On the 31th of March a group of Law and Justice (PiS) MPs submitted a special bill regulating the organization of the presidential elections in May. The bill is accessible on the Sejm’s website.  The bill is expected to be voted in Sejm on Friday, April 3rd. The voting agenda hasn’t been announced yet as this article is published.

The draft legislation is shocking, considering that the organization of elections, including presidential, is already regulated by the current provisions of the Electoral Code. Governing Law and Justice wants to pass a special law to cover only the May presidential elections.

Law and Justice seeking elections at all costs during an epidemic

Law and Justice party no longer conceals that elections are to be held even in the midst of the raging coronavirus epidemic. The first article of this draft bill says: “The Act establishes special rules for conducting postal voting in elections for the President of the Republic of Poland ordered in 2020, in connection with the epidemic declared within the territory of the Republic of Poland.”

PiS is pushing for these elections because, at the moment, everything favours Andrzej Duda, who is fighting for re-election. Incumbent Duda benefits from free TV time through speeches to the nation. The opposition candidates are not conducting their campaigns because of the epidemic, while Duda is traveling around Poland showing himself as a “good leader.”

PiS is also acutely aware that an economic crisis will certainly hit after the epidemic, and all the ills connected with it will weaken the poll numbers of Law and Justice before the May elections.

According to the draft bill submitted by PiS deputies in the Sejm, the organization of elections during the epidemic is to be aided by giving all citizens the right to postal vote.

Law and Justice has already extended this right to seniors over the age of 60 as well as to people subjected to quarantine in legislation adopted through votes from both PiS and PO at night on 28th of March.

Now PiS wants to give the right to postal voting to all voters, including those living abroad. Only voters casting their votes through a proxy and voting in what are known as closed electoral districts in hospitals, on ships, in penitentiaries, in social welfare homes, or in dormitories will not be able to vote in this way.

PiS to hold elections without local governments?

The rules for general postal voting will be announced in regulations and resolutions. The Ministry of State Assets – headed by Jacek Sasin – will specify in the regulation such issues as the mode of collecting return envelopes from voters and their delivery to local electoral commissions.

In turn, the State Election Commission (SEC) will define by resolution the mode of handling envelopes with votes at electoral commissions.

Abroad, the role of election commissioner will be performed by consuls. The details of correspondence voting abroad, the rules for transferring voting packets, their receipt, the manner of their storage and transfer to commissions will be determined by a regulation of the Minister of Foreign Affairs.

Of significance is Article 7 of the draft bill by PiS deputies, which states that “In the elections for the President of the Republic of Poland ordered in 2020, the State Election Commission may determine other conditions for the establishment of an electoral district than those set out in Article 182 and Article 183 of the Electoral Code of 5 January 2011.” Articles 182 and 183 of the Electoral Code regulate the principles of establishing election commissions.

So what is the point of Article 7, which allows the establishment of election commissions in a manner that departs from existing law? Is this the way Law and Justice wants to overcome the resistance of local governments which say that they will not participate in organizing elections during the epidemic?

Local governments mainly prepare polling stations in schools, kindergartens or community centres. They also collect applications from candidates to work in electoral commissions.

Will Article 7 and another provision passed along with legislation to ameliorate the economic crisis allow PiS to transfer the organization of election commissions and elections to other institutions under its own control? Will Law and Justice use the police, the army and the Territorial Defence Forces to organise elections when local governments refuse to do so and nobody is willing to work in election commissions?

Hermeliński: at the moment, there’s no danger of the army organizing elections

Wojciech Hermeliński, former Constitutional Tribunal judge and former Chairman of the State Electoral Commission comments:

“I am concerned about this article 7. I don’t know what’s behind it. But it cannot derogate the statutory conditions for appointing election commissions [this is regulated by the Electoral Code – ed.]. Candidates for a commission must, for example, live in the province where the commission is located,” says Hermeliński in interview for OKO.press.

In his opinion, Article 7 allows only the State Electoral Commission to define the technical conditions for establishing electoral commissions, as the State Electoral Commission cannot amend the election code by resolution.

The question thus arises: what conditions can the SEC change? For example, the SEC has already specified that candidates for these commissions may submit their candidacies electronically as a result of the epidemic. “This Article 7 does not allow the military to be involved in election commissions. There would have to be a clear provision allowing for such a possibility,” stresses Hermeliński.

The former head of the SEC notes that as in the previous week, the current proposals for changes in election law proposed by PiS violate the existing rules. According to the Constitutional Tribunal’s jurisprudence, significant changes in election law can be passed not later than six months before elections. “And there are significant changes in this draft, as it introduces postal voting for all voters,” remarks Hermeliński.

Moreover, the current draft changes in election law – as they were last week – have been introduced without warning in the Sejm. And according to Rule 89(2) of the Sejm’s Rules of Procedure, the first reading of draft amendments to a Code or draft amendments to the provisions introducing a Code may not take place earlier than fourteen days after the delivery of the draft to deputies.

The entire draft bill is available here.

Dispute in the ruling camp

It is not clear when the Sejm will take up this Law and Justice draft bill. It may do so at night on Friday, March 3rd.

However, there is a dispute brewing over these changes within the ruling coalition. Jarosław Gowin, Minister of Science and Higher Education and leader of Porozumienie (Alliance), who controls 18 seats in Sejm, does not like the new draft law.

“Gazeta Wyborcza” has reported that Gowin is threatening to leave the government if the changes are passed. Meanwhile, Jarosław Kaczyński is being supported by Zbigniew Ziobro.

It is also not clear known why PiS is forcing through a special law on presidential elections right now. After all, the Senate may block this bill by holding it for 30 days. That would mean Law and Justice will no longer be able to pass it in the Sejm and introduce postal voting before the elections on 10 May.

It cannot be ruled out, however, that PiS plans to provoke a conflict with the opposition if they seek to block the project in the Senate.

A message to the nation was delivered by the Speaker of the Sejm, Elizabeth Witek, from PiS. In it, she praised the notion of postal voting.

“It is currently being introduced in many places in the world where elections are bring held despite the pandemic. A draft bill with appropriate regulations on this matter is already in the Sejm. However, in order to successfully introduce these changes, we have little time and smooth cooperation between the Sejm, Senate and President is necessary. As the Speaker of the Sejm, I assure you of my readiness to proceed quickly, efficiently and collegially with the bill. I would also like to appeal to the Speaker of the Senate for the Upper House to take this task seriously and responsibly. I ask for the bill to be proceeded on efficiently in the Senate, because there will literally be only a few days after its adoption in the Sejm for the President to sign these changes into law and for them to take effect,” said the Speaker of the Sejm. And she sent a warning to the opposition, which enjoys a majority in the Senate: “It is a constitutional tort to postpone an election against the constitutional order just because someone perceives political gain in doing so. You can’t do that. The continuity of maintaining the institutional order of the state in such a crisis as the one facing us today should guide us all, regardless of political affiliations and views.”

The Speaker of the Sejm also said in her speech that PiS has no plans to introduce a state of emergency, which would automatically lead to the cancellation of elections.

Translated by Matthew La Fontaine