The previous section established that the ECtHR is something of an outlier in its acceptance that national-level voting rights can be conditioned on residency. This section assesses whether the restrictions proposed by the ECtHR are reasonable according to its own test that any limitation must not impair the essence and effectiveness of the right, be in pursuit of a legitimate aim, and be proportionate.
A. Essence and Effectiveness
No universal or European treaty provides for residence as a permissible restriction on the right to vote, with the ICMW, CISCDE, treaty bodies and a large volume of State practice contributing to customary international law calling on States to protect the essence of the right in respect of non-resident citizens. State practice further demonstrates that the right is commonly upheld across Europe. Collectively, this shows that voting rights have been interpreted in a way that gives full effect to the treaty's object and purpose; to maximize inclusion on the basis of citizenship. The essence of the right, therefore, is at clear risk of being violated when external citizens are denied the same voting rights as resident citizens.
This is in line with democracy's historical expansion of suffrage rights to marginalized groups, including those without property or paying taxes, the illiterate, national minorities, women, 18-year olds, prisoners, and persons with disabilities.
There are some characteristics specific to non-residents, but a ‘similar political logic’ is at play; that is to say that the ‘demand for ever-increasing inclusiveness seems to be almost an inherent feature of competitive regimes’.
The ECtHR has traditionally exercised restraint when ruling on the essence of voting rights, reflecting the broad discretion afforded to States given the sensitivity of decisions about national elections.
However, on occasion, it has found a violation. For example, the Court has held that while States enjoy latitude in establishing electoral rules, this should not exclude persons from participating in political life and, ‘in particular, the choice of legislature’.
This represents an ‘an ultimate red line around the inner core of the right to free elections which must never be transgressed’.
It is surprising that the Court has not applied this ‘red line’ to non-resident voting rights, particularly considering the high risk of State derogation. Indeed, given that voting rights for national elections are not typically extended to foreigners, citizens residing abroad are unlikely to be able to vote anywhere if they do not have the right in their country-of-origin, representing a de facto derogation from the right.
As Barry explains, suffrage becomes ‘effectively suspended for the duration of the migration’.
As such, sending States ‘have a human rights-based obligation to provide expatriates with such rights’.
Irrespective of where a person feels more connected, this may be their only opportunity to exercise voting rights in at least one national election.
It should be recalled that States may derogate from voting rights only during a public emergency, which has not been the case in any of the ECtHR cases.
The likelihood of derogation is particularly significant in the EU, given its free movement and labour mobility rights. Although retaining local and European voting rights, EU citizens are forced to relinquish national political representation in order to exercise free movement.
Instead of benefiting from both rights, citizens face ‘an impossible choice’. As Kochenov explains, ‘ironically, the more successful the functioning of free movement, the fewer the political rights’.
In this sense, the ECtHR's ruling that the essence of the right is not curtailed if a person can return to their country-of-origin to revive their voting right is at fundamental odds with other EU rights.
The essence of the right becomes more salient when considered alongside concepts of citizenship. The right to vote is ‘very closely associated with citizenship both in popular understandings and in political theory’.
Political theorists from Aristotle to Rousseau to Walzer have understood citizenship to essentially reflect the status of full membership in a self-governing polity. Thus, citizens are those who participate in self-government either through voting or standing for public office.
Indeed, while most civil and social rights have gradually been extended to all residents irrespective of nationality, voting rights remain attached to formal citizenship status.
In this sense, voting has been described as an ‘inherent citizenship right’
and ‘a core right of citizenship’.
Citizenship without voting rights, therefore, would be ‘an alarming construct, calling into question the legitimacy of the use of the notion of citizenship itself’.
Moreover, denial of the vote not only denies a human right but also status as a citizen, challenging an individual's identity as a member of the national community.
For Shklar, the ‘ballot has always been a certificate of full membership in society, and its value depends primarily on its capacity to confer a minimum of social dignity’.
Martin Luther King Jr famously reflected that ‘the denial of the vote not only deprives the Negro of his constitutional rights – but what is even worse – it degrades him as a human’.
Fishkin asserts that denial of political rights sends ‘a powerful message of exclusion and second-class citizenship’.
The denial of citizenship has implications for the protection of other rights. Arendt has observed that citizenship is ‘a right to have rights’,
while Walzer notes that ‘the denial of citizenship is always the first of a long train of abuses’.
Chief Justice Warren of the US Supreme Court opined that ‘citizenship is man's basic right for it is nothing less than the right to have rights. Remove this priceless possession and there remains a stateless person’.
This recognizes the extreme vulnerability of statelessness,
as well as the centrality of the State in implementing of IHRL.
It is estimated that most States recognize dual citizenship.
For some, this distorts the essence of citizenship and voting rights as dual citizens may enjoy an unfair privilege of double voting.
However, there is a difference between having two votes in a single election and having votes in two different elections. Moreover, if it is possible to have connections in two countries, ‘it may be reasonable to have a political voice in both these contexts’.
The ECtHR originally held that the essence of voting rights is not curtailed if an individual can apply for citizenship in their host State. However, the Court later acknowledged that this should not be ‘decisive’, given an individual's interest in voting ‘in the state to which he feels most closely connected’.
The Court, and others, have also recognized that changing one's citizenship may additionally lead to socio-economic disadvantages, including in relation to inheritance rights, property ownership, pensions and other entitlements.
Moreover, ‘since avoiding statelessness and the vulnerability that it entails should be a priority, sending countries should not ask expatriates to give up their nationality’.
It also imposes a burden that other citizens do not have to bear and may ‘engender forms of resentment and damage social cohesion’.
Some theorists have suggested that voting rights be disaggregated from citizenship. With migrants representing 5–10 per cent of the global population
it has been observed that ‘migration decouples citizenship and residence, disrupting tidy conceptions of nation-states as bounded territorial entities with fixed populations of citizens’.
It has been argued that the lack of political rights for non-residents undermines democratic legitimacy and encourages exclusion.
As Beckman observes, ‘perversely, citizenship itself has become the source of unequal rights among people living in the same country’.
To support disaggregation, some have argued for a post-national protection of rights, claiming that universal personhood has replaced nationality-based rights.
Advocates cite the European trend of granting local voting rights to non-citizens,
as supported by the CFREU, CPFPL, and Council of Europe. However, this trend focuses on local voting rights and, in fact, may rather support the nexus between citizenship and national voting rights. In this sense, local voting rights are conditioned on residency and are automatically transferred according to the municipality an individual resides; within their country or elsewhere. In contrast, national voting rights are solely grounded in citizenship, which does not automatically change should a person emigrate.
As such, the disaggregation of voting rights ‘would entail devaluation of citizenship itself’.
Even those open to disconnecting citizenship from associated rights accept that electoral rights, as opposed to economic and social rights, should remain limited to citizens.
Indeed, one of the challenges with disaggregation is that it appears to deal with an effect (voting rights) rather than the cause (citizenship). Rather than amend voting rights, the focus should instead be on examining the criteria for citizenship. In line with this, Walzer advocates extending citizenship to all resident non-citizens: ‘men and women are either subject to the state's authority, or they are not; and if they are subject, they must be given a say, and ultimately an equal say, in what the authority does’.
Walzer, as well as Rubio Marin and Carens,
argue for mandatory naturalization, which may be ‘subject to certain constraints of time and qualification, [but] never to the ultimate constraint of closure’.
By expanding citizenship opportunities, it preserves the value of citizenship and existing State obligations to implement IHRL.
Alternatively, others argue that citizenship be revoked for those who have never lived in the country or have no intention to. Baubock, for example, suggests that citizenship should ‘not be automatically transmitted beyond the first generation born abroad’.
B. Legitimate Aim
As outlined in Section I, the ECtHR has established four legitimate aims for restricting non-resident's right to vote, namely: being less informed on country issues, less able to influence electoral platforms, not directly affected by decisions of the elected body, and having an undue influence on results. The Court has also held that an economic contribution in the form of taxes may provide justification. Additional aims referenced in the literature include the situation of conflict-forced migrants and the home-State political discourse. The legitimacy of these seven aims is assessed below.
1. Less informed on country issues
The Court has held that it is legitimate to restrict voting rights on ‘the assumption that a non-resident citizen is less directly or continuously interested in his country's day-to-day problems and has less knowledge of them’. This assumption is untenable in contemporary global society, where high-speed modes of communication and transportation have minimized the effects of physical absence.
Emigrants can keep abreast of political news through satellite television, the internet, cheaper telephone calls, and more accessible air travel.
As Barry notes, ‘emigrants can be present in their home states, in absentia’.
In addition, the usually more arduous steps necessary to vote externally are indicators of the interest of non-resident citizens in political issues, demonstrating ‘a deeply held desire to participate in the affairs of a country they still feel is their own’.
As with resident citizens, those who are less informed are less likely to participate.
2. Less able to influence electoral platforms
Using the same means, States can reach out to their external citizens more readily. It is now commonplace for non-resident communities to be visited by parties and candidates campaigning for their political, financial, and logistical support.
Moreover, expatriates can play a role in candidate selection and the framing of campaign issues. They can participate in online or postal primary elections to select candidates, make donations to parties and candidates, and mobilize voters within their host country. In several instances, the introduction of external voting has been a direct result of lobbying by expatriates.
The Court's reasoning is further diminished by the fact that several States have purposefully extended voting rights as a means to use their citizens abroad to lobby on their behalf.
This can be a means to promote foreign policy interests in bilateral relations, spread the national language and culture, and promote a democratic and modern image to the global community.
Collectively, this renders the Court's second legitimate aim for limiting expatriate voting as obsolete, as candidates can campaign abroad and non-resident citizens can influence candidate selection and campaign platforms.
3. Not directly affected by parliamentary decisions
The third legitimate aim offered by the Court is that expatriates would not be directly affected by the acts of the bodies they would elect. This argument is grounded on the so-called ‘all-affected principle’, which states that ‘everyone who is affected by the decisions of a government should have the right to participate in that government’.
This causally-based principle tells us that anyone ‘whose fate [is] inextricably bound up with the functioning of the country's institutions’ should be recognized as a political equal.
However, external citizens, it is argued, ‘do not share in the politically determined life of the country; they are not subject to its working conditions and practices, they do not in general pay taxes, their children are not brought up in its education system, and so on’.
Even if they are affected by some decisions, such as those concerning nationality, military service, and diplomatic protection, they are not subject to State authority in the same direct and comprehensive way.
The principle, however, lacks specificity and the degree to which a person is ‘affected’ by the State may be interpreted in radically distinct ways.
As Goodin explains, ‘notice first that whose interests are “affected” by any actual decision depends on what the decision actually turns out to be. Notice second that what the decision actually turns out to be depends, in turn, upon who actually makes the decision’.
The principle may thus encourage a view that resident non-citizens be included in national elections,
or, even, that non-resident non-citizens be included when government decisions have a profound international impact.
In this sense, the principle requires ‘defining the demos decision by decision rather than people by people’.
However, elections are not a vote on a single issue but are rather exercises in determining who will enjoy law-making and enforcement powers on a wide range of issues. A principle of affected interests can therefore not overcome the need to define the limits of the voting population and, as such, represents an effort to recast political theory in the language and structures of IHRL.
A variant of the all-affected principle is the ‘all-coerced principle’. According to Song, the coercion principle differs insofar that ‘a right of participation is owed not simply in virtue of state laws having causal effects on people's basic interests, but rather on the more restricted basis of being subject to state coercion’.
For external citizens, this may imply being subject to the political authority of the State but not its coercive authority to enforce compliance with the law, for example, in respect of taxes or military service. This provides a more defined criterion for limiting external voting rights. However, it raises the controversial argument that a person must contribute in order to be a full citizen (see point 5 below). It also seems unfair that a citizen should be punished for the State's failure to ensure compliance with laws.
It is also clear that non-resident citizens may be affected by decisions despite not being a current resident, as they may maintain property, operate businesses, pay commercial or indirect taxes, or hold investments in the country. Moreover, many non-residents return to their country-of-origin and therefore have a valid interest in their future government.
4. Undue influence on decision-making
The fourth legitimate aim outlined by the Court is a country's desire to limit the influence of citizens living abroad in the making of decisions that do not primarily affect them. As non-residents do not live with the consequence of their vote, it is argued that they will not exercise it with the same care as resident voters who vote responsibly out of self-interest. By allowing such participation, expatriates ‘are evading all the costs of their choices’,
which are instead paid by the residents exposed to the laws of the resultant government.
Concerns have been raised that this may lead to votes for extreme policies. Baubock notes that expatriates ‘often preserve an image of the national culture that is frozen in time’ and that they can ‘be mobilised in support of radical ethno-nationalists who reject the accommodation of national minorities and the resolution of violent conflicts between domestic factions or neighbouring states’.
Yet this not a universal truth and expatriates have often supported democratic transitions in their home States, notably in South America. Moreover, ‘being knowledgeable, informed or moderate are not required or guaranteed among resident citizens’,
and it would be unfair to apply such reasoning to non-resident citizens.
This argument also draws on concerns that external voters lack the information necessary to make a considered decision, the basis of which has already been dismissed. Other arguments highlight controversial cases when emigrant votes were perceived to decide the election results.
However, in such cases the impact of the external vote is modest and, in fact, loses relevance when analysed next to other variables such as political affiliation.
5. Economic contribution
Separately, the Court has historically held that the link between taxation and representation is a reasonable ground for limiting the right to vote for non-residents. The connection between economic contribution and voting rights has also been cited as a reason to extend external voting rights.
Indeed, many expatriates send large remittances to their homelands, invest significantly in businesses, establish commercial links, and, at times, pay social benefits.
Recognizing this, and wishing to encourage further contributions, several States have expanded voting rights to non-resident citizens.
However, remittances are voluntary and do not contribute directly to the State. As such, ‘they are not equivalent to the payment of taxes any more than charitable donations are’.
The transfer of remittances is also unequal; ‘some emigrants choose to participate regularly and intimately, a few choose to leave without looking back, and most fall somewhere between these two extremes’.
This variety in practice does not present a solid and predictable basis for expanding external voting rights.
Moreover, tying political rights to economic contributions is controversial and undermines the principle that all citizens have the same obligations and rights regardless of social status.
This ‘contributivist’ approach implies that ‘only when your taxes are paid do you have a real stake in political affairs’.
This echoes previous discriminatory limitations on voting rights and raises concerns about those who cannot contribute, such as the poor, disabled or elderly.
The linkage between taxes and citizenship has also been rejected by the ICJ in Nottebohm.
6. Conflict-forced migration
The ECtHR has not ruled on the connection between conflict-forced migration and external voting but there is emerging consensus that any restriction would lack legitimacy, as outlined by UN, Council of Europe and OSCE recommendations. The exclusion of refugees would effectively give legitimacy to those who violently forced their migration. Moreover, their absence from the electorate would distort electoral results and lead to political configurations unlikely to promote their return or address their concerns.
Disenfranchisement would also heighten their marginalization and impede reintegration into society. As such, external voting rights for conflict-forced migrants can be seen as a means to protect their political rights when they are unable or unwilling to return, to make amends for past human rights abuses, and to promote post-conflict reconciliation.
South Africa, Iraq and Kosovo all included voting rights for non-residents in elections that determined independence or established post-conflict government. Although questions remain as to how long such rights should remain in place, the extent of conflict necessary for such rights to be triggered, as well as the payment for such modalities, there is consensus that ‘justifying voting rights for forced exiles can be seen as a special case that is not more widely generalisable’.
7. Home state politics
A further aim of external voting may be to gain an electoral advantage or advance an ethno-nationalist ideology. While both aims may be disregarded as illegitimate, it is worth noting the reasoning.
According to some studies, the initiation of external voting in one-third of countries was based on a desire to gain an electoral advantage.
In this sense, a party advocates for external voting only if ‘it expects to win relatively more votes from abroad than its competitors’.
In authoritarian contexts, it has been posited that external voting is ‘aimed at increasing sovereignty over expatriates with resources to be tapped or at reinforcing security through a different means of monitoring communities abroad’.
Neither of these scenarios provides a genuine attempt at expanding political rights, even if the language of citizenship is appropriated.
In other contexts, external voting has been introduced as a means to support ethno-nationalist conceptions of the State, which conceives citizens not as members of the territorial State but as an ethnic group dispersed over several States.
Pogonyia notes that ‘the enfranchisement of non-resident ethnic kin serves ethnic engineering aims and leads to the establishment of an ethnocracy’ that benefits nationalist parties.
Baubock notes that emotional attachments or nationalist sentiments do not suffice for qualifying as a voting citizen, which depend on objective criteria.
The proportionality test provides a basis for determining the validity of restrictions imposed by a State when implementing human rights law. Where such restrictions are made, paragraph 6 of CCPR General Comment 31 provides that States ‘must demonstrate their necessity and only take such measures as are proportionate to the pursuance of legitimate aims’. In doing so, the ECtHR has held that the principle allows for a balance between individual and public interests, while guarding against arbitrariness by requesting States to explain why limitations have been introduced.
In this sense, proportionality can provide a means to accommodate the historical, legal and political diversity of a State while ensuring that States do not overstep their margin of appreciation in deciding how to implement rights.
European State practice is clear, with 44 Council of Europe States granting voting rights to non-resident citizens. The right, as such, does not fall exclusively under a State's margin of appreciation and any departure from the norm clearly risks being disproportionate. This is a position exemplified by constitutional court decisions in Austria and Canada that struck down residency-based restrictions for being discriminatory and disproportionate.
Defined temporal limitations on the right are imposed in two European States, with Germany removing the right after 25 years and the UK after 15. While this is not an unsubstantial period, the imposition of any time limit lacks proportionality insofar that it does not account for the myriad reasons that may explain absence. Although the UK legislature considered different options as to when a non-resident should lose the right,
this does not necessarily mean that the resultant decision was proportionate and represents a fair balance between competing interests. Moreover, the length of time abroad does not necessarily correlate to a subjective loss of connection to the home State.
It is also at odds with the TFEU, which prohibits ‘qualifying periods’ in terms of labour mobility rights.
Nonetheless, the Court held that blanket restrictions on non-resident citizen voting are reasonable due to the burden imposed if a State had to make individual assessments. The Court added that this blanket approach would promote legal certainty and avoid problems of arbitrariness inherent to case-by-case assessments.
Yet, this contradicts the CCPR's stance that blanket restrictions lack proportionality. Moreover, the lack of an individual assessment is contrary to the ECtHR's own rulings on restrictions of voting rights of other groups, such as prisoners or persons with disabilities, which discarded blanket restrictions in favour of individual court decisions. In these cases, the Court held that any automatic and indiscriminate restriction on voting rights lacks proportionality and risks undermining the democratic validity of the legislature thus elected.
The lack of an individual test to ascertain a person's connection to their country, therefore, is not only disproportionate but is inconsistent with other relevant ECtHR rulings. Although the formulation and implementation of such testing may indeed be burdensome on the State (as it has proven in the cases of prisoners and persons with disabilities), it is appropriate that any deprivation of a core human right be accompanied with the most rigorous of processes.
Separately, in terms of restricting voting rights by the type of election, it is of note that only 20 Council of Europe States permit external voting for referenda and only 7 for local elections.
This is in line with the CCPR's conclusions in Gillot, which argued that it is proportionate to limit the right according to the nature and purpose of elections. It also reflects the trend towards granting local voting rights according to residency and national voting rights to citizenship.
It may therefore be proportionate to limit external voting rights in local elections.