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Analysis by Dr Bryce Edwards – This week the Minister of Justice, Andrew Little, declared that stripping all prisoners of their right to vote had occurred as part of a “fascist” political climate during the last National-led Government.

Speaking on the AM Show about whether prisoners should be allowed to vote, Little explained that the 2010 blanket ban on prisoner voting came in at time when “kind of the more fascist sort of policies with criminals” was going on – see Dan Satherley’s Restoring prisoners’ right to vote still not a priority – Andrew Little.

Back then, Parliament decided to extend what was then a partial-ban on prisoner voting to a blanket ban. Previously, prisoners serving sentences of more than three years were taken off the electoral roll. A bill was then passed to extend that to all prisoners. It was supported by the National and Act parties, and opposed by Labour and the Greens. I covered this issue in detail in December, in the column, Political Roundup: Suffrage reality check – prisoners still can’t vote.

The question now is whether the current Government is willing to go against that so-called “fascist”, or anti-democratic sentiment, and give prisoners the right to vote. Previously, Little had made it clear that the Government was unenthusiastic about giving votes back to prisoners, saying that the issue wasn’t a priority.

There’s a core philosophical – or values – issue at play, that Labour and National politicians seem to be in broad agreement over: that voting is a privilege not a human right. Across the political spectrum, nearly all politicians are endorsing the commonly held view that an individual’s right to democracy is contingent on their good behaviour.

Of course, although Labour and National politicians have a similar philosophy about taking away votes from prisoners, they differ over the circumstances in which this should occur. National wants to retain the current blanket ban on prisoner voting, and Labour’s policy is to ban those serving sentences of more than three years.

Labour’s middle-way position on prisoner voting

The Prime Minister has made it clear this week that she doesn’t believe in giving all prisoners the vote, saying “We accept that prison does strip away a person’s freedoms for a period of time. I don’t think anyone would deny that is one of the roles as part of paying that price to society” – see Derek Cheng’s Jacinda Ardern against blanket right to vote for all prisoners.

For Ardern, a line can be drawn between those prisoners who are worthy of the right to vote and those who aren’t, concluding “The balance is about right at three years.” And responding to the question of whether all prisoners should be given the right to vote, Ardern has also pointed out: “There hasn’t been carte blanche voting rights for decades for all prisoners as the Waitangi Tribunal recommend”.

On the AM Show, Andrew Little elaborated on the logic of giving the vote to some prisoners but not others: “I think there was always an exception, certainly since the 1990s, for prisoners on short-term sentences because eventually, they were going to come out. The argument was they should have a say on the people who are running the country they are going to be entering into once they get to the end of their prison sentence.”

Similarly, elsewhere Little has explained that Labour’s position on which prisoners should get the right to vote relates to the timing of the electoral cycle, and when that prisoner is due to be released: “there is a rationale to say that if you’re in prison and during the course of an electoral term you’re going to be released then you have a right to say who is governing the country”.

Little’s logic, however, would also mean giving the vote to those long-term prisoners set to be released at some time during the cycle of the next Parliament.

Why has the prisoner voting rights issue arisen again?

The 2010 extension of the ban on prisoner voting continues to receive scathing edicts from judicial bodies. The first to declare the ban to be a problem was the High Court in 2015, then came the Supreme Court last year, and on Monday the Waitangi Tribunal released “He Aha Perā Ai? The Māori Prisoners’ Voting Report”.

This report is covered very well in Derek Cheng’s article, Banning prisoners from voting hits Māori harder: Waitangi Tribunal, which explains the report’s findings that the ban “had disproportionately hurt Māori and breached the Crown’s Treaty of Waitangi obligations”.

The article explains how, because of disproportionate incarceration rates, Māori are more likely to be taken off the electoral roll. This was already a problem before the voting ban was extended in 2010, but was made much worse: “In 2010, Māori were 2.1 times more likely to have been removed from the electoral roll than non-Māori. In 2018, they were 11.4 times more likely.”

Among other recommendations, the Waitangi Tribunal report therefore urged that the entire ban on prisoner voting be lifted. Andrew Little responded immediately to say that the Government would consider this option, but would also look at the possibility of simply repealing the 2010 legislation, leaving only longer-term prisoners unable to vote – see Māni Dunlop’s report, Call for repeal to law banning prisoners from voting.

According to this article, Little believed that the Tribunal had made a “compelling” case and action was likely: “My hope would be that we would take some action sooner rather than later. Up until now addressing this issue hasn’t been seen as a priority, but I think the benefit of the Supreme Court decision and now with the Waitangi Tribunal report – it is an issue we have to consider.”

A number of voices have come out in favour of abolishing the ban on prisoner voting. Writing today on the Newsroom website, constitutional law lecturer Edward Willis argues that the Government has been handed an historic opportunity to do the right thing, given that the Waitangi Tribunal report has authoritatively shown the ban on voting is both “unconstitutional” and “officially racist”. He says the latest report, together with previous judicial findings, “casts a long shadow over any Government that claims to respect our fundamental rights. It can’t make that claim in any genuine sense until the ban is repealed. And it knows it” – see: Prisoner voting a ‘moment’ in NZ constitutional history.

Similarly, law professor Andrew Geddis has argued that all sides of politics should accept the challenge to fix this problem, as the latest report “delivers a fierce reminder of the need for urgent change” – see: The Waitangi Tribunal just ripped to shreds a populist, pointless, pernicious law.

Here’s Geddis’ plea for action: “for the government, it’s time to put up or shut up. Shortly after being elected, the attorney general, David Parker, and the justice minister, Andrew Little, made a public commitment to do things differently. Issues like the rule of law and individual rights would get given far greater priority under their watch. Well, here’s where those fine words need to cash out into action.”

An editorial in Stuff newspapers has also expressed the strong view that the right to vote “should be inalienable”, but acknowledges that public sentiment is probably at odds with this  – see: Prisoner voting: the legal case advances; public sentiment not so much.

This newspaper editorial complains that New Zealand politicians and the public are too ready for the country to be signed up to high-minded conventions and constitutional safeguards without the intention of actually abiding by them. For example, “New Zealanders really need to work out whether the Bill of Rights is exactly that, or really more of a liberal wishlist, the functional authority of which depends greatly on which party is in power, and what the prevailing popular sentiment might be.”

What happens next?

It is clear that the National Party is not going to vote to reverse the blanket ban on prisoner voting, let alone give all prisoners the right to vote. Like Labour, they are well aware that the majority of public opinion is likely to be against such a move – see Derek Cheng’s National won’t support granting prisoners voting rights.

In this article, National leader Simon Bridges states his core philosophical belief about voting rights: “We will oppose change. National believes that if the crime is serious enough for someone to go to jail and lose their liberty, they should also, while in jail, lose the right to vote”. And in terms of the constitutional decision-making question he states: “Ultimately this isn’t a legal question. It’s one of values. Parliament is supreme and gets to work out its values in law.”

In contrast, the same article states that the Greens want a complete reversal of the ban: “Green Party justice spokeswoman Golriz Ghahraman plans to put up an amendment to the Electoral Amendment bill currently before the Parliament to allow prisoners to enrol.”

If Labour and the Greens want to give voting rights back to prisoners, they will still have to persuade New Zealand First to support them. Winston Peters is currently refusing to state his party’s position, and Jo Moir reports: “Peters said his caucus would discuss the issue of prisoner voting when they met next week but he couldn’t promise they’d make a final decision” – see: NZ First tightlipped on prisoners’ voting rights.

Peters is giving little away about what their stance might be: “There are certain aspects of it which don’t make any sense no matter what your view on law and order is or what your view on punishment is. But I want my caucus colleagues to have a full-scale discussion of it and then we’ll tell you what our answer is.”

Peters has also floated the possibility of giving prisoners the right to stay on the electoral roll, but not allow them to physically cast a vote. This may at least deal with the problem identified in the Waitangi Tribunal report of prisoners being taken off the electoral roll while in prison and never returning to it once out of jail.

Similarly, the Stuff newspaper editorial, above, also raises the possibility of various compromises being developed by the Government: “Quite likely, there may be something coming by way of a sop. Perhaps looking at encouraging and simplifying re-enrolment. A stronger, justifiable and politically achievable measure would be re-setting the bar to distinguish between crimes of sufficient, and insufficient, severity.”

Finally, the issue of prisoner voting rights is an international one, with the latest proponent being US Presidential candidate nominee Bernie Sanders – you can watch his very impressive arguments here: Why Bernie Sanders wants to give voting rights to incarcerated Americans. And for an interesting backgrounder to this, and prison voting rights in the US in general, see The Democratic debate over prisoners’ voting rights, explained.

MIL OSI AnalysisEveningReport.nz