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Estudios constitucionales

On-line version ISSN 0718-5200

Abstract

MARSHALL, Pablo. Suffrage and proportionality: Critical analysis of the judicial trend on prisoners disenfranchisement. Estudios constitucionales [online]. 2019, vol.17, n.1, pp.265-320. ISSN 0718-5200.  http://dx.doi.org/10.4067/S0718-52002019000100265.

This work look at a series of judgments of Anglo-Saxon jurisdictions that have considered that prisoners disenfranchisement is contrary to the constitution or the human rights entrenched by international treaties. It critically addresses its implications for the aim of electoral inclusion of prisoners due to the observation that even recognizing that the judgments reduced the field of application of disenfranchisement, they could have contributed in the same way to the normalization of the political exclusion of those subjects who have committed serious crimes. As a result of this critical diagnosis, the paper questions the use of the proportionality test in cases of disenfranchisement, because of the impact that it has in practice the deference towards parliaments, government and administration, and because what is at stake is voting eligibility, which is a matter for which there are good reasons to appeal to a legal method that provides a more robust protection to such a right; one that allows to distinguish between the issue of eligibility and other regulations affecting the right to vote.

Keywords : Suffrage; disenfranchisement; proportionality; deference.

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