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Migration, street democracy and expatriate voting rights 153
unconstitutional residence based restriction on the right to vote (the AParty
argument), or that it did not equally apply to all absentee voters (the
Ebersohn AJ argument). If there was a constitutional problem with the
temporary absence requirement in section 33(1)(e), it had to lie elsewhere.
The Richter (and AParty) judgments suggest four possible reasons why the
distinction between resident and non-resident citizens in section 33(1)(e) of
the Electoral Act might be unconstitutional.
4.1 The right to vote and section 33(1)(e) of the Electoral Act
The first line of reasoning is O’Regan J’s analysis of section 33(1)(e) itself.
O’Regan J dealt between paragraphs 60 and 70 of her judgment with the
impact of section 33(1)(e) on the right to vote. She did so under the heading
‘the classes of absentee voters permitted a special vote’. She concluded in
paragraph 70 that section 33(1)(e) limited the right to vote enshrined in
section 19 of the Constitution ‘by restricting the classes of voters who are
absent from the Republic on polling day from participating in elections’.
On the face of it, both the heading to and conclusion of O’Regan J’s
judgment refer to the four classes of voters that are specifically listed in the
section (tourists, students, businessmen and sportsmen). However, there
are at least two classifications or classes of absentee voters involved in
section 33(1)(e). The first classification divides all the registered voters who
are temporarily absent from the Republic according to the reasons for their
absence. It is this classification that resulted in the list of arbitrarily selected
voter activities that was rightfully removed from the section by the first
severance order. The second classification divides registered voters into
those who are temporarily absent from the Republic and those who are
permanently absent from the Republic. It is this classification that was
removed by the second severance order. The key question is thus whether
this second classification was included under the ‘classes of voters’ that
O’Regan J considered during her rights analysis. Every indication is that it
was not.
To begin with, O’Regan J explicitly referred to the Minister’s
argument in the case as support for her conclusion that the limited list of
voter activities in section 33(1)(e) violated the right to vote. 42 However,
what the Minister argued was that every registered absentee voter could be
accommodated within the specific classes listed in section 33(1)(e) for ‘as
long as he or she remains ordinarily resident in the country’ (my
emphasis). 43 O’Regan J was acutely aware that the Minister’s concession
only pertained to the first of the classifications mentioned above. The
Minister insisted throughout that the residence qualification is beyond
reproach. There is no response by O’Regan J to the important qualification
introduced by the Minister. In fact, O’Regan J seemed content to accept
42
Richter (n 9 above) para 61.
43 As above (my emphasis).