An analysis of the Hungarian Constitutional Court’s ruling on voter registration

It is time to take a closer look at the Hungarian Constitutional Court’s decision. Unfortunately, the opinion is very long and technical and I have neither the time nor the expertise to go into all the subtleties of the decision. Here I will address just two points: (1) what sections of the law on “electoral procedure” (T/8405) were questioned by President János Áder and (2) what sections of the new Basic Laws–which I still call the Constitution–the court referred to in making its decision.

Here is a brief summary of the paragraphs mentioned by President Áder. §82 simply gives a definition of the “central register” (központi névjegyzék), a list of those who previously registered at the local notary expressing his or her wish to vote.  §88 outlines the procedure of actually getting registered, which is very narrowly defined. It can be done either completely in person or in part electronically. Both possibilities are slow and cumbersome. On the other hand, those who live abroad can register by mail. Clearly, the government party favors those Hungarians who live in the neighboring countries by making their registration procedure easier. §106 goes into more details of the registration procedure, setting a time limit of 15 days before the election to be eligible to be included in the “central register.”

Another questionable part of the law deals with the electoral campaign. The most important section is §151 that specifies that all parties must advertise “under the same conditions.”  That in practice means that all parties can advertise only within highly restricted time limits and that they are allowed to use only the public TV and radio stations. In addition, “it is forbidden to attach any opinion or evaluative explanation” to the ads. The public radio and television stations cannot charge the political parties for their services. The law sets severe limits on advertisement. Only 600 minutes for the national election and 300 minutes for the European parliamentary election. It is forbidden to advertise on local media, on commercial radio and television stations, and on Internet websites.

§152 (5) forbids the publication of any political advertisement in movie theaters and  §154 forbids the publication of opinion polls in the last six days before the election.

These are the parts of the law on electoral procedures that were found unconstitutional by the court. The ruling relied on the following provisions of the Basic Laws:

Article B: (1) Hungary shall be an independent, democratic state governed by the rule of law.

Article I: (1) The inviolable and inalienable fundamental rights of MAN shall be respected and defended by the State as a primary obligation. (2) Hungary shall recognize the fundamental rights that may be exercised by individuals and communities. (3) The rules for fundamental rights and obligations shall be determined by special Acts. A fundamental right may be restricted to allow the exercise of another fundamental right or to defend any constitutional value to the extent absolutely necessary, in proportion to the desired goal and in respect of the essential content of such fundamental right.

Article IX: (1) Every person shall have the right to express his or her opinion. (2) Hungary shall recognize and defend the freedom and diversity of the press, and shall ensure the conditions for free dissemination of information necessary for the formation of democratic public opinion. (3) The detailed rules for the freedom of the press and the organ supervising media services, press products and the infocommunications market shall be regulated by a cardinal Act.

Article XV: (1) Every person shall be equal before the law. Every human being shall have legal capacity. (2) Hungary shall ensure fundamental rights to every person without any discrimination on the grounds of race, color, gender, disability, language, religion, political or other views, national or social origin, financial, birth or other circumstances whatsoever.

Article XXIII: (1) Every adult Hungarian citizen shall have the right to be a voter as well as a candidate in the elections of Members of Parliament, local representatives and mayors, and of members of the European Parliament. (2) Every adult citizen of any other member state of the European Union who is a resident of Hungary shall have the right to be a voter as well as a candidate in the elections of local representatives and mayors, and of members of the European Parliament. (3) Every adult person who is recognized as a refugee, immigrant or resident of Hungary shall have the right to be a voter in the elections of local representatives and mayors. (4) The exercise or completeness of active suffrage may be subject to the requirement of residence in Hungary, and passive suffrage may be subject to further criteria under a cardinal Act. (5) Every elector may participate in the elections of local representatives and mayors in the locality of his or her residence or registered address. Every elector may exercise his or her right to vote in the locality of his or her residence or registered address. (6) A person disenfranchised by a court for committing an offense or due to his or her limited mental capacity shall have no suffrage. No citizen of any other member state of the European Union who is a resident of Hungary shall have passive suffrage if he or she has been disenfranchised in his or her native country under any law, court or official decision of his or her state of citizenship. (7) Every person entitled to vote in elections of Members of Parliament shall have the right to participate in national referenda. Every person entitled to vote in elections of local representatives and mayors shall have the right to participate in local referenda. (8) Every Hungarian citizen shall have the right to hold a public office corresponding to his or her aptitude, qualifications and expertise. A special Act shall determine public offices that may not be held by members or officials of any political party.

The court came to the conclusion that registration is not inherently unconstitutional but it is unconstitutional in Hungary where there is an official and up-to-date domicile register. The introduction of registration is without rationale and, in addition, limits voter participation. The framers of the law were actually so careless that they referred to the domicile registers as guides to the compilation of the central register. In brief, the court found no reason for the introduction of registration.

As for the restrictions on campaigning, the court decided that they severely restrict the freedom of expression and the media.

The court examined the document in light of Hungary’s obligations toward the laws of the European Union that has supremacy over local laws. It cited the resolution of the 1993 European Convention on Human Rights that included “the right to free election.” Hungary was a signatory to that treaty. The court also cited a document published by the Council of Europe’s Venice Commission entitled Code of Good Practice in Electoral Matters which details the regular upkeep of domicile registers.

Finally, the Hungarian Constitutional Court referred to the European Court of Human Rights’ decisions on electoral cases (82 in all) and came to the conclusion that the court strongly objected to any kind of narrowing of citizens’ right to vote. The Hungarian judges paid particular attention to a Georgian case (2003 election) where prior registration was introduced because no domicile registers existed in the country. The case, Georgian Workers’ Party v. Georgia, was decided in Georgia’s favor, but the decision contained several legal opinions that went against the practice of voter registration unless it is absolutely necessary because of a lack of other reliable registers.

Now I have really lost all my interest in the election / Gábor Pápai / Népszava

Now I’ve really lost all interest in the election / Gábor Pápai / Népszava

I assume that the debate on the significance of this decision will continue. Most foreign observers consider the ruling a serious blow to Viktor Orbán personally. Because it seems that the idea of voter registration came from Orbán himself. The Hungarian media did report that not everybody within the Fidesz leadership supported Orbán’s idea. Just as many close associates of the prime minister weren’t crazy about the nomination of Pál Schmitt as president. Orbán insisted and eventually he won. And today? Schmitt is long gone and now this registration defeat. The Dear Leader is not perfect after all.

After the lost 2006 election a lot of close political friends of Orbán, including Lajos Kósa, János Áder, and István Stumpf, were ready to dump him, but Orbán managed to regain his old position. Moreover, in the past few years it looked as if whatever he touched automatically turned to gold. But lately he has been faltering, and with each failure his voice carries less and less weight. Especially if the economic and political situation of the country doesn’t improve.

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10 comments

  1. Éva: My girlfriend thought the same. She felt that Orbán was shocked by the student protests and by being told by his closest associates that the registration law was not only not necessary but also counterproductive. He might have given in, we’ll see. She also says she has heard that Orbán has some bipolar disorder and is now in a depressive phase. And I think it’s true that we haven’t seen him for a while. But the holiday season is only over next week.

    So what? The whole of Orbánistan is still totally dependent on him. If he goes, Fidesz goes with him as practically every functionary, member of parliament, mayor, chief of a district office, etc. was handpicked by him. All of these people know what they owe him and what they have to lose.

    What you described was the majority position of the constitutional court. As of April the present minority will take over. What did they write in their minority opinion? In other words, what will we have to expect?

    On another note, I was surprised how liberal some of the constitutional provisions for voting rights of non-Hungarians are, at least in theory.

  2. This could be merely the result of conspiracy-theory thinking, or too extreme cynicism, but there are those living here in Hungary who believe that the whole of the drama surrounding voter registration was a deliberate act by Orban to convince the populace of the independence of the constitutional court (ie. that they acted against him). People believe that something worse is to come where the now apparently independent court will not rule against Orban. I do hope they are wrong.

  3. Clearly an election can not be conducted if the election officials have no way of verifying a voter’s eligibility. Here, in the US, we maintain ongoing registration, since there are no other means of knowing who lives in what districts. If you move from district to district, county to county, state to state or even from stateside to foreign country, the citizen is obligated to re-register in their new district. Election officials, in the meanwhile do their best effort to identify voters who no longer receive mail in the district and remove them from the rolls.

    In Hungary, such “registration” of domicile is mandatory in general and thus serves the purpose for establishing a valid voter list. Thus the proposed (and struck down) voter registration is redundant. Hungarian citizens living abroad are not subject to the same procedures and therefore if they wish to vote, should be able to register their permanent address with the Hungarian Election office. This is common sense.

    The fact that there are two different procedures for these two different groups of voters should not bother anyone. Americans living outside the US have different procedures for registering and voting than the vast majority living within the US. So what? The important thing is that a procedure exists for both groups to exercise their constitutional right to vote.

    The Hungarian Constitutional Court in its ruling clearly understood the issues and ruled correctly.

  4. MM. :
    People believe that something worse is to come where the now apparently independent court will not rule against Orban. I do hope they are wrong.

    The eternal positivity of the Hungarian mind. It reminds me (again) on Peter Bacso’s movie Witness again. “Comrade Pelican. It is suspicious if it is not suspicious …”

    If things are going good brace for the worst.

  5. Dear Eva,

    Thank you for the analysis. Due to the fact that I am not (yet) able to find an English translation of Decision 1/2013, I find your analysis very useful for your explanation on what Constitution Articles were used by the Court for reaching a Decision. Later on in your analysis you mention that “(t)he court examined the document in light of Hungary’s obligations toward the laws of the European Union that has supremacy over local laws”. As a European Law student doing a research paper on the principle of supremacy of European law in new Member States, I was wondering whether you could tell me if the Court named any specific primary and/or secondary laws of the European Union and how they adressed this issue of supremecy.

    Many thanks

    Oskar

  6. Dear Eva,

    Thank you very much for your help. I am looking forward to hearing from Prof. Kim Scheppele.

    Kind regards

  7. Sorry to interrupt – to clear up eventual misunderstandings:

    “I will write him and ask her to get in touch with you.”

    It’s Mrs. Kim Scheppele …

    Seems a typical Hungarian problem: “ö” means he/she/it – many Hungarians I know have that problem, even if they speak very good English or German …

    OT:

    My wife told me that it’s also difficult to synchronize films into Hungarian, when you have to make it clear somehow when someone says e g : Yes, he’s here but she’s not here!

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