{"id":1855,"date":"2025-02-10T11:19:45","date_gmt":"2025-02-10T11:19:45","guid":{"rendered":"https:\/\/sites.exeter.ac.uk\/humanrightsanddemocracyforumblog\/?p=1855"},"modified":"2025-02-10T11:19:46","modified_gmt":"2025-02-10T11:19:46","slug":"voting-from-abroad-ahead-of-germanys-2025-snap-election-practical-challenges-and-legal-implications-of-non-resident-voting-from-a-comparative-perspective-by-johannes-socher-and-raphael-gira","status":"publish","type":"post","link":"https:\/\/sites.exeter.ac.uk\/humanrightsanddemocracyforumblog\/2025\/02\/10\/voting-from-abroad-ahead-of-germanys-2025-snap-election-practical-challenges-and-legal-implications-of-non-resident-voting-from-a-comparative-perspective-by-johannes-socher-and-raphael-gira\/","title":{"rendered":"Voting from Abroad Ahead of Germany\u2019s 2025 Snap Election: Practical Challenges and Legal Implications of Non-Resident Voting from a Comparative Perspective, by Johannes Socher and Raphael Girard"},"content":{"rendered":"\n

Over the past few weeks, several reports have appeared in German media on expected challenges with postal voting from abroad ahead of Germany\u2019s snap election scheduled for 23 February 2025 (see here<\/a>, here<\/a> and here<\/a>). The potential legal implications were highlighted by the recent case of a German citizen living in South Africa petitioning the German government, through a German court, to implement \u201csuitable measures\u201d to enable participation in the upcoming election which, however, was rejected as inadmissible by the court<\/a>. The case was filed against the background that ballot papers will be sent to registered postal voters only in the first week of February<\/a>, whereas normally this is done six weeks ahead of election day.<\/p>\n\n\n\n

While an OSCE election expert team<\/a> had already noted \u201ca few instances of late receipt of postal votes by citizens living abroad\u201d during the last federal election in 2021, this time the shortened period might jeopardize the timely receipt of the ballot papers to a much larger extent. With state postal services being in decline in many countries around the world, the use of alternative (and much more expensive) courier services will often be the only effective way to make use of postal voting abroad. For example, in the case at hand, the South African postal service has been described as \u201con the brink of collapse<\/a>\u201d. Since German election laws do not allow e-voting or in-person voting in diplomatic missions or other locations abroad, postal voting is currently the only option for the estimated three to four million German citizens living abroad<\/a> to vote in German elections.<\/p>\n\n\n\n

In this blog post, we take a comparative perspective to explore the different approaches some other countries have taken towards non-resident voting. Drawing in particular on the examples of Canada and Moldova, we suggest that countries that allow out-of-country voting should make more efforts to provide genuine opportunities for non-resident citizens to take part in elections, free from excessive practical hurdles. One way to achieve this, including for future elections in Germany, could be to formally allow and facilitate postal voting for citizens living abroad via their country\u2019s diplomatic missions and official courier services.<\/p>\n\n\n\n

International standards for voting from abroad<\/strong><\/p>\n\n\n\n

The reported concerns about the effectiveness of postal voting ahead of Germany\u2019s election point to a bigger practical challenge related to the access to the right to vote for citizens living abroad that can be observed also in other countries. Although voting from abroad is neither essential nor required by international law, it is widely considered to be a positive measure. Resolution 1459 of the Parliamentary Assembly of the Council of Europe<\/a>, for example, stresses that \u201cGiven the importance of the right to vote in a democratic society, the member countries of the Council of Europe should enable their citizens living abroad to vote during national elections [\u2026]. They should take appropriate measures to facilitate the exercise of such voting rights as much as possible, in particular by considering absentee (postal), consular or e-voting\u201d.<\/p>\n\n\n\n

Voting from abroad can be defined<\/a> as \u201cprocedures which enable some or all electors of a country who are temporarily or permanently outside the country to exercise their voting rights from another country\u201d. Apart from e-voting, which is currently used only in a few countries<\/a> mainly due to concerns about trust and security of the vote \u2013 and is often restricted to specific categories of voters<\/a> \u2013, there are two main ways of how countries can enable their citizens to vote from abroad.<\/p>\n\n\n\n

The first way is voting in polling stations set up abroad, often in diplomatic missions (so-called consular voting). This, however, can pose a number of practical and logistical challenges, as well as principle-based issues. For example, not every country has diplomatic missions abroad (or at least not in every jurisdiction), which can make it difficult in practice for countries without a diplomatic mission abroad and (or) with limited resources to set up polling stations on foreign soil. Moreover, some host countries are visibly reluctant to allow foreign elections to take place in-person on their territory, as a matter of principle, on the basis that doing so may affect their sovereignty. Such is the case of Canada, which established in 2008 a policy to refuse requests by any foreign countries to include Canada in their respective exterritorial electoral constituencies<\/a>, that is to say any voting district or riding that includes Canada and\/or a part of Canada\u2019s territory. Canada does, however, allow foreign nationals to cast their vote in polling stations established within recognized diplomatic missions or consular posts, but this is subject to an official request to the Canadian Department of Foreign Affairs and International Trade which must specify the location of each polling station and must be submitted well in advance of the election or referendum. A similar policy existed<\/a> in Switzerland for many decades, and many governments hosting Bosnian, Cambodian and Liberian refugees did not allow electoral activities on their soil following the end of the wars in the three countries in the 1990s.<\/p>\n\n\n\n

As an alternative to consular voting, many countries allow their citizens living abroad to vote by mail. As the Venice Commission explains in its Code of Good Practice in Electoral Matters<\/a>, postal voting, however, should be allowed only where the postal service is safe and reliable. The acceptability of the introduction of postal voting must therefore be assessed in light of these criteria, that is safety (from interference) and reliability (proper functioning), an aspect that the Venice Commission recently highlighted in a June 2024 opinion<\/a>.<\/p>\n\n\n\n

Postal voting only in Canada<\/strong><\/p>\n\n\n\n

Looking at the practice of different countries, it is interesting to observe that while some states only allow postal voting, others follow the opposite approach and only allow consular voting. Others go as far as to force non-resident citizens to travel back to their country of origin to cast their vote and (or) even disenfranchise citizens who have been living abroad for a certain amount of time. This was the case until recently in Canada, where citizens who had been living abroad for more than five years were legally barred from taking part in Canadian elections. This changed only after the Canadian Supreme Court ruling in Frank v Canada (Attorney General)<\/em><\/a> and the (pre-emptive) amendments to the Canada Elections Act<\/a> in late 2018, which removed the five-year restriction on voting for non-resident Canadian citizens.<\/p>\n\n\n\n

As a result of this legislative change, non-resident Canadian citizens who have lived in Canada at some point in their lives can vote in Canadian elections from abroad, regardless of the duration of their residence outside Canada or their intention to return. Non-resident Canadian citizens can apply to be added to an International Register of Electors<\/a>. Once their application has been approved and their name added to the register, they can apply for postal voting<\/a>.<\/p>\n\n\n\n

However, practical challenges remain. For example, similar to Germany\u2019s last federal election in 2021, OSCE election experts noted<\/a> in their final report on Canada\u2019s last federal election the same year that \u201cpostal times (dispatch and return) for voters residing abroad [\u2026] meant that some special votes were unlikely to be received on time, meaning that these votes were not included in the vote count\u201d.<\/p>\n\n\n\n

Consular voting and limited postal voting in Moldova<\/strong><\/p>\n\n\n\n

Against the backdrop of the practical challenges with postal voting in Germany and Canada, it is interesting to contrast this with the experience of Moldova, which allows its citizens to vote from abroad in-person in polling stations set up in diplomatic missions and other locations. This measure is particularly significant given the importance of the Moldovan diaspora: according to the Moldovan Ministry of Foreign Affairs and European Integration, between 1.11 and 1.25 million Moldovan citizens live abroad<\/a>, which represents approximately half of Moldova\u2019s in-country population (2.49 million in 2023). Additionally, a new election law<\/a>, enacted in 2024 in anticipation of a constitutional referendum and presidential election later that year, allows for postal voting in six countries (USA, Canada, Norway, Sweden, Finland and Iceland). In other countries, this option was not (yet) available for the last elections, and Moldovan citizens living abroad had to rely on the 231 polling stations established abroad.<\/p>\n\n\n\n

However, the Central Electoral Commission\u2019s decision to establish only two polling stations in Russia \u2013 where approximately 354,200 Moldovan citizens reside, a declining number but still the highest figure among all countries of the Moldovan diaspora<\/a> \u2013 was criticized by some political actors<\/a> as politically motivated. The pro-Russian Party of Socialists judicially challenged the Commission\u2019s decision, but the court rejected<\/a> the complaint. While the Commission defended its decision to open only two polling stations in Russia, citing security risks and logistical challenges, the small number of polling stations set up in Russia compared with countries in Western Europe nevertheless sparked accusations by Russia that Moldova\u2019s constitutional referendum on joining the EU had been \u201cunfree<\/a>\u201d, with the Kremlin also citing a \u201chard-to-explain\u201d last-minute increase of votes in favour of the \u201cyes\u201d side.<\/p>\n\n\n\n

This example highlights the complexities of in-person, non-resident consular voting, particularly in a tense geopolitical context and amid strong allegations of foreign interference by Russia against Moldova, including allegations of vote buying schemes<\/a>, manipulation, intimidation, cyber-attacks and even bomb threats against Moldovan polling stations established in Germany<\/a>.<\/p>\n\n\n\n

Towards a mixed approach?<\/strong><\/p>\n\n\n\n

In a press statement, Germany\u2019s Federal Returning Officer recently announced<\/a> that many (but not all) German missions abroad would exceptionally allow citizens living abroad \u201cto return their postal ballot letters to Germany using the official courier service to the Federal Foreign Office in Berlin\u201d. As of 30 January 2025, over 150 German missions were listed<\/a> to offer this service \u201cbecause of long mail delivery times in the host country\u201d.<\/p>\n\n\n\n

For now, this offer is labelled as an exceptional measure<\/a>. However, the regularization of this mixed approach, that is formally allowing and facilitating postal voting for citizens living abroad via their country\u2019s diplomatic missions and courier services, could be the way forward for many, if not most, jurisdictions that allow non-resident voting, including Germany. Not only would such an approach have practical and logistical benefits, in giving non-resident citizens more options to cast their vote and to ensure that it is received in time and counted. It could also reduce the risks of politically-driven electoral manipulations, provided that all non-resident voters are given an equal opportunity to register to the electoral list, receive their ballot and be given enough time to return their vote to the relevant authorities by mail or in-person.<\/p>\n\n\n\n

Of course, the legitimacy of non-resident voting remains a contentious issue despite its exponential growth in the past few decades. Approaches to non-resident voting are often based in competing political philosophies of belonging<\/a> in an increasingly globalized world. It is not the purpose of this blog post to offer a principled defense of any of these approaches and philosophies. However, once a jurisdiction has made the decision to allow non-resident voting, it is crucial that these non-resident voters be given a genuine opportunity to vote, without insurmountable practical and logistical hurdles. After all, external voting \u2013 including non-resident voting \u2013 is often the only means for nationals living abroad to exercise any voting rights, particularly in instances in which these people are not citizens of their host country and therefore do not enjoy the right to vote in that jurisdiction. Put differently, non-resident voting can be a reasonable \u201csolution to the problem of the political representation of nationals living abroad as well as a means of ensuring and actualizing their political rights<\/a>.\u201d As such, more efforts should be made to ensure that these rights are realized \u2013 and that non-resident voters are given an equal and realistic chance to cast their vote and exercise their political rights, regardless of their geographical location.<\/p>\n\n\n\n

Dr Johannes Socher is a Walter Benjamin Fellow (DFG) at the Institute for International and Comparative Law in Africa, University of Pretoria, and a member of the German government\u2019s expert roster for EU and OSCE election observation missions.<\/em><\/strong><\/p>\n\n\n\n

Dr Rapha\u00ebl Girard is Lecturer in Law at the University of Exeter Law School. He is also a lawyer, member of the Barreau du Qu\u00e9bec since 2016.<\/em><\/strong><\/p>\n\n\n\n

This blog post was originally published on Verfassungsblog on 6 February 2025: https:\/\/verfassungsblog.de\/ahead-of-germanys-2025-snap-election\/<\/a><\/p>\n","protected":false},"excerpt":{"rendered":"

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