Why can't the Grand Duke vote as required by law?

The communal elections in Luxembourg are a good opportunity to discuss the voting rights of the Grand Duke of Luxembourg and of the Hereditary Grand Duke of Luxembourg Prince Guillaume. 

In a constitutional monarchy, how does the sovereign exercise his right to vote?

Luxemburger Wort spoke to Luc Heuschling, Professor of Constitutional and Administrative Law at the University of Luxembourg to find out the answer.

Heuschling is also the author of the book "Le Citoyen Monarque. Réflexions sur le grand-duc, la famille grand-ducale et le droit de vote " (Monarch and citizen. Reflections on the Grand Duke, the Grand Ducal Family and the right to vote" published in 2013.

On Sunday the Hereditary Grand Duke of Luxembourg Guillaume and the Hereditary Grand Duchess of Luxembourg Stéphanie exercised their voting rights as citizens of Luxembourg.

In your work, you talk about the notion of "passive vote" when it comes to the Hereditary Grand Duke of Luxembourg Prince Guillaume. What does that mean concretely?

"Active" voting rights mean the right to vote, whereas "passive" voting rights imply the right to stand for election and be elected.

 Does that mean that Prince Guillaume should not vote?   

According to current practice and as per the law, Guillaume de Nassau is registered on the electoral register and has the right and even the obligation to vote.  

On the other hand, the question of whether he could run as a candidate for a political election at a local, national or European level is not settled.

Based on my analysis, the heir or heiress to the throne enjoys the "active" right to vote, but doesn't have the "passive" right to stand an election, as per the "neutrality" obligation that applies to the incumbent Head of State and by extension also to the heir to the throne of Luxembourg.

Does this rule apply to Princess Stéphanie?

In the matter of "active" voting rights,  Stéphanie of Nassau is in the same position as her spouse.  

Nonetheless, in my view, the requirement of "neutrality" applies only to the current Head of State and to the Hereditary Grand Duke.

Stéphanie of Nassau is neither one nor the other. She is the wife of the Hereditary Grand Duke and therefore, in my opinion, enjoys both the "active" and "passive" rights to vote, just like any other Luxembourg citizen.

What about Grand Duke Henri? He has the right to vote only in theory and not in practice, is that right?  

Yes. Based on my analysis (which contradicts the practice established in 1945 concerning the inclusion of members of the Grand-Ducal family on the electoral register), Henri de Nassau has the right to be  on the electoral register. By not registering him ex officio on the lists, the administration commits an illegality/ unconstitutionality.

For, according to the electoral law, the administration must automatically register any person who meets the criteria to be a voter. Grand Duke Henri fulfils all the conditions laid out in the Constitution. 

No article in the Constitution deprives the Head of State of the right to vote.

On the other hand, I consider that the constitutional requirement to be "neutral / above parties" (article 33) is incompatible with the passive voting right of the Head of State and of the future Head of State. 

Nevertheless, if the monarch or future monarch publicly is publicly associated with a party, the appearance of neutrality is no longer kept. I speak of "appearance" of neutrality because no one forbids the Head of State to have moral and political ideas.  

And Grand Duke Henri requested his right to vote in 2004...

He indeed asked for his right to vote in 2004. In his Christmas speech that year, Henri of Nassau claimed his right to participate in the referendum on the European Constitution, which was quire revolutionary.

This can be explained by this contemporary tendency to perceive the monarch as a person.

The person holding the throne is increasingly requesting to be considered not only as the holder of a public mandate, but mainly as a private person with rights - to marry as desired, to preserve his freedom of conscience, to vote and so on.

It's important to note that the monarch's (active) right to vote is totally accepted in Spain. The Spanish has the right to vote and will actually exercise his right, at least in referendums. 

In Sweden, the King's active voting right is also accepted.

What about the Grand Duchesse Maria Teresa?

Maria Teresa of Nassau is no longer included on the electoral register since her husband ascended to the throne.  

This is completely illegal/unconstitutional because she fulfils all the conditions (nationality, age, enjoyment of civil rights, absence of criminal conviction).

Back in 1945, Charlotte's spouse, Felix de Bourbon-Parme, was on the electoral lists and exercised his right to vote until his death.

It seems that the Luxembourg administration treats differently a monarch's spouse based on gender. It was also the case of Josephine-Charlotte who couldn't vote.

This is, of course, contrary to the prohibition of any discrimination on the grounds of sex/gender as laid down in Article 11 of the Constitution.

Can Grand Duke Jean vote since his abdication in 2000?

 Yes. The administration has reinstated it ex officio because he no longer exercises the function of head of state.

For reasons of protocol, he retains the title of "Grand Duke" but he no longer holds the office of Head of State. He is therefore a private person, no different from other private persons.

It should be noted that, since 2000, his wife Joséphine-Charlotte has also been able to reclaim her right to vote, a right she should have never lost according to my interpretation of the law.

(Reporting by Christelle Brucker, translated from French by Roxana Mironescu)