Thursday, November 19, 2009

Elections - 1. Qualifications to Vote - Residence

General elections are just around the corner.  People are going to have questions about legal issues surrounding elections in Anguilla.  So, I want to kick off this series by speaking to you about some of the legal questions that have been put to me over the past weeks.  I wish to underline that no one should rely on the opinions expressed here on any aspect of the law.  Persons with an interest in some area of the law on elections should consult with their attorney who will have the time and resources to do the necessary research.
You frequently hear the complaint today that, “Some candidates are registering voters who are not resident in Anguilla”.  So, what is the law on residence?
Concerning who will vote in the next elections, three things are certain.  The first is that only Anguillian belongers will be entitled to vote.  The second is that qualified belongers can only vote if they have got registered on the voters’ list.  The third is that he is not entitled to be registered as a voter if he was not resident on Anguilla at the qualifying date.
The first qualification for voting in Anguillian general elections is that one must be a belonger of Anguilla.  Section 80 of the 1982 Anguilla Constitution prescribes who is a belonger of Anguilla.  Basically, there are two types of belongers.  The first consists of those British Overseas Territories Citizens who were born or adopted in Anguilla or who are descended from a born Anguillian.  The second type of belonger is one who is not a born Anguillian or descended from a born Anguillian but one who has received a belongers' certificate from the Anguilla Belonger Commission, eg, due to marriage to an Anguillian, or due to long residence on Anguilla.  That certificate is an essential precondition for qualification.  So, a Jamaican or a Dominican who has lived in Anguilla for the past 20 years, but who has not got a belonger certificate cannot validly be placed on the voters' list.  The Santo Domingan spouse of an Anguillian who has not got a belonger certificate is not entitled to be on the voters' list.  We shall look at these requirements in more detail in a moment.
The second thing we can be sure about is that it is a qualification for voting that one must have applied to be placed on the list of voters.  Any born Anguillian, or belonger of Anguilla, who has not ensured that he or she is on the voters' list will not be entitled to vote on elections day. 
The third thing we can be sure about is that no Anguillian, or belonger of Anguilla, is qualified to be put on the voters' list unless he or she is resident in Anguilla.  Just because you are a born Anguillian, or a belonger of Anguilla, does not qualify you to be placed on the voters' list.  You must also be a resident of a particular polling district in Anguilla. 
Today, we are going to look at the 'residence' qualification in our elections law.  Next week we shall look at the process for applying to be registered as a voter in Anguilla.  The week after, we shall look at the procedure for objecting to someone who has applied to be put on the voters' list, or who is on the voters' list.
Residence is not easy or automatic.  There are three places in our law that mention the residence qualification, (i) The Constitution, (ii) The Elections Act; and (iii) The Elections Regulations.  The first and most important is the Constitution.
Section 43 of the 1982 Anguilla Constitution sets out the residence qualification in these words:
Qualification of voters
43. (1) Subject to the next following subsection a person shall be qualified to be registered as a voter in an electoral district if he is of the age of eighteen years and upwards and—
(a) is a British Dependent Territories citizen born in Anguilla, and is domiciled there at the qualifying date; or
(b)     (i) is a person who belongs to Anguilla who has resided in Anguilla for a period of not less than twelve months immediately before the qualifying date, and is domiciled there at that date, and is the lawful spouse, widow or widower, or the son or daughter or the spouse of such son or daughter of a person who was born in Anguilla; or
          (ii) is a person who belongs to Anguilla who is domiciled in Anguilla and has resided there for a period of at least five years immediately before the qualifying date; and
(c) is at the qualifying date resident in the electoral district in which he claims to be registered.
The “qualifying date”, by the way, is[1] the last day of March, June, September or December.  So, the qualifying date for persons born in July, August and September is 30 September of this year.  Such persons were entitled to apply at any time in July, August or September of this year to be put on the voters' list.  They did not have to wait to apply until after their birth day.  Anyone who will be 18 years old in December of this year is entitled to apply at any time after 1 October to be put on the list of voters.  They may not be 18 at the time they apply, but they will be 18 at the qualifying date.
Let us look at the remaining qualifications for voting in Anguilla.  The first group of qualified voters are those who are (i) a British Dependent Territories Citizens, (ii) born in Anguilla, (iii) domiciled there at the qualifying date; and (iv) resident in the electoral district in which they claim to be registered at the qualifying date.  There is no minimum time that a born Anguillian must have resided in Anguilla before the qualifying date, once he or she has a place of residence in Anguilla.  But, as we shall see, there is a minimum time that belongers must have been resident in Anguilla.
The second group of voters consists of persons who are (i) the foreign-born spouses, or children, of born Anguillians; who on the qualifying date, (ii) have become belongers, and (iii) have resided in Anguilla for a period of not less than 12 months before the qualifying date, and (iv) are resident in the electoral district in which they claim to be registered.  So, the US or Canadian or Dominican spouse or child of a born Anguillian, who has his or her belonger certificate, and has had a home in Anguilla for at least one year before the qualifying date, is entitled to be registered and to vote.  Any non-Anguillian who married an Anguillian during this year is not entitled to join the voters' list until next year, after the first anniversary of the marriage, assuming he or she has got a Belonger’s Certificate.  But, that usually takes 3 to 5 years to acquire.  So, the spouse of an Anguillian is not entitled to join the voters’ list immediately after the marriage.
The third group consists of persons who, on their qualifying date, (i) are belongers of Anguilla, and (ii) have resided in Anguilla for at least 5 years, and (iii) are resident in the electoral districts in which they claim to be registered.  So, the US or Canadian or Dominican citizen, who has no blood connection with Anguilla, but who has his or her Belonger Certificate, and has had a home in Anguilla for at least 5 years before the qualifying date, is entitled to be registered on the voters’ list.  Note, this Belonger can go away for some years and come back to vote, once he or she is on the voters’ list.  He or she does not have to be present in Anguilla for 5 years before the day of elections.
The result is that we can say that there are only three categories of persons in Anguilla who are qualified to be registered as a voter.  They are (i) born Anguillians; (ii) the foreign-born spouses and children of born Anguillians who have resided in Anguilla for not less than 12 months before the qualifying date for them to become registered; and (iii) belongers who have no blood connection with Anguilla but who have resided in Anguilla for not less than 5 years before their qualifying vote.
To repeat, the qualified voters in Anguillian general elections consist of a mixed bag of three different types of persons.  They are (i) BOT citizens born in Anguilla;  (ii) belongers who though not born in Anguilla are the spouses or children of persons born in Anguilla;  and (iii) belongers, who were not born in Anguilla, nor are the spouse or child of a citizen born in Anguilla.
So, for all practical purposes, the only common qualification for all three is that they must be 18 years of age or over, and must reside in their electoral district.  The time qualification for qualified voters who have no blood connection with Anguilla applies only at the time they registered to vote.
The question of residence is thus of paramount importance.  The problem for the layman is that the words “resident” or “residence” are nowhere defined in the Constitution.  Nor are they defined in any other applicable statute.
After the Constitution, the Elections Act[2] is the second most important and relevant piece of legislation that deals with residence as a qualification for voting in a general election.  The Act mentions the word 'residence', or some variation of the word, in several places.  But, it offers no particular guidance or assistance with respect to the meaning of 'residence'.
One interesting section is s.13(1) which provides that a registered voter who has changed his address and is now ordinarily resident in another Electoral District may change the district in which he votes.  If I understand that correctly, it means that a person who first became registered to vote in Blowing Point, for example, can apply to change his voting district to, eg, West End, if he satisfies the electoral registration officer that he is now ordinarily resident in West End.  Plain ‘residence’ is sufficient for becoming registered for the first time, but one must prove 'ordinary residence' to be able to change one's voting district.  'Ordinarily resident' does not mean the same thing as 'resident'.  The concept of ordinary residence was introduced into English elections law by the Representation of the People Act 1948.  That Act is not part of the law of Anguilla.  The Constitution only requires 'residence', not 'ordinary residence'.  What authority the House of Assembly had for changing the qualification from “resident” to “ordinarily resident”, when the Constitution had already set out the qualification, is not clear.  In my opinion, the House of Assembly had no authority to make this change to the qualifications set out in the Constitution, but it will be for a competent court to work that problem out if the question ever goes before the court.
After looking at the Elections Act, we turn next to the Elections Regulations.  We find that, although the requirement for residence is mentioned several times in the Regulations, no guidance is provided in the Regulations as to what 'residence' means.
So, we turn to the common law[3].  And, this is where we all get a wake-up call.  There is a lot of law and learning on what 'residence' means for the purposes of elections.  We have to go back into the old common law of England, before the Representation of the People Act 1948, to learn what 'residence' means at common law.  At common law, a person's residence is by implication that person's home, where he or she has a sleeping apartment, or shares one.  Merely sleeping on the premises is not conclusive of residence.  A guest in someone's home, or a trespasser, or a person unlawfully in occupation like a squatter, is not resident for the purpose of registration as a voter.  There are cases that have decided those points.  The fact that you visit your parents' home, and they happily permit you to spend the night there, does not make that place your residence.  Your parents may tell you one day that you cannot spend the night.  You have no right to be there, you depend on their permission.  That is why at common law, your parents' home or the home of your brother that you visit from time to time is not your residence.  You have to actually, in fact, live there.
A person may have more than one residence.  So, if I own a home in Island Harbour and another home in North Hill, and I occasionally stay in one and occasionally in the other, I am in fact resident in both places.  I can choose which of the two I prefer to be registered in for the purpose of elections.  Just owning a house in which one never lives and has no intention of ever living does not qualify as one's residence.  If I have my home in Island Harbour, but I built a house in West End, and I rent out, I am not resident in West End for the purposes of elections.  I am only resident in Island Harbour.  What is required is a considerable degree of permanence to your residence.
Of course, a person may, at common law, be resident at an address even though he is temporarily absent from it.  An Anguillian living and working in the United States, but who maintains a home in Anguilla, and who intends to return to Anguilla to live in it before he dies, is said to be 'constructively' resident in Anguilla.  Such a person is entitled to be on the voters' list and to return to Anguilla to vote when elections are called.  That privilege does not extend to the Anguillian who has sold or leased out his house and has emigrated to the USA and is living there, and now wants to become registered to vote.  Such an Anguillian is disqualified from registration as a voter in a particular district in Anguilla, because he is not resident there.
On election day there will be some Anguillians, and belongers who were qualified to be on the voters' list, whose names will not be on the list of voters because they did not apply to be registered.  They will not be able to vote.
There will be some registered voters on election day, who are not qualified to be on the voters' list because they are not resident in Anguilla at the relevant time, but who applied to be put on the register, and  no proper objection was made to their being on the register.  They will be allowed to vote.
If any of these events occur, the blame rests with the political parties for not doing their job, not with the election process or with the Supervisor of Elections.  We shall look next at how the process of registration as a voter is conducted in Anguilla.


[1]    Elections Act, s.1.
[2]    RSA c E30.
[3]    Halisbury's Laws of England, 4th edition, vol 15, para 318.