A little more about expat voting in Canadian elections

Democracy Thwarted

After blogging last week about being deprived of my right to vote as a Canadian citizen, I realized two things:

  1. I’m personally affected as far as the impending election is concerned because Elections Canada is now requiring international electors to declare an intended date of return—even those of us who have previously applied to be on the Register, and have not yet been abroad for over five years
  2. Wikipedia’s page on Elections in Canada lacked any mention of the expat situation, erroneously claiming (though it used to be true for 14 months) that “National voting is available to all Canadian citizens aged 18 or older.”

I rectified the second situation by revising those sentences and adding a section on expat voting to clarify the current state of affairs.

I believe my summary, which recalls the five-year limit’s origins in 1993, is the most compact summary of the whole picture, to date, in one place.

Of course, I humbly encourage others to contribute to Wikipedia and edit the article to continue improving its content, but I think the section I mentioned is worth quoting:

Canadian citizens abroad

Although Section Three of the Canadian Charter of Rights and Freedoms provides that “every citizen of Canada has the right to vote”,[9] in practice only those citizens 18 years of age or older, and who reside in Canada or have been abroad for fewer than five years, may vote.[10] Exemptions to the five-year limit exist for members of the Canadian Armed Forces, employees of the federal or a provincial government who are abroad, employees of certain international organizations, and their cohabitants.[10] The five-year limit was originally enacted as part of Bill C-114, An Act to Amend the Canada Elections Act, in 1993; these amendments extended the special ballot to certain prisoners, and Canadians “living or travelling” abroad.[11] In September 2005, Jean-Pierre Kingsley, then the Chief Electoral Officer of Canada for 15 years, explicitly recommended in his official report that Parliament remove the five-year limit by amendment, but no action was taken.[12][13]

In May 2014, a court decision from the Ontario Superior Court of Justice invalidated the five-year limit as an unconstitutional restriction on the right to vote, in violation of Section Three, leading to a period of fourteen months during which all Canadian expatriates could apply to be on the register of electors.[14] However, the decision was reversed 2-1 on appeal at the Court of Appeal for Ontario on July 20, 2015, in a judicial opinion citing Canada’s history of using a residence-based electoral district system and a justification based on social contract theory, which held that the five-year limit was a permissible limitation of the constitutional right to vote under Section One.[15][16] As of August 2015, Elections Canada has implemented changes to its registration process to comply with the latest court ruling, and will require expatriates already on the register to declare an intended date of return.[17]

Again, I really hope this is appealed to the Supreme Court of Canada. Unfortunately, with the federal election just having been called for October 2015, it is impossible for any ruling to take effect in time for the impending election. (A legislative solution is also possible, but a court ruling would be the most optimal outcome.)

Let me vote, dammit

In Frank v. Canada (Attorney General), 2015 ONCA 536, the Court of Appeal for Ontario decided that Canadian expatriates could be denied the ability to vote after 5 years of residency abroad, in spite of the Charter clause guaranteeing citizens the right to vote, reversing an earlier court ruling that had vacated the temporal limit. Letting all citizens vote would be “unfair” to Canadians who live in Canada, apparently.

As a Canadian expat (US green card holder), I sincerely hope this case is overturned on appeal to the Supreme Court of Canada.

Like the respondents, who “attended university in the U.S. and remained there to pursue careers in their chosen professions”, my choice to be in the United States to advance my studies and career in the law is a matter of circumstance. Acquiring a green card did not signal the surrender of my citizenship and all its rights, responsibilities, and privileges.

It’s already annoying enough when the tax agencies of the two countries—CRA and IRS—use different definitions of residency for tax purposes… which differ from the governments’ definitions of residency for immigration purposes… which apparently differ from some U.S. states’ definitions of residency for driver’s licences…

… but now to convolute the meaning of a citizen’s right with a resident’s right?

I remain invested in the direction of the Canadian government and try to stay informed about Canadian politics. I still receive communications from multiple Canadian parties, am a supporter of two activist groups involved in IP and media law, and continue to engage in discourse with resident Canadians about the state of the nation.

As an individual with only one citizenship—Canadian—being disenfranchised at the end of five years from voting in Canadian federal elections would leave me with no democratic representation in any jurisdiction, since noncitizens in America are forbidden from participating in the U.S. electoral system even as a donor to any campaign. Even Canadian felons would have more political representation than I would have. This untenable situation would reasonably drive an expat to pursue foreign citizenship, if only to regain those rights and privileges that one would have expected Canadian citizenship to guarantee.[1]

The Charter doesn’t define the right to vote by residency, but by citizenship. Section 3 provides:

Every citizen of Canada has the right to vote in an election of the members of the House of Commons or of a legislative assembly and to be qualified for membership therein.

The majority opinion contends that residency has been historically a factor in implementing the electoral system that enables citizens to exercise the right to vote, but the court erroneously conflates the implementation of a constitutional right with the acceptable boundaries on that right.

It embraces the vague notion of protecting the “social contract”, a principle in which individuals who make laws must also obey them, as a legitimate purpose to restrict the voting rights of expatriates. But really, expatriates remain bound by Canadian laws, particularly those affecting taxation, citizenship, and property…[2] Laws passed in Canada, far from having “little to no practical consequences” for my expat family as the majority opinion contends, affect us financially (at least in terms of loans and taxes), affect my parents’ property and retirement assets and income, and influence our choices later down the road about whether or not to return to Canada.

… and it’s not like every resident citizen is affected by every law anyways! Bear with me for a moment; consider this perspective: the scope of a law often excludes those people who supported it. A law limiting concealed carry handguns, for instance, would probably be passed by those people who themselves have no need or desire to engage in the actions that the law prohibits. Indeed, this ruling actually enables resident citizens to violate the social contract principle supposedly being protected: a hypothetical law imposing 50% taxes on foreign income earned by nonresident citizens, for example, could be passed by representatives of resident citizens living comfortably in Vancouver and Toronto unaffected, while disenfranchised citizens abroad would be the ones affected.

This case better make its way to the Supreme Court of Canada.

Footnotes   [ + ]

1. It’s worth noting that American expatriates retain the right to vote indefinitely while abroad, and even some citizens who have never even set foot on U.S. soil can nevertheless vote in several states. Hurrah to the Constitution?
2. Increasingly in today’s world, laws that apply to surveillance and foreign intelligence, too, come to mind.

How should Internet regulation of content work?

I first published the following query in a closed discussion forum for CIS 125/LAW 613 (Technology & Policy) at Penn Law. It is reposted here with minor edits.

Understanding the layers of the Internet (TCP/IP, etc) helps us to think about Internet governance in terms of allocating scarce resources, such as IP addresses and domain names. There is another layer to regulating the Internet that has little to do with scarcity or technical concerns: content on the World Wide Web. While people around the world effectively must agree to the same technical standards and the same mechanisms of allocating scarce resources in order for the Internet to function, there seems to be disagreement on which laws relating to speech and content apply, the geographic boundaries (if any) within which they apply, and to what extent foreign entities must comply. These concerns are obvious when we talk about the “Great Firewall of China”, highlighted by Google’s pull-out from mainland China, but less so evident when talking about countries that don’t use technical measures to censor citizens’ Web access.

This week, the issue became topical when Russia’s media/telecom regulator clarified existing rules on use of an individual’s image, seeming to outlaw certain forms of the Internet phenomenon known as memes.[1] The clarification came on the heels of a Russian court ruling in favour of a singer whose likeness was used without his permission in various Internet memes, some of which were unflattering. According to the Roskomnadzor—the agency that issued the clarification—as reported by the Washington Post, it is illegal in Russia to depict a public figure in a way that is unrelated to their “personality”, whatever that should mean. As expected, American media quickly seized on this act as part of a broader effort to control dialogue on the Web, at least within the Web as seen in Russia; noncompliance with the agency’s rules can result in a website being blacklisted in all of Russia.[2]

Setting aside any immediate visceral reaction that categorizes this as censorship, we might pause to consider Roskomnadzor’s justification, which pointed to the offence to celebrities’ “honor, dignity and business.”[3] But this is not some novel argument to protect celebrities at the expense of open expression; after all, even US law, which is weaker than European regimes that acknowledge a dignitary right in privacy, protects one’s likeness and privacy to some extent in tort, for very similar reasons.[4] And even if we disagree with the application of this principle in the agency’s rule, protecting individuals’ privacy and identity is still a legitimate state interest.

The real question, I think, is not whether Russia’s rule accomplishes the right balance of priorities, between privacy/control-of-likeness and open expression. After all, the extent to which the rule can even be enforced is dubious. (It would be a waste of resources for the Russian government to go after every meme of Putin on horseback.)

The much more interesting question for us is, to what extent should geopolitical nations be able to control content on the global Web according to their own sovereign laws? Moreover, given the borderless (by default) accessibility of websites and the diverse origins of Web publishers, is it reasonable to burden companies across the world with the task and cost of complying with a patchwork of nation-by-nation rules and judicial orders lest they allow their site to go dark in Pakistan or Russia or China?

In other contexts, like inconsistent cybersecurity laws across US states, companies have found it easiest to follow the strictest set of rules, hence simplifying their task. Maybe an image host like 9gag, catering to meme-makers, would find it technically easiest to comply with these inconsistent rules by deleting content whenever any nation complains. But then free speech everywhere is constrained to the narrowest rules among jurisdictions, so this is an unacceptable outcome. What is the alternative? Does the company have to add technical complexity to its systems to block Russian visitors only from accessing a picture of Putin? Isn’t this option economically inefficient?

Looking to a historical example, even a company that wants to stand up for human rights and free speech principles might find a weighty cost of defiance. In 2010, Google withdrew from operating the mainland Chinese edition of its search engine so as to relieve itself of the burden of obeying mainland Chinese regulations.[5] Reportedly frustrated with complying with strict censorship, and probably having small market share in the shadow of China’s Baidu, Google decided to redirect all mainland Chinese visitors to its Hong Kong edition, which operates under more lax rules. The cost of doing so? Losing relevance in the Chinese market.[6]

Many other companies lacking Google’s backbone and cash would likely roll over when requested to avoid losing their audience. Does this give too much influence to countries like the United States, China, and the UK, over what citizens can see on the Web? Is the Web any better under the rules of the superpowers than under the patchwork of nation-by-nation restrictions on free speech?

Footnotes   [ + ]

1. Megan Geuss, Russia’s Internet censor reminds citizens that some memes are illegal, Ars Technica (Apr. 11, 2015), http://arstechnica.com/tech-policy/2015/04/russias-internet-censor-reminds-citizens-that-some-memes-are-illegal/; Caitlin Dewey, Russia just made a ton of Internet memes illegal, Wash. Post Intersect Blog (Apr. 10, 2015), http://www.washingtonpost.com/news/the-intersect/wp/2015/04/10/russia-just-made-a-ton-of-internet-memes-illegal/.
2. See Caitlin Dewey, supra note 1.
3. Id.
4. Restatement (Second) of Torts § 652A-E (1977).
5. Jemima Kiss, Roundup: Google pulls out of China, Guardian (Mar. 23, 2010), http://www.theguardian.com/media/pda/2010/mar/23/google-china.
6. See Kaylene Hong, Google’s steady decline in China continues, now ranked fifth with just 2% of search traffic, Next Web (Jul. 5, 2013), http://thenextweb.com/asia/2013/07/05/googles-steady-decline-in-china-continues-now-ranked-fifth-with-just-2-of-search-traffic/.

Town of Greece v. Galloway

I’m in the middle of final exams, and I really don’t have the time for this, but I was blown away by the decision in Town of Greece v. Galloway, 572 US __ (2014).

As Justice Kagan wrote in her dissent,

“A person goes to court, to the polls, to a naturalization ceremony—and a government official or his handpicked minister asks her, as the first order of official business, to stand and pray with others in a way conflicting with her own religious beliefs. Perhaps she feels sufficient pressure to go along—to rise, bow her head, and join in whatever others are saying: After all, she wants, very badly, what the judge or poll worker or immigration official has to offer. Or perhaps she is made of stronger mettle, and she opts not to participate in what she does not believe—indeed, what would, for her, be something like blasphemy. She then must make known her dissent from the common religious view, and place herself apart from other citizens, as well as from the officials responsible for the invocations. And so a civic function of some kind brings religious differences to the fore: That public proceeding becomes (whether intentionally or not) an instrument for dividing her from adherents to the community’s majority religion, and for altering the very nature of her relationship with her government.”

Unsurprisingly, this case was again decided on a 5-4 split, with the conservative justices in the majority. As the New York Times reports, “For Justices, Free Speech Often Means ‘Speech I Agree With’”.

Jefferson on intellectual property

“Stable ownership is the gift of social law, and is given late in the progress of society. It would be curious then, if an idea, the fugitive fermentation of an individual brain, could, of natural right, be claimed in exclusive and stable property. If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it. Its peculiar character, too, is that no one possesses the less, because every other possesses the whole of it. He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me. That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density in any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation. Inventions then cannot, in nature, be a subject of property. Society may give an exclusive right to the profits arising from them, as an encouragement to men to pursue ideas which may produce utility, but this may or may not be done, according to the will and convenience of the society, without claim or complaint from anybody.”

VI Writings of Thomas Jefferson, at 180—181 (Washington ed.), as quoted in Graham v. John Deere Co., 383 U.S. 1 (1966). Emphasis mine.

Form 1098-T: an example of international students’ special needs

Blank Form 1098-T

I am not a tax attorney or tax consultant. This post was written while I was an undergraduate student at the University of Pennsylvania, and Co-Chair of the International Student Advisory Board.

IRS Form 1098-T, which educational institutions issue to students as a tuition statement for tax purposes, is used by many American families to claim educational credits or deductions on their federal tax returns.

Should international students have this form?

It’s complicated. In some situations, yes.

Universities often will choose not to issue this tuition statement to international students because those students can’t do anything with it. This is, however, an incorrect generalization.

Are international students able to use this form for anything?

Most international students are ineligible to claim those educational credits/deductions because they are nonresident aliens (e.g. F-1 student). These individuals would not benefit from having the 1098-T.

But some students, especially graduate students, may be eligible to claim credits/deductions because…

  1. they are resident aliens under the substantial presence test, usually because they have stayed in the United States for more than 5 years;
  2. they are nonresident aliens for immigration purposes, but resident aliens for tax purposes, maybe as spouses of American citizens or resident aliens; or
  3. they are nonresident aliens for both immigration and tax purposes, but eligible dependents of parents who are resident aliens/permanent residents/citizens; those parents are able to claim these credits in certain situations.

IRS Publication 970 explains who is eligible to claim the American Opportunity Credit. Of note: tax-free scholarships and grants affect whether, and how much, you can claim.

Figure 2-2 from IRS Publication 970, illustrating who is eligible to claim the American Opportunity Credit.
Figure 2-2 from IRS Publication 970, illustrating who is an eligible student for the American Opportunity Credit. Note: not all eligible students can claim. See Publication 970 for a flowchart of who is eligible to claim.

I am an international student in the above categories. Can I get a 1098-T from my school?

The IRS says that universities “do not have to file Form 1098-T or furnish a statement for… nonresident alien students, unless requested by the student“. Additionally, they are not required to provide it for “students whose qualified tuition and related expenses are entirely waived or paid entirely with scholarships”.

You must still meet all of the other requirements to get a 1098-T:

  1. Attend an eligible educational institution (college, university, vocational school, or other postsecondary educational institution in §481 of the Higher Education Act)
  2. Have paid qualified tuition and related expenses in that tax year
    • i.e. tuition, fees, course materials required to be enrolled
    • does not include room, board, insurance, medical expenses including student health fees, transportation, and personal/living/family expenses
  3. Receive credit for the completion of course work leading to a postsecondary degree, certificate, or other recognized postsecondary educational credential
    • i.e. most undergraduate bachelors programs and graduate masters and PhDs qualify
    • continuing education is often not included
  4. Be enrolled in any academic period of that tax year (consult IRS instructions for exceptions)
  5. Have provided your SSN or ITIN to the educational institution either through student records or an additional Form W-9S

What are some potential hurdles?

I was in a situation this year where my university did not issue me a 1098-T, and responded to my request with a form letter:

Does every Penn student receive a 1098-T?
Penn does not provide a 1098-T to non-resident aliens, or any student whose qualified charges are fully funded by grant, scholarship or tuition waivers, or any student who was enrolled in non-credit courses during the academic year.

They additionally stated,

“Though you might have received a 1098t form in the past, going forward as a Canadian citizen you will not receive one.”

As I’ve explained above in this post, this determination was a mistake. It conflates citizenship & immigration status with residency for tax purposes, and ignores the possibility that someone else other than me may be eligible to claim the credit.

Furthermore, even if I were a nonresident alien ineligible to claim the credit, nothing in the IRS regulations for Form 1098-T gives the educational institution the right, responsibility, or power to determine whether I might be eligible to claim the credit; nor does it permit them to deny a Form 1098-T to a nonresident alien’s request.

What does this situation reveal about international students?

First, on the superficial level, this situation reveals that immigration status and residency for immigration purposes differs from tax status and residency for tax purposes. Clearly, not all employees who handle these cases are aware of these stipulations.

More importantly…

International students are a large, diverse, and varied community. International students have complex needs based on their individual families’ statuses. It is a mistake to define broad, indiscriminate policies that treat all international students identically.

If you think I’ve made a mistake in this post, or wish to disagree with my conclusion here, I’d like to hear from you. Comment below or send me an email using the contact form.