The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Earlier today, the Supreme Court of Canada issued a decision striking down a law that banned Canadian expatriates from voting if they had resided abroad for over five years. The decision raises some more general issues about expatriate voting that go beyond the specific legal questions under the Canadian Constitution. The Toronto Globe and Mail summarizes the ruling here:
The Supreme Court of Canada has ruled voting restrictions on expatriate citizens are unconstitutional.
Two Canadians working in the United States, Gillian Frank and Jamie Duong, challenged federal voting restrictions after being unable to vote in the federal election of 2011. At the time, the law said non-resident citizens could not vote if they had lived more than five years abroad.
In December, a Liberal bill extending voting rights to long-term expatriates received royal assent. But at stake in the Supreme Court ruling was whether those voting rights could be taken away by a future government….
The court ruled 5-2 that the now-repealed law was unconstitutional. "The disenfranchisement of these citizens not only denies them a fundamental democratic right, but also comes at the expense of their sense of self-worth and their dignity," Chief Justice Richard Wagner wrote for four of the judges in the majority. (A fifth judge wrote concurring reasons.) "These deleterious effects far outweigh any speculative benefits that the measure might bring about."?
The two dissenting judges, Justice Suzanne Côté and Justice Russell Brown, said that the government had put a reasonable limit on the right to vote by linking it to Canadian residency.
The full text of the decision in Frank v. Canada is available here. The case raises more general issues about what is it that qualifies individuals for voting rights in a democracy, and how long-term expatriates fit into that framework. In part of its analysis, the majority opinion concludes that the government lacks any significant interest in excluding expatriates from the franchise:
Since voting is a fundamental political right, and the right to vote is a core tenet of Canadian democracy, any limit on the right to vote must be carefully scrutinized and cannot be tolerated without a compelling justification. Intrusions on this core democratic right are to be reviewed on a stringent justification standard. Reviewing courts must examine the proffered justification carefully and rigorously rather than adopting a deferential attitude…
In this case, it must be shown that the infringement of non-residents' voting rights is rationally connected to the legislative objective of ensuring electoral fairness to resident voters. Here, there is no evidence of the harm that these voting restrictions are meant to address. No complaint has been identified with respect to voting by non-residents, and no evidence has been presented to show how voting by non-residents might compromise the fairness of the electoral system. Furthermore, it has not been definitively shown that a limit of any duration would be rationally connected to the electoral fairness objective. Overall, however, it is not necessary to come to a firm conclusion on this point in view of the result at the minimal impairment stage.
By contrast, the dissenters contend that barring longterm expatriates is justified by the need to ensure that voters have sufficient ties to the community where they cast ballots, especially in a system—like that of Canada (and the US) where votes for legislators are cast in districts ("ridings" in Canadian parlance):
In this case, the restriction at issue is a residence requirement. Residence has been described as a fundamental requirement of the right to vote. While citizenship is a necessary requirement to vote, it is therefore not the only constitutionally permissible limit. Citizenship is a status. It does not itself indicate a relationship of any currency to a particular Canadian community. Parliament, not unreasonably, deemed residence or recent residence to be indicative of this relationship. The fact that the Act includes certain exceptions to the residence rule supports the notion that a relationship of currency is essential. Preserving a relationship of currency between electors and their communities by limiting long?term non-resident voting ensures reciprocity between exercising the right to vote and bearing the burden of Canadian laws. The reciprocity principle justifies limiting non-resident voting precisely because long-term non?residents are not generally subject to Canadian laws.
I don't have sufficient expertise to have a strong view on which side has the better interpretation of Canadian law. However, I did find persuasive these analyses (written at earlier stages of the Frank litigation) by Canadian legal commentators Marni Soupcoff and Leonid Sirota, who both concluded that the exclusion of longterm expatriates was unconstitutional, violating the Charter of Rights and Freedoms.
I discussed the broader issues raised by the Canadian law in a 2015 post. Those questions are significant not only for Canada, but for other democracies with large expatriate populations, including the United States and Israel, among others. Most American states make it relatively easy for expats to vote by absentee ballot. By contrast, Israel denies that option to most of its very large expatriate population, though the government may be trying to change that.
Although I think there are plausible arguments on both sides, ultimately I come down in favor of voting rights for expatriates, including those who have lived abroad for a long time:
[M]any expatriates plan to return to their countries of origin eventually. The fact that they continue to identify with the home country and retain their citizenship suggests a measure of emotional attachment. Even while abroad, they may still be heavily affected by their home governments' policies on many issues, most notably taxation and trade.
To these traditional arguments [for expatriate voting rights], I would add that expats from advanced democracies are often relatively highly educated professionals. While the two are not identical, virtually all studies show that there is a strong correlation between education and political knowledge. This may be particularly true of those expats who are interested enough in politics back home to take the trouble to vote by absentee ballot. At the margin, letting expats vote probably helps diminish one of the most serious flaws of modern democracy: the problem of widespread political ignorance.
Even if expats have less of an immediate self-interested stake in government policy than those who stay at home, that doesn't necessarily mean they will make worse decisions. Most of the time, there is relatively little correlation between narrow self-interest and political opinions. A person who truly cares only about his narrow self-interest probably would not choose to vote in the first place.
On balance, I think the considerations in favor of letting expatriates vote outweigh those on the other side, at least for relatively advanced democracies like the US and Canada. Whichever way you come down on the question, the issue is another example of how democracy cannot be democratic all the way down. Before "the people" can vote on anything at the ballot box, some other entity has to determine who has the right to go to the polls in the first place.