Emmanuel Macron, the President of France called for general elections after his alliance (Besoin d’Europe) lost in the EU parliamentary elections to the National Rally (Rassemblement National, RN). Besoin d’Europe got only 14.60% of the votes, while the RN got more than twice as many, 31,37%. Let us have a look at the bigger (macro) picture of the French situation in light of some constitutional questions raised.

In this article, I am going to review the constitutional criticism regarding the snap elections called by the French President and will thematize the advantages and disadvantages of the two-round electoral systems in a broader context, with special interest in France.

Let us start with the fact known to everyone at this point. Following his defeat in the EP elections, President Macron unexpectedly called for snap elections, already on the night of the vote. This is only the sixth time in the fifth republic of France, that the President has dissolved the National Assembly (L’Assemblée Nationale), which is the lower house of parliament. Macron’s move has been widely criticized and raised concerns, especially after the first round of voting, but also in view of his presidency. For a constitutional law blog, such as this one, it provides fertile ground for fascinating analyses for obvious reasons. Below, I am going to review and analyze the constitutional background of these elections, as there are ongoing debates about the process already, including one in front of the Constitutional Council (Conseil Constitutionnel).

What does the French Constitution say?

The French Constitution—in adherence to relevant European norms—provides the right to the head of state to dissolve the National Assembly (similarly to Hungary—Article 3, or Italy—Article 88). However, Article 12 contains a few restrictions and preconditions, concretely that the President is obligated to consult with the Prime Minister (PM) and the presidents of the Assemblies (The President of the National Assembly and the President of the Senate). Article 12 also declares the time limits (min 20, max 40 days) for the call to the ballots, which shall be respected.

These short time periods can open debates about the fairness of the elections, in which cases the Constitutional Council (Conseil Constitutionnel) has the authority to review and rule on the constitutionality and lawfulness of the electoral process. This time around this is what happened exactly. However, in the world of politics, it is easy to imagine that even a legally permissible call for an election—owing to the short time—can create enormous political and public dissatisfaction, which could undermine the democratic legitimacy of a newly created parliament. While I am writing this post, it seems the Assemblée Nationale is likely to have gathered a fair legitimacy. The judgment of the Constitutional Council also clarified that the timeline was in accordance with the Constitution and neither political opponents tried to undermine the legitimacy of the election.

Procedure at the Constitutional Council

Arguments Presented by the Applicants

After the Regulation no. 2024-527 of June 9, 2024 (hereinafter: the Regulation) was published, several applicants claimed that the dates set by Article 1 for the first round of voting did not meet the requirements of the second paragraph of Article 12 of the Constitution. In support of these claims, they argued that the regulation dissolving the National Assembly by the President only took effect the day following its publication in the Journal Officiel, in accordance with the rules governing the entry into force of laws and regulations. Applicants also argued that the deadlines set in the Constitution should be considered as clear deadlines, while a few applicants also argued that the short period for the election would undermine the fairness and transparency of the election.

It is important to state here that indeed there could be a gap, through a European lens, in how much time the Constitution establishes for snap elections. If we take a look at the different EU countries’ rules, we can see that France, with a minimum of 20 days, is at the bottom of the EU. However, this does not mean that it is abnormally low since most countries—like Austria with 100 days, Hungary, Romania, and Luxemburg with 90 days (3 months)—do not define the minimum time, but rather the maximum time within which the country must go to the ballots. Therefore, the French Constitution makes the period for the candidates to register and also the campaign more transparent by setting a minimum time limit. However, it must be noted that in 20 days—in general—it would be almost impossible to get ready for a comprehensive campaign. However, in the French case, the early elections took place right after the EP vote, hence the parties slipped from one campaign into another.

The judgment of the CC

First of all, the CC asserted its authority to adjudicate on the legality of the upcoming elections and then examined the arguments presented above. Finally, the CC has rejected all of the applicants’ arguments related to the different articles (from Articles 1 to 10) of the Regulation and found them to be in harmony with the Constitution.

The Dawn of an Unprecedented Era?

After the second round of the elections, it became obvious that neither party got the majority in the lower house, which created an unusual situation in France. Firstly, because most probably the PM and the President will represent different political formations, which only happened three times so far, and secondly because neither party has a majority, which never happened before.

Skeptics foresee institutional instability, which can be a valid observation owing to the fact that during the Fifth Republic, such a thing has never happened so far, not to mention the obvious differences between the coalitions and the President. France has several options still, but their reality and efficiency do not give much hope for a well-functioning state in the next year—since the President cannot dissolve the National Assembly for a year. The country may function by a coalition government, minority government, or technical (expert) government, although the possibility of a coalition government is low—especially because several political actors made it clear already—but also because the NFP (Nouveau Front Populaire) is already a coalition of five parties and Macron’s coalition consists of three parties, making it nearly impossible to find the common ground.

A minority government, which, as I said, is most likely to be formed, will face many fundamental challenges (such as accepting the national budget), although it would not be an unusual precedent, since the last two governments (Élisabeth Borne and Gabriel Attal) were elected the same way. So, in theory, the President could form such a government again as, according to the French Constitution, a new government doesn’t need a motion of no-confidence to be established. However, the opposite scenario can occur as well, posing a significant risk to the incoming government. More specifically, the Constitution allows the National Assembly to pass a motion of no-confidence against the government.

The coalition constraints are clearly political; however, they are deeply ingrained in our European logic and are a crucial element of our European constitutional traditions. Coalition negotiations and compromises are fundamental parts of European law and politics—as demonstrated by the Luxembourg Compromise. Diversity, the convergence of perspectives, and interests are an underestimated legacy of European democracy. I am not saying that all other countries where this kind of compulsion to compromise does not prevail are not in line with the basic principles of democracy—which is far from being the case—but I am saying that understanding each other and being open—or pushed to be open—to understand each other’s positions is increasingly being pushed to the background, which will have negative consequences.

The relevance and the impacts of the elections in France obviously have a wider importance than being limited to its borders, especially in our age, when traditional “Western-style” democracy meets global challenges.

After Round One

In the first half of this article, constitutional concerns were raised and examined in relation to the most recent French snap elections. The election resulted in no party holding a majority, potentially leading to political instability and challenges in governance. The broader implications of these elections can also be framed in the context of European democracy, also by contextualizing the nature of the French two-round electoral system, along with its advantages and disadvantages, as well as its effects on popular sovereignty (souveraineté populaire).

Between the two rounds of the French elections, several key changes occurred in the playing field. Voter preferences shifted as individuals reassessed their choices based on the first round’s unforeseen outcomes. Political parties engaged in coalition talks and strategic alliances to strengthen their positions. Campaign efforts intensified as parties aimed to persuade undecided voters. Additionally, political strategies were refined to address the challenges and results revealed in the first round, leading to a dynamic and evolving political landscape as the second round approached.

Why Two Rounds?

Since the conception of democracy, the principle of majority rule—which states that no decision can have more opponents than supporters—has been integral to attaining fair and equitable outcomes. Regarding the selection of leaders, this principle is often interpreted to mean that each leader should have majority support in the geographical (or other) unit from which they are elected. Traditionally, this is achieved through multiple voting rounds, repeated until one candidate secures more than half the votes. A lot of European countries actually use a two-round system for the election of their President (e.g. Romania—Article 81 of the Constitution, Austria—Article 60 of the Constitution, or Bulgaria—Article 93 of the Constitution, but only France has two-round system both for the election of the National Assembly as well as of the head of state.

I cannot avoid mentioning the general arguments when discussing and comparing different electoral systems, namely the conflict between the majoritarian and the proportional electoral system—and the in-between option: mixed systems. Most of the EU member states follow the proportional system, countries like Belgium, Denmark, Finland, Netherlands, Ireland, etc., while a few set their electoral system by a mixture of the two main schools, such as Germany, Hungary, Lithuania, or Italy. However, under the current circumstances in the EU, only France has a purely majoritarian system, which makes the situation even more interesting nowadays, because this system resulted in no party reaching an overall majority in the Assemblée Nationale. Although, the system is not the very same in the two cases. In the case of presidential elections, only the top two presidential candidates have the right to run on the second ballot, however, in the case of the elections of the lower house, one needs 12.5 percent of the support to get registered for the second round.

What Are the Differences?

As Giovanni Sartori said: “Electoral systems determine how votes are translated into seats”, hence its relevance is inevitable in every democratic nation, even though a properly measured electoral system can also cause several democratic issues or even democratic backsliding, which can only be examined system by system. The differences between a majoritarian and proportional system can be defined as follows: the majoritarian system—also known as the winner-takes-all system—is based on which candidates receive the most votes, similar to its counterpart. It can rely on either an absolute majority (more than 50% of the votes) or a simple majority (most votes). Another feature of it is the single-member districts where candidates compete for the ballots. The difference usually lies in the strength of the government, as the majoritarian system often provides a single-party majority, which is not necessarily a good or bad thing; it has several advantages, such as providing effective legislation, without needing to negotiate with others to achieve their goals. This is an obvious advantage for the major parties, but also makes the situation disproportionate for smaller ones, as they may appear underrepresented in the chamber. There are two options for such an electoral system: 1. The so-called First Past the Post (FPTP) system, applied in the UK and its former colonies like Australia, New Zealand, and various Caribbean countries, and 2. The two-round system (TRS), used in the French presidential election.

On the other hand, in the proportional system, seats are allocated to parties in proportion to the number of votes each party receives. For example, if a party wins 30% of the vote, it should get roughly 30% of the seats. This system, in contrast to the majoritarian one, is usually used with multi-member districts, meaning one district can send multiple people to Parliament. Under this system, it is rare for a party to achieve a majority alone. Types of proportional systems include the PR list system (Party List Proportional), where voters cast their ballots for one party and seats are allocated to parties in proportion to their share of the vote. The other option is called STV (Single Transferable Vote), where voters rank candidates by preference, and votes are transferred according to voter preferences until all seats are filled. The effects are obvious: it creates a “weaker” government but not necessarily a less effective one, which puts pressure on the winning party to start negotiations with the possible coalition partners. Like that, it can help create a more balanced political system, since neither party has the majority to make legislative decisions. This can be interpreted as an advantage, although it also means that the party that got the most votes cannot completely fulfill the promises it made during the campaign.

Conclusion?

Despite France’s application of the “two-round system”, neither alliance garnered enough seats for a majority, which means they are now, again, in a majoritarian system without a majority. Coalition-building seems impossible, while the relevance of the National Assembly continues to grow, alongside increasing dissatisfaction with the President. The two-round system—in my opinion—similar to STV, can provide a clearer and deeper or more reflective picture of the everyday societal opinions about the political landscape, also it can help to avoid an explosive change in the life of a state. However, like anything else, no electoral system can universally fit every state, and on its own cannot change the status quo, just like there are no unanimously good or bad systems.

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Soma BÁCSFALVI is a Msc student of law at the Faculty of Law and Political Sciences of the University of Szeged, Hungary, and a scholarship student of the Aurum Foundation. As a former intern with the presidential cabinet of the Hungarian Constitutional Court, his research focuses on the interconnections of national constitutional law and European public law, in particular on the rule of law and its manifestations in the European Union.