An Election in the Time of Pandemic

In Poland, the Law and Justice (PiS) government has opted not to use its constitutional power to declare a state of emergency due to the COVID-19 spreading. As Wojciech Sadurski explained, its motive is simple: not to postpone the Presidential election in Poland and thus increase the chances of the President-in-Office to win the second term. The question is whether the pandemic may cause invalidity of the election. If the answer is yes, as I suggest, the problem is who should be the judge of it. The chamber of the Polish Supreme Court that is empowered by law to do so does not give an ‘appearance of independence’, following the PiS’s so-called ‘reform’ of the judiciary.

Why the election in a time of pandemic?

The Constitution exclusively empowers the Marshal of the Sejm to decide on the date of the Presidential election. Her discretion is, however, strictly limited on the constitutional level. The election must be held no sooner than 100 days and no later than 75 days before the end of the President’s term (Article 128.2). In case of the state of emergency, the Constitution bans the Marshal from ordering the election. Moreover, the election that has been already ordered cannot be held during the state of emergency and during 90 days following its ending (Article 228.7). In brief, in case of the state of emergency, the ‘old’ President stays in office and the Marshal must choose a new date for the election.

The Framers of the Polish Constitution consciously adopted a rather rigid system of election dates. They also intentionally separated the Marshal’s power from the power to declare the state of emergency. The latter, depending on the type of emergency, is reserved for either the President or the Council of Ministers (Articles 229-232). Moreover, the Framers did not leave the Marshal a broad margin to decide whether it is possible, favourable or fair to hold the election. The election should be held no matter the circumstances except the formal declaration of a state of emergency, which is not in the Marshal’s hands. In the case of the state of emergency, the election cannot be held regardless of the real possibility to do so. This system protects the people against easily predictable abuses of the Marshal, the President or the Council of Ministers, who might use the epidemic as an excuse to manipulate the date of the election.

Neither the pandemic itself nor another natural disaster is a constitutional premise to change of the election date. Only if it is not possible to manage the pandemic with regular measures, should it be an argument for the state of emergency. In other words, the pandemic without the declaration of the state of emergency cannot stop the election. However, as Włodzimierz Wróbel pointed out, the pandemic matters when assessing the validity of the election.

This leads to three scenarios. The first, a rather hypothetical one, is that the election will be postponed without the declaration of the state of emergency due to the pandemic. It would be a direct violation of the Constitution. The second, a reasonable and lawful one, is that the state of emergency is declared. The third, unfortunately a very likely one in light of PiS officials’ statements, is that the election is held in the time of the pandemic because there has been no formal declaration of the state of emergency. But in the latter case, the election will be lawful only from a formal point of view.

The pandemic constitutionally matters

There are powerful constitutional arguments that support the conclusion that the election in the last scenario could be invalid from a substantive point of view. First, the compulsory quarantine (demanded by law in critical cases) or reasonable self-quarantine of voters (advised by the government in many cases) directly limit the constitutional right to vote. This limitation cannot be remedied in any way. There is no electronic voting in Poland. Only the voters with disabilities may vote by mail, following a recent reform of the electoral code (introduced by the PiS party). The right to vote must be effective and a mass limitation of this right should be taken into account when assessing the validity of the election.

Second, the restrictions because of COVID-19 also limit the constitutional right to stand as a candidate under equal conditions. Under the COVID-19 statutory restrictions, the opposition’s candidates cannot run their campaigns in a normal way, whereas the current  President Andrzej Duda is travelling around the country linking presidential duties with political agitation. Therefore, one of the fundamental democratic rules cannot be safeguarded (the majority rule). As Sadurski explained, the full understanding of the majority rule needs an equality element (‘equality of political opportunity’). This element is lost in Poland now as a consequence of extra-legal measures provided by the special statute on fighting COVID-19.

Third, according to the well-established constitutional interpretation, the election must be accompanied by strong guarantees of the freedom of expression (case K 17/98), including the voters’ freedom from fear against expressing their political preferences. It means that a reasonable threat to voters’ health and lives, like COVID-19, should also be taken into account. The liberal democratic state cannot demand a heroic attitude of voters toward elections. Last but not least, voters cannot be burdened with a constitutional obligation to secure peaceful and safe elections. It is the public authorities’ job.

Why the Supreme Court cannot assess the validity of the election

According to the Constitution, it is the Supreme Court’s (SC) task to declare whether the Presidential elections are valid. Before the PiS ‘reforms’ of the judiciary, this was a competence of the Labour Law and Social Security Chamber of the SC. After the 2018 personnel and structural changes in the SC, the power to assess the validity of the elections was transferred to the Chamber of Extraordinary Control and Public Affairs (CECPA). It was newly added to the SC structure and composed of only of new judges by the current President.

The CECPA’s independence is questioned following the EU Court of Justice’s judgement of 19 November 2019. The judgement provided numerous criteria for assessing the independence of courts and impartiality of judges in Poland. As I suggested with Michal Krajewski, the judgement shall apply to the CECPA too. And the joint chambers of the SC held on 23 January 2020, that CECPA judges may never give sufficient appearance of independence.  

This leads to two scenarios. In the first one, the CECPA will assess the validity of the election provoking reasonable constitutional doubts regarding the lawfulness of its decision, issued by the non-impartial judges. Such a decision would be formally based on the binding statute on the SC, but unconstitutional. Second, the CECPA judges would jointly recuse themselves from the SC panel to avoid the doubts. The election should be, therefore, assessed by another chamber of the SC. It would be constitutional and justified according to the binding statutes since it is formally and procedurally possible to exclude all judges of the chamber. All in all, it will be the ultimate test for the independence of the CECPA. In a decision of 23 March 2020, the CECPA made an important step in proving its independence (case I NSW 4/20). It questioned the decision of the National Electoral Commission (Państwowa Komisja Wyborcza). The CECPA accepted an argument of a claimant that the COVID-19 restrictions had hurdled to collect 100.000 citizens’ signatures, which are demanded by law from a person who would like to officially be the Presidential candidate. The National Electoral Commission refused the claimant’s candidature. The CECPA, however, argued that after the restrictions entered into force, collecting the signatures had been unreal and dangerous for private and public health. The decision shows a reasonable approach of the CECPA’s judges to elections in a time of the pandemic. It should be also taken into account by the PiS politicians.

Political fiction?

The Law and Justice party is once again proving its cynical approach to constitutionalism. After more than six years of ‘democratic backsliding’ and ‘statutory anti-constitutionalism’, during which the Polish Constitution was ‘vanishing’ and being modified by a series of unconstitutional statutes, the government started to act like  Caesar’s wife. It would like not to be suspected of any authoritarian or illiberal aspirations so much that it does not want to use the constitutional power to declare a state of emergency due to the COVID-19 spreading. History and comparative constitutionalism may support the view that a fair election may be carried out in the time of pandemic. There are democracies that have been able (but to some extent only!) to organise fair elections even during the pandemic (i.e. Israel in 2020). The price might be high as the recent French example has shown.

The Polish government’s determination in playing the pandemic card and maintaining the spring date for the Presidential election is to be regarded as a veneer that conceals the real strategy in case of a possibly lost election. If the current President loses, the non-independent chamber of the SC will still be able to declare the election invalid. Then the Law and Justice candidate will get another chance in the next election.