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. 

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]