ODIHR releases further opinion document on new Draft Act on conduct of Presidential election

On 14 May 2020, the OSCE Office for Democratic Institutions and Human Rights (hereinafter “ODIHR”) received a request from Dr. Adam Bodnar, Commissioner for Human Rights of Poland, to provide a legal opinion (hereinafter “opinion”) on the Draft Act on special rules for the organisation of the general election of the President of the Republic of Poland ordered in 2020 with the possibility of postal voting (hereinafter “Draft Act”) of 12 May 2020. By letter of 15 May 2020, ODIHR confirmed the readiness to provide a legal opinion on the Draft Act.

The Draft Act addresses some of the concerns expressed by ODIHR in relation to prior legislation on postal voting in the 2020 presidential election in Poland. In particular, the Draft Act retains the authority of the NEC to manage the electoral process, allows for in-person voting in a polling station and potentially allows more time for adequate preparations by the election administration and for providing the requisite information to voters. At the same time, some concerns and recommendations previously expressed remain, and certain aspects of the Draft Act should be improved in order to ensure the effective exercise of electoral rights in line with international standards for democratic elections. Consequently, ODIHR makes the following key recommendations:

• ensure that amendments to electoral legal framework are adopted through a public and inclusive process that also respects the principles of legality and the rule of law, allows for a meaningful discussion and facilitates consensus of the key stakeholders.
• ensure that any decision to cancel in-person voting is taken by the NEC, sufficiently in advance of election day to enable proper implementation of postal voting and avoid potential disenfranchisement of voters;
• establish an early deadline for issuing public health guidelines applicable to the electoral process to enable appropriate regulation and implementation;
• reconsider provisions allowing the Marshal (speaker) of the Sejm to set and change electoral deadlines. To the extent that flexibility in electoral deadlines could be permitted in light of the epidemic situation, the law should explicitly state which deadlines can be changed and the final decision on such changes should be made by the NEC;
• consider retaining the judicial composition of DECs that is provided for by the Election Code and reconsider respective provisions of the Draft Act, particularly since it remains unclear how they are related to the exigencies posed by the current situation;
• reconsider the proposed reduction of the minimum number of Precinct Election Commission (PEC) members and apply the provisions of the Election Code on PEC composition for the newly scheduled election;
• ensure that electoral committees registered to contest the newly scheduled presidential election are subject to the regular campaign spending limits envisaged by the Election Code;
• ensure that that the new timeline for the 2020 presidential election allows for a comprehensive voter information campaign, including information about the new voting arrangements and the protective measures introduced in polling stations;
• ensure that the deadlines for electoral dispute resolution are not shortened unreasonably.