Ethics & Global Politics

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Voting from prison: against the democratic case

for disenfranchisement

Pablo Marshall

To cite this article: Pablo Marshall (2018) Voting from prison: against the democratic case for
disenfranchisement, Ethics & Global Politics, 11:1, 1498696

To link to this article: https://doi.org/10.1080/16544951.2018.1498696

© 2018 The Author(s). Published by Informa

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Published online: 24 Jul 2018.

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ETHICS & GLOBAL POLITICS
2018, VOL. 11, 1–16
https://doi.org/10.1080/16544951.2018.1498696

ORIGINAL ARTICLE

Voting from prison: against the democratic case for

disenfranchisement
Pablo Marshall
School of Law, Universidad Austral de Chile, Valdivia, Chile

ABSTRACT ARTICLE HISTORY

This article critically analyses and discards two democratically Received 17 October 2017
justified cases for the disenfranchisement of prisoners. These Revised 7 June 2018
cases are offered in relatively recent published works by Peter Accepted 10 June 2018
Ramsay and Claudio López-Guerra, which – unlike other KEYWORDS
approaches – take the democratic challenge to disenfranchise- Disenfranchisement; prison;
ment very seriously. Their arguments are based on a diagnostic right to vote; coercion; civil
of the conditions of imprisonment, which concludes that prison- liberties
ers’ electoral participation is problematic for democracy because it
endangers electoral integrity. This article argues against their posi-
tions and suggests that for prisoners to be treated as democratic
citizens they must be recognized as electors and given an oppor-
tunity to vote. Firstly, it will be affirmed that prisoners cannot be
made responsible for the conditions of their imprisonment and
that prisons must adequately meet democratic requirements. It
will also be affirmed that, if these requirements were fulfilled, the
conditions of prisoners in a democratic prison would not be
sufficiently different, in relevant aspects, from the conditions of
other enfranchised people. Secondly, it will be asserted that, at
least at to some extent, their arguments underestimate the possi-
bilities of prison reform and electoral regulation to overcome the
democratic problems of coercion and manipulation, which they
target as two main problems of enfranchisement.

Introduction
Many convicted offenders around the world do not vote in elections; they have been
legally deprived of their voting rights as a consequence of their criminal convictions.
Most countries restrict this measure to those serving prison sentences. That is why this
practice is usually referred to as prisoner disenfranchisement. Theoretically, this prac-
tice embodies a tension between the idea of universal democratic participation and the
exclusion experienced by those who break the most serious rules prescribed by a
community. This article addresses this tension, which has been mainly articulated in
legal terms as a conflict between the fundamental right to vote and the public’s interest
in excluding prisoners from the exercise of said right. The traditional legal claim that
disenfranchisement is a legitimate practice has been based on the notion that the

CONTACT Pablo Marshall pmarshall@uach.cl School of Law, Universidad Austral de Chile, Campus Isla Teja s/
n, Valdivia, Chile
© 2018 The Author(s). Published by Informa UK Limited, trading as Taylor & Francis Group.
This is an Open Access article distributed under the terms of the Creative Commons Attribution-NonCommercial License (http://
creativecommons.org/licenses/by-nc/4.0/), which permits unrestricted non-commercial use, distribution, and reproduction in any
medium, provided the original work is properly cited.
2 P. MARSHALL

electorate has to hold a minimum degree of civic virtue (and that prisoners are not
virtuous) (see e.g. Manfredi, 2009) or on the idea that disfranchisement is an expression
of a legitimate additional punishment or civil sanction for serious offenders (see e.g.
Hampton, 1998). This article departs from the analysis of framing the problem of
disenfranchisement in a legal and constitutional perspective, and adopts the more
flexible theoretical approach. It also departs from the premise that disenfranchisement
must be justified in terms of electoral capacity or additional punishment.
Ramsay and López-Guerra argue that the conditions of limited or non-existent
freedom in which prisoners live are not compatible with the claim that prisoners are
members of an authentic self-governed community. Thus, persons living under such
conditions must be excluded from the franchise to protect the purity of the electoral
process. This argument is referred to as the democratic case for disenfranchisement or
democratic disenfranchisement because, unlike arguments based on punishment and
capacity, it is based on the premise of the value of prisoners’ democratic participation
and embraces democracy, not virtue or desert, as the value that is served by
disenfranchisement.1 The main implication of this difference is that democratic disen-
franchisement, due to its commitment with democracy, seems less vulnerable to criti-
cism which indicates that disenfranchisement embodies punitive forms of degradation
and political exclusion (see e.g. Pettus, 2013).
The arguments of Ramsay and López-Guerra are presented in the first section. They
are then critically examined in the following sections, where two serious problems that
affect the premises and consequences of their arguments are brought forth. The second
section introduces the need for democratic conditions of imprisonment, and the third
section argues that electoral coercion and manipulation are limited threats to electoral
integrity. Finally, the last section of the article argues that there is no strong case for
disenfranchisement in the context of a community with an inclusionary democratic
commitment; this is because democratic disenfranchisement is affected by the exclu-
sionary and degrading consequences resulting from justifications of disenfranchisement
based on punishment or capacity.

A democratic case for prisoner disenfranchisement

The arguments offered by Peter Ramsay and Claudio López-Guerra contend that
disenfranchisement must be justified in terms of the regulation of an electoral franchise
that maintains the integrity of the democratic electoral process. Their justification
places the rationale of prisoner exclusion precisely on the subordination they experience
and the restriction of liberty to which they are subjected as prisoners. This constitutes a
special argument for two reasons: first, they explain disenfranchisement as a conse-
quence of imprisonment and not as a consequence of the criminal conviction,
and, second, they argue that democracy demands disenfranchisement, rather than
deeming disenfranchisement to be a practice that runs against democracy.

1
A different case for democratic disenfranchisement has been offered by Altman (2005) and Büllow (2016). They have
focused on the justification of a community’s collective right to disenfranchise convicted criminals, instead of on
certain goals that are pursued by disenfranchisement as an institutional practice. They have recently been under
criticism by Matt S. Whitt (2017).
 ETHICS & GLOBAL POLITICS 3

Ramsay’s theory of democratic disenfranchisement

Ramsay (2013a, 2013b) argues that prisoner disenfranchisement is the natural conse-
quence of a conception of democracy committed to the idea of self-government.
According to Ramsay, offenders currently serving sentences in prison are paradigma-
tically deprived of civil liberties and therefore enfranchising them would subvert the
democratic idea of a self-governing community composed of subjects who are consid-
ered equally free. Disenfranchisement is, thus, the logical consequence of imprisonment
in democracy. He sustains that without disenfranchisement the right to vote is depo-
liticized and civil liberties are not regarded ‘essential’ for democracy.

Representative democracy, civil liberties and the right to vote

Ramsay’s proposal rests in a conception of democracy that implies a ‘rigorous protec-
tion of civil liberties’ and where ‘the right to vote and to stand for election must be
complemented with freedom of conscience, freedom of speech, freedom of association,
assembly and movement’ (2013a, 426). His commitment to civil liberties implies, firstly,
that only those who have committed an offence which involves a ‘deliberate violation of
the rights necessary for democratic citizenship’ should go to prison, setting the thresh-
old for incarceration relatively high and openly repudiating the trend of incarceration
based on the safeguard of a presumptively fundamental right to security (Ramsay,
2013c). For Ramsay, disenfranchising prisoners is based on the importance of safe-
guarding the freedom of citizens from discretionary actions of the executive branch. His
view implies the critical claim that disenfranchisement ‘is not unfair to the prisoner,
unless the imprisonment itself is unfair’ (2013a, 422).
Secondly, he sustains that, under a democracy, citizens must be in a position of
independence from the government. This is the central claim of the notion of democ-
racy as being self-government linked to representation, whereby people participate in
democracy by electing representatives. In such a model of democracy, the independence
granted by civil liberties is a crucial requirement for citizens to be able, in certain
respects, to control the government and not the other way around. Civil liberties frame
that independence by allowing citizens to ‘innovate political ideas, debate and propagate
them, organize around them, and so on’ in an ‘uncoerced political process’ (2013c, 226).
In this context, that is, where citizenry is independent from the government and
immune from its control, the elected representatives must represent the will of the
people as they are elected and held accountable by the people. Within this democratic
framework, the right to vote is fundamental because without the vote authorities would
presumably serve their own interests. Civil liberties are also fundamental for democracy
because without them the government, even if it were elected, would exercise an
unlimited control over citizens. The mutual control between citizens and government
in a democracy is therefore equilibrated by civil liberties (which limit the control of the
government over citizens) and voting rights (which enhance the control of citizens over
the government). When civil liberties are seriously limited to the extent of impeding
citizens’ independence from the government, the right to vote does not express the will
of the citizens, rather the will of the government, which is in fact exercising control over
the people (2013c, 223–6). Therefore, the value of voting depends on the protection of
civil liberties.
4 P. MARSHALL

This democratic model contrasts with what Ramsay calls post-democracy. Post-
democracy can be described as an alternative political regime that differs from democ-
racy in two main elements that mirror the elements of democracy as self-government.
First, under post-democracy, ‘a minimalist conception of representative democracy has
[…] entirely marginalised the connection between political representation and the self-
government of the people’ (2013b, 13). Democracy is minimized because there is no
political competition (rather only a ‘contest over technical competency’), and, therefore,
the critical dialogue between representatives and their constituency cannot take place
beyond the margins of political alienation (2013c, 230–1). This, in turn, has an impact
on the second element. In post-democracy, ‘people can be imprisoned when they have
not violated the ‘social contract’ and civil liberty is not regarded as absolutely essential
to political citizenship’ (2013a, 424, 433–4).

Ramsay’s case for democratic disenfranchisement

The opposition between democracy and post-democracy serves as a background to one
case for democratic disenfranchisement. Prisoners can neither freely exercise their civil
liberties nor enjoy independence from the government, and are therefore denied the
preconditions required to participate in collective self-government. Within this context,
the right to vote becomes a mere symbol, unrelated to aspirations for self-government
and linked only to the very thin conception of post-democracy.
First, imprisonment involves, by definition, the suspension of the right to liberty.
This right is the precondition for the exercise of other liberties which frame the process
of deliberation that in turn avails the democratic importance of the right to vote. This
implies that ‘[w]ithout the freedom to innovate, communicate, debate and organize
around political ideas there is no possibility of the people collectively ruling themselves
by being the true authors of the laws that they will obey’ (2013b, 9). Imprisonment
therefore eradicates the possibilities of participation in self-government.
Second, the control that the government exercises over prisoners’ lives – whose
liberties are under the government’s discretionary powers – seems to suggest that the
government can use its influence in its own favour, thereby affecting the integrity of the
democratic process (2013a, 425–6). Manipulation and coercion by the executive branch
can be the result of an illegitimate use of ‘its police powers, vast budgets and patronage’
(2013a, 425). Prisoners are, ‘therefore, unable to influence the preferences of others and
expose their own preferences to the influence of others, except in ways controlled by
executive agents’ (2013a, 429).
By conceding prisoners the right to vote, even if they are free to vote as they wish,
the meaning of the vote is devaluated and understood as a mere post-democratic
activity. This is because prisoners are neither equal nor free from the influence of
executive power. Indeed, the underlying logic of ‘democratic disenfranchisement’ is in
tension with a post-democratic understanding of citizenship, in which citizens do not
need to participate in self-government or exercise any civil liberty beyond the freedom
to inspect the legally permissible range of political products and to sufficiently debate
their merits so that they may make a choice as to which product(s) they would like to
support. Ramsay consequently claims that a voter cannot be in prison because that
would subvert the logic of democratic self-government; the case of a voter being in
prison ‘logically eliminates the civil liberties from democratic citizenship’ (2013b, 9–11)
 ETHICS & GLOBAL POLITICS 5

and ‘implicitly legitimates these anti-democratic conditions by uncritically assuming

their normality’ (2013a, 434). On the contrary, ‘disenfranchisement honours the demo-
cratic rights of all citizens, including those of offenders who have chosen to suspend
their citizenship’ (2013a, 434). In sum, he suggests that those who advocate for prisoner
enfranchisement should advocate the consolidation of a post-democratic regime.

López-Guerra’s argument against voting from prison

Though coming from a different tradition of thought, López-Guerra (2014) has presented
a similar argument. His argument is grounded in a fundamental distinction regarding the
restrictions that can affect prisoners’ right to vote. He argues that the right to vote
includes two dimensions that must be considered for an adequate assessment of disen-
franchisement: first, the right to enfranchisement and, second, the right to have the
opportunity to vote. Restrictions to the first dimension (the right to enfranchisement)
must strictly be reasons of principle. In other words, people excluded from the franchise
do not deserve the entitlement to vote. In contrast, restrictions to the second dimension
(the right to the opportunity to vote) are pragmatic and related to the consequences of
developing mechanisms that allow people the ability to exercise their right to vote (2014,
118–124). According to this distinction, the right to enfranchisement only gives a prima
facie and not a definitive – all things considered – right to vote because this prima facie
can be limited by considerations relative to the operation of the electoral process. In the
concrete case of prisoners, these pragmatic arguments relate to the problems surrounding
a vote from prison and not necessarily with the traditionally punitively framed problem of
prisoners’ voting. Even if in principle prisoners are entitled to cast the ballot, they are still
impeded from doing so for other pragmatic reasons. While the traditional pragmatic
arguments to deny voting from prison are not conclusive and commonly imply precon-
ceptions about prisoners being less worthy members of society, the argument of López-
Guerra against voting from prison is completely different. Similar to Ramsay, he appeals
to the conditions of imprisonment and the relationships generated within prison. Some
context is necessary to introduce his point.
An abusive relationship between authorities and prisoners can lead to a conflict
between (1) the positive democratic value of the inclusion of prisoners in the franchise
and (2) the need to guarantee the value of political equality, which would be under-
mined in those cases in which ‘public authorities coerce or induce prisoners to vote in
specific ways’ (Beckman 2009, 129). Under certain conditions, disenfranchisement
could effectively help to guarantee political equality and electoral integrity, but at the
cost of limiting the inclusion of prisoners within the franchise.
Two kinds of abuse can be identified in cases of electoral coercion committed by
executive authorities. First, the value of political equality is undermined by illegally
granting more votes to the electoral option preferred by the authorities, affecting the
integrity of the election and in certain cases even the final result. Second, coercion also
attacks the autonomy of the prisoners by forcing them to vote and not granting them
the opportunity to form, via critical exercise, their own reasons for voting. They are not
voting in the sense of freely and equally expressing their political views, but only
physically casting ballots according to someone else’s preferences. Disenfranchising
prisoners, therefore, makes the abuse of authority against electoral integrity impossible,
6 P. MARSHALL

but only at the cost of eradicating every possibility for the political autonomy of
prisoners to be expressed. The principle of political equality is protected at the expense
of the prisoners’ political freedom. However, as Beckman (2009, 129) suggests, if it is
acknowledged that it is not the prisoners’ right to vote that causes the problem but the
fraudulent conduct of the authorities, the solution must involve acting against the fraud
rather than against the victims of the fraud. His suggestion is that ‘to a large extent, the
lack of opportunities for political participation can be mitigated by organising the penal
system in the right way’ (124).
López-Guerra (2014) offers a contextual objection to Beckman’s conclusion by arguing
that ‘with the exception of some developed countries, the conditions in many prisons
around the world are such that the risk of coerced voting is very high’ (128). The
possibility of avoiding the electoral abuse, therefore, would depend on the conditions
of the particular prison system and should be decided on a case-by-case basis. In some
cases, electoral fraud may be committed directly by prison authorities under the control
of the government; in other cases, a lack of control over conditions inside the prison may
allow criminal organizations operating inside to sell prisoners’ votes to the highest bidder.
No prison reform can be expected to fully eliminate the factual basis of López-Guerra’s
contextual objection or fully improve prison conditions. Thus, there is a case for disen-
franchisement in those contexts in which prison conditions are likely to lead to voting
fraud and are unlikely to change. However, López-Guerra emphasizes that this is not a
justification for excluding prisoners from the franchise but simply a justification for not
adopting a device to allow voting from prison. Excluding prisoners from the franchise, he
maintains, would send the message that prisoners deserve political exclusion, whereas
the second ‘is an indicator of unacceptable life conditions […which] does not speak
negatively of inmates, but of the society where they live’ (129).
The main difference between the proposals of López-Guerra and Ramsay can be
summarized as follows. López-Guerra considers that the reason to exclude prisoners
from voting is the particular conditions of prisons. Therefore, disenfranchisement must
be evaluated empirically and will depend on the probabilities of electoral coercion in
each prison. On the other hand, Ramsay’s proposal has universal application and points
to the conditions of a lack of independence vis-à-vis the government that affect all those
who are in an institution with the characteristics of a prison. His proposal does not
require an empirical evaluation and would affect even those inmates in prisons with
high standards of respect for human rights.

Prisoners should be treated as citizens

The previous section presented a democratic case for prisoner disenfranchisement
grounded in the arguments developed by Ramsay and López-Guerra. The following
two sections argue against their cases. The decisive question of whether institutions
of democracy must be framed considering the circumstances of prisons, or whether
imprisonment ought to be brought in line with democracy, remains crucial to
address the issue of disenfranchisement. The kinds of relationships that Ramsay
assumes are incompatible with democratic citizenship are not inherent to prisons;
they are similar to relationships found outside of the prison system, even in a
reasonably healthy democratic regime. In a democracy, prisons cannot be
 ETHICS & GLOBAL POLITICS 7

considered a place in which authoritarianism and arbitrariness are tolerated, but

rather as part of a continuum of tensions between state authority and individual
freedom. In particular, this section argues against Ramsay’s claims that prisoners are
necessarily deprived of all dimensions of the right to liberty by the fact of imprison-
ment and that the right to liberty is essential to the enjoyment of all the other
democratic rights. I argue that a democratic punishment must show a commitment
to the exercise of democratic rights within prison.

Towards a democratic prison

Notwithstanding the attractiveness of theoretical models that explain imprisonment as a
disciplinary technique (see e.g. Garland, 1990, ch. 6 & 7), which seems to be at the core
of Ramsay’s description of the reality of prisoners’ conditions, the rationalization of
imprisonment is currently grounded, for the most part, in the discourse of human
rights, which is founded on human dignity (see e.g. van Zyl Smit and Snacken, 2009,
63–85; Lippke, 2002). This discourse has pushed imprisonment towards the narrower
proposition of a measure which does not involve the regulation of all aspects of a
prisoners’ life, ‘creating a climate for the realization of prisoners’ autonomy’ and with
the ‘aims to transform as much as possible these power relations’ found in prison ‘into
juridical relations’ (70–1). The impact of the human rights discourse is true even if
there is a great divide between current prison institutions and an ideal model. It is
correct to say that, consequently, imprisonment can be portrayed as a historical
institutional practice that is on track to be adapted to a democratic framework.
In more concrete terms, from the point of view of a critical project of democratic
punishment, imprisonment must be adapted to democratic principles in order to
constitute a legitimate form of punishment. This means that imprisonment must be
compatible with the recognition of prisoners as members of the community to which
they belong (see e.g. Duff, 2001). For this purpose, a democratic configuration of
imprisonment demands that prisoners still be regarded as both legal persons and
citizens. The delimitation of their legal status and the protection of their rights, on
the one hand, and the preservation of their political rights, on the other hand, are
fundamental for understanding that offenders are being punished for what they have
done and not for what they have become (Foucault, 1995, 251). In contrast, naturalizing
a disciplinary model of prison clashes with the democratic commitment of punitive
institutions, conceptually impeding the acknowledgment that prisoners are equal mem-
bers of our community.2
A first and fundamental step in this regard is to recognize prisoners’ legal status as
rights holders. For this purpose, it is essential to separate the limitation of the
offender’s liberty imposed by the criminal conviction from that residual liberty that
is unaffected by the punishment, especially as the latter can be subject to limitations
2
Corey Brettschneider (2007, 2010) has developed a democratic theory of punishment in which this must be justified to
offenders qua citizens: ‘Society’s interest in security legitimizes punishments that restrict criminals’ freedom of action,
but legitimate punishment also requires a commitment to preserving criminals’ moral status as citizens. This
requirement entails limiting cruel and unusual punishments and preserving democratic rights to the greatest extent
possible’. I generally agree with Brettschneider but I think his argument is not relevant here because it does not focus
in the circumstances of deprivation of liberty that are the core of democratic disenfranchisement, but in the
legitimation of punishment.
8 P. MARSHALL

as a consequence of the needs of prison administration and only for those purposes.
Justificación de este principio. This distinction implies that the offender’s liberty ought
to be considered divisible and that it should be accepted that imprisonment only
affects the offender’s liberty in some regards and not in its entirety (Lazarus 2016).
Framed in other terms, a democratic conception of imprisonment demands that
prisoners be considered rights holders and therefore excludes the radical scenario in
which the prisoners’ status is reduced by depriving them of their entire liberty and
abandoning them to the discretion of authorities. This conception of imprisonment as
the suspension of some aspects of the right to liberty opposes Ramsay’s conception of
imprisonment as a total suspension of the right to liberty and consequential suspen-
sion of other liberties. Designing legal mechanisms to guarantee the prisoners’ enjoy-
ment of liberties and to defend them from arbitrary state interference may throw a
punch to Ramsay’s argument. For example, an independent judicial review system
that oversees whether prisoners’ liberties are being respected could also have the
potential to guide the prison system towards the creation of internal policies which
are more respectful of those liberties. There is no space here to more accurately
develop the functioning and effectiveness of the aforementioned mechanisms that
could be carried out by an independent judicial review, but it can be imagined how
they may improve the conditions of freedom and independence within prison.
A second step in building a democratic prison is the recognition of prisoners as
citizens. In a democratic prison regime, which takes the need of civil liberties seriously,
prisoners should be guaranteed all civil liberties and political rights compatible with the
needs of the prison administration (see e.g. van Zyl Smit and Snacken, 2009, 65–9).
Freedom of information, expression, reunion, and association cannot be limited with-
out clear reasons concerning the administration’s objectives (Foster 2002). For example,
freedom of reunion in a protest against the prison authorities might be reasonably
limited based on arguments of security, but when prisoners organize a meeting to listen
to and speak with their democratic representatives there seem to be no good reasons to
apply such limits (Lippke, 2007). In sum, prisons can be organized in such a way to
respect certain key aspects of prisoners’ civil liberties, generating spaces for meaningful
political participation. Enfranchisement completes the recognition of prisoners as
citizens whose voice and interest must count equally.

Imprisonment and political equality

No matter the persuasiveness of the proposal of a democratic prison, its consequences
to enfranchisement still face some objections. The first objection to democratic disen-
franchisement can be framed in the language of political equality. It could be claimed
that the extent to which civil liberties could be exercised according to the notion of
political equality would be considerably limited and poor, allowing for the argument
that the limited freedom enjoyed by prisoners affects their position of political equality
in relation to all other citizens. At best, prisoners would qualify as second-class citizens
(Ramsay, 2013b, 11, 2015, 8). The following observations are therefore necessary.
Firstly, the enjoyment of civil liberties is not an all-or-nothing affair, neither inside
nor outside of prison. The extent to which somebody can speak, meet and build
associations is always limited by state regulations that protect other important social
 ETHICS & GLOBAL POLITICS 9

and individual interests. For example, the right to freedom of expression is limited by
national security laws and libel and hate speech regulation. The right to assembly, in
turn, is limited by the need for administrative permits and for restricting demonstra-
tions to a certain size or certain zones. In the case of prisoners, such regulation might be
more intrusive, thus restricting their liberties considerably. However, civil liberties
outside prison walls can also be similarly affected by arguments of security or other
deliberations of public interest. This demonstrates that people’s liberty can be restricted
in several forms and in varying degrees, thereby affecting the possibilities for its
exercise. It is simply wrong to sustain that prisoners lack all liberty and that free
citizens enjoy full liberty. Civil liberties have never been absolute, and sustaining this
claim does not mean we must endorse a post-democratic society as described by
Ramsay. Based on the previous observations, one must be critical of the claim that
imprisonment necessarily involves the loss of civil liberties or that the liberties which
prisoners enjoy would only constitute an executive licence. That assertion can indeed be
correct and accurate regarding a concrete prison regime, but as a general claim it must
be regarded as false.
Secondly, even if it is accepted that the degree of freedom enjoyed by prisoners will
never be comparable to the degree of freedom experienced by citizens outside prison,
this difference does not need to lead to disenfranchisement based on a lack of political
equality. Political equality, in Ramsay’s terms, requires that ‘citizens have the formal
status of rulers’ and that ‘equal influence over policy and the making of the laws’ is
granted to every citizen (2015, 7–8). However, even with these two core elements of
political equality, this equality can be understood in two different ways: as a point of
departure or as a point of arrival for democratic citizenship. If it is understood as a
precondition for enfranchisement (departure), it is essential to ask whether the degree
of freedom enjoyed by prisoners is sufficiently similar to other enfranchised citizens.
The answer would be that within the premises of a democratic prison prisoners would
not be in conditions of political participation that are qualitatively different from other
citizens. On the other hand, political equality can also be understood as the regulative
ideal, a point of arrival, that demands the creation of democratic prisons and the
enfranchisement of prisoners on the same grounds, under which the latter does not
depend on the former. Prisoners must be treated as citizens and should be granted the
means to act in equal terms regardless of whether or not they actually enjoy equal
political influence; this is because political equality recognizes all persons as members of
a democratic society. Although this second conception of political equality (as a point
of arrival) is more favourable to enfranchisement, it can be argued that no conception
of political equality is an obstacle to enfranchising prisoners.

Disenfranchisement as punishment
The second objection to democratic disenfranchisement is partially related to the first.
Ramsay might argue that, despite the respect for civil liberties that a democratic prison
guarantees, prisoners will always be in a position of dependence on the authorities
because imprisonment coincides with a formal denial of civil liberties, which in turn
coincides with the formal denial of political equality. Here the word ‘formal’ is very
important as it implies that the denial of civil liberties, and therefore the denial of
10 P. MARSHALL

political equality and citizenship, is deliberate and intended, and not a secondary and
unintended consequence of imprisonment. In this argument, therefore, disenfranchise-
ment is ultimately disconnected from the fact of prisoners’ lack of liberty. Instead, it is
clearly connected to the status produced by the formal act of criminal conviction;
therefore, all the exclusionary and degrading problems affecting punitive conceptions
of disenfranchisement must be duly considered.
This idea that disenfranchisement follows the formal denial of liberties has a
systematic position in Ramsay’s account of imprisonment and account of the relation-
ship between citizenship and the commission of a criminal offence, in which he sees the
punishment of imprisonment to be a formal denial of liberty. The justification for
imprisonment as punishment, he sustains, is founded on the suspension of citizenship
experienced by the inmates. The radical deprivation of liberty implied by imprisonment
is not compatible with the idea of democratic citizenship. This is an argument for a
more lenient use of imprisonment, but it also implies a radical conclusion regarding
those who are imprisoned. The radical consequence of exclusion from citizenship is
justified by Ramsay when he argues that the commission of a criminal offence is
considered a self-exclusion from citizenship. Only on these grounds can Ramsay envi-
sage the justification of the convict’s deprivation of liberty: ‘[i]mprisonment does not
violate the citizenship of those who deny the rights of citizenship [, it is only]
symbolically and practically implementing the offenders’ own negation of citizenship’
(Ramsay, 2013a, 428). This idea regarding the (temporary) loss of citizenship due to a
criminal conviction posits serious questions as to the relevance of the democratic
explanation based on the relationship between civil liberties and the right to vote. If
those correctly imprisoned are non-citizens during their sentence, then one might
sincerely question why disenfranchisement should be explained in relation to the lack
of civil liberties. The right to vote is, on the same grounds as civil liberties, a right of
democratic citizenship. Under this model, the justification of disenfranchisement as an
expression of the demands of self-government seems redundant: if the consequence of a
criminal conviction is the suspension of citizenship, this is the fact that authorizes both
imprisonment and disenfranchisement.
Ramsay seems committed to the understanding of disenfranchisement as the nor-
mative consequence of the act committed by the offender. Ultimately, he sees disen-
franchisement as a part of the punishment. It was mentioned in the introduction that
one of the distinctive features of democratic disenfranchisement is that disenfranchising
prisoners is meant to protect democracy rather than further punish offenders by
excluding them from the franchise. Ramsay’s proposal of democratic disenfranchise-
ment thus lacks an important part of its democratic appeal as he argues in favour of
disenfranchisement not to protect democracy but rather to punish offenders.

Disenfranchisement and prison reform

Finally, a third objection to democratic disenfranchisement must be addressed.
Democracy not only demands enfranchisement but also prison reform. It must be
acknowledged that regimes of democratic prisons such as those argued above are not
necessarily in effect; they are mainly projects, not realities. A democratic conception of
imprisonment suggests that prison conditions are what must be modified and adapted
 ETHICS & GLOBAL POLITICS 11

to the requirements of democracy. What is to be done about disenfranchisement in

such cases where democratic prisons do not exist? More importantly, what should be
done in the meantime, while waiting for a democratic prison reform? Prisoners cannot
be victims of the inaction of the political system in bringing about prison reform.
In this line, the demands for enfranchisement may produce criticism from those who
advocate for penal reform because the claim for enfranchisement could produce
counterproductive effects. If the key idea behind the claim for enfranchising prisoners
is that prisoners must be regarded as free and equal, just as the rest of citizens, this idea
may obscure the conditions of inequality and limited liberty under which prisoners live.
The critics are therefore afraid of inverting the priorities of prison reform. In other
terms, substituting the exclusionary problem of imprisonment with the exclusionary
problem of disenfranchisement, via eliminating the latter by granting prisoners the
right to vote, may lead some to suggest that the problem of exclusion has completely
disappeared and that improving the conditions of imprisonment is still an urgent affair
(Ramsay, 2013a, 424). To argue that enfranchisement may undermine prison reform is,
however, contentious. It is plausible to sustain that the recognition of prisoners as
citizens may help the cause of penal reform. Identifying prisoners as equally respectable
members of society and relevant political actors is likely to result in a more dignified
treatment. The equal respect that citizens owe one other is recognized in the vote. The
opposite may be said about their exclusion from the franchise. If the right to vote is a
symbol of equality and respect, disenfranchisement is likely to contribute to the pro-
liferation of discourses of penal sadism and therefore undermine the improvement of
prison conditions. To conclude this point, if we value the right to vote for its contribu-
tion to the idea of self-government and democracy, its exercise cannot be subordinated
to the aims of prison reform and disenfranchisement cannot be used as a symbolic
point to push for better prison conditions.

Public authority and electoral influence

The previous section claimed that there is not necessarily a relation between imprison-
ment and the loss of civil liberties (which are required for participation in democracy),
but that such relation is dependent on the context. However, it must be acknowledged
that if voters become the object of coercion, there could well be good reasons to restrict
voting from prison. Here is where the arguments of Ramsay and López-Guerra tend to
coincide. Coercion may demand a preventive measure: in order to respect democracy as
the self-government of citizens, prisoners must be disenfranchised. This affirmation
leads to the question of how the ‘integrity and effectiveness of an electoral procedure’
may be ‘undermined by allowing citizens in the wholly dependent condition of prison-
ers to vote’ (Ramsay, 2013a, 430).
The relationship between executive authorities (and eventually other powers within
prisons) and prisoners can take two forms that can be claimed to undermine electoral
integrity. The first is a strong form of intervention which I call electoral coercion.
The second is a weak form of intervention that I call electoral manipulation. The first
case of intervention is conducted by violating the right to vote as a negative liberty: the
elector is impeded from voting for his own preference and forced to vote for somebody
else’s preference. In the second case, manipulation is not necessarily directed at
12 P. MARSHALL

electoral preferences but at the ‘circumstances in which these preferences are formed’
(Ramsay, 2013a, 425). The elector has been influenced and persuaded to prefer an
electoral option that without manipulation he would not prefer. The line between the
two forms of intervention can, of course, be fine in some cases; however, it is important
to distinguish between these forms because they require different responses. I argue that
the solution to the first kind of intervention is not disenfranchisement but electoral
reform. Concerning the second case, I support the view that prisoners who are under
some form of manipulation are not in a fundamentally different position from other
persons living outside of prison.

The case of electoral coercion

The case of electoral coercion has been convincingly presented by López-Guerra, who
argues that, despite disenfranchisement being prima facie unfair, disenfranchisement is
necessary under certain conditions in order to maintain electoral integrity. These
conditions are contexts in which electoral coercion is common and prison reform is
unlikely to occur.
It must be emphasized, to start with, that this is far from constituting a general
objection to voting from prison and applies under certain very specific circumstances.
In this regard, it is also of utmost important to carefully distinguish (1) those countries
in which electoral coercion or electoral fraud are widespread from (2) those countries in
which this situation affects only certain groups, such as prisoners. In the first case,
arguments based on equality and electoral integrity are redundant because excluding
prisoners in those countries does not help to guarantee electoral integrity whatsoever.
In this case, prisoners’ inclusion in the franchise can at least pursue their inclusion via a
democratic formality and their recognition as equal citizens. In the second case,
however, the prospects for prisoners voting are not as dismal as López-Guerra claims.
The case in which problems of coercion affect the prison system but not the electoral
system as a whole does indeed present a challenge for the electoral inclusion of
prisoners. I argue, however, that there are ways to circumvent this type of problem
or at least to address it to certain extent. Accepting that a full enjoyment of civil liberties
is not necessary for the meaningful exercise of the right to vote, the protection of
autonomous suffrage can overcome the problem of coercion by means of an adequate
institutional design of electoral procedures within prisons, a design that does not
necessarily compromise prison reform. Five directions that this design might assume
are suggested below, though many others could be included in this list. First, the
development of stricter security measures is necessary to avoid coercion in the moment
of casting the vote (Easton, 2009, 451), for instance via the strong institutional guar-
antee of a secret ballot. This does not involve freeing prisoners of other unfair coercions
they experience within prison, but it would exclude the possibility of coercions when
casting the ballot. Second, the electoral act should be administered by an institution
completely independent of prison services, and elections within the prison must admit
impartial observers. This would combat the power of prison authorities and prevent
executive influence. Third, it is highly advisable that the results of the election within
the prison not be made available to prisoners themselves as this could lead to undesir-
able retaliations. Fourth, if the conditions of the prison make it impossible to install
 ETHICS & GLOBAL POLITICS 13

ballot boxes inside (because doing so would jeopardize some of the previous objectives),
then special arrangements must be made so that prisoners are taken out at random to
cast their votes somewhere within the premises or in an area surrounding the prison.
Finally, it is important for prisoners to be aware of the impact of the aforementioned
measures (that is, they are bringing about electoral integrity) and for the prisoners to be
plausibly persuaded of the integrity of elections within prison. Otherwise, it is possible
that prisoners would have no stable grounds to trust the integrity of electoral process
and that those who run the prison could credibly threaten sanctions if prisoners do not
vote in a certain way.
These directions have the potential to limit the problems of coercion or to eliminate
it altogether in certain cases. However, they do not constitute an all-things-considered
case against electoral coercion, and certain extreme cases could still be problematic. In
contexts in which prison conditions are severely corrupt and deteriorated, even the
correct implementation of the directions is not enough to impede electoral coercion.
Under such conditions, there may be a case for disenfranchisement.

The case of electoral manipulation

A second problem, the fact that prisoners are under the influence of and potential
manipulation by executive authorities is more complicated, yet less pressing.
Disenfranchisement as a response to this problem may be considered over-inclusive
because most prisoners spend a limited amount of their lives in prison. Prior to their
imprisonment, they enjoyed all the civil liberties put forth by Ramsay as necessities for
democratic citizenship. Furthermore, as the empirical work of Cormac Behan (2014,
174) suggests, offenders bring with them ‘levels of education, political and civic engage-
ment’, all of which ‘impact on their engagement, whether inside or outside prison’. In
these terms, their preferences were formed in a context ‘rather free’ from the manip-
ulation by executive authorities that can occur inside prison. This is, for example, the
case of a prisoner who begins to serve his sentence immediately before Election Day.
The case for disenfranchisement would be stronger when applied only to those who
have already served long-term sentences and whose liberty has been limited for a
considerable amount of time. Nevertheless, even if democracy must admit a process
of deliberation – and civil liberties play a pivotal role in such a process–, the changeable
nature of political preferences is a highly contentious issue. The affirmation that
individual political preferences are immutable is not uncommon. However, if it is
conceded that preferences are mutable to a certain extent, there are no grounds on
which to claim that the individual preferences of those who cannot take an active part
in the process of deliberation cannot be influenced by such a process.
Disenfranchisement must be also considered under-inclusive. The relationship
between prisoners and authorities was the object of the classical theory of ‘special
authority relationships’ in continental law, according to which ‘categories of persons
in an unusually close relationship to the State, such as prisoners, school students and
members of the armed forces, were not protected by the full range of basic rights’
(Lazarus 2016, 747). This theory has been superseded by the abovementioned idea of
prisoners as rights holders. However, it warns of the fact that prisoners are not the only
group under this kind of relationship with authority. Members of the police force, the
14 P. MARSHALL

military and civil servants are also affected by this kind of relationship, in which rights
have a legitimate source of restriction in other values such as security or discipline. This
list can be extended to include all those people under the massive disciplinary influence
of private powers that, as already admitted by Franz Neumann in (1953), ‘can be even
more dangerous to liberty than public power’ (919). In a society with high indexes of
inequality, the incapacity to exercise fundamental political rights is common amongst
the unprivileged, and the social and economic power of non-state actors frequently
renders this group irrelevant. More broadly, the influence of the state, and in particular
of the administrative power, as a product of social welfare and the consequential
consumerization of certain sectors of the population stands as a major threat to the
independence of citizens in general (Habermas, 1993, 406–10). It is not clear under
which conditions prisoners’ subjection to executive powers and the subjection of the
underprivileged to political, economic and cultural powers must be codified differently
in relation to enfranchisement. To be coherent with a demand for an electorate free of
influence and manipulation, all those classes of persons should be disenfranchised.

Concluding remarks
The cases for prisoner disenfranchisement argued by Ramsay and López-Guerra are
probably the strongest democratic arguments available to normatively justify this practice.
These cases, however, are not without great fault. Their arguments are based on a diagnostic
of the conditions of imprisonment being the element that causes prisoners’ electoral
participation to be problematic for democracy as their participation endangers electoral
integrity. This article argued against their position and suggested that for prisoners to be
treated as democratic citizens they must be enfranchised and given the opportunity to vote.
Firstly, I argued that prisoners cannot be made responsible for the conditions of their
imprisonment and that, instead of an argument for disenfranchisement, undemocratic
prisons must be interpreted as the need to protect the democratic premises of prisoner
participation. It was also affirmed that the conditions of those imprisoned are not
sufficiently different, in relevant aspects, from the conditions of other enfranchised
people. Some objections to my case against democratic disenfranchisement were con-
sidered and discarded. Secondly, I also claimed that Ramsay’s and López-Guerra’s
arguments underestimate the possibilities of prison reform and electoral regulation to
overcome the democratic problems of electoral coercion and electoral manipulation.
There are several issues that must be discussed concerning prison reform advocating
a more democratic model of imprisonment, with the recognition of prisoners as citizens
constituting an urgent affair. In contrast with other rights of participation, the right to
vote is particularly propitious to expressing democratic recognition for those impri-
soned. This is mainly because the right to vote does not depend on a demanding notion
of participation. Even prisoners in conditions of serious deprivations of liberty can be
included as members of the democratic community via enfranchisement. If a compen-
satory relation between the mechanisms of participation and forms of recognizing
citizenship can be imagined, then granting prisoners the right to vote is certainly an
essential formula for such a relation. Subjecting prisoners to a legal regime in which
other rights of participation are massively affected puts in danger the continuation of
their recognition as citizens. Their right to vote might constitute an adequate response
 ETHICS & GLOBAL POLITICS 15

to this serious problem and perhaps the starting point of a constructive solution. This
diagnosis could lead to a conclusion in opposition with Ramsay’s: the less liberty
prisoners enjoy, the more important their enfranchisement becomes.3 It is interesting
to note that this seems to be the logic of the German model of disenfranchisement. In
Germany, disenfranchisement does not affect prisoners, but only ex-prisoners.
According to section 45a of the Criminal Code (1975) ‘[t]he duration of the loss of
ability or of a right shall be calculated from the day the term of imprisonment has been
served’ (see Demleitner, 2000).
To conclude, we have seen that democratic disenfranchisement is not such a promising
alternative to justify the electoral exclusion of prisoners. In actuality, commitment with
democratic participation, respect for political equality and the democratic dignity of our
fellow citizens speak in favour of the inclusion, rather than exclusion, of those who are
imprisoned into the electoral franchise. To justify general disenfranchisement in a way that
is consistent with democracy requires more robust arguments. While waiting for those
arguments, the transition towards a more democratic prison system should be the main
concern. The enfranchisement of all prisoners is a question that cannot be ignored in
bringing about the advancement of the fundamental aim of more democratic prisons.

Acknowledgments
This paper has benefitted from comments provided by Claudio López-Guerra, Su Bian, Marco
Goldoni, and two anonymous reviewers.
The author would like to thank Peter Ramsay, Fernando Muñoz, William Bullow and Su
Bian for their comment to earlier drafts

Disclosure statement
No potential conflict of interest was reported by the author.

Funding
This work was supported by Fondo de Fomento al Desarrollo Científico y Tecnológico (Conicyt-
Chile) [grant number 11150299].

ORCID
Pablo Marshall http://orcid.org/0000-0001-8347-4620

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3
This reasoning might lead to conclude that the disenfranchisement of prisoners is more problematic than the
disenfranchisement of people who are not in prison because the latter group can in fact exercise other rights of
participation. However, in such a case, the aim of disenfranchisement would be evidently punitive and not regulative.
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