This autumn, the second phase of the Hungarian electoral reform generated even more tensions. The first reading of the Electoral Procedure Act was submitted to parliament on 18 September 2012. The following two months were spent hammering out a political agreement on obligatory preliminary registration – a hugely consequential new measure that would only allow those citizens to vote who register at least 15 days before election day in a national voting registry. The measure, which sparked heated debate within the governing party itself, was drafted only in mid-September. During October and November, the government was busy defending its proposal against criticism on professional, constitutional, data-protection and equal-opportunity grounds. This caused a delay and seriously affected the quality of the codification process. Concerning delays, we note that the Electoral Procedures Act still lacked a specification of rules for party and campaign financing on 26 November 2012, the day the act was passed (the government’s ideas concerning campaign rules came to light in early November, too late to allow for codification). As to the quality of the legal text, the technical implementation of the registration requirement is still missing. This is troubling in itself, but there is an even more serious problem: It is still unknown whether the law will come into force or not, since on 6 December 2012 President János Áder forwarded it to the Constitutional Court (CC) for review. The Court has 30 days for deliberation and will have to rule on whether the law is constitutional or not.
How preliminary registration would work
If the CC does not strike down the preliminary registration provision, the new law will shut out voters who are reluctant to go through the bureaucratic process in time. According to the law passed by parliament, the registration period will start on 1 September of the year preceding the election (2013) and end 15 days before election day (April or May 2014). Most voters who intend to vote will have to go to a local municipal office and register in person. Voters with a registered residence in Hungary will not be entitled to register via mail – an option that has been provided to Hungarian citizens living outside the country’s borders (the CC may force parliament to extend this option to Hungarians living in Hungary as well, however). All Hungarian citizens will be able to register via so-called citizen portals, but those who have no access to such facilities will be left with one option: registering in person. Upon request, the municipal notary will visit disabled voters, so they will be able to register in their homes.
What can the CC do?
In order to prevent the CC from declaring the mandatory registration unconstitutional, the government codified the concept of preliminary registration with its procedural details in the new Constitution on 29 October 2012. Nevertheless, there is a small chance that the CC will still find prior registration unconstitutional, because under the provisions of the Constitution the right to free elections may only be limited on other grounds. Since Hungary already has a population registry in place (which has so far functioned rather well), it is challenging to find an argument for why Hungary needs this new institution.
The key word is necessity. Should the CC decide to test the preliminary registration scheme for necessity, it is highly doubtful that a legitimate argument for the need to constrain the right to vote could be articulated. One workable argument could be that preliminary registration prevents election fraud, but this is not the case. The situation is even more complicated, since President János Áder called on the CC to consider only proportionality and not the necessity of the institution. In other words, it is possible that the CC will not examine whether mandatory registration is necessary, but will only rule on whether the restriction on suffrage is proportional or not. The most likely scenario is that the registration process will not be eliminated in its entirety, but access to it will be made slightly easier. We note that this law could ultimately make its way to the European Court of Human Rights (ECHR). If it does, the ECHR will certainly not avoid examining the question of necessity.
Why Fidesz insists on preliminary registration so boldly
With the new electoral system, the governing party is doing its best to increase its chances of winning the 2014 general election. How? First, the governing party expects to combine its heavily eroded voter base in Hungary with extra 300.000 - 500.000 votes from Hungarian citizens living abroad. Inside Hungary, electoral registration is likely to increase the proportion of committed voters participating in the election. This serves mainly the interests of the governing party, since its policies have hit groups of lower social status first and foremost, whereas its own voter base is still regarded as the most committed. Fidesz also has the most effective party machinery when it comes to mobilizing voters (far-right Jobbik is an important competitor in this regard).
Preliminary registration may also discourage a considerable number of unpredictable and disillusioned voters from going to the polls at all. A Tárki poll carried out after the 2010 parliamentary election showed that one-tenth of active voters decided whom (which candidate and party) to support only in the last two weeks. This group of 500,000 undecided potential voters is regarded by Fidesz as the most dangerous obstacle to its re-election. And preliminary registration – which ends 15 days prior to election day – can keep them away from polling stations.
This is not to say that the new institution is necessarily detrimental for opposition parties. What it does mean, however, is that they will be forced to organise their activist network and engage in a door-to-door campaign more effectively than in previous campaigns. Stricter campaign rules will push them toward this kind of electioneering too.
On public radio and television, parties with a national list will be granted a limited timeframe measured in minutes to advertise free of charge. In the print and online media, ads can still be published at standard and transparent rates, but political commercials will be banned on commercial radio and television. This restriction is relevant, because in villages where internet penetration is rather low, most people consume only these commercial media. The CC may find such discrimination between different kinds of media unconstitutional.
In summary, we may say that the electoral reforms introduced by Fidesz clearly benefit the governing party, but they do not exclude the possibility of political change in 2014 (or later). While Fidesz has played a unilateral and at times manipulative game, it has not closed the door on the opposition; it has merely forced it to find effective ways of working together and mobilizing voters disillusioned with the government. Since Fidesz has lost about 1.5 million supporters in the last two years (more than any previous governing party in this amount of time), we can clearly state that a large number of voters are looking for change. Finally, a note of caution: Electoral reform in Hungary may not be over. If Fidesz, perceiving further changes in the political climate, concludes that the electoral system it just created will not help it in 2014, there is no legal impediment that could block the two-thirds parliamentary majority from rewriting the whole thing during 2013. Such a move would not be without precedent, as the last two years have shown.
Update (1/7/2013): On 4 January 2013 Hungary's Constitutional Court struck down the most important provisions - including obligatory preliminary registration for voters residing in Hungary - of the electoral procedural law. Although the parliamentary majority could still decide to reinstate these provisions by anchoring them in the Constitution (instead of its so-called Temporary Provisions, which were struck down by the Constitutional Court on 28 December 2012), Fidesz's leaders appear to have renounced this option, announcing that there will be no obligatory registration at the next parliamentary elections in 2014.
Róbert László is an election specialist at the Political Capital Institute.