Paulina Jabłońska

When one analyses the long-term impacts of COVID-19 on Polish electoral law, in the first instance, one should refer to the experiences related to the 2020 presidential elections. Many legal issues of major practical importance have been raised in connection with these elections, and these challenges have stimulated discussion on both general and particular solutions as regards Polish electoral law. One key difficulty was voting from abroad, which was significantly hampered in the presidential elections due to the pandemic situation. Related problems were recognized and raised by a wide range of specialists. Therefore, it is worth raising to formulate the following question: How will difficulties related to the exercise of the right to vote in abroad caused by the COVID-19 pandemic affect the electoral system in Poland?

First, the legal background of the issue should be outlined briefly. What was the legal framework for voting from abroad during the 2020 presidential elections? At this point, a general comment and two specific remarks should be made. The general comment is that under Polish electoral law, there is no domicile censorship in presidential elections, which means that Polish citizens residing abroad can also participate in these elections. The specific remarks are as follows. First,  an electoral code provision  renders the establishment of voting circuits created for Polish citizens residing abroad. These circuits are organised by the Minister of Foreign Affairs if (1) there are at least 15 voters in the circuit and if (2) it is possible to transmit the results of the vote to the competent electoral commission immediately after its completion (Article 14 of the Polish Electoral Code). Second, during the 2020 presidential elections, additionally, the act on special rules for the organization of the elections was in force (the so-called ‘Episodic Act’). Within the special context of the global pandemic, under this Act (1) postal voting may have been the only option for voting in certain foreign-based circuits because of the public health concerns in the host country; (2) postal voting from abroad is also not carried out in countries on the territory of which there is no organizational, technical, or legal possibility to conduct voting in this form (Article 2 of the Episodic Act). This regulation has been criticized heavily by the legal scholarship: It was pointed out that, in fact, it provides statutory possibility of depriving some Polish citizens of the opportunity to participate in elections.

Secondly, that question should be discussed, how voting from abroad took place in practice. Exercise of the right to vote from abroad was significantly hampered, as mentioned above. Due to various difficulties, there have been many allegations of violation of the rights of citizens who wanted to vote outside from Poland. The Supreme Court received many electoral protests: the complaints concerned, among other issues, violation of the active electoral right by failing to implement the duty to establish circuits abroad and infringement of core principles in Polish electoral law, such as the constitutional principle of universality of elections or the principle of equality in the opportunity to participate in elections. These short-comings were cumulated with the  reported issues of the postal voting, where the problem was that lost or delayed delivery of the election package (due to pandemic time in some countries, citizens could vote only in the form of postal voting), and the impossibility of casting a vote in any form because of the failure to set up a voting circuits (the case of Chile). Although the allegation of the violation of voting rights of people who reside abroad was also indicated in the literature, it has not had much practical impact. The majority of voting protests were rejected for formal reasons by the Supreme Court. Although some of protests were taken into account, they had no effect on the validity of the presidential election according to the Supreme Court, which stated the validity of the elections in its resolution. A particular question is interesting in this context. In its analysis of allegations made by voters in voting protests, the Supreme Court did not have a clear position on the status of the right to vote abroad: there were some doubts as to whether it is a constitutional right accompanied by positive state obligations (or not). The Supreme Court had various statements on this issue without sufficient clarity.

Why should be these debates considered here? In summary, we can return to the question from the perspective of their long-term effects. In this context, the question is what impact our experiences of voting from abroad in the 2020 presidential election will have on Polish electoral law. In my opinion, regardless of breaches and mistakes which could have been avoided by introducing a state of emergency, the uncertainties highlighted above may be an important point in discussion concerning the shape of Polish electoral law, in particular in  debate concerning three issues: first, the usefulness or necessity of introducing in Poland e-voting, or especially i-voting; secondly, the scope of positive state obligations related to the right to vote of Polish citizens who reside abroad; thirdly, the personal scope of the right to vote in Polish presidential elections.

September 2022

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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.