The Right to Vote for Non-citizens in the European Multilevel System of Fundamental Rights Protection: A case study in inconsistency?

Abstract

The paper analyses the issue of voting rights for non-citizens in the European legal space. Its purpose is to outline the inconsistencies that characterize the European multilevel system of fundamental rights protection and to assess whether the transformations that are taking place both in the law on the books and the law in action hold the potential for overcoming these problems. The paper will maintain that the overlap of three sets of norms and institutions for the protection of fundamental rights creates tensions and paradoxes in the field of voting rights and participation in political life for non-citizens. In addition, it will be argued that the legislative and judicial transformations that are taking place in the European human rights architecture show only limited capacity to address these problems. On the other hand, however, the paper claims that the European experience is by no way unique and rather finds similarities in the history of electoral rights and citizenship in the US constitutional system. Drawing on a comparison with the US experience, therefore, the paper will attempt to advance several legislative proposals to reform the European legal architecture by identifying measures which could be adopted de jure condendo to redress the current state of affairs.