All democratic states set eligibility criteria for participation in elections of their institutions of government. Broadly speaking, these criteria fall into two categories: individual competence and membership of the state’s political community. The latter criterion is manifested by ubiquitous exclusion of non-citizen residents from national (and oftentimes also sub- or supra-national) elections. Concurrently, some states impose residency requirements which disqualify their expatriates (non-resident citizens) during part or all of their period of absence.
Stake-holding across time and ties features prominently in jurisprudential and theoretical discourses surrounding disenfranchisement of non-resident citizens (and, in parallel, of non-citizen residents). However, in the main, it is assumed that most of the state’s citizens reside therein and that the geographical boundaries of the state are stable. Thus, electoral processes affect the governance of an existing political unit, to which expatriates qua citizens retain the internationally recognised right to return. A current example may be the decision of the German Federal Constitutional Court to permit participation of German expatriates in Federal Elections even if they have never lived in the country.
In contradistinction, the proposed paper will address the constitutive roles of eligibility of non-residents to participate in electoral processes which (may) transform political and geographical borders. It will do so in the light of two contemporary case-studies.
The first case-study concerns the creation of a new country seceding from an existing country. Participants in the 18 September 2014 Scottish independence referendum will be asked whether Scotland should become an independent country. The non-residents concerned are citizens of the United Kingdom, formerly resident in Scotland, who will be electorally excluded (according to Section 2 of the Scottish Independence Referendum (Franchise) Act).
The second case-study concerns the creation of a new country whose prospective citizens are either stateless or citizens of other unrelated countries. The Palestinian President Mahmoud Abbas announced in an interview that, following the conclusion of any agreement between Israel and Palestine, a referendum will take place (while refraining from specifying its eligibility criteria). The non-residents concerned are members of the Palestinian Diaspora who could either become citizens of Palestine or eligible to become citizens thereof.
Stake-holding is evident in both scenarios: these referenda may determine the very existence of new countries, with ensuing ramifications for citizenship-contingent privileges of individual electors. Nevertheless, extending the franchise beyond the polity’s (prospective) geographical boundaries gives rise to considerable conceptual and practical challenges.