The Supreme Court considers that the registration in the electoral census of those naturalized under the Democratic Memory Law, the so-called grandchildren law, generates “a well-founded, real and serious danger of seriously affecting the objectivity and transparency of the electoral process.” And that possibility, the Supreme Court states, would cause “irreversible damage to the integrity and correctness of it, since it directly affects an essential element for the Rule of Law, which is the expression of the popular will through the exercise of the right to vote.” This is stated by the Contentious-Administrative Chamber, which also expresses its fear of an impact on the “electoral result desired by Spaniards who are already correctly registered in the electoral census,” in the rulings that have led to the suspension of the voting right of those who have obtained nationality by being children or grandchildren of Spaniards who left the country between July 18, 1936, and December 31, 1955. Judge Alicia Millán has issued a dissenting opinion in which she disagrees with her colleagues.
The high court announced this Tuesday a decision that has left in limbo the vote of more than 2.4 million people who have requested to benefit from the grandchildren law and that has caused a huge political and legal earthquake and has fueled the Government’s criticism of the Judiciary, a situation that this Thursday was reproached by the president of the high court, Isabel Perelló, at the opening ceremony of the judicial year. But the content of the rulings in which the Supreme Court agrees on this controversial measure was still unknown. In these documents (one in response to the appeal filed by Vox and another by the party Iustitia Europa), the chamber argues its decision on the basis that the possibility of obtaining nationality opened by the grandchildren law will result in an “extraordinary increase” of the Electoral Census of Absent Residents (CERA) that puts the transparency of the electoral process at risk, which advises suspending the voting right of those Spaniards until the Supreme Court rules on the substance of the dispute raised by the two far-right parties.
The lawsuit filed by Vox and Iustitia Europa is directed against a July agreement of the Central Electoral Board (JEC), which refused to rule on the electoral effects of the Democratic Memory Law. This regulation, approved in October 2022, establishes that “those born outside Spain of a father or mother, grandfather or grandmother, who were originally Spaniards, and who, as a result of having suffered exile for political, ideological, belief, or sexual orientation and identity reasons, had lost or renounced Spanish nationality, may opt for Spanish nationality.”
Six days later, on October 25, the Ministry of Justice issued an instruction with the “guidelines” on how the law should be interpreted in Civil Registry offices to grant nationalities. And this new text established that it was not necessary to prove being a child or grandchild of an exile, but that this condition “will be presumed” for “all Spaniards who left Spain between July 18, 1936, and December 31, 1955.” The immediate registration in the CERA of those naturalized under the umbrella of this instruction is what the high court has now limited until it issues a ruling on the appeal filed by the two far-right parties.
The Supreme Court, without advancing what decision it will finally adopt on the electoral effects of the grandchildren law, does warn that “the progressive increase of the CERA” resulting from the interpretation that the Ministry of Justice’s instruction made on the regulation approved by Parliament, “does not seem to conform either to the content of the legal norm it interprets.” The decision has been agreed upon by five of the six judges who debated the appeal: Luis María Díez-Picazo, Antonio Jesús Fonseca-Herrero, José Luis Requero, Manuel Delgado-Iribarren, and Antonio Narváez.
The rulings of the high court partially grant the precautionary measure requested by Vox and Iustitia, who in a hearing held last Monday accused the Government of irregularly inflating the census with descendants of emigrants during the dictatorship. The Public Prosecutor’s Office and the State Attorney’s Office rejected this claim and warned that admitting the precautionary suspension would restrict the voting right of thousands of naturalized citizens, a fundamental right enshrined in the Constitution.
One of the arguments used by the two far-right parties is that if the CERA continues to include Spaniards naturalized under the grandchildren law and the Supreme Court ends up declaring irregular all or some of those registrations in the census, irreversible damage could occur in the electoral process. And the Supreme Court has accepted this thesis and invokes the principle of “periculum in mora” (“danger in delay”), which governs courts in adopting precautionary measures. The judges consider that, in this case, “there is a risk” that the CERA “will continue to increase in number over time.” “There is that risk of alteration of the electoral census through an exceptional increase in the number of new registrants in the CERA, which also affects its legal regularity,” the Chamber states.
The court emphasizes the need to preserve “the correctness, clarity, and transparency of the entire electoral process and, specifically, of the corresponding census,” as an “indispensable prerequisite” for the exercise of the right to vote and “for the effectiveness and prevalence of the expression of the popular will.” “Due to the magnitude of the figures of the CERA increase offered, the impact on the right to vote and the electoral result desired by Spaniards who are already correctly registered in the electoral census could also be seriously compromised,” it points out.
Against this, the judges note, any precautionary measure that may be adopted to ensure “the effectiveness” of the future ruling on the appeal filed by Vox and Iustitia “will be merely temporary,” so that the effect on the voting right of those already registered in the CERA or who have requested to be so “is not disproportionate in relation to the general interests” that are sought to be preserved.
Besides questioning the interpretation of the Memory Law made by the Justice order, the court also sees “a serious and well-founded legal controversy about the nature, scope, and content of the JEC agreement” challenged by Vox and Iustitia. The judges believe that the electoral body’s refusal “might not correspond to the functional control and direction and supervision powers” of the Electoral Census Office that the law grants to the Board.
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