As part of the international research project funded by the International Visegrad Fund, an English-language roundtable on hybrid format from the impact of COVID-19 pandemic on Czech elections and electoral law was organized on 29 June 2022 by doctor Jan Grinc and associate professor Marek Antoš at Charles University, Faculty of Law, Prague. Experts in the field of constitutional law such as prof. Jan Wintr, associate professor Jan Kudrna, doctor Ondřej Preuss attended the roundtable as well as the Director of the Department of Elections at the Ministry of the Interior Tomáš Jírovec, who presented insight from the Department of Elections and other experts.
The round table was divided into two separate blocks. In the first part postponing elections during the pandemic was discussed, while the second part aimed special methods of voting learned lessons from “pandemic elections”, and concrete recommendations were also summarized. Firstly, organizers presented legal argumentation for problematic aspects which was followed by a debate with experts. This report summarizes the main features of the discussion took place at the roundtable.
As for starters, I would enumerate the elections held from first signs of the pandemic in the Czech Republic. The pandemic affects Czechia from 1st March 2020 and from that date until today, four elections were held. Supplementary elections to the Senate of the Parliament of the Czech Republic took place on 5-6 June 2020; regular elections to the Senate (second parliamentary chamber) of the Czech Republic was scheduled to 2-3 October 2020; with the same schedule, regional elections were held; and finally, in October 2021 elections to the Chambers of Deputies were also organized. During the roundtable, the impact of COVID-19 pandemic on those and the forthcoming elections will be discussed.
The first question that was contested, whether elections should be postponed during the pandemic. If so, how shall one interpret the constitutional conditions and limits of such a step?
From a purely legal point of view, postponing of elections should be the last resort, when the public health situation justifies severe restrictions. Five main circumstances must be taken into account: 1) the intensity of the disease; 2) the risk of infection especially during the electoral process; 3) the predictability of the development about the date of the elections; 4) the state's ability to provide remedies; and 5) the implemented measures concerning the exercise of right to vote.
Regarding the first three questions, postponement has been more appropriate, when the election was held at the beginning of the pandemic rather than at a later stage, when the risk factors are already better analysed and might be reduced significantly by convenient measures. Elections may be postponed only by law, any other legal form is not acceptable for this purpose. The repeated postponement of elections in the Czech Republic has been based on the interpretation of Article 10 of the Constitutional Act No. 110/1998 on the Security of the Czech Republic (hereinafter „Security law“). However, in the debate, most of the constitutional lawyers agreed that art. 10 does not allow elections to be extended more than once, for a maximum of 6 months.
For the fourth question. The constitutional regulation of postponing elections does not need to be revised, but it would be possible to make it more precise just via the means of interpretation. Currently, if the elections do not take place without being postponed, the additional steps are usually provided just by a law.
Doctor Grinc considers that it is not necessary to amend the Law on the Security of the Czech Republic regarding the postponement of elections, but it would be possible to make it more precise just via the means of interpretation (especially on which election it falls, or to confirm that the duration of the mandates is also being extended). The only more flexible option than those provided by the current electoral law would be to explicitely provide the power for the executive to postpone the election. However, this authority could be abused in the future.
Tomáš Jírovec from the Ministry of Interior reminded, that there was an attempt by the government to amend the security law, however, this remained unsuccessful. He states that the intended amendment was not absolutely necessary since for the pandemic the current wording is sufficient.
Ondřej Preuss and Winter agreed that art. 10 makes possible only one postponing with the understanding, that even after the first postponement situation may occur where an election should not be held (for example - the state will be engaged at an armed conflict). Jírovec added that the question of misuse of the extension by law should be excluded by requiring the approval of both chambers for such a decision.
Kudrna was the only expert, who presented the opposite opinion. He disagrees, and described his alternative understanding that art. 10 may be the valid basis of multiple postponements. As he stated, “if it was only one time, it should have been written there specifically.” He also added that he is not afraid of blocking the constitutional system (postponement and situation). Even if a war would take place, the state has the duty to hold lawful and fair elections.
Antoš raised the question, whether in case of regional elections, executive should have a broader margin of movement rather than provided by art. 10, and also asks whether the legislation may vest the executive with these additional competences, or instead of this, the security law should be amended? Jirovec stated, that there was also some attempt to enact such an amendment, however without any success.
Kudrna stated that such an amendment would be impossible because the judicial control over such competences would be undermined. This problem would be more tangible, when the veterinary disease will spread, and the law would order strict confinement measures around particular regions, which would jeopardize the holding of the elections. This problem might be also relevant under art. 10 of the security law, therefore, Kudrna suggests, that exceptional competences should be provided to the ministry of interior, while the security law should be left untouched. Kudrna also highlighted, that the security law is classified as a constitutional law, therefore, its amendment is more demanding than reconsidering the electoral law.
In the second main section of the roundtable, accessibility and constitutionality of elections during the pandemic were discussed. The primary focuses were the alternative voting methods, other organizational provisions, and the effect on the electoral campaign.
According to dr. Grinc's, the alternative methods of voting in the autumn elections of 2020 and 2021 have fulfilled their purpose in terms of enabling the exercise of the right to vote without unduly burdening the electoral authorities. The voter turnout of persons who could use special voting methods did not significantly deviate from the total voter turnout, and it was rather relatively high in a long-term comparison for the respective types of elections. Even within the electoral judiciary, there were no major problems caused by measures related to the pandemic.
Those questions, which were mainly contested: What lessons can be learned from the pandemic for the legal regulation of elections in the Czech Republic? Repeating ad hoc procedures or shifting the debate on remote voting?
In case of future pandemics, such electoral measures should be considered that can be implemented quickly, i.e. creating an infrastructure for remote voting only for pandemic cases does not appear to be the most expedient. The question of proxy voting - would it even make sense in the context of the pandemic and can it even be introduced in a constitutionally compliant way. However, on the long term, the general introduction of remote (especially electronic) voting may be useful also from the public health perspective.
Is it make sense to consider the general implementation of special voting methods regardless of the particular public health circumstances, or could it be possible to elaborate a more transparent electoral framework and especially adaptation during future dangerous diseases?
Antoš started with an interesting thought – is there an obligation for the state to enable voting for those being infected with certain diseases to vote as well? If someone would be affected by covid-19, and should be isolated during the day of the election, is the state obliged to create some way to enable such voters to cast their ballots?
Jirovec added, that regional authorities face with significant difficulties during the organization of elections in the shadow of the pandemic. There were disputes and concerns about whether these new challenges would be manageable for the regional authorities. Several adaptative measures would be necessary to ensure the involvement of all persons infected or quarantined during the electoral day, but this is expected from public authorities as their tasks imposed by law. From a practical point of view, the biggest anomalies are how to select people willing to sit into committees responsible for collecting and counting votes from infected persons. Such a commission would obviously need appropriate medical equipment to prevent contagion. The additional facilities also require a higher financial remuneration for those people who will participate in those committees, therefore, would undertake a higher level of risk. Interestingly, according to Jírovec, correspondence voting will not save this situation since correspondence voting takes place a few days before the elections, it is no longer possible to vote by mail on election day (according to Jírovec the worst thing that can happen in elections - multiple voting). Correspondence can be an alternative method as prevention, but it does not constitute an effective solution for isolated voters.
According to Antoš, for addressing correspondence and internet voting one has to take into account and measure the expected risks and benefits. Even though the Czech republic has 14 000 polling stations probably not everyone has the same possibility to access these venues (for example people who stay abroad for a short time). In case of establishing corresponded voting for people abroad, the positive benefit surely exceeds the risks.
Jirovec replied as a concluding remark, that he agrees that for voters abroad it surely affects their election rights. However, correspondence voting for all Czech citizens would cause much more uncertainties and could produce unwanted effects (for instance: lower voter turn-out).
As for conclusion, the roundtable provided an excellent forum for relevant experts to exchange and discuss their experience and views from the impact of the pandemic on Czech electoral policies, the recommendations expressed during this meeting may be also worthy for consideration for the policy-makers.
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.