Legitimacy of identity claims in ‘free and democratic elections’: A rule of law perspective.

Parliaments composition expresses the national identity. The establishment of grounds for access to Parliament is a considerable mechanism for shaping this identity. Traditionally, States enjoyed great latitude in establishing these grounds. Nowadays, while some grounds amount to blatant discriminations and are no longer tolerated in our societies (race, sex and religion), others are considered not only acceptable but also foundational (age, language, nationality) to Parliaments composition and functioning. The legitimacy of other grounds, such as not being affiliated to a certain party or not being convicted for a certain crime, is instead debated. They may serve a legitimate identity goal but, at once, they clash with a large notion of passive electorate that is a pillar of free and democratic elections. The paper analyzes, in the light of the ECtHR case law, on which grounds and to what extent States may regulate the access to Parliament without annihilating the right to be voted.