Election Obligations & Standards Database

Summary

Residency requirements should not be excessive, or may be considered discriminatory.

Obligations

Election Parts

Issues

Criteria

Every citizen had the right to be elected, subject only to reasonable restrictions
The right to vote was guaranteed by law and was subject only to reasonable and objective restrictions

Quotes

Each Party undertakes, subject to the provisions of Article 9, paragraph 1, to grant to every foreign resident the right to vote and to stand for election in local authority elections, provided that he fulfils the same legal requirements as apply to nationals and furthermore has been a lawful and habitual resident in the State concerned for the 5 years preceding the elections.
It is possible that the applicant has not severed ties with his country of origin and that some of the factors indicated above are therefore inapplicable to this case. However, the law cannot take account of every individual case but must lay down a general rule. Furthermore, the applicant cannot argue that he is affected by the acts of political institutions to the same extent as resident citizens. Thus the applicant’s situation is different from that of a resident citizen, and that justifies the residence requirement.
Persons who are otherwise eligible to stand for election should not be excluded by unreasonable or discriminatory requirements such as …residence or descent.
The Court considers that the residence requirement which prompted the application is justified on account of the following factors: firstly, the assumption that a non-resident citizen is less directly or less continually concerned with his country’s day-to-day problems and has less knowledge of them; secondly, the fact that it is impracticable for the parliamentary candidates to present the different electoral issues to citizens abroad and that non-resident citizens have no influence on the selection of candidates or on the formulation of their electoral programmes; thirdly, the close connection between the right to vote in parliamentary elections and the fact of being directly affected by the acts of the political bodies so elected; and, fourthly, the legitimate concern the legislature may have to limit the influence of citizens living abroad in elections on issues which, while admittedly fundamental, primarily affect persons living in the country.
The Court reiterates that national practices concerning voting rights for expatriates and the exercise of such rights are far from being uniform across the States Parties. Broadly speaking, Article 3 of Protocol No. 1 does not impose on States Parties any obligation to enable citizens resident abroad to exercise their right to vote (see Sitaropoulos and Giakoumopoulos [GC], cited above, §§ 74 and 75). Furthermore, the work of the Venice Commission has shown that withholding or limiting the voting rights of expatriates does not amount to a restriction on the principle of universal suffrage. In fact, the different interests involved should be weighed up, including the State’s choice to enable its expatriate citizens to exercise their voting rights, practical and security considerations relating to the exercise of this right, and the technical arrangements for implementing it.
The Court has previously implied that the ease with which an applicant can acquire the citizenship of his State of residence, and thus exercise his right to vote in that country, may be relevant to the proportionality of a residence requirement in his State of origin (see Doyle, cited above). The possibility of acquiring a new citizenship is not, however, decisive given that the acquisition of such citizenship may have adverse consequences in other areas of one’s life and that an applicant’s interest in casting his vote in the State to which he feels most closely connected must also be given due weight.
As regards restrictions on the exercise of the right to vote abroad based on the criterion of the voter’s place of residence, Convention institutions have in the past accepted several reasons justifying such restrictions: first of all, the presumption that a non-resident citizen is less directly or less continually concerned with his country’s day-to-day problems and has less knowledge of them; secondly, the fact that it is impracticable for the parliamentary candidates to present the different electoral issues to citizens abroad and that non-resident citizens have no influence on the selection of candidates or on the formulation of their electoral programmes; thirdly, the close connection between the right to vote in parliamentary elections and the fact of being directly affected by the acts of the political bodies so elected; and, fourthly, the legitimate concern the legislature may have to limit the influence of citizens living abroad in elections on issues which, while admittedly fundamental, primarily affect persons living in the country (see Hilbe v. Liechtenstein (dec.), no. 31981/96, ECHR 1999-VI ; X and association Y v. Italy, no. 8987/80, Commission decision of 6 May 1981, Decisions and Reports (DR) 24, p. 192 ; and Polacco and Garofalo v. Italy, no. 23450/94, Commission decision of 15 September 1997, DR 90-B, p. 5). More recently the Court held that having to satisfy a residence or length-of-residence requirement in order to have or exercise the right to vote in elections is not, in principle, an arbitrary restriction of the right to vote and is therefore not incompatible with Article 3 of Protocol No. 1 (see Doyle v. the United Kingdom (dec.), no. 30158/06, 6 February 2007, and Sitaropoulos and Giakoumopoulos v. Greece [GC], no. 42202/07, § 69, ECHR 2012).
It is perfectly legitimate to require voters living abroad to register to be able to vote, even if registration is automatic for residents.
The European Court of Human Rights held that the restriction of the right to vote to citizens resident in national territory could be justified on the following grounds: “(1) the assumption that a non-resident citizen is less directly or continuously concerned with, and has less knowledge of, a country’s day-to-day problems; (2) the impracticality and sometimes undesirability (in some cases impossibility) of parliamentary candidates presenting the different electoral issues to citizens living abroad so as to secure the free expression of opinion; (3) the influence of resident citizens on the selection of candidates and on the formulation of their electoral programmes; and (4) the correlation between one’s right to vote in parliamentary elections and being directly affected by the acts of the political bodies so elected”.
A country...may...permit noncitizen residents to vote.
Following the same arguments as for granting non-citizens the right to vote in local elections, it is recommended accordingly that the right to stand for local election shall be granted to long-standing foreign residents, if possible.
While residency requirements are not incompatible a priori with the principal of universal suffrage, it is not acceptable to limit the right to be elected to only those citizens who have resided in a country, region or constituency for an extensively long period of time.
While residency requirements are in principle a permissible restriction to this right, they must be reasonable. The criterion of reasonableness is arguably not complied with, when residence requirements in domestic laws prevent the political participation of IDPs, especially after forcible displacement.
Along similar lines, standards of the Council of Europe require member states to “grant electoral rights to all their citizens (nationals), without imposing residency requirements”, “to take appropriate legal and practical measures to enable internally displaced persons to effectively exercise their right to vote in national, regional or local elections and to ensure that this right is not infringed by obstacles of a practical nature” and “ to ensure that IDPs can exercise their right to participate in public affairs at all levels, including their right to vote or stand for election, which may require special measures such as IDP voter registration drives, or absentee ballots”.
There is thus no ‘best procedure’ for external voting. Much will depend on the context, such as the infrastructure of those foreign countries where external voting is to be held. The decision on suitability will depend on the costs and practical aspects of the different procedures for external voting (...).
Entitlement to cast an external vote is usually linked to the general entitlement to vote that applies to all eligible electors in a country. However, there are sometimes extra requirements imposed on external electors, such as a minimum period of previous residence or an intention to return to the country. In some cases only limited groups of external electors may be eligible to vote, such as diplomats, other public officials and members of the armed forces, and their families.
Particularly where the right to vote is extended to all citizens who are resident abroad, regardless of intention to return, it may be desirable to have stricter eligibility rules for candidates. This would usually take the form of a residence requirement.
The security and control of registration and voting materials require special attention for external voting. Security is as essential externally as it is internally but there is the added challenge of securing sensitive materials during transport to and from several countries.
Discrimination need not be deliberate. It may arise unintentionally. A neutral criterion may operate in certain circumstances in a discriminatory way. For example, residence is a common requirement for eligibility to vote in a constituency based electoral system. That requirement may however operate in a discriminatory way in respect of refugees (meaning citizens or permanent residents of the State who have fled abroad), nomadic peoples or internally displaced persons. Residency requirements may discriminate against national minorities.
In most cases the duties and responsibilities of countries hosting foreign electoral activity on their soil are minimal, being confined to the role of facilitator rather than that of organizer or implementer. While host countries can assist in the external voting process, their role should not threaten the secrecy of the ballot or the neutrality or transparency of the programme. It is critical that external voting programmes be conducted without political or government influence or interference.
The Code of Good Practice in Electoral Matters produced by the Venice Commission provides simply that “the right to vote and to be elected may be accorded to citizens residing abroad”, without making it a requirement to grant such a right.
A residence requirement may be imposed; ii. Residence in this case means habitual residence. iii. a length of residence requirement may be imposed on nationals solely for local or regional elections; iv. the requisite period of residence should not exceed six months; a longer period may be required only to protect national minorities.
The obligation to vote in an embassy or consulate may in practice severely restrict the right to vote of citizens living abroad. This restriction may be justified on the grounds that the other means of voting (postal vote, proxy voting, e-voting) are not always reliable.
[T]he right to vote and to be elected may be accorded to citizens residing abroad.
Reasonable requirements are usually limited to minimum age, nationality ... The work of the Human Rights Committee provides a good deal of guidance on the limits of reasonable restrictions. In the course of their deliberations, as mandated by the International Covenant on Civil and Political Rights, members of the Committee have noted that the following limitations on voting rights are not permissible: (b) excessive residency requirements.
Voting from abroad is subject to a number of practical conditions, beginning with registration on the electoral roll. Generally, a prior application is required from the citizen abroad (“active” registration system). In these cases, it is necessary to determine the deadline for citizens to register, the form required for this type of declaration and the authority to which these applications must be made.