Recently, in mid-November 2021, Hungarian Parliament adopted a bill which did not itself amend the rules governing elections, but may nonetheless have a profound impact on the integrity of the 2022 parliamentary elections in Hungary.
Essentially, the recently adopted regulations render the concept of residential address meaningless, degrading it to little more than a post office box, by doing away with the earlier requirement that one must actually reside at the particular address when registering it with the authorities. Until now, the place of residence was the address where a citizen lives. In future, the place of residence will be the address the citizen uses as an official contact address, and with which certain rights are associated. There will only be a presumption of living at the address, without any legal consequences.
And because there will be no expectation of actually residing there, the concept of fictitiously registered addresses will become irrelevant, along with criminal responsibility for such acts. There will be no legal means to hold anyone accountable for forgery of administrative documents if they register a false address.
How does this affect the integrity of the elections? In several ways, and none of them suggests an improvement in integrity.
First of all, in Hungary’s north-eastern regions, a phenomenon known as voting tourism has been flourishing for years. This is primarily made possible by the substantive law on elections. When Hungarian citizens living abroad (primarily in countries neighbouring Hungary) were given the right to vote by mail, legislators also decided that their active suffrage would be limited. They can only vote for party lists, and not for individual candidates, because - as individuals residing abroad - they are not affiliated with any single-member constituency. Hence, it is only individuals who maintain a residential address in Hungary who are entitled to cast full votes (i.e. for both party lists and individual candidates).
At the same time, any Hungarian living abroad who establishes a residential address in Hungary receives a full, active right to vote (i.e. including for individual candidates) - this is in no way a problem of the era of open borders. What is concerning, however, is that there have been reports of massive numbers of voters who only pretend to settle in Hungary, and have never resided or plan to reside at the residence address registered in the country: nevertheless, these individuals regularly turn out at elections and cast ballots for individual MP candidates. Such large-scale voting tourism had become so rampant that during the 2018 parliamentary elections, on election day, that the capacity of border police authorities was increased on the border between Hungary and Ukraine, in order to make crossing the border easier. In other words, the state knew to expect border traffic to increase significantly on election day, when individuals not ordinarily residing in Hungary would arrive in large numbers to cast their votes. Those participating in this abuse were clearly motivated by financial interests to take part in this process, while the authorities were relatively ineffective when investigating these cases, and have taken little forcible action against them.
Even so, this behaviour - establishing a fictitious residential address without residing there - had until now been a crime, and was considered forgery of administrative documents. If any citizen cast a ballot in such a fashion, some court rulings determined that this was to be considered a crime against the elections - in other words, electoral fraud. The former category of crime has been struck down by the amendment of the Criminal Code which is just about to enter into force. This means that it will not be possible to take legal action to hold a person registering a fictitious address at their own property, in the same way that it will not be against the law to abet anyone registering a fictitious address in a property owned by someone else. As such, it will also no longer be possible to hold those casting a vote through these means accountable for crimes against the elections, because the concept of residential address is also changing. It will not be a crime to register a false residential address, meaning the we cannot speak of notions of obtaining the right to vote through a crime and voting despite ineligibility.
In view of the above, it is also worth considering that this amendment has implications not only for the suffrage of those resettling - at least on paper - in Hungary from abroad. Going forward, there will also be no limitations on the movement between electoral districts and settlements of those who wish to use illegitimate means to influence the outcome of the elections. All they need to do is search for a swing or battleground district in the case of parliamentary elections, and register their address locally in a property owned by an individual orchestrating the electoral abuse. This may determine the fate of the parliamentary mandate in the given district. In some of the most competitive districts, it is only a few hundred votes that decide the winner. Not to mention local government elections where, in the smallest settlements, fewer than five votes may be enough to determine who gets to hold public office, and where the number of vulnerable citizens who may be forced to participate in abuses is far higher.
At the same time, we cannot state that there are no legal tools whatsoever at the disposal of those who wish to take action against such abuse. It will remain possible to file electoral complaints over the registration of fictitious residential addresses and voting in possession of such addresses: even if the action itself is not punishable, it may still run counter to the fundamental principles of the act on electoral procedures. These have to do with protecting the exercise of rights in good faith and according to the law, as well as the protection of the fairness of the election. It is possible that the principles of voluntary participation and the equal opportunities of candidates and nominating organisations may also be affected.
One of the legislators’ key arguments in favour of the amendment is that they will indemnify many citizens from the threat of criminal law, because there may be hundreds of thousands or even millions who do not reside at their actual residential address, for instance when changing jobs for temporary periods or when at school. At least in theory, such persons could have been held liable for having registered at an address that is different from where they actually reside. In their case, the change is certainly a step in the right direction.
The amendment, however, does not only affect well-meaning citizens, but also those participating in abuse. The best solution would therefore be for Parliament to enact regulations which make it possible for those (and their abettors) to be held responsible for crimes against the elections who have no other intention when establishing residence than to interfere in the elections in an illegitimate way.
The fairness and integrity of the elections is a recurring theme in public discourse, and concerns such as the ones above are regularly raised. In these conversations, the question is often asked whether a particular rule merely favours the current governing parties, or actually threatens the fairness of the elections - as is the case above. Voting tourism tied to the parliamentary elections is, based on the information made public to date, used as a tool by the current governing parties. This also means that they would primarily be the ones to benefit from the unfair advantage derived from the termination of criminal responsibility. Such abuses are far more arbitrary in the case of local government elections.
One good example of measures threatening the fairness of elections and benefitting the current governing parties is the regulation of voting by mail. This stipulates that only individuals who have no residential address in Hungary may vote by mail. Individuals who are abroad only temporarily must visit an embassy or consulate to cast their ballots. This regulation amounts to unjustified negative discrimination - yet the Constitutional Court did not find the relevant complaint about it well-founded, stating that, “the relationship between a voter holding a permanent residential address in Hungary and the state is more direct and stronger than that of those with no permanent place of residence. Voters with a permanent residential address in Hungary are expected to cast their ballots in person (including at foreign missions), considering that they enjoy a full right to vote, and they are thus expected to take on extra burdens to do so.” The court’s decision thus upholds the discrimination, while arguing the contradictory notion that voters with closer ties to Hungary are expected to take on extra burdens when exercising their right to vote.
Over 90% of those voting by mail consistently support the governing parties. No such information is available for votes cast at embassies and consulates, as these votes are mixed in with the ballots in the respective constituencies. At the same time, according to certain opinions and anecdotal information, the overwhelming majority of votes cast at embassies and consulates do not support the current governing parties; this suggests that keeping the current rules unchanged is justified by political interests. While voting at a foreign mission is complicated and requires the voter to commit extra resources (they must travel to an embassy or consulate located potentially hundreds of kilometres away, at their own cost), voting by mail is a simple and free way to exercise one’s rights. These rights were expanded by the governing parties just prior to the 2019 European Parliamentary (EP) elections: the new rules made it possible to vote by mail also in EP elections, meaning that it is possible also for those Hungarians who do not live in a member state of the European Union to vote for members of the EP. According to the initial information, the governing parties obtained an overwhelming majority of the votes of ethnic Hungarians in Vojvodina in the EP elections.
A number of factors threatening the fairness of the elections have been raised in connection with voting by mail. Registering as a voter wishing to vote by mail remains valid for ten years: i.e. it is not necessary to register before each election. It is thus possible, in an absurd scenario, for someone else to vote on behalf of a voter who had passed away in the meantime, using the voting package sent to the individual by mail, as voting by mail removes the assurances provided when voting at a polling place. An additional concern is that anyone is allowed to transmit the mail-in ballots to the Hungarian election authorities: there is no substantive oversight during the transport of the votes. It is also worth recalling, that - at the initiative of the governing parties - following the 2018 elections, Parliament further loosened the legal guarantees of voting by mail (which were weak to begin with), by declaring that mail-in ballots were admissible even if their envelope was slightly damaged; additionally, the requirement that only official envelopes could be used to mail ballots was also lifted.
Finally, it is also worth mentioning the system of multiple recommendations, and the network of business, or sham, parties which this has given rise to. In order to run in the election, each individual candidate must collect endorsements from at least 500 voters. It was in the 2014 parliamentary elections that voters were first given the opportunity to endorse not just one candidate, but any number of individual candidates. The significance of this is that legislators chose to tie the possibility for parties to field a national party list to the number of individual candidates. Additionally, the more candidates a party fields, the more state support to which they become entitled. A number of abuses were reported in the 2014 and 2018 elections having to do with the system of multiple endorsements: copying and sharing voters’ endorsements in support of individual candidates had become commonplace among parties seeking only to acquire the state-provided campaign funding while lacking any real political platform and not even looking to come into office. The few criminal investigations launched in connection with these cases have only limited utility in taking on these sham parties.
In sum, we can state that Hungary’s acts on elections and electoral rules, and other relevant legal regulations, must be transformed in several ways in order to create the appropriate framework for transparent elections.