Since the 2010 election, state legislatures have increased voting restrictions throughout the United States. A total of 25 states drafted legislation that increases the difficulty for certain members of society to vote. These restrictions include strict photo ID requirements, limits on early and absentee voting, as well as making it more difficult to register to vote—and not only for those convicted of certain crimes. These restrictions are systematically making it harder for minorities and people of colour to vote as they are mainly implemented in areas where minorities reside. More than 35 million eligible voters were not registered to vote in the 2016 presidential election, whether intentionally or as a result of the registration restrictions. Furthermore, over 10 million people are stopped from even voting at all in presidential elections—namely those convicted of crimes and residents of US overseas territories.

RATIFICATION OF THE ICCPR AND A BIASED CRIMINAL JUSTICE SYSTEM

The US ratified the International Covenant on Civil and Political Rights (ICCPR) June 8, 1992 without any reservations; the country has not yet ratified the first optional protocol, though, and consequently does not recognise the Human Rights Committee’s competence in the individual complaints procedure. The Human Rights Committee (HRC) is a body of experts that monitors the implementation of the ICCPR. Despite the US having ratified the ICCPR, the country’s political system complicates the implementation of human rights treaties domestically. The US is composed of 50 separate states, which share their sovereignty with one federal government. This can be problematic as it blurs the line regarding who carries the responsibility when the human rights treaty is not honoured. 

When discussing the right to vote in the US, one must also take the domestic criminal justice system into consideration. With over 2 million people incarcerated, 67% are members of minority groups, despite just constituting 37% of the US population in general. This racial bias is centrally-relevant to any analysis of voting rights in the US.

INTERNATIONAL OBLIGATIONS UNDER THE ICCPR

Article 25 of the ICCPR guarantees the right of each citizen to partake in public affairs, to vote, and to be elected. All of these rights should be upheld by the state without any distinction presented in article 2 of the Covenant, “such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status”. As the US ratified the Covenant, it is obliged to ensure these rights to its citizens.  

THE US IS FAILING TO COMPLY WITH ITS OBLIGATIONS

One main issue is that the United States Supreme Court, in 2013, made a change to the Voting Rights Act of 1965. The Act first established the need for federal approval regarding changes in election laws and general oversight of areas that have a history of discriminatory voting practices. These changes, however, made it possible for nine states, mostly southern, to change their election laws without federal approval. The Office for Democratic Institutions and Human Rights (ODIHR) emphasises in its 2017 report on election observation that these legal changes have had a real and extensive effect on certain people’s right to vote.

Meiklejohn Civil Liberties Institute argued to the Human Rights Committee that issues such as rules applied to absentee voters and voter ID requirements, as well as inaccurate voting dates on Spanish-language flyers, constitute violations of the ICCPR by the United States. In many cases, the special voter ID requirements impose extra costs for the individual affected and so generally affects low-income earners—again, disproportionately minorities. The Institute also argued that the US government should address voter purges. In the case Ortiz v. City of Philadelphia (1993), a US court concluded that Latino and African American voters are more often purged—having their registration revoked—than Caucasian voters. The fact that eligible, registered voters are being purged is a violation of article 25 of the ICCPR, and the disproportionate application of this policy shows a compounding violation of article 2 as well.

As earlier mentioned, the fact that the US is a federalist republic can be problematic, given the shared governmental responsibilities. The federal government argues that the decision as to whether those convicted of crimes should have the right to vote, regardless of whether they have served their sentences, lies in the hands of the state. This in itself might not violate the Covenant, as article 25 states that “[E]very citizen shall have the right [...] without unreasonable restriction [...] to vote”. The term “unreasonable restriction” gives the state party room to interpret the best approach to fulfilling its obligations. Considering the state of the US criminal legal system and its disproportionate racial application, though, the US government’s leaving the decision to the states of whether to grant voting rights to convicted persons ultimately results in many losing their right to vote. Currently, approximately 6 million US citizens are restricted or prohibited from voting based on the fact that they are, or have been, incarcerated. The heightened incarceration rate of people of colour then bleeds into the further violation of their rights in the revocation of voting rights based on their conviction status. 

Article 25 in conjunction with article 2 of the ICCPR urges states to engage in affirmative action in order to ensure the free participation in elections for minorities. Important to note, however, is that the UN treaties are based on political sovereignty on behalf of the states party to the treaty, and they are only held accountable against each other. The violations of these articles by the US through imposing voting restrictions can only practically be met with sanctions from other states. It remains important to shed light on a state party’s violations, though, as such awareness can contribute to productive lobbying efforts of state legislatures, helping, for example, to make the necessary amendments to US  law to ensure everyone’s right to vote.

Sam is a Masters student in human rights at Uppsala University in Sweden. He focuses on migration and international law. He is also an activist working with Amnesty International Sweden to make changes to policy in line with the human rights framework.

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