Decision No. 5 of 8 May 2025 on Constitutional Case No. 24/2024
Referring Authority and Subject Matter of the Case
The case was initiated upon a request by the Eighth Panel of the Administrative Court - Pazardzhik for the establishment of the unconstitutionality of the provision of §1, item 14 of the Supplementary Provisions of the Election Code, in the part “with the exception of those under Article 438, paragraph 1, item 7”. The referring court substantiated that the contested statutory regulation constitutes applicable law in the administrative case pending before it - administrative case №402/2024 of the Administrative Court - Pazardzhik, instituted upon complaints lodged by candidates for municipal councillors against Decision №313-МI/30.10.2023 of the Municipal Election Commission (MEC) - Pazardzhik, as amended by Decision №367-МI/04.11.2023, whereby the distribution of the declared preferences (preferential votes) for the individual candidates in the candidate lists of parties, coalitions and local coalitions that obtained mandates in the Municipal Council - Pazardzhik, as well as the ranking of the candidates, was announced. The referring court maintains that the contested statutory provision contravenes the principles of the rule of law, equality of citizens before the law, and universal, equal and direct suffrage, proclaimed respectively in Article 4, Article 6, paragraph 2, and Article 10 of the Constitution.
Summary of the Court’s Reasoning
With regard to municipal council elections, the significance of the option “I do not support anyone” is embodied in the contested provision of §1, item 14 of the Supplementary Provisions of the Election Code, according to which such votes do not participate in the formation of the municipal electoral quota. In this manner, the law takes into account the negative attitude of voters towards political parties and their representatives, which constitutes a constitutionally permissible (albeit not mandatory) manifestation of the principle of political pluralism (Article 11, paragraph 1 of the Constitution). The possibility to vote in a manner demonstrating disagreement with and rejection of the values and views upheld by political parties and their representatives falls within the constitutional framework guaranteeing the freedom to form and express the political will of citizens.
At the same time, encouraging a greater number of citizens to participate in elections by enabling them to objectify their negative vote in a form expressly provided for and recognized by the legislature as valid further contributes to legitimizing elections as a fundamental instrument of representative democracy and as an act of direct democratic formation of the will of the people as the bearer of supreme sovereignty.
The possibility provided for voting with a ballot “I do not support anyone” does not place citizens who have chosen this option in a less favourable position compared to those who have voted for a specific list or candidate, insofar as both groups enjoy an equal opportunity to determine the manner in which to exercise their right to vote. However, it is not possible for “I do not support anyone” votes to be taken into account in the same manner as the other valid votes, since by their very nature they preclude such treatment, constituting not votes “in favour of” but votes “against”. Counting them to the benefit of a particular list or candidate would be entirely inconsistent with the freely expressed and legally relevant will of those voters. Such votes constitute an indicator of the negative electoral will of citizens and, as such, represent a form of public oversight over political actors; however, they cannot be transformed into political power in favour of a particular candidate, as the will of the respective voters expressly excludes precisely that outcome.
The Court further emphasizes that upholding the request by declaring unconstitutional the provision of §1, item 14 of the Supplementary Provisions of the Election Code, in the part “with the exception of those under Article 438, paragraph 1, item 7”, would produce a result compromising the representativeness of the municipal council as an expression of popular sovereignty.
In accordance with the clarified legislative intent underlying the contested statutory regulation, the introduction of the possibility to vote “I do not support anyone” is not intended to increase the threshold for entry into the representative body; in this sense, taking such votes into account in municipal council elections would be incompatible not only with the purpose and rationale of the law, but also with the need to ensure, to the greatest possible extent, the representativeness of the municipal council as reflective of the will of the electorate.
Grounds for the Ruling and Disposition
Pursuant to Article 149, paragraph 1, item 2 of the Constitution (empowering the Constitutional Court to rule on requests for the establishment of the unconstitutionality of laws and other acts of the National Assembly), the Constitutional Court rejects the request of the Eighth Panel of the Administrative Court - Pazardzhik for the establishment of the unconstitutionality of the provision of §1, item 14 of the Supplementary Provisions of the Election Code, in the part “with the exception of those under Article 438, paragraph 1, item 7”.
The decision is adopted with dissenting opinions by two judges.
Председател: Павлина Панова