International law sets out basic principles for electoral democracy, including the right of citizens to vote. Under Article 25 of the International Covenant on Civil and Political Rights (ICCPR), for example, every citizen has the right to vote and that right may not be subject to discrimination on the basis of race, sex, religion and other enumerated categories or to unreasonable restrictions.72 As a party to the ICCPR, the United States has accepted its provisions as binding on both federal and state governments as the law of the land.73
The U.N. Human Rights Committee, which reviews adherence to the ICCPR, has affirmed that Article 25 lies at the core of democratic government based on the consent of the people and thatrestrictions on the right to vote should only be based on grounds that are objective and reasonable.74 Acknowledging the existence of criminal disenfranchisement laws, the committee has stated that [i]f conviction for an offence is the basis for suspending the right to vote, the period of such suspension should be proportionate to the offence and the sentence.75 It has consistently frowned on and tried to limit the reach of criminal disenfranchisement laws that it has reviewed.76
Although the Human Rights Committee has not addressed itself to criminal disenfranchisement laws in the United States,77 there is little doubt it would conclude that laws excluding ex-convicts from voting for life are unreasonable and disproportionate. A strong argument can also be made on similar grounds that laws depriving all persons of the right to vote while in prison, on probation or on paroleregardless of the underlying offenseare also inconsistent with Article 25. The international law scholar Karl Josef Partsch, for example, flatly rejects blanket criminal disenfranchisement provisions, asserting that an exclusion from the vote may be reasonable only if it has been pronounced by a judge for a certain time, in connection with punishment for some particular offense, for instance those connected with elections or for high treason....78
The racially disproportionate impact of disenfranchisement laws in the United States is also inconsistent with the principles of non-discrimination contained in the ICCPR and in the Convention on the Elimination of All Forms of Racial Discrimination (CERD), an international treaty adopted for the purposeof more effectively combating race-based discrimination that the United States ratified in 1994.79 Article 25 of the ICCPR specifically enjoins racial discrimination with regard to electoral rights.80 CERD also requires states parties to guarantee, without distinction as to race, color or national or ethnic origin, [p]olitical rights, in particular the right to participate in electionsto vote and to stand for electionon the basis of universal and equal suffrage,...81 CERD wisely does not impose the requirement of discriminatory intent for a finding of discrimination. It requires states parties to eliminate laws or practices which may be race-neutral on their face but which have the purpose or effect of restricting rights on the basis of race. Regardless therefore, of whether they were enacted with racial animus, U.S. criminal disenfranchisement laws appear to be precisely the kind of laws condemned by CERD: they unnecessarily and unjustifiably create significant racial disparities in the curtailment of an important right.82
72 Article 25 reads, Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in article 2 and without unreasonable restrictions: (a) To take part in the conduct of public affairs, directly or through freely chosen representatives; (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; (c) To have access, on general terms of equality, to public service in his country. The legislative history of Article 25 indicates that the ICCPRs framers considered voting restrictions based on age, mental capacity, and minimum residency requirements to be reasonable. Criminal disenfranchisement was hardly mentioned. At the time the ICCPR was drafted, electoral democracy was not practiced by many countries, and barriers to voting that today are widely considered illegitimate were prevalente.g., exclusion of ethnic groups, women, illiterates. Interestingly, the U.S. delegate mentioned the exclusion of illiterates in the U.S. as an example of a legitimate restrictiona practice which is now unconstitutional in the U.S. and which undoubtedly would no longer be deemed reasonable under a contemporary understanding of democracy. E/CN.4/SR.364, at 14.
73 International Covenant on Civil and Political Rights, G.A. res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force March 23, 1976, Art. 25. The U.S. ratified the ICCPR on June 8, 1992.
74 General Comment Adopted by the Human Rights Committee under Article 40, Paragraph 4, of the ICCPR, CCPR/C/21/Rev.1/Add.7, August 27, 1996, Annex V (1).
76 During the committees consideration of a report from Senegal, for example, a member expressed concern that the countrys laws were excessively strict because persons sentenced to personal restraint or penal servitude were deprived of the right to vote. He also pointed out that rights contained in article 25...could not be withdrawn for life. Consideration of Report by Senegal to the Human Rights Committee, CCPR/C/37/Add.4, April 7, 1987. In reviewing the periodic report of Luxembourg, the committee suggested that the country consider abolishing the deprivation of the right to vote as part of legitimate punishment. Consideration of Report by Luxembourg to the Human Rights Committee, CCPR/C/79/Add.11, December 28, 1992, D (10). Addressing voting restrictions in laws in Hong Kong, the committee expressed concern that laws depriving convicted persons of their voting right for periods of up to ten years may be a disproportionate restriction of the rights protected by Article 25. See, Human Rights Committee, Comments on United Kingdom of Great Britain and Northern Ireland (Hong Kong), U.N. Doc. CCPR/C/79/Add.57 (1995), para. 19.
77 The existence of such laws was noted in the U.S. report to the Human Rights Committee. Initial report of the U.S. to the Human Rights Committee, CCPR/C/81/Add.4, August 24, 1994. In its brief discussion of U.S. compliance with Article 25, the committee focused on other aspects of U.S. elections, e.g. campaign financing costs, and did not analyze the disenfranchisement provisions. Consideration of the U.S. Report to the Human Rights Committee: Comments of the Human Rights Committee, CCPR/C/79/Add.50, April 7, 1995.
78 Karl Josef Partsch, Freedom of Conscience and Expression, and Political Freedoms, in Louis Henkin, ed., The International Bill of Rights: The International Covenant on Civil and Political Rights, (1981).
79 International Convention on the Elimination of All Forms of Racial Discrimination, 660 U.N.T.S. 195, entered into force Jan. 4, 1969, Art. 5(c). The United States ratified CERD on October 21, 1994.
80 Article 2 of the ICCPR also obliges states parties to respect recognized rights without distinction of any kind, such as race....
81 See CERD, Art.5 (c).
82 See CERD, General Recommendation XIV (42) on article 1, paragraph 1, of the Convention. See also, Theodor Meron, The Meaning and Reach of the International Convention on the Elimination of All Forms of Racial Discrimination, 79 American Journal of International Law, American Society of International Law, Washington, D.C., April 1985, pp. 283, 287-88.