26.08.20

Locking-down the Right to Vote: The Constitutional Rights of the Covid-19 Voter

Matthew Royal
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Locking-down the Right to Vote: The Constitutional Rights of the Covid-19 Voter

With Jamaica set to stage its General Elections on September 3, one must ask whether the lockdown and quarantine measures adopted by the Government under the Disaster Risk Management Act can be lawfully enforced in a manner that prevents citizens of Jamaica from voting.

Residents of communities under quarantine are required to remain in their places of residence for the duration of the lockdown. Limited exceptions exist for persons of specified professions, in cases of personal emergencies, and for the purchase of food, medicine, and other similar necessities. The orders also require those who have tested positive for Covid-19 to remain in quarantine at a government facility or their home and be isolated from other persons. If these, or similar measures are in place on September 3, there will be a serious impairment on the affected citizen’s right to vote.

The right to vote is protected under the constitution. However, no right – not even the right to vote – is absolute. The government may adopt laws which restrict (or limit) the citizen’s free exercise of their rights, providing that those limitations fit the criteria of demonstrably justifiable in a free and democratic society as outlined in the Charter of Fundamental Rights and Freedoms. However, the government must prove that its restriction is: (a) pursuing a sufficiently important objective and (b) proportionate. There are three factors which the Court will look at in determining the issue of proportionality: (i) whether the measures are carefully designed and are not arbitrary, unfair, biased or irrational, but, are rationally connected to the objective; (ii) whether the measure places as little restriction on the right as possible; and (iii) whether the effects of the measures are more severe than necessary to achieve the objective.

There may be little difficulty for the government to prove that there is a sufficiently important objective in restricting activities at polling stations to prevent the spread of Covid-19. At the time of writing, Jamaica has 1,529 confirmed cases, 622 active cases, and 16 reported deaths. The virus is reported by experts as being highly contagious and potentially lethal, especially among people with co-morbidities and the elderly. This puts a significant segment of Jamaica’s population at risk. It may be reasonable to conclude that an election, which the law requires to be conducted by persons physically attending a polling station and therefore, interacting with other members of the public, pose a risk of further spreading this highly contagious virus. Mitigating this public health risk is a sufficiently important objective.

In considering communities under quarantine/ lockdown and the issue of proportionality, it would be difficult to argue that the least restrictive and least harmful means of combating Covid-19 on election day is an outright exclusion of voters in these areas, merely on the basis that they live in an area that is experiencing a spike in Covid-19. To satisfy the test of proportionality, the government must now consider the adoption of more narrowly tailored restrictions which preserve the rights of citizens of these areas to vote, while also establishing sufficient safeguards to mitigate the public health risk that Covid-19 presents.

It would be prudent for any measure adopted in relation to entire communities of potential voters to provide sufficient access to polling stations so that the voter may exercise their right to vote. It is likely that requiring the wearing of masks, sanitisation, and maintenance of six-feet distance as a pre-requisite to accessing polling stations will be considered reasonable, minimal, and permissible restrictions on the right to vote. It may even be appropriate to go a step further, by specifying periods of time at which persons of certain surnames may attend polling stations to vote, in circumstances where there is a shortage of poll workers or space to facilitate effective social distancing.

Statements in recent press briefings by our nation’s health officials suggest that provisions may not be made to allow voters who are confirmed as having Covid-19 to vote. If challenged in Court, the government would need to show that there was no other practical alternative to safeguard public health; that the ban was adopted as a last resort.

It is very difficult for anyone without qualifications in epidemiology to make conclusive statements about what these alternative measures may be. However, considering that the messaging has been that the social distancing, mask wearing, and sanitisation protocols are effective in limiting the spread of Covid-19, one might reasonably ask why wouldn’t the strict enforcement of these measures on election day be sufficient to allow all voters, including the Covid-19 positive voter, to go out and vote safely? Since the Ministry of Health has identified, and is monitoring, confirmed cases of Covid-19, some of which are housed in government facilities and hospitals, could those among the few hundred active cases who indicate their desire to vote be facilitated by special arrangements made by the Ministry of Health that ensures their safe transport to, through, and from the polling stations?

There may be difficulty in convincing a Court of the rationale for treating voters living in a quarantined area differently from confirmed cases of Covid-19, considering that quarantine measures are imposed under the premise that all residents within that area are presumed to be infected, due to the rate of spread, and are isolated in keeping with that presumption. If there are measures sufficient to safeguard the risk of infection among such communities, doesn’t it stand to reason that those same measures are likely to be equally effective in dealing with confirmed cases?

It may very well be difficult, or even impossible, to design measures to facilitate voting by people who are confirmed as having Covid-19, but that conclusion cannot be assumed and should not be lightly accepted by the voting public. It is necessary for the Government to explore the feasibility of all options and only prevent voting if it finds that there is no other choice.

Matthew Royal is an associate at Myers, Fletcher & Gordon, and is a member of the firm's Litigation Department. Matthew may be contacted via matthew.royal@mfg.com.jm or www.myersfletcher.com. This article is for general information purposes only and does not constitute legal advice.