Voice after Exit, European Edition

I wrote last year about a court challenge by two Canadian citizens living in the United States to a  provision of the Canada Elections Act, S.C. 2000 c. 9 (CEA), which prohibits Canadians who have resided abroad for more than five consecutive years (except members of the Canadian forces, civil servants, diplomats, and employees of international organization) from voting in federal elections. (The applicants or their lawyers have set up a website documenting their case, on which they have made available their application, affidavits, and exhibits ― which I think is a very commendable thing to do in a public interest case like this; a more general website advocating voting rights for Canadians abroad is here.)

In Charter cases such as this, courts often refer to the law of other countries, particularly when deciding whether a limitation of Charter rights is “demonstrably justifiable in a free and democratic society” and so constitutional pursuant to s. 1 of the Charter. So a recent decision of the European Court of Human Rights on this issue is worth commenting on.

The Court was faced with a challenge by Harry Shindler, a British citizen resident in Italy to legislation disenfranchising citizens who have lived abroad for more than 15 years. Whatever the situation of expatriates might have been in the past, Mr. Shindler argued, it is now easy for citizens living abroad to remain in contact with and engaged with the affairs of their home country. In his own case, he receives a pension from the U.K., pays taxes there, and is an active member of a number of British organizations. And he remains, of course, entitled to return to the U.K. at any time. The U.K. government, however, claimed that the ties between an expat and his home country wither over time, and that the small number of British citizens who register to vote overseas supports this contention. Although some citizens retain strong ties with their home country, it would be impracticable to premise the right to vote on each person’s engagement; a one-size-fits-all rule is necessary.

The Court found that, under the European Convention on Human Rights, the right to vote could be limited to further “any aim which is compatible with the principle of the rule of law and with the general objectives of the Convention” (par. 101). It also referred to its prior case law, in which it held that limiting expatriates’ voting rights was permissible. That is because

 first, the presumption that non-resident citizens were less directly or less continually concerned with their country’s day-to-day problems and had less knowledge of them; second, the fact that non-resident citizens had less influence on the selection of candidates or on the formulation of their electoral programmes; third, the close connection between the right to vote in parliamentary elections and the fact of being directly affected by the acts of the political bodies so elected; and fourth, the legitimate concern the legislature might have to limit the influence of citizens living abroad in elections on issues which, while admittedly fundamental, primarily affect persons living in the country (par. 105).

The court takes note of the social and technological changes that have made it easier for expatriates to retain their ties to their home countries. It also observes that various European bodies concerned with democratic rights have not (yet) concluded that countries were required to grant expatriates an unrestricted right to vote, although agreement that this was a good idea seemed to be emerging. And it holds, in somewhat conclusory fashion, that the disenfranchisement of expatriates after 15 years, “which is not an unsubstantial period of time” (par. 116), is not disproportionate to the government’s objective of ensuring that only those citizens with a sufficiently close connection to the U.K. be able to vote. An individualized assessment of a citizen’s ties to his home country would be too much of a burden to impose on the state.

I do not find this decision persuasive. The whole idea of expatriates otherwise lacking interest in the affairs of their home country suddenly showing up to vote strikes me as quite fanciful. The fact that few British citizens abroad register to vote may or may not suggest that most expatriates do not care, but it certainly suggests that those who do not care will not bother with voting. It is only the committed (few) who will take the trouble. The alleged objective of the disenfranchisement of expatriates is, in my view, nothing more than a post hoc dressing up of an old prejudice, no longer warranted if it ever was. One could also argue that the distinction between residents and expatriates based on their assumed level of knowledge about politics is also likely to be illusory, or at least rather less significant than usually assumed, because of the serious problems of political ignorance that affect the democratic process of every country (which Ilya Somin frequently discusses on the Volokh Conspiracy). So while it is true that an individualized assessment of engagement as a qualification for voting would be very burdensome and perhaps impossible to administer objectively and impartially (though prof. Somin has argued for similar assessments of political knowledge as a condition for extending the franchise to minors), this is really beside the point. There is simply no good reason for the law to distinguish between resident citizens and expatriates, regardless of how that distinction might be implemented.

Before concluding, I want to mention one feature of the decision of the European Court of Human Rights that I find puzzling: the attention devoted to the right, or lack thereof, of people disenfranchised by their country of nationality for residing abroad to vote in elections in their country of residence. It seems to me that the right to vote does not attach only to a person, so that everyone ought to be able to vote somewhere―anywhere―but, so long as one is able to vote somewhere, there is no problem with denying him the vote elsewhere. A right to vote is a right to participate in the political life of a specific community. Being granted permission to participate in the life of another community cannot remedy one’s exclusion from that to which one always belonged (nor does denial of such a permission make the exclusion any worse).

However that may be, I retain the view that I expressed in my original post on this topic:

[T]he denial of this right to those living abroad looks perfectly arbitrary. As with the prisoners [whose disenfranchisement the Supreme Court held to be unconstitutional in  Sauvé v. Canada (Chief Electoral Officer), 2002 SCC 68, [2002] 3 S.C.R. 519], it is a judgment that they are not morally worthy to vote – and such judgments are not open to Parliament, according to Sauvé.

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