Poles Are Entitled to a Free & Fair Election, and the EU Could Help Them Get It

The ruling Law and Justice (PiS) party is desperate to have its presidential candidate re-elected. They've weighted the game in their favour and now want to force Poles to vote in the middle of a pandemic. But the EU could step in and offer voters hope.

PiS' self-serving bill that intends to oblige Poles to vote in presidential elections via an all-postal ballot amidst the coronavirus pandemic has become law. The rejection of the law by the parliament’s upper chamber, the Senate, earlier this week did not prevent the Sejm, the parliament’s lower chamber, to pass it into law despite the fierce debate sparked around the issue. Although it had to give up the idea of making Poles vote on May 10 - the scheduled election day - PiS is still determined to hold presidential elections by post on the first possible date.

Here's why PiS wants elections now, the reasons Poles should be concerned and three things the EU could do about it.

Desperate to stay in power

PiS wants at all costs to remain in power and continue to pursue its authoritarian project to dismantle democracy, rule of law and fundamental rights. The government doesn’t want to run the risk that would come with delaying the elections for a few months until the emergency passes. This would give Poles the chance to judge the government according to how it navigated them through the pandemic. PiS want Poles to vote right now instead. And so the government came up with the idea of making all Poles vote by postal ballot in the middle of the COVID-19 pandemic.

Why voters should ask if their government really cares for them

Holding an all-postal election amidst the COVID-19 pandemic will put the health of voters on the line. Universal postal voting will oblige 30 million Poles to line up and deliver their voting cards at special boxes placed at municipalities. Large gatherings are likely to occur, especially in big cities, creating a high risk for the spread of coronavirus. This is the first reason Poles should be concerned. No government that cares for its people would force them to pick between their health and their right to vote.

Another reason Poles should be concerned is that PiS is taking away their right to make a real choice about who governs for them through free and fair elections. Voters need to see how candidates perform on a level playing field, have independent judges to call out dodgy practices and cast their vote without impediments. But the new electoral law allows PiS to choose the date, the stadium, the referee and the commentators. ODIHR has made clear that, for a number of reasons, rushing in new rules on universal postal voting to come into force just before election day runs against regional and international standards on free and fair elections.

First, since lockdown started in Poland on 15th March, only the PiS-backed incumbent President Duda has been able to campaign, disguising his appearances as performance of public duties. Public service media, which has become the government’s mouthpiece, has been providing biased coverage. This makes opposition campaigning impossible, as the OSCE's human rights body, ODIHR, has warned.

Second, if the government pushes ahead with elections in May, it seems unlikely it will have put necessary safeguards in place in time. Organising an all-postal election of this magnitude – an absolute première in any modern democracy – poses huge challenges: secure preparation and handling of millions of mail-in electoral ballot packs; accurate updating of all voter registers; adequate training of postal service staff; special safeguards to protect vote secrecy during vote opening sessions. Not to mention all the health precautions necessary to contain the spread of the coronavirus.

The head of Poland’s National Electoral Commission has expressed serious doubts that a vote that incorporates these safeguards properly can be held anytime soon. Which may be why the Commission has been side-lined by the government in the organization of these elections, in favour of the Ministry of Transport. And indeed, the actual date of elections still remains a mystery.

Third, Poles living abroad will also have a hard time getting on voter lists and dropping off their ballots. They may not be granted enough time, or may not be able to fulfill administrative requirements – like presenting their passport – amidst restrictions adopted to cope with the pandemic in their countries of residence.

Fourth, the court meant to rule on the validity of elections and electoral disputes is a newly created body, which has been carefully filled with judges appointed by PiS. This is one of the results of their plan to dismantle judicial independence in the country.

And on top of all this, no international election observers can be deployed during lockdown.

Could the EU step in to help Polish voters?

And what about the EU? The Vice-President of the European Commission in charge of Values and Transparency, Vera Joruová, who is now busy overseeing the drafting of a new EU Action Plan on Democracy, said she is concerned about news from Poland, but has not taken nor announced any action.

Indeed, there are no EU laws governing how national elections are run. But that doesn't mean that the EU can't do anything about what’s happening in Poland. It could do at least three things.

1-Make elections part of Article 7 discussions

The European Commission, the European Parliament or a bloc of EU governments could put the elections on the table for discussion as part of the ongoing Article 7 procedure. Free and fair elections are central to democracy. The current situation is yet another reason for EU governments in the Council not to wait any further and move along with sanctions.

2-Uphold data protection rules

Given the hurry with which they are being arranged, the all-postal elections in Poland carry a high risk of data breaches. Local administrations and rights groups have already questioned the legality of data sharing requests coming from the national postal service.

The European Commission should not waste time and inquire if and how the Polish government is making sure all safeguards are in place to make sure EU data protection standards are complied with. If rules are violated, the Commission should take legal action quickly to prevent fraud, violation of vote secrecy and unlawful use of voters’ data.

3-Cut the flow of money

Among the elements of the rule of law is a requirement that legislation be passed according to a proper process. The president in Poland has some serious powers when it comes to legislating: he can initiate laws, stop bills, sign up to or revoke international agreements. If the president is elected in breach of existing democratic requirements that means he/she is not properly elected. And any action he/she takes that has legal consequences doesn't comply with the rule of law.

Currently national governments are debating rules proposed by the European Commission that would allow the EU to cut funding for governments breaching the rule of law. Governments should adopt these proposals quickly. In the meantime, the European Commission has other ways to suspend structural funds based on rules of fair and legal spending or rules on sincere cooperation.

It doesn’t have to be this way

The measures put forward amidst the coronavirus pandemic by PiS in Poland are a textbook example of how authoritarian leaders can use a public emergency to grab more power. Polish rights and democracy groups have expressed serious concerns. Prominent opposition figures are already calling for a boycott amidst disarray around the vote.

Yet, the only alternative PiS has offered is a unilateral two-year extension of the current president’s term just before it expires. This leaves Poles with the only option of choosing between their health and their democracy.

But it doesn’t have to be this way. The best way to serve and keep voters safe would be to hold elections in line with constitutional and international rules once the COVID-19 pandemic emergency is over – after making sure all candidates have equal campaigning opportunities and independent courts are there to rule on disputes.

It's government’s job to keep their people safe and protect their rights. And when they fail to do so, the EU should do all it can to support citizens.