Will one have to be vaccinated to vote?

Only citizens have the right to vote. If non-vaccinated people are not citizens, as Mr Macron said, will they still have the right to vote in the next elections? The question is unfortunately not absurd. In Latvia, non-vaccinated MPs are no longer allowed to vote, while the French Parliament rejected an amendment to guarantee access to polling stations to non-vaccinated people. Will the government use the health crisis as an excuse to introduce electronic or postal voting in France for the presidential and legislative elections?

To ask this question two years ago would have been surreal; to ask this question a year ago was "conspiracy"; to ask this very question today is a necessity for the protection of civil rights. Step by step, there are several indications that we are moving towards this hypothesis, in complete contradiction with the principles and constitutions of Western democracies, as well as with international conventions.

The first element legitimising such a question is the rapid and continuous evolution of French legislation towards compulsory vaccination. Vaccination was first opened to certain categories of people, then to the entire adult population. A "health pass" including vaccination as one of three possibilities was adopted. Initially reserved only for major events, the health pass was extended after the summer to everyday services and activities. Compulsory vaccination was adopted for certain professional categories. Finally, the validity period of PCR or antigenic tests was reduced to 24 hours and now the health pass is transformed into a vaccination pass, thus prohibiting any non-vaccinated person from going to restaurants, cinemas, swimming pools and all other places where this vaccination pass is required. Through this gradual, year-long process, the government has succeeded in changing public opinion from one that is sceptical about vaccines and the health pass to one that is resigned to or in favour of mandatory vaccination.

The adoption of the vaccine pass by the National Assembly on first reading comes very close to a vaccination obligation. This objective of achieving "vaccination for all" has been made clear by the Minister of Health, the Prime Minister, the Government Spokesperson and even the President of the Republic. On Wednesday 15 December 2021, Emmanuel Macron stated in an interview with TF1 and LCI about compulsory vaccination that "It is quite possible, this hypothesis exists [...]. We are almost at the point of mandatory vaccination. In an interview with Le Parisien on 4 January 2022, he criticised the choice of millions of French people not to be vaccinated against covid-19, particularly those who do so in the name of individual freedom: "When my freedom threatens that of others, I become irresponsible. An irresponsible person is no longer a citizen." These words are particularly strong because the President links the social virtue of acting responsibly to citizenship itself. According to him, refusing the covid-19 vaccine demonstrates itself a person's irresponsibility and de facto deprives them of their citizenship.

Indeed, a citizen is an individual considered from the point of view of his political rights; it is a person enjoying their civil and political rights. However, to deny a person their status as a citizen is by the same token to deprive them of the enjoyment of their civil and political rights, among which is the right to vote. Consequently, from a legal point of view, Emmanuel Macron's remarks are extremely serious because, in one sentence and in a radical manner, he is taking away the title of citizen and the rights attached to it from people who refuse the jab against covid-19. All the more so since he added during a press conference on 7 January 2022 that "Being a citizen means having rights and duties, and these duties come first." As if one had to fulfil one's duties first in order to benefit from one's rights. His statements are not limited to the issue of this jab but are general and absolute. They could be applied to any other issue. While many people are convicted of serious crimes without a sentence of disenfranchisement, people who commit no illegalities would be stripped of their citizenship? This is a blatant injustice and reinforces the fear that future votes will be subject to the vaccination pass, thereby excluding millions of opponents of Mr Macron.

Against such a potential infringement of a fundamental civic right, namely the right to vote, for people who have not committed any offence, MEPs have asked the Government to legally guarantee that people who have not been vaccinated against covid-19 will have the right to vote in the next elections. As in previous debates on the previous versions of the health pass, an amendment was again tabled to formally exclude places where democracy is exercised from the scope of a vaccination pass or health pass. It was rejected by the Government and the Committee without further argument after Ms Blin had defended the amendment.

Furthermore, the question of whether a health pass will be required to attend political meetings continues to be raised. In its decision of 9 November 2021, the Constitutional Council had clearly stated that: "the presentation of the "health pass" cannot be required to access polling stations or political meetings and activities." Despite this, the bill adopted in first reading in the Assembly still pushes for the possibility to impose it for political meetings and activities:

By way of derogation from the first two paragraphs of this F, the person responsible for organising a political meeting may make access to it conditional to the presentation of the result of a virological screening test that does not conclude that the person is infected with covid 19, proof of vaccination status with regard to covid 19, or a certificate of recovery from covid 19 infection.

Some candidates, such as Valérie Pécresse, have announced that they would demand this if possible. It is therefore likely that some candidates will demand it and others will not, making it a political issue, when it should be a real and only health issue.

The worrying precedent of Latvia

Requiring a person to be vaccinated in order to exercise civic rights such as the right to vote would not be a first in Europe. Latvia has passed a law banning non-vaccinated members of parliament and local officials from voting, participating in debates and receiving a salary. However, a certificate of recovery from infection is still possible for these elected officials, thus providing a narrow escape from vaccination. The impossibility of participating in committee meetings remotely via the internet for these elected representatives is particularly shocking.^[i] Demonstrations against this and other restrictions adopted by the government have taken place in this country, as in most other Western countries with restrictions. However, the infringement of the democratic mandate of those MPs refusing vaccination, the infringement of the equality of citizens and democratic pluralism did not move many other EU countries, on the contrary.

The Austrian government is seeking to legalise the general vaccination obligation on pain of a fine. While the entry into force of such an obligation was planned for the 1^st February, technical difficulties are delaying the introduction of such an obligation until April. The German government is acting in the same way. Greece and Italy have chosen to make vaccination compulsory for everyone over 60 and 50 years of age respectively. If such requirements are finally adopted, a democratic ballot could potentially even be used to check the vaccination status of voters.

What to expect from the ECHR?

The current climate of anxiety also suggests that vaccination could be required to vote, even though the European case law should protect us from such a violation of rights. The European Court of Human Rights (ECHR) has already ruled in several cases on disenfranchisement, and it accepted such an infringement only in very rare exceptions. The ECHR has often recognised a legitimate purpose for disenfranchisement, but has mostly challenged such disenfranchisement as being disproportionate, too long, automatic or unadjusted. According to the Court, even when a person is imprisoned, it is not permissible for that person to automatically lose their rights as a citizen. Indeed, the Court is particularly attentive to the modulation of such a sentence and to the particularities of each concerned individual. It would therefore be completely contrary to the case law of the European Court to deprive any non-vaccinated citizen of their right to vote. Firstly, because there is no legal obligation to being vaccinated, and consequently, a person who is not vaccinated does not commit any offence in France to date. Moreover, even if not being vaccinated were legally punishable, the deprivation of the right to vote of any non-vaccinated person would be considered in principle too general and automatic by this Court. In principle only, because the courage of the ECHR tends to crumble quickly before certain states. Thus, if several states were to make vaccination against covid-19 compulsory, the Court would note the absence of a European consensus on the issue, would leave a greater margin of appreciation to the states and could potentially accept that some states restrict the democratic rights of a category of people. This would still be a reversal of jurisprudence.

Article 25 of the UN International Covenant on Civil and Political Rights also prohibits any discrimination that prevents a citizen from taking part in the conduct of public affairs, from voting and from being elected. The principle of protecting the civil rights of all citizens has always been strongly upheld and the exceptions extremely detailed.

The prospect of electronic or postal voting?

Electoral deadlines are fast approaching and before preventing a non-vaccinated person from accessing a polling station, a reflection on possible alternatives should take place. For example, if electronic or postal voting were available to non-vaccinated people, access to polling stations could be conditional on the presentation of a vaccination pass. In this case, there would be no infringement of the right to vote as a non-vaccinated person could still vote through the internet or mail and the discrimination could be considered proportionate to the objective of fighting the spread of the epidemic.

There are several problems with the reliability of both remote voting methods. In the case of postal voting, the two main weaknesses of this voting method are the security of the delivery of the vote and the possibility of multiple voting. The difficulty of preventing people from voting more than once and the inability to guarantee that their vote has been considered led to the abandonment of this method of voting in France, before it was reintroduced for French citizens abroad for the legislative elections only and for prisoners. Postal voting for prisoners was tested during the 2019 European elections and was made permanent for other elections by a law of 27 December 2019. For online voting, to date, no software or electronic voting system has been able to demonstrate its inviolability[ii].

Moreover, whether voting is done electronically or by post, the question arises as to whether this option would be offered to all citizens or only to the "non-vaccinated". The latter would require the drawing up of a list of this category of people, which again poses both logistical and constitutional problems.

In principle, the presidential elections of 10 and 24 April 2022 should be held in accordance with the provisions of the organic law n° 2021-335 of 29 March 2021 on various measures relating to the election of the President of the Republic. This law stipulates, among other things, that "voters shall be convened by a decree published at least ten weeks before the date of the first round of voting." If the electors must be convened by 30 January 2022 at the latest, it seems unrealistic to modify the law before this date and it is not possible in principle to modify the rules of an election while it is in progress.

However, according to an official communiqué of the Constitutional Council of 11 January 2022, the President of the Council received the Minister of the Interior who "raised the possibility that, after consultations, the Government would draw up new organisational measures that would appear to be made necessary by the health crisis, in order to guarantee the smooth running of the presidential election." Laurent Fabius, President of the Constitutional Council, did not express any reservations about this, but simply confirmed that the Council would review the constitutionality of such a law.

In fact, insofar as postal voting is already legally provided for in an exceptional manner, an extension of its application to non-vaccinated people would be legally possible. Similarly, an express modification of the law due to a "health emergency" cannot be legally excluded, especially as the Government would have a political interest in this.

Vaccination has now become a political issue

According to various polling institutes, vaccination status correlates with political opinions and a large majority of non-vaccinated people are opposed to the current government. By making national vaccination a priority political issue, the government itself is taking the vaccination issue out of the purely medical field and into the political field. Vaccination has now become a political issue: the government boasts about national vaccination figures as evidence of public confidence and support for its policy. On the other hand, some people boast that they refuse vaccination out of opposition to the government, not for medical, scientific, religious or philosophical reasons. There would therefore be both an interest and an opportunity for the government and its party to prevent the "non-vaccinated" from voting.

Thus, if the Government were to find technical solutions in time to remotely vote the non-vaccinated or succeed in adopting a vaccination obligation, it is unfortunately likely that the supreme courts would find no case against it.

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[i] Tom Theuns and Josette Daemen, The Latvian ban on unvaccinated MPs should be a wake-up call | View, Euronews, 18 November 2021, available here.

[ii] Éric Chaverou, Le vote électronique en mal de confiance dans le monde, France culture, 4 March 2019, available here.