BASIC FRAMEWORK AND SPECIAL PROVISIONS OF THE NEW SYSTEM
The Hungarian constitutional framework has guaranteed suffrage since 1990. In alignment with the previous constitution, the new Fundamental Law expressly provides that “Members of the National Assembly shall be elected by universal and equal suffrage in a direct and secret ballot, in elections which guarantee the free expression of the will of the voters”.2 Related laws and decrees continue to be based on this core principle while providing specifics for the electoral system. While residents of the US capital of Washington, DC, controversially lack a voting representative in the US Congress, in Hungary every adult citizen enjoys the (equal) right to vote. The only (logical) exemption refers to those disenfranchised by a court for a criminal offence or limited mental capacity.
During the codification, the legislator’s core intentions were to strengthen stable, governing majorities and to ease and encourage political competition between parties. The result was a slight increase in the proportion of constituencies compared to all of the mandates in the Parliament. The latter intention resulted in lightening the requirements on the nomination of candidates and the drafting of party lists.
The major characteristics of the changes are as follows:
• The mixed electoral system – composed of single-member constituencies and proportional representation – has remained in place.
• The number of MPs was reduced from 386 to 199. The number of constituencies was likewise reduced.
• There is a single round of voting instead of two rounds.
• The previous “three-channel system” was reduced to a “two-channel system” (seats can be obtained via the national party list or single- member constituencies – one vote for candidate, one vote for party).
• For single-member constituencies (106 mandates), there is a first-past- the-post system (like in the United States or the United Kingdom).
• Redistricting created a proportional distribution of the electorate.
• For the national party lists (93 mandates), there is proportional representation, with mandates allocated via the D’Hondt method.
The above mentioned special, hybrid or mixed system has not been changed fundamentally (e.g. the threshold remained five per cent), although as the number of MPs was significantly reduced, the legislation eliminated regional (county-level) party lists by introducing a purely “two-channel” system. From the voter’s point of view, the obvious differences are that elections are now determined within a single round – which eliminates the possibility of “behind the curtain” deals typical in two-round systems. All Hungarian voters with a permanent address in Hungary can cast two votes, one of which may be given to an individual candidate in one of the 106 majoritarian single- mandate constituencies and the other to the party list, which determines the remaining 93 mandates that are awarded proportionally. As the Constitutional Court’s decisions and the public demand were in line to some extent, the Parliament did not only redraw the constituencies, but also reduced the number of all MPs. Single-mandate constituencies dropped from 176 to 106, party-list seats from 210 to 93. Although the previous proportion of individual constituencies compared to all eligible seats was slightly increased, the determination of electoral districts was performed according to the criteria determined by the Venice Commission and with respect to Hungarian public law traditions, including for example the fact that electoral district borders may not cross county borders. This means that there are now no more extremely disproportional electoral districts, unlike in the past, when there were sometimes threefold differences in regard to the number of voters in different electoral districts.
Criticism targeted not only the new legislation in general, alleging that it favours the interests of the ruling parties – although the laws were adopted years before the elections, when nobody could have known what would be the voters’ political preferences in 2014. Other minor elements were often controversial as well. Most of these negative comments focused on voting rights granted for Hungarian citizens living beyond the borders and on the introduced mechanism for surplus votes. The adopted laws contain other, frequently cited specifications as well, such as:
• Special representation for ethnic minorities;
• Clauses on avoiding gerrymandering;
• Reduction of the number of needed nominations for candidates;
• New organs supervising the elections.
While one should admit that the Hungarian electoral system has never been easy to understand, the vast majority of the criticism emerged from misunderstandings of the current system – or from the limited knowledge about the previous one. As a result, comparisons between what previously existed and the new electoral law resulted in misinterpretations or outright falsehoods.
Speaking about the voting rights of ethnic Hungarian citizens living in neighbouring countries and worldwide, many argued that the granted vote-by-mail system is an unprecedented legal solution and will favour right-wing parties during the elections. But the fact is that the new rules should not be considered exceptional as 24 other member states of the European Union ensure voting rights for their citizens abroad, even when they do not possess a domestic address. Similarly to the Hungarian regulatory framework, in 22 member states, active registration is required for those living abroad; in 17 member states, there is an opportunity for registration by mail. Additionally, in 16 member states, foreign residents can vote by mail.3 Postal voting is widely used in the United States as well, with many states enabling absentee voting with or without excuse, and several taking ballots exclusively by mail.4
Contrary to some allegations, the Hungarian legal framework does guarantee the secrecy and anonymity of ballots posted via mail, as election bodies, including delegates of the contesting parties and international observers, shall supervise the whole procedure, from the registration up to the counting and tabulation processes.
The political side of mail voting may be more important: acknowledging the political preferences of the Hungarian minorities in Carpathian Basin countries such as Romania, Slovakia, Serbia and Ukraine, the new rules may have a positive effect. They could stimulate the policies of some Hungarian political parties which are not very popular among these diaspora Hungarians to get involved in and focus on human rights and minority issues affecting these groups. As a possible result, a healthy political competition can begin for these votes, as has happened in Croatia for diaspora Croats.
A new mechanism on surplus votes, called “winner compensation”, was introduced. While international criticism – including the report issued by OSCE5 – cited that the change resulted in six additional seats being allocated to Fidesz after the 2014 elections, this allegation clearly misstates the case. The new element of the system is that the number of votes which exceed the necessary threshold for winning a mandate in the single-member constituencies is accounted for on the national party list as a compensation for the winner as well (while votes casted for a losing candidate are automatically accounted for on the lists, similarly to the previous system). This compensation scheme was intended to eliminate the distortions resulting from the regional party lists of the formal electoral system, which favoured the bigger, popular parties to the detriment of smaller ones by providing them greater chances to gain seats, thus making the whole system slightly more disproportional. In fact, the somewhat stronger disproportionality of the new system stems from the fact that the number of seats gained in the single-member constituencies is larger than before, and not from the new winner compensation scheme.6
Critiques often point out the presumptively “negative” elements of the new regulation, but always forget about the unquestionably favourable ones, such as the long-awaited preferential representation of ethnic minorities, which enables these groups to delegate MPs to the Parliament with one quarter of the votes necessary for an ordinary mandate. (This is in line with the Fundamental Law which proclaims that nationalities form part of the Hungarian political community and are constituent parts of the State.) If the votes cast for a nationality fail to meet the necessary threshold, special representatives gain seats without the right to vote, as happened after the 2014 elections.
While the threshold of five per cent for a party to enter Parliament remained the same under the new regulations, the legislation was also intended to simplify the nomination procedure for candidates running for constituencies. The motive behind this was to boost political competition. Although due to the redraw the size of the constituencies increased by two thirds on average, potential candidates only have to submit 500 signatures to authorities to gain candidacy instead of the submission of 750 nomination slips, as in the former system. Moreover, the new nomination slips offer an enhanced level of security in contrast to the previously used forms, taking into account that each of the new forms is unique and identifiable (while the legislator shall reconsider the introduction of the system of “multiple recommendations”).
Contrary to the previous structure, the new acts established a strict and transparent mechanism on when and how to redraw the boundaries of constituencies. According to the new regulations, the population of electoral districts may not differ from the average by more than 15 per cent, and if the difference exceeds 20 per cent, the Parliament – and not the government, as it was before – is bound to modify district boundaries. As a result, blatant gerrymandering of the sort you see in the United States7 cannot happen in Hungary.
On the other hand, voting has become easier for physically or sensory-challenged citizens: 2014 was the first election where blind citizens were able to vote with a Braille ballot and polling stations were made accessible for disabled voters. Additionally, the new laws say that an individual judicial decision is needed in the case of people with limited mental capacity when it comes to disenfranchisement – instead of the earlier automatic exclusion from suffrage. Learning from the dysfunctions of the former system of electoral bodies, the new rules that govern the respective new agencies responsible for organising and carrying through elections contain a number of guarantees which did not exist with respect to their predecessors. Additionally, members of the National Election Commission are now nominated by the President and the National Election Office has become an autonomous authority with its own budget, subject only to the rule of law – so it shall not be instructed during the course of its activities.
The general elections of 6 April 2014 were the first to be held under a legal framework adopted under exclusively democratic conditions. The alliance of Fidesz and the Christian Democrats won for a second time a two-thirds majority, gaining 66 per cent of the parliamentary seats with 45 per cent of the popular vote (2.3 million votes), securing its governing position. With this result, under the previous electoral system, Fidesz–KDNP would have obtained a solid absolute majority as well. Though one of the intentions of the legislator was to strengthen stable governing majorities, the slight increase in the proportion of single-mandate seats did not significantly change the proportion of all mandates within the Parliament. If we calculate the results on the basis of the previous system, the governing parties would have taken at least 60–61 per cent of the mandates.8 The ratio by which the winning party actually gained more seats during the 2014 election corresponds to the ratio by which the significance of the constituencies has grown in the new voting system in comparison to the previous voting scheme. Of course, the 45 per cent gained on the national list would not have been enough for the centre-right alliance to secure its position: a landslide victory was also required in constituencies as well. And that is what happened: Fidesz and the Christian Democrats won 96 out of 106 of them.
The vote confirmed the previous statement of the OSCE and the Venice Commission, according to which the law revising the election rules on MPs was “a good basis for the conduct of genuine and democratic parliamentary elections”. Voting took place in an orderly manner without any serious problems, and the electoral administration and the new system performed well. This was echoed by OSCE’s post-election report saying that the “parliamentary elections were efficiently administered and offered voters a diverse choice following an inclusive candidate registration process”; that “election day was generally conducted in an organised and transparent manner, and election procedures were followed”; and that “[t]he counting and tabulation processes observed were carried out in an orderly manner”.9
Overall, despite various criticisms, it should be emphasised that the new Hungarian electoral system still fulfils all democratic principles. The Parliament adopted the respective laws in an open and transparent procedure and took the decisions of the Constitutional Court into consideration. The mixed system has remained in place, while the new laws eliminated unconstitutional disproportionalities between the constituencies, lowered the number of MPs, and granted voting rights for all Hungarian citizens. The new regulations slightly strengthen the stability of governing majorities, while they open up and widen political competition in electoral races. Under this democratic framework parties or political blocs need to reach “only” two substantial criteria if they want to govern: to gain popular support and turn it into an election victory. Because, as a former Socialist politician put it more than a decade ago: one should win the elections, not the polls.
1 A reference to the closing line of the Fundamental Law of Hungary.
2 Section (1) of Article 2 of the Fundamental Law of Hungary.
3 Centre for Fundamental Rights, “One among many”, 3 September 2013. http://alapjogokert.hu/wp-content/uploads/2013/09/One-among-many.pdf.
4 Oregon, Washington and Colorado.
5 Hungary, Parliamentary Elections 6 April 2014 – OSCE/ODIHR Limited Election Observation Mission Final Report (OSCE Report), Warsaw, 11 July 2014, http://www.osce.org/odihr/elections/hungary/121098?download=true.
6 Centre for Fundamental Rights, “Regional party lists are substituted by winner compensation system”, 24 April 2014. http://alapjogokert.hu/wp-content/uploads/2014/04/Regional-party-lists- are-substituted-by-winner-compensation-system-másolata.pdf.
7 Jenna Johnson, “Is this how Maryland’s 3rd Congressional district is supposed to look?” The Washington Post, 21 September 2014. http://www.washingtonpost.com/local/md-politics/in- maryland-anti-gerrymandering-activists-take-message-to-their-target/2014/09/21/2f3dce36-
4180-11e4-9a15-137aa0153527_story.html.
8 Centre for Fundamental Rights, “Elections in Hungary 2014: a tested and verified new system”,
7 April 2014, http://alapjogokert.hu/wp-content/uploads/2014/04/Elections-in-Hungary-2014.pdf
9 OSCE Report, http://www.osce.org/odihr/elections/hungary/121098?download=true. Although the mentioned post-election report of the OSCE raised several concerns as well, most of them rely on misinterpretation of the Hungarian law. Contrary to the report’s allegations, the Parliament adopted the election laws after broad and long political debates, far before the elections, and the borders of the constituencies were not changed significantly shortly before the elections. Although the report raises concerns regarding the possibility of electoral register manipulations, no one had the opportunity to do so as the registers were supervised both by elected and party-delegated members of the election commissions, while international observers were also granted the right to audit the registers during the elections. For a more detailed refutation of the OSCE Report, see Centre for Fundamental Rights, “Hungarian parliamentary elections were efficiently administrated according to OSCE”, 15 July 2014, http://alapjogokert.hu/detailed-analysis-of-the-report-by-the- osce-on-the-hungarian-parliamentary-elections/, and Centre for Fundamental Rights, “Detailed analysis of the report by the OSCE on the Hungarian parliamentary elections”, 30 September 2014, http://alapjogokert.hu/wp-content/uploads/2014/09/ebesz_fordítás.pdf.