Concept paper 2021
"Lessons learned from the impact of the COVID-19 health crisis on electoral processes"
The year 2020 will have been unprecedented in many ways due to the COVID-19 pandemic, including the holding of elections and referendums. While many national, local and regional elections were postponed in order to deal with the health emergency, others were held on time, but in no way as they could have been held before the pandemic. For the electoral administrations in particular, it was a question of real crisis management.
The 2020 edition of the European Conference of Electoral Management Bodies had already partially dealt with the holding of elections in times of crisis. At the request of several electoral administrations, the Venice Commission has decided to return to this theme by highlighting the elections held since the last conference of 12-13 November 2020 and taking into account the work carried out by the Venice Commission on the subject.[i] The aim of the Conference is also to broaden the debate to all forms of crises that states, their populations and their institutions may face in the future, in order to anticipate the management of future crises.
The 18th European Conference of Electoral Management Bodies thus aims to take stock of the problems posed by the pandemic, as well as the solutions provided by electoral administrations for the proper conduct of elections and electoral campaigns during emergency situations, while in compliance with the European electoral heritage.
II. Context and principles to be considered
This conference takes place in the following context:
The urgency faced by the authorities was twofold: the urgency due to the health crisis itself, and the urgency to find legal solutions in a largely unexplored area. The challenge was thus considerable, especially since elections are not a one-day event, but a complex process, from the registration of voters and candidates to the resolution of electoral disputes.
However, the term “emergency measures” covers a wide variety of legal or de facto situations depending on the states concerned. Some States have invoked a de jure state of emergency, as governed by the rules of the domestic legal order. Other States have, on the contrary, announced a health emergency without triggering the constitutional mechanism of a state of emergency, using ordinary or emergency legislation or regulations already in force – mainly public health law – or by adopting new rules without declaring a state of emergency.[ii]
In both cases of emergency situations (de jure or de facto state of emergency), the measures taken have resulted in increased power for the executive and direct consequences on fundamental rights, which have been subject to numerous restrictions. In the area of elections, the freedoms of expression and especially of assembly during election campaigns were largely affected. Where elections have not been postponed, the organisation of the ballot and even the voting procedures themselves have been affected.
The question therefore arises as to whether the measures taken have respected the principles of the European electoral heritage. In particular, one thinks of:
- the universal suffrage, and to its undermining by limiting access to the ballot;
- the freedom of voters to form an opinion, and the impact on it of campaign restrictions;
- the periodicity of elections, which may be affected by their postponement;
- the stability of electoral law, which has been undermined by the adoption of special rules within a very short period of time;[iii] and obviously
- the exercise of fundamental rights, in particular freedoms of expression and of assembly in political matters, during the electoral process.
In addition, the principles of legality and separation of powers must be respected, especially in the case of a broad delegation of normative powers to electoral administrations.
Essential principles are therefore at stake.[iv] The discussions will aim to examine how to ensure their respect in emergency situations, in the light of the experience gained.
III. Issues to be addressed
The following questions will therefore be addressed:
a) What regulatory and practical solutions have the electoral administrations found to ensure the security of electoral processes during an emergency period?
b) What role did the electoral administrations play in ensuring a good voter turnout, especially of women and vulnerable groups?
c) What role did the electoral administrations play in ensuring the continuity of the electoral observation process and the transparency of electoral campaigns? Were the electoral administrations able to organise the polls under the required conditions during these emergency periods in terms of their financial and material situation?
On the basis of these questions, the conference participants will be invited to discuss the following issues:
a) What regulatory and practical solutions have the electoral administrations adopted to ensure the security of electoral processes during an emergency period?
▷ What regulatory framework did electoral administrations have in place to ensure the security of electoral processes?
The proper organisation of voting operations means, first of all, ensuring the security of these operations in times of crisis, whether it be health security or another security issue. The COVID-19 pandemic forced electoral administrations to adapt, as a matter of urgency, to ensure the proper conduct of voting. Depending on the country, very different solutions, often inventive and unprecedented, were found. Thus, as the Venice Commission's 2020 Interim Report points out, among the elements that must be established before an election is delayed, authority must be given to the electoral administrations to develop the legal frameworks governing the applicable procedure.[v] This implies that electoral administrations are able to put in place new regulations and practical measures sufficiently in advance of elections to ensure that the principle of stability of electoral law is respected.
▷ What practical framework do electoral administrations have in place to ensure the safety of voters and election staff?
Ensuring the security of an election during a crisis period also implies solid and adapted logistics, starting with the acquisition of equipment and the practical arrangements to be made in order to deal, for example, with a health crisis – masks, disinfectant, larger polling stations, or even the installation of outdoor polling stations or a greater number of polling stations, rapid test centres near the polling stations, etc. This also implies that police forces are also mobilised and prepared, regardless of the type of crisis involved.
It also involves ensuring the safety of voters and informing them, especially vulnerable groups, about the new practical rules that have been put in place and, as far as a crisis allows, gradually introducing alternative voting methods.[vi] This may also involve a different election date from that provided for by law, spreading the polling over several days in order to have fewer voters at the same time, possibly exempting candidates from registration or nomination, adapting the voting and counting procedures or requiring the collection of signatures of support.[vii]
In order to ensure the safety of election staff, particularly on polling day and during the counting of votes,[viii] account should be taken of the potential for automation of electoral procedures and of the special measures that may be necessary: introduction of voting machines; extension of the various deadlines, including for the counting of votes; automatic counting of ballot papers; exemption from certain requirements for candidates, such as the collection of signatures (if this is not possible online) etc.[ix] Electoral administrations have thus had to adapt existing voting procedures, for example by shortening the stay inside the polling station to avoid unnecessary contact and risks of contamination; by providing for the deposit of identity documents without them needing to be handled by polling station staff; the use of gloves; the establishment of entry and exit lanes etc.[x] As election staff need to be protected, additional time may be needed to recruit more staff – to replace those who have fallen ill if necessary – and to provide them with appropriate training, including on the risks associated with the crisis in question, the proper use of equipment, etc.
b) What role did the electoral administrations play in ensuring a good voter turnout, especially of women and vulnerable groups?
The conference will also address the issue of electoral participation in times of crisis, particularly for women and vulnerable groups.[xi]
▷ What measures have electoral administrations put in place to maintain or increase voter turnout, especially for women and vulnerable groups?
▷ What is the feedback from electoral administrations that have organised polls with alternative voting modalities?
Our democracies were already suffering from a participation deficit before the COVID-19 pandemic. The health crisis has in some cases accentuated this trend, both in terms of civic engagement during campaigns and voter turnout on election day. As the Venice Commission's 2020 Reflections[xii] and IFES[xiii] point out, holding elections during extraordinary situations, such as pandemics, leads to a decrease in turnout and thus in the legitimacy of elections, not least because the most vulnerable groups may not participate in elections and the distribution of mandates may therefore differ from society's preferences.[xiv] Moreover, if there is a threshold for participation, factual or legal impediments to freedom of movement within the country or to voting from abroad must be taken into account, as the situation could lead to invalid results.
Voting modalities have a direct impact on turnout. All forms of distance voting – postal, absentee, proxy, internet or mobile ballot boxes – as well as early voting, increase turnout, especially in the event of a pandemic.
However, if remote voting modalities are introduced, the risk of "family voting" or group voting is increased and the possibilities of control are greatly reduced, particularly affecting women on the one hand and vulnerable groups on the other. Women, the elderly and people with disabilities may be particularly vulnerable to coercion and their right to secrecy could be compromised if the introduction of postal voting or other alternative voting methods are not accompanied by adequate safeguards.[xv] Proxy voting, governed by a clear legal framework, could offer the elderly and members of vulnerable groups another possibility to vote without having to go to a polling station.[xvi]
While online voting is normally only one voting modality among others, providing only for online voting could lead to participation by only those voters who are accustomed to it and to high abstention by others, especially older voters and those from vulnerable populations. This could have an impact on the outcome of elections and in particular, favour political parties supported by upper and upper middle class voters. People who vote online and those who use other means may indeed have different political preferences.[xvii]
c) What role did the electoral administrations play in ensuring the continuity of the electoral observation process and the transparency of electoral campaigns? Were the electoral administrations able to organise the polls under the required conditions during the state of emergency, given their financial and material situation?
▷ What innovative solutions have electoral administrations and observer organisations found to ensure the continuity of the observation exercise during a health crisis, including the observation of different forms of remote voting?
Discussions will also address election observation and innovative solutions adopted by domestic and international observer organisations in the context of emergency periods. In the absence of observers and without transparent procedures, the potential for fraud and manipulation of results can be greatly increased, including when access to the country for foreign observers is restricted for health or other security reasons. In addition, observation may be more complicated when an election is spread over several days. Measures to consider include reducing the number of observers and party agents assigned to a polling station or area without reducing the possibility of adequate observation. However, the fairness of the vote can be more easily guaranteed if the electoral administration has a long tradition of independence and if there are possibilities for online observation.
▷ What solutions have electoral administrations found to ensure transparency and fairness in electoral campaigns, including in the media (advertising, debates), during emergency periods?
The proper conduct of electoral campaigns in times of crisis requires ensuring the transparency of face-to-face campaigns on the one hand and social media campaigns on the other, despite the state of emergency. In an emergency situation, which is exceptional in nature, freedom of movement during “in-person” electoral campaigns or freedom of expression are restricted and it may be difficult to guarantee the principle of equality of opportunity in a context where disinformation, misinformation and fake news circulate more easily. Some aspects of the electoral campaign, such as rallies or door-to-door visits, may be restricted. This can make it difficult for the government and other stakeholders to combat misinformation, disinformation and fake news, which requires the co-operation of all relevant actors, including electoral administrations where appropriate. In an emergency situation, misinformation, disinformation and fake news are more widespread. Particular attention should therefore be paid to this problem when elections are held under a state of emergency.
Moreover, in such a situation, the main concerns of society may be distracted from the issues that should be debated, in particular, for the election of the legislative assembly. Thus, while an electoral campaign may remain possible during a state of emergency, particular attention should be paid to the duty of neutrality of the authorities, as well as to the obligation of broadcasters to cover election campaigns in a fair, balanced and impartial manner.[xviii]
▷ Have the electoral administrations been adequately equipped to deal with the health crisis and conduct elections with all the required democratic guarantees?
Successful electoral campaigns also require sustainable and adequate funding of electoral administrations as well as the necessary equipment in the context of a health crisis. Organising an election in an emergency situation could be more costly for state institutions and local and regional authorities, in particular municipalities, than postponing the elections, given the special measures likely to be needed to ensure the security of all stakeholders. Under a state of emergency, the State budget must be used to the maximum extent possible to deal with extraordinary circumstances, and the holding of elections may be a luxury.[xix] Therefore, in order to hold elections during a state of emergency, financial resources are needed to ensure the security of the voting process, including the purchase of protective and cleaning equipment. At the same time, there is a high risk of misuse of administrative resources at a time when the State will be spending more than usual, particularly on public health and security.
[i] See in particular Report on the respect for democracy, human rights and the Rule of Law during states of emergency: Reflections ("2020 Reflections") and the Interim Report on the measures taken in the EU member states as the result of the Covid-19 crisis and their impact on democracy, the Rule of Law and fundamental rights ("Interim Report").
[iv] See Report on the respect for democracy, human rights and the Rule of Law during states of emergency: Reflections (CDL-AD(2020)014; "2020 Reflections"), in particular para. 96, and the Code of Good Practice in Electoral Matters, CDL-AD(2002)023rev2-cor.
[x] Ibid, paras 39-142.
[xi] In the context of a health crisis, this will include elderly people who are vulnerable to an epidemic and people who are ill, regardless of their age.
[xii] Precited, 2020 Reflections.
[xvi] 2020 Reflections, paras. 108-109.
[xvii] See Mihkel Solvak, Kristjan Vassil (2016), E-voting in Estonia: Technological Diffusion and Other Developments over Ten Years (2005-2015).
[xviii] See 2020 Reflections, inter alia paras. 99 and 103.
[xix] 2020 Reflections, para. 114.