3 May 2019
By Isabel Santos (MP, Portugal)
Presidential candidate Senator Bernie Sanders recently placed the issue of felon voting rights front and center by stating at a townhall meeting that people should be able to vote while incarcerated in jails and prisons. Arguing that the right to vote is inherent to democracy, he insisted that it should be guaranteed “even for terrible people,” which inspired President Donald Trump to respond with a tweet calling Sanders’ position “deeply offensive to innocent victims across this country.”
A few days later, on April 24, the Florida House of Representatives passed a bill that would restore voting rights for felons who have completed their sentences, as called for in a 2018 referendum approved by voters. However, to the chagrin of voting rights advocates, the Florida House added the condition that in order to have voting rights restored, ex-felons must first pay all related fees, fines and court costs. These restrictions led Kara Gross, legislative director of the Florida chapter of the American Civil Liberties Union, to lament that the Florida bill “merely replaces one unjust system for another.”
Clearly, voting rights for felons is an emotionally charged issue and there are persuasive arguments that can be made for or against extending the franchise to those who have been convicted of serious crimes. The United States is not alone in grappling with these issues.
In my country, Portugal, only crimes that specifically target the state or the democratic order can result in a prisoner’s disenfranchisement. The right to vote is not automatically taken away. It is up to the Court to decide on a case by case basis whether such a measure is appropriate, and when it is deemed justified, there is a maximum period of ten years that disenfranchisement can be applied.
Given the fact that it constitutes a restriction on a fundamental right, such a penalty must respect the principles of distinction and proportionality. This means, for instance, that common criminals would not lose the vote while incarcerated in Portugal, but someone convicted of an act of terrorism would.
All in all, 26 European nations at least partially protect prisoners’ right to vote, while 18 countries grant incarcerated citizens the vote regardless of the offense. But what is unheard of in Europe is permanently revoking the right to vote of those convicted of crimes after they have served their sentences. This practice would be considered a violation of democratic norms as spelled out in a number of human rights accords such as the International Covenant on Civil and Political Rights (ICCPR) and the Copenhagen Document of the Organization for Security and Co-operation in Europe (OSCE).
The United States is a party to the ICCPR and the Copenhagen Document, both of which clearly outline obligations related to universal suffrage for adult citizens – and neither of which carve out exemptions for people who have been convicted of crimes.
The ICCPR, for example, states that “every citizen shall have the right and the opportunity ... and without unreasonable restrictions to take part in the conduct of public affairs, directly or through freely chosen representatives [and] to vote.” The Copenhagen Document requires that OSCE countries “guarantee universal and equal suffrage to adult citizens.”
Having participated in several election observation missions to the United States, including leading the delegation of observers from the OSCE Parliamentary Assembly in November 2018, I can attest that the issue of felons’ voting rights in the U.S. has been a long-standing concern of the international community. As we observed last year in our post-election assessment, “an estimated 6.1 million persons with criminal convictions remain disenfranchised, half of whom have served their sentences.”
We noted that “these restrictions on voting rights contravene principles of universal and equal suffrage, and the commitment to ensure proportionality in the restriction of rights, as provided in the 1990 OSCE Copenhagen Document.”
As voters and political leaders debate these issues, they should recall that these matters have been addressed by international observers who have deployed to the United States since 2004. I hope that Americans would consider the expert assessments and recommendations that we have offered. These are not only American issues, after all, but international ones as well – and in this regard the U.S. should bear in mind its international commitments.
Isabel Santos is a member of the Portuguese parliament and a Vice-President of the Organization for Security and Co-operation in Europe’s Parliamentary Assembly (OSCE PA). She has led two OSCE PA election observation missions to the United States – in 2018 and 2014.
