Specific
provisions for voter registration, voting procedures, and ways of assigning
external votes to electoral districts can be combined in many ways. Two points
have to be made in relation to this potentially vast array of institutional
arrangements: first, some individual countries have developed highly specific
provisions; and, second, political decision makers must choose the ‘right
design’ of external voting from an almost endless variety of institutional
possibilities. At this point one question becomes most significant. Which criteria
should be considered before deciding in favour of or against external voting or
a certain form of external voting?
To answer
this question we now look at three challenges of external voting which are
essential elements when shaping the legal framework, and the normative criteria
which may relate to them. The challenges are:
- political
representation of citizens who are not resident or not present in their
country of citizenship;
- organization
of elections outside the national borders, which introduces organizational
problems, questions of the transparency of voting procedures, the issue of
equality of party competition and transparency in electoral fraud; and
- the resolution of disputes if
the results of elections held on foreign ground, outside the judicial
territory, are contested.
External
voting: the problem of representation
The
arguments in favour of external voting are related to the democratic principle
of universal suffrage. The basic idea is that every citizen has the right to
participate in every direct election to representative state organs because the
formal–judicial equality of all citizens is guaranteed by the law or the
constitution.
One
normative criterion underlies this argument—political rights are human rights,
the right to vote being one of them. This perspective regards universal
suffrage exclusively as an individual right. There are also, however, two
functional dimensions: (a) contribution the popular vote makes to the creation
of state institutions; and (b) importance of electoral participation to the
legitimacy of the elected institutions.
It follows
that it is desirable to guarantee the right to vote even where special
circumstances, such as illness, disability, and so on, make it difficult for the
citizen to vote. Temporary and perhaps involuntary residence abroad is
considered another special circumstance.
Residency
in the country or even in the electoral district has been one of the classic
conditions of universal suffrage written into national constitutions and
electoral laws, as well as into some international declarations of human
rights. According to the 1969 American Convention on Human Rights (article 23,
2), for example, residency is one of the conditions which may limit the
exercise of political rights. Yet in the current debate about external voting
the requirement of residency has seemingly become irrelevant.
A difficult
problem arises in cases of long-standing residency abroad. Should these
citizens living outside a country keep their right to influence the composition
of the representative organs whose decisions are only binding on citizens
residing inside the state territory? From the point of view of the
theory of political representation, it may be argued that only those individuals
who bear the consequences of their electoral decisions should be entitled to
vote.
This
problem of representation is particularly important in countries which have a
considerable number of citizens living abroad (e.g. El
Salvador, Mexico
or Russia).
In these contexts external votes are likely to become significant or even
crucial for the overall election result. Since the political consequences of
national elections concern mainly the citizens living in the country, the
participation of external voters might be considered illegitimate by the
domestic public. A classic example of such a case is provided by the Cook Islands, where more citizens live outside than
inside the country. Before 1981 all Cook Islanders, regardless of residency,
had the right to participate in national elections inside the state
territory. Under this legal framework, citizens living abroad actually
determined the overall result of the 1978 election to the legislature, as
Albert Henry’s Cook Island Party had flown in a decisive number of voters from New Zealand.
Following an appeal to the courts on the ground that this was unconstitutional,
these votes were disqualified by the court. Furthermore, the parliament changed
the electoral law so that from then on only one single-member electoral
district was reserved for citizens abroad. The influence of overseas citizens
has been limited ever since, and the single overseas electoral district was
abolished in 2004.
Similar
problems of representation can arise in states that are territorially larger,
especially if the pattern of political support among external voters differs
significantly from that among domestic voters. In these cases overseas citizens
would become a powerful factor in domestic politics if they were granted the
right to vote. Political forces which would benefit would then be likely to
deem external voting to be legitimate, while those who would suffer would be
likely to take the opposite view. Under these circumstances, the legitimacy of
the political system may be brought into question by the introduction of
external voting. This was the case in Croatia during the Yugoslavian wars
of the 1990s. In this period, the government of President Franjo Tudjman took
advantage of the nationalistic leanings of the Croats residing abroad. The
government parties passed an electoral law providing for 12 ‘external seats’
out of 127 in the parliament. As expected, in the 1995 election all those
12 seats went to Tudjman’s Hrvatska Demokratska Zajednica (Croat
Democratic Union, HDZ). The institutional structure of external voting helped
the incumbent government to win a majority, and there were vehement complaints
from both lawyers and public opinion. In the new electoral law of 1999, worked
out jointly by the government and the opposition, the fixed number of
extraterritorial seats disappeared. Instead, a new allocation procedure made
the number of external seats dependent on the ratio of the number of external
valid votes to the total number of domestic valid votes. This institutional
reform of external seats has contributed to increase the legitimacy of
elections in Croatia.
In markedly
turbulent contexts, a thorough and profound analysis of the political effects
of external voting is especially necessary. The question has to be answered
whether the introduction of external voting will increase the legitimacy of a
democratic system or undermine it by being perceived as an instrument of
specific political interests. In any event, the institutional form of external
voting—if it is appropriate at all—needs to be developed with the involvement
of major stakeholders in the electoral process, and thus to reflect the
specific context. There is no ‘one size fits all’ approach.
External
voting: the challenge of electoral organization
Apart from
the formal and legal difficulties described above, the acceptance of external
voting poses a serious problem of electoral organization. Elections held beyond
a country’s borders usually imply organizational problems, greater personal and
financial cost, and greater logistical effort per voter than in-country
elections. In the light of these practical difficulties, a crucial problem is
how to guarantee the maintenance of the principles of universal, equal and
secret suffrage, maintain the equality of electoral competition, and prevent
offences against the electoral law.
Countries
which have external voting must come to terms with the fact that the freedom
and security of the votes of their citizens cast abroad may not be guaranteed
to the same extent as those cast inside the country. Electoral management
bodies cannot fulfil their functions autonomously in foreign host countries.
They have to collaborate with the institutions of the host country and possibly
also with branches of the executive of the home country (typically the foreign
ministry and ministry of the interior). How is registration abroad to be
organized? How are double registration and double voting based on different
documents to be prevented? What about the political rights of persons living
illegally in the host country?
Ensuring
that electoral procedures are free of influence by party interests may be a
problem for countries which face challenges in organizing legitimate elections
at home, especially if they have a great number of citizens not only living
abroad but also concentrated in one single country. The electoral campaign may
take place among external electors with no effective control by the
administrative bodies of the home country. The possibility of interference by
political actors which are not subject to the legislation of the home country
aggravates the danger of the equality of electoral party competition being
violated.
External
voting and electoral dispute resolution
The
practicalities of electoral dispute resolution may involve organizational
problems similar to those that can be seen in the practical aspects of
organizing external voting. When irregularities are alleged, documents may not
be readily available. There may be physical problems in holding hearings and
summoning witnesses. As a result, the quality of judicial decisions may be more
contentious and their implementation more difficult.
A
preliminary summary of the structural problems
The degree
of fairness, transparency and electoral justice of external voting bears on the
whole electoral process, especially if the results abroad deviate greatly from
the in-country results. In debating proposals to introduce or maintain external
voting, issues of electoral justice—the transparency of electoral registration,
the equality of electoral competition, the legal conduct of the act of voting,
and the control mechanisms to ensure all of these—are essential in informing
the process of decision. When citizens living abroad are claiming the right to
vote, denying it may result in some loss of legitimacy. But it is equally
important to bear in mind that an external voting process which is perceived as
biased in favour of particular political interests or as chaotic may cause
electoral events to lose legitimacy in the eyes of the domestic public.
