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Upon the Hungarian Constitutional Court’s ruling this Friday, which held that the recently adopted electoral procedure law is unconstitutional on five different counts, Fidesz decided to end its controversial push for voter registration, which is arguably the party’s most significant concession since it was elected to a two thirds majority in Parliament in 2010.
The Court’s widely anticipated decision (I/3653/2012.), which came only a week after the Court struck down key parts of the so-called Transitory Rules of the Basic Law (Constitution) in part related to the registration requirement, has been lauded by human rights organizations as well as members of the opposition who are calling it a “victory for rule of law in Hungary” (MSZP) and “a turning point in political history” (LMP).
The Court had only 30 days (including 13 holidays) to rule on the more than three-hundred paragraphs long electoral reform law at the request of the President, János Áder. Mr. Áder, prior to his appointment as President, was widely known to be tasked with preparing the electoral procedure’s reform but was a dissenter on the issue of registration. When the draft law came to him, instead of signing it into effect he exercised his veto power and sent it to the Constitutional Court for preliminary normative review, highlighting five specific sections that he saw as unconstitutional. The Court agreed on all five counts.
The majority opinion, which was primarily authored by Justice István Stumpf, a former minister in the first Orbán government, and was supported by all but the five recent Fidesz appointees, held – most importantly – that requiring voting registration from Hungarian citizens who already have their addresses registered by the state is an unnecessary restriction of voting rights. The Court opined that the requirement for citizens whose addresses are not registered (e.g. in the case of those who live permanently or temporarily outside of Hungary, those who would like to vote for candidates on the minority lists, and those seeking assistance for voting) is nevertheless reasonable.
The Court argued that “At the 1990 free parliamentary elections and ever since, voters living in Hungary have been able to exercise their right to vote without the requirement of active registration. This system of voting has become a constant part of the electoral procedure. If Hungary had not had a system of personal and residency registry similar to the current one, and the only way to guarantee the exercise of voting rights would have been to require citizens to pre-register to vote, then the Law in question could be adjudicated otherwise. (…) Only substantial reasons can be regarded as legitimate to apply restrictions. With a well working, operational voting registry (that Hungary already has), we do not find any such legitimate, substantial reasons to introduce active voter registration.”
The Court also pointed out that it seems contrary to common sense that people would have to register themselves to vote by submitting their name, mother’s name, and personal ID number which the state already has in the national residency registry but it would not require submitting their place of residence, which is the basis upon which they would vote. The Court noted the law’s circular notion that the information submitted during pre-registration would have to be checked against the national residence registry for place of habitation (in order to know which voting district the citizen would belong to) when the argument for replacing the current system was that the registry contains inaccurate information. Also, voting districts have to be drawn well before the registration requirement would have ended, so, as the Court pointed out, the registration requirement could not have served the purpose of making the system more proportional, as the government argued.
Although government officials frequently cited examples in other countries where voter registration was a general practice (e.g. in the United States), at the heart of the matter was not voter registration per se, but voter registration in the Hungarian context, where registration already exists. As Justice Péter Kovács, in his paralell (concurring) opinion noted, it was hard to see the reasons behind this new law: “The law does not even define the goal it wants to achieve.” The Justice argued that even in countries where active voter registration exists, like in Belgium, Portugal, the U.K., France, the U.S., Canada, and Australia, the system is much easier than the complex one that the Hungarian law would have created and the Parliament did not provide adequate reasons why certain means of registration (like via mail) would not work when they do perfectly well in far more sensitive cases (e.g. tax filing). As the majority opinion pointed out, however, foreign examples in and of themselves are not grounds for decisions by the Court, which has to base its rulings on the Hungarian constitution: “the very fact that an institution or regulation exists in one or more countries (be they European democracies), is not decisive in the matter of harmony with the [Hungarian] Basic Law, so it cannot be the legitimate reason for restricting a right guaranteed by the [Hungarian] Basic Law.”
On the issue of campaign restrictions, the Court ruled that banning political advertisement on commercial stations was a “seriously inadequate restriction.” Banning the publishing of public opinion polls in the 6 days prior to the election day and banning political advertisement in movie theaters, the Court ruled, is unconstitutional because it is contrary to the basic right of freedom of expression and free speech and hinders the citizens’ right to adequate information.
In a cautionary message to the Parliament, the Court said that “The unquestionable legitimacy of the decisions (laws) of the elected (legislative) power hinges upon the full guarantee of general and equal voting rights.” For Fidesz, the issue of voter registration has been a hallmark political cause, but also its most politically risky initiative. Instead of alienating the functionally illiterate – as Fidesz MP Lajos Kósa referred to it – the law could easily have alienated its own shrinking voter base. This is likely the most important reason behind Fidesz party leader Antal Rogán’s swift announcement the same day as the Constitutional Court ruling that the party had dropped the idea of voter registration. Although Fidesz acknowledged that it could have amended the constitution to incorporate the voting law or have passed it by other means, Antal Rogán ultimately summed up the new official position on the issue: “We would have had the power but common sense (ésszerűség) demanded otherwise.”
–Travis LaCouter is the Managing Editor of Paprika Politik.