Nearly two months after Poland’s political leadership began to contemplate how presidential elections could be held during the COVID-19 pandemic, the plan still hangs in uncertainty, partisanship has run its full course and institutional checks and balances are in severe disarray.
The below analysis reviews Poland’s experience in attempting to quickly switch to all-postal voting and shares advice on how to avoid missteps in such reforms. In summary, Poland’s example suggests that in countries with little to no prior experience of all-postal voting and with limited time remaining before the vote, postal voting alone may not be an effective solution for guaranteeing a free and fair vote. Hasty and uneven implementation of postal voting can undermine electoral integrity and decrease public trust in government. Instead, countries in similar situations should first and foremost heed the advice of health authorities and through consensual political decision making, work to diversify voting methods together with rigorous hygiene and social distancing measures for in-person voting (International DEA, 2020). Early planning and risk identification in a transparent and politically impartial manner should underpin decisions whether adjustments in voting methods are going to be sufficient or if elections should be postponed to a later date.
In recent months, many governments and election management bodies due to COVID-19 have increasingly considered adopting new or scaling up current special voting arrangements to avoid crowds on election day. Measures can include advance voting, postal voting, voting through mobile boxes and online voting.
International IDEA published a comprehensive overview of the impact of COVID-19 on elections globally, documenting examples of polling measures that various countries have implemented, and a technical paper on which measures to consider while planning elections during pandemics.
In March 2020, the German state of Bavaria switched to all-postal voting for the second round of municipal elections. However, in the Bavarian case, the shift was made easier by a smaller voting population and the past experience of in-country postal voting. In the US, some states already have experience with all-postal voting and more states are preparing, politically and operationally, to potentially hold November presidential polls through all-postal means. South Korea adopted a broad array of measures for their April 2020 parliamentary elections, including sanitary measures in polling stations, and advance and postal voting. Despite ample experience with postal voting in various parts of the country, the UK decided to postpone local elections from May 2020 to May 2021 in England upon recommendation of the British electoral commission, including in London.
Poland’s experiment with an all-postal vote
Poland’s democracy has, in past decades, relied on a vibrant civil society and the ability of the political opposition to check government actions. However, its record has been severely damaged by the ruling party’s efforts to weaken the autonomy of its independent institutions and the judiciary (GSoD2019). Institutions that have come under pressure included constitutional review bodies, general courts and at times the National Election Commission.
At the outset of the pandemic, instead of invoking the state of natural disaster as a response to the emergency as provided for in the constitution, the country adopted what it called an epidemiological emergency. This type of emergency does not trigger the postponement of elections. This allowed the ruling party to maintain the original presidential election date of 10 May 2020, which had been announced by the speaker of parliament in early February. The Constitution mandates that presidential elections must be held no earlier than 100 days and no later than 75 days before the expiration of the mandate of the current president. The incumbent’s mandate expires on 6 August 2020.
Only a month before the planned presidential elections of 10 May, the ruling party introduced draft legislation in the lower house on the organization of the upcoming election. The key and the most controversial measures it introduced included: conducting the election exclusively through postal method; moving the task of organizing the election away from the National Election Commission to the Ministry of State Assets; according the Speaker of the lower house the power to change the date of the election if circumstances under the newly adopted state of epidemic emergency so required. The postal service would be obliged to distribute ballots during the seven days before the election day and voters were to deposit ballots in specially designated collection boxes only on the day of the election. Acting on the draft legislation, regional authorities and the postal service had requested local governments to hand over sensitive voter data to the Polish postal service—a move that raised serious concerns among many local governments, questioning the legality of the request and data security guarantees (POLITICO).
The procedure of adopting the legislation was problematic too: The draft was approved in a rushed vote, with all three readings in a single day. This meant that major electoral legislation was adopted with no committee hearings or consultations with electoral practitioners, local government bodies or postal service providers. The narrow split in the lower house (230 votes for and 226 against, with 2 MPs abstaining) brought further polarization into the political discourse. In the meantime, the National Election Commission expressed its reservations about the plan, the Minister of Health advised to revise the timeline, and the outgoing Chair of the Supreme Court and nine former presidents and prime ministers called upon the ruling party to change its course and postpone the vote to a later date.
The OSCE/ODIHR opinion on the draft legislation pointed to problems such as of violation of the principle of the stability of the electoral law in advance of the election, lack of broad public and political consultation around the adoption of these important changes, and creation of new election supervision structures that may not be up to the task due to lack of experience and preparation.
Only four days before the election day, and after the Senate rejected the draft legislation, the ruling coalition announced that it now supported the postponement of the election to a later date. The election day (10 May) passed without the vote taking place and withouth any formal resolution adopted on its postponement. The situation reached a new level of uncertainty when on 11 May the Supreme Court issued a statement that it was not in the position to certify or reject the validity of the election since as it argued, the court had not been presented with the necessary resolution on the final results of the 10 May election by the National Election Commission. At the time of writing, it remains unclear what the applicable rule for postponing the election further will be, for how long it will be possible to delay and what methods it will use.
Reviewing this experience against internationally recognized standards for free and fair elections, the following key lessons and recommendations emerge:
- Uphold the principle of electoral law stability: Countries that introduce significant changes to the way elections are conducted, such as voting methods and the membership of election commissions, close to the election day fail to uphold the principle of electoral law stability. The principle is considered ‘crucial for credibility of the electoral process, which is itself vital to consolidating democracy’ (Council of Europe, 2002). The principle recommends that fundamental aspects of the election should not be altered a year before the election, let alone days before as was the case in Poland. One common consequence of ignoring this principle is a chain of unfeasible timelines. While politicians pushing for the quick change in Poland argued that proposed changes did not constitute a significant change, the scale and complexity of practical adjustments that were required in practice suggest the opposite.
- Ensure a broad political consensus on electoral legal framework: Broad political consensus is necessary in deciding to go ahead with elections in times of crises when civil liberties, such as freedom of assembly and movement, are limited. Electoral integrity and broader legitimacy of its outcome is weakened when a large number of electoral contestants from across the political spectrum do not agree on fundamental rules governing elections. While COVID-19 related experience has not fully crystalized, various examples from across the globe suggest that engaging in consensual democratic decision-making on how to hold elections is one key condition for success.
- Assess conditions for a fair electoral campaign: The ability of contestants to campaign freely and effectively is essential for a free and fair election. With limitations on freedom of assembly and movement, and with a short period remaining before a major nation-wide election, ensuring the environment for proper campaigning is problematic and will negatively affect the equality of electoral contestants. Campaigning through electronic and online media is an option but relying solely on the method can aggravate the problems of media bias, favoring ruling parties and those in control of media outlets.
- Uphold the independence of electoral administration: This important principle should be upheld and cannot be sacrificed to considerations of time or operational ease. While the choice of a particular model of election body is a context-specific decision, any selected model should aim to set up independent, impartial electoral commissions from the national level to polling station level to ensure that elections are properly conducted, or at least remove serious suspicions of irregularity (Venice Commission, CoE 2002). In Poland, the task was taken from the independent and judicially-appointed National Election Commission (NEC) and given to a government ministry that is vulnerable to political influence.
- Ensure that voter registration, ballot printing and distribution periods are reasonable, coordinated and protect data privacy: Voters should be able to make changes to their address of registration ahead of elections. In the case of Poland, the proposed act allowed changes to voter registration only until adoption of the act, which risked disadvantaging some voters. Importantly, EMBs should control ballot production including the enveloping through contracting printing houses. And the finished envelopes should be given to the post to send out like any other mass mailings. The post transports the ballots based on the address on the envelope but should not have access to the full voter register, as was proposed in Poland. While the legislation for all-postal voting had not yet been passed in both houses, the NEC under existing electoral law had to instruct local governments to provide relevant voter data to postal service providers. Many government officials questioned this instruction, raising concerns over the legality of the request and voter data security.
- Ensure that the ballot depositing period by voters is reasonable: Once voters receive their ballot papers and mark their choice, they should have a reasonable period of time during which votes can be returned to electoral authorities. Allowing just one day/the polling day for returning votes will not help to avoid crowded areas near deposit boxes and thus may not serve the original intention behind all-postal voting. According to best practices and as seen in practice during the pandemic in Bavaria, voters could post their votes for several days before the close of polls.
- Avoid disadvantaging out-of-country (OCV) voters: The plan proposed that OCV voters would need to request their ballots fourteen days before voting day. This deadline was untenable given the expected legislative schedule and would lead to the disenfranchisement of OCV voters. This dynamic is particularly problematic as Poland previously only allowed in-person voting for OCV voters, an unviable solution during a pandemic when people may not be able to leave their houses. Moreover, frequent rule changes can misguide OCV voters and reduce their participation (OSCE/ODIHR, April 2020)
- Protect ballot integrity and provide clear guidelines to avoid spoilt or compromised ballots: Integrity of postal ballots and accompanying statements of authenticity need to be protected through special security provisions, as postal voting in practice is particularly prone to various integrity risks. Rushed processes of approving and printing electoral material will further aggravate these risks and lead to increased cases of spoilt electoral material, confused voters and election staff. In elections that may require second rounds, such as the presidential election in Poland, these risks are doubled. These circumstances naturally require increased clarity and advance guidance to voters, as well as specialized training to potentially inexperienced election administrators.
- Ensure access by election observers and protect their health: Limitations on movement and travel during a pandemic constrain the ability of observers to implement their operations. Observers should be provided all necessary conditions, including protective gear, as they engage in their activities during the pandemic. In addition, live streaming of the work of election commissions is a positive practice that enhances transparency and openness of election authorities. South Korea provided for live streaming of voting reparations, voting transfer and the counting of ballots.
Based on this experience, countries with little to no prior experience of all-postal voting and with limited time remaining before the vote should refrain from relying on postal voting alone as an effective solution for guaranteeing a free and fair vote. Instead, they should first and foremost heed the advice of health authorities and only through consensual political decision making, work to diversify voting methods together with rigorous hygiene and social distancing for in-person voting. The case of Poland only demonstrates the importance of doing so.