Tres problemas estructurales del voto en el extranjero
Las disposiciones legales específicas referentes al registro electoral, los procedimientos de votación y las formas de distribuir los votos entre los distritos electorales admiten muchas combinaciones. En relación con este vasto campo de arreglos institucionales, vale la pena destacar dos cosas: en primer lugar, algunos países han desarrollado disposiciones muy específicas; en segundo lugar, los tomadores de decisiones deben elegir el “diseño más apropiado” para el voto en el extranjero de entre una gama casi interminable de posibilidades institucionales. En este punto se torna muy relevante una interrogante: ¿qué criterios deben considerarse en favor y en contra del voto en el extranjero o de alguna de sus modalidades?
Para tratar de responder a esta interrogante, se pueden examinar tres grandes desafíos que se enfrentan al momento de delinear el marco legal y los criterios normativos que se relacionan con ellos:
- la representación política de los ciudadanos que no residen o no se encuentran en el país;
- la organización de elecciones fuera de las fronteras nacionales, que introduce problemas organizacionales, de transparencia en los procedimientos de votación y de equidad en la competencia; y
- la resolución de controversias si se cuestionan los resultados de la elección celebrada en el extranjero y, por tanto, fuera del ámbito de la jurisdicción judicial.
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.
