WHAT IS THE LAW?
Article 21(3) of the Universal Declaration on Human Rights provides that:
“The will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures.”
Article 25(b) of the International Covenant on Civil and Political Rights (“ICCPR”) provides that:
“Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in article 2 and without unreasonable restrictions …:
(b) To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors”.
The UN Human Rights Committee has explained more about the right to vote under Article 25 in its General Comment No 25.
Article 5(c) of the International Covenant on the Elimination of Racial Discrimination provides for political rights, “in particular the right to participate in elections-to vote and to stand for election-on the basis of universal and equal suffrage”.
Article 7(a) of the Convention on the Elimination of All Forms of Discrimination Against
Women provides that:
“States Parties shall take all appropriate measures to eliminate discrimination against women in the political and public life of the country and, in particular, shall ensure to women, on equal terms with men, the right:
(a) To vote in all elections and public referenda and to be eligible for election to all publicly elected bodies”
Article 29(1) of the Convention on the Rights of Persons with Disabilities provides that:
“States Parties shall guarantee to persons with disabilities political rights and the opportunity to enjoy them on an equal basis with others, and shall undertake to:
a. Ensure that persons with disabilities can effectively and fully participate in political and public life on an equal basis with others, directly or through freely chosen representatives, including the right and opportunity for persons with disabilities to vote and be elected, inter alia, by:
i. Ensuring that voting procedures, facilities and materials are appropriate, accessible and easy to understand and use;
ii. Protecting the right of persons with disabilities to vote by secret ballot in elections and public referendums without intimidation, and to stand for elections, to effectively hold office and perform all public functions at all levels of government, facilitating the use of assistive and new technologies where appropriate;
iii. Guaranteeing the free expression of the will of persons with disabilities as electors and to this end, where necessary, at their request, allowing assistance in voting by a person of their own choice”
In Europe, Article 3 Protocol No 1 to the European Convention on Human Rights requires countries:
“to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.”
The American Convention on Human Rights in Article 23(1)(b) states that every citizen shall enjoy the right:
“to vote and to be elected in genuine periodic elections, which shall be by universal and equal suffrage and by secret ballot that guarantees the free expression of the will of the voters”.
Article 13(1) of the African Charter on Human and Peoples’ Rights (Banjul Charter) states that every citizen shall have the right to participate freely in their government.
Article 24(3) of the Arab Charter on Human Rights states that every citizen has the right:
“To stand for election or choose his representatives in free and impartial elections, in conditions of equality among all citizens that guarantee the free expression of his will.”
While there is no binding regional human rights instrument in Asia, the ASEAN Human Rights Declaration 2012 provides, in Article 25(2):
“Every citizen has the right to vote in periodic and genuine elections, which should be by universal and equal suffrage and by secret ballot, guaranteeing the free expression of the will of the electors, in accordance with national law.”
International and Regional cases
UN Human Rights Committee
This Committee makes determinations under the ICCPR.
Matyus v Slovakia (2002)
The complainant argued that his rights were violated by Slovakia as he needed substantially more votes to be elected to the town council than candidates in other districts. This was because the number of representatives in each district was not proportional to the number of inhabitants therein. The Committee found a violation of Article 25 as the difference in numbers of voters per elected representative did not give an equal opportunity to all voters to influence the outcome of the election.
Gillot et al v France (2002)
This case related to determinations of eligibility to vote in referenda in New Caledonia for independence from France. 21 French citizens who lived in New Caledonia were excluded from voting in the referenda. The Committee found that this restriction did not violate Article 25. This was because the criteria for voting in the referenda were reasonable, on the basis that they were designed to ensure that only people with a long-standing connection to the territory were able to vote on that territory’s independence.
The complainants were prisoners who were excluded from voting in Russian elections in 2003 and 2004. The Committee found that this blanket ban on the voting rights of prisoners breached Article 25.
UN CRPD Committee
This committee makes decisions under the Convention on the Rights of Persons with Disabilities.
Bujdosó v. Hungary (2013)
Under the Hungarian Constitution, people under guardianship were automatically excluded from voting, unless a judge determined that they had the mental capacity to vote. The Committee ruled that this restriction on the right to vote for people with intellectual disabilities violated article 29 of the Convention on the Rights of Persons with Disabilities. The Committee held that excluding anyone from voting on the basis of “perceived or actual disability” was discrimination, whether it was applied as a general rule or following an individual assessment. Countries must ensure that all people with disabilities can exercise their right to vote, including by providing assistance where necessary and through specially designed voting procedures
European Court of Human Rights
The European Court makes decisions under the European Convention on Human Rights.
Hirst (No. 2) v. the United Kingdom 6 October 2005
The complainant in this case was sentenced to life imprisonment and as such was disenfranchised (unable to vote) during his imprisonment by section 3 of the UK’s Representation of the People Act 1983. This law banned all people serving a sentence in prison from voting. The Court found the UK to be in violation of Article 3 of Protocol No. 1 because of the automatic restriction on the complainant’s right to vote because he was a prisoner.
Alajos Kiss v. Hungary 20 May 2010
On the basis of his mental illness, the complainant was placed under protective guardianship, which reduced his legal capacity to act independently. The Hungarian Constitution provided for an automatic and general restriction on the right to vote of persons placed under such guardianship. The Court found this restriction breached Article 3 of Protocol No 1. The Court held that the disenfranchisement was intended to serve the legitimate aim of ensuring that only those capable of assessing the consequences of their decisions could take part in public life. However, such blanket bans on the right to vote of all persons under protection, regardless of their actual mental faculties, violated the Convention.
Scoppola (No. 3) v. Italy 22 May 2012
The complainant in this case was convicted and sentenced to life imprisonment for murder. Under Italian law, his life sentence included a lifetime ban on his right to vote. The Court found no violation of the Convention as Italian law only banned prisoners from voting who had served particular corruption offences, and those sentenced to more than three years in prison. Therefore, the ban only applied to those convicted of serious offences. As such, there was no general, automatic measure of the kind that led the Court to find a violation in the Hirst (No. 2) case (see above).
Sitaropoulos and Giakoumopoulos v. Greece 15 March 2012
At the time of the 2007 parliamentary elections in Greece, no provisions were made to facilitate expatriate voting. As such, the complainants, Greek citizens who lived in France, were unable to exercise their right to vote in the Greek elections. The Court found that international human rights law did not require countries to make arrangements to enable citizens living abroad to vote.
National laws and cases
Substantive right to vote
The Australian Constitution creates a system of representative government and public franchise. However, the Constitution does not expressly guarantee a right to vote. The relevant sections of the Constitution include sections 7, 24 and 41. In King v Jones (1972) 128 CLR 221, the High Court found that there was no constitutional right for people under 21 years of age to vote in federal elections. Section 41 has been interpreted by the High Court as a “transitional provision” after federation (in 1901) which no longer applies to any living person (see R v Pearson; Ex Parte Sipka (1983) 152 CLR 254).
The most recent High Court decisions have overturned restrictions on voting and practical obstacles in Federal legislation on the basis of it being incompatible with the Constitution.
Vicki Lee Roach v Electoral Commissioner (2007) 233 CLR 162
In this case the High Court held that a ban on voting for all prisoners, introduced by Federal legislation in 2006, breached sections 7 and 24 of the Constitution. The ban was found to be inconsistent with the system of representative and responsible government created by the Constitution. The Court accepted that the right to vote could be limited where there were substantial reasons for doing so, for example on the basis of citizenship. The Court upheld the pre‑2006 legislation, under which people serving prison sentences of longer than three years are not allowed to vote.
Rowe v Electoral Commissioner (2010) 243 CLR 1
The High Court in Rowe declared invalid certain procedural restrictions on the right to vote. New provisions of the Commonwealth Electoral Act had shortened the enrolment period for unregistered voters to register in time to be able to vote in an upcoming election. The “grace period” had been 7 days after an election was called– the legislation reduced introduced a requirement of same-day registration. The Court held that these provisions violated the requirement of representative government in sections 7 and 24 of the Constitution. The Court held that the provisions unreasonably disenfranchised voters. Evidence was introduced in the case indicating that the voting eligibility of about 100,000 people would be deprived of their right to vote due to the legislation.
The right to vote in Commonwealth elections is governed by the Commonwealth Electoral Act 1918. Section 93 of this Act sets out the categories of persons who are eligible to vote and provides that persons in certain categories are ineligible. The States and Territories have separate electoral legislation.
Voting is compulsory in Australia. In countries with compulsory voting, it is deemed a citizen’s civic duty to vote. This is, arguably, a breach of international human rights law, as compulsory voting may be inconsistent with the freedom associated with political participation, such as free speech and association. The Australian High Court has upheld compulsory voting as constitutional in Judd v McKeon (1926) 38 CLR 380 and Faderson v Bridger (1971) 126 CLR 271.
Requiring photo-identification to vote
Another issue in Australia and abroad is legislation requiring photo-identification to vote. Such laws are generally introduced to prevent voter fraud. However, they have a disproportionate and discriminatory impact on poor, elderly, minority and/or disabled citizens, who are more likely to be disenfranchised because they do not have a passport, driver’s license, or state issued identification.
In 2014, the Queensland government passed the first voter ID laws in Australia. In the USA, the Supreme Court upheld mandatory photo ID laws in Crawford v. Marion County Election Board 128 S. Ct. 1610 (2008). See also the related US Supreme Court decision of Veasey v. Perry 574 U. S. ____ (2014), in which the Court allowed Texas to enforce its strict voter ID laws.
Equality in voting
Human rights law prescribes ‘equal suffrage’, which means that all votes should have the same value. While different types of electoral systems are permissible, they must all guarantee that the vote of one elector is basically equal to the vote of another. For example, the drawing of electoral boundaries and allocation of votes should not discriminate against or disadvantage any group of voters. Two leading Australian High Court cases have addressed these issues.
Attorney-General (Cth) (Ex rel McKinlay) v Commonwealth (1975) 135 CLR 1
In this case the Australian High Court considered whether the Constitution included an implied term requiring federal electoral districts to contain equal numbers of voters. The Court held that the Constitution does not strictly require electoral districts to contain equal numbers of voters, but that an extreme degree of inequality would breach the Constitution.
McGinty v Western Australia (1996) 186 CLR 140
This case affirmed that neither the Australian nor Western Australian Constitutions contained implied terms requiring strictly equal numbers of voters within electoral districts. Both Constitutions only guarantee limited rights of voting equality, rather than strictly equal numbers of voters within electorates.
In the USA, Reynolds v Sim 377 US 533 (1964) is a landmark case in which the US Supreme Court ruled that the voting districts of state legislatures must have roughly equal populations so as to provide substantially equal representation for all citizens regardless of where they live. The decision established what is known as the "one person, one vote" rule and was based on the Equal Protection Clause in the Fourteenth Amendment to the US Constitution.
Another issue regarding the design of electoral districts is “gerrymandering”. While each vote may be given the same value, voters may be grouped in electoral districts designed in a way that gives one political party or group an unfair advantage over others. The US Supreme Court has previously upheld such designs, saying that discrimination must be proven in order to violate the Constitution’s Equal Protection Clause: see Davis v Bandemer 478 US 109 (1986).