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Slawomir Kaminski/Agencja Gazeta via Reuters
Law and Justice leader Jaroslaw Kaczynski.
A PRESIDENTIAL MESS

Poland’s election is days away—and it’s already in complete disarray

Hanna Kozlowska
By Hanna Kozlowska

Investigative reporter

From our Obsession

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Poland has planned its presidential election for May 10, with the ruling party forging ahead to go through with the vote at all costs, global pandemic or no. Experts say that’s not only logistically impossible, it’s unconstitutional, unlawful, undemocratic, and unsafe.

The election preparations are in complete disarray, both in terms of the logistical planning and the legal grounds for the vote. The incumbent president, Andrzej Duda, who hails from the ruling party— the right-wing Law and Justice—is expected to win handily, with virtually no electoral campaign and some opposition candidates calling to boycott the effort completely.

“I’ll be honest. I’ve been studying politics for many years now, and I don’t think anything has ever perturbed me more than the current situation,” said Anna Materska-Sosnowska, political scientist at the University of Warsaw and board member at the Stefan Batory Foundation. “The justifications being used are unimaginable, as is the way that everything is being carried out. It violates every rule out there.”

Materska-Sosnowska says there is no way the election will take place on May 10 as planned. The law that would even allow the vote to happen doesn’t exist yet. A special election bill is still being legislated in the Polish Senate, the upper house of the Polish parliament.

The body has until May 6 to approve it, reject it, or introduce any changes. It will take its time in order to prolong the process, since it is controlled by the political opposition to the ruling Law and Justice, in contrast to the Sejm, the lower chamber of parliament (the party control of the parliament is split, like in the US). In the end, however, the Sejm and the incumbent president have the final say on the legislation. So in theory, if signed into law, the timeline would leave just several days for officially-sanctioned election preparations.

It is possible that the election will be moved by several weeks, to May 17 or 23, but experts disagree on whether the constitution even allows that possibility (link in Polish, as are those that follow unless otherwise noted).

If this sounds confusing, that’s because it is.

Plans versus reality

The vote is supposed to happen by mail, in a country where there is almost no precedent or tradition of doing so. Out of 18 million people who voted in last year’s parliamentary elections only 1,571 voted by mail.

The plan is for mail carriers to deliver the ballots, and for people to later return them to specially-designated mailboxes, but it is unclear what these mailboxes would look like or how they would be safeguarded. Polish media report that due to the coronavirus only half of the country’s 30,000 mail carriers are at work now.

And a new report from the leading daily Gazeta Wyborcza suggests that the new legislation overlooked still-existing regulations that require the mail carrier to hand-deliver the ballot, instead of dropping it in the mailbox, making the process all the more unsafe.

It is unclear how the blind would vote in the election, or people who are quarantined due to Covid-19—although the deputy head of the postal service said on April 26 that the mail carriers would carry special boxes that they wouldn’t have to touch. Also, many people do not live at the addresses where they are registered, which could mean they wouldn’t get their ballot, said Poland’s human rights ombudsman in a letter to lawmakers. Another issue is the Polish diaspora, which votes in large numbers in the country’s elections, usually by visiting Polish consulates or embassies. Many of them live in places with shelter-in-place orders.

“These new regulations have so many holes in them that they deprive thousands of people of the right to vote,” Materska-Sosnowska said. And with virtually non-existent procedures for voting by mail, experts are also concerned about voter fraud.

After the ballots would be cast, they’d still have to be counted. But due to fears of contagion, there aren’t enough people to staff up the local electoral committees that normally do the work, according to Polish media reports.

The ministry of state assets, responsible for the election, did not respond to multiple requests for comment. In fact, when called on April 24, a spokesperson for the ministry said he couldn’t speak about the election because the legislation was still in the Senate.

The issue of health

Epidemiologists are harshly critical of the May 10th vote-by-mail plans, according to a report prepared for lawmakers in the Polish Senate obtained by Polish publication Gazeta Prawna. The ballot envelopes can easily be contaminated with the virus, the report said, and there are no provisions in the new legislation for their disinfection, or how the ballots could be safely returned.

Experts disagree on whether Poland has hit its peak infections.

The experts are also concerned for the health of those charged with counting the votes, since they would count ballots in groups—electoral committees—from 3 to 45 people. The epidemiologists recommend that committee members get tested for the coronavirus, but the legislation does not foresee the possibility of excluding someone from these electoral committees because they are sick or need isolating.

A subversion of the process

Experts say Law and Justice is bending and changing all sorts of rules and regulations—many say even the Polish constitution—to push ahead with the election. For one, the entire effort is not led by the institution that is normally responsible for elections in Poland, the National Electoral Commission, which Materska-Sosnowska said is a relatively independent agency. Now it is only formally supervising the vote, while the actual organizing is led by the ministry of state assets, which is a new government body formed by Law and Justice in November.

“If we have an institution that normally oversees the elections, you can’t just suddenly move that oversight to a new body, and through just an ordinary bill,” she said.

And in a particularly Kafkaesque twist, the ministry was widely criticized for printing ballots before the special election legislation was signed into law. “We are in a legal vacuum,” Mikołaj Małecki from the criminal law department at Jagiellonian University told Polish TV station TVN24. “There is no legal basis for organizing a vote that is fully by mail.”

What’s more, in order to get voters their ballots, the postal service needs voter files with people’s names, addresses, and government-issued ID numbers. But local governments, which hold that data, are refusing to hand it over, arguing that the postal service has no legal right to get the files.

An uneven playing field

Besides all of the procedural and logistical problems, there’s the issue of the campaign itself. In Poland, candidates are supposed to be guaranteed equal access to voters, which Materska-Sosnowska and other experts say hasn’t happened.

Public gatherings are banned, so any rallies or campaign events are impossible. And there is a massive disparity between the airtime candidates get on public television, which the ruling party has seized control of. “Candidates other than the incumbent president don’t have the slightest chance of winning. They can’t campaign at all except on social media,” Materska-Sosnowska said. “Okay, but the president is also campaigning on social media, and while using his role as the incumbent, and additionally, he’s being promoted on public television. There’s an imbalance at the outset.”

This sort of imbalance of airtime is something that various commentators have raised (English link) as a problem in the US as well, arguing that Donald Trump used his daily coronavirus press briefings as a form of free advertising for his reelection campaign.

Polish media have also reported about a shady scheme to prop up the current president: If all of the opposition candidates withdrew from the election, the vote would have to be postponed. Reportedly, the opposition candidates had been considering doing so, except for one, a little-known right-winger named Marek Jakubiak. Reporters obtained messages sent by Law and Justice operatives to their colleagues, encouraging them to help formally register Jakubiak as a candidate by gathering the required voter signatures. Having a spare candidate sympathetic to the president would be a failsafe that would ensure that the election would indeed happen. The text messages spell out this plan nearly verbatim.

Why the rush?

Many have been calling for Poland to introduce a “state of emergency due to a natural disaster,” a formal legal regime that would force the ruling party to postpone the election. But Law and Justice has been refusing to do so, insisting on the May election date.

“The rush is only because of political reasons. This is the only way that Law and Justice can guarantee that their president stays in power, and’s what the game is about,” Materska-Sosnowska said. “If there was no coronavirus, and the elections would be taking place in May, the opposition wouldn’t have a big chance of winning, but that chance would be there. Today, it’s nonexistent. But when we start to emerge from the pandemic, the social costs will be so enormous, that those in power will be in a losing position.”

The election also provides a distraction from pandemic-related issues like the rising number of unemployed or the lagging financial relief that the state was supposed to provide, Materska-Sosnowska said.

But, she added, the at-all-costs approach could hurt the ruling party. The political legitimacy of a president elected in such haphazard elections will be “very weak.”

Right now, one of the biggest debates in Poland is not who to vote for in the upcoming election, but whether to vote at all. Some say they won’t participate in what they see as a farce, others say that refusing to vote will only make things worse. The leading opposition candidate, Małgorzata Kidawa-Błońska, openly called for a boycott, and made her campaign hashtag #OniWyboryMyŻycie, or #ThemElectionsUsLife.”

Few countries are like South Korea

The situation in Poland could be a harbinger of what is to come in other countries, especially those where rule of law and democratic institutions are weak or lack the public’s trust. The election preparations and expected turnout stand in stark contrast to a remarkable election in South Korea, where ⅔ of voters turned out to vote in person at polls that appeared to be meticulously prepared for a pandemic situation—with temperature checks, sanitizing stations and a very orderly process. “Most people seemed to feel comfortable voting because of the government’s effective response to the pandemic,” wrote Catherine Kim at Vox (link in English).

In Poland, that support trust and in the decision-makers is far, far lower. In polling only about 28% of respondents said they would take part in the vote at all.

The election debacle is just the latest chapter of the crisis of democracy in Poland, where the populist Law and Justice party has been attempting to re-mold aspects of government from the legal system to public schooling, drawing criticism from international observers and decision-makers, including in the European Union (this and remaining links in English).

“Unfortunately this is all very easy to explain. Democracies die when those in power get it through the democratic process and then wield it in an authoritarian manner. They’ve done this by disassembling the constitutional tribunal, then performing a coup against the [independence of the] courts,” Materska-Sosnowska said. “The only thing left are democratic elections.”

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