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"There will be a lot of legal recourse"

La Croix: What legal lessons do you draw from the unprecedented way in which these 2020 municipal elections took place?

Romain Rambaud: Our electoral law was not prepared for a crisis situation. In other countries, there are provisions that allow the postponement of elections or the extension of mandates in an emergency. Such arrangements do not exist with us, hence the psychodrama of the week preceding the first round. We have an archaic electoral law that sent us into the wall. The crisis also exposed the archaism of the electoral operations themselves: no postal voting, no advance voting (1).

→ RELIVE the electoral evening of the second round of the 2020 municipal elections

Despite everything, in this exceptional situation, we faced. The two-ballot does not come out weakened, the rule of law has been respected, there has been no abuse by the public authorities.

Was the postponement of the second round the right choice?

R. A.: He won consensus among the political class, which widely adopted the emergency law. The delay between the two turns was proportionate. Conversely, the postponement of the entire election, in the absence of consensus and a legal basis, would have created a catastrophic precedent. It is simply regrettable that the constitutional uncertainty has lasted for so long.

The Constitutional Council finally validated this postponement last week. A posteriori, can we say that the executive has won its bet?

R. A.: It was a gamble, but validation by the Constitutional Council was the most likely hypothesis. There was the theory of exceptional circumstances, the validation of the Council of State, and a political consensus which is the first thing to favor by international standards.

→ FIND the results of the second round of the 2020 municipal elections, city by city

I regret, moreover, that jurists, yielding to the ease of the buzz, have predicted in a decided and ill-supported manner the unconstitutionality of the law. This may suggest that the Constitutional Council acted out of sympathy with the executive, when this is not the case.

The Constitutional Council, however, opened the possibility of appeal on a case-by-case basis on the basis of abstention. Will there be many?

R. A.: There were already many in the first round (Editor's note, several thousand), there will be on the second. The Constitutional Council, while referring to the electoral judges, indeed opened the door to a different analysis of the abstention. In the case law, the abstention was neutralized, unless it affected the candidates unevenly.

→ THE FACTS. 2020 municipal second round: 34.67% participation at 5 p.m.

This position seems wise to me and does not introduce a precedent for future elections because it is limited to the Covid-19 crisis. However, to avoid arbitrariness, a decision of the State Council will be needed to harmonize these decisions.

Are we going to evolve on the question of remote voting?

R. A.: I know that a working group will be set up in the National Assembly on postal voting. However, this does not seem to be a priority.

→ ANALYSIS. Municipal 2020: green wave and abstentionist tidal wave

In France, we are very conservative on these questions, in particular because there is little research on electoral law. However, postal voting is not exotic, it is very common in many countries (Editor's note, such as Switzerland, Germany or the United Kingdom). More modern tools are urgently needed.

The majority claim to have "hastened" the second round of municipal elections in order to be able to set in motion the economic recovery. Now, we are talking about a postponement of regional, for similar reasons. Isn't there a risk of drift?

R. A.: The postponement of the elections is in fact fairly standard, it is even surprisingly easy. The constitutional case law on the subject is rather comprehensive. The municipal elections of 2008 or the regional elections of 2015 were postponed for reasons of electoral calendar which were far from constituting force majeure.

To my knowledge, economic recovery has never been judged as a reason for postponement. This could be justified, depending on the severity of the economic crisis, for a delay of a few months. A postponement after the presidential elections of 2022, on the other hand, seems to me much more questionable.