Voting Eligibility: Strasbourg's Timidity

Abstract

The chapter argues that Strasbourg's voting eligibility jurisprudence concerning the interpretation of Article 3 of the Protocol I of the ECHR (A3P1) has not clearly distinguished between the desirable level of scrutiny for questions relating to the choice of electoral systems and the desirable level of scrutiny for questions relating to voting eligibility. Drawing on Strasbourg's jurisprudence regarding the disenfranchisement of convicts and non-resident citizens, is contended that, even if Contracting States should enjoy a wide ‘margin of appreciation’ on grounds of democratic legitimacy regarding their choice of electoral system, such a margin is unwarranted when Strasbourg scrutinises legislation that affects individual access to the democratic process. It is submitted that, in its voting eligibility jurisprudence, Strasbourg has been timid rather than interventionist. Moreover, Strasbourg’s restrictive literal interpretation of A3P1 has effectively, even if unintentionally, set a ‘ceiling’ for the protection of the right to vote in the UK, due to the combined effect of the prevalent reliance by UK courts on the ‘mirror’ principle, and to the absence of a codified constitutional right to vote in the UK constitutional order.

Keywords: Strasbourg, A3P1, ECtHR, ECHR, Right to Vote, Prisoners, Expatriates