Hungary: Fidesz’s clever sleight-of-hand
Four months before election day, Fidesz has just rewritten the rules of the municipal election system to suit its own purposes. The fine-tuned mechanism based on the lessons of the EP election will limit the opposition's scope for action and may be unconstitutional on several points. However, we most probably will not know the Constitutional Court's decision on the new rules before the municipal elections scheduled for the fall of this year.
The bill was introduced by 18 MPs of the governing Fidesz party on May 30, five days after the EP elections. The parliament voted for the twice modified bill only 11 days later, and President János Áder signed it on June 16. The way in which Budapest's citizens will elect representatives to the Budapest City Council in October has changed rapidly.
It is important to note that already in 2010 the new right-wing parliamentary majority introduced significant changes to the municipal electoral system. With the stated aim of reducing the number of municipal seats by 40 percent on average, the Fidesz majority decreased the proportion of seats – from approximately 40 to 30 percent – distributed on so-called compensation lists introduced in 1990 in towns with more than 10,000 inhabitants. Significantly, this shift toward the majoritarian principle was not followed through in Budapest. Although the number of seats on the Budapest City Council was reduced by half (from 66 to 33), representatives were elected in October 2010 – just as they have been since 1994 – exclusively on party lists, which guaranteed the proportional representation of voters' party preferences. Accordingly, Fidesz barely managed to secure a majority (obtaining 17 out of the 33 mandates) in 2010. It is this experience and the prospect of losing its majority on the City Council which have prompted Fidesz's leaders to introduce further changes to the municipal electoral system.
Under the new provisions, members of the Budapest City Council will no longer be elected on the basis of party lists. Instead, the mayors who will be elected directly (on a first-past-the-post basis) in each of the 23 districts will automatically gain a seat on the City Council. Nine additional mandates will be distributed based on a compensation list comprising votes cast for losing mayoral candidates, and the mayor of Budapest – who will be elected directly just as before – will be the 33rd member of the City Council.
The elimination of party-list voting (and the direct representation of Budapest residents) will move the municipal electoral system even more significantly toward the majoritarian pole in Budapest. Had the system already been in place in October 2010, Fidesz would have obtained a comfortable majority (21 of the 33 seats). If support for the governing party remains just a few percentage points higher than support for left-wing opposition parties (the Socialist Party, Together 2014-PM, the Democratic Coalition), Fidesz will obtain a comfortable majority on the Budapest City Council in October 2014.
The problem of constitutionality
The new system presents two basic legal problems. What limits the freedom of suffrage is that with one vote, voters can send a mayor/representative to two different bodies (the local council of the relevant district and the Budapest City Council). Thus, the residents of Budapest may have to make their decision based on two different lines of logic. Let us consider a scenario in which the voter would like to see an independent mayor leading his/her district, but would like to help one of the political parties achieve a majority on the Budapest City Council. The voter will then be faced with an absurd decision: what is more important, the mayor of his/her district or the political direction of the capital's leadership?
Huge differences in the size of district populations are even more glaring: according to the registers used for the European election, there are 17,573 registered voters in the smallest district, while in the largest there are 107,476. Several Constitutional Court rulings have already stated that a population difference by a factor of two in electoral districts violates the principle of equal voting rights – but this time the factor is more than six. Though Budapest districts are different from the single-member constituencies, the problem is essentially the same: when it comes to the election of members of popular representative bodies, equal suffrage must be guaranteed.
After Political Capital published an analysis of the possible constitutional problems, Fidesz introduced two modifications to the bill (on June 2 and June 5) which have been designed to assure the constitutionality of the new system despite the persistence of disparities between electoral districts.
The first one calculates a quota for each district ("the number of people living in the district" divided by "the number of people living in the least populous Budapest district"). In all districts, votes are multiplied by this quota and subsequently added together on a new compensation list. The votes cast for losing mayoral candidates would be transferred to this compensation list on the basis of which 9 out of the 33 councillors are awarded mandates.) Although the newly introduced compensation mechanism would partially redress the imbalance created by huge differences between the numbers of voters in different districts, it would not change the majoritarian tendency of the new electoral system.
Based on the model of the Treaty of Lisbon, the second modification introduces the "double majority": any decision will require not only the support of 17 of the 33 City Council members, but the 23 mayors' votes must also represent at least 50% of Budapest's citizens. There is disagreement among legal experts as to whether this method guarantees equal voting rights, and this ambiguity can only be dispelled by a legal review on the part of the Constitutional Court.
Unfortunately, we will not know the Constitutional Court's legally binding opinion on the two amendments before the law comes into force because the country's president decided not to ask the Constitutional Court for a constitutional review of the bill. Opposition parties are of course trying to find their way to the Constitutional Court, but the latter does not have a deadline to formulate an opinion. Hence, the most plausible scenario is that a decision will be made only after the municipal elections.
Additional benefits for Fidesz
In the run-up to the parliamentary elections, a political party can field a national list with candidates running in one-fourth of all individual constituencies. Until 2010, a similar requirement applied to the presentation of compensation lists in towns with more than 10,000 inhabitants. One of the important changes introduced by Fidesz was an increase in the threshold for the presentation of compensation lists: from 2010 only parties capable of fielding candidates in half of a town's electoral districts were eligible to present a compensation list based on which losing candidates could still be elected to the local council. A similar modification was also introduced in Budapest, where since 2010 parties have had to present lists in 12 of the 23 districts in order to be eligible to present a Budapest party list. This requirement was reintroduced in a slightly modified manner into the new regulations governing municipal elections in Budapest from October 2014. As things stand, a party must field mayoral candidates in 12 of the 23 districts in order to be eligible for a compensation list. If a party does not have such a list, it will be deprived of the opportunity to have losing mayoral candidates elected. (As noted above, votes cast for losing mayoral candidates are transferred to compensation lists on the basis of which 9 out of the 33 councillors will be awarded mandates.)
The results of the recent EP election made clear that none of the left-wing parties enjoys a dominant position on the left side of the political spectrum. Importantly, the two left-wing forces that contested the Socialist Party's hegemony on the left (Together 2014-PM and the Democratic Coalition) saw the outcome of the recent parliamentary election as a vindication of the decision to field separate party lists. This interpretation was most powerfully buttressed by results in Budapest, where both the Democratic Coalition and the Together 2014-PM alliance garnered more votes than the Socialist Party. Running independently would therefore be crucial for both parties, but the new regulation precludes this possibility, as fielding independent mayoral candidates would effectively guarantee a Fidesz victory in all of the districts. (If the three left-wing parties' candidates were to compete against one another, they would stand no chance of defeating the Fidesz candidate.) However, if the left-wing parties decide – with a view to maximizing their chances of defeating Fidesz – to present common mayoral candidates, this will also eliminate the possibility for them to present individual compensation lists, thereby depriving them of the possibility of obtaining mandates based on the new compensation mechanism. (As highlighted above, a party must present a mayoral candidate in 12 of the 23 districts in order to have a compensation list.) Another risk involved with presenting a common front is that a united left-wing list could prove just as unpalatable to voters as it did in the last parliamentary elections, when a significant number of voters harboring left-wing sympathies decided to stay at home.
This may appear to be a catch-22, but all is not lost in advance for the left. There appears to be a way for left-wing formations both to safeguard their cherished identity and to maximize votes cast for the left, although there would be a heavy price to pay: the left would basically have to forfeit 7 of the 23 districts. This is because in order to secure the right to a compensation list each party would have to field 12 mayoral candidates. The least painful way of achieving this is for each party to present a mayoral candidate in 7 districts. In these districts, a Fidesz victory will be all but guaranteed due to the fact that the candidates of the left-wing opposition will be forced to compete with one another. Left-wing parties, however, would have the opportunity to divide the remaining 16 districts among themselves on a 5-5-6 basis. In these (presumably left-leaning) districts, only one left-wing mayoral candidate would compete with Fidesz, providing the left with the opportunity to take some of these districts. Therefore, the left would still stand a chance of obtaining a majority on the next City Council even under Fidesz's new tailor-made system. In order to achieve this, however, left-wing parties would have to avoid the kind of protracted negotiations and public scuffles that enabled Fidesz to divert attention away from its record in government during the recent parliamentary election campaign, which ended disastrously for the left. It remains to be seen whether the left-wing rivals will be able to demonstrate the discipline and capacity for a difficult compromise this time around, and whether they will be able to convince enough voters of the need for political change in the capital city.
To sum up, the new regulations mathematically benefit Fidesz and create disincentives for cooperation between fragmented forces on the left – while also creating a powerful incentive for cooperation between competing forces (the Socialist Party, Together 2014-PM, the Democratic Coalition). Moreover, the further strengthening of the majoritarian principle will be detrimental for parties running independently, i.e. Jobbik and LMP. Concerning the constitutionality of the modifications, there remains some doubt as to whether the principle of the "double majority" and the persistence of disparities among the sizes of electoral districts will stand up to constitutional scrutiny. Since Hungary's president decided to sign the bill instead of sending it to the Constitutional Court for review, there is a chance that the results of the municipal elections will be contested on legal grounds by the losers. Finally, the modifications introduced into the system are likely to increase the power of district mayors and to further erode the power of the Budapest mayor despite the fact that s/he will be elected directly.