Repealed

9/2014. NEC Directive

on the validity of voting documents and the interruption of the deadline for deletion from the central register [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 basis of the initiative of the President of the National Election Office - issues the following

directive:

1. It would be contrary to the principle of the equality of the right to vote laid down in Article 2 of the Fundamental Law of Hungary (hereinafter: Fundamental Law), as well as to the principles of protecting the integrity of the election and the good faith and proper exercise of rights laid down in the Ve., if a voter on the register of postal voters who does not have a Hungarian address submits an invalid voting document and then submits a new voting document(s).

The Ve. does not attach the legal consequence of invalidity to this voter behavior with respect to the voting document(s), but it follows from the principles named in the Fundamental Law and the Ve. that these voting documents cannot be taken into account in the electoral procedure. To this end, the National Election Office must also record the fact of the submission of the invalid voting document in the register of postal voters.

• The ten-year deadline for deletion from the central register is interrupted if a voter living abroad without a Hungarian address who has been included in the central register at their request submits a voting document. In this respect, the deadline is interrupted by the submission of both a valid and an invalid voting document, but the latter only if the identity of the voter can be established beyond a reasonable doubt, i.e., their identification declaration meets the requirements of Section 289 (4) of the Ve.

The directive is aimed at interpreting the following provisions of the Ve.:

"Section 2 (1) The following fundamental principles must be applied when applying the rules of the electoral procedure:

1. protecting the integrity of the election,

e) good faith and proper exercise of rights,"

"Section 177 (1) The ballot counting committee shall refuse to vote a voter who

(..)

c) has already voted, (..)"

"Section 288 (1) The National Election Office shall check the voting documents containing the votes of voters without a Hungarian address."

"Section 289 (1) The election office shall examine the voting documents received within the deadline.

(..)

(3) The voting document is invalid if

a) the reply envelope is not sealed,

b) the identification declaration or the inner envelope is missing from the reply envelope,

c) there are more than one inner envelopes in the reply envelope - for the same election,

d) the inner envelope is not sealed,

e) the declaration is incomplete or does not contain the signature of the voter,

f) the citizen is not on the register of postal voters,

g) the voter has already submitted a valid voting document,

h)

i) the voting document is late.

(4) The voting document is also invalid if the data of the voter indicated on the identification declaration differ from their data in the register or records under subsection (2), unless the reason for the data difference is

a) a change of name that has occurred in the meantime,

b) a diacritical error,

c) a difference in spelling,

d) a foreign language designation of a geographical name,

e) the omission of one of the forenames in the data under Section 92 (1) a) aa), ab), and ad), or the provision of data in another language,

and the identity of the voter can be established beyond a reasonable doubt."

"Section 290 (1) If the voting document is invalid according to Section 289 (3), the reason for this must be indicated on the reply envelope, and the contents of the reply envelope - without opening the inner envelope - must be placed back in the reply envelope.

(2) Reply envelopes containing invalid voting documents must be packaged separately."

"Section 291 (1) If the voting document is not invalid according to Section 289 (3), the election office shall indicate on the register of postal voters that the voter has submitted a valid voting document."

"Section 97 (1) The National Election Office shall delete from the central register a citizen who has been included in the register at their request and lives abroad without a Hungarian address

a) if they request their deletion,

b) after ten years from the day of their registration; the deadline is interrupted if the voter amends their data in the register, requests the extension of their registration, or submits a voting document."

Legal provisions taken into account during the interpretation:

Fundamental Law of Hungary

"Article 2

(1) Members of parliament are elected by voters on the basis of universal and equal suffrage, by direct and secret ballot, in an election that ensures the free expression of the will of the voters, in a manner specified by a cardinal law."

Reasoning

1. Article XXIII of the Fundamental Law regulates the right to vote. The fundamental task of the election bodies involved in the electoral procedure is to enforce the right to vote of citizens as a fundamental constitutional right, and within this, to facilitate the enforcement of the clearly expressed will of the voters. The Ve. contains a conclusive list for the definition of an invalid voting document. The law, among other things, considers a voting document to be invalid if its submission was preceded by the submission of a valid voting document, but it does not specify what legal judgment is applied to a voting document if its submission was preceded by an invalid voting document.

Article 2 of the Fundamental Law contains the electoral principles to be applied in connection with parliamentary elections, which provision is closely related to the rules on the right to vote specified in Article XXIII of the Fundamental Law. The electoral principles are as follows: universality and equality of suffrage, and the direct, free, and secret nature of the election. Article XXIII of the Fundamental Law links the right to vote in all public law elections to a single condition, Hungarian citizenship.

As the Constitutional Court also pointed out in its decision 22/2005 (VI. 17.) AB, in constitutional democracies, the self-government of the members of the political community has been realized on the basis of the one-person, one-vote principle, which realizes the right to equal participation in the democratic procedure. The equality (equal value) of the members of the political community with the right to vote is expressed by the fact that the participants in decision-making based on popular sovereignty have equal rights. The principle of equal suffrage is also closely related to the principle of the rule of law. It is important that the effective legal regulations must express the equality of voters: the regulation cannot make unjustified distinctions between certain groups of voters, for example because of their place of residence.

In view of the above, in the opinion of the National Election Committee, it is not compatible with the equality of the right to vote or with the exercise of the constitutional right to vote itself, which is accorded special protection in the Fundamental Law, if a voter who does not have a Hungarian address and is on the register of postal voters has not one, but several voting documents in violation of the specific provisions of the Ve. and wishes to exercise their right to vote on several voting documents.

Given that Section 289 (3) of the Ve. lists the reasons for the invalidity of a voting document, stating that a voting document is invalid (among other things) if the voter has already submitted a valid voting document, the National Election Committee, acting within its competence as laid down in Section 51 of the Ve., had to take a position on whether the second or even third voting document submitted is capable of producing a legal effect if the first voting document submitted was invalid (for some reason) and therefore does not fall under Section 289 (3) g) of the Ve. The National Election Committee's position is that extending the conclusive list in Section 289 (3) of the Ve. would fall within the legislative competence, and therefore its directive cannot be aimed at stating that these voting documents are invalid voting documents under the referred provision of the Ve.

However, it follows from the fundamental principles of the equality of the right to vote, the protection of the integrity of the election, and the good faith and proper exercise of rights that every voter who does not have a Hungarian address and is on the register of postal voters has one vote and can express their will with the vote cast on the party list ballot paper. This is exactly what the already mentioned reason for invalidity (based on the fact of a previously submitted valid voting document) expresses. It would violate the equality of suffrage among voters with the right to vote in parliamentary elections if the National Election Office were to take into account more than one voting document from postal voters during the verification of votes.

The National Election Committee notes that the legal reasoning contained in this directive is similar to the regulation contained in Section 177 (1) c) of the Ve. - although in the case of a different type of voting. According to this, if a voter who has already cast their vote in a polling station wants to cast their vote again, they must be refused.

The election bodies are those actors in the electoral procedure whose most important task is to safeguard the integrity of the elections, and to lawfully prepare, organize, and conduct public law elections. In fulfilling this task, their task is not only to positively facilitate the expression of the will of the voters, but also, as guardians of legality, to prevent those voter behaviors that are contrary to the effective legal regulations and that may call into question the enforcement of faith in the integrity of the elections and the legitimacy of the elected bodies created as a result of the elections.

Based on all of the above, the National Election Committee's position is that if a voter has submitted an invalid voting document, any further voting document submitted by them, regardless of whether any of them is valid, cannot be taken into account. In order to screen out the submission of multiple voting documents, the National Election Office must record not only the fact of a validly submitted voting document on the register of postal voters during the verification of voting documents, but also the submission of an invalid voting document.

4. Section 97 (1) b) of the Ve. does not make a distinction between voting documents with regard to their validity or invalidity, providing that the submission of a voting document results in the interruption of the ten-year deadline for the deletion from the register of a citizen who has been included in the register at their request and lives abroad without a Hungarian address. In the opinion of the National Election Committee, a validly submitted voting document is capable of producing the legal effect of interrupting the ten-year deadline from the day of registration, as well as an invalid voting document in which the invalidity was not caused by the incompleteness of the identification declaration, i.e., the identity of the voter can be established beyond a reasonable doubt from it.

Budapest, 24 March 2014.

Dr. András Patyi
President of the National Election Committee

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