Legal Beagle by Graeme Edgeler

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Voting disqualifications (updated)

Arthur Taylor has had some “luck” in the Supreme Court recently, getting two cases there in a month, both looking at the 2010 amendment to the Electoral Act that expanded the prohibition on prisoner voting. Many lawyers wait years to get leave to argue a case in the Supreme Court, so two heard in a month is somewhat extraordinary for a self-represented litigant.

His first was heard earlier in the month. It was actually a Crown appeal, but it was from a case Taylor won in the High Court, and Court of Appeal (there with some help from the Human Rights Commission). In today’s case, he isn’t self-represented any more, having arranged a lawyer since getting leave to argue the case. The first appeal was over whether courts have the power to declare the legislation is inconsistent with the New Zealand Bill of Rights Act. The case being argued today has the potential to render that moot: it's over whether the 2010 law change actually changed the law at all.

When the argument was first raised in the High Court, before the 2011 election, I didn’t think it had much chance of success. That was partly because of the urgency of the case, and the form in which it was brought (at that stage it was as an application for an interim injunction), but I also didn’t think the substantive argument was likely to succeed either.

I think I still think he’s going probably going to lose, but I’m not nearly as convinced as I was.

The case is relatively simple. Section 268 of the Electoral Act sets out specific parts of the Electoral Act which are particularly important, and which can only be amended by a 75% in Parliament, or by a referendum (the vote limiting prisoner voting rights was much closer than that). One of the “reserved” sections is described:

(e) section 74, and the definition of the term adult in section 3(1), and section 60(f), so far as those provisions prescribe 18 years as the minimum age for persons qualified to be registered as electors or to vote:

Now, the prohibition on prisoner voting isn’t in any of those sections. Section 74 provides the qualifications required for voting. And section 80 provides the disqualifications from voting (like not having been in the country in the last three years, etc.).

Seems simple, while the necessary qualifications for voting in section 74 need a supermajority to change, it seems section 80 can be amended without a 75% majority. But there has to be a line, doesn’t there? If section 80 was amended so that that you were disqualified from registering to vote if you were under 21, that would directly contradict other reserved sections, like the definition of adult as being 18+. But surely there are some other prohibitions that would go too far?

The law prohibits a simple majority in Parliament amending section 74 to make one of the necessary qualifications for registering to vote that the person is male, or that the person owns at least £50. Would we seriously suggest that section 80 could be amended by a simple parliamentary majority to make being female, or owning no property (or less than £50 of property) something that disqualifies you from enrolling to vote? Wouldn't such a disqualification so undermine the qualifications for voting to render them not really the qualifications at all?

Now, banning women from voting would be an unreasonable limit on the right to vote guaranteed in the New Zealand Bill of Rights Act, but so, it is accepted, is banning all sentenced prisoners from voting. So if the former is on one side of the line, what distinguishes the latter that it might be on the other?

There has to be a line somewhere. Which of the following “disqualifications” be added to the electoral act by a bare parliamentary majority, without offending the principle that the qualifications for voting are protected by there being a requirement for a Parliamentary supermajority:

  • sentenced prisoners serving at least 3 years in prison?
  • sentenced prisoners in prison on election day?
  • people released from prison, but on parole or subject to release conditions?
  • all former sentenced prisoners?
  • people with unpaid fines?
  • people who have ever been convicted, even if not sentenced to prison?
  • people with unpaid child support, or unpaid taxes?
  • people who don’t pay enough in taxes?
  • people on welfare?

Now, Parliament almost certainly isn’t going to amend the law to preclude people in most of these groups from voting, but the legal question is whether it could with a simple majority if it wanted to. Which of these amendments would do enough violence to the protected guarantee that adults are qualified to vote in New Zealand that a Court would say a law change passed without a 75% majority was invalid? Because, while I still don’t expect Arthur Taylor to win, I really can’t tell you the legal principle that makes the difference for some and not others.

Update: I went to the Supreme Court this morning to watch the first half-hour or so of the argument, and found it so fascinating, that I stayed for the whole argument. The Crown is arguing that, in fact, there is no line, and that Parliament could, if it wanted to, institute a ban on women voting, or impose a property qualification, by a simple majority.

It accepts, however, that if the Court does rule that the entrenching provision covers prisoner voting, then the Court should declare the the 2010 legislation invalidly enacted. That would mean that the law would rever to the 1993-era ban applying only to those prisoners serving sentences of imprisonment of at least three years. Although it accepted this in the High Court and Court of Appeal, this is a relatively new concession. Certainly when the first entrenching section was added in 1956, it was considered to be of moral persausion only. 

Of note from the argument of Francis Cooke, who represented Arthur Taylor, is that if we wins the case, he accepts that the rule requiring 75% to amend the prison voting ban would also apply in reverse, so that if the new Government wanted to get rid of it completely, it would need 75% support for this in Parliament (or either a referendum, or an amendment to the entrenching provision).

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