"Hirst v. United Kingdom (No. 2): A First Look At Prisoner Disenfranchisement By The European Court Of Human Rights"

William Powers has posted this draft on SSRN. Here is the abstract:

The case of Hirst v. United Kingdom (No. 2) examines the issue of prisoner disenfranchisement in the context of the European Court of Human Rights. The Court in this case treats the right to vote, even for prisoners, as a fundamental right that deserves the highest degree of protection in democratic societies.

This paper explains why the case of Hirst (No. 2) is an important marks an implicit shift in voting rights jurisprudence. The European Court of Human Rights established in this case that it would examine every instance of prisoner disenfranchisement with a heightened scrutiny reserved for the most fundamental of rights. This is in sharp contrast to American courts which have typically deferred to the states' police power and explicit right under the Fourteenth Amendment to limit the right to vote of individuals convicted of crimes.

By requiring member states to exercise restrictions on the right to vote proportionately, the European Court of Human Rights has set forth a new way of viewing voting rights that will certainly effect all European countries and will likely have an effect in the United States as well.

Posted by Rick Hasen at June 29, 2006 02:52 PM