The Standard of Absentee Voting: Venezuelans Residing Abroad Still Retain Their Right to Vote

A recent decision to not allow Venezuelans overseas to participate in signature drives has caused controversy. However, signing petitions and voting on referenda is generally not a right retained by absentee voters residing outside their national territory.

On November 14, 2003, the National Elections Council (“NEC”) in Venezuela ruled in a 3-2 vote that Venezuelans residing abroad would not participate in the upcoming signature drive soliciting a referendum to recall President Chávez’s mandate. Despite claims by members of groups opposing President Chávez that 400,000 Venezuelans will be denied electoral rights because they are currently overseas, the NEC has confirmed that there are only 26,500 Venezuelans living abroad who are registered to vote. These voters comprise 0.2% of Venezuela’s 12 million registered voters.[i]

Yet no matter how small the amount, every vote counts and every voter has the right to vote. However, signing petitions and voting on referenda is generally not a right retained by absentee voters residing outside their national territory. The Uniformed and Overseas Citizens Absentees Voting Act (UOCAVA) passed by the United States Congress in 1986, guarantees U.S. citizens living abroad and in the military overseas the right to vote in federal elections. Section 102 (a)(1) of the UOCAVA specifies that U.S. citizens qualifying as overseas voters are eligible to submit absentee ballots only for elections involving federal offices, such as the President or Vice President. Furthermore, the UOCAVA clearly states that absentee ballots must be submitted no less than 30 days before the election to the appropriate State election official. The UOCAVA does not grant the right to overseas voters to vote on any matters other than elections of a federal nature.

An “election” is the act of selecting an individual by vote to office.[ii] A “referendum” is the practice of referring measures to the vote of the electoral for approval or rejection.[iii] In the United States, the right to participate in a referendum, or take part in a signature drive leading up to a referendum, is not a right guaranteed under the U.S. Constitution or the Voting Rights Act.[iv] U.S. laws ensure the right to vote in elections for public officials as fundamental to the democratic process.

International standards are similar. Article 23 of the American Convention on Human Rights states that every citizen shall enjoy the right “to take part in the conduct of public affairs, directly or through freely chosen representatives” and “to vote and to be elected in genuine periodic elections.”[v] Section 2 of Article 23 further clarifies that “the law may regulate the exercise of the rights and opportunities referred to… on the basis of age, nationality, residence…”[vi] In Venezuela, the NEC is the body that regulates the exercise of electoral rights and possesses the authority to determine how these rights are best effectuated.

The 1999 Constitution of the Bolivarian Republic of Venezuela grants more rights to Venezuelan citizens than those conferred by the U.S. Constitution to its citizens. U.S. citizens do not enjoy the right to solicit recall referenda on federal public offices.[vii] Because of the new and progressive nature of this right, there are few standards and rules already set forth that could provide guidance under the circumstances. Yet it is clear that the fundamental political right expressed in U.S. and international law applies to the right to vote in elections, and not necessarily in referenda or petitions.

The recent ruling by the NEC applies only to the upcoming signature drive to request a referendum on President Chávez’s mandate. It is not even the actual referendum that will be affected. In fact, considering that the NEC cited issues of time constraints and capacity to prevent fraud as the reasons for not allowing overseas voters to participate in the upcoming signature drive, it seems as though they will permit all voters to take part in an actual recall referendum, should the sufficient number of signatures be obtained.[viii]

It is within the NEC’s authority to determine whether or not overseas voters can participate in non-election political processes. In this case, they decided that it would best serve the public interest to not permit registered voters outside the domain of the NEC to participate. As a result of the widespread fraud discovered in the signature drive spearheaded by the Venezuelan opposition in February 2003, the NEC was forced to implement strict rules and regulations to prevent any electoral sabotage or fraud in future elections or referenda processes.[ix] These types of safeguards would not be available internationally at this time and therefore the legitimacy of the process could become endangered.

Venezuelans residing abroad have reacted by filing a petition with the Inter-American Commission on Human Rights (“IACHR”) claiming their political rights are being denied. They have also planned to hold an “alternative” signature drive, which they will attempt to incorporate into the real petition process in Venezuela. Due to the reasons outlined above, the petition to the IACHR will most likely hold little validity. The NEC is acting within its capacity to regulate the electoral process and to date no Venezuelans have been denied their actual right to vote. The “alternative” signature drive is clearly outside the rights protected in the Venezuelan Constitution and again evidences the opposition’s disrespect for the democratic process.[x] Just because you don’t like the rules doesn’t mean you can ignore them and attempt to erode them.

For less than the cost of these legal battles, spontaneous unauthorized signature drives and political propaganda campaigns, many of the 26,500 registered voters living abroad could by a ticket home and sign their name legitimately. Democratic participation requires respect for the law.

[ii]Random House Webster’s Dictionary, Third Edition, pp. 226.

[iii]Id at 603.

[iv]Voting Rights Act of 1965 as amended in 1970, 1975 and 1982.

[v]American Convention on Human Rights, Article 23, “Right to Participate in Government”, Concluded at San José, November 22, 1969, Entered into force, July 18, 1978.

[vi]Id, Article 23, Section 2.

[vii]For an explanation of how this recall referendum works, see http://www.venezuelanalysis.com/articles.php?artno=1010.

[viii]Article 72 of Venezuela’s Constitution requires that 20% of registered voters must first sign a petition to request a referendum on an official’s mandate. Only once this amount is reached, can an actual referendum be held. Then, 25% of voters must participate, and the same number or greater than the number of voters who elected the public official must vote to revoke the official’s mandate.

[ix]In February 2003, the opposition attempted to collect 2.4 million signatures to solicit a “consultative referendum” on President Chávez’s mandate, despite no legal structure nor basis for this request. The Constitution does not permit consultative referenda on public official’s terms, only on measures of public concern. It was later determined that a significant percentage of signatures claimed to have been legitimately obtained, were actually acquired fraudulently, by copying signatures off bank records, credit card statements and other documents. On a personal note, two of my dead relatives appeared signing this petition.

[x]These alternative signature drives are being held at restaurants, stores, public parks and street corners in major U.S. cities and in Paris and Madrid. They will not be approved or observed by any authorized Venezuelan officials and therefore will have no legal credibility.