Electoral Reforms – The Need to Remove Barriers Impeding Access to Voting Venues & Other Systemic Reforms for Portuguese Voters

Yesterday, I shared a letter with the Portuguese-American Bar Association and the Portuguese Ordem dos Advogados (Portuguese Bar Association), a number of prominent foundations and clubs. This platform doesn't allow for the graphs and appendicies. Under "Effective Representation," I've added striking figures. Happy to share the original letter.

Re:      Electoral Reforms – The Need to Remove Barriers Impeding Access to Voting Venues and Other Systemic Reforms for Portuguese Voters – Especially Those Living Abroad 

Dear President Jason Fragoso, Portuguese-American Bar Association, President and Prof. Doutor Luis Menezes Leitão, Portuguese Ordem dos Advogados, President Bernardo Pires de Lima, Trustees Jack Martins and Mário Nuno dos Santos Ferreira, President and Dr. Rita Faden da Silva Moreira Araújo, Luso-American Development Foundation (FLAD), President Isabel Mota, Calouste Gulbenkian Foundation, Ms. Paula Redondo Pereira, Georgetown Club of Portugal, President Stephan Morais, Harvard Club of Portugal, President Patrick Siegler-Lathrop, American Club of Lisbon, distinguished ladies and gentlemen.

Bom dia e boa tarde distinguished ladies and gentlemen. 

The Ask

I’m emailing seeking to enlist your support for and advocacy of the implementation of a number of electoral reforms that will only embolden the rights of Portuguese voters, in general, and of those residing abroad, specifically. An amicable and collective effort is a desired approach. However, and if needed, consider filing a joint and pro bono lawsuit with the Portuguese Constitutional Court for the elimination of infringements of and the enforcement of voter’s rights.  

The Issue 

In the immediate aftermath of the results of the October 6, 2019 Portuguese Parliamentary Election,[1] and the more recent Presidential Election of this past January 24, 2021, it was evident that legislative corrections were direly needed to mitigate the administrative deficiencies with mail-in ballots and the alarming extremely high rates of voter apathy and abstentions. 

None other than the victor of that election, President Marcelo Rebelo de Sousa, was among one of the most prominent elected and appointed officials to call for electoral reforms.[2]

While there are a number of reasons for the noted apathy and abstentions, understandably, the pandemic – Covid-19 for one – there were and continue to be other factors contributing to the current problem – another is the systemic structure of the electoral process. I have submitted that there is a pressing need for reform to enable greater access to the ballot for Portuguese citizens – especially those living abroad and residing in countries where considerable geographic distances from voting venues – i.e., Consulates – exist – as is the case in the United States.[3] 

Because of the current systemic barriers and impediments, in the United States, of the 62,655 registered / eligible voters, a mere 863 – 1.38% – citizens exercised their Constitutional right and duty and cast a vote. The third graph shows registered voters, the number voting and the percentage, by jurisdictions – Consulates.

As such, I’ll submit, that surely, you’ll agree, that the current status quo is unacceptable and untenable, if Portugal is to remain a free, open and progressive society. 

Abridgement of Constitutional Rights

To the credit of the framers of the Constitution of the Portuguese Republic of April 2, 1976, and of the subsequent revisions and additions, Portuguese citizens are endowed with certain inalienable and fundamental civic, political and social rights and duties.[6]

The return of and uncounted ballots; and the current and disturbing exacerbated levels of abstentions is tantamount to outright disenfranchisement of a significant – the overwhelming majority of the electorate. More importantly, this status quo is also a violation of a number of key provisions in the Portuguese Constitution.[7] Article 49 – the Right to Vote – is at the heart of this discussion. The others being:

Civic and Political Rights and Duties

•  Article 4 – Portuguese Citizenship 
• Article 10 – Universal Suffrage and Political Parties

Clause 1

The people exercise political power by means of universal, equal, direct, secret and periodic suffrage, referendum and the other forms provided for in the Constitution.

• Article 49 – Right to Vote 

Clause 1

Every citizen who has attained the age of eighteen years has the right to vote, subject to the incapacities provided for in the general law.

Clause 2

The right to vote shall be exercised personally and constitutes a civic duty.

General Principles

• Article 109 – Citizen’s Participation in Politics 

The direct and active participation in political life by men and women is a condition for and a fundamental instrument in the consolidation of the democratic system, and the law must promote both equality in the exercise of civic and political rights and the absence of gender-based discrimination in access to political office.

Standing 

It is also important to underscore that it is in this same Constitution that we find guarantees afforded Portuguese citizens to petition their government – the Portuguese Government – to redress wrongs.[8] Standing, if you will. These rights include:

• Article 12 – Principle of Universality 

Clause 1

Every citizen enjoys the rights and is subject to the duties enshrined in the Constitution.  

• Article 13 – Principle of Equality 

Clause 1

All citizens possess the same social dignity and are equal before the law.

• Article 14 – Portuguese Abroad 

Portuguese citizens who find themselves or who reside abroad enjoy the state’s protection in the exercise of the rights and are subject to the duties that are not incompatible with their absence from the country.

• Article 20 – Access to Law and Effective Judicial Protection

Clause 1

Everyone is guaranteed access to the law and the courts in order to defend those of his rights and interests that are protected by law, and justice may not be denied to anyone due to lack of sufficient financial means.

• Article 26 – Other Personal Rights

Clause 1

Everyone is accorded the rights to personal identity, to the development of personality, to civil capacity, to citizenship, to a good name and reputation, to their image, to speak out (emphasis added), to protect the privacy of their personal and family life, and to legal protection against any form of discrimination (emphasis added).

• Article 48 – Participation in Public Life 

Clause 1

Every citizen has the right to take part in political life and the direction of the country’s public affairs, either directly or via freely elected representatives.

Clause 2

Every citizen has the right to be given objective clarifications about acts of the state and of other public entities and to be informed by the Government and other authorities about the management of public affairs.

One provision in particular – Article 52 – Right to Petition and Right of Actio Popularis is significant as it relates to this request:

• Article 52 – Right to Petition and Right of Actio Popularis[9]

Clause 1

Every citizen has the right to individually, or jointly with others, submit petitions, representations, claims or complaints in defense of their rights, the Constitution, the laws or the general interest to the entities that exercise sovereignty, the self-government organs of the autonomous regions, or any authority, as well as the right to be informed of the result of the consideration thereof within a reasonable time limit.

Clause 3

Everyone is granted the right of actio popularis, including the right to apply for the applicable compensation for an aggrieved party or parties, in the cases and under the terms provided for by law, either personally or via associations that purport to defend the interests in question.

Compensation

Also, noteworthy, is the language related to “compensation.” The only remedy being sought is for the Government to act in good faith and institute the suggested – or some close variation – of the electoral reforms that have been recommended and are being recommended in this letter. Of course, other suggestions are welcomed.  

Were you to agree to file a suit and a favorable judgement be rendered on our behalf, my ask is that whatever compensation is awarded be put to constructive use:

• Pay towards the implementation of the reforms (although the Government should be implementing these changes as part of their responsibility), 
• Be distributed among other aggrieved voters; and
• Benefit the communities mostly impacted

Recommendations

I and other concerned Portuguese citizens and voters abroad – my colleague and friend at Columbia University, Prof. André Corrêa d’Almeida,[10] and my new friend and one of the coordinators of the grassroots, “Também Somos Portuguese,” Paulo Costa, have joined the chorus of others calling for electoral reforms. We have done even more. 

We have made a number of achievable electoral reform proposals in a context of mutual good will and in a constructive manner that address issues ranging from access to the ballot to curtailing political corruption. These are SMART goals – specific, measurable, achievable, realistic and timely. I refer you to the attached emails of January 24 and February 12, 2021, respectively (Appendix 2A-C). In sum, the recommendations include the following:

For All Elections

• In-person Voting
• Online Voting
• Mail-in Ballots

Honorary Consulates as Voting Venues 

• As an alternative and temporary measure, Honorary Consulates might provide additional and viable venues where voters can cast their ballots. 
• Provided there is a physical location amenable to host elections, with the proper safety Covid precautions as recommend by the CDCP, this could be an option.[11] 

Impact of Covid-19

• Because of the Covid-19 pandemic, the previous recommendation may be more practical – safer – in non-public health emergencies. Still, a recommendation worthy of consideration, as is, in increasing access to services offered by a “standard consulate.” That would require additional human and financial resources, no doubt. This is yet another place where any compensation from a lawsuit could be applied. Consulate staff are undervalued and underpaid. 
• Thus, technology may be the most safe, cost-effective and reliable option. 
• Another complication posed by the current pandemic, is the requirement for voter signatures on candidate petitions for the anticipated and upcoming election for the Conselho das Comunidades Portuguesas (CCP) / Council of the Portuguese Communities (CPC). As noted, a waiver has been asked for by the current representatives on the Council, if I’m not mistaken. It is remains unclear if the Government has made a prudent decision and waived that requirement. The refenced attachments also describe the possible use of what we are calling e-Nomination Candidacy Petition and e-Signatures.[12]

Revisions to the CCP/ CPC[13] 

Elements of the CCP/CPC are also in need of revisions. In my humble opinion, there are five recommendations that are posited here for consideration:

Election Date – A Fix and Constant Date

• While the site for the Comissão Nacional de Eleições (National Election Commission) reflects a date of September 2021, no firm date has yet been established. That’s seven months from now. Not having a firm and constant date is problematic in that it benefits incumbents and puts new candidates at an organizational disadvantage.[14]
• I understand that this is illustrative of a Parliamentary System, but it creates political uncertainly and leaves little time for preparation for a cohesive election – more so in an environment with many unknows, as here in the U.S.  

Candidacy Petition Signatures[15]

• As discussed above, another complication posed by the current pandemic, is the requirement for voter signatures on candidate nomination petitions for the anticipated and upcoming election for the CCP/CPC.[16] See my recommendation. The attached Appendix 2A, 2B and 2C describes the possible use of what we are calling e-Nomination Candidacy Petition and e-Signatures.

Comissões Temáticas

As previously noted, too, the Portuguese Constitution enumerates a number of social rights and duties. These being:

Social Rights and Duties

• Article 63 – Social Security and Solidarity
• Article 64 – Health
• Article 65 – Housing and Urbanism
• Article 66 – Environment and Quality of Life
• Article 67 – Family
• Article 68 – Fatherhood and Motherhood 
• Article 69 – Childhood
• Article 70 – Youth
• Article 71 – Disabled Citizens 
• Article 72 – The Elderly

The CCP /CPC is certainly within its right to decide what topics to advise on. To an extent, the current themes are broad enough to probably reflect additional other themes. Being that the above are Constitutional rights, perhaps they merit a discussion for inclusion. For instance, climate change is one other of the preeminent issues of our times. I’d recommend it to be added to the list. Others, for consideration: veterans, women and private sector.

Effective Representation

Any elected official worth her or his weight in gold can tell you that constituent services are central to their tenure in office. That’s what they are elected to do – advance the interests of their communities and meet the needs of their constituents.[17] 

• Compensation

Currently, Counselors rely on their personal means to communicate with their constituents, attend events to represent the CCP /CPC, etc. 

Considering that the position is neither a compensated one nor does it have an expense account, in vast areas such as the Washington, D.C. Consular Area (under its jurisdiction, the territory consists of Washington D.C. and 26 other states - from Maryland to Texas. This is the equivalent of 1,549,278.71 square miles. By comparison, the square milage for Portugal is 35.655. In terms of population, just under 182,000,000 (181,268,371) million people reside in this area. In comparison, the 2019 total population of Portugal was 10.28 million) this makes efficient and effective representation of the voters extremely difficult – if not unattractive to many. No one should be deprived of their Constitutional right to participate in public life because of limited financial means.

• Operational Budget

Two options are recommended regarding budgets:

Travel & Lodging Budget

In other times, a travel budget would make sense so that Counselors could visit and meet with their constituents in the jurisdiction. 

Zoom Budget

Given the current public health emergency and restrictions on certain size gatherings, technology again provides the solution. The allocation of a budget to cover Zoom Conference software, would make for an ideal communication tool for constituent outreach and support.

Again, perhaps compensation from a settlement could be applied to cover these expenses. However, because these are functions of public service, they should emanate from an approved legislative budget.  

Code of Ethics

A government without the trust of its people is one that is short lived. 

• To instill faith in the system, a government must be accessible, responsive and transparent. Its members must be held accountable to the highest of ethical standards. While the CCP /CPC has non-partisan elections and its members serve gratis and the role of Counselors – is rather limited – relatively speaking, its members can be an exemplary model of public servants and held to the highest of ethical standards. 
• Both Bar Associations – already governed by a legal code of ethics – are best placed to help craft a code for the CCP’s / CPC’s consideration. We’d welcome such a draft proposal.

Conclusion 

I’d like to believe that this document offers constructive reforms. I welcome a national and transnational discussion of the recommendations proposed.

I am convinced that because the Constitution is unquestionably clear on the enumerated rights and duties discussed, that the Government, the CCP /CPC, and all others on this document, will welcome and embrace these recommendations.  

Thus far, I have been encouraged by the commitments coming from the Government and other various and invested parties. But more is needed. Rhetoric will only take you so far, action will speak louder than words. 

In the case of an impasse, obstruction or failure of the Portuguese Legislature to act expediently – which I truly feel will not be the case - as last resort and alternative, I am respectfully asking both Bar Associations to consider working collectively and pursuing civil litigation to bring the discussed matters before the Constitutional Court for curement of the current, defective and inadequate enforcement of Constitutional rights and duties afforded Portuguese citizens. 

I can’t think of a project more worthy of financial backing – if needed – by the established and august entities here represented – FLAD, the Gulbenkian and Rockefeller Foundations, and the Georgetown and Harvard Clubs.  

The great Portuguese literary giant Fernando Pessoa is credited with these words: “If after I die, people want to write my biography, there is nothing simpler. They only need two dates: the date of my birth and the date of my death. Between one and another, every day is mine.”[18]

As noble as those words are and as much as I treasure privacy, in this instance, I subscribe to another way of thinking. I firmly believe that we all want to be remembered for making a change – a constructive change. A contribution for the betterment of our community and people, whether in the U.S., abroad or Portugal. 

Not many are and were as familiar with the value of the right to vote as my political mentor – the courageous, revered, the late and former U.S. Civil Rights icon, statesman, and legislator – Congressman John Lewis, of the State of Georgia. Not so long ago he implored us to act. As he put it: “When you see something that is not right, not just, not fair, you have a moral obligation to say something. To do something. Our children and their children will ask us, ‘What did you do? What did you say?’ … But we have a mission and a mandate to be on the right side of history.”[19] No wonder he was considered by many the “conscience of the Congress.”[20]

I have no doubt, that like others already mentioned and I, that working on this noble cause, we are on the right side of history. We invite you to join us. It will serve you well.

The times have found us. We’re confronted with a prime and unprecedented opportunity to enhance the electoral system and increase citizen and voter participation. With the weight of your institutions behind these proposals, I am even more confident that we’ll see the improvements we’ve recommended, implemented in a timely fashion. 

Together – as “Portuguese United – Portugueses Unidos,” this also presents itself as a model of democracy in action where interest groups – in the service of the public – can actually advance mutually beneficial goals – good for the institutions and for the “Res Publica” – the common good.     

Muito obrigado for your undivided attention to this request.

I look forward to your response to this matter. 

Most respectfully, 

Frank Ferreira / Mario Francisco da Costa Ferreira 

PS:      Belated congratulations to you both on your rise to the leadership of your respective organizations, Mr. Fragoso and Dr. Leitão. No doubt, very accomplished individuals. 

APPENDICIES 

• Appendix 1 – Returned Ballot
• Appendix 2A – Recommendations
• Appendix 2B – Sample e-Nomination Petition (blank)
• Appendix 2C – Sample e-Nomination Petition (completed)

Footnotes

[1] As Appendix 1 reflects, like many Portuguese abroad, I was ecstatic to vote for – in my case – for the first time in a Portuguese national election. However, it was devastating to have my ballot returned – due to lack of postage – not on the part of the voter – but the process. Despite contacting Lisbon, the Portuguese Embassy here in Washington, D.C. and national civic-minded Luso-American organizations, I have yet to have my vote counted or an answer as to what corrections have been implemented to avoid future disenfranchisement of voters casting their ballot by mail.  

[2] https://www.reuters.com/article/us-portugal-election/portugal-president-rebelo-de-sousa-wins-new-term-in-socially-distanced-ballot-idUSKBN29T08M.

[3] I refer you to Appendix 2. 

[4] A few comments about this graph. The “Abroad / Estrangeiro” number includes “America /América and US/EUA;” and “America /América” includes Canada and US. Source of the data: https://www.presidenciais2021.mai.gov.pt/resultados/estrangeiro?fbclid=IwAR0VT_d2TZ04mZJ-quRjswRknh2AgX417Hi-tHJJAeWVtcOPVcf15_gVai8.

[5] From left to right: Boston, New Bedford, New York, Newark, Providence, San Francisco and Washington, D.C. While distance is certainly a factor that prevents individuals from casting their in-person vote – specifically in the San Francisco and Washington, D.C. Consular Areas, the question must be asked, what accounts for the low turn-out in those areas where voting venues are more geographically accessible? Consider Boston, New Bedford, Providence, New York and Newark. Is it just apathy? Is it the lack of information about the elections? Is it something else?   

[6] https://www.parlamento.pt/sites/EN/Parliament/Documents/Constitution7th.pdf and https://www.parlamento.pt/sites/EN/Parliament/Paginas/Constitutional-revisions.aspx.

[7] This is not to say that these may also be infractions of other treaties and international instruments mentioned in the same Constitution – the European Union’s Constitution and the United Nation’s Universal Declaration of Human Rights, respectively. For the EU Constitution, see Article I – Fundamental rights, freedoms and responsibilities, Section 1 – Fundamental rights and freedoms – Clause 3 – Right to Vote – “The right to vote, in particular, is a cornerstone of democracy; Congress shall ensure that voting is free, fair, transparent, and easy and accessible to all, at all levels of the Union.” This document goes even further: Clause 10 – Duty to Vote – “As a central way to contribute to public life, voting is a duty as well as a right for all citizens of legal voting age and legally allowed to vote. Voting in federal and State elections shall be compulsory for all eligible citizens, under penalty of a fair and deterring fine to be ascertained by law.” In the Declaration of Human Rights, see Article 21 – Clause 1 – “Everyone has the right to take part in the government of his country, directly or through freely chosen representatives.”

[8] I, like many other Portuguese here in the United States and other parts abroad, have dual citizenship – American and Portuguese. As such, the noted provisions of the Portuguese Constitution apply to me and others. 

[9] https://www.oxfordreference.com/view/10.1093/acref/9780195369380.001.0001/acref-9780195369380-e-72.

[10] I’d like to think that most of us would concur that political corruption has no place in the public arena, representative government and politics. Nor anywhere else, for that matter. It hurts the many and benefits only the few. I have also unconditionally supported measures that demand the highest levels of ethical representation from our appointed and elected officials. I am a proponent of inter-political party dialogues, such as the one launched in 2015. Espaço Diálogos was created to help build most needed consensus across party lines. From 2015 to 2018, Espaço Diálogos brought together quarterly parliamentarians from all main political parties and one of the main outputs was the book Reform of the Parliamentarian System in Portugal: Analyses and Tools for an Urgent Dialogue that advances 30 proposals to improve the representation system in Portugal. The book was launched in 2019 and Espaço Diálogos is now preparing the second cycle of dialogues with the participation of top national political leaders. This new cycle of dialogues will focus on corruption-related topics such as conflict of interests, revolving doors, public contracting, nepotism in public administration, electoral law, anti-corruption national strategy. Still, and lastly, if we are to encourage the brightest and most competent individuals to seek elected and appointed positions, a new set of incentives must be implemented to attract our brightest minds and energetic candidates.

[11] https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/prevention.html.

[12] Appendix 2A, 2B and 2C. 

[13] http://www.conselhodascomunidades.pt/site/.

[14] http://www.cne.pt/content/calendario.

[15] http://www.conselhodascomunidades.pt/site/comissoes-tematicas/.

[16] Both of these are used interchangeably. 

[17] Moreover, given that there is no publicly available list identifying voters registered with the Portuguese Consulate, other new and creative means to ascertain who and where these voters reside, must be identified. As noted in Appendix 2A, several requested have been made of the Comissão Nacional de Eleições (CNE) – Recenseamento electoral database (Cadernos de Recenseamento). Still no response. Read also the recommendations mare in this regard.  

[18] https://www.goodreads.com/quotes/315519-if-after-i-die-people-want-to-write-my-biography.

[19] https://www.essence.com/feature/11-john-lewis-quotes-we-could-all-learn-and-grow-from/.

[20] https://www.nytimes.com/2020/07/17/us/john-lewis-dead.html.