Democracy, Winston Churchill is supposed to have said, is the worst form of government, except for all others that have ever been tried. It can, however, get worse. Britain is about to vote on whether its future lies inside or outside the European Union using confused and incoherent criteria for who can vote in its referendum. That cannot be good for its democracy.
Amid the arguments over whether to leave or stay, the UK Supreme Court in May upheld a little-known rule: live abroad for over 15 years and lose your right to vote in British elections or referendums. Besides disenfranchising up to two million people, the decision raises a fundamental question: who should get to vote?
This consideration did not apparently worry the courts that ruled on the issue this year. Their decision was based only on whether Britain’s arbitrary disenfranchising of some citizens breached EU law, but took no account of the most basic definitions of democracy. However, the existing situation is full of contradictions.
Obviously, British citizens living in the UK can vote in the referendum on EU membership, as can those who have lived outside the UK for less than 15 years. But Irish and Commonwealth citizens living in the UK can also take part, while EU citizens who live and work in Britain cannot. And, of course, Britons who have lived in EU countries for more than 15 years, whose rights to work and to health and pensions benefits are in the balance, have no voice.
The British government feared accusations of gerrymandering if it abolished the 15-year rule – which it is committed to doing – before the referendum. Such a move would have left it open to accusations from the ‘Brexit’ camp of enfranchising a constituency likely to favour staying in the EU. But disenfranchising it is just as open to question. In a democracy, the right to vote is not supposed to depend on which way you are expected to cast your vote, but on universal criteria.
So should those criteria be based on nationality or residence? In the British referendum, each applies differently to different groups. If either side wins the referendum with a narrow margin in which, for example, disenfranchised Brits living outside the UK could have made a difference, can the result be seen as truly valid?
This is not the only instance where the question of nationality or residence is posed. As a Briton living in France since 1990, I have acquired the right to vote in European elections – logical for an EU citizen – and also in French local elections. But presidential and parliamentary elections are reserved for French nationals.
A recent instance of EU participative democracy only added to my confusion. I wanted to vote in the European Citizens’ Initiative petition against plastic in the Mediterranean in April, but ran into a Catch 22. For France, qualifying to cast my vote required a French passport or identity card number. For Britain, a UK address was needed. Each country set its own requirements, and Britain chose residence over nationality.
Perhaps there is a feeling, as the High Court judges said in the case over the 15-year rule, that living outside the UK “weakens ties with Britain”. Yet that line of reasoning itself amounts to dissenting from the right to free movement within the EU. Those of us who have chosen this route have not disavowed our country but simply availed ourselves of an avenue that was less open before Britain’s EU membership began in 1974. Is our country abandoning us now?
The question of who gets to vote has always been the key to democracy, and that is why there were long, hard struggles for representation in Western democracies from the mid-19th century right up to the end of the 20th century.
The US enacted the Voting Rights Act in 1965, ostensibly guaranteeing African Americans the right to vote, even though the constitution had given them that right from 1871. South Africa’s majority black population has only been able to vote since 1993. Women won the vote in Britain and the United States in 1920, in France in 1945 and in Switzerland in 1971.
There have also been differing views on the age from which a person should be able to vote. Nowadays most European countries have set the voting age at 18, but it used to be 21, and in Austria it is now 16. Once upon a time, owning property was a pre-requisite, a nifty way to make sure the poor cannot vote.
All those debates have (hopefully) been settled, and there is a consensus that democracy means one adult, one vote. But do we mean this right to be exercised by nationality or by place of residence? It is a valid debate, but one that hasn't happened yet.
Personally, rather than being denied a say in my country’s “once in a generation decision”, I would rather there had at least been clarity in how Britain grants voting rights. Perhaps it should put the matter to a vote in a referendum…
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