Last week the NEC issued guidance re the application of Sec. 254 of the Electoral Procedure Law of 12013 XXXVI (EPL). The opposition parties are protesting, claiming the action illegal, but there is no sense of crisis. This post is meant to inform and suggest one line of thinking, but surely more opinions will emerge.
The political background
The 2013 Fidesz legislation was tailored to favor them and to handicap the opposition parties. One such hurdle is that a party has to register a minimum of 27 candidates in the 106 single member constituencies in order to be able to register a national party list. While this condition forces the parties to carefully co-ordinate how they field candidates against each other, its impact should not be overestimated. The parties can easily field candidates against each other in constituencies where they have no chance to win and so achieve the min of 27.
The guidance of NEC is not an administrative action, although it provides the grounds on which such action may be taken later.
More troubling are the role played by the NEC and its timing.
The EPL can be amended only by a 2/3 supermajority, which Fidesz doesn’t have at present, so the action of the NEC, composed of Fidesz appointees only who unanimously approved the proposal, looks like an attempt to circumvent the law by pretty transparent legal tricks, a practice often used by Fidesz, the most blatant recent examples being the ASZ “suggestions” of fines or the earlier contravention of the 2/3 supermajority law on political advertising by an amendment of a simple majority law on the image of settlements.
The timing of the action, i.e. 90 days before the elections, seems to be aimed at inflicting as much hardship on the parties as possible, since by now several agreements between the oppositions parties have been finalized or have entered their final phase. Needless to say, the Fidesz candidates/lists are not affected by the matter at all.
Elimination of candidates (Sec. 137)
A candidate is eliminated if he or she relinquishes the nomination in writing before the start of voting, if he or she is deleted from the central electoral register, if he or she loses the right to stand in the election, or if the election commission deletes the candidate’s nominating organisation from the register of nominating organisations, candidates and lists. The names of eliminated candidates shall be deleted from the register of nominating organisations, candidates and lists and from single member constituency ballot papers.
Elimination of lists (Sec. 138)
A list is eliminated if the nominating organisation revokes the list, if all candidates on the list are eliminated before the start of voting, or if the election commission deletes the candidate’s nominating organisation from the register of nominating organisations, candidates and lists. The eliminated list shall be deleted from the register of nominating organisations, candidates and lists and from ballot papers.
Notification of national lists (Sec. 254)
(1) When putting forward a party list, nominating organisations shall take into account the number of single member constituency candidates notified before the registration of the list, except for candidates whose registration was refused by the parliamentary single member constituency election commission.
(2) The National Election Commission shall remove the party list from the register if the nominating organisation has fewer* finally registered and notified but not finally adjudged single member constituency candidates than the minimum specified by law.
* The official English version translates “nem éri el” as the pretty general – the party “has fewer,” while the meaning in Hungarian is unequivocally “doesn’t reach the minimum prescribed by the law,” a crucial distinction in our case.
254. (2) A Nemzeti Választási Bizottság törli a nyilvántartásból a pártlistát, ha a jelölő szervezet jogerősen nyilvántartásba vett, valamint a bejelentett, de még jogerősen el nem bírált egyéni választókerületi jelöltjeinek száma együttesen nem éri el a törvényben foglalt minimumot.
The National Electoral Commission’s position
According to the protocol of the meeting the NEC first considered the necessity of the current guidance and found it justified in order “to preserve the integrity of the election process,” “to assure the expression of the voters’ will,” and to “act in the interest of the nominating parties” as far as the parties’ lists are concerned, etc.
K. Gáva admited that neither the EPL nor the material law contained any specific provision about what happens with the party lists if the number of candidates drops below the required minimum after the list has been registered.
Patyi argued that the guidance action of Sec. 254.2. is necessary because the national party list role as introduced in 2014 was now dual – [in addition to the distribution of the national list mandates] it is also a compensation list, where “the unbroken presence of the conditions under which the list was registered becomes an issue regarding the proper reflection of voters’ will expressed at the election.”
He argued that the removal of the party list under Sec. 254.2 had no time limit, hence can be carried out at any time before the poll.
In his opinion Sec.137 had also to be taken into account** and emphasized that if the minimum number of candidates dropped below 27 that means that the condition for the list registration is missing. He saw supporting evidence in the fact that while the old 1997 C. law Sec. 94.2 explicitly stipulated, just as the current local government elections law, that the reduction of the number of candidates did not affect the right to register a national list, the EPL did not contain such a provision.
** He ominously ignored Sec. 138 which explicitly deals with the “Elimination of the list,” the importance of which is discussed below.
The legal argument
I find the argument of NEC/Patyi legally flawed and its effects unacceptable.
The first problem arises from the fact that Sec. 253-255 are related to part 114 – Notification of national lists, where all provision regulate the process leading to and prior to the registration of the lists. Sec. 254.2 logically follows the process and stipulates that “The National Election Commission shall remove the party list from the register …. if it doesn’t reach” the minimum. This kills the NEC no-time-limit argument and means that removal can be carried out until the registration. My guess is that this distinction is a leftover element of the old law.
Patyi might have had a point in arguing that the current law does not reproduce the old provision where the once registered party list was not affected by the number of candidates dropping below the required minimum, if it was not for Sec. 138, which he ominously ignored because it undermines his argument.
To start with, Sec. 137 and 138 deal specifically with the elimination of candidates and lists respectively, i.e. they are applicable after the moment of registration. So the ELP didn’t ignore the issue – Sec.138 explicitly stipulates that one of the three cases where the list can be eliminated is “if all candidates on the list are eliminated before the start of voting.” Patyi’s attempt to analogize from Sec. 137 is inappropriate in the face of the clear purpose and wording of Sec.138.
One may find the provision of Sec. 137 clumsy, since it is hard to envisage a case where all 27 or more candidates are eliminated, or may argue that the subsequent violation of the condition may render the latter meaningless, but the provisions are there. Poor drafting of the hurried Fidesz legislation has been criticized for years.
A primitively formalistic interpretation has been practiced by the ruling Fidesz since 2010, actually appallingly double standards interpretation:
– A very narrow, formalistic interpretation, when serving their interest e.g. right now the National Security Committee Fidesz members appeared at the session called by the MSZP chairman, as they had to, but walked out effectively rendering the right to call meaningless.
– The widest, often wild interpretation where the law restricts or prohibits an intended Fidesz action, e.g. the MNB bank funds moved to a MNB foundation ruled by a MNB board “lost their public funds nature.”
The unacceptable effects
In any rule of law system it is a fundamental principle that the legislator strives to avoid imposing unnecessary hardship, undue burden on the subjects of the law. In our case the NEC guidance action seems to aim for the opposite – by these changes to the rules it imposed serious challenges on the opposition parties, possibly prejudicing their participation in the election race.
The lawfulness question aside, the NEC timing unreasonably imposes these challenges 90 days before the election, while taking no action for four years since the provisions were introduced and for 18 months or more since the subject of mutual candidates’ coordination became a major political issue. The timing also severely reduces the opportunities for judicial recourse and leaves no time for the parties to comply with the eventual ruling of the court.
Those parties which had their lists eliminated will also lose their normative state funding, practically disabling their political activities.
If we “look at the bright side of life” we can feel at happy that at least the votes from the eliminated lists will not go to Fidesz as winner compensation but will be declared invalid.
To put things in prospective again, the NEC intervention is small potatoes compared to the Fidesz book of legal horrors in the electoral law, the media and advertising regulations as well to their usurpation of the state media and their huge war chests laden with hundreds of billions of embezzled state funds, etc.
Such actions do not take place in rule of law countries, in democracies, but they do under the current regime in Hungary.