No. 48: Does Having an Affirmative Right to Vote Matter? Comparing Elector Qualification Laws in the European Union and the United States

Details

Author(s):
  • Tom Westphal
Publish Date:
June 23, 2020
Publication Title:
European Union (EU) Law Working Papers
Publisher:
Stanford Law School
Format:
Working Paper
Citation(s):
  • Tom Westphal, Does Having an Affirmative Right to Vote Matter Comparing Elector Qualification Laws in the European Union and the United States, EU Law Working Papers No. 48, Stanford-Vienna Transatlantic Technology Law Forum (2020).
Related Organization(s):

Abstract

The right to vote is foundational for democratic societies, forming the basis for individual citizens to participate in the political life of their community. Yet how this right is expressed, in legal terms, varies between democratic countries. In the United States, the Constitution does not explicitly grant a right to vote for U.S. citizens, instead cataloging prohibited infringements on this right (i.e., the Fifteenth Amendment’s ban on racial discrimination in voting). By contrast, the European Union’s founding treaties do contain an affirmative right to vote, guaranteeing the citizens of E.U. Member States the right to participate in elections for the European Parliament. This right is subject to E.U. Member States’ elector qualification laws, which define who is allowed to participate in E.U. elections in a similar manner to the way U.S. States determine who can vote in U.S. federal elections. The E.U. may therefore serve as an interesting basis of comparison to the United States, perhaps offering insight into whether an affirmative right to vote results in less restrictive elector qualification laws. This paper offers a comparative analysis of elector qualifications for European parliamentary and U.S. congressional elections, ultimately showing that despite the U.S. Constitution’s lack of an affirmative right to vote, electoral qualifications in the United States and E.U. Member States are broadly similar. Though an affirmative right to vote may affect the U.S. electoral system in other ways, this paper casts some doubt on proponents’ claims that it would significantly expand the franchise by invalidating restrictive elector qualification laws.