Disqualifications of Eligible Referendum Voters: A Case Study on Prisoners and the Constitutional Referendum

Abstract

This article aims to examine the issue of designating prisoners detained under a court warrant or a lawful order as persons disqualified from voting in referendums, with a particular focus on constitutional referendums. In democratic states, constitutional referendums are regarded as highly significant since it is considered a social contract. The process of constitution-making, including referendums—whether to initiate the drafting of a new constitution, to amend an existing one, or to approve and ratify a new or amended constitution—necessarily requires the broadest possible participation of all citizens. In this article, the author assesses the measures restricting prisoners’ right to vote in such referendums with the side effects arising therefrom, in order to assess whether they conform to international legal principles that guarantee political rights and the principles governing the restriction of such rights. The article also evaluates whether these measures are consistent with the principle of proportionality, applying the narrow conception of proportionality advanced by Martin Luteràn, which allows for a more objective analysis.