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.
