France, Constitutional Council, 17 June 2020, No. 2020-849 QPC
Case overview
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General Summary
The Council of State launched a priority preliminary ruling on the constitutionality of Article 19 of Act No. 2020-290 of March 23, 2020 on emergency measures for responding to the Covid-19 epidemic which provided for the postponement of some municipal elections, in consideration of the fact that they could affect different aspects of the right to vote (A rt. 3 French Constitution). The Constitutional Council, however, considered that electoral postponement of the second round of elections and their legal consequences (term of office for those elected, contesting results, etc.) were, in this case, constitutional.
Facts of the case
Article 19 of Act No. 2020-290 of March 23, 2020 on emergency measures for responding to the Covid-19 epidemic introduced several measures regarding the postponement of some municipal elections. The second round of elections, initially scheduled for March 22, 2020, was postponed to June 2020 at the latest, due to the exceptional circumstances connected with the need to protect the population from the Covid-19 pandemic. In case the health situation did not improve, the electors of those districts in which the municipal council was not fully elected in the first round would vote again. The situation of those elected in the first round was to remain unchanged. Additionally, the law included several provisions concerning the beginning of terms of office of those elected and the contestation of electoral results. The Council of State launched a priority preliminary ruling on the constitutionality against that provision, according to Art. 61.1 of the French Constitution.
Type of measure challenged
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Individual / collective enforcement
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Reasoning of the deciding body
Regarding postponing the second round of elections, the Council stated that the legislator can only modify the electoral process on the grounds of the general interest. In this case, the spread of the Covid-19 epidemic justified such a delay. The second round of elections, in fact, would only be enacted if the health circumstances permitted it. Thus, electoral postponement did not, by itself, encourage electoral abstention. In addition, the Council considered that this suspension did not affect the continuity of the electoral process, the equality of the candidates or the fairness of the elections. In the first place, the second round would be enacted on the basis of the electoral lists used for the first one, which preserves the unity of the electoral body. Secondly, an increase in the ceilings of applicable electoral expenses was provided for as well as a reimbursement of part of the advertising expenses for the second round (originally planned for March 22, 2020), which guaranteed equality between the electoral candidates. Third, it was still possible to appeal the first round of electoral results. As this was the case, an electoral postponement did not affect the right to vote, nor the principle of fair elections, nor the equality of the vote.
Regarding the consequences of electoral postponement on the terms of office of municipal councilors and the appeal of electoral results, the Council stated, on the one hand, that differences in that regard (depending on whether they were elected in the first or in the second round) were merely a result of a difference of circumstances concerning the election. On the other hand, the results of the first round could also be appealed if there were to be a second round. Lastly, the fact that the terms of office put in place by successful elections in the first round (March 15, 2020) would not be affected by electoral postponement or a new enactment of a second round, did not have the effect of validating those electoral results, which could be appealed before the electoral court. Thus, postponing the election did not violate the principle of separation of powers or the right to effective legal protection, nor the principle of the fairness of elections, nor equality of suffrage.
Conclusions of the deciding body
The Constitutional Council considered that postponement of elections due to the Covid-19 pandemic did not violate the right to vote, nor the principle of fairness of elections, nor the equality of the vote, nor the principle of the separation of powers. It was thus declared to be constitutional.
Fundamental Right(s) involved
- Political rights
- Right to vote
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Rights and freedoms specifically identified as (possibly) conflicting with the right to health
General principle applied
- Rule of law
- Reasonableness
Balancing techniques and principles (proportionality, reasonableness, others)
The Council, though it did not allude to it expressly, applied the principle of reasonableness. It considered that electoral processes can be interrupted on the grounds of the general interest, as it was in this case during the pandemic.
