16 May 2012


From 'The Voting Rights Ratchet: Rowe v. Electoral Commissioner' (University of Queensland TC Beirne School of Law Research Paper No. 12-3)  by Graeme  Orr -
 In Rowe v Electoral Commissioner, the Australian High Court struck down an early cut-off date for voter registration. This commentary situates the decision in the history of the electoral writ and roll closure, and parses the various judgments from an election law perspective. The Court’s decision is not a radical one, but an example of the recent flowering of constitutionalism in electoral law, since the Court recognised an implied universal suffrage in the Australian Constitution. The case represents, like the prisoner voting case of Roach before it, an example of constitutional ratcheting, informed by an underlying conceit that the court is merely protecting against legislative back-sliding, rather than offering a litigational sword to those who want to expand the franchise and political rights.
Orr comments that -
In Westminster tradition, the ability to vote was fundamental to parliamentary democracy, yet simultaneously a privilege regulated by Parliament. While the trend to liberalise the franchise seems, in retrospect, an inexorable tide, significant forces were arrayed on all sides of what the Victorian era knew simply as the “reform” debate. Conservatives saw voting less as a right than a responsibility. It was to be restricted to those responsible for – and given independent status by – landholdings. The democratic instincts of the Chartists held greater sway in Australia, where women won the vote for national elections as early as 1902, 16 years before British suffragettes. Yet Australia was no “paragon of virtue”. The Commonwealth began with a racist franchise, and only enfranchised most Indigenous people in 1962. The tension between voting as a republican ideal and an individual responsibility is neatly captured today in laws compelling both enrolment and attendance at the polls. 
Similar to the United States, the Australian Constitution erects no explicit grant of the franchise. The closest it came to the matter was in s 41, now neutered by narrow interpretation. The original intent appears to have been to leave the definition of the national franchise to Parliament (indeed the 1891 draft left the matter, in hyper-federalist United States style, to the separate States). The great issues of the day were including women and excluding non-white races. Trust in parliamentary sovereignty is reflected in ss 8 and 30, leaving to Parliament the definition of the “qualification of electors”, a power explicitly limited only by a prohibition against plural voting.  Nevertheless, in a series of cases between 1975 and 2006, the High Court crafted a presumption of universal suffrage, out of the general requirement in ss 7 and 24 that Parliament be “directly chosen by the people”. 
The cornerstone of these decisions was McKinlay’s case. In retrospect it seems an inauspicious source: McKinlay and others sought to import United States jurisprudence mandating one-vote, one-value, but were rebuffed 6-1. Barwick CJ scathingly remarked that the Constitution was a site for literalism, not for “resort[ing] to slogans or to political catchcries or to vague and imprecise expressions of political philosophy”. Yet, along the way, McTiernan and Jacobs JJ argued that while “chosen by the people” did not require equal weighting of votes:  "the long established universal adult suffrage may now be recognized as a fact and as a result it is doubtful whether ... anything less than this could be described as a choice by the people".  
This insight was embedded in precedent in the prisoner voting case, Roach v Electoral Commissioner. However, the constitutional presumption of a universal franchise appears limited to adult citizens, and is subject to legislated exceptions that are proportionate or reasonably consistent to representative government.
 He concludes that 'the ratchet is not radical' -
In the 35-year journey from McKinlay to Rowe, it is curious that vote weighting, which was the stormiest electoral issue in the 1970s and 1980s, particularly in the geographically largest States, has now been put to bed by a political consensus in favour of one-vote, one-value. Yet the franchise, a first-order liberal issue largely thought resolved by Edwardian times, has recrudesced to centre stage. The franchise of prisoners and expatriates, and its denial to permanent residents, are all topical matters. More pragmatically, the state of the rolls has moved to centre stage. Over 1.4 million eligible citizens were estimated to be absent from the 2010 rolls. The overwhelming cause was not early closure, but the use of official data revealing address changes to cleanse the rolls, but not to update them. State legislative reforms moving to a system of “automatic enrolment” are to be implemented in New South Wales and Victoria. These States and Queensland will also allow new voters effectively to enrol until polling day by claiming a provisional vote, a vote that is counted once their bona fides are checked. But these reforms remain controversial with federal conservatives. Given the ease with which data can be matched electronically, arguments about processing enrolment forms and timelines born of a paper era seem increasingly arcane. If automatic enrolment is not in place by the next federal election, another court challenge is foreseeable. Could it, or other envelope-expanding claims – say by expatriates to wider voting rights – succeed? 
The majority, in Roach and Rowe, was progressive in its methodology and outcome, but only modestly so. The court is careful to repeat the mantra that it is not its place to judge parliamentary motivations. Hence, even in an area as prone to partisan feather-bedding as electoral law, it shows little signs of moving to a strict scrutiny approach. Nor is the search for “rational justification” a thorough-going one, for the court does not insist that the law be as rationally tailored to constitutional goals as possible. Rather, the majority is identifying values it sees as entrenched by long convention – such as universal suffrage or a grace period for enrolment – and guards them against legislative back-tracking by demanding cogent justifications. So while Heydon J claimed that the logic of Rowe’s position was that “there should be the widest possible participation in elections [with enrolment] right up to the moment when the polling booths closed”, such a claim would be unprecedented. 
The majority’s method, through which constitutional norms are created, but in hindsight, is known in the American idiom as “ratcheting”. The ratchet offends originalists because it works in only one direction, and carries the conceit of history as a story of progress without regress. (In contrast, the past being another country, technologically speaking the originalist position can seem ludicrous when applied to fundamental practicalities such as electoral enrolment). The ratchet is not a radical technique compared to the search for overarching principles in implied rights jurisprudence. It is more shield than sword; those long excluded from the franchise, like permanent residents, cannot employ it to gain inclusion. 
In one respect, Rowe’s case is quite American. The case was argued by pro bono lawyers assembled by Get Up!, a non-partisan, left-wing organisation akin to the United States movement moveon.org, which mobilises sympathisers through on-line petitions and donations. Get Up! also ran a successful Federal Court claim just prior to the 2010 election, to permit online electoral enrolment. Public interest litigation in the law affecting Australian democracy has tended to be ad hoc and dominated by quixotic litigants-in-person, rather than concerted and driven (as in the United States) by groups such as the Brennan Center for Justice. While incremental rather than radical, the ratchet does invite further test cases, and in Get Up! there is now a litigational vehicle to drive that process