10 Jul Emerging Voices: Voting Rights of Expatriates in the European Court of Human Rights
The European Court of Human Rights has consistently held that the undertaking in Article 3 of Protocol I of the European Convention on Human Rights (ECHR) to hold ‘free elections’ which ‘will ensure the free expression of the opinion of the people in the choice of the legislature’ entails an individual right to vote (see e.g. in Hirst (no .2). ). While the Strasbourg court pronounced that ‘the presumption in a democratic state must be in favour of inclusion’ and that ‘any departure from the principle of universal suffrage risks undermining the democratic validity of the legislature thus elected and the laws it promulgates’ (Hirst (no .2), ), the court has hitherto failed to develop a principled approach regarding the circumstances in which such ‘departure’ may be justified. Instead, it has emphasised that ‘[a]s regards, in particular, the choice of electoral system, the Court reiterates that the Contracting States enjoy a wide margin of appreciation in this sphere’ (Sitaropoulos, [65-66]), as ‘[t]here are numerous ways of organising and running electoral systems’ (Id; also Shindler, ).
The margin of appreciation doctrine has received both scorn and praise. This post does not concern its general application; rather, it is contended that the court’s voting rights jurisprudence has conflated questions relating to choice of electoral systems (‘First-Past-The-Post’, Alternative Vote, Proportional Representation, Single Transferrable Vote, and the like) with questions relating to voting eligibility. Even if states should enjoy a margin of appreciation which takes into account the ‘historical development, cultural diversity and political thought within Europe’ (Hirst (no .2), ) when their choice of system of government is appraised, according states a ‘wide [but] not all-embracing’ (Hirst (no .2), ) margin of appreciation in determining voting eligibility detrimentally affects fundamental democratic rights of individual Europeans, as Strasbourg’s jurisprudence concerning voting rights of non-resident citizens (expatriates) exhibits.
All democratic states set eligibility criteria for elections of their institutions of government. Alongside the ubiquitous exclusion of non-citizen residents (at least from) national elections of their state of residence, some states – including members of the Council of Europe – impose residency requirements which disqualify expatriates during (part or all) of their period of absence. Consequently, otherwise eligible citizens of one member state of the Council of Europe residing in another member state can be excluded from elections of their state of citizenship and from elections of their state of residence.
The Strasbourg court has described the UK’s legislation disenfranchising all convicted adult citizens for the duration of their prison sentence as a ‘blunt instrument’ that is ‘general, automatic and indiscriminate’ (Hirst (no .2),  (see also the First Section Chamber decision in Frodl, ; Elsewhere, I have critiqued the apparent volte face in Scoppola (no. 3), ). By contrast, in its expatriate voting jurisprudence, the court condoned general eligibility criteria which do not account for individual circumstances. For instance, in Hilbe (concerning Lichtenstein’s eligibility criteria, requiring citizens to reside in Lichtenstein at least a month prior to the polling date), the Fourth Section Chamber held that ‘[i]t is possible that the applicant has not severed ties with his country of origin and that some of the factors indicated above are therefore inapplicable to this case. However, the law cannot take account of every individual case but must lay down a general rule’.
It is submitted that, in the context of expatriate voting, the role of the Strasbourg court as the judicial body of the Council of Europe is to ensure that individual Europeans do not ‘fall between the cracks’ of divergent general rules. The claim that individuals are stakeholders both in elections of their state of habitual residence and in elections of their state of citizenship (to which they have an unqualified right to return), and should thus be enfranchised in both elections, is a strong one. Indeed, stake-holding may be quite evident in referenda such as the looming UK referendum on membership of the EU. However, at present, most states apply citizenship voting qualifications which exclude non-citizen residents; hence, expatriates’ voting rights must be guarded. Moreover, were residency to replace citizenship as (the) general eligibility rule (as per local elections in most European jurisdictions), then voting rights of individuals qua expatriates should not become dormant before they gain voting rights qua non-citizen residents (the proposed European Citizens’ Initiative to adopt uniform EU legislation enfranchising nationals of one EU member state residing in another EU member state in the latter state’s elections, and the ensuing debate, are quite instructive in this regard).
An individual ‘electoral limbo’ should, ideally, be averted globally, so that (to use Hannah Arendt’s stipulation in The Origins of Totalitarianism) every individual will have (a) ‘political space in the world which makes opinions significant and actions effective’. However, institutionally, the Strasbourg court cannot scrutinise practices of states which are not members of the Council of Europe. By contrast, it can – and should – redress predicament arising from legal arrangements which result in nationals of one member state of Council of Europe residing in another member state of the council of Europe being effectively left excluded from electoral processes in both states.
In a case concerning the legal disqualification of a British national residing in Brussels, (Doyle), the Fourth Section Chamber observed ‘[i]t is also open to the applicant, whether or not he so wishes, to seek to obtain the vote in the country of residence, if necessary by applying for citizenship’. However, even on the view that state citizenship should remain a basis for enfranchisement, states may refuse naturalisation requests with no legal redress under the ECHR. Moreover, it is hard to contemplate why the possibility of future enfranchisement in the state of residence should serve as a basis for justifying current exclusion from elections of the state of origin.
In Strasbourg’s most recent expatriate voting judgment, handed down on 7 May 2013, the Fourth Section Chamber upheld Section 1 of the United Kingdom’s Representation of the People Act 1985 (as amended in 2000), which disqualifies UK citizens from participation in UK elections after fifteen years of residence abroad. The court observed (Shindler , [73-75]) that three member states disenfranchise most of their expatriates (with limited exceptions for diplomats, servicemen and the like); in thirty-five member states, all expatriates retain their voting rights regardless of the length of their period of absence; nine member states, including the UK, apply divergent tests to disqualify expatriates whose residence abroad is not deemed to be temporary.
The court noted (Id, ) that non-judicial bodies of the Council of Europe (such as its Parliamentary Assembly) ‘had demonstrated a growing awareness at European level of the problems posed by migration in terms of political participation in countries of origin and residence’. Nonetheless, it concluded (Id, ) that ‘the legislative trends are not sufficient to establish the existence of any common European approach concerning voting rights of non-residents’, and that ‘the margin of appreciation enjoyed by the State in this area still remains a wide one’. With respect, it is precisely because there is no common ‘European approach’ that the right to vote of individual Europeans is seriously compromised: the UK disenfranchises its citizens based on their continuous residence abroad, whilst other members of the Council of Europe where these UK citizens reside exclude them from their elections qua non-citizen residents.
Interestingly, the upcoming Section 2 of the Scottish Independence Referendum (Franchise) Bill excludes non-resident Scots from participation in the 18 September 2014 referendum, whereas anyone who is ‘a Commonwealth citizen, a citizen of the Republic of Ireland or a relevant citizen of the European Union’ will be enfranchised. Therefore, if the bill is adopted, the franchise will be based on selective residency, and will exclude Scottish expatriates.
The Grand Chamber observed in Refah Partisi,  that ‘[d]emocracy is…a fundamental feature of the European public order’. In Sitaropoulos , it emphasised that ‘the exclusion from the right to vote of any groups or categories of the general population must be reconcilable with the underlying purposes of Article 3 of Protocol No. 1’. Indeed, the Strasbourg court has insisted that legislation must not ‘curtail[s] the rights in question to such an extent as to impair their very essence and deprive them of their effectiveness’ (cf Gitonas, ). The court’s expatriate voting jurisprudence cuts against fundamental tenets of the ECHR, and in doing so fails to fully engage with contemporary ramifications of the voting – state citizenship nexus in an age of migration.