To be entitled to cast an external vote, a person must first satisfy the general qualifications for electoral registration and voting that apply in their home country.
The entitlement to vote is generally linked to citizenship, age and residency. For example, a country may only permit a person to vote if he or she is a citizen of that country, is 18 years of age or older and has been resident in that country for at least 12 months. Determining whether a person meets these qualifications is generally straightforward while resident in the home country. However, where a person is not resident in the home country—either temporarily or permanently—determining their entitlement to an external vote generally requires the application of more complex tests of eligibility.
Determining the citizenship of a person who is absent from the home country, particularly where the person has adopted the citizenship of another country, involves interpretation of the applicable laws of citizenship.
Determining a person’s age may raise difficulties if the registration process requires the person to provide proof of age. In some cases, particularly that of refugees, a person may not possess documentary proof of age. Even where a person does possess proof of age, if they are applying to register to vote while outside the home country, providing that proof of age to the registration authority may be difficult. This is an issue that will need to be addressed when determining exactly how a person may register for external voting.
Applying a residency test to a person who is not resident in their home country is perhaps the most difficult aspect of determining entitlement to vote externally. Some countries deal with this issue by providing that all their citizens are entitled to vote for its elections, regardless of whether they have ever having resided in the home country. Others apply rules related to the length of time spent by the citizen in the home country and/or time spent away from the home country.
Some countries also impose further limitations on entitlement that restrict the classes of people who can vote while absent from the home country. For example, some countries limit the right to vote externally to citizens employed in particular occupations, such as diplomats and members of the armed forces. Others restrict voting to those who are resident in particular locations, such as places where there is a specified minimum number of electors or the locations of diplomatic missions of the home country.
Citizenship
Citizenship can be defined as the status of a citizen. A citizen can be defined as a member of a state or a nation. Citizenship carries with it a range of rights and duties. One of the key rights of a citizen who is of voting age is the right to vote.
Citizenship can be conferred on a person in a number of ways. A person can become a citizen by descent, by place of birth, or by naturalization.
Citizenship by descent (jus sanguinis, or ‘law of the blood’) is one of the two internationally recognized legal principles used to determine an individual’s country of citizenship at birth. Generally, where this principle is applied, if one or both parents are citizens of a country their offspring are automatically given this citizenship at birth. Under this principle, it is possible of a person to attain citizenship for a country they have never been in, or to attain citizenship for more than one country if the parents have two different nationalities.
Citizenship by place of birth (jus soli, or ‘law of the soil’) is the other internationally recognized legal principle used to determine an individual’s country of citizenship at birth. Where this principle applies, a person has citizenship of the country in which he or she was born. In some cases, both jus sanguinis and jus soli may apply, and this is another way in which a person may attain citizenship of more than one country.
Finally, a person may acquire a different citizenship by naturalization. While there are several ways in which this can be done, naturalization is usually granted to an immigrant after a specified period of residence.
Citizenship can also be lost. In some cases, naturalization can involve renouncing any previous citizenship held. In other cases, a person can lose his or her citizenship automatically upon becoming a naturalized citizen of another country.
In other cases, a naturalized citizen is permitted to retain other citizenships. Some countries do not permit their citizens to renounce their citizenship (for example, Greece and the United Kingdom (UK)). In these ways, many people can hold dual (or multiple) citizenship.
In determining whether a person is eligible to cast an external vote, an understanding of the relevant citizenship laws is therefore essential. Different countries’ citizenship laws vary. While a person who is currently abroad from a country might have had the status of citizen there before leaving that country, he or she may have lost the entitlement to be a citizen of that country by taking on a different citizenship.
As there are several ways in which a person may obtain dual or multiple citizenship, dual or multiple citizenship is quite common. This is not usually a cause for denying a person the right to vote in any of the countries in which they hold citizenship. However, policy makers may wish to consider whether holders of dual citizenship might have a conflict of interest in some circumstances.
Where a person who is living abroad changes citizenship by naturalization, and in the course of doing so renounces his or her previous citizenship, that person would not retain the right to vote in the country for which citizenship has been renounced.
Where the right to vote while abroad is based on citizenship, it is important that any forms used for electoral registration and for external voting ask the voter whether he or she holds citizenship of the country concerned. In the unlikely event of dual or multiple citizenship being relevant to the franchise, the relevant forms should also ask the elector whether they hold any other citizenship.
In almost all cases, the right to cast an external vote is granted only to citizens of the home country. Citizenship is therefore a minimum requirement for determining eligibility to vote externally. However, some countries, for example New Zealand and Sweden (for elections to the European Parliament) also extend the right to vote externally to residents who are not citizens. In this case different rules from those that apply to citizens are needed to determine whether these non-citizen residents are eligible to cast external votes.
Place of residence
Applying a residency test to a person who is not resident in their home country is perhaps the most difficult aspect of determining entitlement to an external vote.
External electors can be categorized according to a range of typical residential circumstances. The more common categories include:
- citizens resident outside their home country who do not have a fixed intention to return to that country;
- citizens temporarily resident outside their home country who intend to return to live in that country;
- citizens in defined occupations, such as military personnel, public officials or diplomatic staff (and their families);
- citizens resident outside their home country who live in specified countries and who may be subject to special circumstances, such as refugees or migrant workers; and
- non-citizens who have been granted the right to vote in a country through residency but are temporarily outside that country.
These categories can be further qualified by limiting the right to vote externally by imposing time limits on the length of absence from the home country.
The broadest category of residential entitlement to an external vote is the first—that extended to citizens who are resident outside their home country without regard to their intention to return. Several countries extend this right to their citizens. Some allow any citizens living abroad the right to register and vote regardless of the amount of time they have spent away from the country, while others place a time limit on that right.
For example, Belarus, Bosnia and Herzegovina, Estonia, Norway, Poland, South Africa, Sweden and the United States of America all give their citizens living abroad the right to register to vote regardless of the amount of time they have spent away from the country. Countries that impose time limits on this right include Germany (25 years for persons resident in countries that are not members of the Council of Europe), New Zealand (three years for citizens, 12 months for permanent residents) and the UK (15 years).
One rationale for imposing time limits on the right to vote is that the longer citizens stay away from the home country the more they lose their ties to it. Those who have been away from the home country for a long time cannot arguably aspire to make decisions with regard to domestic politics. It is of course difficult to measure the degree of an absent citizen’s attachment to his or her home country. It can depend on more than the length of absence, as the German legislation illustrates. The rationale behind the German provision is that, because of the cultural context, German citizens living in Council of Europe countries are more closely linked to their country of origin. Moreover, because about their geographical proximity they have easier access to the current political information of their home country than they would in other regions of the world (Schreiber 1985).
In some of these cases, citizens may only be registered as external electors after satisfying a minimum residency requirement in their country of citizenship (as in Germany, New Zealand and the UK). In other cases, it is possible that a person who is granted citizenship through descent may be eligible to vote in elections for their country of citizenship even though they may have never been resident in that country.
However, granting citizens living abroad the right to vote regardless of intention to return could result in citizens who have no close links with the country beyond holding citizenship exercising significant influence over the results of elections. The greater the number of citizens living abroad, the greater the influence they could have. Whether this is desirable will depend on the particular circumstances of the country. It may be desirable to extend voting rights to citizens living abroad where large numbers of citizens have left the country as refugees or as a result of civil or political unrest. The 1994 general election in South Africa is an example of such a case. In other cases such an approach has been adopted as part of a post-conflict transition to democracy, as in Cambodia in 1993, and Bosnia and Herzegovina in 1996.
The second category of entitlement to an external vote—the right extended to citizens and other permanent residents who are temporarily abroad and intend to return to their home country—is the next-broadest category. Countries that provide for this kind of voting include Australia (for registered electors who are abroad for six years or less, although extensions may be granted) and Canada (for citizens who are abroad for five years or less).
Granting the right to an external vote to persons temporarily absent from their home country caters for those people who are absent on holiday or who are out of their home country for work, study or personal reasons for relatively short periods of time. This model has the advantage of retaining the right to vote for people who have clear ties to their home country, while ensuring that people who may not have such close ties do not have the opportunity to influence elections in which they do not have a personal stake.
Third, several countries have special entitlement provisions for citizens in defined occupations, such as military personnel, public officials or diplomatic staff, and their families. Usually this involves waiving time limits and/or providing for automatic registration. Some countries that do not have a general entitlement allowing citizens abroad to vote have special provisions that apply only to citizens in defined occupations. For example, Lesotho only provides for external voting for public officials employed at diplomatic missions and their dependents or employees, and the Republic of Ireland only provides for external voting for officials employed at diplomatic missions and for members of the armed forces. Non-resident Indian citizens who are employed by the Government of India in a post outside India (this includes the military) are eligible to register as electors. In most cases, where special entitlement provisions are made for citizens of defined occupations, those entitlements are extended to members of their families resident with them who are otherwise entitled to vote.
Fourth, the right to vote externally can be linked to residence in specified countries and/or may be limited to electors who may be subject to special circumstances, such as refugees or migrant workers.
Such restrictions on the right to vote externally may be pragmatic solutions for limiting the number of persons who are eligible for an external vote. Allowing all citizens to vote while they are abroad can add considerably to the cost of running elections, depending on the numbers involved. It is a matter of judgement whether this additional expense is justified. An interesting example is that of Senegal, where the electoral law states that citizens living abroad have the right to vote if at least 500 of them register with diplomatic missions in the foreign country. The underlying reason for this limitation is a pragmatic one—the financial and administrative costs of implementing external voting in extremely small overseas communities are out of proportion to the increase in electoral participation which its introduction might bring about. However, such restrictions might violate the principle of electoral equality. The scope of this potential danger depends on the number of external electors involved and the geographical distribution of overseas citizens.
Similarly, another pragmatic approach that has been adopted that has limited the categories of citizens entitled to vote externally has been to restrict voting rights to those who are able to attend a particular location to vote. For example, for the Ukraine elections of December 2004, the election law provided that polling stations could be created in ‘diplomatic and other official representations and consular offices of Ukraine abroad, and in military units located outside the borders of Ukraine’. Consequently, 113 polling stations were established abroad, all located in diplomatic and consular offices. For the Iraqi elections of 2005, the Iraq Out-Of-Country Voting Program facilitated polling in 36 cities in 14 countries. Only those Iraqi voters who could attend at one of the specified polling places were able to vote outside Iraq.
Finally, some countries extend the right to vote externally to non-citizen permanent residents. This is sometimes referred to as the ‘franchise for foreigners’. Where such non- citizen permanent residents are normally entitled to vote while resident in the country, they may be permitted to vote if they are temporarily (but not permanently) abroad. For example, in Sweden citizens of any member state of the European Union and citizens of Iceland and Norway are entitled to vote in municipal and regional elections if they have been registered residents of Sweden for three consecutive years on election day. In some cases the rules applying to citizens and non-citizen permanent residents are different. For example, New Zealand citizens overseas are qualified to register and vote if they have been in New Zealand within the last three years; whereas permanent non-citizen residents are only qualified to register and vote if they have been in New Zealand within the last 12 months.
Compulsory voting and external voting
Those countries that have compulsory voting add another layer of complexity to the issue of determining entitlement to vote externally. In general, countries which have compulsory voting allow registered electors to escape a fine for not voting if they have a valid reason for failure to vote. Being absent from the home country would be expected to be an acceptable reason for failing to vote. In Australia, the electoral law specifically states that absence from Australia on polling day is sufficient reason for not voting. However, under a compulsory voting system, failure to vote while absent from the home country may impact on a person’s ongoing right to remain registered to vote externally. For example, Australia removes a person’s name from its register of external electors if the person fails to vote or fails to apply for a postal vote for a national general election.
