The call for general elections to be held on Sunday, November 29, and the Supreme Court’s decision to keep in suspense the right to vote for those who acquired nationality under the so‑called “grandchildren law” has returned to the forefront of public debate the question of the suffrage of Spaniards residing abroad, which had already been the subject of debate and confrontation in articles, reports, and talk shows in the press, on radio, television, and digital media since the court decided the precautionary measure to halt the registration in the electoral census of this group.
As is customary in recent years, the positions of politicians, journalists, and pundits on the matter are divided between those who speak of electoral engineering, census adulteration, and vote manipulation and those who emphasize rectifying a historical injustice, the judicial curtailment of democratic rights, and discrimination against residents abroad.
Since this is a matter in which two distinct though related issues intertwine — the recognition of Spanish nationality for descendants of emigrants and exiles and the right to vote for those who acquire nationality through this path — the following considerations are set out to ground the debate about this subject with a measure of rigor, distant from the immediacy and urgency imposed by journalistic timetables and media voracity.
On the origin of the debate, in brief
The precautionary measures issued by Section Four of Chamber Three of the Administrative Court of the Supreme Court constitute the judicial response to appeals filed by Iustitia Europa and Vox against a resolution of July 16 by the Central Electoral Board (JEC) regarding the effects of Law 20/2022, on Democratic Memory.
These parties had asked the Electoral Board to suspend the census registration of people who had been naturalized on the basis of that law, but the Board declined to rule on the granting of nationality, arguing that it exceeded its powers, and denied the request to suspend the registration in the Census of Absentee Residents (CERA), on the grounds that the right to electoral participation is inherent to the possession of Spanish citizenship.
With its September 10 decision, the High Court attends to the petition of the appellants and freezes the immediate registration of newly naturalized individuals in CERA on the argument that mass registration of new electors poses “a founded, real, and serious danger of seriously affecting the objectivity and transparency of the electoral process” and creates a “well-founded uncertainty about the electoral result,” explicitly mentioning the rise of more than 400,000 registrants in said census between 2023 and July 2026 included in Iustitia Europa’s appeal.
Although the court notes the provisional nature of the measure, pending a definitive ruling on the merits of the dispute, in practice it implies suspending the exercise of the right to vote for a portion of the new Spanish nationals for the upcoming electoral processes that may be called while the dispute is resolved. Obviously, some interpret the judicial decision as a victory against government populism and others as a defeat of democratic rights.
“In practice, it implies suspending the exercise of the right to vote for a portion of the new Spanish nationals”
Since the dispute, although erupting judicially and media-wise in 2026, has its origins in the 2022 law and the criteria for interpreting it, it is necessary to go back in time and analyze first the content of both norms and the concepts of nationality and vote.
On the complex issue of nationality: the Law and the Instruction
Law 20/2022, of October 19, on Democratic Memory (LMD), published in the Official State Gazette (BOE) No. 252 of October 20, 2022, has as its stated objective “the comprehensive repair of the victims of the War and the Dictatorship”, within the framework of “truth, justice, repair and guarantees of non-repetition” policies that have been the subject of recommendations by international human rights bodies.
On this basis, the statute defines the substantive scope of who counts as victims and establishes the set of measures that configure the comprehensive public policies of democratic memory: promotion of scientific knowledge, development of the map of mass graves, exhumation protocols and authorization regimes, access to public and private funds and archives, investigation of human rights violations committed during the war and dictatorship, redress for expropriated property, actions related to different educational and teacher training fields, inventory of places of democratic memory and their commemorative and didactic function, creation of a register of memorial entities and, finally, a sanctioning regime to ensure compliance with what is established in the law.
This long enumeration of the contents of the statute is intended only to highlight the minimal space within it occupied by the regulation of the acquisition of nationality for descendants of emigrants and exiles.
The regulation under discussion is exclusively the eighth additional provision, under the heading “Acquisition of Spanish nationality,” which says:
1. Born outside Spain of a father or mother, grandfather or grandmother who originally were Spanish, and who, as a consequence of having suffered exile for political, ideological or belief reasons or for sexual orientation and identity, had lost or renounced Spanish nationality, may opt for Spanish nationality, for the purposes of Article 20 of the Civil Code. Likewise, Spanish nationality can be acquired by persons who are in the following situations:
a) The sons and daughters born abroad of Spanish women who lost their nationality by marrying foreigners before the entry into force of the 1978 Constitution.
b) The sons and daughters who are adults of those Spaniards whose original nationality was recognized under the option right in accordance with this law or with the seventh additional provision of Law 52/2007, of December 26.
2. In all cases, this declaration must be formalized within two years of the entry into force of this law. At the end of this period, the Council of Ministers may approve a one‑year extension.
To quote the literal content of this article, at the risk of boring the reader, it is essential to understand the litigation in its full dimension.
A first objection raised by many who have now spoken on the subject concerns the very existence of this brief legal text, as they consider it inappropriate to grant nationality (and thus the right to vote) to those who have not lived in or established personal ties in Spain, regardless of their ancestors’ departure from this land.
However, during the parliamentary processing of the law, the criticism from the PP and Vox did not focus on granting nationality to the descendants of exiles. The first party submitted an amendment on the eighth additional provision with wording very similar to that finally approved, and Vox’s amendment in its entirety against the law did not refer to the nationality provision.
Thus, while the law is in force, there exist three groups eligible to access nationality by exercising the option right recognized in it.
01
Exiled and persecuted
Descendants of exiled or persecuted Spaniards who lost or renounced nationality due to the dictatorship.
02
Daughters of Spanish mothers
Born abroad to Spanish women who lost their nationality by marrying foreigners before 1978.
03
Adult children
Adult children of those who acquired nationality under the Democratic Memory Law of 2007 or under Law 20/2022.
The nationality obtained through this route confers on the beneficiary the status of a Spaniard of origin, albeit ex post and without retroactive effect, and grants them the same rights as any other citizen, including voting in regional, general, and European elections.
“As long as the law is in force, there are three groups eligible to access nationality by exercising the option right recognized in it”
Regardless of possible technical objections (inclusion of restorative measures for exile), citation errors (referring to the 1978 Constitution rather than to Law 14/1975), or temporary problems (if the parent’s file remains unresolved in the third case), what is certain is that the last two access routes to nationality have generated controversy beyond the academic sphere. That the provision seeks to repair an injustice not derived from exile but from international law, namely the non‑transmission of nationality through a Spanish woman who married a foreigner, or that it “reknits” a rule not in force anymore, the seventh additional provision of the 2007 “memory law,” does not diminish its justified aim to, on one hand, remedy a flagrant case of gender discrimination and, on the other, eliminate the unequal situation between older and younger siblings as an unintended consequence of applying the 2007 law.
It is the first access route to nationality (the descendants of exiles and dictatorship victims) that is at the center of political, judicial, and media debate and is the seed of the situation raised four years later.
After the law was approved, the People’s Party criticized tying nationality to “a particular political or ideological interpretation of the Civil War and the dictatorship” and called for the passage of a specific nationality law for descendants of Spaniards, separate from the memory law. Vox’s rejection, for its part, targeted the democratic memory policies and their aim to “impose a particular historical narrative.” But this did not amount to opposing specifically the descendants’ right to obtain nationality.
“From the People’s Party there was criticism of linking nationality to «a particular political or ideological interpretation of the Civil War and the dictatorship»”
Now, following the Supreme Court’s precautionary measures linked to the right to vote, stronger opposition voices have emerged against the very granting of nationality to descendants, primarily because they argue that those who do not pay taxes in our country should not have access to public services in Spain.
A few days after the law was published, the BOE also published the October 25, 2022 Instruction from the Directorate-General for Legal Security and Public Faith, regarding the right of option to Spanish nationality established in the eighth additional provision of Law 20/2022, of October 19, Democratic Memory.
The purpose of this Instruction, stated in its introduction, is to issue “guidelines on the exercise and scope of this right, as well as the precise procedural rules to speed up the processing of applications in the Civil Registry Offices”, acting as a doctrine for use by those in charge to resolve doubts “as to the scope and interpretation of the application of the mentioned additional provision, as to which cases are included or excluded, or what requirements the applicants must meet.”
It is a technical norm, but the fact that the Instruction was signed by the then Director General of the agency, Sofía Puente, sister of Óscar Puente, the Minister of Transport, has brought this personal circumstance to the forefront of political debate, fueling opponents’ position against the law and its alleged electoral impact.
The Instruction, as required by its inferior legal rank, reproduces in its first directive the three scenarios of access to nationality recognized in the eighth additional provision of Law 20/2022. However, in its sixth directive, it broadens the personal scope of the law to allow eligibility for the option contemplated in that provision to “persons who, being the children of a father or mother originally Spanish and born in Spain, had opted for non‑origin nationality under Article 20.1.b) of the Civil Code, in the wording given by Law 36/2002, of October 8, and the minor children, of those who had acquired Spanish nationality, by application of Law 52/2007, who themselves opted for non‑origin Spanish nationality, under the exercise of the option right provided in Article 20.1.a) of the Civil Code, while under the parental authority of a Spaniard.”
The aforementioned Article 20 of the Civil Code grants the right to opt for Spanish nationality, in its paragraph 1.b), to people whose father or mother would have originally been Spanish and born in Spain, and in its paragraph 1.a) to those who are or have been under the parental authority of a Spaniard.
This intricate wording is clarified in directive seven, in which, interpreting the legislature’s will in accordance with Law 52/2007, of December 26, which recognizes and extends rights and establishes measures in favor of those who suffered persecution or violence during the Civil War and the dictatorship (known as the “memory law”), it is stated that the first paragraph of the LMD’s additional provision intends to establish two distinct opt‑in scenarios:
a) the case of those born outside Spain of a father or mother, grandfather or grandmother, who originally were Spaniards,
b) the case of those born outside Spain of a father or mother, grandfather or grandmother, who originally were Spaniards, and who, as a result of exile for political, ideological, or belief reasons or for orientation and identity, had lost or renounced Spanish nationality.
ONE A
Descendants of Spaniards of origin
Born outside Spain to father, mother, grandfather, or grandmother who were originally Spanish.
ONE B
Exiled and persecuted
Born outside Spain to father, mother, grandfather, or grandmother who originally were Spanish and who lost or renounced nationality due to exile.
DOS
Children of Spanish mothers
Born abroad to Spanish women who lost their nationality when marrying foreigners before 1978.
TRES
Adult children
Adult children of those who acquired nationality under the Democratic Memory Law of 2007 or under Law 20/2022.
That is to say, that both those born outside Spain to parents or grandparents originally Spanish, in general, and those born outside Spain to parents or grandparents who lost or renounced Spanish nationality due to exile or the dictatorship will be able to exercise the option provided in that paragraph.
To better illustrate this recognition, the Instruction includes in its annexes four models of application for Spanish nationality by option, distinguishing four avenues of access, not three. All this terminological confusion forced a February 2023 correction of errors affecting the wording of Annex I.
Alongside this expansion of the subjective scope of the right of option, the aforementioned directive seven of the Instruction includes an interpretive criterion regarding procedural rules and the documentation that must be provided, by virtue of which those who left Spain between January 1, 1956 and December 28, 1978 must prove the status of exile, but “the status of exile will be presumed for all Spaniards who left Spain between July 18, 1936 and December 31, 1955.”
“Those who left Spain between January 1, 1956 and December 28, 1978 must prove exile”
In this second scenario it will be enough to prove departure from Spanish territory by any of the documents listed in the regulation (passport with entry stamp, consular certificate, local Civil Registry certificate, or documentation from the host country). Although aimed at bypassing the difficulty of locating and presenting documents from an increasingly distant past, it is an interpretive criterion that also expands the potential beneficiary scope of the right.
The subjective expansion and the presumption of exile drew criticism from the PP both in Congress and in the Senate, as it considered that, by presuming exile for all Spaniards who left Spain between 1936 and 1955, the Instruction allowed access to nationality to descendants of emigrants for economic or other reasons not related to political persecution, and an expansion of that reach would require a legal modification approved by the Cortes. It wasn’t so much that it could grant nationality to a much larger number of people as that an administrative instruction, through the subjective expansion of the right of option and the presumption of exile, would modify the content set by a law.
The Instruction was even challenged before the Madrid High Court of Justice (TSJ) in December 2022 by the Association for Reconciliation and Historical Truth arguing that it had been issued by a body lacking power to regulate the law, but the court dismissed the appeal on procedural grounds of standing without addressing the merits.
“It is an interpretive criterion that also expands the subjective scope of potential beneficiaries of the right”
According to the Government, the justification for the expansion is set out in the Instruction itself, which appeals to the joint interpretation of the LMD with the prior Law 52/2007, in the sense that the new law could not restrict the rights already recognized in 2007, and thus descendants of original Spaniards should be included even if they cannot demonstrate political exile in the restrictive terms of a literal reading. It also highlighted the inconsistency of those who first criticized the law for limiting access to exiles or victims of the war and dictatorship and then criticized the Instruction for extending the process to all descendants of Spaniards.
Questions about its application, regarding the registry competence for recognizing the option or the distinction between “origin nationality” and “acquired nationality,” arose in academic circles and did not, at that time, have further media coverage.
The subjective expansion of the Instruction did not provoke, however, criticisms among Spaniards living abroad, because in large part that administrative interpretation provided an answer to a widespread demand from the expatriate community, expressed through the Councils of Spanish Residents (CRE) and repeatedly reflected in the agreements of the General Council of Spanish Citizenship Abroad (expressly in the November 7, 2023 agreement).
The voting system for Spaniards living abroad
Article 23 of the Spanish Constitution recognizes citizens’ “right to participate in public affairs, directly or through representatives, freely elected in periodic elections by universal suffrage”.
The Organic Law 5/1985, of June 19, on the General Electoral System (LOREG), specifies that right to suffrage in favor of all “Spanish adults”, restricting only those condemned by final court sentence to the main or accessory penalty of deprivation of the active right to vote during the time of its execution, but requiring that they be registered in the Census of Spaniards Residing in Spain for municipal elections (including elections to the Conselh, Insular Councils, the General Council of the Val d’Arán, and regional assemblies).
This restriction of voting rights for residents abroad in municipal elections was introduced in 2011 through Organic Law 2/2011, of January 28, known mainly in the émigré sphere for establishing the so‑called “voto rogado” (requested vote). This voting procedure, harshly criticized by the diaspora, was repealed later by Organic Law 12/2022, of September 30, but the impossibility of voting in municipal elections for those registered in the CERA remains in force.
The right to vote is linked to citizenship in the case of general, regional, and European elections, but it is tied to residence or neighborhood in the case of municipal, local, and (where applicable) autonomous elections, which allows foreigners living in Spain to vote in those elections.
A third objection raised by opponents of the current system, partly tied to the first one (the very granting of nationality to descendants of exiles), is precisely the link established by Spanish law between citizenship and voting, something that, argue critics, other neighboring democracies do not share, which do not automatically recognize the right to vote for their nationals who are not resident in the country.
“The right to vote is linked to citizenship in the case of general, regional, and European elections”
However, the same legal logic that allows dismissing the excess of the ministerial Instruction requires dismantling this link between voting and citizenship through a law with organic statutory rank, equal to that which establishes it (the LOREG).
This is also the strongest argument of the critics of the Supreme Court’s decision, who consider the measure of depriving those with Spanish nationality of the vote to be unconstitutional, regardless of how they acquired it. In addition, they point out that denying the vote to someone because they do not live in the country and have no obligations there, sensu contrario, opens the door to another debate: granting the right to vote in general and regional elections, and not only in municipal ones, to those who live in the country and are not Spanish citizens, i.e., foreign residents in Spain.
Furthermore, the Spanish electoral procedure has a peculiar feature in the way overseas votes are counted. While other countries have their own electoral constituency or count votes nationally, in Spain the vote from abroad (deposited in a ballot box or sent by mail) is added to the votes of the province of the voter’s home municipality, in equal footing with the votes of those who reside there.
“In the Spanish case, overseas votes (deposited in a ballot box or sent by mail) are added to the votes of the province of the voter’s home municipality”
For Spaniards residing abroad who came from Spain, often called emigrants or expatriates, there is generally no major problem: consular offices register them in the Padrón de Españoles Residentes en el Extranjero (PERE) and, thus, to those of voting age, in the CERA, in the municipality of their last residence in Spain. However, for the “new nationals,” i.e., those who have never resided in Spain, they are registered in the municipality in which they declare having “a rooted connection” (arraigo) of their own or of one of their ancestors, and only if the declarant points to none, the Consulate assigns it ex officio.
This method of assigning a municipality, which grants the voter the right to choose their electoral district without needing to prove a territorial link and, if not, to the competent consulate, prompted the Central Electoral Board (JEC) to launch a review of the criteria used by Consular Offices, due to possible electoral effects, and it is the main axis of the complaint against registration in the CERA, for considering that this discretion “allows concentrating new electors in specific towns and provinces without effective control.”
It is true that this system makes it possible for the vote of someone who has never resided in the province of the assigned municipality to compete on equal terms with those who do reside there for determining the electoral result, but attributing to the diplomatic corps a progressive political ideology that would lead to biasing the assignment and concentrating the vote in favor of left‑wing parties wherever they needed to oust the right is a speculative operation of doubtful coherence.
Only by this “disconnection” between the municipality and the place of root can one understand why the communities that have seen the largest increase in registrations are Madrid and the Balearic Islands, lacking a migratory tradition toward the Americas comparable to that of Galicia, Canary Islands, or Asturias. Yet it is plausible to think that this domiciliarity assignment has more to do with the poor knowledge of the Iberian topography of many naturalized citizens or with the negligence of overwhelmed consular officials than with a plotted three‑way conspiracy to alter the electoral census in certain provinces.
To bolster the argument of an “electoral rigging” based on these assignment criteria, broad attention has been given to cases in several towns (generally with small populations) where the CERA vote equals or even exceeds the CER vote, ignoring that overseas voters cannot alter municipal election results, since they do not have the right to participate in them, and that the electoral district is the province, where ballots from overseas voters of any municipality are added to those of all residents there.
Moreover, the procedure for determining the municipality is neither novel nor attributable to the current Government. It is set out in an order of the Ministry of Economy and Finance dated March 25, 2011, which lays down technical rules for updating the electoral census on a monthly basis.
04 / Permanence
Assigned municipality
The municipality of registration remains unchanged unless the circumstances that motivated its selection change or unless it has been determined ex officio.
