By Piotr Trudnowski
This article is published in cooperation with the Jagiellonian Club think tank.
Is Jarosław Kaczyński right that there is no legal reason to introduce the state of natural disaster that would be required to postpone presidential elections scheduled for May? Should opposition presidential candidate Małgorzata Kidawa-Błońska be worried about her candidacy being withdrawn?
If new elections are called, could the ruling Law and Justice (PiS) party switch its support from incumbent Andrzej Duda to a new nominee, such as health minister Łukasz Szumowski? And will the Left nominate Adrian Zandberg instead of Robert Biedroń?
Could elections in September be as dangerous as ones in May? Can Andrzej Duda’s term be prolonged by a year? We answer the most interesting questions in the discussion about potential postponement of the elections.
1. Will things be worse in autumn?
“In my opinion, the presidential elections should take place as planned, because I am sure that in the long term many unexpected circumstances could ensue. For example, in autumn certain forecasts suggest that there could be a recurrence of coronavirus,” said Prime Minister Mateusz Morawiecki last Wednesday. His words have been echoed by other members of the ruling camp.
At first glance, this argument seems logical. But upon further consideration it is dubious. We can be almost certain that the epidemiological threat will still be with us in May, whereas we can hope that by autumn just a risk will remain. The scale of the unknowns the prime minister rightly mentions means that we need to start making better preparations for a potential autumn election, even if the epidemic is ongoing. Making such preparations for May might not be impossible, but it is extremely risky.
Furthermore, as noted by Wojciech Hermeliński, the former head of the electoral commission, the current electoral code does not allow people in quarantine to vote. Any decision to postpone the elections until autumn should also encompass changes in the electoral law to protect people in quarantine from being disenfranchised. In practice this would mean expanding postal and proxy voting – options currently restricted to people with disabilities.
Expanded postal voting could apply to all citizens, not just those in quarantine. This option was introduced a few years ago in Polish law, but withdrawn before it could become popular. A similar bill in response to the pandemic appeared in the last few days in the US Senate.
The Polish constitution forbids changes to electoral law during a state of emergency, so these changes would have to be made before such a declaration, or later. “Before” seems more justified. The Constitutional Tribunal has often noted that electoral law should not be amended half a year before the election. Yet in the current circumstances, a short-term change allowing procedures to be prepared in good time is justifiable.
2. Is a state of emergency warranted?
The second fundamental doubt is whether the need to postpone elections suffices to introduce the state of emergency envisaged by the constitution. This question is an apt one, asked by many people concerned with respect for procedures and the spirit of the law as well as acquiescence to further restrictions on civil liberties.
“To introduce a state of natural disaster, state of emergency or martial law, certain conditions must be fulfilled. For now they are not, so we have no legal basis for postponing the elections,” said Michał Dworczyk, head of the Prime Minister’s Chancellery.
On Saturday, Law and Justice party (PiS) chairman Jarosław Kaczyński himself said, “I am certain that there are no grounds for introducing a state of natural disaster….Only then can the elections be postponed. We cannot simply say we are postponing because we think we should. There must be constitutional grounds.”
Is this true? According to the relevant law, a state of natural disaster can be implemented “to counteract the effects of natural disasters…and to eliminate them”. Such disasters include “an event connected to the actions of the forces of nature, especially…a mass occurrence…of infectious diseases”, particularly one “whose effects endanger the lives or health of a large number of people”, where “aid and protection can only be effective using exceptional measures”.
In other words, the law states that a state of natural disaster can be introduced (1) when a mass occurrence of an infectious disease has taken place, (2) to counteract its effects, (3) when the lives and health of a large number of people are endangered, and (4) when extraordinary measures are required.
The existence of a situation endangering lives and health is beyond doubt. The actions taking place now aim to counteract further effects of the epidemic. Moving the election would also help to prevent the spread of disease, as holding elections could endanger the health of hundreds of thousands of staff at polling stations and millions of Poles. In practice, exceptional measures are already being implemented. The current situation therefore seems to fulfil premises 2, 3 and 4.
Number 1 remains problematic. At present it is hard to speak of a “mass” outbreak in Poland, although debating the definition feels bizarre if we look at the increasing rate of infections in other countries. Yet the government is right from a legal standpoint.
Health minister Łukasz Szumowski said last Thursday that the legitimacy of postponing elections from a medical perspective will only be clear in early April. The implication is that only then can we assess whether Poland faces a mass occurrence of COVID-19, thereby fulfilling the missing premise for a state of natural disaster.
Is it possible to delay the elections for other reasons? Yes, in response to the less precise premises for implementing a state of emergency: for example “in a situation of exceptional threat […] to the safety of citizens, which cannot be removed through use of ordinary constitutional means”.
If we agree that simply holding elections on 10 May endangers citizens’ safety if there is no other constitutional way to postpone the elections, then even without mass coronavirus infection in theory they can be delayed. But this would mean incomparably greater room for restricting human and civil rights and freedoms – including preventive censorship and controls on correspondence.
3. New elections or continuation?
According to journalist Wojciech Szacki, both PiS and Civic Platform (PO) figures increasingly believe that elections after a potential state of emergency would be completely new ones. But legal opinions on the matter suggest that the electoral process should be a continuation. Moreover, announcing new elections could conflict with electoral law.
Yet there are no clear regulations on this matter, so in a certain sense we are at the mercy of the decisions of politicians, and specifically those of the ruling camp, headed (at least formally) by the speaker of the Sejm, Elżbieta Witek. She will be responsible for issuing the directive either setting new elections or updating the timetable for the potentially suspended election process.
It is important to remember that whether the government is right will ultimately be decided by the Supreme Court after the election. The current legal position is that this should be done by the Extraordinary Control and Public Affairs Chamber, whose work is currently suspended by a decision of the other three chambers.
Barring a remarkable ceasefire and attempt to change the laws minimising this problem, we can be almost certain that the opposition will try to protest the decision, suggest another solution would have been more legitimate, and challenge the status of the court.
Incidentally, it seems essential in the future to clarify the laws concerning the electoral procedure in a state of emergency, in order to spare us potentially arbitrary decisions by the government.
4. Is a solidarity boycott and substitution of candidates possible?
The increasingly popular idea that a state of emergency means a reset, not a pause, has led to many hypotheses about the political consequences of this scenario. According to Szacki, Kidawa-Błońska’s indecisiveness about postponement results from her fear that she will no longer be the Civic Coalition candidate.
There are also rumours that Duda could be replaced by Szumowski (whose popularity has soared during the coronavirus crisis) or Morawiecki, and Robert Biedroń with Adrian Zandberg, who would be a more credible voice of the left in a post-pandemic economic crisis.
Is the substitution scenario possible? Yes, in two cases. First, if the “reset, not pause” interpretation wins, which seems constitutionally dubious. Second, if the opposition pulled off a “solidarity voting boycott” and withdrew all its candidates. With only Duda left, new elections would have be called. This scenario seems risky. One candidate might refuse, or another could come forward with the required signatures (Marek Jakubiak has now added himself to the running).
But there is one more argument which makes every scenario of new elections extremely tricky for each campaign. They could mean losing tens of millions of zloty, which would be painful for everyone. According to electoral law, any donations or party funds collected for candidates’ campaigns would be lost, and would go to public benefit organisations.
For many candidates, such as Szymon Hołownia, this would make a new candidacy impossible, especially as the limit of spending on a presidential campaign is 19 million zloty. Only Duda and Kidawa-Błońska’s parties could afford such expenditure. In 2015 PO spent more than 18 million, and PiS 13.5 million.
5. Could the elections be put back a year?
Jacek Karnowski, the editor-in-chief of Sieci weekly, suggested that the elections could be put back not to autumn, but to next year. “The opposition would no doubt prefer autumn…But if we treat their assurances that it is solely about the possibility of holding a campaign and guaranteeing that everyone who wants to can vote safely and risk-free, then why not delay the election by a whole year, like the European football championship? That would be fairest. The government would have the chance to clean up after a cataclysm it was not to blame for.”
One candidate, Władysław Kosiniak-Kamysz from the Polish People’s Party (PSL), has already declared potential acceptance of this scenario, adding that he does not intend to question the president’s mandate to rule during this time.
This sounds quite sensible, but it is possible? When would the elections have to take place? No law directly regulates the latest possible election date after a state of emergency and grace period. The constitution states that they cannot occur sooner than 90 days after a state of emergency. But it also stipulates that moving the elections prolongs the president’s term, and this is the starting point for the standard method of calculating the election date.
At present, Andrzej Duda’s term ends on 5 August 2020. If we assume that the government introduces a 30-day state of natural disaster that is not prolonged, the president’s term will be lengthened by 120 days, to 3 December 2020. By law, the elections would then take place between 25 August and 19 September (100 and 75 days before the end of the term respectively). In practice, this gives us three Sundays: 30 August, 6 September or 13 September.
Based on the pause scenario and automatic postponement, the campaign for the remaining 28 days will recommence only on 8 August. Then, according to constitutional scholar Krzysztof Skotnicki’s, the speaker of the Sejm should issue a new resolution setting the election timetable for the 28 days remaining before the pause. The most likely date would then be 6 September.
What about the reset scenario? This would mean not just updating the timetable, but announcing new elections. This should take place “no sooner than seven months and no later than six months before the end of the term of the incumbent president”. That would mean between 4 May – when the state of emergency would be in force – and 3 June – during the grace period when no elections could be held. It therefore seems that abiding by electoral law in practice renders the reset scenario impossible, confirming dominant expert interpretations.
The third scenario is the solidarity boycott. In this case, the speaker of the Sejm would call an election within 14 days of a National Electoral Commission decision determining that one or no candidate remains. But the two aforementioned timetable rules are explicitly suspended, as the regulations concerning a president vacating office are applied. The election would then be held within 60 days.
To summarise, each scenario creates far-reaching restrictions on the possibility of setting an election date, and leaves the government no wriggle room. A potential scenario of postponement by a year seems possible only if a state of emergency, longer than a state of natural disaster (up to 90 days) is introduced, with an appropriate Sejm-approved extension (60 days). But the problem is that the lack of precise and unambiguous regulations means that we cannot rule out the emergence of other, less obvious interpretations.
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The key question remains unchanged: could elections be held on 10 May without limiting voting rights and increasing the epidemic threat? At present, it seems practically impossible. Whatever the decision, a dispute over its legal validity is inevitable – and it could be the most serious in the last 30 years. For Poland’s national interest, when taking this decision it is essential to minimise the legal controversies.
The original version of this article can be found here. Translated by Ben Koschalka.
Main image credit: NATO/Flickr (under CC BY-NC-ND 2.0)
