The dramatic onset of the COVID-19 pandemic, just like other large-scale emergencies, disrupted lives, businesses and communities worldwide as governments responded with extraordinary measures to battle the spread of the virus. While non-pharmaceutical interventions that limit mobility and isolate potentially infected people are designed to keep the pandemic at bay, they also clash with the cornerstone of democracy: regular, free and fair elections. The public discourse over holding massive, in-person elections amid the growing pandemic has been highly contentious in numerous countries.
The first COVID-19 occurrence was confirmed in Slovakia on 6 March 2020, less than a week after the last National Council elections, which were held on the last day of February 2020. If these elections were to be held even a week or two later, we would very possibly be confronted with the question of whether the elections should be postponed in order to protect public health.
This article discusses issues such as whether legislation in Slovakia allows for postponing elections at all, how Slovakia has managed to handle local by-elections, and how the pandemic has determined the direction of lawmaking for the next elections to be held this autumn. In order to demonstrate the legislative intentions of the government, we will explain when and how the special electoral law will be applied in Slovakia in the event of quarantine measures in the next elections, which Slovakia will soon be facing.
II. Covid-19 and Slovakia
The first occurrence of COVID-19 was confirmed in Slovakia on 6 March 2020, less than a week after the last Slovak National Council elections, which took place on the last day of February. If these elections were held even a week or two later, we would very likely be faced with the question of whether the elections should be postponed in the interests of protecting public health. But does the legal order of the Slovak Republic allow for the postponement of the elections to the National Council, as well as other elections to public authorities, if necessary because of the continuing pandemic?
As regards the conditions for calling and holding elections to the National Council, the basic rules are to be found in the first section of Title Five of the Constitution. The Constitution gives the calling of elections to the Chairman of the National Council. According to Article 73(1) of the Constitution, members of the National Council should be elected every four years. Article 30(2) adds in general terms that elections must be held at intervals not exceeding the regular election period. In other words, the term of the National Council should not be extended.
Regarding the exact time when elections should be called and when they should be held, the Constitution allows for legal regulation. The Chairman of the National Council has, therefore, in the light of the above-mentioned constitutional and statutory rules, a certain discretion as to when elections are held and when he or she calls them. In selecting a specific date, he must, ensure that the elections are held before the expiry of the previous parliamentary term and that he announces them as far in advance as is required by law.
Indeed, the Constitutional Law on State Security, which provides a kind of crisis version of the Constitution, at least as regards the regulation of fundamental rights and freedoms and the functioning of certain public authorities, provides that in times of crisis it is possible, but not necessary, „not to declare elections“ both to the National Council and to municipal and regional self-government bodies, as well as elections for the President of the Slovak Republic, „at regular electoral cycles“. However, it is important to note that the non-declaration of elections in regular electoral periods is only possible if war has been declared or a state of war has been declared. Both of these situations are related to an invasion of the Slovak Republic by a foreign power. Neither in the context a state of exception or a state of emergency does the Constitutional Law on State Security provide for the possibility of not calling elections.
III. Restriction of personal liberty as a barrier to the active right to vote
Although we have avoided the problems with the elections to the National Council of the Slovak Republic, the issues entailed by the public health emergency should have been raised before the municipal elections. The Act on the Conditions for the Implementation of the Right to Vote codified the legal regulation of different types of elections and the national referendum. It regulates elections to the National Council of the Slovak Republic, elections to the European Parliament, elections to the President of the Slovak Republic, elections to local government bodies). According to this law, an obstacle to the active right to vote was a statutory restriction of personal liberty for the protection of public health. Persons who were ordered home isolation were thus not able to exercise their right to vote, mobile voting box has been also rejected for these citizens. Finally, the municipal by-elections took place on 23 October 2021. and were accompanied by really strict anti-pandemic measures. For failure to comply with them, various sanctions were applicable. Voters who were ordered to be isolated at home were not allowed to vote neither in person nor through a mobile voting box. According to the Ministry of the Interior, the right to vote was impeded by restrictions on their personal liberty for reasons of public health. The district electoral commissions prepared a list of these voters.
IV. New elections, new legislation
As well as the statutory restriction of personal liberty for reasons of the protection of public health, the deprivation of legal competence and the execution of a prison sentence imposed for a particularly serious crime also constituted a barrier to the right to vote.
The last two barriers to the right to vote were cancelled on the basis of the decision of the Constitutional Court of the Slovak Republic on the incompatibility of the concerned provisions of the Electoral Act with the Constitution of the Slovak Republic and the relevant provisions of international treaties, thus creating the possibility for almost everyone to participate in elections and voting in referendums and thus increasing the legitimacy of elected organs.
The barrier, which is a restriction of personal liberty established by law for reasons of public health protection, was introduced into the legal system immediately after the political and social changes in March 1990 and for the elections to municipal self-government bodies by Slovak National Council Act No. 346/1990 Coll. of 28 August 1990. This barrier has been accepted by society for more than 30 years because it was generally applied to the delivery of portable ballot boxes to hospital-like establishments and the restriction applied mainly to infectious diseases wards of hospitals. Naturally, the law did not contemplate such a pandemic and such a widespread impact on the exercise of the active right to vote by the electorate. Whereas in the past the restriction of personal freedom for public health reasons applied to perhaps a few dozen usually hospitalised voters, nowadays the right to vote may be restricted to thousands of citizens, depending on how the pandemic situation continues to evolve as the 2022 municipal and regional elections approach.
IV.1 Special voting method
In accordance with the legal framework established under paragraph 4 of the Electoral Act, in the situation of a persistent COVID-19 pandemic and related quarantine measures for COVID-19 positive persons or persons who have come into close contact with COVID-19 positive persons, the right of these persons to exercise their right to vote by means of a special voting method is provided for. The subject of the draft law is the complex process of special voting in all its stages, in particular the conditions for the application of special voting, the creation of special election commissions, the creation of special lists of eligible voters on the basis of an application, the conduct of special voting, which will be ensured by seconded members of the special election commission in the place of the declared residence of the eligible voter, as well as the material, personnel and remuneration of the persons actively participating in the preparation and conduct of special voting.
The special voting procedure is only for persons who have been directed to be isolated or quarantined for public health reasons to protect them from COVID-19 and for persons living in the same household as them, at their request. In the light of the evolution of the epidemiological situation and the need to apply this special legal procedure under this Act shall apply only if, on 30 September 2022, persons positive for COVID-19 and persons in close contact with them are subject to isolation or quarantine by decision of the Office of Public Health of the Slovak Republic.
In view of the demanding character of the work and the certain risk due to direct contact with persons in isolation or quarantine, it is proposed that the members of the special commission sent with a special mobile voting box be remunerated in the total amount of EUR 200. In the light of the necessary transport by motor vehicle within the territory of the special constituency, which is usually made up of several municipalities, it is provided that the driver of the motor vehicle is to be regarded as a member of the electoral commission for the purposes of remuneration and is to be remunerated at the rate of EUR 170. The law also provides for a special voting method and procedures to ensure that anyone who has applied for a special voting method is allowed to exercise their right to vote, but also that the procedure for voting and for making entries in the special list of eligible voters inspires confidence in the legitimacy of the election among voters.
The law regulates the manner of creation of the special election commission, establishes the conditions of membership of the special election commission, as well as the activities of the members of the special election commission. It stipulates that the commission must have a minimum of eight members, and that two seconded members of the special election commission will always be in charge of voting in the special ballot box at the place of residence of the eligible voter. It is also necessary to take into account the situation that the epidemic will be on the wane and two members of the special electoral commission will be sufficient to ensure voting in all the municipalities falling within the special electoral commission's territorial district, or that it will not even be necessary for the members of the special electoral commission to start their work on election day, since none of the eligible voters residing in the special electoral district concerned will request a special portable ballot box. On the other hand, it may be necessary for all the eight members of the Commission in four pairs to provide for the voting of eligible voters under this Act on polling day because the epidemiological situation in the special constituency concerned will be unfavourable and a large number of eligible voters will request the special voting method.
One of the important provisions is the creation of a "backstop" in case quarantine measures are not applied en bloc and the procedure under this law is not used. The special voting procedure will only apply if quarantine measures are ordered by the public health authority in relation to COVID patients and their contacts by 30 September 2022 at the latest. This date has been set in conjunction with the Public Health Authority so that it will be clear in good time before the election whether or not the special voting method will be triggered. Thus, the Public Health Office will declare quarantine measures either until 30 September 2022 or after the elections have been held.
IV.2 Criticism of the special voting method
It takes a lot of money to run a successful election even under ordinary circumstances, however, these costs are increased more when there is additional staff at polling stations to provide masks, disinfectants, personal protection kits and means to reduce the number of voters in a particular polling station. These measures have increased the cost of elections in all countries including Slovakia. Usually, members of the Slovak electoral commission are paid an average of EUR 30: by contrast, the special law speaks of a sum of EUR 200. The risk of elections during a pandemic is the credibility of the elections. Free and fair elections must be ensured at all costs. To ensure the security of voters and those involved in elections, countries around the world have taken various steps, which have been: social distancing, personal protective equipment for polling station staff, veils mandatory for voters entering polling stations, mandatory use of hand sanitizers, sanitization of election materials/regular cleaning of polling station/ventilation of polling stations, temperature control, reduced number of people in polling stations, mandatory disposable gloves for voters, additional polling station staff to ensure compliance with health measures and social distancing. Similarly, if a member of the commission will be travelling to see an infected voter, increased care will be required. It will certainly be challenging for both - people and the public treasury.
V. Conclusion (Looking back, looking ahead)
Elections postponed due to the COVID-19 outbreak are spread across the world. It could be said that Slovakia was lucky in the parliamentary elections and the Covid-19 pandemic did not affect them in any way. We can - and probably do - take the by-elections as a lesson. We are, in theory, ready for the next local elections, which take place in a few short months' time. Prepared in terms of restricting human rights as little as possible and increasing the legitimacy of the election results as much as possible. The question is also if we are ready on the practical dimension.
We should use this crisis to improve electoral processes, particularly in terms of inclusion, to strengthen political consensus, but not through a shortened legislative process, which is proving to be a modern-day tool of the Slovak Government. We have the opportunity to review and update the laws relating to emergency measures, to improve the transparency and integrity of 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.