Protecting Political Rights During the COVID-19 Pandemic: The Emergence of Strict Scrutiny in Spain

Abstract

AbstractThe states of alarm declared in Spain to address the COVID-19 pandemic have restricted multiple fundamental rights. While such restrictive states of alarm are not new in our constitutional history since 1978, the scale of the restrictions and the nature of rights affected is unprecedented, as some of them, especially political rights, have never been the focus of the previous states of alarms declared in the country. This chapter explores how the state of alarm relates to the limitation of the right to political participation and to the Spanish judicial response in light of the challenge posed by the pandemic. It examines the legal basis for the restrictions on political rights under the state of alarm, the decisions taken by Spanish public authorities limiting those rights during the pandemic and the judicial response to the measures. Surprisingly, the customary deference of the courts during emergencies has vanished. The Spanish judiciary has actively protected political rights and deployed a model of judicial review that formally and substantially stresses the protection of political rights even in times of crisis.KeywordsSpain, political rightsCOVID-19 pandemicState of alarmJudicial controlStrict scrutiny