I had the special chance to share knowledge and followed the complete implementation of the new electoral procedure and the modified election financing in practice as an independent candidate at the 2018 parliamentary elections.
Being a candidate, I had the chance to attend candidate negotiations regarding which only indirect and, therefore, unverifiable information was available during previous elections. I also had the chance to study the effects of the new rules on the candidates' and nominating organisations' behaviour which is often determined by the regulations with a view to accomplish individual goals. This implies that the combined effects of individual rules do not give a choice to candidates or nominating organisations. They can only make a single decision in their interest, all other options conflict their interests. These determinations add up, and, besides rational decision-making, election results are approximately accurately known already before the elections. The results of recent elections are objective facts, to the effect that the 2010, 2014 and 2018 elections resulted in the two-thirds victory of the same nominating organisation. Taking the chance offered by the first two-thirds victory and changing the election rules allowed winning a two-thirds parliament majority with less support.[2]
These objective results are the starting point in answering the question whether a different result is possible with unchanged regulations and rational decision-making. This is the basic question. Further investigation could answer questions of detail which, of course, affect the way the current electoral system works.
The candidates' opportunities to contact electors, the usability of new communication channels and their limits are important in terms of the equal opportunities of the candidates. Accessibility of traditional communication channels may not be ignored, as these are key to campaign success given the habits of various age groups. The access time limit and considerable use restrictions of the campaign financing assistance of the state, which declaredly guarantees equal opportunities while its implementation shows considerable differences, is closely related to this.
The operation and breakdown of the election IT system were prominent characteristics of the 2018 parliamentary election. The necessity of further developments and modifications of various support systems as well as the effects of the implementation of the election procedures and the website that became dysfunctional on the day of the election must by all means be checked in this regard.
Party financing and the transparency, or the lack of transparency of their campaign spending raise the question whether current regulations comply with electoral basic principles and any deviation from them provides efficient legal remedy for those with adverse interests. Equal opportunities of candidates and nominating organisations could be effectively studied based on practical experience, because the functioning of individual rules will decide whether they serve to accomplish the goal declared by the legislator.
The time length of the campaign is also related to financing and communication opportunities. The argumentation that a short campaign period is cheaper and serves the peace of electors sounds good. It is, however, not clear whether it is suitable for adequately developing the electors' will. Because if not, then any superfluously used state assistance is too expensive. Such state assistance does not only include the state assistance provided for the candidates and the nominating organisations but also the personal and material expenses of conducting the elections as well as the moneys used during the election period and financed from public funds (state and local government funds) and appearing as election costs. Campaign length is also a question of application of
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the law, because election bodies, having regard to individual actions' being linked to the election campaign period, do not investigate previous actions that affect the elections. For example, nationwide advertisements can be used to establish standpoints on questions in the focus of elections by using state, local government or private funds; in contrast, however, no action may be taken by referring to election rules, because these rules apply in the election period only.
In the campaign period, an independent candidate gets funding one week after the non-appealable decision establishing his or her candidacy, i.e. several weeks after the start of the election campaign, and the use of this funding is considerably restricted by Act LXXXVII of 2013 on the Transparency of Campaign Costs related to the Election of the Members of the National Assembly (hereinafter referred to as Campaign Finance Act) Decree No. 69/2013. (XII. 29.) of the Minister for National Economy on Supporting the Election Campaign Costs of Members of the National Assembly (hereinafter referred to as Campaign Finance Decree) and Government Decree No. 4/2013. (I. 11.) on the Accountancy of Public Finances (hereinafter referred to as Public Finances Accounting Decree). The nominating organisations advertise and stick out posters until this point of time. This time-limit may be extended further as the decision of the election commission on the registration of the candidate may be appealed. This right could be abused, because the voter in the central voter register, candidate, nominating organisation, and any individual or legal entity, organisation without legal personality may submit a clearly unfounded appeal against the decision at first instance of the election commission[3].
The Hungarian State Treasury mails the candidate the treasury card and the card's PIN code or gives him or her these at the place of concluding the agreement within 5 days as from the date of concluding the agreement with the Hungarian State Treasury. Afterwards, the treasury card must be activated at an ATM terminal of OTP Bank, a bank contracted by the Hungarian State Treasury. Funds can be transferred to the campaigner only afterwards, and the campaigner will invoice eligible material expenses.
According to Decree No. 3/2018. (I. 11.) of the Minister of Justice on Establishing the Procedural Time-limits and Deadlines of the Election of the Members of the National Assembly on 8 April 2018 (hereinafter referred to as Election Deadlines Decree) the campaign period was between[4] 17 February and 8 April 2018[5], the period to nominate candidates for single-member constituencies was between 19 February and 5 March 2018[6].
Owing to the funding rules, statutory time limits must be taken into account in a way that they are closely related to the funding rules of the Campaign Financing Decree and the Public Finances Accounting Decree as well as the terms and conditions in the model contract of the Hungarian State Treasury. This means that recommendations must be submitted as early as possible in the nomination process, considering the election office's verification time limit, the election commission's decision-making time limit and the legal remedies. The election office has three days to check the nominations[7]. The election commission registers all nominating organisation, candidates, and lists on the fourth day following their announcement at the latest[8]. The appeal must be so submitted that it arrives to the election commission on the third day following the adoption of the contested decision at the latest[9]. The election commission authorised to assess the appeal adopts a decision on it on the third day following its receipt at the latest.[10] Taking these rules into account, the candidate gets the state funding on 10 March, if recommendations are submitted as early as possible and maximum procedural time-limits are taken into account, or on 24 March, if recommendations are submitted on the last day of the time limit and maximum procedural time-limits are taken into account. Taking rational dates into account, it is clear that the state funding is available for less than a month, while the election campaign period lasts from the 50[th] day preceding the election day to the end of the election on the election day; i.e. the period during which state funding is available is somewhat longer than the half of the 50-day[11] long campaign period. It must be emphasised that the election bodies - more
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specifically, the election office, the election commission and the professionals working at the Hungarian State Treasury-know the inequality of opportunities implied by the regulations and act as early as possible; moreover, it must also be emphasised, for the sake of correctness, that, in my case, the other candidates did not misuse the right of appeal and did not seek to extend access to normative state funds under the name of somebody else. The regulations, however, offer the above opportunities to further deteriorate the chances of candidates, especially independent ones.
One could ask in each phase of the electoral procedure whether the status of independent candidates is an actual one or only symbolic? What guarantees equal opportunities now and what guarantee rules are required to ensure that the competition with party candidates is a true competition?
The public perception regarding the amount of state assistance is that huge sums disappear illegitimately during the elections. It is, therefore, worth reviewing the actual regulations regarding an independent candidate who assumes the liability for the use of moneys as a single person, contrary to the non-transparent and irresponsible spending of public money by nominating organisations, regarding which some MPs realised the regulatory insufficiency and submitted draft act No. T/714 to the newly formed National Assembly.
At the general and interim elections of Members of Parliament, every candidate in single-member constituencies is entitled to HUF 1,000,000 as assistance from the central budget.[12] The amount of this assistance is to be increased by the consumer price index established by the Hungarian Central Statistical Office for the year preceding the reference year as from the year following the general elections following the entry into force of this Act.[13] This amount was HUF 1,025,014 at the [2018] parliamentary elections. It is, however, important to know, that the assistance may be used only during the election campaign period and to finance material expenses related to the campaign activities specified in the electoral procedure act[14]. Clause K.3. "Material expenses" in Schedule No. 15 of the Public Finances Accounting Decree provides an itemised list of material expenses among which primarily the following can occur during an election campaign:
- the purchase price to procure or subscribe to paper-based means assisting the activity and providing daily and regular information including books, gazettes, legal information, daily newspaper and journals,
- the purchase price paid for office paper and forms as well as the purchase price paid for any and all office materials including folders, staplers, office clips, calendars, pencils, pens, erasers, glues, paper punches,
- the purchase price paid for printing and reproduction materials including ink and ink cartridges,
- communication services
- IT services
- the purchase price paid for computer system planning, related consulting, computer network and data-processing equipment setup, onsite control and operation, including computer setup, software installation (if not included in the purchase price), and related auxiliary services,
- the purchase price paid for computer programming services including database compilation, software coding, modification, configuration and testing of existing applications,
- the purchase price paid for the designing, preparation and operation of online sites and web portals,
- payable value added tax; this item includes the value added tax liability for the sale of products and the provision of services according to the rules of the ordinary or reverse charge system and taking the deductible value added tax.
Given a 27% VAT rate, HUF 276,754 from the HUF 1,025,014 gross state assistance goes back to the budget as VAT; therefore, the disposable net amount is HUF 748,260. In addition, if the candidate does not get at least 2% of the casted valid votes in the single-member constituency,
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except if he or she deceases before the election, then he or she is obliged to repay the assistance amount to the State Treasury.[15]
The National Election Office informs the Hungarian State Treasury of the election results and the fact that the candidate has been knocked out on the day following the becoming final and non-appealable of the election results in the single-member constituency, and the Hungarian State Treasury decides on the payment obligation, and this decision is non-appealable. The payment obligation becomes applicable on the fifteenth day after the court has upheld the decision of the Hungarian State Treasury or the time period available for action has lapsed fruitlessly. If the candidate fails to fulfil his or her payment obligation within the specified time limit, then the National Tax and Customs Authority collects the debt as taxes[16]. These strict rules imply that, if the candidate has assets, then the full amount of the state assistance used is collected from him or her as taxes despite the fact that he or she has already paid its VAT content for the state budget. If this regulation becomes widely known, it will considerably reduce the willingness of independent candidates with income or assets to stand for election. Compliance with Clause K.3. "Material expenses" of Schedule No. 15 to the Public Finances Accounting Decree is important because there is another strict rule: if the candidate accounts for the state assistance used, but the Hungarian State Treasury does not accept the accounting either partially or entirely, then the double of the assistance accounted for inappropriately has to be repaid[17]. This limited use prevents, among others, personal payments to assistants; although the tax and contribution content of such payments would imply even less efficiency than the 27% VAT rate.
The most important feedback regarding one's standing as an independent candidate for election is voluntary work-more specifically the support and work of family members, friends, acquaintances and especially unknown people in contribution to the campaign.
After utilisation, the candidate must attach authentic copies of the documents verifying the use of the assistance and an invoice summary datasheet enumerating these documents and included in Annex No. 3 of the agreement.
In this invoice summary, the candidate must provide a detailed written reasoning of the purpose of each expenditure item. The invoices issued for the candidate's name must comply with the requirements of Act C of 2000 on Accounting and Act CXXVII of 2007 on Value Added Tax, and the candidate must indicate his or her single-member constituency on these documents. The candidate authenticates the copies of these documents by signing them and writing "Fully identical with the original" on them.
Naturally, candidates use their own resources - more specifically, money and the use of their own assets such as telephone, internet, car as well as their own manpower-to cover their campaigns' costs. The candidates' legal status is not an occupation and is not salaried. Many think that it is bourgeois, because who has the time to represent the interest of others? There is already a representative who gets a salary for this period[18], why should candidates also be salaried?
According to Paragraph (1) of Section 95 of Act XXXVI of 2012 on the National Assembly (hereinafter referred to as National Assembly Act), the employer shall grant unpaid leave for the candidate Member from the date of registering him or her as a candidate until the day of the election. The period of unpaid leave shall qualify as service time establishing the entitlement to pension. As another guarantee rule, the employment status of the candidate Member shall not be terminated by the employer during this period.[19] Accordingly, candidate Members of Parliament are not salaried during the period of their candidacy. This financial contribution of the candidates is not publicly known; given this rule, however, it is clear that the state assistance is not a gift. If the candidate does not get at least 2% of the valid votes casted in his or her single-member constituency, then he or she must repay the state assistance to the Hungarian State Treasury. Candidates who already have a mandate and stand again
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for election, however, still get their high MP remuneration which they can use to fund their campaigns.
The same rule appears in Paragraph (1) of Section 5 of Act LVII of 2004 on the Legal Status of the Hungarian Members of the European Parliament (hereinafter referred to as Hungarian MEPs Act), according to which the employer shall grant unpaid leave for the candidate Members of the European Parliament from the date o registering him or her as a candidate until the day of the election. The duration of this unpaid leave is service time establishing the entitlement to pension in this case as well. Moreover, another important guarantee rule is that the employment status of the candidate Member of the European Parliament shall not be terminated by the employer during this period.
Statutory regulations on local government elections, i.e. Act XCVI of 2000 on Certain Issues of the Legal Standing of Local Representatives (hereinafter referred to as Local Representatives Act) or Act CLXXXIX of 2011 on Local Governments in Hungary (hereinafter referred to as Hungarian Local Governments Act) which superseded[20] the first one, do not have similar rules. Acts on the legal status of certain professions regulate in this regard, but do not have the general regulations for the other two elections.
According to Paragraph (1) of Section 88 of Act CLXII of 2011 on the Legal Status and Remuneration of Judges (hereinafter referred to as Judicial Legal Status Act), if a judge wishes to stand for National Assembly elections, European Parliament elections, local government elections or mayoral elections, then he or she shall announce this intention of his or her to the person exercising employer's rights over him or her until the day following the day on which he or she announces his or her standing as a candidate to the election body at the latest. The judge's service relation shall be suspended from the announcement until the publication of the election results or the verification of his or her mandate in case of election. The suspension period is time spent with service. A judge shall be dismissed if he or she has been elected Member of the National Assembly, Member of the European Parliament, local councillor, national minority advocate or mayor or has been elected or appointed as a state official falling within the scope of the act on the legal status of Government members and state secretaries.[21]
After the termination of his or her mandate, if a representative who is a former judge wishes to resume his or her judgeship, then no call for applications are necessary for him or her if he or she states upon termination of his or her mandate as representative that he or she requests his or her reappointment as judge and meets all the necessary requirements for being appointed as a judge (this not includes his or her undergoing a career aptitude assessment), then the President of the Republic shall, at the recommendation of the president of the Hungarian National Office for the Judiciary, appoint him or her judge at his or her request without a call for applications. Afterwards, the president of the Hungarian National Office for the Judiciary assigns the judge to a specific judicial position or, where appropriate, to the position of president of the chamber, and the hierarchical level of this position is at least the same as the one he or she held before being elected a Member of the National Assembly and corresponds to the place of residence of the judge.[22]
According to Paragraph (1) of Section 48 of Act CLXIV of 2011 on the Status of the Prosecutor General, Prosecutors and Other Prosecution Employees and the Prosecution Career (hereinafter referred to as Prosecutor Act), if a prosecutor wishes to stand for National Assembly elections, European Parliament elections, local council elections and mayoral elections, he or she shall announce this intention of his or her to the person exercising employer's rights over him or her until the day following the day on which he or she announces his or her standing as a candidate to the election body. The prosecutor's service relation shall be suspended from the announcement until the publication of the election results or the verification of his or her mandate in case of election. The suspension period is time spent with service with the public prosecutor's office.
Similarly to the judicial status, the prosecutor's service status with the public prosecutor's office terminates when he or she is elected Member of the National Assembly, Member
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of the European Parliament, local councillor, national minority advocate or mayor; the duration of his or her mandate as Member of the National Assembly, Member of the European Parliament, local councillor, national minority advocate and mayor shall, however, be period of service with the public prosecutor's office, if the prosecutor re-enters into service with the public prosecutor's office upon the termination of his or her mandate.[23]
Act CXCIX of 2011 on the Public Service Officials (hereinafter referred to as Public Service Officials Act) provides for regulations similar to the prosecutors' status, i.e. the term of a Member of the National Assembly, a Member of the European Parliament, a local councillor, a national minority advocate and a mayor shall be time in public or government service if the civil servant re-enters public service or a government official re-enters government service after the termination of this term.[24]
The candidate must, therefore, first arrange for the suspension of his or her work for the duration of candidacy in order that he or she can focus his or her resources exclusively on the election campaign and not only eight hours a day. As he or she is not salaried during this period, he or she must make provisions in advance, because the state assistance may be used only to cover specific material expenses. Valasztas.hu, the website providing official election information, does not provide any information in this regard for the candidates, and the employers are also unfamiliar with the practical aspects of the related unpaid leave. The short candidacy period implies that the candidate's work is performed either by way of substitution or the accumulation of his or her undone work. If they do not win a mandate, candidates are often required to do their work later, when they return to work, and they do not get paid for this. These are not included in the news reports and candidate Members of Parliament face this fact only based on their own experience. Of course, a considerable part of the voters see the state assistance as some kind of profit to the candidate Members of the National Assembly and regard it as a huge HUF 1,000,000 gift without knowing anything of its VAT content and seeing the unpaid leave and the extra workload awaiting candidates when returning to work after the leave.
Financial transparency should be treated in a uniform manner and made accessible to the public in order to allow the candidate Members of Parliament and the voters to be aware of the financial burden of candidacy. And we still have not mentioned discrediting, derogatory attacks which are obvious burdens of a candidate and known to everybody.
If campaign costs are known, planning what can be included in the fifty days of the campaign is possible. Volunteer assistance should not be underrated and is necessary not for winning the mandate but primarily to maintain the candidate's motivation. After planning, the first task is to collect the number of recommendations necessary for candidacy. I could illustrate this task by the refrain of the song sung in the 1981 film of Pál Sándor: You cannot do it on your own... (Egyedül nem megy in Hungarian)
Act CCIII of 2011 on the Elections of Members of Parliament (hereinafter referred to as Parliamentary Elections Act) requires at least five hundred[25] voters' recommendations for candidacy in single-member constituencies, a provision modified by the Electoral Procedure Act[26] on 3 May 2013. Previously, at least one thousand recommendations of voters included in the voter register of the relevant single-member constituency were required for candidacy. All voters in the voter register could recommend only one candidate for the single-member constituencies of their place of residence. The amendment obviously increased the number of candidates drastically. Among the voters announced as candidates, the competent election commissions registered 810 candidates for 176 single-member constituencies in 2010, while they registered 1,547 candidates for 106 single-member constituencies in 2018 and also rejected the registration of 1,258 candidates[27]
Two time limits apply after the collection of the necessary number of recommendations: a statutory one[28] requiring that candidates for single-member constituencies be announced on the thirty-first day preceding the election at the latest, the other one is in line with financing schedule and requires that the candidates' reg-
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istration be final as soon as possible, because they cannot access state funds until then.
Signature collection should be prepared, the collection location and process should be discussed with the activists accordingly. The recommendation slips should be accounted for and handed over in controlled circumstances because a quite high fine is to be expected for missing slips at the time of announcing the candidate.[29] The currently applicable fine is HUF 10,000 per missing recommendation slip, and this fine is collectible as taxes. Previously, it was the half of the monthly amount of the mandatory lowest wage, i.e. five times as much as the current fine in the last year of the applicability of this rule.
When briefing volunteers, their attention should be drawn to the rules pertaining to the filling in of recommendation slips. Incomplete recommendation slips or material difference from personal identification documents entail invalidity and render the work of signature collectors superfluous. Recording the personal identification number from the address card is of special importance because the election office verifies the recommendations by verifying these data. The software defect of the Nomination System (Jelöltállítási Rendszer in Hungarian, hereinafter referred to as JER) became apparent during signature verification; more specifically, the JER invalidated the recommendations of voters who had already changed their places of residence, although changes of place of residence apply for the election day, i.e. when voters in question are not at their places of residence but in another town. The software defect became apparent by accident as it would not have because of the number of recommendations, but I noticed the invalidation of my father's recommendation. All his data were correct and provided on the basis of his identification document; the employees of the election office checked the data which corresponded to his ID documents; the JER still wrote that the recommendation was invalid because he was not included in the voter register. It then turned out that he had changed his place of residence previously; this could, however, not restrict his recommending.
Owing to data inaccuracy, it is always expedient to submit 10% more recommendations than necessary. This requires quick and precise work from the volunteers. To be quick, it is worth working at the microdistrict of bigger towns owing to their high population density. Caretaker and mail delivery friends can help a lot. This allows talking to several people in the stairway and going from door to door is not necessary. If one makes an appointment in advance, then one can also find people in their homes.
The wording of the Electoral Procedure Act's working[30] regarding recommendation validity caused problems in application at the 2014 and 2018 elections. The National Election Commission ignored, therefore, statutory regulations and supported uniform practice with guidance, because the uniform practice of the National Election Office required verbatim compliance with the act, rendering the acceptance of recommendations with formal defects as well as nomination according to the voters' will impossible. Point (b) of Section 126 of the Electoral Procedure Act required that the recommending voters' data on the recommendation slip are fully identical to data in the central voter register. Grammatical interpretation of this piece of legislation does not allow any deviation at all; recommendations are, therefore, invalid if data on the recommendation slip deviate to any extent from data in the central voter register. The rule of the Electoral Procedure Act was first applied at the 2014 parliamentary elections and became inapplicable in the first step of the elections, leading to mass invalidations and jeopardising the nomination process. Based on information from the election offices for parliamentary single-member constituencies, the National Election Commission issued its Guidance No. 5/2014. on certain issues related to recommendation verification acting within its powers specified in Paragraph (1) of Section 51 of the Electoral Procedure Act two days after the candidate announcement deadline to correct the legislative defect the correction of which by Parliament was not guaranteed after its discovery as it was a cardinal rule. It must be emphasised that the National Election Commission issued the guidance for the election bodies with a view to the uniform interpretation of election legislation, and it does not have any legally binding effect as it
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is only a guidance and may not be contested. This gave the election offices of parliamentary single-member constituencies a guidance for uniform practice that ignored the statutory requirement of complete conformity but was based on reasonableness.
The Introduction of the Guidance upheld the above controversy and reads as follows. Besides applying the statutory requirement of full conformity in verifying recommendations, recommendation slips that have been collected in compliance with the recommendation rules shall be accepted as valid in order to respect the voters' will expressed in the recommendations for a candidate and/or nominating organisations if the recommendation slip bears all data of the voter and allows the unambiguous identification of the voter, although some of his or her data on the recommendation slip show slight deviation(s) from the data in the central voter register at the time of submitting his or her recommendation.
For the sake of understandability, the Guidance gives examples of the most-common de-viation(s) because there was no time for further interpretation in the recommendation period. As a result, the number of invalid recommendations dropped considerably, allowing the registration of many candidate Members of Parliament.
The Guidance mentioned the following minor deviations in a non-exhaustive manner:
A recommendation shall be valid if the recommender
- failed to write the "dr." designation next to his name, although it is included in the central voter register;
- he or she indicated, but the central voter register does not include his or her name's junior, senior, widow prefix or their abbreviation;
- he or she indicated only one of his or her several Christian names in the central voter register;
- he or she indicated only one of his or her mother's multiple Christian names in the central voter register;
- he or she failed to indicate the name of the public domain of his or her home address according to Hungarian grammar rules (e.g. Kossuth utca (grammatically correct) vs. Kosút utca (incorrect)), but the name of the public domain is unequivocally identifiable, or the name of the public domain has changed and he or she indicated the former name (e.g. Moszkva tér (former name) vs. Széll Kálmán tér (current name));
- he or she failed to give the type of public domain as it is in the central name register, but the given public domain type is in the same category (e.g. út, útja, utca, körút (road, road, street, ring-road); tér, tere, körtér (square, square, round square); köz, köze (alley, alley); sor, ároksor, fasor (row, ditch, avenue) or he or she gave the public domain type in deviation from the central voter register with its abbreviation (e.g. utca (Street): u.; körút (ring-road): krt.);
Owing to non-legislation, the National Election Commission amended[31] its Guidance No. 5/2014. for the 2018 Parliamentary Elections. Accordingly, a recommendation shall still be valid if the recommender
- gave the name of the town of his or her home address as abbreviated, but the town is unequivocally verifiable (e.g. Budapest vs. Bp.; Debrecen vs. Db.);
- changes in the address components registered in the central address register entailed a change of home address in the personal data and home address register without moving and he or she have his or her previous home address.
Adoption of Draft Act No. T/714 entailed the promulgation of Act XXXVI of 2018 on the Amendment of Certain Elections Acts (hereinafter referred to as the Amended Electoral Procedure Act) having entered into force on 1 September 2018. Taking into account the proposal submitted by the National Election Commission based on the right of proposal[32] of the National Election Office to the Government, members of Parliament submitted an individual amendment proposal[33] to Parliament. Deviation from the fundamental legislative regime is clearly visible in the practical legislative process. Parliament elects the seven members and three alternate members of the National Election Commission[34] for nine years at the proposal of the President of the Republic with a two-
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third majority of the attending Members of Parliament within ninety days before the terms of the elected members of the previous National Election Commission end. The body acting as supreme appeal body before judicial channels in the election appeal procedure may not propose legislation on election or amendment thereof, may not express an opinion on draft pieces of legislation concerning its responsibilities; by contrast, the National Election Office, the autonomous administrative body responsible for the technical execution of elections, has such powers under the Electoral Procedure Act. Accordingly, the National Election Commission may propose legislation through the National Election Office that ensures its technical conditions. The next step that deviates from the fundamental legislative regime is that the National Election Office does not submit its proposal to the Parliament but to the Government. Finally, the draft act is not submitted to Parliament by the Government, but as an individual recommendation of a Member of Parliament. The amended Electoral Procedure Act does not rectify this problem, the powers to submit legislative proposals amended by the 2013 amendment of the Electoral Procedure Act[35] remains with the National Election Office.
The amended Electoral Procedure Act raised the guidelines of the National Election Commission to the rank of acts, i.e.[36], it is not a reason for invalidity if the recommending voter
- has not indicated the dr. designation next to his or her name, although the voter register of his or her ward includes that;
- has indicated the junior, senior, widow or other prefix or an abbreviation thereof, but the ward's voter register does not include those as part(s) of this name;
- has indicated only one of his or her Christian names in the ward's voter register,
- has given the name of the municipality and/or the name or type of public domain of his or her home address in a form deviating from that in the ward's voter register, but his or her home address is unambiguously verifiable,
- has failed to indicate the staircase, storey, door in his or her home address or that/these are different from that/those in the ward's voter register.
This amendment did not change the requirement concerning signature-collecting volunteers that they try to record the personal identification number on the address card in order to minimise the number of invalid recommendations, as the miswriting of the eleven characters long series of numbers had not been regarded as a slight deviation so far either, despite the fact that its miswriting is the most common of mistakes, as it is used to identify persons only exceptionally. It would be worth considering that, if the date of birth is recorded correctly, then the non-matching of the last four digits could be regarded as a slight deviation if other data are correct. My personal experience is that the first digits of the personal identification numbers of spouses are often given incorrectly by spouses, which is also a slight deviation if the other digits match the voter register. Legislation could produce further amendments in this regard.
The most spectacular part of the elections, the campaign, i.e. the contacting of voters and securing of votes begins after one becomes a candidate and gets access to funding. Trust, visibility and a professional past are especially important in terms of independent candidates here. Without them and the support of a nomination organisation, they do not have a chance. In the parliamentary single-member constituencies, only the public media appearance of parties with a countrywide list is palpable. Most of the local newspapers, televisions and news portals are privately owned, and free local classified publications owned by a specific person do not fall within the scope of the Electoral Procedure Act.
The parliamentary single-member constituencies in question have a single county newspaper issued by Mediaworks Hungary Zrt., the owner of most county-based daily newspapers. In addition, each municipality has two local commercial television channels; typically, one of them is financed by the county, the other one is financed by the municipality; as well as a radio channel and two established news
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sites, one of them dealing with local matters on a daily basis, while the other one deals with them on a weekly basis.
Traditional posters could be placed on the plywood boards erected by the municipality around transport junctions, commercial centres and polling stations as well as on the street pole hanging banners.
The rule that nominating organisations and candidates may make posters without authorisation and announcement during the campaign period did not change; the first act amending the rules of the electoral procedure after the 2018 parliamentary elections[37], however, requires that the posters must bear the name, registered seat of the issuer and the person responsible for the issuing. Within the meaning of the Electoral Procedure Act, posters are wall stickers, labels, leaflets, projected images and logos irrespective of their size and medium.[38]
It happened in the single-member constituency affected that one of the candidates submitted an objection to the election commission of the parliamentary single-member constituency on 9 March 2018, finding it injurious that unknown persons removed a poster placed along one of the roads in the territory of the municipality unlawfully on 6 March 2018. The candidate found it also injurious that "several posters, 10 in total, suffered the same fate in the town." The candidate requested the election commission of the parliamentary single-member constituency to establish the infringement of the law and prohibit the offender from further infringements of the law and to replace the posters. Based on the objection, the election commission of the parliamentary single-member constituency established that the "removed equipment" in the photo attached to the objection is a standalone advertising equipment under Paragraph (6) of Section 144 of the Electoral Procedure Act and it was erected in public space; it is, therefore, governed by the local government decree on the use of public spaces. According to the local government decree, public spaces may be used for purposes different from their intended use under a public space lease agreement or approval as well as if the relevant fee for public space use is paid. According to the information the head of the election office provided based on his/her official knowledge, there was no lease agreement for the use of public space to lawfully place the advertising equipment being the subject-matter of the objection. The owner informed the nominating organisation having placed the advertising equipment of the legal consequences of placing without an agreement and then had the advertising equipment removed in the absence of an agreement.
Having regard to the foregoing, the election commission acting at first instance established that no agreement complying with the local decree had been entered into for the placement of the advertising equipment referred to in the objection and that the remover of the advertising equipment and the reason for the removal were identifiable despite the content of the objection; it, therefore, ascertained that no violation under the Electoral Procedure Act had taken place and rejected the objection with reference to Section 43, Paragraph (6) of Section 144 and Section 218 of the Electoral Procedure Act. The candidate Members of Parliament having submitted the objection appealed to the National Election Commission acting at second instance which decided[39] to change the decision of the election commission of first instance[40] and established that the local government breached Paragraph (3) of Section 144 of the Electoral Procedure Act by removing the posters indicated in the objection of the nominating organisation and prohibited the violator from committing any further infringements. The National Election Commission was of the opinion that, according to the correct interpretation of Section 144 of the Electoral Procedure Act, in accordance with the case-law of the Curia[41], the placement of election posters is governed exclusively by the provisions of Section 144 of the Electoral Procedure Act. Election bodies may investigate compliance with these provisions but they may not apply the decree-level rules for placing advertising boards. Local decrees may not provide legal basis for placing and/or removing posters placed in public space during the campaign period. Advertising media placed in public space and the related rights arising from a decree or other legal relationships governed by private law (e.g. payment of fees, sanctions applicable for non-payment of fees) shall not be enforced according to Section
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144 of the Electoral Procedure Act. In this case, the owner or operator may assert its rights after the election campaign or must close the procedure to assert rights still before the start of the election campaign.
Paragraph (3) of Section 144 of the Electoral Procedure Act lays down the general rule for election posters that posters may be placed without limitation during the campaign period, with consideration of the exceptions in Paragraphs (4) to (7). Seeing that this regulation is in accordance with the principle that the freedom of expression includes the campaign activities of candidates and nominating organisations during election campaigns and the making and placement of posters[42] are important means of this activity is important to understand the intention of the legislator. Election campaigns are a form of the freedom of expression[43].
Based on the decisions above, Section 57 of the amended Electoral Procedure Act lays down a stricter rule by declaring that posters may be placed on privately owned things only with the prior written approval of the owner or lessee, while on things in state or municipal ownership with the prior written approval of the person exercising asset manager's rights. This amendment leads to further legal disputes because it does not determine the time limit for issuing prior written approvals during the extraordinarily short, 50 days long campaign period; issuing and/or rejection of approvals may, therefore, be a means for abuse. Approvals may be given earlier to a candidate or nominating organisation while later to another ones; and disputing the reason for rejection, if there is any, does not make any sense during the campaign period. A case and emphasising its regulatory environment, the election bodies, the case-law of courts and the presentation of the legislative process based on election experience show that more detailed regulations based on the basic principles of the election procedure are necessary, including the setting up a procedural regime that is easy to understand for candidates and nominating organisations, ensures equal opportunities as well as compliant behaviour. The campaign would otherwise not be about manifestos and election fights but appeals.
In addition to traditional campaign means, we should also mention social networks that connect an increasing number of users. This cheap solution going beyond the determination of the media market offers new opportunities. Many think that the number of friends and acquaintances is sufficient for success. This is true if somebody can be in contact continually on the long run and with the help of a communication team; campaign periods require, however, more than that. Advertising on social networks is necessary as it is apparently cheaper than traditional means; in our fast-paced world, however, these ads must be shared with users almost continuously, and this implies a more considerable financial burden. One does not only need many targeted ads, but proper content creation, professional tools, software applications and professionals operating them. Working with such a team is an interesting by-product of field research. The task is about bridging a generation gap together, because many active voters belong to older generations. Many of them have started to use social networks on various devices; their ways of thinking and tastes have, however, not changed. Content developers must, therefore, know this word and get it understood by developers and technical colleagues. The instructions themselves that "write this down", "make this appear" do not work. You must explain your content developers why this is the actual content. Content developers must also be open; they will otherwise not gain access to many technological solutions, and technical developers will not understand what they want to accomplish and why; they will, therefore, not argue with them. In a good campaign, content developers and technical developers work together; the technical developer is the eyes and the hands; the content developer is, however, also not only the brain, and the technical developer is also involved in the project and inspires it continually. This double role will disappear over the years, and technical developers will take the field when they learn the way of thinking of content developers and feedbacks about the finished product and ads confirm that they are on the right path. The biggest campaign benefit is this knowledge
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sharing between different fields and, therefore, different generations.
The social network is a solution and interface to convey messages. Just like the written or electronic media, social networks also contain false or misinterpreted information. The sad thing is that the older generations of content developers "infect" this interface as well. The paid journalists and influencers of the media have appeared in this domain as well; moreover, they are much cheaper, because many of them disseminate their views and share fake news with their family members, friends, acquaintances based on some desire to meet expectations or by internal fear, excluding themselves from their own communities. Removing them from your friends is a clear message to those who share false messages or propaganda. Although they will befriend others, they will still see that their communities are excluding them. This is a process. This phenomena has a generating effect, because less learned users forward such information, moreover, they add more vehement and often less sophisticated comments to it, which many confuse with understandability. It is, however, a fact that vulgar contents reach their targets faster in the short run; on the longer run, however, most users avoid them as they shed bad light on them. Morals work in this regard as well. Unwanted users then appear under newer and newer profiles, even by using the names of others. Why is this important? Because of the short, fifty-day campaign period. As it is true for every interface that the point is not the violation but how the other candidate(s) or nominating organisation(s) could be closed off from the voters. This was the purpose of the poster case as well as the presentation of the relevant laws that opened newer legal disputes.
We should also speak about the campaign itself. Candidates and nominating organisations can make the most efficient campaign by disseminating leaflets. This is especially important for independent candidates, because their funding is minimal in comparison with nominating organisations, no matter what the basic principles of elections declare. Funds spent on elections have not been revealed to this day. These funds are not only about the moneys demonstrably spent by nominating organisations during the election campaign period, but also about the so-called ground-laying campaigns preceding this period and related to the election messages and conducted sometimes by an NGO and sometimes by a public or municipal body or their business companies.
Transparent campaigns require an independent institution that does the job. It could also be an international organisation that acts according to determined rules and focuses on funding. All appearances should include an identification number announced by the candidates and nominating organisations to the body monitoring their funding. If this number is not shown in the appearance, then this would be illegal and entail specific consequences. These consequences must be sophisticated and aim at equal opportunities, transparency and the exclusion of banned campaign funding. The first thing everybody thinks of is fine; if somebody has too much money, however, then this is not a sanction. If the consequence was that this person has to finance the appearance of his or her opponents on the same interface, in the same time and for the same duration, then the dissuading power would be much stronger. Recurring disproportionate advantage affecting the fairness of elections could entail candidate disqualification. The standard boardgame rule would apply, i.e. he or she would stay out from a round. This rationale implies that the system of sanctions in the Electoral Procedure Act should be widened and modernised to enable its basic principles to operate and to be more than declarations.
The campaign peaks on election day, the stakes are increasing, victory feels near, there is no time for appealing any more; most violations of the electoral procedure are, therefore, committed at this time. Guidance No. 3/2014. of the National Election Commission illustrates this well as it regulates certain issues of transporting people with busses on election day. Parliament adopted Act CCVII of 2013 on the amendment of certain Acts related to the Fifth Amendment of the Fundamental Law at its session on 2 December 2013, and Section 9 of this Act amended the new regulation of the Electoral Procedure Act with the following Section 143/A, under which the voter is entitled to use the assistance of other persons in request-
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ing mobile ballot boxes and getting to the polling station. According to Paragraph (2) of the same Section, however, no public call may be announced for the requesting of mobile ballot boxes and transportation to the voting room; it is not allowed to use buses to transport voters to the voting room.
Guideline No. 3/2014. of the National Election Commission touches upon the definition of bus transport, referring to Point II. (e) of Appendix No. I to the Joint Decree No. 1/1975. (II. 5.) KPM-BM, under which an autobus is a vehicle for passenger transport that does not connect to electrical overhead lines and has, including the seat of the driver, more than nine permanent seats. This regulation only means an upper passenger limit for the onetime transportation in a single vehicle; however, it does not provide a solution for the organised transport which, reasonably presumably, takes place based on a register. This tolerated behaviour raises special concern in minor settlements[44], as it is obviously inconsistent with the fundamental principles of the electoral procedure.[45] The decision adopted by the Court of Appeal of Pécs in this regard[46], for the local government election on 12 October 2014, well illustrates the issues arising from the insufficiency of the regulations.
The amended Electoral Procedure Act[47] has a more precise working by defining that a public offer to transport people to the polling station is a publication, and invitations, public communications or posters that invites people to organise the transportation of others to the polling station are regarded as promotions of, or invitations to use equipment facilitating the transportation of people to the polling station. Additionally, organisation of transport to the polling station and the production and release of computer applications to organise transport of persons to the polling station are regarded as invitations to transport to the polling station. This amendment is not about the prohibition to transport people by bus but every vehicle. The legislative intention underlying this amendment is to prevent circumvention of the prohibition to invite or organise transportation to the polling station.
Election day mobilisation is a well-organised, complex series of actions in which delegated members in the vote-counting commission inform mobilisers on the phone based on the list of supporters about people who have not voted yet, and the mobilisers use the address list to contact and bring these people to the polling station as well as request mobile ballot boxes for disabled or old people as a family friend. This process has become completely established by now and is in compliance with the electoral procedure rules in a way that is difficult or impossible to demonstrate. Delegated members of the vote-counting commission do not make phone calls in the polling station but they go outside to have a cigarette or go to the bathroom and call the transporters on their mobile telephones. Transporters also use several cars and drop voters a few corners away from the polling station. It is, however, not guaranteed that voters would vote for their party in the booth. There is chain voting for that.
Some thoughts on the specificities of the 2018 elections This was perhaps the first election not only without colliding manifestos but without any manifestos visible to the voters. Election posters showed the images of candidates and the names and logos or perhaps colour of nominating organisations in the biggest possible format. Appearing on shared poster places as the 18[th] candidate or nominating organisation was, therefore, perhaps not an efficient solution. Reaching out to everybody is important for independent candidates; they should, therefore, not stand either on the side of government parties or on the side of opposition parties, because he or she must win voters from both sides. Independent candidates have one choice only: to represent general values. Interestingly, the aim of the field research project, a special informative election campaign proved to be credible by the results became quite popular among people interested in politics and considering before making their decisions. The two-thirds majority as general risk, the consequences of imbalance and the possibility of instability in the long run induced voters who wanted to replace the incumbent representative to support an independent candidate. These voters knew this and I had to tell every time that their votes would result in a mandate if leaders of the most popular nom-
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inating organisations stopped dividing votes and upholding the incumbent representative through majority voting, thus allowing the quitting of their candidates based on opinion polls.
One can feel the atmosphere of quitting as a candidate only. Getting an insight into the world of these negotiations, which never were public, was the most exciting part for a researcher. One can disclose these only in general terms, without specifying places or names. Even contacting rivals is a specific thing. It is a correct belief that one cannot just knock on the doors of party offices and say one was looking for the chairperson to ask him or her to have a local candidate quit the competition in my favour because I would surely win. Voters do not know that one should not knock on the doors where one wants somebody to quit but at the other side. Opponents know each other better, and we are not speaking of two sides, but more. This way, we can find the person whom we can trust. This is, however, not about friendly trust but reciprocal interests. This way, the opposing side will give us a name who will get us to the decision makers. They are not the leaders of the party in question, but somebody who can influence their decisions and mediate. If everything goes fine, multiple negotiation rounds and deals come. Or complete rejection, but nothing is lost if this happens either. In case of rejection, one must find a way to local candidates who do not have a chance on their own, but the combined power of their voters constitutes a considerable force. What underlies negotiations on support? The results and experience of the preceding election, as these are objective figures. Opinion polls only show more or less accurate shifts from these figures. The 2014 elections showed and forecasted that the two opponents from the political right and left got more votes than the incumbent representative; the majority principle, however, secured his mandate, although the majority rejected him on the single-turn election.
After multiple negotiation rounds and seeing the opinion polls, the candidate with the biggest support on the opposition side realised that he would not secure a mandate and had not got a winning place on the national list of his party; moreover, he had got a hopeless place, which was a sign to him. He still regarded his political career as depending on the decision of the partly leader and trusted the impossible and took the easier way. A charismatic politician awaits situations like this in which he or she can advance with courage and dynamism. The candidate of the party with the second biggest chance had no chance for a mandate from the single-member constituency but had a relatively good place on the country list. This candidate's strategy was winning a mandate from the party's country list through the addition of the low number of votes; his quitting would, therefore, have been against his individual interests. He plunged and secured a mandate from the party's country list while securing a minimal number of votes in the single-member constituency. He could not be won to quit; his voters could have been won, therefore, if the candidate with the best chances quitted courageously and stopped being an obstacle to the joining of forces of opposition parties. It is clear that the fact that the number of candidates was above thirty, as it was typical of most of the parliamentary single-member constituencies, did not affect the outcome of the elections substantially, and that candidates only play a role if the competition between the strongest two candidates is tight.
The candidacy being a means in the research projects could have led to a mandate if other candidate(s) would have quitted the competition, because the independent candidate could have secured votes not only of opposition parties but also of government parties. Credible information was, however, available. In the absence of quitting, the two political sides (left and right) get more votes than the ruling party, it still got the mandate, just like in the 2014 elections.
The tangible result of the empiric research is 999 votes, i.e. 2.24% of the total number of votes. The poorer results of the other votes, i.e. the two known parties with a countrywide list, are not important because I wish to present the trends and the determinations and threats implied by the regulations. One must thank for the support in the research project; i.e. to the voters who were partners and understood how the electoral system works and, feeling that they do not have an actual chance to impact the
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fate of the mandate in the absence of quitting, demonstrated loyalty to their decisions. Thank you to the supporters for their time, advice and work. Thank you to the developers for showing how a new world of communication works and for their enthusiasm in learning and teaching it. Thanks, above all, to the person who had trust in my candidacy but could not vote because of being the 1000[th].
I must finally ask whether standing as an independent candidate in the election of members of Parliament makes sense or is it just a declared right?
The answer has two sides. It is only a declared right in the light of the results, but its effectiveness is sure if some other candidates quit.
The practical experience in elections rise several legislative issues and the legislator responded to them quickly.
After collecting and evaluating the amendment proposals submitted by the president of the National Election Office and summarising the appeal experiences of the National Election Commission, the amended Electoral Procedure act amended several pieces of legislation. Among these amendments, I would point out the rendering of campaign financing regulations, referred to several times in this publication, lifelike as well as the mitigation of the risks of misusing state funds.
As for the amendments of the provisions of the Campaign Finance Act, payments may be made from the campaign assistance with a card from the Treasury or by way of bank transfer during the campaign period. The amended act allows that payments of material expenses from the assistance lawfully available for campaign activities until the end of the elections are made within reasonable time on the working day following the elections, i.e. when the clearing system reopens, thus ensuring the settlement of campaign expenditure of candidates during the weekend of the elections.
To facilitate the use and accounting of campaign funds in good faith, the amended act requires that all candidates and individual candidates nominated by nominating organisations on a party lists are jointly and severally liable for the repayment of the state assistance to the campaign provided for the party list. Taking this rule into account, the act also requires that candidates and/or nominating organisations that do not account for the state assistance to their campaign provided during the preceding parliamentary elections may not claim "new" campaign assistance.
An open question: Why are nominating organisations defined differently for parliamentary and local government elections? The post-2010 electoral system has 106 single-member constituencies, there is no territorial list; NGOs are, therefore, valid and should not be made subject to the supports of independent or party candidates. There is no reasonable obstacle to the major NGOs' standing for election in single-member constituencies.
The legislators are also aware of the experience in the electoral procedure; the two-thirds majority, however, enabled their proposing amendments of the rules only in the interest of their future winning. They are not to be expected to make rules ensuring equal opportunities. The instability of the electoral system is indeed illustrated by this. If another political power wins, then it will likely win by two thirds, and this majority will adopt amendments that serve its own interests. If the new majority does not have two thirds, then the current rules will continue to apply and stabilise the new majority's position until the emergence of the next majority power. This process has a simple message: the bipartisan model of English-speaking countries will emerge. It is, however, alien to Hungarian historical traditions and, without the independent institutions in English-speaking countries, could lead to serious social changes, especially in times of crises, primarily economic crises. It is the responsibility of legislators to recognise this. ■
NOTES
[1] This paper has been made within the framework of the programmes initiated by the Hungarian Ministry of Justice to raise the standard of legal education.
[2] Website of the National Election Office
[3] Paragraph (1) of Section 221 of the Electoral Procedure Act
[4] Resolution No. 2/2018. (I. 11.) of the President of the Republic on Setting the Date of the 2018 General Elections of Members of Parliament
[5] Section 28 of the Election Deadlines Decree
[6] Section 24 of the Election Deadlines Decree
[7] Paragraph (1) of Section 127 of the Electoral Procedure Act
[8] Section 132 of the Electoral Procedure Act
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[9] Paragraph (2) of Section 224 of the Electoral Procedure Act
[10] Paragraph (1) of Section 228 of the Electoral Procedure Act
[11] Section 139 of the Electoral Procedure Act
[12] Paragraph (1) of Section 1 of the Campaign Finance Act
[13] Paragraph (2) of Section 1 of the Campaign Finance Act
[14] Paragraph (3) of Section 1 of the Campaign Finance Act
[15] Paragraph (4) of Section 8 of the Campaign Finance Act
[16] Paragraph (5)-(7) of Section 8 of the Campaign Finance Act
[17] Point (b) of Paragraph (3) of Section 8 of the Campaign Finance Act
[18] Paragraph (1) of Article 3 of "The State" of the Fundamental Law of Hungary
[19] Paragraph (2) and (3) of Section 95 of the National Assembly Act
[20] Point (b) of Section 158 of the Hungarian Local Governments Act
[21] Point (f) of Section 90 of the Judicial Legal Status Act
[22] Paragraph (3) of Section 8 of the Judicial Legal Status Act
[23] Paragraph (2) and (3) of Section 48 of the Prosecutors Act
[24] Paragraph (7) of Section 8 of the Public Service Officials Act
[25] Section 6 of the Parliamentary Elections Act
[26] Section 363 of the Electoral Procedure Act
[27] Report of the President of the National Election Office on the organisation and execution of state tasks related to the general election of Members of Parliament on 8 April 2018
[28] Paragraph (1) of Section 252 of the Electoral Procedure Act
[29] Paragraph (2) of Section 124 of the Electoral Procedure Act
[30] Section 126 of the Electoral Procedure Act
[31] Guidance No. 2/2018. of the National Election Commission, Guidance No. 3/2018. of the National Election Commission
[32] Point (l) of Paragraph (1) of Section 76 of the Electoral Procedure Act
[33] Submitters: Gergely Gulyás, Dr. István Bajkai, Dr. Barna Pál Zsigmond, Máté Kocsis, Szilárd István Németh
[34] Paragraph (1) and (2) of Section 20 of the Electoral Procedure Act
[35] Paragraph (1) of Section 4 of Act LXXXIX of 2013 on the Amendment of Act XXXVI of 2013 on the Electoral Procedure
[36] Section 51 of the amended Electoral Procedure Act
[37] Section 57 of the amended Electoral Procedure Act
[38] Paragraph (1) of Section 144 of the Electoral Procedure Act
[39] Decision No. 504/2018. of the National Election Commission
[40] Decision No. 38/2018. (III. 09.) of the Election Commission for the Parliamentary Single-member Constituency No. 1 in Somogy county
[41] Order No. Kvk. II.37.307/2014/3.
[42] Decision No. 1/2013. (I. 7.) of the Constitutional Court
[43] Decisions No. 39/2002. (IX. 25.) and 60/2003. (XI. 26.) of the Constitutional Court
[44] http://www.nvi.hu/hu/nvb/allasfoglalasok/2014/2014-102.html
[45] Fundamental principles in Points (a), (b) and (e) of Paragraph (1) of Section 2 of the Electoral Procedure Act
[46] Court of Appeal of Pécs, No. Pk.III.20.021/2014/2.
Lábjegyzetek:
[1] The Author is Doctoral Student, Doctoral School of the Faculty of Law at the University of Pécs.
Visszaugrás
