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The Election of an M.P.
I. – VOTING METHOD AND NATURE OF THE ELECTION
1. – Election by uninominal majority in two rounds
M.P.s are elected by direct universal suffrage using a uninominal majority system in two rounds. All French citizens of either sex who have reached the age of majority, who are in possession of their civil and political rights and who are not in a state of legal incapacity, may vote.
In order to be elected on the first round, a candidate must obtain an absolute majority, i.e. more than half the votes cast and a number of ballots equal at least to one quarter of the voters enrolled.
If no candidate is elected in this way, then a second round is required. Only those candidates who have obtained a number of ballots in the first round equal at least to 12.5% of the voters enrolled, may stand in the second round. In the second round, a relative majority is enough for election. Thus the candidate with the highest number of votes is deemed elected.
The election is held on a Sunday with the second round, when necessary, taking place on the Sunday following the first round.
2. – Local election but national representation
M.P.s are national representatives. Although each of them is elected in a single constituency, they each represent the entire nation.
In accordance with the traditional principle underlined in article 27 of the Constitution: “No Member shall be elected with any binding mandate”. As M.P.s are not legally bound by any political commitment, they are free to decide on their orientation in the exercise of their office.
3. – Constituencies
The constituencies, in which each M.P. is elected, are drawn up by the Electoral Code within each department, taking into account the size of the population. At present, their number ranges, depending on the department, from 2 to 24. Each M.P. therefore represents, on average, 110,000 inhabitants. There are nonetheless quite substantial disparities.
Given that the last re-drawing of the electoral boundaries was introduced by Law n°86-1197 of November 24, 1986, it appeared necessary to bring both the electoral boundaries and the distribution of seats up-to-date. In fact, the 1986 re-drawing of the boundaries was based on data provided by the general population census of 1982. However the French population has now increased from 52 million to more than 64 million and there are very strong variations from one department to another.
So that such substantial demographic developments could be taken into account, the Government was empowered (by Law n°2009-39 of January 13, 2009) to re-draw the electoral boundaries by ordinance.
This operation must respect a certain number of rules laid down by the aforementioned law and sanctioned by the jurisprudence of the Constitutional Council (in particular in its decision of January 8, 2009), i.e. the division of the constituencies must be based on essentially demographic criteria; population discrepancies between constituencies may be justified when certain considerations of a general interest are taken into account but such possibility must only be used in a restricted way by the legislator; in no case may the population of a constituency differ by more than 20% from the average population in the department or in the overseas territorial community governed by article 74 of the Constitution or in New Caledonia. In addition, except in circumstances justifiable for demographic or geographical reasons, constituencies shall be drawn-up on a single territory.
The Constitutional Council ensures that the notion of voting equality is strictly respected. Thus, in its aforementioned decision, it declared that it was contrary to the Constitution to have a minimum of two M.P.s for each department as this rule was not “justified by a consideration of a general interest which would infringe the impact of the basic rule according to which the National Assembly must be elected on an essentially demographic basis”.
In addition, since the Constitutional Act of July 23, 2008, and the Institutional Act of January 13, 2009 which brought into force article 25 of the Constitution, the Government must ask an independent committee for an opinion on the Government and Private Members’ Bills defining the constituencies for the election of Members of the National Assembly, or modifying the distribution of the seats of Members of the National Assembly or of Senators. This opinion concerns the constituencies of M.P.s elected in the departments or in the overseas territorial communities governed by article 74 of the Constitution or in New Caledonia, as well as those of M.P.s representing French nationals living abroad.
In fact, in accordance with the Constitutional Act of July 23, 2008, French nationals living abroad will also be represented in the National Assembly and their M.P.s will be elected with the same voting method as other M.P.s. In a draft ordinance published June 27, 2009 in the Journal Officiel and submitted to the independent committee provided for in article 25 of the Constitution, the Government fixed the number of M.P.s representing French nationals living abroad at 11. This draft ordinance thus proposes to create 6 constituencies for Europe, 2 constituencies for America and the 3 other constituencies bringing together the countries of Africa and Asia.
4. – Length of term
a) A Five-year Term
The National Assembly is entirely renewed, in principle, every five years. Thus the powers of the National Assembly expire (the Institutional Act no. 2001-419 of May 15, 2001 modified the expiry date of the powers of the National Assembly), “on the third Tuesday of June of the fifth year following its election” and general elections must take place within the sixty days preceding this date.
The electoral system limits the number of by-elections by making provision for the election, at the same time as that of the M.P., of a substitute who will replace the M.P. in the case of death, appointment to Government or to the Constitutional Council or temporary mission upon the Government’s request for more than six months.
Thus by-elections are held only in the other cases when a seat becomes vacant (annulment of the election by a judge, dismissal, resignation or the election of the M.P. to the Senate or to the European Parliament).
Such a by-election must take place within a maximum period of three months maximum dating from the event leading to the seat becoming vacant. Such a limit is intended to guarantee a speedy return to the normal functioning of parliamentary institutions.
Nevertheless, no by-election may take place within the twelve months preceding the expiry of the powers of the National Assembly.
Since the Constitutional Act of July 23, 2008, M.P.s who have been appointed members of Government, may, when their ministerial role is ended, retake their seat in the National Assembly (article 25 of the Constitution).
c) The Exercise of the Right to Dissolve by the President of the Republic
In addition, the President of the Republic may decide to exercise the right to dissolve the National Assembly, granted to him by article 12 of the Constitution.
In this case, the general elections must take place at the earliest twenty days and at the latest, forty days after the publication of the decree proclaiming the dissolution.
II. – CONDITIONS OF CANDIDACY AND ELIGIBILITY OF CANDIDATES
All French people of either sex over the age of twenty-three may be candidates and may be elected, provided they are not deemed legally incapacitated or ineligible.
1. – Ineligibility of an individual
Some specific categories of people may not be elected:
- Those with the status of protected adult, or those under wardship or guardianship;
- Those with a criminal conviction and deprived of civil rights;
- Those declared personally bankrupt, prohibited from managing a company or in official receivership.
- Similarly, no person not having fulfilled his national service obligations may be elected to Parliament.
2. – Ineligibility on account of one’s function
Certain people, whose professions or offices could grant them an unfair advantage in an election, thus creating a clear imbalance between the candidates, are excluded from being elected.
The law clearly states the offices or professions thus concerned as well as the geographical range and the length of such ineligibility to be elected. Therefore:
- The State Ombudsman is ineligible for election in all constituencies;
- Prefects are ineligible for election in the constituencies which fall within their sphere of office or offices which they have held within the previous three years;
- The following may not be elected in any constituency which falls within the sphere in which they have carried out their office during the previous six months:
- Military officers with a territorial command;
- Some civil servants with managerial or monitoring positions in the foreign, regional and departmental services of the State.
III. – ELECTION CAMPAIGNS AND THEIR FINANCING
1. – The rules of the campaign
The running of an election campaign is entirely the responsibility of the candidates and is usually dependent on certain objective criteria (size of the constituency, town-country ratio etc.). In this field which is at the very heart of democracy, freedom is essential and prohibitions must be kept to the very minimum. Thus the candidates can, in principle, meet the population, hold meetings or distribute leaflets as they so wish.
Nonetheless, the following are forbidden:
- Over-zealous postering, as special space is given over in each area, during the election campaign, for official posters of each candidate.
- The use for electioneering of commercial advertising either by means of the press or television and radio.
Such abuses committed during the election campaign (e.g. defamation, the use of official speeches, intimidation etc.) are punishable by the judge in charge of supervising the fairness of the election.
This supervision is of a pragmatic nature and aims at assessing if, during the campaign, the rule of equality between candidates has been broken by irregular procedures. Thus, the widespread circulation of a leaflet containing false allegations on the day before an election would certainly lead to the invalidation of the election, especially if the result were very close. However the judge would certainly decide that the communication of defamatory material has had no effect on the election if the candidate who is called into question has had the time to reply and if the margin of victory were to be very wide.
2. – The financing of electoral expenditure
As regards the financing of his election campaign, every candidate at a general election must follow organizational rules and provisions which limit, both from a quantitative and qualitative point of view, the money which can be spent. The compliance with such rules and provisions is necessary for the subsequent reimbursement of part of his expenses as well as for, in certain cases, the very validation of the election (see electoral litigation).
a) The Appointment of a ‘Representative’ and the Setting-up of a Campaign Account.
During the year prior to the election (or counting from the date of the dissolution decree), the garnering of the funding necessary for the election must be placed under the responsibility of a representative especially appointed to do so. Such funds must be placed in accounts set up for this purpose.
The representative can be, depending on the choice of the candidate, either a natural person or an association dealing with electoral financing. In either case, the representative must open and manage a deposit account set up specifically for the financial operations of the campaign.
Every candidate in a general election, whether he is elected or not, must set up a campaign account which records all incoming and outgoing financial operations linked to the election. This account must also include both as regards revenue and expenditure, the financial equivalent of all the fringe benefits, benefits in kind and services which the candidate has received or provided from during his campaign.
The campaign account must either be in the black or break even. It cannot be in the red. It must be passed by a certified accountant and communicated, along with all pertaining documents, within two months of the day of the election, to the National Committee on Campaign Accounts and Political Financing which will either approve or reject it in the six months following its filing.
b) Supervising Expenditure and Revenue
In order to reduce the increase in election campaign expenditure and to maintain openness, as well as to limit the number of private donations in the financing of campaigns, the law has established several boundaries.
As regards funding:
- Only political groupings which, as beneficiaries of public financing or having a financial representative, are under the supervision of the National Committee on Campaign Accounts and Political Financing, can be involved in the financing of candidates’ campaigns;
- The involvement of a legal entity in the financing of a candidate’s electoral campaign is prohibited. This is the case for local authorities, companies, public establishments, associations or trade unions and applies to whatever form of financial involvement this might be (gifts, provision of goods, services or other);
- Gifts from individuals have an upper limit of €4,600 and every gift over €150 must be payable by cheque, by direct debit or by credit/debit card (article L. 52-8 of the Electoral Code). In addition, the total amount of gifts made in cash must be less than or equal to one fifth of the limit of expenditure allowed (article L. 52-8 of the Electoral Code).
As regards expenditure:
- In 1993, the law reduced the limit for authorized expenditure from €76,000 to €38,000 plus an allowance of €0.15 per inhabitant of the constituency (article L. 52-11 of the electoral code); this limit which was set in 1993, is updated every three years in order to take the rise in the cost of living into account. It was multiplied by a factor of 1.26 by Decree no. 2008-1300 of December 10, 2008.
In addition to a reimbursement of election campaign expenditure, the law grants candidates who have obtained at least 5% of the votes cast in the first round of the election, a fixed reimbursement concerning their campaign expenditure.
- To take advantage of this, the candidate who is proclaimed elected must:
- Remain within the legal limits as regards the opening and the accounting of the campaign account and as regards the limit on electoral expenditure;
- Be able to prove that he has lodged his declaration of estate with the Committee for the Financial Openness of Political Life.
The amount reimbursed is equal to the amount of expenditure which, according to the campaign account, has actually been spent by the candidate or represents his personal debt. Nonetheless this amount cannot exceed one half of the legal limit on electoral expenditure.
IV. – ELECTION LITIGATION PROCEDURE
The Constitutional Council must watch over the fairness of parliamentary elections. Thus, it makes rulings on eligibility, on the holding of the elections and on the respect of the rules on the financing of campaigns for the election of M.P.s.
1. – Litigation regarding eligibility to be elected
As regards matters of eligibility, the Constitutional Council is called upon to make rulings after appeal by the administrative tribunals. It only rules on ineligibility to be elected and once this has been ascertained the ruling is absolute. When it is called upon to make such a ruling, the Constitutional Council does so concerning both the candidate and his substitute.
2. – Litigation regarding electoral operations
The procedure concerning electoral operations deals with both the balance of campaign funding and the fairness of the holding of the election itself.
As regards the campaign itself, the electoral code is particularly strict since, outside of that which is allowed (sending official documents and postering in authorized places), everything else is prohibited. In concrete terms, the Constitutional Council judges the impact of irregularities on the outcome of the election less according to the abuse of campaigning itself and rather according to the imbalance between the candidates which can result from it.
Since the Constitutional Council deals with the real issues of electoral operations (it judges the actual holding of the election, the opening of the ballot boxes, as well as the count) its remit is very broad. This may lead it, when it notes an irregularity or electoral fraud which may have a significant impact on the election result, to modify the results or even, when necessary, to declare the election void.
3. – litigation regarding the financing of general elections
The litigation procedure regarding the financing of general elections deals, first of all, with the supervising of the campaign account. The electoral code makes provision for the ineligibility for election for one year of any candidate who has not presented his campaign account according to the conditions and within the limits laid down.
If the judge notes a major error in the presentation, he does not have the power to make a subjective declaration: he must declare the candidate ineligible to be elected. This is the case when there is no such account presented, when it is not received by the préfecture within the two-month limit, if it is not passed by a certified accountant or if the documents pertaining to funding and expenditure are not provided. Jurisprudence is particularly strict in requiring that the campaign account and the corresponding bank account be exhaustive, authentic and correct.
However, the electoral code grants the judge leeway in his declaration if the candidate in question has exceeded the limit for expenditure, since, in this case, the judge is under no obligation to declare the ineligibility for election of the candidate, although he may do so.
Nonetheless, since the ineligibility for election is declared for a year from the day of the judgement, the candidate who has been elected and lost his seat is thus deprived of the possibility of standing again in the by-election which will follow the invalidation of the election.