Alien Suffrage in the European Union

This article focuses on the electoral rights which were introduced for EU citizens as part of the Maastricht package in 1993 by what was originally Article 8b of the EC Treaty—now Article 19 (Connolly, 2001; Day and Shaw, 2000, 2002; Shaw, 2003; Connolly, Day and Shaw, 2003). These cover the right to vote and stand in local and European parliamentary elections for European citizens who are resident in Member States other than the one of which they hold citizenship. It represents a modified case of alien suffrage—that is the liberal principle which holds that states ought to ensure that long term resident non-nationals have rights of political participation in the host polity to the greatest extent possible, in accordance with respect for democracy and fundamental rights, especially the principle of equality (Raskin, 1993; Rubio-Marín, 2000). It is modified in the sense that it extends only to a limited range of elections, with national elections excluded, and also in the sense that only one privileged category of "foreigners" is included, namely Union citizens who take advantage of free movement rights within the Union. The origins of these rights lie in impulses towards the democratization of the EU and its institutions, as well as in the search to enhance the legitimacy of the Union through the development of a concept of citizenship. The article highlights some important features of the rights, as sites of contestation in European law and politics, and concentrates for the most part on the local electoral rights under Article 19(1) EC.

The electoral rights attracted positive early comment from legal commentators in particular. O'Keeffe (1994: 96) predicted that although it was too early to expect Member States to grant electoral rights in national elections to nationals of other Member States, "as it is, the effects of the change in local elections could be substantial." But he did not see these rights as new rights since they already existed in a disparate way prior to enactment in the Treaty in the laws of at least some of the Member States, with some states giving local electoral rights to non-nationals and others giving such rights to participate in European parliamentary elections to nationals of other Member States. For O'Leary (1996: 265), Article 19 "represents a significant departure from the traditional exclusion or limitation of the rights of non-nationals in the field of political participation." The significance and controversy attached to Article 19 is linked to the fact that constitutional amendments were needed in several Member States to ensure implementation of the electoral rights provisions (unlike most of the rest of the "citizenship package"). O'Leary cautioned that "the importance of these amendments of national conceptions of sovereignty, what it entails and who can exercise it, should not be underestimated" (O'Leary, 1996: 265).

D'Oliveira (1994: 139) pointed explicitly to the radical power of Article 19(1) EC in commenting upon the absence of a clear link between local electoral rights and citizenship at the Union level: "I submit that granting rights at local elections have more to do with unexpressed endeavours to dissolve the identities of the Member States, and indeed their statehood, than with democracy on a European level." His concern focused on the apparent incompatibility of Article 19 with what is now Article 6 TEU which requires that "the Union shall respect the national identities of its Member States." He argued that this

imposes the breaking up of those direct links, which until recently existed between the definition of the legitimation of the State in terms of the sovereignty of the people belonging to that State on the basis of nationality, and the exercise of political powers in the State concerned. To my mind, the two provisions are mutually exclusive. Insofar as [Article 19(1)] entails revisions of constitutions of certain Member States . . . one may conclude that the Union does not respect the national identity of the Member States; assuming that a constitution could qualify as a repository of the national identity.

In other words, there can be no doubt that by stepping into the territory commonly associated...