A serious dispute over the May presidential election in Poland has gripped the Polish nation ever since the coronavirus crisis took hold. Here are the epidemiological, political, legal, technical and logistical aspects of the issue:
The current course of the epidemic in Poland is relatively mild. The Polish government took preventative measures early and on a large scale. According to Worldometer data, on 29 April, with 38 million citizens, Poland had 12,415 cases and 606 fatalities. These numbers are an order of magnitude smaller than in most European countries. Medical recommendations for elections on 10 May are positive, provided they are postal elections. Traditional elections without the risk of an escalating epidemic can be organised in about two years.
The interests of the parties to the dispute are obvious. The successful struggle of the government against the pandemic increases the popularity of the incumbent president. According to the polls, he can count on 59% of votes in the first round. The opposition’s strongest candidate stands at 10%, and the subsequent ones at 9%, 8%, 8%, 5% and 1%. This fact makes the economic catastrophe longed for by the opposition its only chance, and imposes on it a strategy of postponing the elections until the arrival of the expected economic collapse (which could be the result of the freezing of the economy).
Under the rule of today’s opposition, in 2008 the law on “prevention and eradication of infections and infectious diseases in humans” was adopted. It endows the government with so many powers necessary to combat the current epidemic that it makes it redundant to introduce the state of emergency requested by the opposition in the sense of fighting the coronavirus pandemic. Therefore, the only real purpose of introducing such a state would be postponing the elections. Such an act would be an obvious breach of the constitution. It would also be a precedent, one that is dangerous for the future – facilitating the postponement of elections under any pretext. There is no reason to trust the constructive behaviour of the opposition. Such a move would tempt it to demand the elections be repeated until it had a better electoral situation, while proclaiming that the ruling party had lost its mandate from the voters and was only allowed to administer the country, but not to make strategic decisions. It would be an instrument of constant instigation of conflicts in the hope that the chaos generated would discourage the citizens from supporting the ruling party.
Changing the voting mode to postal is legally permissible
According to the judgment of the Constitutional Tribunal (CT) of 20.07.2011, no significant changes may be made to the electoral law later than six months before the election. The CT clarified in its ruling the concept of “significant changes”. The relevant passage reads: “As a rule, a ‘significant change’ in electoral law is one that clearly influences the course of voting and its results, and which therefore requires that the addressees of the legal norm be notified of its introduction (…) measurable factors, such as a) the size of constituencies, b) the amount of possible election thresholds in the proportional system, c) the adopted system for determining election results (converting votes to seats) have a significant impact on the final election result, from the point of view of the shape of the electoral law. This does not mean, however, that only changes in the electoral law in the indicated field can be considered significant, but that such changes by their nature as fundamental elements of law are significant, while changes to other elements are subject to assessment each time.” The Constitutional Tribunal did not mention the change of voting mode to postal as a significant change. However, it left a gate open to a dispute on this subject and the opposition is using this gate. Its position, however, is clearly weaker than the position of the government.
By isolating voters from each other and from the electoral commission, postal voting reduces the risk of infection. The opposition questions its reliability, pointing to the threat of forgery, although in 2015 it demanded this method itself. At the same time, it cannot give any examples of attempts at falsifying the election by the current government, even though local government, parliamentary and European elections, all won by the ruling Law and Justice party, were held in Poland in 2018 and 2019. Meanwhile, identifying attempts at electoral fraud during the rule of today’s opposition is not a problem. Examples of elections in South Korea (15.04) and postal votes in Munich (29.03) and Switzerland (5.04), all conducted amid the coronavirus pandemic, are encouraging. No one accuses their organisers of endangering democracy. Perceiving Poland, whose parliamentary traditions in Europe are comparable only to British ones, as incapable of holding elections – on a constitutional date – has no basis. The national postal service Poczta Polska will ensure that they will cope with this challenge. The opposition claims the opposite, but for five years it has been predicting a disaster for every action taken by the government and it has always been wrong.
There is no legal possibility to postpone the elections other than by amending the constitution. This requires a constitutional majority in parliament, which cannot be built without the opposition’s support. The opposition received such a proposal from the government in the form of extending the president’s term in office by two years, banning him from standing for presidency again thereafter, and it rejected the offer. It refuses to specify the date until which the election should be postponed, demanding the declaration of a state of emergency with the prospect of its extension until it decides that it no longer needs it. Such a step would violate the constitution and introduce permanent political chaos into the state. It is medically unnecessary, legally unacceptable, and politically absurd from a state’s point of view.
Author: Przemysław Żurawski vel Grajewski.
Author is a political scientist and an adviser to the Polish foreign minister.
The opinions expressed in this article are the author’s own and do not necessarily reflect the views of the British Poles Portal.