The king of Spain’s dilemma following an inconclusive election

In January 2016, King Felipe VI, who had only been on the Spanish throne for a year and a half, applied Article 99.1 of the Constitution following a national election in December. Under the Constitution, after an election, the reigning monarch must formally initiate a round of talks with the leaders of the parties that achieved seats in parliament, before a candidate can be put forward to try to form a government.

The surprise, for the king and for all of Spanish society, came when Mariano Rajoy, leader of the center-right Popular Party (PP) — which had won the most votes at the election — declined the offer to be the first to try to form a government and submit to an investiture vote in the new parliament. Felipe VI had no choice but to turn to the general secretary of the Socialist Party (PSOE), Pedro Sánchez, who agreed to submit to a vote even though he knew he would not get enough support to be invested as the new prime minister.

In what is known as “the clock of democracy,” the Spanish Constitution sets out a period of two months from the time that the new parliament votes for the first candidate until parliament is automatically dissolved if no new government leader emerges, and fresh elections are called. In the event, Spain held another inconclusive election in June 2016, reflecting a newly fragmented political scene following decades of a two-party system dominated by the PP and PSOE. A similar scenario played out in 2019, when there was a national election in April, and a repeat one in November following failure by any candidate to form a government.

Felipe VI has built up experience with post-election talks, but the situation he will be facing as of August 17, when the new parliament that emerged from the recent election of July 23 convenes for the first time, will be no less devilish. This time the problem is not that there is no candidate for the investiture vote, but rather that there are two —the PP’s Alberto Núñez Feijóo and the PSOE’s Sánchez, the incumbent prime minister — and the king can only choose one of them at a time.

The PP won the election, but not with enough votes for an absolute majority, meaning that Núñez Feijóo would need support from other parties to form a government; so far support appears to be only forthcoming from the far-right Vox, and even then it would be insufficient for a majority in the 350-seat chamber. Meanwhile Sánchez believes that he could craft together a new government with support from a variety of left-wing and regional parties, including some that support independence from Spain, such as Junts, the party of Carles Puigdemont, who spearheaded the 2017 illegal independence referendum in Catalonia and later fled to Belgium.

Whoever the king taps first to try to form a government, in a context of strong political polarization, it may not be understood by the followers of the party that considers itself harmed by the decision, and it could potentially damage the image of neutrality of the head of state. Hence, professors of Constitutional Law and former speakers of Congress, consulted by EL PAÍS, insisted on the need for the constitutional guidelines to be scrupulously followed and for the PSOE and PP to reach a prior agreement that avoids dragging the king into a partisan scuffle. But such an agreement seems difficult, given the current lack of communication between the two party leaders.

“We are moving in an unregulated terrain, in which there are no written rules and it is prudent to tread carefully,” warned Professor Ana Carmona Contreras, a professor of Constitutional Law at the University of Seville. The experts unanimously said that the candidate of the most-voted party does not have “the right” per se to be the one to go first, despite what the PP has been saying since election night. “Not at all,” said Tomás de la Quadra-Salcedo, a former justice minister in the PSOE governments of Felipe González and emeritus professor of Administrative Law at Carlos III University in Madrid.

Article 99.1 of the Constitution does not explain what criteria the king should base himself on to choose a candidate, but “the first criterion is that the candidate should have the possibility of obtaining the investiture,” said Agustín Ruiz Robledo, professor of Constitutional Law at the University of Granada. “Proposing a candidate who is going to be defeated is a political failure,” added José Bono, a former speaker of Congress with the PSOE. “If Sánchez secures a pact that gives him the majority, the king has to propose him even if he [Sánchez] was not the most-voted [at the election],” said Ruiz Robledo.

The round of meetings with the leaders of political parties with representation in Congress helps the king get first-hand information about the kind of support that each candidate can count on. The problem is that several of these parties (the Basque EH Bildu, the Catalan ERC and Junts), routinely refuse to meet with the king of Spain, which “increases the uncertainty” about the result of the investiture vote, acknowledged De la Quadra.

If the efforts of the leader of the most-voted party (in this case, Núñez Feijóo) to form a government are doomed to failure, while the second candidate (Sánchez) is not guaranteed success, the king will have to make a risky bet, the experts agreed. Yet professor Ruiz Robledo admits that, “if neither one has sufficient support [in Congress], according to tradition and parliamentary courtesy, the most appropriate thing would be to propose the most-voted candidate [Núñez FeIjóo] first, and [if he fails] the second most voted [Sánchez].”

Meanwhile, the idea that the king cannot propose Sánchez is not only being encouraged by the far right, which says he would be elected with the votes of the Catalan separatists. The digital media outlet El Debate, owned by the Catholic Association of Propagandists, published a recent article suggesting that the king should only propose Feijóo and, after his likely defeat, let the two months go by without asking Sánchez to give it a try. De la Quadra considers that approaches of this type are “completely unconstitutional” and undermine the political neutrality of the Crown.

Meanwhile, in La Zarzuela, the royal residence, nobody is anticipating events. A spokesperson noted that once the new parliament is in session, “the king will respect and comply with the procedures provided for in the Constitution, as he has always done.”

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