Key Benefits:
Article 59 of the Constitution gives jurisdiction to the Constitutional Council to decide, in the event of a dispute, on the regularity of the election of members and senators. On this basis, the Commission was seized, following the June 2007 legislative elections, of 592 claims filed by candidates or electors, as well as of 507 referrals by the National Commission for Campaign Accounts and Political Financing (CCFP). While the number of PSC referrals decreased slightly (601 in 2002), the number of claims increased significantly (162 in 2002).
The Constitutional Council has endeavoured to minimize the time limits for judgment in order not to keep the elected concerned in a period of uncertainty too long. To do so, it has taken four steps. He tried to:
— as early as June and July 2007, the 538 claims (1) that did not require contradictory instruction as long as they were inadmissible or contained only grievances that clearly could not influence the results of the election;
– in October and November 2007, those subject to conflicting instruction but not having financial grievances;
- in December 2007 and February 2008, those for which it was necessary to wait for the PSAC decision;
―from February to April 2008, PSAC referrals.
The handling of this litigation has led to several procedural innovations to strengthen the guarantees granted to the parties:
– hearings requested by claimants and defendants were held before the Constitutional Council in its plenary formation when it proved useful to clarify the arguments of the parties. These and their lawyers were heard in six cases (2);
– specific training measures were implemented when the board considered it insufficiently informed. Thus, hearings of witnesses (responsible for prefecture elections, president of high court) were held (3);
― the role of board sessions has been systematically made public on the website of the board 48 hours before the sessions;
– notifications of decisions to all interested parties have been widespread.
The council annulled two elections in the 1st electoral district of Eure-et-Loir (4) and the 12th of the Hauts-de-Seine (5). In the latter case, the elected candidate was also declared ineligible. In addition, before the PSAB, the Board declared 495 candidates ineligible, two of whom were elected members, one in the 5th electoral district of Vendée (6) and the other in the 11th district of the Rhone (7). The number of cancellations is the average since 1959 (8).
At the end of this dispute, counsel considers it necessary, as in the past, to make comments. In particular, it considers that, with regard to the legislation on campaign accounts and political financing, it is now possible, more than twenty years after the vote of the law of 11 March 1988, to retain experience gained in several lessons. It appears that the legislative framework has fully met the objectives that the legislator had set. But it also had consequences, especially in terms of ineligibility, which appear disproportionate today. Similarly, it appears necessary to review some of the aspects of existing legislation.
I. ― With regard to general conditions of voting
The Constitutional Council has received numerous petitions stating that the current distribution of seats of deputies between constituencies was no longer based on essentially demographic bases," in violation of the principle of equality before the vote. He was asked to condemn population gaps ranging from 75,131 to 125,393 in the 3rd and 21st electoral districts of Paris, from 82,974 to 151,566 in the 3rd and 12th electoral districts of Bouches-du-Rhône, from 86,690 to 158,193 in the 6th and 1st electoral districts of the Yvelines.
For more than twenty years, the Constitutional Council recalls that the National Assembly, designated by direct universal suffrage, must be elected on essentially demographic basis" (9). However, the current division of electoral districts, which results from the Act No. 86-1197 of 24 November 1986based on data from the 1982 general census. Since then, two general censuses, held in 1990 and 1999, have highlighted the differences in representation that are not compatible with the combined provisions of Article 6 of the 1789 Declaration and Articles 3 and 24 of the Constitution. However, the very terms of the Act of 24 November 1986, codified in Article L. 125 of the Electoral Code, have become obsolete since the abolition of general censuses by theArticle 156 of the Act of 27 February 2002 relating to community democracy.
It is therefore the responsibility of the legislator to change this cutting. In his comments of 7 July 2005, counsel argued that if the remodeling was not done before the next legislative elections, which he considered regrettable, it should be undertaken the following day. This reasoning founded a reservation of interpretation to the 7th of the Decision No. 2007-547 DC of 15 February 2007. It is now imperative to do so.
*
*
The Constitutional Council had to hear a request challenging the election as a member of the Chief of Staff of a General Counsel.
This case leads him to reaffirm that the list of official functions leading to ineligibility, drawn by theArticle LO 133 of the Electoral Code, deserves to be reviewed, especially to take into account developments that have affected France's administrative, judicial and political organization at the local level for several decades. On the one hand, this list should incorporate the responsibility functions of the local authorities, such as the Director General of Community Services and Deputy Directors General, directors, heads of service of the community or one of its public institutions. On the other hand, it should attach less importance to the titles than to the reality of the functions performed, as it has already been done for some overseas communities (10), paying particular attention to the firm's functions.
II. – With regard to electoral propaganda
Several applicants reported the use of new information technologies for the electoral campaign ( phoning or electoral marketing, by SMS or MMS, internet commercial links, etc. [11]).
The electoral code, which deals only with the issue of the telephone and the Minitel, should be supplemented to take into account these new technologies and to ensure that the use of them does not alter the sincerity of a ballot.
III. ― Regarding Voting Operations
The Council was asked to consider ballots:
― not mentioning the nature and date of the election (12)
― having, in their header, other names than those listed by Article R. 66-2 (13)
― showing the candidate's photograph (14)
― containing mentions such as Fair France, with Left, Democrats, Ecologists" (15)
- printed in colour (16) or with blue and orange (17), blue, white and red characters (18).
In the absence of a formal prohibition of such mentions or manoeuvres that could alter the sincerity of electoral operations, the council did not consider, in these cases, that the sincerity of the election was in question. However, the growing use of such processes, which are likely in some cases to mislead voters, could lead the council to adopt a different solution, especially if the voice gap was low.
Already in 2003, he had found that the ballots were too often all kinds of mentions (slogans, advertising messages, etc.) turning the propaganda ban on the day of the election and not necessary for the identification of the candidate, his deputy or the political formation of which he was able to receive the nomination". He had argued that in order to put an end to these excesses, a limiting character should be given to the indications provided for in theArticle R. 103 of the Electoral Code "
The objective of legal security therefore requires that the electoral code specifically regulates the ballots by listing mandatory or optional statements and expressly prohibiting any other non-planned mentions, in charge of the propaganda commissions to enforce this regulation under the control of the administrative referee judge.
*
*
With regard to the material conduct of the vote, the board again found that the use of the voting machines posed problems. Several claimants argued that:
― the voting machines were insufficient or the number of isoloirs fixed by theArticle L. 62 of the Electoral Code was not respected;
― tests to verify the proper operation of the machine were not possible;
― the printing of machine initialization reports, incidents and results was defective;
– machines were not accessible to persons with disabilities and, in particular, visually impaired.
The Constitutional Council did not, in this case, welcome these grievances favourably, in particular because of the differences between the candidates. However, he would like to recall, even if it is not for him to question the choice made by the legislator to authorize the use of such machines, that these incidents can increase the psychological reluctance to which the use of a process that breaks the symbolic link between the citizen and the electoral act occurs. It is therefore up to the public authorities to ensure, in the future, that these shortcomings, the same minimes, do not contribute to altering the confidence of citizens towards the sincerity of the vote.
IV. – With respect to rules
on the financing of the electoral campaign
TheOrder No. 2003-1165 of 8 December 2003 changed theArticle L. 52-4 of the Electoral Code requiring any candidate to designate a financial agent no later than the day of his or her nomination. The Constitutional Council had called for this measure of its wishes. However, 34 campaign accounts were rejected by the PSAB for failure to appoint a financial agent.
In order to prevent candidates from appearing before the vote without having designated a financial agent (supplied representation since this deficiency will necessarily lead to their ineligibility), this designation should be a condition of admissibility of the application and should be made at the prefecture of the electoral district, such as the declaration of candidature, and not as currently provided for in the application of the applicationArticle L. 52-6 of the Electoral Codeat the prefecture of the candidate's home.
*
*
The third paragraph of Article L. 52-4 of the Electoral Code provides that only the financial agent regulates the applicant's expenses. However, a still large number of campaign accounts were rejected on the grounds that candidates had exposed campaign expenses directly.
The Constitutional Council does not punish expenses directly exposed by the candidate when their overall amount is, on the one hand, low compared to the total expenditures of the campaign account (approximately 5%) and, on the other hand, neglibeable with respect to the authorized expenditure limit set by the authorized expenditure limitArticle L. 52-11 of the Electoral Code (1.5%).
The Constitutional Council cannot without question the authority of the law further relaxed this rule, which, nevertheless, still leads to situations that are difficult to understand. For example, it was found that campaign accounts with expenses paid directly by the applicant for amounts of € 550 and €1,263 had been properly rejected, on the basis that these amounts represented, in the first case, 35% of the total campaign account expenditures (19) and, in the second, 2.1% of the authorized ceiling (20).
The usefulness of such control can be doubted and the need for sanctions attached to irregularities when expenses are as low. It could be considered that control only intervenes beyond a campaign expenditure threshold, necessarily low, established by law.
In addition, a more general reflection could usefully be conducted to clarify the mandate of the financial agent in the commitment of expenditures.
The letter of theArticle L. 52-4 of the Electoral Code requires that any expenditure be settled by the financial agent who, therefore, can only have the means of payment on the single bank account opened under theArticle L. 52-6 of the Electoral Code. The rigor of this rule raises questions in some cases. The council was thus faced with difficulties encountered by candidates who, having declared their candidacy late in the aftermath of the presidential election, have been handicapped by the opening times of the bank account and, in particular, the provision of the means of payment, or who have been confronted with the temporary unavailability of their agent for the settlement of an urgent expenditure, especially on the occasion of travel. These difficulties have led the council to declare two candidates ineligible for election.
Finally, this rigor can lead to bypass practices that are contrary to the objective of transparent campaign financing, such as the use of cash boxes or the non-integration of certain expenses in the account.
The definition of the reciprocal responsibilities of the candidate and the financial agent, of course, was thought to be a guarantee of financial transparency, on the basis of the separation of the public accountant and the agent. However, the rules of public accounting know systems that mitigate the rigour of this principle (pre-payment, purchase card) without jeopardizing this transparency. It could be considered to be inspired in electoral matters.
*
*
The Board reiterates its 2003 comments regarding the requirement to use an accountant: The legislative requirements for the financing of electoral campaigns may hamper many independent candidates. With regard to the need to use an accountant, which constitutes a serious financial and sometimes material obstacle (for example, overseas) for certain applications, the legislator could provide a less penalizing formula to ensure the sincerity of the campaign account, especially when the amount of expenditure is very below the legal limit. In any case, the obligation to resort to an accountant should be for consideration, which is not always the case, the provision of genuine technical assistance to the candidate."
Confronted with a case in which the campaign account had been presented by the candidate's son in his capacity as an expert accountant, the Constitutional Council had to consider that, in the absence of any requirement set by the electoral rules in this regard, the lack of awareness of the obligation of independence provided by the statutory texts involved, inter alia, the expert account of disciplinary sanctions, but did not affect the campaign itself.
In addition, the board would like to clarify in the electoral code the need for independence of the accountant for the candidate.
V. ― With regard to the lack of knowledge of rules
on the financing of the electoral campaign
The legislature has instituted various sanctions.
TheArticle L. 113-1 of the Electoral Code This penalizes a fine of 3,750 euros and one year's imprisonment, or one of these two penalties, not only the candidate who has not complied with certain electoral financing rules but also the candidate who has not known the campaign account's formalities.
The other sanctions, which are not punitive, are four:
― the absence of a lump sum reimbursement of election expenses (22);
- the failure to take into account the votes obtained for the first part of the aid to political parties and groups according to their results in the elections to the National Assembly (23);
- the payment of the Public Treasury, by the candidate who has exceeded the amount of the election expense limit, of an amount equal to the amount of the overtaking;
― the ineligibility of one year to the term of office of deputy and, under the conditions fixed by the articles LO 128 and LO 296the term of Senator.
The absence of a lump-sum reimbursement of election expenses is not applicable to candidates who have not collected at least 5% of the votes cast, a threshold set by Article L. 52-11-1. However, it is noted that of the 507 referrals to the PSAB, 88% concerned candidates who had not reached this threshold. In addition, the lack of reimbursement does not affect the costs of the official campaign (paper cost, impression of ballots, posters and circulars as well as billing fees).
The failure to take into account the votes obtained for the first part of the aid for political parties and groups according to their results in the elections to the National Assembly has no consequence when the candidate has obtained less than 1% of the votes cast – which would affect 62% of the referrals – and in any case has no direct consequence for the candidates themselves, since it is their party or political group.
With respect to ineligibility for one year, it can induce often disproportionate consequences for elected candidates. In fact, when the legislation in force obliges the Constitutional Council to declare the ineligibility of a candidate, this leads, for the elect, to the termination of his or her term and the impossibility of representing himself or herself in the consecutive by-election. This penalty is much more severe than that applied to a candidate whose election was cancelled as a result of a fraud or a condemnable manoeuvre, but not related to the financial aspects of the campaign.
In 2008, she reached two deputies. The first, elected in the 5th electoral district of the Vendée, had paid directly, after the designation of its financial agent and without the intervention of the latter, expenditures representing more than one-third of the total expenses of its campaign account and more than 8% of the expenditure limit. The latter, elected in the 11th electoral district of the Rhone, had settled, after appointing its financial agent, more than 8% of the total expenditures of 7, 6% of the ceiling. The Constitutional Council, which did not question the good faith of these candidates or the sincerity of their account, was able only to confirm the rejection of their accounts by the PSAB for violation ofArticle L. 52-4 of the Electoral Code, in application of the article LO 136-1their ineligibility for a period of one year from the date of the decisions and declare them resigned ex officio (24).
On 15 May 2003, the Board had already argued that this ineligibility could be disproportionate, especially when it affected elected candidates whose good faith did not appear to be in question:
The legislator should put an end to the imbalance between the penalty on the irregularity of the account (end of functions and ineligibility) and the only cancellation of the election that, in the non-financial electoral dispute, punishes the faults of the candidate who may otherwise be more serious. In the generality of cases, the deprivation of the lump-sum reimbursement of campaign fees and the exclusion of the candidate from the matching for financial assistance to political parties seem sufficient. »
It is therefore now necessary to extend, through an organic provision, the legislative elections provisions of Article L. 118-3 of the Electoral Code which allows the judge, for local elections, not to pronounce the ineligibility of the candidate whose good faith is established.
Such a provision would in fact have prevented the board from making the ineligibility of a large number of candidates who had made common mistakes in keeping their account and whose good faith was evident.
In addition to this observation, several options could be considered to establish appropriate, necessary and proportionate sanctions.
The legislator could set a threshold, as a percentage of votes cast, below which candidates would be exempted from filing their campaign account.
If this threshold was 1% of the votes cast, it would exempt from this obligation candidates who are neither directly nor indirectly responsible for public finances, since they are not entitled to reimbursement of their campaign fees and that, since the entry into force of the Act of 11 April 2003, they are not taken into account in calculating the public financing of political parties. The implementation of this solution would have resulted in a reduction of 2,421 files submitted to the PSAB and 315 referrals to the Constitutional Council in 2007.
If this threshold was 5% of the votes cast, it would exempt candidates who are not entitled to reimbursement of their campaign fees from this obligation. The application of this solution in 2007 would have reduced the number of files submitted to the PSAB by 5,493 and the number of referrals to the Constitutional Council by 448.
This exemption would allow the PSC and the Constitutional Council to focus on more important cases. In addition, it would have benefits for public finances.
Deliberated by the Constitutional Council in its meeting on 29 May 2008, where were: Mr. Jean-Louis Debré, President, Mr. Guy Canivet, Mr. Renaud Denoix de Saint Marc and Mr. Olivier Dutheillet de Lamothe, Ms. Jacqueline de Guillenchmidt, Mr. Pierre Joxe and Jean-Louis Pezant, Mme Dominique Schnapper and M. Pierre Steinmetz.
