i. Requirements
The right to “universal suffrage emphasises inclusiveness
as well as non-discrimination within the group of persons to whom the right to
vote is granted.”[i]On
this point, international law is clear and further establishes (ICCPR s.25)
that. “the rights to vote and
to be elected should be enjoyed by citizens without discrimination on the basis
of race, colour, sex, language, religion, political or other opinion, national
or social origin, property, birth, or other status.”[ii]
Therefore, such a right has to
be enacted at the highest legal level (in the Constitution, for instance).
The right to vote has to be seen as a very important constitutional right in
any constitutional democracy.
International law is also clear, however, that
limits on the right to vote may be applied provided that such restrictions are
reasonable and objective[iii]
and not applied arbitrarily. Both a Constitution and enacted laws can regulate
other requirements demanded from voters to be entitled to vote.
There exist some common requirements which must be met in order to allow an
individual to exercise their right to vote. Included among such
requirements are citizenship, residency, age
and specific categories such as prisoners, those with mental incapacities and active
military and police.[iv] It is clear, however, that any extra
requirement can not be discriminatory.
ii. Limiting the
Right to Vote
Individuals have a legal right to vote and to be voted. However, the
use of such rights can be limited on conditions which have to be set down in
democratic regulations, and which can be listed as follows:
- First of all, since we
are dealing with a limitation of fundamental rights, a fundamental
principle must be honored: every single limitation imposed on fundamental
rights has to be previously established under the law.
- Besides, laws restricting
fundamental laws must be interpreted in a very strict and constrained way.
Analogical reasoning is not a valid method of interpretation when
fundamental rights are at stake.
- The upholding of
fundamental rights has to be preferred to any other consideration.
In respect to electoral issues, interpretations favoring the full
participation of citizens are better than others.
- They must be applied in a
non-discriminatory way. In other words, in the face of identical
situations, identical limitations will be applied, without any personal
consideration whatsoever.
- Limitations to the right
to vote must aim at the achievement of a free and more democratic
electoral process. Limitations imposed on both the right to vote and
the right to be voted are justified as long as they produce a more
successful execution of the right to vote or of the right to be voted from
a collective point of view.
There must be an independent authority empowered
to control decisions related to limits imposed on fundamental rights.
Usually such authority can be identified with the electoral authority or
with the Judicial Branch of Government. Any limitation imposed on
fundamental rights must be judicially reviewed. Examples of unreasonable
restrictions on the right to vote would include, “those based on “race”, sex, religion, ethnic
origin, (past) political affiliations, language, literacy, ownership of
property or ability to pay a registration fee.”[v]
Nevertheless, reasonable limits on the right
to vote have been established in international law.
1.
Citizenship
Usually, citizenship presupposes the existence of nationality seen as a
legal connection between an individual and a State. Such a connection
represents a requirement demanded from voters which has an historic
justification. To be part of a political community allows citizens to
participate in public affairs.
Nationality and citizenship are not always twin concepts: such a
distinction is important for those States in which inhabitants and citizens
have different nationalities, because they have different historical
backgrounds, different cultural backgrounds, and different political backgrounds.
Besides, it is also important to remember that many times citizenship
presupposes adulthood. A distinctive characteristic of a State is based on how
sovereign it is, and to develop such a characteristic it is necessary to know
who can be seen as citizens. Such a determination is usually developed by both
the Constitution, and the laws. Both have to determine in a precise way
who is a citizen, according to rules based on the place of birth, age and other
elements. Both have to establish, therefore, what other requirements have
to be met in order to achieve nationality or citizenship: to be considered as a
legal resident in the country, the relation between the alien and the new
country, marriage, parenthood and other legal connections to some nationals,
and so on.
Bearing this in mind, it can be claimed that citizenship is a legal
concept, not a political one; both the Constitution and the laws of each single
country determine when someone can considered as a national. In some
countries, citizenship is not enough to exercise the right to vote, (especially
when citizenship has been acquired on grounds different than birth). Usually, in
such cases in order to vote it is a requirement as well to live for a while in
the country where the election is going to take place.
The immediate relationship linking citizenship to the right to vote, has
lost some ground, sometimes as a consequence of historical and cultural
reasons, on the one hand, or as a consequence of other reasons such a
migration, or the obligations derived from international treaties.
Usually, when provisions are not set down legally, foreigners are allowed
to vote in municipal elections. There is a powerful reason behind such an
authorization: legal foreigners do participate in the daily life as any other
individual does. Besides, municipal elections do not have a very
influential political scope. The Treaty of the European Union of 1992, for
instance, endorses the right to vote and the right to be voted for local posts
in all the Union’s countries. Some similar precedents can be found in
Denmark, Sweden and Norway. The British case is quite interesting; there,
citizens of the Irish Republic and the Commonwealth have also a right to vote
in the British Elections.
Likewise, it is important to mention the regulation of the election of
members to the European Parliament. Such regulation pioneered many
efforts which can now be seen as typical (cfr. The Election of Members to the
European Parliament). There, European citizens are allowed to vote
whatever their residence might be. They also can be voted when their
names appear in ballots voted in a European country different to their own.
Many conflicts can arise from the regulations surrounding nationality.
Such is the case some of the former Soviet Republics have faced (cfr. The
Minorities Excluded from the Right to Vote in the
Difficulties to be a Russian National). The restriction of citizenship to individuals
of certain countries (from both a historical and a cultural point of view) has
curtailed the right to vote of many different individuals.
2. Residence
An individual’s residence can
be relevant to voting rights from two different points of view. First,
foreign citizens can have a right to vote in an alien country’s local elections
(they can even get the citizenship of the country in which they reside). Second,
living in a foreign country can have a detrimental effect on foreign residents’
voting rights.
The place of residence is very important for local or regional elections,
and it can even be very important for electoral registration. In some
cases, particularly in those related to advanced democracies, citizens can vote
in regional or national elections living abroad. In such case, electoral laws
allow them to send their votes by mail, to vote in their consulates, or to vote
in other places (as the right of soldiers, or diplomats living abroad). There
are, however, some countries in which such is not the case. Voting abroad
is very important for countries affected by massive and critical migrations.
Some experiences can make irrelevant where the actual voting takes place.
In Costa Rica, for instance, votes can be cast at ATM Machines. It
is worth mentioning, however, that the places in which voters do live is very
important to determine the electoral territory (not the voting place) in which their
vote will be counted. The voter register
draws clear borders separating electoral territories which is important to
determine which election is impacted by voters.
3.
Age
The age requirement to vote has followed the evolution towards universal
enforcement of the right to vote. From a historic point of view, the age
to vote has not matched the age to be punished for a crime. As a matter
of fact, voters (around 25 years) were older than those criminals undergoing
punishment. Different voting ages were also established for women. However,
the great majority of nations have set down that young individuals of eighteen
years are citizens and can vote.
Usually the age to vote is determined in the Constitution, for it
represents a limitation against a fundamental right. Even though
countries differ in respect to how old a person can be to be held accountable
for a crime, there is a universal trend towards identifying adulthood to civil
rights at eighteen years old.
4. Other Restrictions
Other specific restrictions on the right to vote
have been applied to prisoners convicted and serving a sentence, persons with
mental incapacities and active military and police. The legal framework should exercise caution
that such restrictions are minimal and proportional. In fact the trend, “is to broaden the franchise, for example, by
requiring a court proceeding to determine that a person does not have the
capacity to make an informed electoral choice, by allowing military and police
personnel to vote and by limiting restrictions on the voting rights of those
convicted of crimes in accordance with the principle of proportionality of
punishment to the nature of the crime.”[vi]
[i] European Commission and NEEDS, Compendium, 11.
[ii] DRI and The Carter Center, Strengthening International Law, 29.
[iv] Patrick Merloe, Promoting Legal Frameworks for Democratic
Elections, 12.
[v] OSCE, Election Observation Handbook, 60.
[vi] Patrick Merloe, Promoting Legal Frameworks for Democratic
Elections, 12.
