AuthorBurton, Sarah

Introduction I. Overview of Non-Resident Voting and the Frank Case A. Non-Resident Voting in Canada B. Frank and the Law of Democracy C. Frank and Democratic Theory II. Non-Resident Enfranchisement Theory III. Nationalism, Cosmopolitanism, and the Space in Between A. The Local Account B. The Global Account C. Bridging the Gap: Hybrid Models D. Non-Resident Voting at the Intersection of Global and Local IV. Theories of Non-Resident Voting in Frank A. The Majority Judgment B. The Frank Dissent C. Analysis of Frank Conclusion Introduction

In 2011, Gillian Frank was a law-abiding Canadian citizen and former reservist who was born and raised in Ontario, watched Hockey Night in Canada, and listened to CBC Radio. (1) He could not, however, vote in Canadian elections. In fact, when Mr. Frank attempted to register, he was informed that he and millions of other citizens like him were legislatively barred from participating in Canadian elections. His disenfranchisement flowed from residence. Several years prior, Mr. Frank had moved to the United States to pursue graduate studies, and despite numerous attempts, he was unable to find work at a Canadian university. Because he had left more than five years prior, the Canada Elections Act barred him from voting until such time as he resumed residence in Canada. (2)

Mr. Frank's discovery spawned a seven-year legal battle whose resolution drew him into questions regarding the meaning of democracy, the nature of belonging to a political community, and the role of membership in a globalized world. In the end, a deeply divided Supreme Court of Canada struck down his legislated disenfranchisement. According to the majority, physical borders mean little in an increasingly globalized world. Non-resident citizens may live somewhere else, but this does not weaken their Canadian identity. In dissent, two justices lamented the breakdown of the nation's Westminster tradition and parliamentary democracy. To them, non-residents may carry Canadian passports, but Parliament is justified in treating them as outsiders from the political community.

My interest in Frank v. Canada (Attorney General) (3) is not primarily about the legal decision reached, but about how the judges conceptualize and defend their visions of non-resident voting. I argue that the judges in Frank are locked in an argument about political belonging that echoes the larger culture wars between so-called "local" and "global" values. The topic of belonging is common in political theory, but there is surprisingly little attention given to the philosophical foundations of non-resident voting itself. This case comment takes on this task. Contrary to its frequent characterizations, I argue that non-resident voting is not necessarily a nationalist phenomenon--indeed, it stands at odds with many strands of nationalism. Nor, however, is it an expression of global, or cosmopolitan, ideologies. Frank demonstrates that non-resident voting can be better understood as occupying the hybrid space between nationalist and cosmopolitan poles, which I explore in the paragraphs below.

The remainder of this case comment proceeds as follows. Part I introduces the practice of non-resident voting and traces the progression of the Frank case from the Ontario Superior Court to the Supreme Court of Canada. Through this analysis I demonstrate that the judges in Frank are locked in a philosophical disagreement on the nature of political belonging in which non-resident citizens are either celebrated as ambassadors or excluded as political outsiders. Part II considers scholarly treatment of the political belonging of non-resident citizens. Within the existing literature, support or rejection of non-resident voting is often secondary, and operates in service of other, more central claims. Within these narratives, non-resident voting is either dismissed as a representation of parochial interests and insidious strands of nationalism, or is presented in the language of universal rights and of a borderless cosmopolitan reality. Part III considers the accuracy of these characterizations. The "global" and "local" labels are used as a shorthand for umbrella concepts which themselves envelop a number of ideological or philosophical stances. The global label encompasses liberal and cosmopolitan philosophies, while the local label denotes communitarian and nationalist thought. Various scholarly attempts to reconcile these poles are also considered, including strands of patriotic, instrumentalist, and rooted cosmopolitanism, constitutional patriotism, and liberal nationalism. This part concludes by considering how non-resident voting should be situated within these lines of thought. Part IV aligns the reasons in Frank with these labels. Taken, as the majority did, in a favourable light, non-resident voters are best thought of as cosmopolitan patriots who believe that moral duties do not stop at a state's borders. The dissent's skeptical vision of non-resident voters is best described through a liberal nationalist lens. This analysis demonstrates that non-resident voting is more complex than its typical characterization, and that it resists a one-size-fits-all test of legitimacy. The practice lives within the nebulous space between competing cosmopolitan and nationalist poles, which offers both promise and cause for concern.

  1. Overview of Non-Resident Voting and the Frank Case

    1. Non-Resident Voting in Canada

      Non-resident enfranchisement refers to the ability of people to vote in their country of citizenship despite residing elsewhere. (4) It is defined by the disconnect between citizenship and residence: the voters in question are casting ballots in their state of citizenship, but they live somewhere else. (5) As a practice, non-resident voting has global reach and relevance. Every democratic state must address whether and how to enfranchise citizens who move away. Its significance as a voting issue will only grow in the future, as technology and travel make it easier for people to move away from their country of origin while staying connected to it. (6)

      Despite this ubiquity, non-resident voting has historically failed to receive significant scholarly or legal attention. (7) While the practice of nonresident voting is not new, (8) it was reserved throughout much of its history for exceptional categories of citizens whose overseas status was necessary for their service to the state. (9) Over the past thirty years, however, nonresident voting has grown significantly in both the number of countries that permit the practice, and in the categories of non-residents who are eligible. (10) This recent expansion has caused the practice of non-resident voting to grow faster than its legal and philosophical footing. There is no global standard for how or whether non-residents should be permitted to vote. (11) Aside from national constitutional guarantees, states are free to decide whether (or how) to enfranchise their citizens abroad. Each state has answered the question of non-resident voting by reference to a mix of economic, logistical, and political calculations, which has resulted in a patchwork of practices and stances. (12)

      For its part, Canada has permitted some form of non-resident voting since 1917. (13) This enfranchisement, which was initially limited to soldiers overseas, was gradually expanded to new discrete classes over the course of the twentieth century. (14) In 1982, the Canadian Charter of Rights and Freedoms guarantee that "[e]very citizen of Canada has the right to vote in an election of members of the House of Commons or of a legislative assembly and to be qualified for membership therein" brought renewed attention to residency restrictions on voting. (15) Four post-Charter parliamentary studies recommended abolition of the residency restriction for federal elections. (16) Based on concerns about the potential lost "affinity" or "connection" to Canada, however, a House of Commons Special Committee recommended that non-resident citizens be permitted to cast a vote in Canadian federal elections only if they had been living abroad for less than five years, and intended to return to Canada. (17)

      This recommendation was ultimately incorporated into the Canada Elections Act. As of 2011, Canadian citizens over the age of eighteen were entitled to have their names included in the list of electors for the polling division in which they were ordinarily resident, and to vote at the polling station associated with that polling division. (18) Citizens who did not meet the residence requirement could, however, vote by way of special ballot, provided they fit within a certain class of exceptions. (19) Exceptions to the residency requirement included members of the Canadian Forces, public servants posted outside the country, citizens employed by certain international organizations outside Canada, and citizens who were absent from Canada for less than five consecutive years and intended to return to Canada as residents. (20) As such, a Canadian citizen who did not ordinarily reside in Canada for five years or more (and who did not fit in another category of exception) could not vote in a federal election unless and until they re-established residence in Canada. (21)

      It is against this backdrop that the Frank case arose. Gillian Frank and Jamie Duong were Canadian citizens who were born and raised in Canada, but who lived in the United States for several years. (22) Both were highly educated in specialized fields, and argued that their inability to locate work in Canada prevented them from returning. (23) Both applicants were denied ballots in Canada's 2011 federal election because they had been living outside Canada for more than five years. They both launched constitutional challenges alleging an unjustified breach of section 3 of the Charter.

      While section 3 guarantees "[e]very citizen of Canada" the right to vote, the Charter does not itself define...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT