting age are also disenfranchised. While this is supported by the idea that those under the age of majority lack the capacity to cast an independent vote, minors are almost always subject to taxation by regional and federal governments.

Disfranchisement due to criminal conviction

In the USA

Many U.S. states intentionally disfranchise people based on criminal conviction by law. For many jurisdictions that do, usually a person is disfranchised after being sentenced to a penalty above some limit—for example, 6 months— but only as long as he or she is serving the sentence.

In 20 U.S. states (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), persons convicted of a felony — that is, a crime punishable with a year's imprisonment or more—are denied the vote only while serving sentence in a state prison. Once completing their sentence (and parole, if applicable), the right to vote is returned to them.[7] Delaware has a similar law, but extends the disfranchisement period five years after release from custody.[8]

One felony conviction results in perpetual disfranchisement in 10 other U.S. states, and in Maryland two convictions have the same consequence. In addition to these 11 states, 19 others also disfranchise persons who are on probation for a felony but were not sentenced to prison time. All of these plus five more states (or 35 in all) disqualify those on parole from voting.

Two states—Maine and Vermont—allow prison inmates to vote. Disfranchisement must be meted out as a separate punishment.

Some states consider dishonorable discharge a felony conviction and disfranchise those receiving one.

Those affected are usually prohibited from voting in federal elections as well, even though their convictions were at the state level for state crimes, not federal crimes. This means that 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 there were at least two cases in the U.S. courts challenging disfranchisement of felons: Locke v. Farrakhan in Washington State and Hayden v. Pataki in New York. The NAACP LDF was involved in both cases.

In the UK

In the United Kingdom, not all prisoners are denied the right to vote while in prison. For example, those civil prisoners sentenced for non payment of fines still retain the right to vote. However, whether any facility is provided for them to exercise this right by the prison authorities is debatable. For example, in the Republic of Ireland prior to the judgment in Hirst v UK(No2) convicted prisoners had the right to vote in law but because the prison authorities did not facilitate the means to exercise this right it was unenforceable by the prisoners. In the Hirst judgment the ECtHR ruled that Member States are required under Article 3 of the First Protocol to be proactive as opposed to merely refraining from facilitating the franchise to serving prisoners. To comply with the judgment the Irish Republic passed a statute allowing convicted prisoners to have postal votes. In England, Scotland, and Northern Ireland this is, however, claimed by the government to be under review, following an October 2005 ruling of the European Court of Human Rights in Hirst v UK(No2)[1] that a blanket ban is disproportionate. The review is still underway, and falls to the Minister of Justice and Lord Chancellor, Jack Straw, to comply with the Hirst judgment but it was previously Lord Falconer of Thoroton, the Secretary of State for Constitutional Affairs who stated that it may result in some, but not all, prisoners being able to vote.[9] The view of Lord Falconer and what has been described as a "dodgy dossier" (consultation exercise to determine whether convicted prisoners should be allowed the vote) are to be the subject of Judicial Review proceedings in the High Court. And separate challenges by the General Secretary of the Association of Prisoners, Ben Gunn, by way of petition to the EU Parliament, and John Hirst to submit represenatations to the Committee of Ministers in Strasbourg at their next meeting between 2-4 June 2009 are underway. The Association of Prisoners is legally represented by Elkan Abrahamson senior partner at AS Law (solicitors) in Liverpool, and leading prison law barrister Flo Krause who argued the case of Hirst v UK(No2) before the ECtHR.

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 hand out this sentence for specific "political" crimes (treason, high treason, electoral fraud, intimidation of voters etc) and for a duration of two to five years.[10] 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 elections.

In Israel

Inmates are allowed to vote in Israel, and there is likewise no subsequent disfranchisement of felons 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 cause of imprisonment (i.e., including politically-related crimes). In fact, local scholarship has suggested that persons at odds with the law maintain a special interest in influencing the political process.

In other countries

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

Disfranchisement due to criminal conviction (otherwise than for electoral offences) is discussed extensively in the website of the Sentencing Project, an organization concerned with reducing prison sentences and ameliorating some of the 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 data available from organizations with opposing views, and from the United States government and various state governments.

See also

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 offical 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. ^ Improve voting accessibility
  7. ^ American Civil Liberties Union
  8. ^ http://electionsncc.delaware.gov/votreg.shtml#register
  9. ^ Convicts 'will not all get vote', BBC News, October 6, 2005, accessed December 9 2005
  10. ^ (German) §45 StGB, accessed July 28, 2006

References


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