Should Foreigners Vote in National Legislative Elections?

—Michèle Finck, University of Oxford

Next month, voters in Luxembourg will have to participate in a referendum (voting is mandatory in Luxembourg) that raises three different questions, among which is the following: do you agree that those residents that are not Luxembourg nationals should be entitled to participate in national legislative elections under the condition that (i) they have lived in Luxembourg for at least ten years, and (ii) they have previously participated in local elections or elections for the European Parliament in Luxembourg?

At first sight this may seem surprising, but it is not unprecedented. Foreigners can participate in legislative elections in some countries, such as the UK, which has created this option solely for the British, Irish and Commonwealth citizens, and also New Zealand. What makes the Luxembourg case particularly noteworthy is not only the possibility of foreigner voting but also its practical significance. This becomes obvious when looking at the Grand Duchy’s demographic structure: around 46% of its population are foreign residents. Opening the door to foreigner voting would significantly change political participation and decision-making, and question a number of issues that are often taken for granted. I examine these rather complex issues at length in a paper that is forthcoming in the European Constitutional Law Review. In this post, I will not engage with all the issues that arise but I will rather explain how this question arrived on the ballot and outline the possible consequences should voters approve the measure.

Why Luxembourg?

The topic cannot be grasped in isolation from Luxembourg’s demographic composition, it being one of the countries with the highest share of non-national residents in the world.

Almost half of its population are not Luxembourg nationals. Most foreign residents, however, come form other EU Member States, most notably Portugal, France, Belgium, Italy and Germany. Despite 150 nationalities being represented in the Grand Duchy, 86% of all foreign residents are European citizens.

The reason why Luxembourg has a high share of foreign residents is because of its rapid economic growth over the past decades. Put simply, there are now many more jobs than there are Luxembourgers of working age. As a consequence the Luxembourg economy depends on foreign workers. Perhaps strikingly for any outside-observer, 70% of Luxembourg’s workforce is made up by foreign residents and cross border workers (the ‘frontaliers’) – that is to say those 150,000 people that work in Luxembourg but live in its neighbouring countries.

These numbers underline that up to 70% of those subject to labour laws, taxation, social security withholding/rules/regulations, and macroeconomic policies do not have a right to vote. For many this is the main reason why reform is in order. They recall our outrage at times where 50% of a State’s population – women – were unable to vote, yet subject to decisions others – the men – made through their own intervention in the political process.

Universal suffrage, it is sometimes argued, cannot really be universal if half of those concerned by a legislation cannot contribute to its crafting. The extension of voting rights is further seen as a mechanism of social coherence, allowing all of those living in Luxembourg to determine their polis in common rather than having a situation where some get to decide and others are left to accept the latter’s decisions.

The current debates are unique to Luxembourg, there being no similar debates in its neighbouring countries. Moreover, Luxembourg is not compelled to take such steps as a matter of EU or international law. As regards international law, Article 16 ECHR and Article 25 of the ICCPR for instance explicitly allow for the restriction of foreigners’ voting rights.  Under the influence of European Union law, EU citizens can already, under certain conditions, participate in municipal elections (Luxembourg has extended that right to all foreign nationals) and those for the EU Parliament. No obligation whatsoever however arises under EU law to open participation in legislative elections to citizens from other EU Member States.

Whether Luxembourgers will choose to allow foreigners to vote remains an open question. Polls from 2013 indicate that 50% respectively 59% of Luxembourgers are in favour of such reform. More recent polls show that 48% approve such change. It is interesting to have a brief look at the implications a ‘yes’ vote would have from the perspective of constitutional law. These consequences are complex and manifold, and I will limit myself here to a brief introduction to but some of them.

Possible Consequences of a ‘Yes’

Foreigner voting would cast doubt on the link between nationality and voting rights that is reflected in probably all election laws. Voting rights are indeed traditionally perceived as a corollary of nationality. Members of a given community vote to designate those in charge of establishing rules that must be followed by all. The relevant ‘community’ for these purposes is generally understood as nationals, rather than residents, of a State. Foreign residents are not seen to be part of the political process.

This conception reflects a vision of ‘us versus them’ – of a community composed solely by those sharing a passport, and not a common socio-economic fate. The inclusion of non-nationals in the electorate would in fact be deeply paradoxical in light of conventional discourses about incentives in politics, according to which the ruling class seeks its renewal and to further its self-interest. Rather than striving to empower and perpetuate themselves, some Luxembourgers seem willing to loosen control over the system. This can be understood considering that nationals and non-nationals live and work together, and have fused into a single community for many purposes. From the perspective of EU law, current debates might be understood as an utterance of the de facto solidarity between the peoples of Europe, famously alluded to in the Schuman Declaration.

Should such solidarity have infiltrated mentalities, the referendum’s outcome will trigger electoral reform. Through such reform, a conceptual shift would occur as the capacity to vote in national elections would be determined by the criterion of residence rather than nationality. The notions of citizenship and nationality would be decoupled with regard to legislative elections, a process that, as will be seen just below, has already been partly initiated by the participation of European citizens in municipal and European elections under the influence of EU law.  It is in this regard quite noteworthy that the Luxembourg government itself refers to foreign residents as  ‘foreign citizens’ or ‘foreign co-citizens’ when announcing that ‘access to Luxembourg nationality and political participation’ must be facilitated for ‘foreign citizens living in Luxembourg.’ This language might surprise those that take citizenship and nationality for synonyms as non-nationals are considered to be ‘citizens’.

Under EU law, non-nationals (insofar as they are EU citizens) form part of the electorate in local and EU elections. Voting rights are often understood to contribute to the self-definition of a socio-political group, traditionally defined by the criterion of nationality. This state of affairs has however already been party modified due to European citizenship. The attached voting rights attribute EU citizens some political participation rights based on their residence and their status as EU citizens. Notions of ‘us’ and ‘them’ are accordingly subject to redefinition. The demos can no longer be simply understood as the privilege of nationals but rather as a community of residents. Local/EU and national legislative elections are certainly quite different in a number of ways. It is however interesting to note that conceptually at least, the decoupling of citizenship and nationality was initiated by European citizenship and this might now be taken further by a domestic electoral reform – hinting at the deep interconnection that has come to exist between domestic constitutional and EU law.

The decoupling of citizenship and nationality is however not the sole conceptual challenge that would arise in Luxembourg should the electoral reform go ahead. Another issue that deserves further though is the fate of postal voting, which is currently legal in Luxembourg and which allow those Luxembourg nationals residing outside of the country, like me, to participate in the Grand Duchy’s political process notwithstanding their geographical absence at the time of the vote. If the criterion determining political rights will henceforth be residence rather citizenship, then the conceptual justification for postal voting might be called into question. However there is no reason why the legislature might not decide to keep postal voting while allowing foreign residents to participate in the vote. Things are quite different with the next point.

From a constitutional law perspective, the fundamental question that would arise in the event of a yes vote concerns the compatibility between foreigner voting and the notion of national sovereignty. Article 32(1) of the Luxembourg Constitution currently states that ‘Sovereign power resides in the Nation’. It is true that the Constitution is currently being revised, but also the proposed new text remains attached to this notion, which seems incompatible with foreigner voting. The question that arises is in how far nationals remain sovereign if they are not the exclusive holders of voting rights. It is in this regard interesting to note that both the German Constitutional Court as well as the French Constitutional Council have decided that voting rights for foreign nationals are incompatible with national sovereignty. The notion of national sovereignty is at present anchored in Article 32(1) of the Luxembourg Constitution. A modification of voting rights would thus have to go hand in hand with the abolition of national sovereignty from the Luxembourg Constitution as it is difficult to imagine how both could coexist in the future.  It is indeed difficult to imagine an interpretative workaround to bring them into conformity.

The aim of this blog post was to draw attention to a possible domestic constitutional reform that would be the first of its kind. While this is not the right place to conduct an in-depth analysis of the different issues likely to arise, the blog post has I have illustrated that a political space composed equally by nationals and foreigners, which determine their common fate in common through the vote, should not be solely be thought of as a sort of cosmopolitan utopia but might very well manifest in 2015. The referendum is scheduled for June 7, 2015. The result can then be accessed here.

Suggested Citation: Michèle Finck, Should Foreigners Vote in National Legislative Elections?, Int’l J. Const. L. Blog, May 13, 2015, at: http://www.iconnectblog.com/2015/05/should-foreigners-vote-in-national-legislative-elections