By Michel Verpeaux, Professor Emeritus of the Panthéon-Sorbonne University
Where does this rule come from?
Article L. 262 of the electoral code, now applicable to all municipalities, including those with less than 1,000 inhabitants since the law of May 21, 2025, provides that “In the event of an equality of votes between the lists arriving at the top, these seats are awarded to the list whose candidates have the highest average age.” This rule is not new and it dates back at least to texts from the 19th century. It is true that the latter favored and respected the elders, who were supposed to express wisdom as evidenced by the minimum age to be eligible for the Upper House of the different regimes which succeeded one another, Restoration, Second Empire or Third Republic. This is how the law of August 10, 1871 relating to general councils had provided in its article 14 (2°) that “if several candidates obtain the same number of votes, the election is won by the oldest candidate”. The same rule was laid down by article 30 of the law of April 5, 1884 on municipal organization. It is therefore easy to be ironic and to believe that this rule improperly equates old age and wisdom.
Currently, the age benefit rule exists for all local elections. Article L. 193 of the electoral code applicable to departmental elections provides that, in the event of a tie, it is the oldest pair which must be declared elected. Article L. 338 of the same code proclaims the same rule for the benefit of the list with the highest average age. Concerning local executive bodies, the rule is identical for the election of mayors because, in the event of a tie in the third round for which the relative majority is only required, the oldest candidate is declared elected. The rule also applies to the election of deputies which takes place by lists and the candidates from the list with the highest average age are elected.
Does this rule comply with a constitutional requirement?
The question of the “age bonus” has not been the subject of much litigation. We must set aside the jurisprudence of the Constitutional Council ruling on the law relating to the method of election of regional councilors and councilors to the Corsican Assembly. In 1999, she wanted to reverse the previous rule applicable to these elections by favoring the list made up of the youngest people. The senators from the right and the center who referred the matter to the Council considered that the rule of benefiting from the oldest age of the candidates, in the event of a tie of votes, was among the fundamental principles recognized by the laws of the Republic. The referral invoked, under the laws of the Republic, the aforementioned laws of August 10, 1871 and April 5, 1884. They even invoked the Constitution of June 24, 1793 which stated regarding the election of deputies, that “In the event of a tie, the oldest has preference, either to be tossed around or to be elected. In case of equality of age, fate decides.” According to the senators, no subsequent legislation had called into question this rule which could be established as a “fundamental principle”, due to the non-interruption of its application. The Constitutional Council, however, judged that such a principle could not be retained as having constitutional value, because the rule invoked was not of such importance that it could be considered as one of the “fundamental principles”. The law promulgated on January 19, 1999 therefore provided that “In the event of equality of votes between the lists arriving at the top, these seats are allocated to the list whose candidates have the lowest average age.” “When the law of April 11, 2003, also relating to the election of regional councilors, modified the 1999 law on this point, by replacing the word “minus” with the word plus in article L. 338 of the electoral code, which reestablished the age benefit rule, the Constitutional Council did not judge it useful to automatically raise the unconstitutionality of this rule. The oldest or the youngest is indifferent in the eyes of the constituent as it is expressed through the mouth of the Council.
What should we replace the benefit of age rule with?
It is certain that there is something unsatisfactory if an electoral process ends, in the event of a tie, by the application of a rule based solely on the age of the candidates. This solution leads to the fact that the list having lost the election due to this rule is not legitimate, and behind them, the voters who voted for it and, in the other direction, that the list which came first does not deserve to have won the election. These assessments and reactions would, however, be of the same nature if the legislative rule were modified to benefit the youngest candidates. Both of these rules have identical but reversed advantages and disadvantages.
The discrimination would be even greater and undoubtedly more dangerous on a constitutional level if, as some might propose, the seniority of residence in the municipality was taken into account. Would then be elected not the oldest of the candidates but those who “know best” the territorial community because they have lived there longer than the others.
It could also be considered to merge the two lists present in the second round, in order to form a single municipal council. In addition to the possible political difficulties arising from the forced marriage of two teams, the question of the appointment of the mayor and deputies and that of the choice of candidates who would have to be removed from list A to bring in candidates from list B would remain to be resolved.
Concerning the solution of drawing lots, which may appear to be the easiest solution to imagine, it presents the same unfair character in its brutality and it is its implementation which could be delicate: who would be the authority managing the operation (the prefect?), who would control it?
The most logical solution would be to resort to a new election in two rounds, as after the dissolution of the deliberative assembly by presidential decree or after the cancellation of the electoral operations by the judge. Of course, the risk could be that voters do not change their minds between the two electoral operations, if only out of respect for their initial vote.
Ultimately, doesn’t the solution of the age bonus have the virtue of simplicity and… wisdom?
