The draft amendment to the Electoral Code introduced by PiS [the Law and Justice party] to the Sejm just before Christmas in 20222 was deprived of some of its most dangerous provisions by the Sejm committee. However, this does not change the fact that the amendment to the electoral law being forced through by PiS continues to give rise to major objections from the legal environment, experts on electoral law and the organization of elections, local governments, NGOs and the opposition for many reasons.

We talk about this with Róża Rzeplińska, head of the Mam Prawo Wiedzieć [ I have a right to know] portal, who is constantly monitoring the progress of the work on the bill in the Sejm committee.

This article was published in Polish on 23rd January 2023 in OKO.press.

Changes just before the elections

Witold Głowacki: The Sejm is to address the draft amendment to the electoral code again. The authorities claim this will help increase turnout and make it easier for citizens to access polling stations. But non-governmental organizations (NGOs) are raising the alarm that the bill carries numerous risks. Is there anything to be afraid of?

Róża Rzeplińska: Yes. Despite the amendments made at the stage of work in the Sejm committee, there are still many reasons for being afraid of this bill.

Let’s start with the timing and the manner in which the amendments are being pushed through. According to the case law of the Constitutional Tribunal, significant amendments to the law on the organization of elections cannot be made later than six months before the date on which elections are ordered.

That is why the last day on which an amendment to the Electoral Code can legally enter into force is 14 February.

In turn, 14 August is the latest date on which the President must order parliamentary elections. This is a good and important legal principle – because, after all, changes regarding the election of successive authorities are made by the current authorities. And we have to assume that they will be ready to do everything they can to win these next elections.

If the creation of an electoral code is a part of the battle to win the elections, this is wrong, to say the least. The citizens – as well as the opposition – must have a kind of filter. This is the principle of the six-month pre-election period of grace for changes in the law on the organization of elections.

At the last minute

There is already so little time before 14 February that the deadline can very easily be missed. For example, it is enough for the Senate to exercise its right to work on the bill for the full 30 days.

The current amendment is being prepared at the last minute, in a hurry and in a complete mess.

It was already possible to wonder at the stage of work in the Sejm committee what the real intention of the authorities was – all the more so that the changes made to the bill by the parliamentary committee meant that it differs from its original version. So, it is difficult to tell whether the authorities themselves know what they want by forcing this bill through.

In the atmosphere and conditions in which it is being prepared, there is absolutely no room for consultation with various environments. And also for a completely basic reflection on how the new regulations and the change in the way elections are organized will affect the main players in the electoral process themselves.

And, after all, there are several such players. They are:

• the State Electoral Committee, which ensures that the elections are fair;

• the Supreme Court, which establishes whether the elections are valid, and with which we are aware there are numerous problems;

• the National Electoral Office, which organizes the electionsl

• the local authorities need to be added to this, as they share responsibility for organizing elections in the field;

• NGOs, which organize the process of observing the elections and are responsible for various activities promoting turnout;

• finally, we have the experts who look, for example, at how the demographic processes taking place in Poland should affect the need for changes in the boundaries of the electoral regions and the number of seats attributed to the given electoral region;

• and finally there are the political parties taking part in the elections.

Because, after all, the electoral committees of the parties running in the elections must also – to maintain equality under the law – know in which legal environment they will be running.

This is something that nobody knows today – including PiS. Unfortunately, the opposition is not helping with this.

What is this about?

The truth is that, so far, at no stage of processing of this bill has the opposition given citizens a clear answer to the question of what we are actually dealing with.

The bill appeared in the Sejm on 22 December. Up to 11 January, the opposition had not actually prepared a clear explanation as to why the provisions being forced through by PiS are bad and could have a highly negative impact on the electoral process.

It took the opposition parties a long time to reach out to specialists dealing with the electoral code. I called the opposition MPs dealing with this bill a week before the meeting of the Sejm committee. Even then, they did not have any legal opinions on the bill ready.

If I were to be spiteful, I would remind you that the first analysis of this bill written by Mariusz Jałoszewski was published in OKO.press on 22 December. Even at that rate, a basic analysis of this bill could have been conducted.

But of course. Therefore, we actually have two areas of problems. The one created by the authorities, who are trying to organize a new electoral process for themselves in a chaotic and messy legislative process. But also the one that applies to the opposition, which is responding very slowly and remains largely indolent. Without informing the citizens about the dangers of the changes to the electoral code being forced through by PiS.

What are these biggest threats at this moment?

After the committee’s work, at least two unambiguously bad proposals have remained in the bill.

• the first applies to the proposal to compensate returning officers for their work in the electoral commissions; 

• the second is the procedure in which PiS wants to create new electoral districts in the smallest towns.

There are also important changes that we really need, which have not been included in this bill since the beginning – they apply, for example, to the need to correct the demographics of the electoral regions, which have been ignored by the authorities for years.

Party activity counts

Let’s start with the returning officers and their compensation.

We have several functions in the electoral process which citizens perform – including two observation functions. These are:

• electoral committee observers, namely the returning officers 

• and NGO observers.

Their task is to check whether the electoral process is fair, whether the commissions are working properly and that electoral procedures are not being breached. They have a number of tools for this – for example, they can comment on the reports, monitor the transportation of the ballot cards and the process of counting the votes.

Whereby the observers from the organizations have fewer rights than the returning officers, who are sent for observation by the committees.

Fortunately, the work of the committee has led to the removal from the bill of the extremely bad idea of the returning officers recording the voting process.

However, the equally bad idea of compensating them has remained. Returning officers working for individual election committees are to receive an allowance from the state budget of half a committee member’s allowances, namely approximately PLN 175.

So we are to have a financial injection for party activists?

Precisely. This is additional capital for the party.

The appointment of 27,000 returning officers, namely one in each commission, is a challenge for the committee. This is more than the number of active party members.

After the changes proposed in the bill and the creation of the smallest electoral districts, approximately 30,000 will be needed.

If their work is to be compensated at all, the money for this should come from party budgets. With 30,000 commissions and a rate of PLN 175, the cost in the 2023 parliamentary elections would be approximately PLN 5.25 million for each election committee.

Why should the Law and Justice party suddenly receive such a high, five million zloty subsidy from the state budget for its party functionaries? Why should other parties receive it?

And why should party returning officers suddenly be paid from the budget, while NGO observers are not?

What we actually heard from the authors of the bill was that party returning officers would be paid from the budget, while the suckers from the social organizations should continue to observe for free. How about that!

But?

But – there’s nothing wrong with the electoral process being, in a sense, social work. And that we have people volunteering for their party or for their NGO, who decide to take part in the electoral process by observing it. This works and has worked unexpectedly well. And one more thing – the returning officer does not assume responsibility for the organization of the elections, he spends several hours in the commission.

If we were to give someone an extra allowance it should be the chairman and members of the committee. Today, their allowances are PLN 500 and PLN 350 respectively, and work in a district electoral commission means a much greater commitment of time and responsibility, including attending training, working in the commission and counting votes.  Why, instead of increasing the allowances in the commissions, should we suddenly start paying returning officers – and this in a situation where, due to inflation, Poland does not have much of that money at all?

In my opinion, this is nothing more than additional co-financing of electoral committees.

7 people in a committee for 100 voters on the motion of 8 people

Let’s now talk about the new electoral districts.

PiS is repeating that these are measures to increase turnout – which of course is, in itself, a great need for the Polish public. Even so, the procedure for creating new electoral districts is verging on absurdity.

New electoral districts are to be created, even in towns with fewer than 200 inhabitants, on the motion of 5% of the voters.

Let’s count this for a moment. In a village of 200 inhabitants, let’s say 40 people are minors and do not have the right to vote – so 5% of 160 would be eligible to file a motion, which is… 8 people.

In turn, if we take into account the electoral turnout to date – of these 160 eligible voters, approximately 100 people will take part in the elections. They will form a committee from among themselves or with the help of the local authority – in which there must be a total of 7 people. It is unlikely that there will be that many suitable volunteers in each such a small village – although PiS and PSL (the Polish Peasants’ Party) swear that there will not be the slightest problem with this.

What, then, should be done to make it easier for residents of the smallest towns and villages to access the electoral process?

Of course, people in Poland have the right to access a polling station – and this should be easy for them. It is also known that it is often far too difficult for them.

If the small town or village is 7 or 8 kilometres away from a larger one, it is too far for the elderly, for example, to get there on foot. Especially as they sometimes don’t have family to help them. And, just as often, this family is unable to help them because they live a long way away in a large city or they have emigrated.

The maps of transport exclusions in Poland have a lot of white spots.

So do maps of broadband internet access and mobile communications. Many of Poland’s smallest towns and villages really do not have appropriate conditions for organizing new electoral districts, for precisely these reasons. Not to mention the problems presented earlier with the membership of the commissions themselves.

A much better solution would therefore be to systemically organize transport to and from polling stations.

Local authorities declare that they would do this without any major problems – even the smallest ones. Simultaneously, however, local government officials are openly laughing at the ideas of the authorities. That they thought about transport to polling stations, but forgot to drive these transport-excluded people back to their place of residence. It is, however, much easier to organize transport back and forth than to locate an additional polling station in a place where it will be difficult to staff, it will be difficult to find any premises located in a public area and there will be problems with telephone or internet coverage.

But this is not the end of the problems of access to polling stations.

Gigantic queues in large cities

What is this about?

The authors of the bill have forgotten about the problems of access to polling stations for two other groups. The first is some of the population of the largest cities. They have some electoral districts in which the number of voters is so large that a real traffic jam quickly arises.

We have already seen situations where people were queuing from around 6 p.m. and there was no guarantee that they would manage to vote by 9 p.m., which is when the polling stations shut.

In turn, the commission, which has to count the votes in such an electoral district, has to work much longer hours than anywhere else. The boundaries of these urban electoral districts have been the same for many years; nobody has taken into account the emergence of new estates or demographic changes within the cities themselves. 

As a result, some of the electoral districts are overloaded – far beyond their capacity.  The bill does not address these problems at all.

Voters from abroad

And the other group that the originators of the bill have forgotten about or deliberately failed to remember are citizens living abroad. They will not be able to register for elections by phone; nor will they be able to add their names to the electoral register in Poland on polling day on the basis of their passports. Even though this is after all, I would reiterate, an identity document.

This restricts their right of access to the elections, and is an impediment through which a group of voters may not be able to vote at all.

You have already spoken about the demographic changes. The changes to the electoral code on yet another level do not take into account how Poland has changed in this respect.

Yes. PiS has been ignoring the need to make demographic adjustments to the boundaries not of electoral regions, but of electoral districts for years.

And the problem already affects 22 of Poland’s 41 electoral regions. ‘More seats should be allocated to eight regions, whereby: Kraków, Gdańsk, Gdynia and Szczecin should have one more, Wrocław and Poznań should have two more, and the Warsaw and Warsaw outskirts regions should have as many as three more.

In turn, fourteen regions should have one seat less: Legnica, Lublin, Chełm, Łódź, Piotrków, Sieradz, Radom, Siedlce, Krosno, Katowice, Sosnowiec, Kielce, Elbląg and Olsztyn.’ – listed analyst Leszek Kraszyna in OKO.press in September.

Poland is rapidly changing demographically and some of these most densely populated regions are currently no longer properly represented in terms of the number of seats. Some are decidedly over-represented. Meanwhile, the boundaries of the regions have not been changed for probably 8 years – even though the State Electoral Committee has been sending appropriate motions to the Sejm on this matter. Honestly speaking, I don’t understand why the opposition is not raising this matter at all – since they should be shouting about it.

All the more so that the unchanged boundaries of the electoral regions almost exclusively favour PiS. It is mainly the ruling party that benefits from the fact that the large cities have insufficient seats in terms of demographics.

Yes. So why is it that the same opposition that says: ‘Well, yes, PiS is preparing easy voting for its voters to drive them to the polls’, and which defines itself as reaching out more to the urban or metropolitan electorate, does not speak up for precisely these citizens?

Why doesn’t it shout about their difficulties with access to voting because the regions are too numerous and the urban lifestyle sets the time when polling stations are ‘jammed’ at 6 pm? And doesn’t care about those who want to vote but are abroad? Why doesn’t the opposition fight for a demographic adjustment of the boundaries of the electoral regions? I just don’t understand this.

Fortunately, that nightmare provision about returning officers recording the electoral process did not survive in the Sejm committee?

Fortunately it didn’t, and it was indeed a nightmare of an idea.

Let’s imagine that, upon entering the polling station, we are confronted by three returning officers who are stubbornly filming us and each other with their phones. Everyone would feel as if they were under attack in such a situation and could react with some form of aggression. This isn’t all, because the provision stipulated that these recordings would be posted on a digital platform that was to be launched by the ministry in charge of digital affairs. And then ‘immediately’ erased from the storage media of the returning officers.

I can already see how this would work.

Yes, of course, you aren’t the only one laughing at this; it was also laughed at in the parliamentary committee.

After all, Minister of Digital Affairs Cieszyński got very upset about this. Not only this, after all.

I reiterated at the committee meeting that the prosecutors are discontinuing investigations into criminal threats sent to MPs by e-mail. They are justifying this by the fact that the servers are located in the United States and that the legal relationship between Poland and the USA prevents them from prosecuting the perpetrator.

And I asked what would then happen if the recordings from the polling stations were leaked in a similar way. Minister Cieszynski said that this could be established, because it is known who recorded it, because it is known who was standing where. And that it would be absolutely determinable. Whereas I don’t suspect that the law enforcement agencies in Poland are so inefficient that they would be unable to establish that?

Fortunately, this amendment was finally removed from the bill – who knows if it wasn’t for that reason. Article 106 remained instead.

In order to finance a campaign….

Very controversial, because it opens the floodgates to financing campaigns off the record.

And it’s dangerous. It reads precisely as follows: ‘Any electoral committee and any voter can conduct election canvassing, including collecting signatures supporting the applications of candidates after receiving the electoral representative’s written consent.’

The problem here is with the comma, which should be placed after the word ‘candidates’ – in other words, the representative should give his consent to everything that appears in the sentence earlier. The committees will interpret this differently, while the State Electoral Committee will go along this because it is overworked and doesn’t have the tools. And it will accept that the representative’s written consent is only needed for collecting signatures.

However, if I buy 300 billboards for you, you don’t have to account for that in your financial report.

And this is dramatic. This means that the rules that entered into force in July 2022 regarding the register of contributions to political parties in excess of 10,000 zlotys no longer have a raison d’être.

Nobody will bother about contributing anything to a party at all anymore. They will simply rent a hall or contract for the printing of leaflets. These halls will be used for election meetings, the leaflets will advertise the parties, but the candidates will not have to report this.

Now, combine that with the current system, where whoever has greater access to money from state positions donates a percentage of his salary to the ruling party. Because it was the party that enabled him to have that job.

This is simply a contribution to exercising authority.

We even know the exact rates that are ‘applicable’ here, for example, in state-owned companies.

This is the whole system. After all, it’s not a problem caused solely by PiS.

This is also even happening in local governments, where not PiS but the opposition is in power today. And there will also be situations in local government where people working for good rates in local government companies will be counting on cooperation and relationships in the future. And therefore they will be contributing money to the party or actually financing its campaign.

Is this actually undermining the whole of the Polish system of financing political parties?

There have been a number of irregularities in both this system and previously. It cannot be said that this is actually undermining it. Even so, this is another stage of derailing its transparency and the principles of fair political competition. Because in this case, a person with access to power and its benefits is receiving (and has been receiving, because I recall that the provision entered into force in 2018) another tool to support the authority. A tool which is beyond any control whatsoever. And is in that person’s direct interest to support this authority. Because, after all, it is because of this authority that that person earns money.

It goes further. What if I have made a lot of money without the help of the authority, but I want to make more money – but with the help of the authority. Article 106 gives me a great opportunity to buy that help. It is a gateway to the oligarchization of politics.

That’s debatable, because oligarchy works a little differently – based on the non-systemic privatization of assets. But…

But slightly softer forms of oligarchization can be imagined.

Of course. For example, one where I am a concrete producer from Lower Silesia. And it is in my interest to maintain a certain status quo in my relations with the local authorities. Therefore, I look to see who will win, who will not win, who has some potential and why. And I rent a hall for Kowalski from the Civic Coalition. And I buy billboards for Malinowski from PiS, because it’s better to be in the good books with both one and the other.

In fact, if this concrete producer buys a lot of billboards, he can also count on a favourable amendment to a small paragraph of some act regarding construction law.

For example, one that only companies which have concrete of such and such a quality will be allowed to perform government projects?

Yes, this is also conceivable. Various forms of demonstration of this ‘gratitude’ from politicians for whom part of the election campaign has been financed can start to develop.

This provision has opened the door to many potential deals that could be called buying political influence. But, funnily enough, the opposition MPs in the committee were surprised by this provision and its interpretation. ‘Was it really there before?’ they asked. So I don’t really know how these people read an Act enabling them to run for election. It also says a lot about where we really are today.

And when it comes to the draft amendments to the electoral law itself, where are we today – a few days before the vote in the Sejm?

We can only say that, during the work of the Sejm committee, some of the sharpest teeth have been knocked out of this very bad bill. But it’s still a very bad bill. The authorities are not very good at communicating what they actually want. And the opposition is not coping with naming and highlighting its biggest defects to the population.

Translated by Roman Wojtasz