The Supreme Court has dismissed the appeal presented by the Government against the precautionary suspension linked to the 'grandchildren's law' and confirms that the new Spaniards naturalized through this route will not be able to participate in the general elections on November 29, except for those who can prove that their ancestors suffered exile.
The Administrative Litigation Chamber made this decision in two rulings made public this Monday, which Europa Press has accessed, in which it rejects the arguments of the State Attorney against the precautionary measure that the Supreme Court itself agreed on September 10.
In the resolutions, it specifies that "the provisions of the aforementioned ruling must be adhered to, with an indication to the National Institute of Statistics, which the Electoral Census Office depends on organically, that cannot register in the Electoral Census of Residents Absent Abroad (CERA) those who have obtained Spanish nationality of origin by exercising the Right of Option provided for in Additional Provision 8.1 First Clause of Law 20/2022, of October 19, on Democratic Memory and who have not yet been registered in the electoral census due to the application of the suspension agreed upon in the aforementioned ruling".
The judges also add that "similarly, regarding those individuals who, having obtained Spanish nationality of origin by exercising the right of option provided for in Additional Provision 8.1 First Clause of Law 20/2022, of October 19, on Democratic Memory, have already been registered in the Electoral Census of Residents Absent Abroad, the suspension of their electoral effects in the electoral process called by Royal Decree 806/2026, of October 5, for elections to the general courts is maintained".
However, the high court introduces an exception and clarifies that "the precautionary suspension will not apply" to those who, being in the described situation, obtain from the consular registry officials, "under their responsibility", a certification that certifies that, as of August 1, 2026, "they had the status of being born outside of Spain, of a father or mother, grandfather or grandmother, who had originally been Spanish, and who had suffered exile for political, ideological, or belief reasons or for sexual identity orientation and who had lost or renounced Spanish nationality".
The Supreme Court reasons that "the reasons persist" that led it to adopt "such an exceptional measure" as the suspension of registrations in the CERA and of the electoral effects of those already carried out, "due to a lack of absolute certainty of compliance, even approximately, with the state of the issue."
In the opinion of the Chamber, "material impossibility of executing a court order cannot be alleged when the cause of non-compliance resides in the very Administration responsible for fulfilling it," in direct allusion to the objections of the Executive, which invoked the lack of time to review all the files.
The magistrates emphasize that the call for general elections was a key element for the court to assess the degree of execution of what was ordered in the ruling of September, but they stress that "the material burden of proving that degree of compliance with what was agreed upon in it corresponds solely and exclusively to the General Administration and to the Electoral Census Office, which has omitted it in its entirety."
In this context, they warn that "the risk of an electoral census being irregularly constituted, in this case the CERA, without the requirements of accuracy, truthfulness, equality, objectivity, and transparency that the holding of an electoral process in a representative parliamentary democracy such as the Spanish one demands, continues to persist with the same intensity, even though the total figures have decreased, but they still have a significant impact on the territorial constituencies in which the new holders of Spanish nationality by the referenced additional provision are registered."
The cleanliness of the census, above the affected suffrage
For the court, "the cleanliness and neatness in the list of voters included in the census, in this case in the CERA, constitutes a supreme value from which the slightest doubts of obscurity or irregularity must be cleared, because the democratic legitimacy of the representatives elected by the vote of the citizens can be called into question if there exists the slightest doubt of irregularity."
It also recalls that "all this without forgetting, moreover, that the existence of any eventual irregularity in the electoral census affects all other citizens unrelated to the cause that may have motivated it."
In its analysis, the Chamber concludes that "the risk continues to exist" and that "the elements of legal insecurity remain" in the face of "the unforeseen and unexpected event of the call for the general election process."
The Supreme Court reiterates, in line with what has already been expressed when agreeing to the suspension, that "the general interest of preserving the purity of the electoral process must prevail over the voting rights of those registered in that census regarding which the Administration has not clarified the conditions under which that registration was made and the traceability of their access to the corresponding consular registry."
At this point, it emphasizes that "not even has been provided," of the 163,020 Spanish national voters registered in the CERA who have obtained nationality under the 'grandchildren's law', "an approximate number of the files of those, which have been broken down."
"That is to say, it has been completely overlooked to inform this Chamber of the level of compliance with the received order," reproaches the high court, which considers that the allegations of the State Attorney's Office and the documentation incorporated "do not provide any data" that allows knowing that degree of execution.
Despite this, the Supreme Court opens the door for those affected by the paralysis to appear in the procedure as co-defendants and empowers them to present allegations against the current precautionary measures.
Likewise, it orders the Government to publish this resolution in the Official State Gazette (BOE) and requires the General Directorate of Spaniards Abroad and Consular Affairs "to order, with the utmost urgency," the officials of the consular registries that processed the naturalization files to disseminate "the dispositive part of this order."
The dissenting vote of magistrate Millán
Magistrate Alicia Millán, as she did in the order issued in September, formulates a dissenting vote in which she argues that the Supreme Court should not have suspended the voting rights of those naturalized by the 'grandchildren's law.'
In her opinion, the electoral advance has substantially modified "the scenario on which the precautionary suspension was initially agreed," which "forces a new assessment of the competing interests."
All of this, he points out, "taking into account not only the purpose of preserving the regularity and reliability of the electoral roll, but also the intensity with which such measures now affect the certainty of the electoral roll and the effective exercise of a fundamental right of the utmost constitutional relevance, such as the right to active suffrage."
He reminds that "we are no longer faced with the hypothesis of a future electoral process whose call may or may not occur during the pendency of the appeal," and emphasizes that there is now "a specific and immediate electoral process, subject to peremptory deadlines and a legally ordered succession of actions that stem from the existence of a determined electoral roll."