Electoral Code. PiS’s amendments strike at the secrecy of elections; some will obstruct their organization [INTERVIEW]


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It is already too late to amend the electoral code. While some of the changes are dangerous and harmful – one by one, Adam Gendźwiłł, an expert on electoral systems and local government politics, presents the damage that PiS’s bill brings

Interview by Dominika Sitnicka


Just before Christmas 2022, a group of Law and Justice (PiS) MPs filed a draft amendment to the Electoral Code in the Sejm, which party leader Jarosław Kaczyński had been announcing for some time during his speeches in the regions.


The amendment envisages, among other things, an increase in the number of district electoral commissions in villages and small towns, the organization of transport to polling stations primarily for people with disabilities and people aged over 60, a change in the composition of district and regional electoral commissions – allowing people with legal qualifications to do the work previously performed by professional judges, enabling returning officers to record the work of the commission at the polling station with their own private equipment.


PiS is promoting the proposed changes as ones that are supposed to improve turnout and increase accessibility of the elections. The opposition parties and political commentators point out that the facilitations are primarily targeted at groups, in which the ruling party has a high level of support – inhabitants of smaller towns and rural areas, as well as senior citizens.


But the doubts surrounding the amendment do not only apply to the intentions of the originators of the bill. Some of the provisions could strike at the principle of secrecy of elections, or significantly worsen their course and logistics.


We talk to Dr Hab. Adam Gendźwiłł from the Local Development and Policy Department at the University of Warsaw, a researcher of local governments and electoral systems, and an expert of the Batory Foundation.

Increasing the number of commissions? It’s already possible now


Dominika Sitnicka, OKO.press: Once again, a bill on the electoral law is being submitted as a members’ bill. If this Act had gone down the normal route, would the Sejm have managed to pass it at all at the admissible time?


Dr Hab. Adam Gendźwiłł: It would probably have been impossible. After all, it is uncertain at all whether such an amendment would fall within the constitutional deadline specified by the ruling of the Constitutional Tribunal, which held that no significant changes to the electoral law should be made six months before the elections are ordered.


Had the draft gone through the ministerial agreements, through consultations, the procedure would have taken much longer. For example, I believe consultations with the National Electoral Commission and the local governments, which are jointly responsible for organizing the elections, would have been necessary.


Unfortunately, this is already a standard – the bill appeared suddenly, before Christmas, submitted as an MP’s legislative initiative. We do not have the required opinions or detailed calculations of the costs of the changes being introduced, and this is no small matter.


But what about the idea of district electoral commissions in small towns? Everyone would probably subscribe to the idea that we want greater accessibility, a higher turnout, that it’s pro-democratic. But, on the other hand, it’s quite obvious that the government is focusing precisely on smaller towns, because that’s where it gets the greatest amount of support.


An increase in the number of electoral commissions primarily does not require changes in the electoral code. The current code allows for the creation of electoral commissions in polling districts that are smaller than 500 inhabitants, in cases justified by local conditions.


Such polling districts exist, and this is by no means a marginal phenomenon. Jarosław Flis used precise National Electoral Commission data to calculate that, in 2019, there were approximately 1,500 such polling districts, namely more or less 6% of the total number. If there is such a need for more district electoral commissions to arise, this can simply be done now, without resorting to such a rigid regulation as is proposed in the bill.


So what’s all this for? What’s this all about?


The authors of the bill should be asked about their intentions. I think it could primarily be a symbolic matter. And to put what Jarosław Kaczyński announced at rallies into the provisions of the law.


This is probably also about drawing attention to the electorate living in smaller, peripheral towns. Even if these voters do not have a major problem getting to the polling stations, it’s about noticing them. No reasonable person would deny that changes to make voting more accessible, to increase turnout, are desirable. This turnout has been improving in Poland in recent years, but we are still at a rather low level, even compared to countries in the region with a similar historical background.


I am sceptical about the expectation that additional district electoral commissions in small towns will noticeably boost turnout.


We don’t know how many voters do not vote because they have too far to travel to their polling station. The idea of organizing transport for voters to the district electoral commissions appears to me to be a solution that promotes turnout more. This is a real increase in accessibility. Although it should also be remembered that such initiatives were organized from the bottom up – by mayors and volunteer fire brigades.


Voting by correspondence made universal for anyone interested would promote turnout more. This bill contains a desire somewhere to over-regulate everything. The mistrust of the bodies of local government, as well as the election commissioners and the field election administration is noticeable, believing that they will not organize these elections properly. And that everything needs to be written down rigidly in an Act.


More district electoral commissions also means a much larger number of commission members.


Yes, and this is something we have already had problems with earlier. Numerous commissions remained understaffed. This is a major difficulty on the day of the elections when the votes have to be counted, as the National Electoral Commission has already pointed out before.

Another thing – voters are used to where they vote, at which address, in which building they can find their polling station.  If we significantly modify the map of polling districts, we have to expect that they will become confused. This will require a whole information campaign to be conducted, together with notification and signposting of new polling stations. This is almost certainly a further task for local authorities.


A guy recording voters on his phone?


According to the bill, returning officers will also be able to record the voting process – from the moment the ballot box is checked before the polling station is opened, to the moment the votes are counted and the report is prepared by the commission. And they can do this with their phones. I must admit this sounds worrying to me. I imagine that it could look like some guy will be standing in the polling station with his phone and filming people coming in, leaving, taking their ballot papers, voting, pressing that camera into their ballot paper and into their faces.


This is very risky indeed and I’m very concerned about this change. I don’t know how this provision is supposed to ensure secrecy of voting, to protect the image of voters and secure a peaceful voting process. Some special kind of server from the Ministry of Digital Affairs is supposed to arise where the returning officers will be able to upload recordings, but there is no mention anywhere of what they are to do with the originals stored on their devices. And whether they have the right to store and process the images of the recorded people.


The provision is, of course, one which requires the observer to record the actions of the electoral commission. But in most cases the activities of the district electoral commission cannot be recorded without recording what the voters are doing.


We should remember that the Electoral Code currently refers to recording the activities of the commission up to the start of voting and then from the closure of the polling station.


But who will record what this observer is doing? And will they intervene if anything happens? Especially if such an observer is a local activist, someone influential who has an influence on the whole municipality, for example, he is a large employer. The mere appearance of someone like this with a phone in their hand will put psychological pressure on people who enter the premises to cast their votes.


How voters will feel in a polling station monitored by someone’s private smartphone is one thing. But working under pressure from members of the electoral commission is another. I admit that the idea of recording its activities throughout the day is highly questionable.


I have the feeling that this is not about civic, watchdog activity, but precisely about fuelling mistrust with respect to other citizens who, after all, are co-organizing the elections. I believe this idea could be dangerous. Constitutionalists should look into it, because of the doubts about the principle of the secrecy of elections.


What about the counting by the commission as a whole and not in subgroups? The intention is to counter fraud, but won’t this considerably slow down the work?


The National Electoral Commission’s guidelines essentially prohibited counting votes in sub-groups, although we know from numerous reports that this has happened in some commissions. I’m not sure whether writing something into the code that is already in the guidelines for district electoral commissions will radically change the situation.


It should be remembered that, in the case of parliamentary elections, in large constituencies, where the ballot papers are large sheets or, worse, booklets, the need to show each vote can significantly slow the work down. Especially if the district electoral commissions are understaffed.


Emphasis should already be placed on recruiting members of electoral commissions. This is a much more important challenge than observers and returning officers.


This is the paradox of this amendment – the impression can be that those who assist and watch are appreciated, rather than those who actually assume responsibility for counting the votes.


One person is shovelling while five stand by and watch. 


Like in that meme where one person is shovelling, while five are just standing there and watching.


Yes, precisely. It could transpire that plenty of people will be willing to supervise the elections and watch the voting process, but there will be a shortage of people willing to perform arduous work for many hours for a relatively small consideration. While counting the votes in larger commissions could even drag on until the morning of the following day.


All these ideas would actually need to be tested, preferably in the conditions of local government by-elections. If we had enough time, we would gain experience and improve the system.


It’s the little things that count. Finding a cross, namely, a vote that is cast on a ballot paper, not only the one in the form of a booklet, but also a large sheet, is not actually a simple, mechanical task. I found this out for myself when, together with a team of experts from the Batory Foundation, we were studying the reasons for invalid votes in the 2014 local elections. Such a vote will need to be shown to all members of the commission who are present at the count.


And the returning officer will come up and zoom in.


This can prolong the counting process even more. But if he gets bored, he will turn off the camera and go home, while the members of the commission will stay and have to finish counting to sign the report.


Dismantling judicial supervision


Another change – lifting the obligation for judges to be present at regional and district electoral commissions. What is the point of such a change?


I don’t know what purpose it would serve. Such a change opens the floodgates for nominating people, who are or have been politically involved in the past, to these positions.


The judicial system of supervising elections is being consistently dismantled.


Personally, I’m in favour of a model that takes the organization of elections away from the executive, away from politicians and their nominees. The judicial model of the National Electoral Commission has been operating for many years, and although the National Electoral Commission could be resented for various matters, for being overly cautious on many issues, there have not been any major doubts about its impartiality. We have already had changes regarding the appointment of members of the National Electoral Commission, and now there are changes in the field.


So what should the Sejm do with this Act?


The bill is huge; it contains numerous provisions tidying up the mess introduced by previous amendments. For example, there is a sensible amendment in which PiS admits that the idea of two ballot-counting commissions was nonsensical and logistically untenable. This bill finally removes the need to appoint two commissions in every polling district.


I think the solutions regarding the transportation of voters could be sensible. After the arrangements are made with the local authorities, they could help needy voters break through transport exclusion at least on election day.


However, I’m disappointed that voting by correspondence has not been made more widespread as part of the solutions promoting turnout. Since we are saying that it is difficult for elderly, sick and disabled voters, as well as voters aged over 60 to get to polling stations, then making voting by correspondence available to them would be an obvious step. This would also be a solution for some voters abroad. This method of voting is much more common in many European countries.


Another disappointment – this amendment does not contain shifts in the distribution of seats among constituencies that the National Electoral Commission has been proposing for many years. It ignores the fundamental issue of voting equality, confusing it with technicalities. I get the impression that politicians of all parties are somehow scared of these changes; they do not want to raise this issue for some particular reason.


The opposition does not want to change the status quo


I can understand the reasons why PiS does not want such shifts. But why aren’t the opposition parties insisting on it, because, according to the calculations, they would gain a few seats? 


Good question. They will be able to raise this matter during the commission’s work. After all, the National Electoral Commission’s first request for a so-called demographic correction was raised during the PO-PSL government and nothing was done about it.


I think that, likewise, the opposition parties do not want to change the status quo. This issue should be removed from the electoral code altogether and left to the discretion of the National Electoral Commission, or it should be done automatically with an unambiguous formula that will calculate the numbers of seats on the basis of the number of inhabitants in the constituency.


I would expect that such a belated amendment to the Code could address precisely such matters. Although, honestly, it would be better not to change anything so quickly now. It’s simply too late for all the changes, especially those that could potentially damage voter logistics.


The politicians wasted their time testing these solutions in the post-2020 period when there were no national elections. For principled reasons, there should be no tinkering with the electoral law at a time that these elections are approaching. And here, unfortunately, this interest of the politicians in amendments during the pre-election period is increasing disproportionately.


Translated by Roman Wojtasz


The interview was published in Polish in OKO.press on the 4th of January 2023.


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January 13, 2023


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