Suspension of elections: An exceptional case (full article)

This was stipulated in the decrees issued by the presidents of both autonomous communities on 10 February and published the following day in the respective official gazettes[1]. A few weeks later, on 18 March, the same gazettes published other decrees by both presidents which "render the holding" of said elections "ineffective"[2]. At almost the same time, in France another decree of the Council of Ministers of 17 March postponed the second round of the municipal elections, the first of which had been held (in accordance with the decree of convocation of 4 September 2019) on 15 March.

This circumstance has aroused the interest of public opinion about a situation that is unprecedented in our recent constitutional history, and of which there are hardly any references in nearby systems, such as the suspension (or postponement) of an ongoing electoral process: is it possible? What rules govern it? How can it be done?

Surely there is little need to insist that elections are the moment, or as has often been said, the central liturgy of the whole democratic process. It has been rightly said that the essential task of public law is to transform "metaphysics into technique" (García de Enterría). Well, directly or through representatives, the fundamental right of every citizen to political participation in public affairs is the one that technically guarantees the philosophical-political principle of democracy (people's power). A right that appears in all the relevant declarations of rights, from the French one of 1789 (art. 6) to the international ones (UDHR, ICCPR, ECHR, IACHR, CDFEU), passing, of course, through the constitutional ones (art. 23 of the Spanish Constitution, hereinafter EC). Moreover, it implies that all democratic states, whatever their specific constitutional configuration, base their political legitimacy on the electoral process. Without elections, there is no democracy... even if there are non-democratic states that -precisely to hide such condition- can organize mock elections.

Modern democracies are based on a representative democratic circuit that is articulated in two basic moments. In the first one, citizens choose their representatives to configure a representative body (electoral moment). In the second, this body acts on their behalf (parliamentary moment). And it acts fundamentally in two ways: on the one hand, it adopts decisions (in particular, laws) that affect and oblige everyone; on the other, it controls the Government, thus fulfilling the "social contract" by virtue of which the power of the rulers emanates from the governed, and must be controlled by them to avoid abuses.

For this reason, the electoral procedure is the politically central procedure of free societies: it is the one that allows societies to determine themselves politically, reflecting - through changes in the composition of the representative body - the changes experienced by every political community in each historical moment. Hence its importance: if elections are not considered legitimate, laws and other parliamentary decisions cannot be legitimate either, and the whole political system risks collapsing for lack of solid foundations.

These circumstances explain the meticulous regulation of the complete electoral procedure, in Spain and in other countries. From the call of elections to the definitive publication of the results, with the consequent proclamation of elected officials and the provision of eventual appeals, almost everything that can happen in the electoral process is provided by the Constitution, by the electoral law (in the Spanish case, the Organic Law 5/1985 of the General Electoral System, hereinafter LOREG), or by secondary regulations. Yet no regulation foresees the possibility of its suspension.

Is it a legal void? An unforeseen event? Not so much. Simply because elections are not suspended. Perhaps it is better to say it another way: 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 monarchs. The latter called on the representatives of the branches or classes (nobility, clergy and common people, mainly cities) to request their support and resources, granting them privileges in exchange, dissolving them when they deemed it appropriate. Little by little, the kings consolidated their power (and their resources) and stopped needing such support; in this way the Cortes of Castile, like the États généraux in France, stopped convening throughout the 17th century and, with them, the election of representatives from each branch.

As it is logical, such dependence on the royal will was incompatible with the ideas that triumphed after the bourgeois revolutions. If sovereignty belonged to the nation, the action (after election) of its representatives could not depend on the will of the executive, which had to be controlled by them. Consequently, both the Constitutions and the laws limited the margin of manoeuvre of the executives to determine the moment to call elections and renew the chambers, through various techniques:

• Firstly, by setting maximum periods for the duration of the parliamentary mandate (normally from three to five years), the end of which makes it necessary to call for elections within specific time limits (from thirty to sixty days: 68.6 EC; in seventy days: 61 Italian Constitution [CI]).
• In addition, some countries set in their Constitutions or electoral laws the specific date on which the chambers must be renewed periodically (United States, Sweden, Uruguay). Others include additional rules that condition the margin of action of the executive (automatic repetition of elections when a parliamentary majority is not reached, in Spain or Israel; prohibition of early dissolution at certain times; requirement of qualified parliamentary majorities, in Great Britain since the Fixed-Term Parliaments Act of 2011).
• Within these margins, the executive can decide with greater or lesser freedom the precise date of the (early) elections to renew the parliamentary chambers (Italy, Spain, France, Great Britain until 2011).

However, the electoral process cannot lead to a parliamentary "power vacuum", because this would mean those in power could act without the supervision of the citizens' representatives. To this end, the powers of a chamber can be extended during the electoral period and until its successor meets (61 Italian C.); or, as in Spain, a figure is foreseen (the "Permanent Delegation": art. 78) 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 legislation (followed also in this point by the autonomic ones) tries to avoid the "power vacuum" mentioned before, linking in the own Constitution three acts that appear as well as indissolubly linked: dissolution-election-constitution of the new chambers.

a) First, as regards their legal formalization:

- "It is incumbent on the King (...) to summon and dissolve the Cortes Generales and to call for elections under the terms provided in the Constitution" (Article 62.b).

- "The President of the Government... under his exclusive responsibility, may propose the dissolution" of one or both chambers, "which shall be decreed by the King. The decree of dissolution shall set the date for the elections" (Art. 115).

b) Second, as regards time:

- The Congress and the Senate are elected for four years (art. 68.4 and 69.6).

- "Elections shall take place between thirty... and sixty days from the end of the term. The elected Congress must be convened within twenty-five days after the elections" (68.6; see, in very similar terms, 61 of the Italian Constitution).

These time limits provided for by the Constitution are further specified in the implementing regulations. On the one hand, the LOREG provides that "the decrees convening [elections] shall specify the date of the elections to be held on the fifty-fourth day following the convening" (art. 42, also applicable to regional elections. At the same time the parliamentary regulations prescribe that once the elections have been held, the chambers shall meet "in a constituent session on the day and at the time specified in the royal decree of convocation" (art. 1.1 of the Regulations of Congress; in similar terms, 2.1 of the Regulations of the Senate).

In short, neither the Spanish Constitution nor the regional electoral regulations allow a "suspension" or "postponement" of elections once they have been called. It is possible (when one of the exceptional states of Article 116 EC is declared) to extend the mandate of Congress, delaying its dissolution and, therefore, the consequent call for elections. Nevertheless, once the electoral process has started, the electoral rules - whether in the Constitution or in the law - do not foresee that it can be interrupted.

Having said all that, the Constitution expressly provides for cases in which the ordinary constitutional order is altered. Under the terms of Organic Law 4/1981, to which article 116 refers, states of alarm, exception or siege are the response of the political system to "extraordinary circumstances" that "make it impossible to maintain normality through the ordinary powers of the competent authorities" (art. 1). It is a response, therefore, that transcends the electoral process; but it can imply the limitation or suspension of various constitutional rights in multiple fields, including the electoral one. Hence the need for "a systematic, finalist and integrating interpretation with a constitutional dimension of the regulatory framework derived from the declaration of the state of alarm". "The silence of the law does not exclude the need for a rule of conduct for cases not provided for in it, taking into account the general principles contained in the electoral legislation itself"[3].

As the decrees highlight, the health crisis situation created by the epidemic - or pandemic - spread of the COVID19 virus, and the consequent declaration of the state of alarm by Royal Decree 463/2020 of 14 March, implied (in the terms used by Decree 45/2020, of the presidency of the Xunta de Galicia) the adoption of measures "needed for the protection of public health" but which entail "serious restrictions on mobility and the exercise of activities" and "are ... incompatible with the normal development of an electoral process and, therefore, the free and normal exercise of the right to vote".

Thus, the health crisis and the consequent declaration of a state of alarm have served as a de facto justification for the suspension of the electoral process. However, in the absence of express regulation, how is this suspension formally articulated? In particular, how are the basic institutional balances manifested?

From the formal point of view, and sticking to Spanish regulation, it seems logical the normative type used to "cancel the celebration of the elections" has been the same previously used to call for them: the mentioned decrees of the presidents of the Basque and Galician autonomous communities (or of the Council of Ministers, in France). These decrees also express the basic competence of both autonomous communities for the "organization of their institutions of self-government"[4]. This is in addition to the act of the national government - the decree declaring the state of alarm - which serves as a "de facto enabling situation".

In addition, other balances between institutional powers are reflected in the logical precautions against the possibility of unilateral action by the executive. Something apparently inconceivable in a democratic regime, but that can never be absolutely excluded (as the "illiberal" evolution of certain political systems reveals), as it has been pointed out, in the Spanish parliamentary models (central and autonomic) this electoral suspension or postponement implies to extend the situation of "lack of Parliament", only partially replaced by the respective permanent delegations.

Hence the autonomic presidential decrees are issued "after deliberation" of the respective councils of government; and after hearing, on the one hand, "the parties with parliamentary representation" (Basque Country) or "the most representative political groups of Galicia"; as well as the respective autonomic electoral boards.On the other hand, that both prescribe, in almost identical terms that "the call for elections ... will be activated once the declaration of health emergency is lifted. This will be done immediately, after the political parties have been heard", and by another presidential decree.

In summary, the suspension of the electoral process is immediately linked in time to the exceptional situation (the end of which will determine the reactivation of the process), while the participation of the main political actors in future decisions is guaranteed. First, as is obvious, in the setting of a new date for elections; and then, in the concrete scope of such "reactivation": should the acts already carried out (presentation of candidacies, drawing of lots for table members) be considered valid? Or, will the whole process have to be restarted (starting, of course, with the variations experienced by the electoral roll during the period of suspension or postponement)?