Aren’t Can’t Don’t: The ban on prisoners voting is the worst kind of anti-democratic law – harsh, disproportionate and fundamentally at odds with the idea that human rights belong to all of us, write Tania Sawicki Mead and Ashlesha Sawant of JustSpeak

Many New Zealanders would likely vote for fairness as our foundational virtue as a country. But when it comes to the question of who gets to decide the laws that govern them or the people who represent them, the current situation is anything but fair.

In 2010, National MP Paul Quinn introduced a member’s bill to parliament that saw the complete removal of voting rights for prisoners, regardless of how long the sentence. This meant that anyone incarcerated for any period of time was removed from the electoral roll, and required to re-enrol when they acquired a permanent address out of prison.

It’s the worst kind of anti-democratic law – harsh, disproportionate and fundamentally at odds with the idea that human rights belong to all of us. We think it needs to change, and we’re calling on parliament to make that happen.

This year, New Zealand celebrated the 125th anniversary of being the first in the world to allow women their right to vote. While this was rightfully feted by many, the fact that currently there is a large group of New Zealanders, both men and women, who have been shut out of our democracy has been fundamentally overlooked. Tens of thousands of prisoners have been denied, without good reason, one of the most basic and fundamental human rights: the right to vote.

Quinn’s argument at the time in favour of the bill was that people who violate the social contract by breaking the law should be punished by being denied the right to vote, as they no longer deserved it. But we really need to unpack the idea that prisoners are somehow less deserving than others of basic human rights.

Firstly, the suggestion that prisoners must be punished needs to be contextually assessed. It’s important to understand that this “social contract” and its enforcement is underpinned by colonialism. Colonisation still influences much of New Zealand’s power structures, which affect different people in different ways. We cannot ignore the fact that Pākehā settlers imposed a British legal system on Māori, which is inconsistent with tikanga and conflicts with the structures of Te Ao Māori. This has meant that despite Māori making up just 15% of New Zealand’s population, they account for 51% of our prison population. Research has repeatedly found this overrepresentation to be a result of institutionalised racism, which is a pretty significant violation of the social contract that our country is founded on, the Treaty of Waitangi. On a practical level the voting ban disproportionately affects Māori participation in elections and further disenfranchises a group that already struggles with voter turnout.

No one is denying that there should be accountability for committing harm – we are all responsible for our actions. However, we as a society already punish people who break the law – albeit with little demonstrated benefit – by sending them to prison. Despite the massive harms that prison inflicts on many people inside, we hope that when they are released they are rehabilitated as contributing members of society. It is nonsensical and counter-productive to further inflict punishment by removing the right to vote.

Removing someone from the electoral roll, even if they’re only serving three months in prison, also makes it much harder for them to re-engaged in our political system, and leads to further detachment from our governing bodies and society as a whole. Disenfranchising prisoners creates a group of people who are subject to the laws, and punished under them, but have no input in their creation, alteration, or operation. How can we hope to foster a sense of community and successfully reintegrate people, if they are largely excluded from having any input in the shape and form of their communities?

While it’s true that rights contained in the Bill of Rights are subject to limitations, these limitations must be justified. In Taylor v AG, the Supreme Court declared that the 2010 Amendment cannot be demonstrably justified in a free and democratic society so as to limit the right to vote found in our Bill of Rights. The attorney general’s report found the 2010 Amendment to be both under and over inclusive and as being disproportionate to its objective.  In effect, the court is asking – what exactly is the objective we’re trying to achieve by disenfranchising thousands of New Zealanders?

Denying people the right to vote does nothing to achieve deterrence or rehabilitation, but instead penalises 10,435 New Zealanders by taking away a right which is inherent to their citizenship. After all it’s a right and not a privilege that has been so thoughtlessly revoked to satisfy our punitive urges. Prisoners are already a marginalised group in society who are mercy to the whims and decisions of others, and so the further curtailment of their rights should be subject to serious scrutiny.

It’s also important to consider what the ban has achieved thus far. There’s no evidence that the removal of this human right has reduced the rate of offending. Instead of achieving deterrence, it has has likely further alienated people and made it harder for them to constructively engage with their communities. If we instead encourage political engagement and give them the chance to have a say in the decisions that affect them and their families, we offer them a chance to reconnect with society.

Increasingly there is a global movement in favour of the true universal suffrage, which includes the re-enfranchisement of prisoners. In November, nearly 65% of voters in Florida voted to restore voting rights to over 1.4 million people who had been kept out away from the polls due to previously being sentenced. The campaign was full of stories of those who felt excluded from the opportunity to participate in the decisions being made about their country. Most democracies around the world either allow prisoners to vote or have recently reinstated their right to do so. New Zealand lags behind in comparison as one of the handful of countries who still have a blanket ban.

As Professor Andrew Geddis so thoughtfully put it back in 2010, the “argument that prisoners just are not morally worthy to vote hearkens back to old ideas about just what the vote represents”, when it was limited to male property owners over 21. We have come a long way since then, in that we believe all human beings are inherently equal.

A genuinely inclusive democracy, and the right to vote that comes with it, is of too great a importance to be unjustifiably undermined. Voting allows people to represent themselves, and their views, in our country’s political conversation – a right that all New Zealand citizens have, and should have. In order for our country to become a truly representative democracy, we must allow the voices of all New Zealanders to be heard.

Read more about the campaign and sign the petition here.

Aren’t Can’t Don’t is a Spinoff-Storybox series, made possible thanks to funding from New Zealand on Air