Suspension of elections: An exceptional case

It is known that elections are the central moment of the whole democratic process. The democratic principle (people's power) is technically guaranteed by the fundamental right of every citizen to participate in public affairs, directly or through representatives, which appears in all relevant historical or current, national or international declarations of rights. All democratic states base their political legitimacy on the electoral process. Without elections, there is no democracy - although not every election is democratic. That is why the electoral process is the politically central procedure of free societies: if elections are not considered legitimate, laws and other parliamentary decisions cannot be legitimate either, and the whole political system is in danger of collapsing.

These circumstances explain the careful regulation of the entire electoral procedure in the Spanish Constitution and in the electoral legislation. Yet... no rule provides for the possibility of their suspension or postponement. Something that, surely, must be explained because the suspension of the elections is not something that can be raised within the electoral process, since it transcends it.

Originally, the life of parliaments depended on the will of the monarchs, who convened or dissolved them at their convenience. A situation, naturally, untenable after the bourgeois revolutions that attributed sovereignty to the nation and therefore did not admit that the action (prior election) of their representatives could depend on the royal will. Consequently, Constitutions and laws incorporated techniques that limited the capacity of other powers (and, above all, of the executive) to determine when to call elections and renew the chambers. They set maximum periods for the duration of the parliamentary mandate (thus obliging elections to be called at its end), specified dates for voting, or included other rules that conditioned the executive's margin of action.

However: the electoral process cannot lead to a parliamentary "power vacuum", because this would mean a government without the supervision of the citizens' representatives. To this end, some chambers extend their powers until their successor meets; or, as in Spain, a figure is foreseen (the "Permanent Delegation") in charge of watching over the powers of the chamber from its dissolution to call for elections until the constitution of the next one.

Within this general framework the Spanish legal systems (state and autonomous) try to avoid this "power vacuum" by linking three acts (dissolution-election-constitution of the new chambers) that appear indissolubly linked in the Constitution itself. First, in its legal formalisation, since the same royal decree of dissolution of the General Courts has to fix the date of the elections; and, likewise, in time, since "the elections will take place between thirty… and sixty days after the end of the mandate. The elected Congress must be convened within twenty-five days following the holding of the elections" (68.6 EC).

These narrow time limits provided by the Constitution are further specified in the implementing regulations: thus "the convening decrees indicate the date of the elections" (which will be "the fifty-fourth day after the convening": art. 42 LOREG) and the day and time of the constituent session of the chambers (according to the parliamentary regulations). In short, the electoral regulations (whether constitutional or legal, state or autonomous) do not provide for a "suspension" or "postponement" of the elections called.

The Spanish Constitution does expressly provide for cases of alteration of the ordinary constitutional order, which justify the declaration of states of alarm, exception and siege. This response goes beyond the electoral process, but can certainly affect it. Hence, as the decrees highlight, the current health crisis and the consequent declaration of a state of alarm have led to measures needed to protect public health, but which entail "serious restrictions... incompatible with the normal development of an electoral process", justifying their suspension. To this end, "a systematic, finalist and integrating interpretation with a constitutional dimension of the regulatory framework derived from the declaration of the state of alarm" is necessary, since "the silence of the law does not exclude the need for a rule of conduct for cases not foreseen in it".

In this way, the same instrument is used to annul the holding of elections as that used to call them (presidential decree). An instrument adjusted to the competence framework (which reserves to the autonomous communities the "organization of their institutions of self-government"), even if it is based on an act of the Government of the Nation (the declaration of the state of alarm).

Additionally, other guarantees seek to ensure basic political and institutional balances. Thus, the decrees are issued "after deliberation" by the respective Governments and, above all, after hearing the other political parties or groups and the respective Autonomous Electoral Boards. In addition, both must prescribe that "the call for elections ... will be activated once the declaration of health emergency ... is lifted immediately".

In short, the end of the exceptional situation will determine the reactivation of the electoral process, ensuring also the participation of minorities in the pending decisions. From the setting of a new date for the elections, to many other specific aspects of this "reactivation": will the whole process have to be started, starting naturally with the updating of the electoral roll? Or, will the acts already carried out be considered valid (candidacies, designation of the Boards and electoral tables...)?

You can read the full article here: https://www.minsait.com/ideasfordemocracy/en/suspension-elections-exceptional-case-full-article