WEBINAR 8: HUNGARY & POLAND - Dismantling Democratic Governance through Manipulative Electoral Politics – the Hungarian Case
János MÉCS
23 November 2020
Tailoring electoral legislation to the governmental parties’ partisan needs was an important component of creating the new Hungarian political system. The events taking place show that elections are not just vital but also vulnerable institutions; due to the structural risk inherent in electoral reforms, enhanced judicial protection is called for. For multiple reasons, however, in Hungary the constitutional framework including the Constitutional Court was unable to prevent manipulation. Institutional changes might have been relevant, but I argue that doctrinal shortcomings also played a pivotal role. Constitutional theory and practice thus should work on a solid doctrinal background for reviewing electoral reforms if dismantling of democracy is to be avoided more effectively in the future.
Electoral Redesign in Hungary After 2010
Electoral politics has been a cornerstone of building up the Hungarian illiberal political system. Its landslide victory at the 2010 parliamentary election provided the new government a two-thirds majority in the unicameral Parliament that – with that supermajority being the only procedural requirement – allowed it to completely redesign the whole constitutional background, including the electoral legislation, without any meaningful bargaining with relevant stakeholders.
Indeed, the ruling political actor exploited the situation and tailored the legislation to its partisan needs. One strategy was to exacerbate the division within the opposition and to enhance seat-share by increasing disproportionality. The new law on the electoral system enacted in 2011 kept the mixed-member proportional (MMP) structure, however, the weight of the first-past-the-post (FPTP) branch was increased, and the run-off in the single districts was abolished, thus making cooperation in the opposition more difficult. The constituency boundaries have been gerrymandered, and a new element, the so-called winner-compensation was introduced that rendered the system more disproportionate – just to name the most important changes.
Because of its importance and relative complexity, winner-compensation deserves explanation. The previous system compensated the votes cast for the losing candidates in single constituencies, as they did not result in any mandate. Under the new compensation scheme the winner’s votes above the second candidate’s result also qualify as surplus votes (see Figure 1 below). Thus, if in a constituency Party A’s candidate wins with 10,000 votes and the second best is Party B’s candidate with 5,000 votes, then parties A and B receive an equal number of surplus votes, despite the fact that party A won the single constituency. This element renders the system more disproportionate, especially if nationwide there is a substantial difference between the most and second-most popular candidate.
It is no exaggeration that the results were grave. Winner-compensation in itself provided 5 and 7 additional mandates to the government in 2014 and 2018 respectively, elevating its seat-share above the two-third threshold (133 MPs). With the abolished run-off, the fragmented opposition failed to cooperate in the single FPTP districts, with the result that governmental candidates won in most of the constituencies with a relative majority, exacerbating disproportionality and thus increasing the government’s seat-share. Moreover, due to gerrymandering, in 2018 the governmental parties would have gained 14 more mandates compared to the opposition even if the two sides would have garnered exactly the same number of votes – thus, it can be expected that in the event of a close vote at the 2022 parliamentary elections, the end results will be determined by the manipulated single districts.
Another strategy was to change the rules on how the right to vote can be exercised. The new regulation on electoral procedure enacted in 2013 discriminates between those with and without Hungarian residence, providing postal voting only to the latter group that is predominantly pro-government. Moreover, an attempt was made to introduce active voter registration, something that was at odds with the twenty-year electoral history of the country, and presumably served partisan purposes, as pro-government voters are better organized and more resolute than protest voters.
Finally, even after the new system and electoral procedure was enacted in 2011 and 2013 respectively, electoral policy did not settle. With its manufactured two-thirds majority the government kept modifying the legislation whenever it confronted its political interests. For example, when the Supreme Court built up an effective case-law preventing the misuse of governmental communicative resources in the campaign-period, the law was changed, exempting governmental actions from scrutiny exacerbating the “pervasive overlap between state and ruling party resources” that characterized the campaign at the 2014 and 2018 elections according to the OSCE/ODIHR final reports.
Constitutional Court Standing Idle – Institutional and Doctrinal Reasons
The Constitutional Court could not act as a real check on the reform process for multiple reasons. Some elements, such as gerrymandering or the abolition of run-off elections, simply did not reach the Court, thanks to enhanced accessibility criteria and the shift in the competences of the tribunal. After 2010, the actio popularis (i.e. the possibility that any citizen may initiate abstract review) was abolished, and just a limited number of public actors (most notably, 50 MPs) may initiate such a review. With this change and the newly introduced German model of constitutional complaint the court was steered towards a rights-based review, however, as I argue below, manipulative electoral reforms in many cases would be better conceptualized in structural terms, such as accountability and the rule of law.
In other cases, the reason presumably was that the Court was packed after 2010, and by Spring 2013, the judges nominated and elected solely by the governmental two-thirds were in majority. An example is the decision upholding the above-mentioned discriminatory rules on postal voting, something that could have been conceptualized and prevented based on the previous, rights-centered case-law. However, the court, in a clear contradiction to its previous case-law, narrowed down the scope of right to vote, inducing sharp criticism from the scholarly sphere. The importance of court packing is underlined, from the other side, by the decision on active voter registration; at early 2013 the then still independent court annulled the legislation, emphasizing the fundamental law nature of the right to vote, and concluding that active registration is an unnecessary restriction of this right. This shows that in many cases the existing conceptual framework might be and indeed proved to be effective in the hands of a court willing to enforce the Constitution.
However, in some cases doctrinal shortcomings might have been relevant as well. Winner-compensation was upheld relying on abstract arguments, leaving aside the context and other traits of the manipulative nature of the reform. The Court argued that the electoral system is not enshrined in the Constitution, therefore the parliament enjoys a wide margin of appreciation when adopting the electoral scheme. It reiterated that the equal right to vote does not require proportionality, and in abstract terms even a purely majoritarian FPTP system would be constitutional as well.
The decision is an example that some manipulations are hard to conceptualize within the right to vote framework. The Hungarian constitution indeed does not specify the electoral system, leaving open a wide variety of options. Moreover, although the equal right to vote is enshrined in it, concluding that only proportional systems will be in line with it would deprive the political community of the freedom to experiment with different electoral systems, and would require an activism from the Court that is hardly justified by the Constitution. However, the conclusion drawn enabled the reformers to modify the system within a very wide range of institutional options and thus a substantive portion of electoral politics was exempted from constitutional oversight.
Strict Scrutiny in Electoral Cases
The Hungarian case underlines some conceptual characteristics of electoral legislation regarding the justifiability of constitutional review. My general claim is that courts are justified and required to review electoral legislation and to apply ‘strict scrutiny’ when doing so. This might be supported on empirical grounds on the one hand. It is a historical experience that, as John Hart Ely put it in his seminal work, Democracy and Distrust, “we cannot trust the ins to decide who stays out.”
Constitutional law literature in the US has been long emphasizing the “inherent authoritarianism of democratic regimes” (Pildes) and the importance of treating national assemblies enacting electoral law as what they truly are; political entities. This is exacerbated by the upsurge of populism, that does not accept some pre-given electorate, but “extracts people from the people” (as Jan-Werner Müller puts it), not just in rhetoric, but in terms of institutions as well, as the redesign of electoral law in Hungary shows.
Moreover, this approach is underlined by conceptual reasons. Those arguing for weak judicial review often rely on the political process that is deemed to be more suitable to correct unconstitutional legislation. An ultimate argument in this vein is that governments are accountable to the people, and, at the end of the day, they may be voted out through competitive elections, if they enact law contrary to the constitution.
However, malfunctions of electoral legislation affect the very process that should redeem the situation; manipulative reforms try to overcome accountability to voters, the ultimate safeguard against unconstitutional politics. In Hungary it is difficult to argue that if the voters were dissatisfied with the constitutional or electoral politics of the government, then the decreasing popularity could have withdrawn the authorization to execute such politics, as manipulating the electoral rules in fact led to the government having a two-thirds majority after the 2010 elections, and again in 2014 despite its popular vote dropping from 52 percent to 45 percent.
But on What Grounds?
However, Ely’s representation-reinforcing theory might be hard to apply regarding electoral institutions such as electoral systems that are to a great extent underdetermined by political philosophy, constitutional theory, and constitutions alike. While general and equal suffrage are recognized by theory and constitutions as well, there are many institutional options regarding the exercise of the right to vote and electoral systems that are equally democratic.
For example, an FPTP system enhances governability, and a two-party party system, and, in terms of the broader democratic framework, a Westminster-style democracy (as discussed by Lijphart). In contrast, a PR system offers proportional representation and a consensus-model conception of democracy. Political communities should have the opportunity to experiment with these different conceptions and institutional backgrounds.
This means that in many cases manipulative reforms may not be ruled out on a substantive basis. If a reformer excludes from the suffrage some group of voters belonging to the opposition, then the substance of the right to vote enshrined in constitutions, international documents, and theory might be cited and the manipulation can be easily conceptualized and prevented.
If, however, a system is rendered more disproportionate to enhance the seat-share of the reformers, then, due to the underdetermined nature of the electoral system and abstract values (in this case: governability, or the Westminster conception of democracy) can always be invoked to support the manipulative change. Courts may overcome this by narrowing down the constitutionally permissible institutions (e.g. stating that equality of the right to vote requires a PR system), however, this violates the chance to experiment with different conceptions of democracy.
Nevertheless, it can be argued that although the substance of electoral institutions is in many cases underdetermined, the way this substance is set – namely, the process of adopting electoral legislation – is not. If a political actor reforms the system to increase its seat-share, then it violates some core concepts that are common in any plausible conception of democracy. Such a reform violates accountability that is inherent in any democracy built on periodic elections. Moreover, it violates equality, since if the system is changed with the aim to decrease the influence of some groups of voters, then these groups are not treated as of equal worth. Finally, it violates rule of law, as not the actor adapted its behavior to the rules, but the other way around, it tailors the law to its partisan needs.
This points to the constitutional provisions (general principles such as rule of law, equality and the right to vote and rule of law) on which such a ‘meta-procedural’ approach can be built on, that does not take the substance of electoral institutions, but the way they are adopted, as constitutionally entrenched.
Conclusion
The Hungarian case points out that constitutional courts should be vigilant, and they should intervene whenever the electoral legislation is being manipulated with. Although illiberalism exacerbated the problem, inertia in electoral matters is not a unique illiberal feature; in an established democracy such as the USA, a court with unquestionable authority such as the Supreme Court failed to prevent gerrymandering. Courts therefore should be empowered not just institutionally, but in terms of doctrine as well, to be able to prevent the distortion of democracy.
However, this insight opens just as many questions as it tries to answer. Maybe the most important of them is how courts should conceptualize manipulative reforms, namely, what aspects and factors they should consider when deciding whether a reform was genuine, or it merely aimed to entrench the reformers. This creates new challenges in terms of strategic maneuvering and preserving the objective perception of law. Nevertheless, the Hungarian case shows that gravitating from abstract considerations towards the actual context of reforms is inevitable in order to protect the political process.
János MÉCS is a doctoral researcher at Eötvös Loránd University, Budapest, Faculty of law, Department of Constitutional Law. His research interests focus on public law, and his specific field is the relationship between constitutional law and electoral systems and other political institutions. His goal is to raise awareness about constitutionalism and human rights. He is committed to political change through electoral and constitutional reform in Hungary as well as to contributing to a more robust discussion on the constitutional oversight of electoral reforms.