The provisional suspension of the registration in the electoral census of tens of thousands of Spaniards who acquired nationality under the so-called “law of grandchildren”, as interpreted by Instruction of 25 October 2022 from the Directorate-General for Legal Security and Public Faith, raises a constitutional question of utmost importance. And it is not merely about the correctness of an administrative instruction, but something far more delicate: whether those who remain legally Spanish can be temporarily deprived of the right to vote. In my view, this consequence is very difficult to justify, even admitting that the administrative interpretation of the law could be subject to debate. Let us examine it.
The so-called “law of grandchildren” is, in reality, the eighth final provision of Law 20/2022, of 19 October, on Democratic Memory, which, among other things, recognizes a right of option to Spanish nationality for certain descendants of Spaniards, particularly linked to exile. For its part, the Instruction of 25 October 2022 does not by itself grant nationality to a series of people nor fix a period during which all descendants automatically have the right to obtain it. On the contrary, what it does is set out criteria to apply the law and to process declarations of nationality option before the Civil Registry. For the purposes relevant here, the Instruction presumes exile status of Spaniards who left Spain between 18 July 1936 and 31 December 1955. For those who did so between 1 January 1956 and 28 December 1978 it requires proving exile status. These dates, therefore, delimit the evidentiary handling of exile, not the moment at which nationality is acquired.
Is it legitimate to ask whether such a broad presumption respects the tenor of the law, since a mere administrative instruction cannot modify a legal provision or substitute the requirements that it establishes. But from there it does not necessarily follow that the consequences of an eventual administrative overreach can be transferred, without further ado, to the persons whose acquisition of nationality was recognized by the competent authorities.
“For the purposes of the matters of interest here, the Instruction presumes the exile status of Spaniards who left Spain between July 18, 1936 and December 31, 1955”
Nevertheless, the truth is that the Supreme Court ruled in September 2026 to impose provisional measures affecting registrations in the Census of Absentees (CERA) for people naturalized under that interpretation of the Instruction, and later maintained this suspension of the right to vote in another order of 12 October 2026, once it was known that the upcoming general elections would take place on 29 November. It should be noted that we are not dealing with a final judgment that has annulled the instruction or individually invalidated the granted nationalities, but with a precautionary measure that has certain census and electoral effects. The difference is not minor.
Although the Supreme Court’s reasoning in favor of the measure deserves to be taken seriously (the census must be reliable and the regularity of elections constitutes an undeniable constitutional public interest; moreover, nationality and census registration are not identical concepts, despite Article 2 of the Organic Law of the General Electoral Regime requiring the latter to exercise the vote), the fact is that to deprive, even provisionally, the fundamental right to vote (Art. 23.1 CE) from someone who holds Spanish nationality is a measure of such gravity that it requires a more robust justification than the one offered by the Supreme Court. Not only because that fundamental right is affected, which by itself would be enough, but also because there are other fundamental rights at stake (notably, the right not to suffer discrimination — Art. 14 CE — and the right to effective judicial protection — Art. 24.1 CE).
The question is, indeed, whether a collective-reaching measure, based on doubts about the interpretation of an instruction and not on the individual review of nationalities, passes the proportionality test required for any such grave restriction of a fundamental right. The arguments of the Supreme Court do not seem very convincing, since the increase in people registered in the census may explain the need to verify files, but by itself does not demonstrate that the registrations are irregular; likewise, it does not seem sufficient to broadly invoke electoral cleanliness without explaining why less harmful alternatives are not possible.
“The increase in people registered in the census may explain the need to verify files, but it does not by itself demonstrate that registrations are irregular”
Additionally, there is an anomaly that is particularly hard to explain: the suspension targets Spaniards residing abroad registered in the CERA, while other Spaniards naturalized through the same route, residing in Spain, are not in the same situation. The difference between residing inside or outside the national territory should not translate, without a particularly demanding justification, into an unequal capacity to participate in the same general elections.
The precautionary dimension of the decision taken by the Supreme Court aggravates the problem further. If voting is blocked now and months later it is concluded that the administrative interpretation was valid or that the suspension was improper, the harm will be irreparable: the vote cannot be cast retroactively. Added to this are the practical difficulties of reviewing thousands of consular files in a few days, which make the possibility of individually proving exile status at risk of becoming a purely nominal guarantee. It is not surprising, therefore, that the Ombudsman has turned to the Constitutional Court seeking urgent protection. A remedy that has been dismissed by it as premature, thus violating the subsidiarity requirement of the protection. Which is, at least, debatable, since, among other things, the order of the Supreme Court appealed, even though it has merely adopted a precautionary measure, could be irremediably infringing fundamental rights due to the time limits involved. Be that as it may, the case is not closed, as another challenge to the Constitutional Court could be filed soon.
“If voting is blocked now and months later it is concluded that the administrative interpretation was valid or that the suspension was improper, the harm will be irreparable: the vote cannot be cast retroactively”
In short, what is argued here is that, although, of course, nationality acquired in accordance with the interpretation carried out by the questioned Instruction is not immune to revision, it must be performed through the legally provided channels, with sufficient safeguards, so that, while that happens, those who hold Spanish nationality and meet the electoral requirements should not find themselves in a kind of incomplete citizenship. In other words, it is possible to discuss the legality of the 2022 Instruction without, at the same time, accepting that those who trusted its application should bear, by means of the suspension of their right to vote, the consequences of that controversy. Protecting the integrity of the census is essential. But so is avoiding that, under the appearance of a provisional measure, there be a loss of the opportunity to participate politically. It is true that the rule of law requires controlling the Administration; however, this should not be done at the expense of turning citizens, whose nationality remains valid, into Spaniards without the right to vote.
