Understanding the Right to Vote: Active and Passive Suffrage
The Right to Vote and Liabilities
The Right to Vote: Concept and Nature
“Suffrage is a public right granted by the legislature” (Art. 23.1 CE)
The vote is not a duty but a right. It is not a natural right, and you need the state apparatus behind it to promote the conditions necessary for individuals to vote and exercise their right to vote.
It is a public and not private law, as is general. Although the act of voting is private for each one, the results cover the public sphere because the results make up the elected authorities.
It is subjective because the choice is up to each particular subject, who is free and has a right to vote and choose whom to vote for.
The franchise has two areas:
Active Suffrage
Article 2 of the LORE states that the right to vote is a personal right, and active groups correspond to the Spanish adults not included in the relevant exclusions by law, included in the list of voter registration.
There are three conditions for voting: being Spanish, of legal age, and being in the census.
Those who cannot exercise that vote are eliminated for the following reasons:
- Those who are punishable under a final decision during the duration of the penalty, sentence, or armistice, which includes the suspension of the right to vote during that period.
- Those declared incapable by a firm court ruling, provided that the statement includes the inability to exercise their right to vote.
- Those hospitalized in a psychiatric facility with judicial authorization, provided during the duration of their detention.
Passive Suffrage
The public right to be able to submit and be elected in a country. In Spain, the same conditions are established as for the right to vote (being Spanish, of legal age, and enrolled in the census).
In other countries, these conditions do not match (e.g., in the USA, to be president, one must be over 35 years old; in France, over 25 years old to be a senator, etc.).
To stand as a candidate, ineligibility and incompatibility must be considered:
- Ineligibility: There are people who, due to the positions they hold, cannot exercise their right to stand as a candidate, and that often creates a condition of ineligibility. The position they hold has a defect that prevents them from standing for election:
- Members of the Royal Family.
- Chairman and members of the Constitutional Court.
- Chairman and members of the Supreme Court.
- Ombudsman.
- Director of RTVE.
- Head of Census.
- Etc.
The right to vote has limited liability in certain cases in which the positions held by these individuals prevent them from exercising that right. To do so, they must resign from the positions they hold.
Ineligibility is a legal impediment to the passive part of the electorate, which means that presenting an ineligible candidate is a null electoral act (Tassio).
Ineligibility is an impediment “ex ante” (before the election).
- Incompatibility: Persons elected by general vote to hold public office, who then attain another public office of those listed above. The individual has the ability to choose one position or another, and the law requires that they choose one or the other. The last one proposed or for which they were elected must be chosen. It is, therefore, a supervening cause of incompatibility. The list of incompatible positions is the same as that of ineligible positions in relation to the positions held.