If one reads the public commentary on Hungary, the outlook seems clear. Péter Magyar and his Tisza party will use their significant electoral victory (53% of the votes that translated into more than a two-thirds majority of seats in Parliament) to restore democracy and the rule of law. The EU gives him all the help he needs, but he must overcome significant obstacles, because the system has cemented Fidesz ideology and personnel across the institutions.

However, this picture is incomplete. There will be serious challenges, less on the side of ideas – Tisza can change any law including the constitution – but on the side of personnel. Many senior people have been appointed for very long terms. The President of the Constitutional Court is in office until 2037. Fidesz built an elaborate system of checks and balances not to check its own power, but for the current scenario: an electoral win by the opposition. It is not easy to see how Magyar can solve this without soon looking like Orbán did when he changed everything after 2010 (more on this here).

But there is more to reforming the Hungarian state, and it is less discussed: in Europe, we are used to seeing the issues in Hungary through the lenses of the EU and its rule of law mechanism. If your main tool is the rule of law mechanism, every problem looks like a rule of law problem.

Electoral and Institutional Distortions

Yet key problems of Fidesz’s construction of a semi-authoritarian system are not rule of law problems. They lie in the field of elections, law-making and parliamentary process. The European Commission did not address them, because a decade ago it decided to only focus on the rule of law, not on democracy. The key problems lie at different levels: Some could have been addressed by EU law, given political will, but have not been – such as the clear violation of the equality of the vote. Voters in some constituencies are significantly overrepresented, typically those where Fidesz was stronger. The OSCE/ODIHR reports that 20 of the 106 constituencies that directly elect mandates “have more than a 10 per cent deviation, with the largest deviation being 22 per cent, contrary to the principle of equality of suffrage, and in some instances in contradiction of domestic law”. In other words, ten per cent of all seats are marred by this inequality problem. The European Parliament reported on this, but it did not make it into the Commission’s enforcement toolbox.

Other key problems do not directly affect EU law, but have been addressed by the Venice Commission of the Council of Europe, which acts in the realm of soft law without ready sanction mechanisms. The Venice Commission has pointed out, for example, that the excessive use of cardinal laws, which are adopted and can only be amended by a two-thirds majority in parliament, undermines the principle of democracy, namely that majorities falling short of that threshold actually make political decisions. It noted:

“The more policy issues are transferred beyond the powers of simple majority, the less significance will future elections have and the more possibilities does a two-third majority have of cementing its political preferences and the country’s legal order. Elections (. . .) would become meaningless (…)”

These findings contradict the dominant cliché that Fidesz built a “majoritarian system” of government; in fact, it sought to thwart future majorities.

At a third level, there are aspects of the Hungarian electoral system that do not affect any European law, especially its electoral system. States are free to adopt electoral systems as they see fit, with few constraints.

Hungary’s mix of 106 mandates directly elected in single-member districts and 93 seats elected through lists does not as such raise concerns. In the belief that it would always win a relative majority, Fidesz made numerous extremely partisan adaptations to the system that increased its winner-takes-all aspects (superficially this looks like the German system, which tries to combine direct representation with proportionality, but Fidesz gave it the opposite drive; it adds to the inherent lack of proportionality). In the April elections this turned against Fidesz, which gained 39% of the votes but only 26% of the seats.

If you annulled these hyper-partisan changes made since 2010, the system would still tend to give winners a bonus, though the effect would be less marked. Before Fidesz tampered with the system, it won a two-thirds majority of seats with 53% of the votes in the 2010 elections. Plurality systems are not bad as such (I have been critical of Levitsky and Ziblatt’s suggestion that they are generally democracy-subverting, because of their often disproportional outcomes). Numerous democracies, especially those with a British tradition, use plurality votes.

The Temptation of Power and the Cincinnatus Test

Such systems often produce stable government and parliamentary majorities that get things done. They work well in countries with stable political party systems in which it is unlikely for one party to overpower its opponents in a very large number of constituencies. In the 22 elections in the UK since 1945, only once did a party come close to winning a two-thirds majority (Tony Blair won 63% of the seats in 1997, with only 43% of the votes).

This is not the case in Hungary (and is less so now in the UK) which has seen significant swings in the party scene, Tisza being the most extreme one. This now dominant party is effectively only two years old. The plurality electoral system thus presents a big risk, especially if you are not convinced that all parties have a democratic orientation. Future elections could again produce extreme outcomes, with one party totally dominating parliament.

The big question for Hungary’s democracy is whether Magyar and Tisza will establish a system that is pluralistic and avoids the risks and temptations of two-thirds majorities. Mark Varszegi takes a similar view on these pages (in German). Tisza has promised a two-term limitation for the Prime Minister, but that won’t do the trick. Such a rule can always be abolished if parties keep winning two-thirds majorities (and it would be a highly unusual limitation in a parliamentary system of government, where popular Prime Ministers can bring some stability to a fragmented party system; term limits belong to Presidential systems).

Cincinnatus is the hero of Roman legend who saved his country from peril and, once done, returned to his fields. Magyar could become Hungary’s Cincinnatus if he constructed a pluralistic democracy in which many political currents have their space, in which majorities can rule and make decisions and in which courts and independent institutions ensure the rules of the game.

If Magyar did that, he would forego the power he now enjoys, knowing that in four years’ time he would have much less of it. No external actor can make this choice for him. The question is whether he will resist the temptation that Orbán did not resist in 2010.