1/2018. NEC Directive

on the effect of the number of individual constituency candidates required for a national list falling below the legal minimum on the national list[1]

The National Election Committee, acting within its competence as laid down in Section 51 (1) of Act XXXVI of 2013 on Electoral Procedure (hereinafter: Ve.) - on the initiative of the President of the National Election Office - with 7 votes in favour and 0 against, issues the following

directive

adja ki:

Based on Section 254 (2) of the Ve., a party list must be deleted from the registry of nominating organizations, candidates, and lists in a parliamentary election if the number of individual constituency candidates of the nominating organization that nominated the list falls below the legal minimum at any time until the start of voting, due to the withdrawal of one or more candidates.

The deletion of the party list as described above necessarily results in the list's elimination in terms of its legal effect. Therefore, the legal consequences associated with the list's elimination must also be applied in this case, meaning the eliminated list must be deleted from the ballot paper, and votes cast for the eliminated list will be invalid.

The directive is intended to interpret the following provision of the Ve.:

„254. § (2) The National Election Committee shall delete the party list from the register if the total number of individual constituency candidates of the nominating organization that have been registered with final effect and those who have been announced but not yet decided on with final effect does not reach the minimum set out in the law.”

Legal provisions taken into account during the issuance of the directive:

Act CCIII of 2011 on the election of parliamentary representatives

„8. § (1) A party may nominate a party list if it has nominated a candidate independently in at least twenty-seven individual constituencies - in at least nine counties and the capital.”

Ve.

„135. § (1) The National Election Office shall maintain a public, electronic register of the announced and registered nominating organizations, candidates and lists - with the data content specified in Annex 4. The election office operating alongside the election committee that registers or deletes from the register shall transfer the changes to the register.”

„66. Elimination of a candidate

137. § A candidate is eliminated if they resign from the nomination in writing before the start of voting, are deleted from the central voter register, lose the right to be elected, or if the election committee deletes the nominating organization that nominated the candidate from the register of nominating organizations, candidates and lists. The name of the eliminated candidate must be deleted from the register of nominating organizations, candidates and lists, and from the individual ballot papers.

67. Elimination of a list

138. § A list is eliminated if the nominating organization withdraws the list, all candidates on the list are eliminated before the start of voting, or if the election committee deletes the nominating organization that nominated the candidate from the register of nominating organizations, candidates and lists. The eliminated list must be deleted from the register and from the ballot papers.”

„162. § (2) If the data content of the ballot paper changes after its approval - as a result of a legal remedy decision or deletion from the register - no further approval by the election committee is required, the election office shall ensure that the changes are transferred to the ballot paper and shall inform the nominating organizations and independent candidates about it.”

„193. § (2) A vote is invalid if it was cast for

(..)

b) an eliminated candidate or list.”

Act LXXXVII of 2013 on the transparency of election campaign costs for the election of parliamentary representatives

„8/C. § (2) A party that has nominated a party list is obliged to repay the support under Section 3 to the treasury if the party list

a) is eliminated on the basis of the law on electoral procedure or

b) does not receive at least 1% of all valid votes cast for the party lists.”

„8/C. § (5) The National Election Office shall notify the treasury of the data under paragraphs (1) and (2) on the day following the final result of the election becoming final.”

Reasoning

1,    In our public law system that was transformed with the change of regime, both the parliamentary and municipal electoral systems have used the list-based electoral method. Act XXXIV of 1989 on the election of parliamentary representatives (hereinafter: old Vjt.) combined it with the individual constituency system, while Act LXIV of 1990 on the election of local government representatives and mayors (hereinafter: old Övjt.) applied it either purely or also together with the individual constituency system. The nomination of a list could and can only take place with the support of a certain number of voters, as prescribed by every electoral law solution. This support typically took the form of and is based on the recommendations required for nominating individual candidates, which were given to the nominating organization that nominated the list. [old Vjt. Section 5 (3) and (4), Vjt. Section 8 (1), old Övjt. Section 29 (1) regarding the nomination of a compensatory list, Section 29 (2) regarding the nomination of a capital city list, Övjt. Section 10 (1) and (2) regarding the nomination of a compensatory list in a settlement with more than 10,000 inhabitants and a capital city compensatory list.]

2,    The old Vjt. did not contain any provision regarding the elimination of an individual constituency candidate or its possible effect on the nomination of a list. The old Övjt., however, explicitly stated that in a mixed electoral system, "[t]he right to nominate a list is not affected if the announced individual constituency candidate has withdrawn" [Section 30 (4)].

3,    The general part of Act C of 1997 on Electoral Procedure (hereinafter: old Ve.) did not contain provisions on the consequences of general changes related to lists after the list nomination. Thus, although it regulated the elimination of a candidate in a general way (Section 58), it did not know the case of the elimination of a list at all. Originally, it also did not contain any provision as to whether the right to nominate a list is affected if an individual constituency candidate is subsequently eliminated. So, while a legal provision ensured the integrity of the list nomination in the case of the withdrawal of individual constituency candidates for municipal elections, there was no such regulation for parliamentary elections. Recognizing this deficiency, the legislator supplemented the old Ve. according to Section 4 of Act XXIX of 1998 on the amendment of Act LXIV of 1990 on the election of local government representatives and mayors and Act C of 1997 on Electoral Procedure. According to this, Section 94 of the old Ve. was supplemented with a new paragraph (2), which states that "[t]he right to nominate a list is not affected if the individual constituency candidate is eliminated".

4,    The new municipal electoral law enacted in 2010, Act L of 2010 on the election of local government representatives and mayors (hereinafter: Övjt.), similarly to the previous law, excluded the effect of the withdrawal and elimination of an individual constituency candidate on the right to nominate a list.

5,    Section 137 of the Ve., enacted in 2013, which regulates the elimination of a candidate, specifies the cases of a candidate's elimination compared to the previous regulation and states that an eliminated candidate must be deleted from the register and from the individual ballot papers. Section 138 of the Ve. already explicitly provides for the cases of a list's elimination. According to the law, this includes when the nominating organization withdraws the list, all candidates on the list are eliminated before the start of voting, or if the election committee deletes the nominating organization that nominated the candidate from the register of nominating organizations, candidates and lists. The eliminated list must also be deleted from the register and from the ballot papers. At the same time, the Ve. does not qualify a decrease in the number of individual candidates below the legal minimum as a reason for a list's elimination.

6,    The Ve. no longer contains a provision similar to Section 94 (2) of the old Ve. either in the general or in the specific part concerning the election of parliamentary representatives. However, given that this was explicitly included in the previous regulation to eliminate a previous deficiency, and that legal disputes related to it also arose alongside public interest [see: decision no. Kvk.VI.37.361/2010/2; decision no. Kvk.I.37.369/2010/2], making the aforementioned provision active, its absence from the Ve. indicates a conscious legislative intent. This is also reinforced by the fact that the Övjt., on the other hand, has retained the previous regulation.

7,    In connection with the old Ve., a supreme court case is also known which stated that the right to nominate a list ceases due to the court's deletion of an individual constituency candidate's status. This made it clear that if, subsequently, after the list nomination but before it becomes final, as a result of legal remedies against the decisions on the registration of individual candidates, the number of candidates required for the list nomination is no longer met, this provides grounds for challenging the election committee's decision on the registration of the list and for its deletion from the register in the legal remedy procedure [decision no. Kvk.IV.37.179/2006/3]. However, in the absence of a corresponding legal remedy application, the decision on the list nomination could have become final in a similar case even though its actual conditions would no longer have been met.

8,    The legislator changed this situation with the regulation of Section 254 of the new Ve. According to this, when a party list is registered, the candidates announced to the individual constituency committee must be taken into account in terms of the number of individual candidates, regardless of whether a decision on their registration has been made or is final. However, candidates who have already been decided upon and rejected by the election committee cannot, of course, be taken into account, even if the decision is not final. After registration, changes that affect the list nomination are transferred by the National Election Committee ex officio, and the party list is deleted from the register if the number of constituency candidates who were already registered with final effect at the time of the announcement of the party list, and those who were decided on with final effect after the announcement of the list, does not reach the legal minimum required for the list nomination. According to this provision, the final and non-final candidates must be taken into account together in terms of the right to nominate a list. The law does not contain a limiting deadline for how long the condition for the legal minimum must be met, so it must be continuously met until the vote is held. The obligation to meet this condition does not change even if a final decision has already been made in the case of the registration of all individual constituency candidates.

9,    Therefore, if the number of individual constituency candidates registered with final effect falls below the legal minimum (27) due to the deletion of an eliminated candidate from the register, or if the required number of candidates is still met, but the regional distribution required by the Vjt. (9 counties and the capital) no longer exists due to the deletion, the procedure of Section 254 (2) of the Ve. must be followed, i.e., the party list must be deleted from the register.

10,    This interpretation is supported by the NEC's Directive 4/2014, which made the following statements in connection with another aspect of the issue, the enforcement of the will of the voters: "When giving a supporting recommendation, the voter expresses their will towards both the party registered as a nominating organization and the candidate. [...] The registration of a party's candidate is based on the recommendations given to them and the party, and the legitimacy of the candidate in the electoral procedure is given by the social and voter support expressed towards them."

11,    According to the Ve., after becoming a candidate, the candidate and the nominating organization are inseparable: the candidate can no longer be re-classified as independent, and the party cannot legally withdraw its support from the candidate. Based on this regulation, and taking the contents of the above directive as a starting point, the NEC's position is that in the event of an individual candidate's withdrawal, the social support embodied in the candidate is also lost for the party. Consequently, it violates the protection of the will of the voters and the fundamental principle of the purity of the election according to Section 2 (1) a) of the Ve. if a nominating organization were to run on election day without the voter support embodied in the legally required number of individual candidates.

12,    Respect for the will of the voters can only be served by a legal interpretation that does not give rise to abuse. If a decrease in the number of candidates below the legal minimum after the list nomination would no longer have an effect on the national list, in an extreme case, it would be conceivable that all individual constituency candidates of a party would withdraw from running, not even competing in the election, but the party's list would still remain, and could even get a mandate by crossing the required threshold. Such a legal interpretation would open the way for abuses contrary to the fundamental principle of good faith and proper legal practice according to Section 2 (1) e) of the Ve. It would allow for the nomination of lists and thus the budget campaign support of nominating organizations that would acquire candidates in exchange for a service or financial benefits, and these candidates would, in some cases, withdraw after the list nomination becomes final. Providing such a possibility could lead to a practice that seriously misleads voters.

13,    At the same time, the will of the voters would also be violated in terms of the list nomination, as it extended to directly supporting the person concerned in becoming a candidate when a supporting recommendation was given for them, and indirectly to the nominating organization that nominated them in the national election. If the party had not had a candidate in the given constituency, the voter would not have been able to support the party at all, and if it had had another candidate, it is not certain that they would have supported them either.

14,    Based on this, the correct interpretation of Section 254 (2) of the Ve. is that the NEC also deletes party lists from the register that have been registered with final effect if the conditions for registration no longer exist, regardless of how long they existed until the day of voting.

15,    The consequence of a list's deletion is its elimination, which can be spoken of when the NEC's decision on the deletion of the list becomes final. That is, if no application for judicial review has been submitted against it and the deadline for submitting the application for judicial review has expired, or if an application for review has been submitted but the Curia has upheld the NEC's decision with its ruling. Only after this can the legal consequences related to the list's elimination be implemented.

16,    The National Election Office may act to transfer the change corresponding to the committee's decision to the register of nominating organizations, candidates and lists and to the national party list ballot papers after the NEC's decision ordering the deletion becomes final. It is understandable that if the committee's decision on the deletion of the party list does not become final by the day of the vote, the party list cannot be deleted from either the public register or the ballot paper. If the decision on the deletion becomes final after the vote (either because no legal remedy is submitted against it, or because the Curia upholds the decision of the National Election Committee, or rejects the application for judicial review without a substantive examination), according to the rule on votes cast for an eliminated list, such votes will be invalid.

17,    The Committee emphasizes that the electoral procedural legal consequences to be applied in the event of a list's elimination, as described in the previous paragraph, may arise not only in the case interpreted in this directive, but also in other cases regulated by law. This is the case even if all candidates on the list are eliminated before the start of voting - for example, because they resign from the nomination in writing or lose their right to vote - or the court deletes the party registered as a nominating organization from the register of civil organizations, on the basis of which the National Election Committee is also obliged to delete the nominating organization from the register of nominating organizations, candidates, and lists.

The aforementioned cases resulting in the elimination of a party list may also occur in such a way that the National Election Committee's decision on the deletion of the party list is made at a time when it can no longer become final by the day of the vote. In the Committee's view, the deletion of a party list from the public register and from the ballot paper can only be carried out in such cases on the basis of a final decision. If the decision becomes final after the vote, the invalidity of the votes must also be established. The invalidity can be established at the latest when the decision on the final result of the national list election is made.

The legal consequences of a party list's elimination, as described above, also include Section 8/C (2) of Act LXXXVII of 2013 on the transparency of election campaign costs for the election of parliamentary representatives, according to which, if a party list is eliminated, it is obliged to repay the previously received budget support. The National Election Office shall notify the Hungarian State Treasury of the fact of the party list's elimination on the day following the final result of the election becoming final.

Budapest, January 26, 2018.

Prof. Dr. András Patyi

President of the National Election Committee

[1] Repealed by NEC Directive 1/2021, Effective: November 4, 2021