How to lose when you win

Justice Ellis recounts "the numerous and weighty constitutional criticisms" of taking the vote from prisoners. But because Parliament (or, rather, the National and Act Parties) didn't care about these sorts of thing, they still can't vote.

Justice Ellis has told Arthur Taylor and other prisoners in New Zealand the only thing she really could say: you don't get to vote this election. This outcome is no real surprise to me - but in the course of reaching it, her Honour has a number of interesting things to say about the issue of prisoner voting in general, as well as another pretty major public law issue.

Let's start with what is clearly the most important part of the judgment, to be found in paragraph 11 at footnote 5. There, Justice Ellis cites this Pundit post written by (if you really must know) my good self as a source for the argument that:

[U]nlike restrictions on freedom of movement and freedom from unreasonable search and seizure, which are necessary incidents of imprisonment, the right to vote is unrelated to the fact of incarceration. Deprivation of voting rights is thus said to be more analogous to removing the right of prisoners to freely manifest their religion while in prison.

Sure, her Honour doesn't say anything like "I hold this to be the law, because Pundit says so." Nevertheless, she sees the post in question as representing a respectable source for the credibility of that legal proposition.

So on the same day as a certain blogger whom we don't name was found to be a "journalist" for the purposes of the Evidence Act, thus putting him on equivalent standing with the Dominion Post's Marty Sharpe and this sort of "journalism", Pundit also was considered weighty and authoritative enough to justify inclusion in a High Court judgment. While, I should note, the expensive text I wrote on election law was comprehensively ignored (despite having a whole section that discusses the issue of prisoner voting).

Look out world. The internet is a thing and I don't think it is going away.

OK - enough shameless ego polishing. What did Justice Ellis have to say about the actual issues at stake in Arthur Taylor's case?

She begins with the big picture question - should prisoners be prevented from voting at all? And while her Honour didn't come right out and answer it, reading between the lines you get the feeling that she thinks the law that disenfranchises prisoners is a (to quote a famous man) "dog" of a policy.

At paragraph 4, footnote 3 she recounts the sorry tale of how the law came to be on our books at all:

It is, perhaps, notable that the Amendment Act did not originate as a Government measure but had its genesis in a Private Member’s Bill. Also notable is that the Bill was not referred to the Justice and Electoral Select Committee but, rather, to the Law and Order Select Committee which received official advice in relation to the Bill from the Department of Corrections.

Just to translate "notable" for you non-judgment readers out there, in judge talk it means "completely f*&%ng outrageous".

Then, at paragraphs 5-to-16, Justice Ellis runs through all the various criticisms of the decision to disenfranchise all prisoners: there is an "absence of a rational link between object and effect"; it "appears to introduce wider, irrational, inconsistencies in the law"; it "disproportionately disenfranchises Maori, who make up 51 per cent of the prison population"; and that while "comparable legislative measures have been enacted in other, cognate, jurisdictions, they have subsequently been held unconstitutional and struck down by the Courts". Her Honour raises these matters, she tells us, because she "think[s] it is important to record that there is considerable and considered support for the position [Mr Taylor] is advancing".

Hooray! If her Honour is so sympathetic to Mr Taylor's basic argument, then surely she can do something to help protect those prisoners who have seen their right unjustifiably stripped from them? Well ... no.

To see why not, let's work from the foundation up. The Parliament of New Zealand is sovereign, in that it may make whatever law it wants to, and once that law is made the courts of New Zealand must apply the clearly intended consequences no matter what they think of them. Which is the rock upon which Mr Taylor's journey ends.

However constitutionally objectionable s 80(1)(d) might be, Parliament has (for now) spoken. And what Parliament has said is that no prisoner who is serving a sentence of imprisonment and who happens to be incarcerated on 20 September 2014 may vote in this year’s general election. The applicants therefore have no position to preserve and the Court is unable to intervene.

So that really is that. Parliament has passed s.80(1)(d) of the Electoral Act, which disqualifies from enrolling to vote "a person who is detained in a prison pursuant to a sentence of imprisonment ...". Those words are clear in their intent, and were enacted by a Parliament (or, rather, 62 MPs from the National and Act Parties) that knew what they were doing. So whatever the impact of those words on the rights of prisoners, whatever international obligations New Zealand may be ignoring, whatever Treaty of Waitangi obligations may be being breached, their outcome is unavoidable. The law says that the Electoral Commission is not allowed to enrol prisoners serving sentences in jail, and so they are not allowed to vote. End of story.

That brute reality what is meant by the term a "sovereign Parliament". And that's also why you really, really need to cast your vote by Saturday, 7:00 pm - because whoever gets elected on September 20th will get three years in which they can do things like this to anyone that they want to, for whatever reasons they want.

Except ... perhaps not in every situation. In the course of telling the plaintiffs that she can't help them, Justice Ellis makes some interesting observations about the "entrenched provisions" of the Electoral Act. These are the matters contained in s.268 of the Electoral Act, which require a special procedure of a 75% majority of MPs or majority at a referendum to change.

The matter came up because Mr Taylor argued that the bit of the Electoral Act that says who is qualified to enrol to vote - section 74 - is protected by s.268. And as Parliament hadn't used the proper procedure to (in effect) change s.74 by disqualifying prisoners, that meant the change was invalid and of no effect.

Justice Ellis commenced her consideration of this argument with a bald statement that: "It is not disputed that such non-compliance with ss 268(1)(e) and 268(2) would invalidate the amendment." In other words, the requirement that Parliament use special procedures to change the bits of law protected by s.268 is a legally binding one that the courts have the jurisdiction to enforce (by refusing to recognise any law that fails to comply with that procedure). What's so interesting here is not that Justice Ellis says so - other judges in New Zealand have said the same thing - but rather that it was "not disputed" by either side. It therefore seems to now be generally accepted orthodoxy that this rule - the product of the Parliament of 1993 - binds the actions of the Parliament of today (and of tomorrow, and so on) whether they like it or not.

Her Honour then goes on to apparently reject the argument that s.268 only protects the named sections themselves, in that changes to other sections of the Electoral Act that have the effect of amending one of the entrenched provisions are also captured by the requirement for a special procedure. As Justice Ellis puts it: "in the present case, if s 268(1)(e) reserves s 74 in its entirety, and if the effect of the Amendment Act is in conflict with s 74 (which it appears to be), then in my view there is a problem."

Where the prisoner's argument falls down, however, is the scope of protection provided by the entrenchment provision. Because s.268(1) doesn't entrench all of s.74. Instead, it protects only the age at which people qualify to vote. So amending this bit of the law (whether up or down) requires a supermajority of 75 MPs (or a public referendum) ... but changing any of the other qualifications to vote doesn't.

Now, you may think that makes little or no sense. It means, for instance, that in theory male MPs could remove the right to vote from women in New Zealand using a bare-majority to pass the law. But lowering the voting age to 17 (or 16) would require the agreement of a full 75% of MPs to accomplish.

Which makes me think that, along with Justice Ellis' swinging criticisms of the law that removes prisoners' right to vote, this judgment is worth noting for another reason. If s.268 is as powerful as we all now seem to agree it is, then what should it apply to? What bits of our electoral system are now so fundamental that a mere majority of MPs should not be permitted to mess around with them? Feel free to discuss below - you never know, you may end up in a future High Court footnote.