by Dorota Wysocka-Schnepf, Gazeta Wyborcza

Dorota Wysocka-Schnepf: Your Honour, don’t you get the impression that, bit by bit, PiS is taking away potential votes from the opposition from various places, using the salami method, and thereby adding them for itself in the autumn elections?

Judge Wojciech Hermeliński, former head of the NEC: ‘Yes, we have already been observing this process since January 2018, when the January amendment to the Electoral Code entered into force. The changes already started to benefit PiS there. I am talking about the removal of judges from the National Electoral Commission.

Now a further step – judges will be removed from the regional and territorial commissions. Also, the matter of providing transport for voters to polling stations, increasing the number of constituencies and commissions.

These changes can undoubtedly benefit PiS in terms of the number of potential voters, although I don’t claim that this will be the result for certain. They may, but not necessarily.

I am relying here, among others, on Professor Flis’s statements, as he says that, sometimes, changes of this type, which are intended to benefit the ruling party, ultimately go in the opposite direction and do not bring any benefit the party at all.

We shall see how it goes, but, one way or another, the intention is clear – these changes are intended to help PiS win the elections.’

The 2023 elections. Hermeliński: The changes in the Electoral Code are intended to help PiS win the elections

Let’s try to count this, to the extent to which it can be counted: first thing – despite the appeals, mainly from Poles abroad, but not only, PiS removed the ability to vote by post. How many votes can the opposition lose from this?

‘Lately, however, the Polish diaspora has rather been voting for the opposition; the period when it was voting for PiS seems to have passed. The presidential elections and the number of votes cast for President Trzaskowski indicate that the Polish diaspora has changed its way of looking at reality in Poland.

Therefore, undoubtedly, a lot of these votes may be here. I cannot say exactly what the number will be, but certainly no small number of votes may be lost. Because, firstly, there is no postal voting.

After all, voting by post is a kind of, I’m sorry to say, a kind of a “roly-poly” toy. First, it was for everyone, then during the fortunately unsuccessful so-called “envelope” elections, it was restricted to a narrow group, and now it is as it is – the Polish diaspora is unable to vote by post.’

The 2023 elections. The Polish diaspora’s voting system 

And in the last presidential elections, a total of almost half a million Poles from abroad voted. And it was precisely the vast majority that voted for Rafał Trzaskowski. Do you think that’s where this PiS ‘no’ to the postal vote comes from?

‘That seems to me to be the reason, I can’t find any other reason why postal voting should be taken away from the Polish diaspora. It is precisely the people who live outside Poland, who find it difficult to get to the electoral commissions, who should have this possibility.

Because, after all, we should also remember that there are fewer and fewer of these electoral commissions, especially in large territories, such as the USA or Canada, where it frequently happens that, if voters want to vote, they have to buy a ticket for several hundred dollars and take a two or three hour flight.

There is no rational reason for this, so I want to explain this to myself in this way – there is an aversion to the Polish diaspora which does not vote for PiS. So they need to be punished, in inverted commas, by depriving them of the ability to vote by post.

But there is another issue here, because a provision has been introduced that votes must not be counted in so-called sub-groups, or in other words, this must be done by the whole commission in corpore. On the one hand, this is a good solution, because it prevents fraud or falsifications, which unfortunately could take place.

And then there is the method of counting votes, with the chairman of the commission showing the voting card to all of its members. This is undoubtedly intended to increase transparency, but it will prolong the process of counting the votes. And it will work against the foreign commissions.’

But PiS has stipulated that the commission will have 24 hours to count the votes, and if it does not count them within this time, all the votes will be lost. Now imagine, for example, London, where the Polish community is very large.

‘Yes, simulations have been prepared and it indeed transpired from them that the commissions would not manage to count the votes within 24 hours, especially with this new procedure of presenting the voting cards. And I suspect that, even without presenting the voting cards, it would also be difficult to keep within 24 hours.

Undoubtedly, everything will depend on the efficiency of the individual commissions. There may be some that will somehow be able to fit into the 24 hours, but if there is a large number of votes, precisely as in London or other large cities, there may be a problem. And indeed a large number of votes will be forfeit – most likely those cast for the opposition.’

And one more thing that you have already mentioned – the number of polling stations abroad. In Spain, for example, before the PiS government, there were as many as 11 polling stations, whereas now there are just three, even though tens of thousands of Poles have recently bought property in that country and may be staying there during the elections. Then perhaps the number of commissions should be increasing there rather than decreasing?

‘It should be increasing, but it has been decreasing for some time. I remember the presidential elections, after all, it was already then being said that the number of commissions abroad was decreasing – whether it was just in Spain, or in the States, or in Canada.

And instead of an increasing trend, we have a decreasing number of commissions, which clearly makes it more difficult for voters to be able to vote. So they are often discouraged because they are unable to get to polling stations that are so many kilometres away from where they live.’

So whose decision is it to create or liquidate such a polling station?

‘Abroad, it is the decision of the consuls – these are government representatives. So it’s hardly surprising that they are making such decisions. Perhaps this is at the behest of some higher government factor, so to speak. I don’t know, I don’t want to get into that, because it’s also a political issue. But the fact is that there are fewer and fewer of these commissions.

This is a very worrying trend, there is certainly some reason for this, and I suspect that it is meant to be a further element making it more difficult for the Polish diaspora to cast their votes, which would most likely be cast precisely for the opposition. These are totally undignified practices.’

PiS is changing the Electoral Code. Thousands of new polling stations in ‘church towns’

Several thousand new polling stations will instead be set up in Poland, in small, so-called ‘church towns’ considered to be sympathetic to the current government. Social pressure there is likely to increase turnout. And these people will also be transported by minibuses. How much does PiS stand to gain here?

‘I have heard it can gain a huge number, somewhere around a million votes. But I don’t think this is actually possible.

The reason given for the creation of these six or even ten thousand commissions is that the inhabitants of these small villages and hamlets have no way of reaching the polling station because it is far away. Because they don’t have cars or can’t come for some other reason.

But research shows that turnout in parliamentary elections, is indeed low. But it is quite high in local elections.

So this does not suggest that voters are unable to get to the polling station. They are probably simply not very interested in the parliamentary elections, because they do not know the parliamentary candidates. However, they are certainly very interested in local elections, because they want to elect the people who will govern their municipality.

Therefore, the assertion that voters in small towns are deprived of the ability to get to the polling station because the stations are far away is not entirely true.

And the campaign to pick them up by bus could also end in failure, because voters of parties other than PiS could get on these buses. Almost certainly in the minority, however, because a rural or small-town region is more likely to vote for PiS, but it cannot be ruled out that other people will also take this bus and vote for other parties.

But it will undoubtedly bring PiS some votes. Whether it will be decisive, whether it will make a big difference to the electoral result – it’s difficult to say.’

Neo-judges to safeguard the elections

The NEC has also published a new list of electoral commissioners, and there are a lot of people associated with either Minister Ziobro or the former Deputy Minister Piebiak, the one from the hate scandal. What does this suggest and is it important?

‘It could be important. From the formal point of view, it matters to the extent that, if these are judges who were appointed by the President on the basis of a resolution of the so-called neo-NCJ, namely this National Council of the Judiciary, which was appointed in breach of the Constitution and is burdened with this constitutional defect all the time, then also, on the principle of the fruit of the poisonous tree – if judges are appointed by the president having been nominated by the neo-NCJ, then of course these judges are also affected by this defect.

And this also translates into the function of the electoral commissioner, which, within the framework of election protests, can result, for example, in questioning the appointment of these commissioners or their participation in the election process.’

On the other hand, I cannot substantively assume that these people will act improperly or dishonestly, that they will somehow even falsify the election results. It is not equivalent that a neo-judge will act in such a manner.

‘After all, it should be remembered that some of these commissioners are judges who received their first nomination to the office of judge while the constitutional NCJ was still in operation, while their promotions were approved by the neo-NCJ. So the basis for the appointment of these judges is contained within a time that the NCJ was still operating legally, so they were appointed legally, while the promotions could somehow erase this legality.

Even so, I’m not saying that they will act illegally. All the more so that this is already the second appointment of such judges, because, after all, when I had the honour of presiding over the NEC in 2018, the then Minister of Internal Affairs and Administration had already presented us with candidacies of not only judges, because, the regulations already then allowed for other professions as well – attorneys-at-law, legal counsels and academics.

I have to say that some of these people have indeed proved themselves very well. It’s difficult to say how these neo-judges will perform now.

But I’m concerned about the formal and legal issues, because there may be allegations that people who are not judges have been appointed commissioners. And therefore they cannot be them.’

We still have the Supreme Court’s Chamber of Extraordinary Control, which was established by PiS, which will consider any electoral complaints and adjudicate on the validity of the elections. Whereas the European Court of Human Rights has stated that this chamber is not a court established by law. What impact could this have on electoral issues in Poland?

‘Precisely. In the Dolińska-Ficek case, the Court clearly stated that it did not see the features of a court in the operation of this chamber, in its structure, in the way it was established.

Therefore, the elections, both parliamentary and presidential, were decided upon by a group of people who could not be identified as judges. And similarly, this chamber could not be identified as a court.

But on the other hand, it still passed a resolution on the validity of the elections. As for the substantive issues contained in that resolution – that is another matter for discussion, but in principle it passed that resolution.

And essentially everyone accepted that resolution, because there was no longer any way in which that resolution could be contested and a claim raised that the elections were invalid. There would have been total chaos by now.

So the majority of constitutionalists and lawyers accepted and approved that resolution, in a way, “for peace of mind”. But, after all, the situation will be repeated in the autumn elections. And there will be allegations about these newly appointed commissioners.

We are still stuck here in this new “good change” reality. It started with the Constitutional Tribunal, followed by the National Council of the Judiciary and the attempt to destroy the judiciary, fortunately not fully carried out. Unfortunately, all this also affects the electoral process.’

Electoral irregularities in social welfare homes. No clarification by the NEC

After the last presidential elections there were numerous complaints, do you remember the NEC or anyone else clarifying to the Poles what was happening at the social welfare homes where there was a 100% turnout and all the wards voted for President Duda in unison? They may not be huge numbers on a national scale, but this should not go unexplained, should it?

‘This should not go unexplained. In the same way that, I regret to say, I have not seen any clarifications of the issues related to voting abroad.

Because, at that time, it was still possible to vote by post, but the way in which it was conducted was disastrous. Many votes didn’t reach the electoral commissions because of the strange procedure adopted that the votes had to be provided to a courier, and only then would the courier bring these votes. Voters could not go directly to the polling station, to the consulate. All this prolonged the voting time, so some of the votes were lost. Unfortunately, the NEC did not address this.’

As for the Social Welfare Homes, I have read quite a few reports on this. Including about how in an institution near Wrocław almost 100% of votes were cast for one candidate from the government.

‘This certainly suggests that the votes were falsified. Well, because I can’t imagine that 100% of the wards of the social welfare homes voted for one person. I suspect they were misled.

Or even – I don’t know this, but I suspect – that perhaps these crosses were entered into the cards not by the voters, but by other people who suggested that it would be best to vote for that person. And that is what happened. It’s not a large number nationally, but it’s the principle.’

Hermeliński: 1–2 seats should be taken away from the rural constituencies and added to the cities. This will reduce PiS’s chances in the elections.

The demographic changes, namely an increasing population in large cities and a declining population in rural areas, means that the NEC has already submitted several motions to the Sejm to change the number of seats in individual constituencies. The latest request from the head of the NEC was for the loss of 11 seats in rural areas to large cities. Marshal Witek received this motion six months ago and nothing. Do you think it is because these seats in the large cities would mostly go to the opposition?

‘I’m almost certain that this is the reason. After all, this is not the first attempt and not the first motion from the National Electoral Commission. Because the NEC has to submit such motions if it considers that the structure in individual constituencies has been disrupted. This is about the principle of equality of all votes.

A motion was filed in 2014, a motion was filed in 2018, and it strangely happens that the structure of voters has changed so much that one or two seats need to be taken away from the small-town or rural constituencies. And added to the large agglomerations.’

This will clearly reduce PiS’s chances in the elections. So for the third successive time, the Sejm is not dealing with this at all, and the Marshal has put this motion in the freezer. This should not happen.

‘It is the Sejm’s duty to honour such an opinion of the NEC, to take it into account and at least state whether there is a basis for it or not. However, it is inadmissible to hide it, keep silent and pretend that nothing is happening. That is unacceptable.’

The election campaign and TVP propaganda. ‘This will undoubtedly affect the outcome of the elections’.

These few elements are causing changes that are favourable for PiS and unfavourable for the opposition. Are you not concerned that, with this kind of ‘a penny saved is a penny earned’ method, PiS is already tipping the scales in its favour?

‘Yes, that’s true. And if we add the election campaign to this, which is about to start as soon as the date for the elections is announced, because for the time being we are having a pre-campaign….’

…and if we add the bias of the government media.

‘Precisely. In November, I think the press published an opinion that TVP presented the proportion of time devoted to PiS and the opposition politicians to the National Broadcasting Council. It clearly arises from this that three quarters of the time was taken up by PiS and only one quarter by the opposition.

There was a similar proportion in Polish Radio. And these are figures for the third quarter of last year, so I cannot imagine what will happen during the elections.

After all, we had examples in 2019 and 2020, when half the government was involved in travelling around the country, presenting these cardboard cheques and competitions for fire engines.

A glaring advantage on one side, the government side, and a huge disparity when it comes to the opposition. I’m concerned, and I’m almost certain, that this will also be the case now. This will undoubtedly affect the outcome of the elections.’

In other words, ‘a penny saved is a penny earned’ and when it all comes together, the balance could tip in favour of PiS’s victory?

‘Of course, it can. All these changes that are being made could undoubtedly prevail.

However, let’s hope not, that this electoral process is conducted in accordance with the Constitution, that the elections will be fair. However, unfortunately, all that is happening does not readily support this hope.’

Translated by Roman Wojtasz

The article was published in Gazeta Wyborcza on 11 April 2023.