Troubles ahead: registration, constitutionality, and mathematics

Although it is obvious that some of our less than democratically minded readers and commenters are bored witless with such trifling matters as the current Hungarian government’s attempt to take away the citizens’ hitherto unfettered access to the voting booths, I will keep on writing about this topic. Because, whether they believe it or not, this question is absolutely crucial to determining whether we can still consider Hungary a democracy or not.

Today three research institutes dealing with legal matters published a statement in which they expressed their opinions on the legal aspects of registration. The three organizations are the Eötvös Károly Intézet (Károly Eötvös Institute), the Magyar Helsinki Committee (Hungarian Helsinki Bizottság), and the Társaság a Szabadságjogokért (TASZ / Society for Human Rights). In their joint statement they expressed their legal opinion that, given the Hungarian situation, the demand for registration as a prerequisite to voter participation is unconstitutional.

Just to be clear about some of the fine points of the law, I would like to mention again that if someone fails to register he deprives himself of the right to vote for four years. He is not only ineligible to vote in the national elections; he cannot participate in municipal elections either. In case there are elections for the European Parliament during this period he will also be sidelined. By-elections are out as well. So, one missing step and the citizen is disenfranchised for four solid years. And if the proposed system remains in force, four years later the whole registration process can begin anew.

Throughout the western world the tendency in recent years has been the extension of voting rights. The aim is to reach more and more prospective voters. This is the stated goal of the European Union, and now we have a member state that through administrative fiat is going against that trend and is making participation more difficult.

Voter turnout in Hungary is not very high as it is.  Here are a few numbers. In 1990 only 44.14% of the eligible voters bothered to participate in the first truly free elections since 1946. In 1994 it was 55.12%; in 1998, 57.01%. But then something interesting happened. The population had had enough of the first Orbán government (1998-2002) and participation suddenly shot up to 73.47%. Most likely because of the high turnout, Fidesz lost. Four years later, in 2006, participation was still high: 64.39%. Then came 2010 with 46.66%, the lowest figure since 1994, and Fidesz won big. The lesson for Fidesz: the fewer voters the better.

If, let’s say, 25% of all eligible voters don’t register, the turnout might be considerably lower than in 2010 when 3,453,798 people voted out of a total of 7,402,053. If 25% of the total number of voters become ineligible, there will be 1,850,513 fewer voters who could participate in the 2014 elections. It’s possible, of course, that the people who don’t register are the same as those who have never voted, but I doubt that Fidesz would bother with registration if the party believed in that scenario.  An admittedly much less likely scenario is that  the 25% who drop out all voted in 2010. If we assume that the turnout percentage from 2010 remains constant in 2014, less 25% of all eligible voters, participation would drop to a staggeringly low 21.66%.

Just to compare the Hungarian turnout with that in other countries, in the 2009 German elections 70.78% of eligible citizens voted; in Austria (2008) 81.71%; in Denmark (2011) 87.74%; in Sweden (2010) 84.63%; in the Netherlands (2010) 75.40%. Even in the United States in 2008 64.36% of the population voted and polls predicted a similar turnout this year. So, how can Hungary justify making the act of voting more difficult given the low political awareness and activity of the population? Naturally, not at all.

The authors of the statement, after going through all of the alleged reasons for the introduction of registration, found it “without legitimate reason and therefore an arbitrary act.” Although the Orbán government made the necessary changes in the brand new, already many times modified constitution, as László Sólyom, former chief justice of the Constitutional Court and president of the country, pointed out only yesterday, just because the government modifies the constitution doesn’t mean that the newly inserted provisions are constitutional. Thus, the Constitutional Court should take a look at the constitutionality of registration. Given the current composition of the Constitutional Court, there is still a chance that the majority of the judges will find the new law unconstitutional. However, if the judges drag their feet, the outcome might be different in a few months when several of the judges will reach mandatory retirement age and the government will have the opportunity to propose new judges more to its liking, just as it did earlier when it expanded the size of the Constitutional Court.

Constitutionality is not the only problem with the election law. Scholars working for one of the research institutes of the Hungarian Academy of Sciences came out with a study that mathematically established that there is no way that the proposed 106 voting districts can possibly conform to the law’s stated requirements. One of the rules is that the voting districts must lie within county lines and must include only contiguous territories. The law also states that the number of voters in each district cannot be more than 15% higher or lower than the national average.

The researchers studied the voting districts using various mathematical algorithms and came to the conclusion that one would need at least 130 districts to conform to the law. Moreover, at present the law doesn’t provide for any adjustment of the districts in the future when the demographics will most likely change.

Most of the bills brought before parliament are put together in a totally ad hoc fashion without much attention to internal consistency. A great number of the new laws don’t conform to the laws of the European Union, and several others were found unconstitutional even by the new Hungarian Constitutional Court. Only recently the European Court of Justice ruled that the early and sudden retirement of hundreds of judges clashes with European law, which supersedes Hungarian law. Mind you, even the Hungarian Constitutional Court found part of the law unconstitutional on Hungarian legal grounds. The Orbán government is not only undemocratic but also grossly incompetent.

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57 comments

  1. Cheshire Cat: I totally agree with you. The EU is not as undemocratic as it is made out to be by many critics. It is just more of a representative democracy than, for example, the direct democracy in Switzerland (which, however, takes over EU law regularly 1:1 almost automatically).

    Ad president: I found it a wonderful idea and practice that every half-year every member state would take over the “presidency”. It meant that every country was taken seriously, regardless of size and that it could identify more with the EU project as it would take responsibility (and possibly change its point of view). As far as I can remember, only two countries missed the chance: Once it was France (I forgot the year) and once it was Hungary in 2011. But think of Denmark, they performed wonderfully!

    One problem persists, though: Although all information about the EU is available in every language and free, basically the EU does a very poor job at selling itself to the average European citizen. The average EU citizen thinks the EU is costly and extremely bureaucratic. The opposite is true: Every member country pays 1% (!) of GDP into the EU till (but many are net receivers), and the “huge” Brussels bureaucracy is smaller than that of the Federal Swiss Government in Berne.

  2. Eva S. Balogh :

    Hank :
    I’m sorry but the turn out at the first round of the 2010 election was really 64.4% (Wikipedia, electionresources.org and http://www.ipu.org/parline/reports/2141_E.htm), and not 46%. Important to get the facts straight, I would say. The clue of course is that uin 2014 Fidesz wants to win the elections with 1.3 million loyal voters instead of the 2.7 million votes it got in 2010. Therefor it needs a lower turnout and thus the registration and the measures that are aimed at a low-key campaign (no adds on commercial TV etc.) that doesn’t stir up emotions with the broad public.

    The facts are, I’m afraid, straight. The percentage given is the second-round results and after all, this figure represent the percentage of the people who actually completed the voting process.

    Eva, I’d also say “I learn a lot here”, thanks for all your great work. But here I strongly disagree with you:

    Having grown up in Germany, I always thought the lack of proportional representation in the US and in the UK was due to historical reasons, so I was rather surprised to find out that someone drafting a constitution around 1990 could still come up with such an unfair system as Hungary.

    The second-round of Hungarian elections is a runoff. If the runoff in your district is, e.g., between Jobbik and Fidesz, why participate? In 2010, 64 per cent of the eligible voters went to vote. What happens in the second run is comparatively irrelevant with this crazy system, you know beforehand in which districts there is a possibility for change and where there isn’t.

  3. Maria, I am no expert on the Hungarian voting system devised in 1990. I remember of hearing from a Harvard graduate student who wrote his dissertation on the Hungarian system that as far as he knew the Hungarian system was the most complicated in the whole world.

    On the other hand, I always thought that the Hungarians actually copied the German system with some modification.

    I always thought that voting twice was not a good system. Before I started looking at the European systems I never thought much about the American system of winner takes all but now I think that the system is highly unfair because if you voted for the the loser your vote really didn’t count.

    Perhaps the best and fairest method is the one used in some European countries, i.e. to vote along straight party lines.

    But to tell you the truth I haven’t discovered any one system which is absolutely fair.

  4. The German system is not bad. Normally it doesn’t contain a second voting round as it does in France, and I think would still be necessary – without the restrictions announced in Hungary.

    The German system leads to many direct mandats that “overachieve” the party list. They are accounted for extra of the party list. The Constitutional Court had some Rulings against this. As a result, the next German Bundestag may have more representatives next time.

    Even though proportional representation leads to weak governments, I promote it as it is more democractic, educates towards consensus-finding and inherently more stable politics.

  5. Eva S. Balogh :
    On the other hand, I always thought that the Hungarians actually copied the German system with some modification.

    Well, in Germany we have two votes, one for a party and one for a local candidate, but they are cast in one go. And the result of the counting system is fairly close to proportional representation, i.e. the most “overhang seats” achieved in 60 years were 21 (out of 620); the only difference to “voting strictly along party lines” is that you stil have the chance to vote for the more qualified person for a specific constituency, even if he/she is not part of the party you’d like to support (http://de.wikipedia.org/wiki/%C3%9Cberhangmandat#Auswirkungen_der_.C3.9Cberhangmandate_bei_den_bisherigen_Bundestagswahlen). I think this is pretty far from getting a two thirds majority with 52 per cent of the votes. And I’d much rather have a “weak government” than a two thirds majority of any party (apart from the united democratic opposition of Hungary ;-).

    Back to Hungary: I don’t know exactly how they calculate things (and no Hungarian in my vicinity seems to know that either, I asked a few in 2010), but I know that in some constituencies there wasn’t even a second round, because the results were obvious enough. Yet, given what was at stake in 2010, with what Fidesz announced beforehand and what Jobbik had achieved in the elections for the European Parliament, 64 per cent still seems incredibly low.

  6. GW :
    Does anyone know if non-Hungarian EU citizens (who have the right to vote in local and EU elections in Hungary) will be disenfranchised by the new registration law?

    Actually, I agree with Some1 and I think you ought to contact some EU service about that, because Art. 39 of the Charter of Fundamental Rights explicitly states that

    “1. Every citizen of the Union has the right to vote and to stand as a candidate at elections to the European Parliament in the Member State in which he or she resides, under the same conditions as nationals of that State.
    2. Members of the European Parliament shall be elected by direct universal suffrage in a free and secret ballot.”

    http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2007:303:0001:0016:EN:PDF

    But this “under the same conditions as nationals of that State” might be a critical point, because Hungarian nationals are required to register (it is now included in the “fundamental law”, referred to as constitution) and 15 days prior to the _national_ parliamentary elections. And then, for 4 years, there’s no registration at all – except for those who just reached the age of 18.

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