Unlocking democracy: prisoners’ right to vote

Marcus Roberts,Maxim Institutedirector of research

Opinion

A prison sentence means losing certain freedoms: primarily freedom of movement and freedom of association. Those sentenced to jail for more than three years also lose their ability to vote in our general elections. This is due to a law passed in the middle of 2020, a few months before the last election. Prior to this, no prisoners sentenced to jail could vote, no matter the length of their sentence.

You would think the relatively recent amendment had settled this issue. But you would be wrong: it is still a live issue and one that is currently being debated, although not (yet) in Parliament.

Just last week, He Arotake Pōtitanga Motuhake - Independent Electoral Review released its interim report on all manner of questions relating to our electoral system. One of its recommendations was that all prisoners be granted the right to vote, even if they were serving a sentence of more than three years in jail. This recommendation has received mixed views: Commerce and Consumer Affairs Minister Duncan Webb agreed with the proposal, while the leader of the opposition didn’t support it, and ACT leader David Seymour called the entire review “just a grab bag frankly of Green Party policies”.

So changes to the voting rights of prisoners are unlikely to be adopted without dissent. This is not surprising when one reviews a potted history of the right of prisoners to vote in New Zealand. The only constant has been our lack of constancy.

Originally, only those prisoners guilty of the most serious crimes (like treason) were denied the right to vote. While the franchise was generally being extended in New Zealand (eg to all women in 1893), prisoners’ right to vote was successively curtailed. In 1905 every prisoner sentenced to more than one year in jail was not allowed to vote, and this restriction was extended to all prisoners in 1956.

The latter part of the last century saw wild fluctuations: for three years in the late 1970s, all prisoners were allowed to vote; then, no prisoners were allowed to vote until 1993. The law was changed then so that prisoners serving sentences shorter than three years were allowed to vote; then, no prisoners could vote 2010-20. And then, finally, in 2020, we went back to the three-year rule.

Why is this issue so difficult to conclusively determine? Because we can’t decide why anyone should have the right to vote.

Removing the vote from prisoners treats voting as a privilege that can be removed for bad behaviour. But as we discuss in our new research paper, Democracy Unlocked: How Should We Determine Our Electorate? voting should be seen as a right that isn’t lost upon being put in jail. Voting rests upon our connection to New Zealand’s political community, upon the effect of Parliament’s decisions upon us and upon our ability to vote in our own interests.

Hopefully, our paper will help us resolve some of the confusion over the right of prisoners to vote.