Voice after Exit, European Edition

I wrote last year about a court challenge by two Canadian citizens living in the United States to a  provision of the Canada Elections Act, S.C. 2000 c. 9 (CEA), which prohibits Canadians who have resided abroad for more than five consecutive years (except members of the Canadian forces, civil servants, diplomats, and employees of international organization) from voting in federal elections. (The applicants or their lawyers have set up a website documenting their case, on which they have made available their application, affidavits, and exhibits ― which I think is a very commendable thing to do in a public interest case like this; a more general website advocating voting rights for Canadians abroad is here.)

In Charter cases such as this, courts often refer to the law of other countries, particularly when deciding whether a limitation of Charter rights is “demonstrably justifiable in a free and democratic society” and so constitutional pursuant to s. 1 of the Charter. So a recent decision of the European Court of Human Rights on this issue is worth commenting on.

The Court was faced with a challenge by Harry Shindler, a British citizen resident in Italy to legislation disenfranchising citizens who have lived abroad for more than 15 years. Whatever the situation of expatriates might have been in the past, Mr. Shindler argued, it is now easy for citizens living abroad to remain in contact with and engaged with the affairs of their home country. In his own case, he receives a pension from the U.K., pays taxes there, and is an active member of a number of British organizations. And he remains, of course, entitled to return to the U.K. at any time. The U.K. government, however, claimed that the ties between an expat and his home country wither over time, and that the small number of British citizens who register to vote overseas supports this contention. Although some citizens retain strong ties with their home country, it would be impracticable to premise the right to vote on each person’s engagement; a one-size-fits-all rule is necessary.

The Court found that, under the European Convention on Human Rights, the right to vote could be limited to further “any aim which is compatible with the principle of the rule of law and with the general objectives of the Convention” (par. 101). It also referred to its prior case law, in which it held that limiting expatriates’ voting rights was permissible. That is because

 first, the presumption that non-resident citizens were less directly or less continually concerned with their country’s day-to-day problems and had less knowledge of them; second, the fact that non-resident citizens had less influence on the selection of candidates or on the formulation of their electoral programmes; third, 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 fourth, the legitimate concern the legislature might have to limit the influence of citizens living abroad in elections on issues which, while admittedly fundamental, primarily affect persons living in the country (par. 105).

The court takes note of the social and technological changes that have made it easier for expatriates to retain their ties to their home countries. It also observes that various European bodies concerned with democratic rights have not (yet) concluded that countries were required to grant expatriates an unrestricted right to vote, although agreement that this was a good idea seemed to be emerging. And it holds, in somewhat conclusory fashion, that the disenfranchisement of expatriates after 15 years, “which is not an unsubstantial period of time” (par. 116), is not disproportionate to the government’s objective of ensuring that only those citizens with a sufficiently close connection to the U.K. be able to vote. An individualized assessment of a citizen’s ties to his home country would be too much of a burden to impose on the state.

I do not find this decision persuasive. The whole idea of expatriates otherwise lacking interest in the affairs of their home country suddenly showing up to vote strikes me as quite fanciful. The fact that few British citizens abroad register to vote may or may not suggest that most expatriates do not care, but it certainly suggests that those who do not care will not bother with voting. It is only the committed (few) who will take the trouble. The alleged objective of the disenfranchisement of expatriates is, in my view, nothing more than a post hoc dressing up of an old prejudice, no longer warranted if it ever was. One could also argue that the distinction between residents and expatriates based on their assumed level of knowledge about politics is also likely to be illusory, or at least rather less significant than usually assumed, because of the serious problems of political ignorance that affect the democratic process of every country (which Ilya Somin frequently discusses on the Volokh Conspiracy). So while it is true that an individualized assessment of engagement as a qualification for voting would be very burdensome and perhaps impossible to administer objectively and impartially (though prof. Somin has argued for similar assessments of political knowledge as a condition for extending the franchise to minors), this is really beside the point. There is simply no good reason for the law to distinguish between resident citizens and expatriates, regardless of how that distinction might be implemented.

Before concluding, I want to mention one feature of the decision of the European Court of Human Rights that I find puzzling: the attention devoted to the right, or lack thereof, of people disenfranchised by their country of nationality for residing abroad to vote in elections in their country of residence. It seems to me that the right to vote does not attach only to a person, so that everyone ought to be able to vote somewhere―anywhere―but, so long as one is able to vote somewhere, there is no problem with denying him the vote elsewhere. A right to vote is a right to participate in the political life of a specific community. Being granted permission to participate in the life of another community cannot remedy one’s exclusion from that to which one always belonged (nor does denial of such a permission make the exclusion any worse).

However that may be, I retain the view that I expressed in my original post on this topic:

[T]he denial of this right to those living abroad looks perfectly arbitrary. As with the prisoners [whose disenfranchisement the Supreme Court held to be unconstitutional in  Sauvé v. Canada (Chief Electoral Officer), 2002 SCC 68, [2002] 3 S.C.R. 519], it is a judgment that they are not morally worthy to vote – and such judgments are not open to Parliament, according to Sauvé.

The Future Is Creepy

I had the chance today to be at a talk by two of the members of the legal “brain-trust” of President Obama’s re-election campaign, NYU’s professors Rick Pildes and Sam Issacharoff. (I have to brag: it was one of those moments that make NYU the best law school in the world.) Yet although they spoke a bit about the specifically legal work they did for the campaign, the main topic of their remarks was the impressive data-mining operation that the campaign deployed to identify its likely supporters and make sure that support translated into votes. Using publicly or commercially available information, the campaign set up a massive database containing prodigious amounts of information on millions of voters, and used this information to make its pitch to these voters in ways designed (and tested) to be the most effective. According to profs. Pildes and Issacharoff, as well as this account of the data operations by CNN/Time and an envious paean by the Republican columnist Marc Thiessen in the Washington Post, this was fantastically effective. Profs. Pildes and Issacharoff told of the data people on the Obama campaign having predicted the outcome of the early voting in Ohio to within a few dozen votes―out of more than 1,600,000. (Over at the Volokh Conspiracy, however, Ilya Somin had some anecdotal evidence that not everything worked quite that mind-blowingly well.) Assuming that the data campaign really was as effective as insiders claim, its success has some interesting implications, both in the realm of law and in that of political philosophy. (And in that of practical politics too, naturally, but I try to stay away from that here.)

Legally, one obvious place for investigation seems to be privacy law. I cheerfully admit, however, that my knowledge of the subject is, at present, nil, especially as regards the United States. In Canada, there is a patchwork of federal and provincial statutes regulating the collection of personal information of the sort the Obama campaign used (one example that came up several times in the discussion today was magazine subscriptions, which apparently tell quite a lot about one’s politics). Some of these statutes apply to governmental entities; other to the private sector. For the most part, they do not apply to political parties, but they might impede the parties’ collection of information from other sources. They might also be expanded to cover political parties (and other non-profit organizations).

If they are, or to the extent that privacy legislation does apply to parties, there arises a further question, suggested by a case in which the Supreme Court of Canada just granted leave to appeal, as the blog The Court reports. Very briefly, the dispute is about whether preventing a union, pursuant to privacy legislation, from filming people crossing its picket lines is a violation of its freedom of expression. The Alberta Court of Appeal held that it did. If that decision is upheld, it would seem a logical, though probably not an obvious, step to argue that preventing a political party from creating a database it needs to mount an effective campaign is a violation of its Charter rights, notably its right effectively to participate in the political process, which the Supreme Court, in Figueroa v. Canada (Attorney General), 2003 SCC 37, [2003] 1 S.C.R. 912, held was part of s. 3 of the Charter.

Moving from law to political philosophy, the obvious issue to think about is the morality of this enterprise of targeting individual voters on the basis of personal information about them. The (admittedly few) friends with whom I have discussed it think it is ethically troubling. I’m not sure about that, but I do think it is creepy. Yet there is, maybe, a positive spin to be put on it. What the Obama campaign did was, in effect, a shift from trying to persuade people to support it to identifying those who already supported it, more or less, and making sure that they voted. This is disturbing if we hold to the high-minded notion that election campaigns are about persuading voters. But is this notion so high-minded? Is it so good for democracy if voters are (only) thinking about politics and deciding to vote one way or the other during the 35 (in Canada) or 60 (in the US) days of an election campaign? Arguably not―the process of making up one’s mind should be (more or less) permanent. If an election campaign is the time to reveal preferences rather than to shape them, then the shaping of the voters’ preferences must take place at all times between elections; this means that politicians must be constantly engaged with the electorate, and that might just be a great thing, insofar as it would blunt the not uncommon criticism of representative democracy as being democratic only once every four years. Yet perhaps this is too rosy a view. Constant engagement with the electorate may well degenerate into populism; there is a reason most countries have elections every four or five years, rather than more frequently. And anyway, it’s not clear that (most of) the electorate has the appetite for such engagement. And even if those worries are unfounded, the creepiness factor remains―though I suppose we will get used to it soon enough.

I conclude on an even creepier, indeed perhaps paranoid thought, blending the legal and the political strands of my reflection. The Obama campaign’s database of voters and information on how effectively to communicate with them is immensely valuable. Mr. Obama himself has no use for it anymore, since he cannot run for re-election. But to those who aspire to succeed him, it would be invaluable. And legally, as profs. Pildes and Issachoroff told us, the database belongs to him, or more precisely to his campaign committee, over which he―not the Democratic Party―has control. Is it paranoid to suppose that the control of this amazing resource will allow him effectively to designate his successor by handing over to him or her a weapon which no challenger could hope to match? If so, the future might be even creepier than we think.

UPDATE: The New York Times also has a story on this, focusing on how data analysis drove the Obama campaign’s purchases of TV advertisements.

UPDATE #2: The post as originally written was quite obviously wrong in stating that private-sector privacy legislation probably applied to parties. I have re-written that passage. I discuss the issue of privacy and political parties in more detail here.

Why Can’t They Vote?

At the Volokh Conspiracy, Ilya Somin has a response to my post yesterday arguing that lowering the minimal voting age to 16 is a better way of redressing the exclusion of minors from the franchise than prof. Somin’s proposal to allow any minor to vote provided that he or she can past a test assessing knowledge of the political system. Prof. Somin is unpersuaded by argument that there is no good reason to treat minors differently than adults, for whom there is no requirement to prove knowledge of the political system in order to vote. He points out that my proposal, no less than his, discriminates on the basis of age. But age discrimination, bad as it is, is sometimes unavoidable. Better not to raise categorical barriers though, and let anyone prove his or her ability to exercise the franchise. True, we don’t expect adults to do so―but prof. Somin seems to suggest that this is something of a mistake, though it is too late to reverse it now, not least because “there is a big difference between using a test to expand the franchise to a group that has always been barred from it, and using it to take away voting rights from millions of people who have them now.”

I think that what drives the disagreement between us is that we have different views on what justifies the denial of a legal right to vote (note that I am only talking about the legal situation―prof. Somin makes the case, in a separate post, that there is something like a moral duty to abstain from voting on issues or candidates about which one is ignorant, and I agree with him on that). In prof. Somin’s view the key factor is political knowledge, and lack thereof. I think that the real issue is not so much knowledge as maturity and capacity for judgment.

It is true that minors are generally less knowledgeable about politics (and other things) than adults. But they are also, on average, less mature and less capable of responsible judgment, and the law recognizes this diminished capacity by making them, depending on their age, less criminally liable, incapable of entering into (certain kinds of) contracts, etc. At least in criminal cases, it is quite clear that the reason for the distinction made between minors and adults is not knowledge of the relevant facts, but capacity for judgment. I think that it is the reason for the other distinctions too. Note, too, that the one category of adults to whom we uncontroversially deny the franchise are those too mentally ill, too lacking in judgment and decision-making ability to be responsible for their own decisions; such people have guardians, just like children do. They need not be ignorant―but their judgment faculty is severely impaired.

Now, in those areas where―I think―the law makes distinctions on the basis of age that are grounded in maturity and capacity for judgment, it usually does so by drawing bright lines. One has to be, say, 16, in enter into a contract pursuant to which one undertakes to work full-time. (One partial exception is criminal law, where there is individualized assessment of a minor accused’s fitness to be judged or sentenced as an adult, but there too there is a bright-line minimum age.) It is a shortcut, because of course teenagers’ judgment and maturity at a given age can vary a lot. But we’re probably better off with a shortcut, because judgment is so difficult to gauge, much more so than knowledge, which is difficult enough. We still try to in cases where the consequences are really grave, as in the criminal context, and also for adults who are declared mentally incompetent. These cases have also the benefit of being relatively rare. But it wouldn’t be practicable for voting, which is likely to interest quite a few minors.

So, while I see prof. Somin’s objections, I still stand by my proposal to set the voting age at 16, rather than create a test of knowledge to evaluate which minors, regardless of their age, should be able to vote.

Si jeunesse pouvait

Je voudrais revenir, en cette journée post-électorale, sur un billet qu’Ilya Somin a publié hier sur Volokh Conspiracy. Prof. Somin y remet en question le déni du droit de vote à  « une part énorme de notre population: les enfants de moins de 18 ans » (je traduis). Selon lui, cette exclusion est « injuste et contre-productive », et il faudrait au moins penser à accorder le droit de vote aux mineurs qui ont une connaissance suffisante du système politique.

Prof. Somin souligne que, s’il est vrai que les mineurs ont, en moyenne, moins de connaissances que les adultes, en moyenne toujours, ce n’est pas le cas de tous. Il y a des mineurs qui en savent plus sur la politique que l’adulte moyen. Cet adulte moyen, du reste, est passablement ignorant, et on ne s’en formalise pas outre-mesure. Il en va de même pour les autres raisons invoquées pour refuser le droit de vote aux mineurs, tels que le manque d’expérience ou la susceptibilité d’être influencés par leurs parents: on n’exige pas que les adultes aient une certaine expérience de vie, ou qu’ils paient les impôts, ou qu’ils fassent preuve de suffisamment d’indépendance, pour les laisser voter. Et, puisque la politique affecte les mineurs, et que les décisions prises aujourd’hui, alors qu’ils sont exclus du droit de vote continueront à les affecter tout au cours de leur vie, ils devraient, comme nous tous, avoir leur mot à dire. Certes, l’administration d’un test équitable de connaissance du système politique pourrait poser problème, mais il faudrait au moins essayer.

Prof. Somin mentionne la baisse de l’âge du droit de vote à 16 ans en Argentine et à Brême, en Allemagne. Les jeunes de 16 ans auront aussi le droit de vote au référendum sur l’indépendance de l’Écosse en 2014. Au Québec, le PQ a adopté une proposition en ce sens l’hiver dernier, bien qu’il ne l’ait pas incluse dans son programme. Prof. Somin ne discute pas vraiment cette alternative à sa proposition de tester les connaissances des mineurs. Sa préférence semble être pour le test, sans âge minimal d’éligibilité.

Pour ma part, je pense que l’option du vote à 16 ans est préférable à celle d’un test. Au-delà problèmes d’administrabilité évoqués par prof. Somin, ce sont arguments qu’il apporte lui-même qui semblent militer contre l’instauration de tests pour les mineurs. S’il n’y a pas de bonne raison de traiter les jeunes différemment des adultes, et les arguments de prof. Somin pour dire qu’il n’y en a pas sont très convaincants, alors il est sûrement injuste d’instaurer un test pour les premiers mais pas pour les seconds. Si les connaissances du système politique devraient être un critère pour pouvoir voter, il n’y a pas de raison pour ne pas appliquer ce critère aux adultes. Une telle proposition ne serait peut-être pas folle, mais je crois qu’on la rejetterait, pour plusieurs raisons (sur le plan juridique en tout cas; sur le plan purement moral, il on peut soutenir, comme le fait d’ailleurs prof. Somin, qu’on ne devrait pas exercer son droit de vote si on manque de connaissances suffisantes). On permet aux les adultes ignorants de voter. On devrait le permettre aux jeunes aussi.

Par contre, on reconnaît généralement que les jeunes, en-deçà d’un certain âge, manquent de maturité pour exercer leur jugement. Cette idée se reflète dans le droit criminel et le droit civil, qui limitent de plusieurs façons la capacité des mineurs à encourir certaines responsabilités, et je pense qu’elle peut aussi se refléter dans la restriction du droit de vote. Cependant, à partir d’un certain âge, à plusieurs égards, le droit traite les mineurs comme les adultes. On a le droit de conclure un contrat de travail, par exemple, avant d’avoir 18 ans. Je pense qu’il devrait en être de même du droit de vote. À 16 ans, le droit juge les jeunes passablement matures―ils peuvent travailler, décider d’aller à l’école ou non, et même, dans certains cas, être traités comme des adultes par le système de justice pénale. Je serais donc pour qu’on accorde le droit de vote dès 16 ans. Plus tôt encore? J’ai mes doutes, mais un jeune peut travailler sans autorisation de ses parents, en dehors des heures de cours, dès 14 ans. Et s’il est assez vieux pour travailler et payer des impôts, n’est il pas assez vieux pour choisir ceux qui décident quoi en faire?

Is There Voice after Exit?

First of all, an apology for the overextended silence. I couldn’t find anything interesting to blog on, I’m afraid. Fortunately the CBC has rescued me by reporting on a challenge to the provision of the Canada Elections Act, S.C. 2000 c. 9 (CEA) which prohibits Canadians who have resided abroad for more than five consecutive years (except members of the Canadian forces, civil servants, diplomats, and employees of international organization) from voting in federal elections. (Indeed the disenfranchisement potentially extends even to those Canadians who have been abroad for less than five years but do not intend to return to Canada as residents, or even those who are unable to provide the Chief Electoral Officer with “the date on which [they] intend[] to resume residence in Canada,” pursuant to par. 223(1)(f) of the CEA. It is not quite clear whether the challenge extends to the requirement of an intent to return (on a certain date). While the intent requirement  is in the same provision (par. 11(d) of the CEA) as the five-year limit, it might be easily severable; certainly the individuals bringing the challenge emphasize their desire to return to Canada.

The CBC writes that

[t]he rule denying the vote to Canadians outside the country for more than five years was enacted in 1993 amid debate about the strength of their ties to Canada and how well informed they are about the domestic political situation. However, it was only in 2007 that Elections Canada began to enforce the rule to “more clearly reflect the intention of Parliament,” said spokesman John Enright. Until then, the five-year clock would reset for expats who returned even for short visits. Now, they have to “resume residency” before leaving again to regain their right to vote abroad.

It adds that

[a]ccording to economist Don DeVoretz, professor emeritus of Simon Fraser University, close to 10 per cent of all Canadians live abroad – a larger population than all but four of the provinces. About one-third of them live in the United States.

The leading case on the disenfranchisement of a class of citizens is Sauvé v. Canada (Chief Electoral Officer), 2002 SCC 68, [2002] 3 S.C.R. 519, which the Supreme Court held ― by a 5-4 majority ― that denying the right to vote to prison inmates serving sentences of two years or more was a violation of s. 3 of the Canadian Charter of Rights and Freedoms, which provides (in part) that “[e]very citizen of Canada has the right to vote in an election of members of the House of Commons,” and that this violation was not justified by s. 1 of the Charter. The government had conceded the s. 3 violation, which I assume will also happen in this case. The real debate in Sauvé was, and will be here, on the s. 1 justification.

Chief Justice McLachlin, writing for the majority in Sauvé, warned that “[l]imits on [the right to vote] require not deference, but careful examination” (par. 9). While “logic and common sense” could serve as justifications in the absence of hard scientific evidence, “one must be wary of stereotypes cloaked as common sense, and of substituting deference for the reasoned demonstration required by s.1” (par. 18). The prohibition on prisoner voting utterly failed the s. 1 test. For one thing, prisoner voting gave raise to no specific concern which Parliament sought to address by prohibiting it. Parliament’s stated objectives of promoting respect for the law and enhancing the purposes of criminal punishment were vague and symbolic, so much so that their “rhetorical nature … render[ed] them suspect” (par. 24); they were not pressing and substantial, as required by s. 1. For another, even if Parliament’s objectives were satisfactory, deprivation of the right to vote was not rationally connected to them. “[A] decision that some people, whatever their abilities, are not morally worthy to vote — that they do not  ‘deserve’ to be considered members of the community and hence may be deprived of the most basic of their constitutional rights” (par. 37) runs against the direction of historical progress towards universality of the franchise and “is inconsistent with the respect for the dignity of every person that lies at the heart of Canadian democracy and the Charter” (par. 44).

How will these comments apply to the denial of the franchise to Canadians living abroad? It seems to me that the government is again going to have a hard time articulating the objective of this measure, “the harm that the government hopes to remedy” (par. 23). My best guess is it will be something like “preventing voting by people who are uninformed or do not care about Canadian politics, or who have abandoned their membership in the Canadian community.” The applicants who launched this challenge, as the CBC story describes them, certainly give lie to any such claims. Especially now, thanks to the Internet, it is in fact as easy to keep abreast of Canadian news while living in New York as in North York, in Melbourne as in Montreal, in Kolkata as in Calgary. And of course it is now easy to maintain one’s ties to one’s family and friends in Canada, and to remain part of the broader community (as indeed I am trying to do with this blog for example). Add to this the fact that those Canadians living in Canada need not show that they are in any way informed about politics or current events, or that they have any sort of community ties, in order to be able to vote, and the denial of this right to those living abroad looks perfectly arbitrary. As with the prisoners, it is a judgment that they are not morally worthy to vote ― and such judgments are not open to Parliament, according to Sauvé.

I wish the challengers, and their lawyers, the best of luck.