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Should Longtime Expats Have the Right to Vote in Elections?

A Canadian Supreme Court decision striking down a law denying the right to vote to expats who have resided abroad for over five years raises broader questions about democratic theory.

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The court ruled 5-2 that the now-repealed law was unconstitutional.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.

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  • Martinned||

    I would note that the arguments at the end of this post depend to some extent on how easy and/or common it is for someone to give up their citizenship. In countries where this is very difficult (eg. the US) or flat-out impossible (eg. Turkey), the argument is weaker.

    (For comparison, I can't solve my Brexit problem by becoming a UK citizen because if I did I'd automatically lose my current citizenship, because my country of origin doesn't allow for dual citizenship except in rare - and not applicable - circumstances.)

  • Lee Moore||

    The US is in a different position to most other countries as it taxes its citizens on their income, whether they are resident in the US or not.

  • ||

    Really? This makes me wonder, indeed, about Ukrainian oligarch Len Blavatnik, who holds dual US/UK citizenship and maybe Ukrainian too. One thinks one would minimize tax consequences.

    Thinking further, Len has been an American since the 1970's and like many Ukrainian globalist oligarchs his net worth and true income is harder to figure out than the actual ingredients that go into a Denny's grand slam breakfast for $3.99.

  • Rossami||

    Interesting. I came to this article with the opinion that of course expats should retain the vote. Prof Somin's balanced discussion of the court's dissenting opinion changes my mind, I think. At least, they are very thought-provoking comments.

    The majority's argument that not being allowed to vote "comes at the expense of their sense of self-worth and their dignity" just seems laughable, however. Do I lose my sense of self-worth and dignity because I cannot vote in California elections? Their decisions affect me (on the other side of the US) at least as much as the Canadian government's decisions affect their expats.

  • santamonica811||

    Rossami,
    I am not sure I understand your last point. Are you saying that you are a California (former) resident, who is now on the east coast, and you are mocking the idea that your self-worth has been impacted due to you losing (how??) your right to vote in California elections? I am assuming this, since it would make no sense if you had never been a California resident. The point is not that a particular election can (and does!) affect you (or we would allow pretty much every non-criminal adult on earth to vote in our presidential elections, as those elections have a tangible effect on people living in Russia, New Zealand, Honduras, England, et al). The point is: If someone has the right to vote, and then moves away, at what point should they lose the right that they used to have? Ever? Only if/when they indicate an intention to not return? Immediately upon leaving???

    I live in California, and have voted in all their elections. If I had studied out-of-state for my undergrad, my Masters, and then law school, I would have been away from California for 10+ years. I can certainly see the argument for taking away my voting rights in California during that period. But I also would have been upset at losing this right, given my knowledge that I'd be returning there after my schooling.

    In other words; I don't find the counter-argument ridiculous or laughable, and I'm surprised that you do.

  • jph12||

    I've been in the situation where I wasn't sure where I should vote, and it wouldn't have bothered me a bit if the old state had said, "you can't vote here." Also, I see a big difference between "upset" and "at the expense of their sense of self-worth and their dignity."

  • Joe_dallas||

    FWIW - most ever state treat out of state students as non residents for purposes of
    a) in-state v out of state tuition
    b) state income tax
    c) residency for voting

  • Krayt||

    Your continued right to vote derives from your Cali citizenship and concrete connections to real laws from that state.

    The "dignity" argument is an asspull from the judge looking to rationalize this beyond both what is needed to support it, and what is the real reason -- taxation, etc., without representation.

  • Eddy||

    "Chief Justice Richard Wagner"

    Are his opinions really long and overrated?

  • Chem_Geek||

    Hahahaha!

  • bernard11||

    One of my favorite quotes is from Mark Twain:

    "Wagner's music is much better than it sounds."

  • DRM||

    The obvious move in Canada is to create a Non-Resident Canadians riding, which is easy enough to do in a system that doesn't require US-style population apportionment. Then there is an MP who represents the particular needs and interests of the Canadians who aren't resident, while also ensuring the votes of non-residents don't change who represents any given geographical riding.

  • Voize of Reazon||

    They could even go overboard as France did, and establish 11 of them.

  • Bill Poser||

    Another context in which this issue has come up repeatedly is that of members of Indian tribes who do not live on the reservation, in both the US and Canada. In many cases, non-resident members are not allowed to vote in tribal elections or hold tribal office. A complicating factor in these cases is that many reservations lack sufficient housing, thereby effectively forcing some members to live off-reservation. An additional factor in Canada is that many reservations are remote and have limited employment opportunities, so that many members have to live elsewhere in order to make a living.

  • ThePublius||

    Interesting topic. The Massachusetts constitution doesn't require one to be a citizen of Massachusetts or the U.S. (it predates the US Constitution). It only requires that one have " a freehold estate of the value of sixty pounds," and that they vote in the town "where he dwelleth or hath his home." What happens when he dwelleth there no longer? If he still has his home there, can he still vote?

  • apedad||

    Mass. accepts absentee voting. I was in the military in Germany and would mail my ballot in. My mother could also see my name on the voter registration lists.

    This was over 30 years ago and I think I was still filing Mass. taxes--even though I hadn't lived their in years--so I'm not sure if the tax filings kept me a "resident" of the state.

  • Krayt||

    £60 in 1600 ~= $18,000 today

  • California Dreamer||

    Ilya's post does not discuss whether expats with dual citizenship should be permitted to vote in both countries. As a general rule, I tend to agree with him that expats should be permitted to vote, but maybe they should have to choose which country's elections they are going to vote in. If they are voting in their country of residence it seems arguable that their primary allegiance is to that country, and they should no longer be permitted to vote in the country they have left, even if they retain citizenship in the latter.

  • James Pollock||

    Maybe each country should make its own decision about the matter.

  • Bill Poser||

    One could, on the other hand, argue that such people have a strong enough interest in both countries that it is reasonable for them to vote in both. An example of a case in which such double voting is expressly permitted is here in British Columbia, where you can vote in the local elections not only of the place in which you live but in a second place in which you own property.

  • OldCurmudgeon||

    "I tend to agree with him that expats should be permitted to vote, "

    To me, it would depend on whether they are paying taxes in that jurisdiction.

    Voters should have skin-in-the-game ("we the people" and all that), either financially or being subject to the laws of that jurisdiction. I'm not sure expats really satisfy either condition.

  • Flight-ER-Doc||

    If the right to vote depends on residency, then non-citizens residing in Canada (as I did for 12 years) should be able to vote.....right?

  • Bill Poser||

    Not necessarily. Residency could be a necessary but not sufficient condition. However, some countries do allow non-citizens to vote in some elections. Until recently several Canadian provinces allow residents who were British subjects but not Canadian citizens to vote. In Israel, non-citizen permanent residents are allowed to vote in local elections.

  • jdgalt1||

    An interesting contrast is the rule in the European Union, where it is very common for citizens of member country A to live and work in member country B for extended periods of time.

    The EU rule says if you do this, you can vote for a national legislator in A, your country of citizenship, and for local offices such as a city council member in your residence location in country B -- but not vice versa.

  • James Pollock||

    Without digging through all the arguments about Canadian law, I can see a couple of problems trying to apply this to the U.S. The first is dealing with the question of "expats" who wish to remain citizens of, say a state with low or no income tax, rather than the high-income-state they currently reside (and earn income) in.

    As for true expats, how does the U.S. government track expats? For questions of, say, whether they are alive and well and free of undue influence? If the answer is "not at all", then I'd say we faced a fork... on the one hand, if the election is close enough for the expats' votes to change the outcome of the election, you need some method of controlling those factors, and if the election isn't close enough for the expats' votes to change the outcome, then it doesn't really matter if they can vote or not.

    Has anyone brought up the desperate need we have for voter ID laws where people have to show government-issued ID in order to cast a ballot, in order to keep the durn furriners from pretending to be citizens and voting? Because if they don't even have to leave their home country to vote illegally in U.S. elections...

  • Rеv. Arthur I. Kirkland||

    Of course you want "expats" to vote, Bull Cow, you are a globalist. You don't believe in any borders or sovereignty beyond your fantasy of a one-world marxist/socialist government in which all are subservient to your elitist swine.

  • jdgalt1||

    This crosses a line. I'm surprised you haven't been purged yet.

  • Agammamon||

    I'm not sure why you're complaining about that - based on your posts that's exactly the sort of world you want. You're all about how the 'elite' will dominate the 'backwoods hicks' and give them the government they need.

  • Alpheus W Drinkwater||

    That clearly wasn't the actual Rev. K. People seem to enjoy posting in his name, if not his style. Carry on, clingers.

  • Gasman||

    But which elections. In the US...
    There are no national elections: even president requires one to have a state of residence so as to choose electors.
    That state has county, city, municipal, aldermanic wards, school boards, water districts, etc. which of those does the ex-pat vote.

    A person normally declares the myriad election pools by their domicile, typically recorded as where they receive US mail, or pay their utility bill. So what to do with a long term ex-pat.
    We end up back with 19th century land holder voting. One gains 'interest' in the Clayton Missouri R4 district taxes if one lives in Kirkwood, and/or pays taxes to Clayton. Likewise bond issues for the sewer district. If you don't flush here, nor contribute to the tax base, by what right does one vote those matters?

    There does need to be some limit on non resident voting. The matter then is defining those limits.

  • Brett Bellmore||

    I have to disagree that voting is a "fundamental" right. Fundamental rights are the rights you'd have even if there weren't a government around; Freedom of speech, for instance.

    The right to vote is more like the right to trial by jury, or better, copyright; A right that only exists because of and in connection with government.

    This is important, because people exercise fundamental rights for their own benefit, and the government's only relationship to them is an obligation to not infringe the right.

    Procedural rights like vote exist only to further government aims, like representation, and have to be crafted to THAT end, not just to maximize the liberty of the individual.

    So, who freaking cares if the expat is upset by not getting to vote? The real question is whether you get better government letting people who aren't residing in a state vote there. And I'm dubious about that.

  • Voize of Reazon||

    Resolved, that the taxation of the people by themselves, or by persons chosen by themselves to represent them, who can only know what taxes the people are able to bear, or the easiest method of raising them, and must themselves be affected by every tax laid on the people, is the only security against a burdensome taxation, and the distinguishing characteristic of British freedom, without which the ancient constitution cannot exist.

    This from Patrick Henry's Virginia Resolves of 1765, echoing the "No taxation without representation" theme. His argument would support modern-day voting by US citizens worldwide since they are required to pay taxes. Brett, do you think the colonists were wrong?

  • Brett Bellmore||

    I'd say the problem there is on the taxation end of things. "No taxation without representation" shouldn't be read to demand that you be represented someplace you don't live if you're taxed there. It should be read to say that you can't be taxed by places where you don't live.

  • Voize of Reazon||

    The taxation vs. representation conflict can be addressed by either dropping the taxation or adding the representation, and I believe many of the colonists were actually hoping for the first solution, but you unnecessarily introduce a different principle when you argue that "No taxation without residence" is its secret meaning.

  • OldCurmudgeon||

    Do expats normally pay state taxes? Presumably, most are not in any particular state for more than 180 days.

  • ThePublius||

    Brett and Voize, both make excellent points. I think we have a bit of a mess in the US, in that some concepts "don't scale" to the 21st century. I think it's compounded by having a federal income tax, and that it is levied regardless of your location.

    Why must someone be a resident of any state? For example, for retirees who've sold their homes and bought RV's, why must they select a 'home' state?' Why can't they simply me US citizens, have US car registrations, pay only federal taxes and vote only in national elections?

    Why can't people with multiple homes in different states vote in both places? They pay taxes in both places, at least in real estate taxes.

  • Brett Bellmore||

    "Why can't they simply me US citizens, have US car registrations, pay only federal taxes and vote only in national elections?"

    Because we're a federation, we don't HAVE "national elections". We have state and local elections, where some of the positions are federal.

    But even the federal positions are for particular states or districts within them. Your Senators represent a particular state. Your House members represent particular areas within a state. Yes, even in the Presidential election, you're actually voting for an electoral college slate, and the members of the electoral college are designated to represent particular states.

  • Voize of Reazon||

    Yes, and so citizen residents of US territories do not have the same federal voting rights as residents of states. The one non-state exception is the District of Columbia, but it took the 23rd Amendment to accomplish that.

  • Agammamon||

    Well, in the American case, the government can remove the ability to vote for people living outside the US once they're willing to stop taxing people living outside the US.

  • Krayt||

    It's more than just taxation. It is also foreign policy and the good name request of the US passport for host countries to respect and protect US citizens when visiting or living there.

  • ||

    Whatever their role in the state, if they're living abroad by the good graces of a note from the government, they arguably have a decent interest in its composition.

  • Bob from Ohio||

    "sense of self-worth and their dignity,"

    Tony Kennedy retired to Canada?

    If your "self-worth and their dignity" is affected by a largely symbolic right to vote, you likely need some psychological help so probably shouldn't vote.

    Voting is like booing or cheering at a sporting event. Maybe fun but having no impact.

  • M.L.||

    Interesting issue. More troubling is that Stacey Abrams just said she would let non-citizens residing in America vote. Voter replacement has become the primary, overarching Democrat strategy. That's why they won't compromise on illegal or legal immigration.

  • ||

    Look at voting this way: if 90% of the electorate have no clue who their U.S. Senators are, or even which states border their state, they are probably on election day choosing candidates based whimseys, hysteria kicked up by campaign advertising, chance conversations with acquaintances, or whatever.

    So if you are an informed voter who researches every issue in considerable depth, your intelligent vote may matter more than you think because it could tip the balance when propaganda wars balance out.

    However, I must admit that Joe Stalin was on to something when he observed that quantity has a quality all of its own. . .

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