Ákos Cserny, András Téglási Certain Elements of the Transformed Hungarian Electoral System in the Light of the Experience of the 2014 Elections I. Introduction Three elections took place in Hungary in 2014, that is: the election of members of par- liament in April, the election of members of the European Parliament in May, and local governmental elections in October. The ruling coalition Party elected in 2010 with a two- third majority fundamentally reformed our constitutional system. Amongst other re- forms, the electoral system and the statutes of substantive and procedural laws of suf- frage should be mentioned. These reforms triggered national and international controver- sies within the professional community. The Venice Commission’s opinion and a num- ber of other academic publications and forums sharply criticized these reforms. Notwith- standing the latter, academic arguments were voiced supporting the necessity for these justifiable reforms. Within the framework of this paper, we obviously do not intend to extensively ad- dress the raised criticism. Our intention is only to provide the reader with a mere over- view of the most criticized regulatory elements that reformed the Hungarian electoral system. We make references here, to the pro and con arguments which were voiced in the scope of Hungarian legal literature by legal institutions regarding some of these con- troversial elements. We will take into account the decisions already made on these issues and found in relevant case-law jurisprudence, including decisions taken by electoral or- ganizations and higher appeal and Constitutional Court. II. Modifications brought to the substantive electoral law of Hungary 1. Winner compensation Enacted laws between 2011 and 2013 regulating the new electoral system were initially applied in the elections of 2014. While the mixed electoral system was upheld, the num- bers of seats were decreased from 386 to 199; furthermore, the method of seat allocation was also modified. To decrease the number of political elites in Hungary was part of the academic publishing’s intent as a response to society’s expectations.1 Out of the 199 seats, only 106 were to be elected within single-member constituen- cies with a one-round majoritarian vote given to contending parties. The remaining 93 seats were to be allocated through a nationwide, proportional system mechanism, amongst the parties surpassing a five-percent threshold (or ten percent in case of joint party lists and fifteen percent to lists with more than two parties). Under the previous law, unused votes from the majoritarian contests were allocated to the proportional con- test provided that the five-percent threshold was met. The new legislation maintains the use of the unused votes with provisions made to transfer the surplus votes of the winning candidates. The manner, in which the reform of the electoral system was modified, is considered acceptable, even by the authors of critical legal literature, as it is within the European 1 Az új magyar választási rendszer (The new Hungarian electoral system), Századvég Alapítvány. p. 8, http://szazadveg.hu/ld/w0w1i5r5l9k1k8j9f8i7_az-uj-magyar-valasztasi-rendszerSzazadveg-tanulmany 130802.pdf, 20.1.2015. https://doi.org/10.5771/0030-6444-2015-3-335 Generiert durch IP '170.106.35.93', am 25.09.2021, 08:11:21. Das Erstellen und Weitergeben von Kopien dieses PDFs ist nicht zulässig. 336 Ákos Cserny/András Téglási constitutional traditions; more specifically, considering the fact that in many countries a purely majoritarian electoral system predominates.2 The Hungarian legal literature fore- casts party structure clustering, because a relative majority is now sufficient to win, as opposed to the former Hungarian parliamentary electoral system.3 Before 2014, in the first round of National Parliamentary Elections, absolute majority was required for a candidate to win in a single-member constituency. Critics admit that the partial modifications regulating the electoral system do not violate in themselves the principles of democracy. Sharp criticism, however, was voiced with regard to the re- forms of the systematic partial rulings, more particularly in connection with the “winner compensation” section of the law. Even a report published by the Office for Democratic Institutions and Human Rights (OSCE) regarding the modification of the electoral sys- tem points out the following: “For these elections, this change resulted in six additional seats being allocated to Fidesz-KDNP.”4 In the former electoral mechanism, only the fractional votes given of the defeated nominee were taken into account. Now however, the new electoral law provisions stipu- late that fractional votes are to be allocated to the winning nominees as well. As a rule, each vote can only be counted once. Fractional votes are qualified as being the remaining votes of the candidate who received the second most votes increased by one vote, sub- tracted from the nominee’s votes who won the mandate. Criticism in legal literature is fundamentally based on the fact that “compensation” of the party of the winning nominee always favors (considering the relaxation of the condi- tions on the nomination of the candidates) the largest political power, and as such, does not necessarily serve the interests of the actual political party in power in the long run, regardless of what political side we are talking about.5 Majority support can be strength- ened by the evaluation of party ideology rather than basing it on professional grounds.6 Critical legal literature is double fold. On the one hand, this said general practice is un- known to Europe and for that matter to the world, thus being a “Hungarian unique”7, and on the other hand, this solution logically supposes that this compensation mechanism is designed to counterweigh inequalities which are bound to happen in favor of the major- ity.8 Simultaneously, it results in the unjustified restrictions of equal voting power.9 2 G. Halmai, A választójogi szabályozás átalakulása 2010–2013 (Transformation of the electoral law in Hungary between 2010–2013), MTA Law Working Papers no. 12|2014, p. 2, http://jog.tk.mta.hu/ uploads/files/mtalwp/2014_12_Halmai.pdf, 20.1.2015. 3 Id., p. 2. 4 OSCE/ODIHR Limited Election Observation Mission Final Report – Hungary – Parliamentary Elections, 6 April 2014, Warsaw, 11 July 2014, p. 2, p. 7, http://www.osce.org/odihr/elections/ hungary/121098?download=true, 20.1.2015. 5 R. László, A választójogi szabályozás átalakulása 2010–2014 (Transformation of the electoral law in Hungary between 2010–2014) in MTA Law Working Papers no. 21|2014, p. 5, http://jog.tk.mta.hu/ uploads/files/mtalwp/2014_21_Laszlo.pdf, 20.1.2015. 6 Id., p. 6. 7 László, fn. 5, p. 6; Halmai, fn. 2, p. 3; L. I. Kovács/P. B. Stumpf, Egy unortodox megoldás: a parlamenti választás új kompenzációs szisztémája (An unorthodox solution: the new compensatory system of the Hungarian electoral system), in: Zs. Fejes (ed.): A magyar választási rendszer átalakulásának közjogi kihívásai (Public Law challenges of the transformation of the Hungarian electoral system), Pro Publico Bono – Magyar Közigazgatás, no. 4|2013, p. 69, p. 73, http://uni- nke.hu/ uploads/media_items/pro-publico-bono-magyar-kozigazgatas-2013-4-1.original.pdf. 8 László, fn. 5, p. 6. 9 Halmai, fn. 2, p. 3. https://doi.org/10.5771/0030-6444-2015-3-335 Generiert durch IP '170.106.35.93', am 25.09.2021, 08:11:21. Das Erstellen und Weitergeben von Kopien dieses PDFs ist nicht zulässig. Ungarn: Wahlrechtsreform 337 Arguments in favor of reforming the electoral system concede that fractional vote calculations are favorable to winning parties.10 This is considered justifiable by the gov- erning authorities since they are the ones who put this electoral system in place. More- over, this solution running in parallel with the national list system (as opposed to the for- mer regional list system) leads to proportionality. These final calculations show that the internal ratio of the distributed parliamentary seats, according to the said list do not sig- nificantly change mandate distribution given that the results are close. In the event of walloping results, the amount of seats of the leading party increases further due to modi- fications in the calculation of the fractional votes.11 Furthermore, generally speaking, a revision of the electoral substantive laws was considered to be justifiable, since they were the result of an over twenty-year old product of the former political parties’ inter- ests prior to the period of the political transition of 1989, when the electoral procedures of the members of parliament were carelessly regulated and merely created to benefit the interests of the political parties in power at the time.12 However, Hungarian statutory provisions on “winner compensation” do not neces- sarily result in additional mandates, more specifically not more than half of them. In electoral matters, existing solutions do not explicitly cater to the nominated organization which reaches a relative majority, (if such a thing exists) but rather to the organization of the winning individual candidate, which is not necessarily identical to the organization having relative majority leading to the final outcome of the elections. The efficient solu- tion consists of giving only a significant number of fractional votes to the outcoming candidate (insofar as there is an organization behind the candidate and that this organiza- tion also established a list). If the difference between the first two candidates is slight in a given district, that is: the premium fractional votes are too few, then this fact does not re- sult in an additional mandate.13 In addition to the above, from our standpoint it should be stipulated that the “winner compensation” is a historically established legal practice, which is known by Hungarian law, and is practiced worldwide as well.14 This is known as the concept of “scorporo” and is used as a corrective mechanism in the electoral system, which first appeared in Italy within the framework of the electoral reforms of 1993.15 2.