Gál KristófGeneral remarks, the importance of the issue
“While we are postponing, life speeds by.” - Lucius Annaeus Seneca
Covid-19’s effect on individuals’ fundamental rights cannot simply be overstated. This also concerns one of the most influential rights a citizen has and that is the right to vote. At the beginning of the pandemic, it was unclear to us as to how the incumbent crisis managing governments will undertake the task of organizing elections (thus potentially getting re-elected), as limiting the epidemiological risk was at the forefront of all governmental agendas around the world. It sure was a dilemma as nationwide one-day elections are substantial social events, and personal contact can hardly be eliminated, this results in the virus spreading faster than prior the elections, but on the other hand political power under the law is neither unlimited in time nor in substance, therefore democratic societies hold elections at predetermined intervals prescribed by law. Hungarian lawyer, political scientist and former president of the Constitutional Court Mihály Bihari holds that: "The people have sovereignty because the source of all state power is the electorate."(pp 2.) This obligation to hold elections resulted in occasions in which the external circumstances either did not allow for the vote to go ahead, thus it had to be postponed, or held amid the pandemic. International Idea Institute provides a wide range of statistics about Covid-19 and election postponement, their work serves as a cornerstone for this blogpost.
The scope of this blogpost
In this blogpost I will attempt to enumerate the postponement measures taken by Visegrád Group states with a perspective of the neighbouring countries and I will also attempt to lay down some general principles as I compare V4 countries’ practices to the ones of the rest of the world.
As a general remark we can say that an overwhelming majority of these elections were postponed in good faith, keeping the protection of public health and safety as a main priority. As usual, there are exceptions that prove the rule as one does not have to be a conspiracy theorist to notice that a few postponements also had ulterior motives, like the one in Hong Kong SAR of People's Republic of China (hereinafter: Hong Kong) did. Of course, this remark would be effectively meaningless had the communist dictatorship not signed the Sino-British Joint Declaration agreeing to the principle of "one country, two systems."
Postponed elections in V4 states
Elections postponed due to the pandemic also include several voting occasions in the V4 Cooperation, namely:
- The 2020 presidential elections in Poland,
- By-elections of the Czech Senate (the upper house of Czech Parliament) in Teplice, Czech Republic in 2020,
- Elections for local self-governing bodies were postponed in Slovakia, also in 2020.
- Even though it is not present in Idea Institute’s database, Hungary also postponed more than a 100 local elections as it was not permitted to hold local elections and local referenda from 4 November 2020 to 10 April 2022. (More about Hungarian local governance in this contribution of mine.)
The situation in Slovakia
Fellow student contributor Dominika Kuchárová provides a detailed analysis on the legal and constitutional issues Slovakia faced in regulating electoral issues due to the pandemic. As I have mentioned above, elections for local self-governing bodies were postponed in Slovakia, but they were only postponed once and were successfully held in October 2020, meaning no cause for concern. “Luckily” the parliamentary elections were held in February 2020 just before the arrival of the pandemic in March 2020, so no general election had to be held during the Covid-crisis, but Kuchárová rightfully notes that this would not have been the case, had the date for the elections been a few weeks later instead of the original one. Of course from a purely political point of view it is a bit less fortunate, as the new government already had to turn its full focus towards an issue not present in the campaign leading up to the elections (Covid-19 was not present in the biggest party, OĽaNO’s manifesto as it was published in late 2019 and the first Covid positive patient was diagnosed on 6 March 2020), thus somewhat holding back the priorities set out in the manifestos of the members of the governing coalition. Local elections are expected to be held amid the pandemic on 29 October 2022, for the first time simultaneously. For the detailed rules of the special voting procedure for Covid-19 affected persons see this blogpost by Dominika Kuchárová.
State of affairs in Czech Republic
As for the Czech Republic or also officially, Czechia, no regular parliamentary or presidential elections were scheduled to be held during the most virulent phase of the Covid-19 pandemic, however Chamber of Deputies elections were held in October 2021, and unlike the formerly discussed Slovakian one, this election was widely influenced by the pandemic, making the Czech Government’s response to the virus a campaign tool for the opposition, who criticised the Government for the measures taken. The elections saw the Babiš Government lose power, even though Babiš’ party, ANO remained the largest party in terms of seats. Special voting laws were also introduced which allowed alternative voting methods for citizens in order for them to be able to exercise their constitutional rights. These methods included: the possibility of drive-in voting, voting in a portable ballot that was brought to the voter by officials and also another option was voting at a residential facility.
There was however a Czech election in 2020 that was indeed postponed due to the pandemic, this of course is not hugely surprising as the spring and summer of 2020 boasts the highest amount of Covid-influenced elections delayed with over 50 postponed elections. A by-election for the Teplice Senate seat was meant to be held on the 27th and 28th of March 2020 after the death of incumbent senator Jaroslav Kubera in January 2020. Czech laws state that a in this case a by-election should follow no later than 90 days following the date a seat becomes vacant, however this meant that this by-election would have had to go ahead in the most raging phase of the pandemic, therefore the Czech Government decided to intervene.
In a Government decision made on the ides of March 2020 the Government suspended the elections, relying on a mandate from the Crisis Law. This decision faced a legal challenge in front of the courts and on the 1st of April 2020 the Supreme Administrative Court of the Czech Republic considered the legality and the basis of the regulation and held that the decision is to be null and void as a decision of this kind cannot be undertaken by the Government, not even under the provisions of the Crisis Law, the postponement and suspension of elections continues to remain in the competence of Parliament, not the Government. This is based on paragraph 10 of the Constitutional Law on the Security of the Czech Republic. The Court noted that: “Although nothing suggest(s) that the Government would not have acted bona fide (…) it is not possible (…) to give up fundamental rule established by the constitutional legal act exactly for such exceptional situations that we are facing now. It is necessary to protect not only health, lives and economy, but also the democratic constitutional Rechtsstaat.” It is important to note that the Supreme Administrative Court did not accuse the Government of abuse of power, as it did not ever question the Government’s motives, stating that it acted bona fide, but not even this crisis can provide sufficient legal basis to sway these powers away from Parliament, thus preserving rule of law / Rechtsstaatlichkeit. It is also worth mentioning that the Court did not have a problem with the suspension of the election process itself, merely the insufficient legal basis resulted in the Govt. decision being null and void. A special act was adopted on 17 April 2020 which extended the terms for holding by-elections to the Senate and eventually a new date was set to for 5-6 June (first round) and 12-13 June (second round) by the President. This by election -too- was only postponed once as the new date allowed for the vote to go ahead and the vacancy was successfully filled. It must be noted that the turnout was exceptionally low, only 15,79% in the first and even worse, 9,26% in the second round. Venice Commission’s Observatory page on emergency situations put these figures into context, alleging “which (the low turnout) however is not unusual for the Senate elections.” This is an important piece of information, but this election was not an outlier as it played into a tendency of a lower than usual turnouts achieved worldwide, a common phenomenon which I will clarify later on.
The presidential election in Poland
Probably the most high-profile postponed election out of all V4 states took place in Poland in 2020. Originally scheduled for 10 May 2020, the presidential election looked a clean sweep for the incumbent Andrzej Duda, who was doing very well in the polls leading up to election day, a poll carried out by pollster Social Changes in May 2020 had the president on 55%, which would have meant a single-round election. But as May approached more and more voices spoke up in favour of postponing the election, as Covid-19 also reached Poland as well and strict rules were put in place. Restrictions initially prohibited, among other things, movement for non-essential reasons, the use of public spaces and group assemblies, including political meetings. The governing coalition had an interest in Duda’s victory, therefore they did everything possible to ensure the election going ahead as planned. Multiple exceptional contributions have been made about the specificities of the electoral process, but due to a lack of space as a general comment it can be said that the lower house of Polish Parliament, the Sejm wanted the election to go ahead, it would have been fully a postal vote, with the Polish Post responsible for the personal registry and a minister would have been responsible for printing the ballot papers instead of the electoral body Polish National Electoral Commission. The vote did not end up going ahead as polling stations did not open on election day, a new date was set to 28 June (first round) and 12 July (second round), with both in-person voting and postal voting. There was a huge change in the electoral process, as new candidates could be registered, which resulted in the biggest opposition party, Civic Platform replacing their candidate Małgorzata Kidawa-Błońska for Rafał Trzaskowski, a former MEP, who was doing incomparably better in the polls. The elections were successfully held and incumbent president Duda was able to narrowly secure a win, facing a candidate that was not even present at the original date in May. OSCE’s report found that the election “was conducted in a professional manner, despite the legal uncertainty of the electoral process.”
The never-ending state of emergency in Hungary
As the last general election before this year was held in April 2018, a general election was successfully held in April 2022 amid the still present pandemic and the raging war in the neighbouring Ukraine. Only a handful of protective measures were in place and the healthcare system was also able to handle the aftermath as there was not a massive spike in cases following the election. The same optimism cannot be shared about local democracy, which suffered substantial blows due to the Government’s response to the pandemic. Section 6 (2) of the Act XII of 2020 on the containment of coronavirus laid down that no by-elections may be called until the day following the end of the period of state of danger; the elections already called shall not be held. This meant that no by-elections were held in Hungary between 4 November 2020 and 8 May 2022. This was seriously detrimental as there were local governments which were left without a permanent incumbent mayor, or local councillors were simply obligated to carry on against their will as the dissolution of the council could only take effect after the end of state of emergency. Unfortunately, the length of the state of emergency is not set out in the Fundamental Law, which allows for a wide margin of appreciation for the Government to call it and maintain it, and the Constitutional Court -even if it wanted to- could not really challenge it either.
Of course, if we look back to the ruling of the Supreme Administrative Court of the Czech Republic and the appearance of the principle of Rechstaat in their ruling it could potentially be a valid question whether the prohibition on elections and the maintenance of state of emergency in a situation where it was no longer needed is in compliance with the principles of rule of law. Another interesting thought remains how the regulations would have been formulated if they had actually faced a strong challenge from the Constitutional Court of Hungary, in one instance for example the Government sanctioned individuals who falsified immunity certificates, the act was punishable with a prison sentence of up to 5(!) years, but it was not adopted by Parliament, but it was introduced in governmental decree. The Constitutional Court terminated its proceedings based on a constitutional complaint for a declaration of unconstitutionality and for annulment, as by the time the Constitutional Court received the case to deliberate on the constitutionality of the provisions the decree, it was no longer in force. President of the Constitutional Court Tamás Sulyok holds however that: “The content of the nullum crimen sine lege principle, as derived from Article 54 (1) of the Fundamental Law, is, in my opinion cannot, in a situation of danger, be limited in such a way that the requirement derogates from the level of laws in the case of substantive criminal law rules.” This is diplomatic language for stating that the Government violated the principle of nullum crimen sine lege and therefore the decree was unconstitutional.
I am not in possession of any arguments that could explain the one and a half year long general prohibition on local by-elections, especially considering that in the meantime the country successfully held the UEFA Euro 2020 event and there were multiple days in summer 2021 (namely 25th of July) when no cases of Covid infections were reported.
Regional outlook
Neighbouring countries of V4 states mostly had similar practice: General elections were delayed in Serbia in April 2020 to June 2020, whereas local elections were postponed in Romania also in 2020, from June to late September. An early general election was called in July 2020 in Croatia due to the pandemic, which resulted in the lowest ever turnout since 1990. In Austria local elections in Voralberg and Styria were pushed back to the pandemic, both in early 2020. Local elections in Hessen and Saxony were postponed in Germany also in 2020.
Rest of the world, final thoughts
It is visible from International Idea Institute’s data that most elections were postponed in early to mid 2020, when governments did not yet have means to contain the spread of the virus. This was the same for analysed elections in V4 states. It is also a general rule of thumb that almost all elections were only delayed once and whereas there are obvious outliers, most governments sought to successfully organise elections as soon as possible, thus acting in good faith and not abusing their power. All V4 delayed elections were only postponed once. As a counterpoint to this from the other side of the world, originally scheduled on 6 September 2020 the Hong Kong legislative elections were only held one and a half year later, killing the momentum of the pro-democracy opposition who were set to win it ,later striking down on the pro-democracy alliance altogether by outlawing them.
Finally, International Idea Institute found that turnout in elections held in 2019-2020 (this includes postponed elections) in comparison with 2008 to 2019 declined in 64% of inspected countries including Croatia, Serbia, Romania, whereas an increase was found in 36% of countries including Visegrad Group members Poland, Czechia and Slovakia, somewhat going against the stream.
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International Visegrad Fund project no. 22120065. (Democracy in the shadow of the pandemic in the V4 countries).
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The views expressed above belong to the author and do not necessarily represent the views of the Centre for Social Sciences.