The covid-19 pandemic is a topic that has been with us for more than two years and has left an indelible mark on our lives in all areas, including public discourse. It is no different in constitutional and electoral law, where in an unprecedented situation, most of the governments have had to deal with the electoral process in such a way as to uphold the principles of electoral law while at the same time protecting public health as much as possible.
In my contribution I would like to inform the readers about the changes in the electoral process for the elections to the Chamber of Deputies of the Czech Republic’s Parliament in 2021, which the then Government of the Czech Republic (hereinafter referred to as the "Government") introduced or prepared by legislation in case the situation with the covid-19 pandemic would become unbearably worse. And last, but not least, I would like to mention the ruling of the Constitutional Court, which, a few months before the elections, annulled several key legal provisions in Act No 247/1995 Coll., on elections to the Parliament of the Czech Republic. The Chamber of Deputies and the Senate thus had to agree on a new form of the Electoral Act in a time crunch. Although the last point mentioned does not concern the covid-19 disease, it was essential for the elections to the Chamber of Deputies, so I think it is worthy to mention it here.
2. Possibility to postpone the elections and the election period by up to six months
February 2021 was truly merciless for the elections to the Chamber of Deputies. First, the Constitutional Court issued a ruling that annulled several key legal provisions in the Electoral Act (see below), and almost fourteen days later the government approved an amendment to the Constitutional Act No. 110/1998 Coll., on the security of the Czech Republic, which included the possibility of postponing the elections by up to six months. However, the amendment to the constitutional law remained only with the organising committee and thus did not even make it to the first reading.
The amendment, which was intended to allow the postponement of the elections for up to six months, found support in Article 10 of Constitutional Act No. 110/1998 Coll. In its current version, i.e. the version prior to the amendment, it was possible to extend the time limits by law during a state of emergency, a state of national emergency or a state of war, provided that it was not possible to hold elections on the territory of the Czech Republic within the time limits laid down for the election period, but for a maximum of six months.
The amendment approved by the Government provides for the possibility of repeated extensions of the election period and deadlines for holding elections. This is where the problem arises with the newly added possibility of extending the election period. If we take into account that the duration of the state of emergency depends on the will of the Chamber of Deputies, and the extension of the election period would depend on the law under this amendment, the system of checks and balances would be distorted. Not only could the Chamber of Deputies, or rather the government majority in it, extend the state of emergency at will and, by law, which requires a simple majority in the Chamber of Deputies or, if the Senate overrides a rejection of the bill, a supermajority of all deputies, repeatedly extend both the term of office and the act of election itself. Theoretically, this could lead to indefinite extensions of the electoral term without an effective check. This would seriously undermine the rule of law.
The big unknown is also the declaration of a state of emergency in individual regions. If, for example, a state of emergency were declared in the Central Bohemian Region, according to the explanatory memorandum, this would mean that it would not be possible to hold elections in individual regions, but only overall.
3. Alternative voting methods for citizens with covid-19
According to Article 18(3) of Act No.1/1993 Coll., the Constitution of the Czech Republic (hereinafter referred to as the “Constitution”), every citizen who has reached the age of 18 has the right to vote, and according to paragraph 1 of the same article, elections to the Chamber of Deputies must be held by secret ballot on the basis of universal, equal and direct suffrage. If the right to vote were denied to the citizens infected with the covid-19 disease (more than 10,000 citizens at the time of the elections), it would be unconstitutional, since the primary part of Article 18(1) of the Constitution, namely the universality of elections, would not be respected in the first place.
In the light of these circumstances, on 14 June 2021, the Government, on the proposal of the Minister of the Interior, approved measures concerning, in particular, citizens with the infectious disease covid-19, thanks to which the universality of the electoral process was preserved, on the basis of Act No. 296/2021 Coll., on special methods of voting in the elections to the Chamber of Deputies of the Parliament of the Czech Republic in 2021. In particular, it was the so-called drive-in voting and portable ballot boxes.
It should also be noted that similar measures were issued by the Government in 2020, when the regional and the Senate elections were held, by Act No. 350/2020 Coll., on special methods of voting in the 2020 regional and Senate elections.
3a. Drive-in or voting at the polling station
One of the alternative methods was voting at a polling station, which was intended for voters who had a permanent residential address in the territory for which the polling station was established, or for voters who had been issued a voter ID card. After all, this is also the case for normal voting.
The condition was that there was at least 1 polling station for each district in the electoral region, and there were 82 in total (there are 76 districts in the Czech Republic). For each polling station, the election process was managed by an election commission under the supervision of the Police of the Czech Republic.
Voting at the polling station was open from 8am to 5pm on the second day before the first day of the elections. However, it was a requirement that voting could only be done from a motor vehicle. However, it was possible for more than one voter to vote from the same car.
Compared to the 2020 regional and Senate elections, there was less interest in the possibility of voting from a car, primarily due to fewer voters in quarantine. While in 2020 there were around 20,000 voters, in 2021 there were half as many, around 10,000. However, almost 25% of the voters who were quarantined at the time of the elections used this alternative option, both in 2020 and 2021.
3b. Voting at a residential facility
Another voting option for citizens infected with covid-19 disease was to vote at a residential facility. If a residential facility was closed due to covid-19 infection, people who used or provided services at the facility could vote there.
Residents could vote on a total of two days, the day before the election from 8am to 10pm and on the day of the election from 8am to 6pm. The voting process was then similar to normal voting. The voter received an official envelope from the Commission, in which he or she put the party for which he or she wished to vote.
3c. Voting in a special portable ballot box
When a voter cannot get to the ballot box, the ballot box comes to the voter. The last alternative method was to vote in a special transportable ballot box. However, this is not a completely new method of voting, as according to Article 19(7) of Act No. 247/1995 Coll., on elections to the Parliament of the Czech Republic, a voter may, for serious reasons, request to vote outside the polling station. In such a case, a two-member commission comes with a portable ballot box. However, in the elections to the Chamber of Deputies in 2021, the possibility of voting by portable ballot box was enshrined in the aforementioned Act No. 296/2021 Coll., and it was universally available to all those who requested and were entitled to this method of voting, i.e. voters infected with the covid-19 disease.
If the voter wanted to use this option, he or she had to request the relevant regional authority to provide this method of voting. The voting itself then took place on the first day of the election from 8 a.m. to 2 p.m. and on the second day of the election from 8 a.m. to 2 p.m. Voters were given 10 minutes in which to complete the act of voting. If voters did not arrive by that time to vote, they were deemed to have refused their right to vote.
4. Constitutional Court’s ruling
The elections to the Chamber of Deputies in the Czech Republic in 2021 were not only affected by the global pandemic covid-19, but also by the Constitutional Court's ruling of 3 February 2021, which annulled several key legal provisions in Act No. 247/1995 Coll., on elections to the Parliament of the Czech Republic. Both chambers of the Parliament of the Czech Republic had to find an agreement on the new legal regulation of elections to the Chamber of Deputies a few months before they were held.
4a. The petitioner's proposal
The proposal was submitted by a group of 21 senators (hereinafter referred to as the "petitioner") in December 2017. The Petitioner argued against two fundamental components of the electoral system for the Chamber of Deputies - the D'Hondt formula and its application to fourteen electoral districts of varying size and the constitutionality of the various closure clauses.
In the first part of the contested provisions, the petitioner challenged the system of converting votes into seats, namely the combination of the electoral region system with the D'Hondt method of converting votes. The petitioner considers that this arrangement is unconstitutional in that it infringes Article 18(1) of the Constitution of the Czech Republic. Given that 8 or fewer seats would be distributed in a given region, parties with a 5 % share would almost certainly have no seats. The petitioner also gave the example of the STAN movement needing 43 693 votes (5.2%) per mandate in 2017, whereas the ANO movement needed 19 232 (29.6%) per mandate.
In the second part, the petitioner challenged the so-called additive quorum. According to the challenged Section 49(1) of the Act on Elections to the Parliament of the Czech Republic, only those parties which exceeded the 5% threshold at the national level could obtain a mandate. The threshold was 10% for two-member coalitions, 15% for three-member coalitions and 20% for multi-member coalitions. The petitioner considered that this arrangement discouraged cooperation between large political entities and small ones. It was added that only Hungary and Romania had similarly high additive quorums.
4b. Decision of the Constitutional Court
From December 2017 until April 2018, a potential lis pendens bar prevented a hearing. Subsequently, the Constitutional Court was waiting to see whether any proposed amendments to the Electoral Act would be discussed in the Chamber of Deputies. However, this did not happen and the Constitutional Court proceeded to review the proposal.
The Constitutional Court finds support for the ruling Pl. ÚS 44/17 in Article 18(1) of the Constitution, according to which elections to the Chamber of Deputies must be held by secret ballot on the basis of universal, equal and direct suffrage, in accordance with the principles of proportional representation. It also refers, in particular, to the ruling Pl. ÚS 42/2000, in which it considered the consequences of the combination of mechanisms in the Electoral Law to be problematic.
First of all, the Constitutional Court focused on the principle of proportional representation, which was interpreted as a separate constitutional concept based on the sovereignty of the people and representative democracy. This principle must apply both to the process of allocating seats and to the national result of a given entity. However, the Constitutional Court acknowledges that the proportionality of the system need not be absolute. As an example, it cites the 5% threshold for electoral gains, thanks to which the Chamber of Deputies' ability to act is ensured. However, this was not the case of the then system. The Constitutional Court found that the proportional system was being violated and thus annulled the conversion of votes into seats, as the principle that the national level of vote gain corresponds to the number of seats won was violated.
The division into fourteen electoral districts remained an exception for the Constitutional Court, despite the fact that this is one of the disadvantages. The reason it gave was that there was a need to maintain a fixed point in the electoral system and that the existence of fourteen electoral regions went beyond the importance of the election itself. However, the problem occurs when combined with D'Hondt's single electoral formula. This leaves us in a situation where the threshold for a political entity to win a mandate varies between different sized districts.
Next, the Constitutional Court dealt with the election clause. The problem in the additive clauses was the possible proportion of forfeited votes in the total number of votes cast. On a theoretical level, an electoral coalition of four parties with a 19.99% gain would not be represented, but individual entities with support above 5% would. This would leave to erasing a certain opinion group, which could cause a problem with the legitimacy of the elections. However, as I have already mentioned, the 5% clause is not unconstitutional, as it ensures the Chamber of Deputies' ability to act.
4c. Dissenting opinion
A dissenting opinion was also filed against the ruling, criticizing not only the long period of time between the filing of the motion and the final decision of the Constitutional Court, but also the atypical nature of the entire ruling, as the final proposal was submitted only a few days before the final vote. Last but not least, it did not agree that the provisions challenged by the appellant were unconstitutional. The judges who submitted the dissenting opinion believe that according to section 35(1) of the Constitutional Court Act, the proposal should have been dismissed for inadmissibility.
The covid-19 pandemic significantly affected the electoral process in last year's parliamentary elections. Together with other factors (the Constitutional Court’s ruling or the amendment of the law), it presented the government and the legislators with a huge challenge, in which the Czech Republic as such has stood up to. However, if we ignore the amendment to Constitutional Act No 110/1998 Coll., which, if passed, would be a defeat for all democratic states, since, as I have already mentioned, the principles of democracy and the rule of law would be violated.
On the other hand, this situation has shown us the possibilities of adjusting the electoral process as a result of the covid-19 pandemic, and just as in other areas of life, some measures can be inspiring for the electoral process and could thus be applied even in an ordinary situation. An example is the so-called drive-in voting. This would be a more convenient way of voting for many citizens and, in theory, could increase voter turnout (65.43% in the 2021 elections).
International Visegrad Fund project no. 22120065. (Democracy in the shadow of the pandemic in the V4 countries).
The views expressed above belong to the author and do not necessarily represent the views of the Centre for Social Sciences.