Almost by
definition, the dilemmas and the level of complexity faced by those designing
and implementing a mechanism for external voting differ widely from one context
to another. They depend on the specific conditions, demands and expectations of
every country and are related to legal, institutional and socio-political
factors, as well as financial, technical and operational issues. Developing a
model that tries to incorporate migrant workers residing abroad will therefore
undoubtedly create some additional challenges and complexities.
It must be
borne in mind that, even though the concept of migrant workers refers to a real
phenomenon, in the end it represents an analytical category that is very
difficult to translate literally when designing the details of an external
voting mechanism. The most suitable way to determine the extent to which a
mechanism can really include migrant workers will therefore be first to
identify some common elements of the phenomenon of international migration for
working purposes and then from those elements to identify the requirements the
external voting mechanism needs to fulfil in order to promote or guarantee the
inclusion of migrant workers.
From this
perspective, in general terms, we can say that there are four factors which
characterize the phenomenon of international migration for economic or work
reasons.
1. The first is its massive scale, that is, the
fact that it involves a significant proportion of the population from the
countries where the flow originates. This normally means that the share of the
population that would be entitled to vote but is resident out of the country
represents a significant percentage of the national whole. Consequently, the
size of the diaspora not only presents a number of challenges in terms of
organization and electoral logistics if an important segment of potential
voters is to be enfranchised; it also means that the candidates can speculate
on the possible influence of the diaspora on the outcome of an election. Even
if the available comparative statistics seem to prove the contrary, in the
countries that are discussing or trying external voting for the first time, it
is common for different political forces to think that the potential universe
of the population residing out of the country and eligible to vote will fulfil
the requirements needed to register as a voter and will actually vote.
2. This phenomenon usually involves less
developed countries. Persistent or recurrent problems related to economic
growth may impose certain budget restrictions on the choice of a mechanism for
external voting, or at least limit the potential range of available options.
3. Even if the natural destinations of the
flows of international labour migration are the most economically developed
regions or countries, the dynamics of the flows can easily combine patterns of
geographical concentration and dispersion. Even though there are instances of
international migration that is highly focused (such as Mexican workers
migrating to the United States, where over 95 per cent of the labour migrants
from Mexico are concentrated) and there are certain strongholds with the
highest concentrations (for example, a large proportion of migrant workers from
the Dominican Republic are in New York), usually those host regions or
countries are more or less diversified. Once again, this factor may pose
financial, organizational and logistical challenges regarding the design and
coverage of an external voting mechanism.
4. Because of the predominant migration
policies in the main countries of destination, an increasing proportion of
migrant workers are illegal (or non-documented) workers. This issue requires
two important clarifications. First, although the distinction between legal and
illegal migrants may be important from the point of view of the host country,
from the perspective of the home state that is interested in promoting an
external voting initiative that will benefit all its citizens abroad, such a
distinction should not be applicable to the conception and formal design of an
external voting mechanism, which would place the state in the unacceptable
position of discriminating against its own nationals depending on their
migratory status abroad. Second, on the other hand, the fact that a fair
proportion of the potential electorate abroad is made up of illegal migrant
workers cannot be overlooked when designing and operating an external voting
mechanism which aims to incorporate them. The situation of non-documented
migrant workers can have an important effect on their ability to fulfil the requirements
for registering as electors or their ability to vote. The irregular situation
in which these people live in the host country normally makes them reluctant to
approach the authorities of their country of origin in order to follow any
official procedure, even those related to the protection and defence of their
fundamental rights, since they fear that to do so would expose their position
and lead to sanctions or reprisals. It is by no means certain that the
opportunity to exercise their voting rights is a sufficient incentive in itself
to overcome such reluctance and fear.
Under these
conditions, it is clear that an external voting mechanism of which the main
objective is the effective incorporation of migrant workers who are living
temporarily or permanently out of their country of origin poses challenges and
requires additional effort in terms of its conceptual design and operational
characteristics. Ideally speaking, the mechanism must provide the largest
possible coverage in order to take account of a massive number of electors in a
diaspora which combines patterns of geographical concentration and dispersion.
It also needs to offer flexible and accessible options for the registration of
electors and the casting of votes, taking into account prevailing conditions as
well as the perceptions and expectations of illegal migrants. Both the law and
comparative experience indicate that there are models and variants that can be
adjusted to practically every need.
In this
sense, a first problem is that, if specific needs or exigencies are to be
accommodated, the available options are often constrained by budgetary
limitations. Undoubtedly the existing technological models and options may make
it possible to design an external voting mechanism that is able to incorporate
tens or hundreds of thousands of potential voters in the regions or countries
concerned (and not always concentrated in the main urban areas) and to offer
them broad facilities or options for registration and voting. However, it is
clear that the design and operation of such a mechanism would be very costly
and even beyond the means of many of the emerging or restored democracies.
Another
determining factor may relate to the ability to reform or renew the electoral
system applied within the country when the external voting mechanism is
being shaped. This ability to reform or innovate does not mean budgetary issues
related to the design or operation of the external voting mechanism but the political
ability to pass the necessary legal changes to support and provide a legal
basis for the mechanism. Furthermore, it is practically impossible to replicate
electoral procedures and mechanisms that are normally used within the country
when shaping an external voting mechanism. This is linked partly to the
principles of international law regarding the extraterritorial enforcement of
the law and partly to practical restrictions. Thus, the very design of an
external voting mechanism must take into account the need to consider and make
possible the review, modification and reform of the electoral mechanisms and
procedures currently used in the country.
If the
current electoral system enjoys a high level of confidence on the part of
political forces and public opinion, and has credibility, it can be easier to
introduce the reforms required for external voting on the understanding that
this will almost always imply some kind of changes, for example, to the rules,
procedures and timetabling. On the other hand, if the internal electoral system
is a source of controversy or if it lacks credibility, the debate on external
voting can be a new source of controversy, and therefore complicate the process
required to negotiate and pass the required reforms.
Finally, it
is worthwhile mentioning that international law recognizes the right of states
to adopt juridical norms with extraterritorial range provided that those
juridical norms regulate acts taking place within their own territory. From
this perspective, the ability to regulate issues related to external voting is
clearly delimited. A country can regulate external voting whenever its
regulations do not have extraterritorial effects and are subject to the
limitations imposed by the laws of the host countries.
This
principle, although generally valid, has to be qualified, however, when it is
considered in the light of the framework of relations among states that are
heavily involved in the international migration phenomenon: an external voting
initiative can have practical effects within these relations, not necessarily
at a formal level, but especially and fundamentally as regards the construction
of a favourable context to guarantee its viability and efficacy. In this
regard, it might be relevant to take into account the perceptions and attitudes
of public opinion in the host country towards migrants in general, and
especially towards migrant workers. If migrant workers are believed or
perceived to be the group that will benefit most from the opportunity to vote
from abroad, the matter can become highly complex, particularly if an important
or a majority migrant sector happens to be in an irregular or undocumented
situation. There is a big difference between an initiative that is not aimed
expressly at migrant workers, or addresses them only marginally, and one that
is expressly intended to benefit them, particularly if they are perceived as a
problem by important sectors of public opinion in the host country. Whatever
the reason for it (and the causes can be very different), prejudice on the part
of public opinion against migrant populations (and not only against migrant
workers or people in irregular situations) could seriously reduce the host
country’s willingness to offer the required support and facilities. At the same
time, it could also seriously affect the potential beneficiaries’ motivation to
participate in elections because of fear of reprisals.
Other
aspects related to the nature of the legal and political system of the host
country, which could impede or help an external voting initiative, also have to
be considered. As a general rule, the more democratic, open-minded and plural
that political system is, the smaller the obstacles or difficulties will be to
its allowing and even cooperating in the organization of elections of another
country within its national territory.
