Mr Kask's speech
Electoral law and electoral administration in Europe – Recurrent challenges and best practices
17th EMB Conference
Under which conditions can elections be held under emergency situations? Reflections issued from 2020 Venice Commission’s reports on the matter (CDL-PI(2020)005rev and CDL-AD(2020)018)
Oliver Kask (Member of the Venice Commission, Estonia)
The pandemic in 2020 has taught us many lessons concerning holding elections in extraordinary circumstances. I will concentrate on two main issues: first, if the elections should be held or not and the arguments to consider, and second, if the elections are held, how to proceed with them in current difficulties.
My presentation is based on many recent analyses by international organisations, among them the International IDEA[1] and OSCE/ODIHR.[2] The Venice Commission has adopted a number of documents on the substance, including “Interim Report on the measures taken in the EU Member States as a Result of the COVID-19 crisis and their impact on democracy, the rule of law and fundamental rights”,[3] “Respect for democracy, human rights and the rule of law during states of emergency – Reflections”[4] and replies to the questionnaire on the matter,[5] giving a solid overview of the situation in different countries.
Holding or postponing of elections during the extraordinary situation or pandemic has to be decided based on the severity of the situation and possibility to follow the electoral principles.
Both the Article 3 of the First Protocol to the ECHR and the Venice Commission’s Code of Good Practice in Electoral Matters foresee several principles governing democratic elections, namely universal, free, equal, secret and periodic vote. Regularity of the elections is thus one the key elements. If there is no regularity in holding the elections, the legitimacy of the parliament decreases and the parliament does not represent the views of the public. It is especially true in societies in change, where the political preferences may change widely even during the normal periods. The extraordinary situations such as pandemic and economic instability due to it have a strong effect on the public opinion and political affiliation. In countries with high level of political confrontation or noticeable political parties boycotting the work of the parliament, holding elections in a regular manner in time can enhance the solution of the conflict. The same applies in cases there is a strong need for (total or partial) revision of the constitution and the level of distrust towards the institutions provided in the constitution lack support. Holding elections could lead to a higher level of trust and legitimacy in the state institutions.
But holding elections during the pandemic leads to high level of limitations on the campaigning, difficulties and challenges in organising the elections by election management bodies as well as to a higher level of risk to the voters’ health. Holding elections in emergency situations may be problematic from the point of view of free suffrage, and in particular in view of the freedom of voters to form an opinion, as well as with regard to the respect for human rights during the electoral process – notably during campaigns. It must be possible not only to give a vote, but also to have open and fair electoral campaigning. A genuine campaign and real public debate are just as important for democratic elections as the opportunity to vote. If the political parties and candidates use mass meetings and demonstrations as a tool for campaigning, the pandemic mostly hinders it. Door-to-door campaigning might be possible in a situation where the level of the spread of the virus is low, but there are limitations to it, too. Thus, if the pandemic or other extraordinary situation leads to an overly restrictive campaigning, the elections cannot be considered as democratic in its nature.
A balance between the right to health as well as free, universal and equal suffrage on the one hand and the right to participate in periodic, regular elections has to be stuck. Balancing these fundamental rights is the task of the state institution competent to decide on the date of elections, based on concrete and specific factual situation in the country. The decision to have the elections or postponement if it should be discussed with all political stakeholders and the decision should be based on the possibility to have meaningful campaigning and voting without putting the voters or election management personnel in a high risk. It is important to avoid basing the decision on the possible outcome of the elections for the governing political parties or incumbent officials. Thus, it is recommended that the decision be made an impartial and independent body.
Different modalities for the campaigning have to be considered while holding elections during the pandemic:
Instead of having rallies and demonstrations, campaigning should take place to a higher level in the Internet and media.
Instead of public rallies and doorto-door campaigning – political parties should know the limitations on them – more campaigning should be made in public and private media. This means that the campaigning time in TV and radio should be extended compared to what is allowed during the normal time.
Free campaigning time in public media to a larger extent should be considered to provide political parties and candidates alternative campaigning forums.
Use of social media for campaigning is a possible means especially to address younger voters. The main principles in the use of digital technologies in elections have to be followed such as free internet.
It is important to have a solid plan to fight against disinformation and fake news. The media outlets, social media platforms and state institutions have to cooperate in this matter, as due to the campaigning in social media to a larger extent the risks related to misinformation are higher.
If the elections are held during the pandemic, some side effects have to be accepted. Vulnerable groups with high risks to their health and life may not take part in the elections. The level of participation in the elections in general may decrease, too. This has been noticed in 2020 elections in many countries, although the extent of this effect may vary and in many countries, the participation has decreased only some percentage points. Still, if the level of pandemic is very high, sometimes in the regions with worst situation, the decrease may be more than 10%. Voters who prefer not to participate usually belong to most vulnerable groups and the support for candidates or political parties representing those voters can be influenced more compared to other political parties. Thus, holding elections during the pandemic can lead to underrepresentation of some social groups like elderly people.
When the decision to postpone the elections should be made? In case the spread of the virus cannot be foreseen early enough, the need to postpone the elections has to be made sometimes just some weeks or days before the elections. If the difficulties in organising the electoral campaign emerge earlier, the decision should be made instantly to avoid campaign costs and costs for the setting up polling stations without elections coming soon. If the campaign has taken place without problems, holding the elections in election day should be organised with modalities. In any case, the decision should be made as early as possible with clear communication on the reasons for the postponement and possible new date of the elections.
For how long should the elections be postponed? As the end of the pandemic is hardly predictable, the date of the new elections may be only hypothetical, with a possibility to postpone it at the later stage. The elections should be organised as soon as the extraordinary situation allows, in order to protect the regularity of elections and legitimacy of the elected institution. As the decisions by the parliament during and after the pandemic are highly important, it should be avoided to postpone the elections for more than just a couple of months, not more than six months.
The postponement of elections has to be stipulated in the legislation. As the postponement of elections is a restriction of the right to vote, the legislation has to provide possible restrictions of this right such as for any other restriction. Thus, it is advisable to provide a possibility to postpone elections in the law even in case there is no urgent need at the moment to postpone elections.
Holding elections during the pandemic requires a higher level of financing compared to the normal times. The election management authorities have to take into account the need for extraordinary safety measures; in case the voting modalities are amended, there might be a need for additional costs compared to the elections in one day only in polling stations. Additional members of the election commissions might be needed and paid, to guarantee that those under self-isolation or ill can be replaced.
The members of PEC members need to be trained on the health risks and health authorities should be involved in deciding the exact measures to protect against the COVID19 virus.
What measures to use while holding elections during the pandemic? There are a list of them, which can be considered.
Use of hand sanitizers, gloves, different pens for each voter, masks etc., in order to protect both the voters, polling station staff and observers. Voting should take place in large rooms with very good ventilation and close to the entrance to the building. If the climate allows, polling stations outside or in the halfopened tents could be considered;
In the areas with the highest rate of the spread of virus, drivein polling stations should be considered;
Different time for voting for elderly people and those voters belonging to other vulnerable groups, calling them to vote early morning, while those who have exposed to the virus having a special time slot for voting in the end of the election day;
More than one election day in order to avoid overcrowding of the polling station. In this case, special security measures have to be used to guarantee the safety of the ballot box;
Possibility to use mobile ballot boxes to a large extent, not only for ill persons but anyone who would prefer not to go to the polling station (either elderly people or those with high risks to their health with other diseases), as well as those under quarantine or selfisolation
Voting by mail (postal voting);
Internet voting is a possible solution, but requires longtime planning and enough financial resources to guarantee the secrecy of the vote and protection against cyber-threats and attacks.
Holding elections during the pandemic requires some consideration how to guarantee the possibilities to observe the elections. Without enough access to the polling stations for the observers, the trust in the electoral processes could diminish. Thus, even if the number of observers is restricted, these restrictions should be politically balanced and international observers guaranteed access to the country.
As the governments face an economic crisis due to the pandemic, there is a risk of misuse of administrative resources with electoral aims, as the need for subsidies and support measures are available to a larger extent. Those institutions responsible for the financial control of campaign finances have to supervise carefully the use of public funds during the election campaign period.
2. https://www.osce.org/files/f/documents/e/c/457567_0.pdf.
3. https://www.venice.coe.int/webforms/documents/?pdf=CDL-AD(2020)018-e.
4. https://www.venice.coe.int/webforms/documents/?pdf=CDL-PI(2020)005rev-e.
5. https://www.venice.coe.int/files/EmergencyPowersObservatory/By_country-E.htm.
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