Prior Residence and Immigrant Voting Rights

1 Introduction

Both actual voting rights regulations, as well as nearly all philosophers writing on how immigrant voting rights ought to be regulated, accept prior residence as a requirement for immigrants’ access to the right to vote. This paper questions the moral acceptability of this requirement: I argue that it is morally unacceptable to make immigrants’ right to vote dependent on prior residence, that is, that it is unacceptable to grant the right to vote to immigrants only if they have lived in the host country for a certain period of time.^[1]

Since all states, in their regular proceedings, require prior residence as a precondition for immigrants’ access to the right to vote in national elections, my argument raises fundamental doubts about existing state practice. Notwithstanding exceptions for participation in local elections^[2] and for certain groups,^[3] immigrants can, as far as national elections are concerned, only gain access to the right to vote once they have lived in the country for a certain number of years. With one year, New Zealand requires the shortest period of time, while Bhutan demands 20 years of residence for ordinary naturalization, Switzerland 10, Germany eight, and the UK five.^[4]

Despite the ongoing and truly inspiring philosophical scrutiny of the moral foundations of voting rights regulations for immigrants, the requirement of prior residence remains widely unquestioned from a philosophical perspective. Philosophers focussing on the issue of immigrants’ access to citizenship typically treat the right to vote as a core right of citizenship and, since they take prior residence to be a precondition for citizenship, adopt the same view on the right to vote.^[5] Philosophers who have specifically focussed on immigrants’ moral claim to the right to vote typically either do not address the requirement of prior residence at all or explicitly accept it, though without any broader discussion.^[6]

My argument is divided into three parts. In each of these parts, I take on one potential argument in defence of the requirement of prior residence and show why it is unsuccessful in justifying the requirement. These arguments defend the requirement of prior residence as, respectively, directly grounded by principle (part 1), as a proxy for some other morally relevant feature (part 2), and as a warrantor for abilities (part 3). Given the possibility of additional justifications for prior residence, my argument does not amount to a conclusive refutation of the requirement of prior residence. That said, I do not see on which argumentative basis additional support might rely. Thus, in rejecting the most plausible justifications, this article puts considerable pressure on the moral acceptability of the requirement of prior residence. Part 4 concludes.

A few preliminary notes are in order. First, most countries’ legal regulations treat the right to vote as part of the bundle of rights to which immigrants gain access via naturalization. Nevertheless, I will not be speaking about access to citizenship but about the right to vote. In the conclusion I will address the implications my argument has for the concept of citizenship and access to that status; however, the argument itself is about the right to vote only. This is because we will only be able to sufficiently isolate the reasons that speak in favour of and against immigrants’ access to the right to vote if we separate the discussion of this right from the discussion on citizenship. Second, given that it is their participation in national elections that is most contested, I will only talk about immigrants’ right to vote in these elections. This limits the discussion in two respects. On the one hand, it leaves aside immigrants’ moral claims to the right to vote at the local level as well as their claim to additional political participation rights. Having said that, I cannot see any convincing reason that would suggest that immigrants who have a moral claim to the right to vote in national elections may be excluded from these other political participation rights. On the other hand, by focusing on immigrant voting rights in national elections, I accept that states’ decision-making processes are organized in this national form and ignore the question of how the world’s voting systems should ideally be organized. This allows me to focus on whether, and under what conditions, immigrants should be granted the right to participate in national elections and, thus, to address a morally important question with which we are confronted in the world as it currently is. Third, I use the term ‘immigrants’ as denoting non-national immigrants. Depending on the definition of international migration, the group of immigrants may include co-nationals as well as non-national immigrants. I focus on the latter, since it is the group of non-national immigrants that is currently denied voting rights as long as they do not fulfil the requirement of prior residence. Fourth, I equate the term ‘residence’ with principal residence. Accordingly, each individual is considered a resident in one country only. This does not reflect reality, and I believe that different parallel residences should lead to voting rights in several states. But for reasons of simplicity, and given that this simplification does not impact the paper’s argument, I adopt this understanding of ‘residence’. It is then still debatable when exactly residence can be assumed. Does residence amount simply to presence, which would make tourists residents in their country of travel? Does residence require a certain period of prior presence? Can individuals become residents simply by registering a home address in the host country? The main related worry seems to be this: If we give up prior residence as a requirement for voting rights, immigrant residents will under certain circumstances get the right to vote in the country of immigration upon entry, and whom that includes depends on our understanding of residence.^[7] In response, a few words are necessary about how I will understand ‘residence’ and about the implications this understanding potentially has. Although certain cases might be difficult to determine, we are typically able to tell apart tourists from individuals who have moved to live in a certain country, and I will accept people as having residence once the latter event has taken place, even if they might stay only for a brief period. This understanding is of course debatable; however, given my limited aim to support the claim that prior residence ought to be rejected as a requirement for the right to vote, it is sufficient. Regarding the implications our understanding of residence might have, it is important to note that giving up the requirement of prior residence does not imply that all immigrant residents would receive the right to vote upon entry. Whether this is the case depends on the extent to which voting rights may be made dependent on future residence, that is, the length of time the individual will (or can be expected to) stay in the country of migration – a point which I will address, though not conclusively answer. Finally, in order to avoid confusion, one last terminological clarification: Both the legal right to vote and the moral claim to this legal right will play prominent roles in this paper; for the former I will use the term ‘right to vote’; the latter will be denoted the ‘moral claim to the right to vote’. The moral claim denotes a claim right to be granted the legal right to vote. To this claim right corresponds a moral duty on the part of the state to grant such a legal right and not to interfere with its usage without justification.

2 Prior Residence as Grounded by Principle

Those philosophers who have explicitly addressed immigrant voting rights have not explicitly provided reasons for why the requirement of prior residence should be accepted. I can see, and will address in the following, three arguments that could be made. The first, and weakest, would be to ascribe to the requirement a principled role, that is, to defend it as directly derivable from the principle that determines the demos, which is the group of individuals that have a moral claim to the right to vote in particular national elections. If we look at the current debate on how the demos is to be determined, three principles can be distinguished:^[8] the all-affected principle,^[9] the all-coerced principle^[10] and the all-subjected principle.^[11] I will argue that none of these principles, in any of their versions, ascribes a principled role to prior residence.

The all-affected principle, in a logically possible version, requires everyone to be granted the right to vote in decisions that possibly affect his or her basic interests.^[12] That this principle calls into question a state-based demos and does not make residence a requirement for voting rights at all is straightforward; it is in fact the reformist idea of the principle. An individual state’s decisions can obviously affect individuals far beyond those living on the state’s territory. Robert Goodin, who prominently defended the all-affected principle, asserts that this principle demands a demos that is global in scope.^[13]

The all-coerced principle holds that all individuals who are subjected to state coercion linked to a certain decision must be given the right to vote with regard to the making of this decision.^[14] By appeal to this principle, Arash Abizadeh seeks to reject as lacking legitimacy democratic decisions about border regimes that are taken by one state unilaterally, since potential immigrants, being people not living on the state territory who are nevertheless subjected to coercion related to the border regime, have had no say in these decisions. As regards a range of state regulations, this would include in the demos individuals who have never lived in the state. The all-coerced principle hence does not make residence a requirement for voting rights either.^[15]

Finally, the all-subjected principle, in its most restrictive and widely accepted version, ascribes voting rights to all individuals who are permanently (that is, long-term) and comprehensively subjected to the authority of the relevant state, with ‘state authority’ denoting the body of laws and decisions of this state.^[16] Compared to alternative formulations, this version – by referring to permanent and comprehensive subjection – excludes people from voting rights that alternative versions of the principle requiring less extensive subjection would include.^[17] With a view to immigrants, the all-subjected principle – even in this most restrictive version – requires future residence – that is, that immigrants should live in the relevant country and stay there for a certain time – but not, however, prior residence. Neither comprehensive nor permanent subjection manifest themselves only when immigrants have lived in a country for a certain period of time. Comprehensive subjection, that is, subjection to the body of laws and decisions of a state rather than only to some specific regulations, requires that one lives in the relevant country; but one is subjected as soon as one moves there. And, although permanent subjection involves a time factor, it is a time factor that points to the future, not to the past.

To conclude, none of the principles proposed to determine the demos directly grounds the requirement of prior residence. Their fulfilment either does not require residence at all or it requires future residence, not prior residence.

3 Prior Residence as a Proxy

Having rejected a justification of the requirement of prior residence as directly grounded by principle, the most promising alternative is to justify it as indirectly grounded by principle. It could be argued that prior residence indicates that a person fulfils the demos-determining principle, that is, that the requirement realizes an epistemic function by providing us with good reasons to assume that an individual fulfils the demos-determining principle. Given this epistemic function, so the argument goes, prior residence may be treated as a proxy for the fulfilment of the demos-determining principle and as such can be defended as a requirement for the right to vote.

Applied to the different demos-determining principles, this proxy argument can be spelled out as follows: What matters for the moral claim to the right to vote is whether an individual is, and will be, affected in his or her interests by state regulations, subjected to individual cases of state coercion or subjected to state authority. Whether someone is, and will be, affected, coerced or subjected in the relevant sense is difficult to determine. We hence need a criterion that functions as an indicator of whether someone is, and will be, affected, coerced or subjected, and prior residence can serve as such an indicator. It indicates that a person is, and will be, affected, coerced or subjected, and as such that this person fulfils the respective demos-determining principle, is part of the demos and has a moral claim to the right to vote. Accordingly, prior residence can be regarded a proxy for the fulfilment of the demos-determining principle and as such be defended as a requirement for the right to vote.^[18]

Now, how convincing is the proxy argument? The general idea on which the argument is based is convincing. In politics, normative requirements need to be operationalized. And this, under certain circumstances, justifies requirements that serve as proxies for a normatively grounded requirement of which the determination would be practically impossible, difficult, time-consuming, expensive, intrusive or prone to allow for discrimination.^[19] If we accept, for example, that voting rights may be made dependent on basic cognitive abilities, it seems plausible that a certain age limit may be introduced as a proxy, a limit that – on the basis of empirical findings regarding the development of individuals on average – distinguishes individuals who cannot reasonably be expected to be able to vote from those for whom the ability to vote can reasonably be expected.^[20]

Although the underlying idea is plausible, the argument nevertheless fails to vindicate the requirement of prior residence. And this judgment applies, so I will argue, regardless of whether we hold the all-affected, the all-coerced or the all-subjected principle to be determining the demos.

4 Prior Residence as a Precondition for Abilities

Thirdly, prior residence could be justified as a precondition for further aspects (unrelated to the demos-determining principle) held to be important for voting: In order to be able to cast a vote that is best for the society, one could argue, one must understand the political system, know what certain political parties stand for, grasp what impact certain decisions would have on the society and/or identify with the country and its society, in the sense of caring about their development and desiring that they fare well. Given that the development of such an understanding and identification requires a certain period of residence, one is only able to vote if one has lived in a country for that period of time. Therefore, only individuals who fulfil the requirement of prior residence have a moral claim to the right to vote.^[23]

The argument would not be very strong if it considered prior residence to guarantee that immigrants acquire the relevant abilities – that is, to be a sufficient condition for the acquisition of these abilities – or that voting rights could be made dependent on the existence of such abilities. It does not take much research to show that citizens who have lived in their home country for their entire lives do not necessarily understand the political system, what certain political parties stand for and what impact certain decisions would have on the society, nor do they vote with the intention to reach an outcome that is best for the society. This suffices to reject the weak version of the argument: Its empirical basis is flawed, and the principle of equal treatment either precludes requirements that are neither demanded of citizens nor fulfilled by them, or it requires we deny voting rights to many citizens who have always lived in their home country – which seems to be a far-reaching and unacceptable implication.

The stronger version of the argument treats prior residence as a necessary condition for the acquisition of such abilities, but refrains from demanding their actual proof or existence. This argument, in combination with the principle of equal treatment, implies certain changes to many states’ voting regulations: The right to vote of citizens who have not lived in the country of their formal belonging would equally have to be made dependent on prior residence. However, it is compatible with the current regulations in that it takes prior residence to guarantee that immigrants, after a certain time, are as likely to have acquired these abilities as citizens and in that it does not require immigrants to prove abilities that citizens cannot be expected to have.

The argument cannot be easily dismissed by pointing out that it underpins requirements for voting rights that are additional to those implied by the demos-determining principles. For example, the broadly accepted exclusion of children and individuals with certain intellectual disabilities from the voting process implies that requirements that exceed those derivable from the various demos-determining principles are held to be defensible. I do not aim to defend these exclusions and to determine whether and to what extent they can be defended would require an extended discussion. Their legal and philosophical acceptance alone, however, requires us to discuss whether prior residence can be defended as a requirement for immigrants’ right to vote in addition to the requirements that are derivable from the demos-determining principles.

How, then, can we normatively make sense of the argument from abilities? Most plausibly the argument rests on the idea that individuals who do not have the ability to carry out a certain act do not have a moral claim to such an act and that all those who do not fulfil certain necessary conditions for having these abilities may be excluded from the legal right corresponding to this moral claim. Applied to the right to vote, the argument then goes as follows: Immigrant voting rights may be made dependent on prior residence because immigrants lack the ability to vote and hence do not have a moral claim to the right to vote unless they have been living in the country for a certain period of time and as such fulfil the condition necessary for acquiring this ability.

The underlying consideration seems to be convincing: If I lack the ability to form an opinion then it is implausible to assume that I have a moral claim to freedom of opinion and states would most likely not harm me if they excluded me from the right to freedom of opinion. Nevertheless, the argument fails, due to two reasons. First, given that we live in a world of interaction and flows of information and that individuals are capable of caring about the well-being of other societies, it is questionable whether prior residence is a precondition for the ability that the argument refers to, namely, the ability to cast a well-informed and well-considered vote. Rather, it seems to be the case that a number of individuals who live outside a country would, if allowed to vote, cast not only better-informed and better-considered votes than a portion of the citizens, but indeed very well-informed and well-considered votes. If that is true, then the consideration that individuals who do not have the abilities to carry out an act do not have a moral claim to such an act, and may thus be excluded from the legal right corresponding to this moral claim, does not support the claim that immigrants do not have a moral claim to the right to vote.

More importantly, the underlying consideration does not apply to the issue under discussion, because the abilities necessary for casting a well-informed and well-considered vote – these being the abilities for which prior residence is argued to be necessary – are irrelevant to the right to vote under discussion. This is because having a moral claim depends only on the abilities that are necessary to carry out the activities that this moral claim protects. To illustrate, the moral claim to freedom of opinion, which protects individuals in their activity of forming and uttering an opinion, depends on the ability to form and utter an opinion, not however on the ability to form and utter a rational and true opinion. For example, it equally protects individuals who still believe that the earth is the centre of the universe. Now the right under discussion in this paper is not the right to cast a well-considered or well-informed vote, but the right to cast a vote. Period. Accordingly, it cannot possibly depend on the ability to cast a well-considered and well-informed vote, and prior residence as held to be necessary for this ability becomes irrelevant.

That the right under discussion is the right to cast a vote, period, becomes evident if we reconsider the normative ideas behind the all-affected, the all-coerced and the all-subjected principles, which are meant to explain why individuals fulfilling these principles have a moral claim to the right to vote. According to the all-affected principle, individuals have a moral claim to the right to vote because a state’s decisions and regulations possibly affect them in their basic interests. According to the all-coerced principle, they have a right to vote because they are subjected to coercion resulting from an individual regulation or decision of a state. The all-subjected principle ascribes the right to vote to everyone who is subjected to a state’s authority, and in that way – just like the all-coerced principle – draws on the idea that coercion requires authorization by the group that is subjected to it, but takes a more excessive scope of coercion to be decisive than the all-coerced principle. Accordingly, it is the membership in the group that is affected in their basic interests, or is subjected to certain forms of coercion, that is decisive for the right to vote, not the membership in a group that is able to cast a well-considered or well-informed vote. The moral claim to the right to vote, in turn, protects participation in the voting process, but not participation in the process of well-informed or well-considered voting. The moral claim to the right to vote then possibly depends on the ability to carry out an act that can be considered voting, not on the ability to cast a well-considered or well-informed vote. Therefore, even if prior residence were a necessary condition for developing these latter abilities, it would not follow that it is a justified precondition for the right to vote.

Now one could of course object that I have presented only one way in which the argument from abilities could be understood and that it is an alternative reading that is convincing. Whereas I presented it as an argument about whether immigrants have a pro tanto moral claim to the right to vote, a convincing version of the argument, one could argue, would accept that immigrants have this moral claim, but claim that states are justified in infringing this moral claim for the period of time considered necessary for immigrants to acquire the abilities they need to cast a well-informed and well-considered vote.^[24] The claim that needs to be defended for this version of the argument to go through then is: For a certain period of time, interference with immigrants’ claims to the right to vote is justified because they need this time to acquire abilities necessary for well-informed and well-considered voting.

What to make of this version of the argument? The aim of engendering a reflective and well-informed electorate is defensible on democratic grounds themselves – especially from the perspective of a republican understanding of democracy – stressing the process of deliberation and the aim of developing outcomes that are accessible and identifiable for everyone.^[25] Nevertheless, if we consider the results that can realistically be reached as well as the costs that occur when we strive for this aim by making the right to vote dependent on prior residence, it becomes clear that the benefits cannot possibly outweigh the costs. The second version of the argument from abilities therefore also fails to vindicate the requirement of prior residence.

What can be said about the realistic effects of prior residence? It is unconvincing both that prior residence is necessary for the abilities to cast a well-considered and well-informed vote and that it is sufficient, that is, that it guarantees these abilities. Both points have already been addressed. If at all, prior residence perhaps makes it more likely that individuals will cast a well-considered and well-informed vote. If we consider current developments in Europe, including right-wing parties gaining ground in a number of countries such as Germany and France or the election of Donald Trump as president of the United States, even the increase in likelihood seems contestable; certainly it is very limited. The introduction of the requirement of prior residence may hence have the positive aim of creating an electorate that takes well-considered and well-informed decisions, but what we reach by introducing the requirement of prior residence is, if anything, a minimal increase in the likelihood of individuals voting well.

What is at stake on the other side; that is, what are the costs of requiring prior residence as a precondition for immigrants’ access to the right to vote? If the right to vote is made dependent on prior residence, all immigrants who fulfil the demos-determining principle – and thus have a moral claim to the right to vote – are denied the fulfilment of this moral claim for the required period of residence. What exactly this infringement amounts to morally is not easy to answer, and depends on what demos-determining principle we draw on: Those defending the all-affected principle would have to explain what it is that makes it morally problematic to be potentially affected in one’s interests without having a say in the decision-making process and how bad that is; those defending the all-coerced or the all-subjected principle would have to explain the moral severity of being subjected to coercive laws without having had a say in the decision-making. We need not determine these details, however, in order to establish that it is sufficiently morally problematic to infringe upon immigrants’ moral claims to the right to vote and that the expected benefits cannot justify the infringement. And this explanation applies no matter what demos-determining principle we favour: All three principles determine the group that must collectively decide in order to be self-determined. If citizens – who according to these principles have a moral claim to the right to vote – are granted this right, yet immigrants who equally fulfil these principles are denied the right to vote, the latter are denied equal treatment and respect. Independently of the negative psychological effects this might cause, such as feelings of not-belonging and inferiority, this in itself is a severe moral burden. Contrasting this negative effect with the expected benefits, we can conclude without further reasoning that the latter cannot possibly outweigh the former and that the infringement of immigrant voting rights can therefore not be justified. The second version of the argument from abilities, just like the first, thus fails to vindicate the requirement of prior residence as a requirement additional to those that are (directly and indirectly) grounded by the demos-determining principles.

5 Conclusion

To conclude, I have been arguing in favour of the view that immigrants’ right to vote may not be made dependent on prior residence, regardless of whether one defends the all-affected principle, the all-coerced principle or the all-subjected principle to determine the demos.

Immigrants may legitimately be required to fulfil all the criteria that are implied in the relevant demos-determining principle: Prior residence, however, is not among them. It can hence not be justified as directly grounded by principle. Nor can it be justified as a proxy. Depending on the principle one holds to determine the demos, prior residence does not pick out anything that is sufficiently relevant for the fulfilment of this principle – this applies to the all-affected and the all-coerced principle – or else – in the case of the all-subjected principle – it indicates something which is sufficiently relevant to the fulfilment of the principle but cannot be made a requirement because other proxies are available. Defences of additional requirements, that is, requirements that do not follow (directly or indirectly) from the demos-determining principles, may be available. They might potentially justify the requirement of basic cognitive abilities, but not however the requirement of prior residence. While basic cognitive abilities might be held to be necessary for the ability to vote, and hence for the moral claim to the right to vote, prior residence cannot reasonably be described as necessary for an ability on which the right to vote may be made dependent. We can then conclude that the three arguments discussed fail to uphold the claim that immigrants’ right to vote may be made dependent on the requirement of prior residence.

The discussion has also highlighted one reason why it is morally problematic to exclude from the right to vote immigrants who, according to the demos-determining principle, have a moral claim to this right. If citizens are granted the right to vote, yet immigrants who equally fulfil the demos-determining principle are not, the latter are denied equal treatment and respect.

My argument is insufficient to show conclusively that immigrants’ right to vote may not be made dependent on prior residence. Nevertheless, in rejecting the most plausible justifications for the requirement of prior residence, and in providing reasons why it is important to grant access to voting rights independent of prior residence, this article puts significant pressure on the moral acceptability of the requirement of prior residence, and thus on all states’ current voting rights regulations for immigrants.

This conclusion also concerns the concept of citizenship, and access to that status. If the arguments presented in this paper are persuasive, we cannot stick both to the assumption that citizenship is a bundle of rights to which the right to vote necessarily belongs and to the assumption that citizenship may be made dependent on the requirement of prior residence. Rather we have to decide which of the assumptions, and the corresponding legal regulations, we want to give up. Provided it is morally acceptable to make access to citizenship dependent on prior residence – an issue I am not able to settle here – the available options are: (i) to disentangle citizenship and voting rights and to grant citizenship after a certain period of time, yet grant the right to vote independently of the requirement of prior residence; or (ii) to treat the right to vote as belonging to citizenship but no longer make citizenship dependent on prior residence. Much speaks in favour of the second option – most importantly, full and equal access to political participation rights – that is, their comprehensive use without any threat of negative consequences – might be compromised for individuals who lack citizenship, along with the unconditional security to stay or return to the country^[26] – and history has seen a number of different arrangements regarding the rights, including voting rights, that have, or have not, been linked to citizenship. I am not aiming to defend any of the options here. Rather I would like to end on a more humble note and simply observe that states, in order to treat their immigrants in a manner that is morally acceptable, must urgently reconsider their voting rights as well as citizenship regulations.