Covid 19 /Corona and the epidemic pose many challenges for our personal lives, for individual businesses, for health care, for elderly and the sick, for the economy, but also for open societies, democracy and the rule of law. Emergency measures must be taken, large demonstrations banned and suspended, large gatherings and meetings put to a halt, meetings of elected assemblies suspended or moved virtually, court sessions stayed or moved online, parliamentary sessions and parliamentary lawmaking and scrutiny hindered, and possibly even elections suspended or becoming less accessible for people or becoming a health hazard. What to do since a state is also under a duty of care to its citizens and ought to take the necessary protective measures? How to combine and reconcile these measures with keeping democracy open and functional and transparant and working?
The basic principles of democracy must be preserved even in times of a pandemic, and these are: unfettered debate and decisionmaking in parliaments and their scrutiny of executives as well as transparency of their debates and meetings; ample possibilities for manifestations however if necessary under social distancing rules or with obligations to wear face masks; the obligation to have regular elections as essential element of a vibrant democracy, and also to enable courts to proceed through internet or in digital sessions. And all this with tools of modern technologies to enable transparency: streaming assembly meetings and court proceedings and the electoral process of voting and counting of the votes.
Postponing elections might be an option, but only in the most serious of circumstances and when all other means to have safe elections fail, and even then: abuse of this postponement ought to be avoided. That means that no regular majority nor government ought to be deciding about such a postponement. It ought to be a joint decision of a large qualified majority so as to avoid it is an instrument in the hands of the majority to stay in power.
But the first option ought to be: doing all that is possible to organise covid19-safe elections. How? For instance: expanding the number of polling stations so as to make sure that no queues will emerge and that voters can abide by social distancing rules; or one may enable voting on more than one day and/or allow early voting; and/or allowing and expanding proxy voting sothat elderly people may stay home or cast their vote through the regular post (voting by mail). These tools are highly preferable over any postponement.
The electoral process also requires that parties and candidates can campaign and can campaign effectively: so when physical gatherings may be suspended or limited, it is essential to open the media for all those that do compete in elections.
Specifically now that the corona pandemic is with us now for already more than 6 months, parliaments and governments and legislatures have had ample time to seek proper mechanisms to allow elections to take place and if they still cannot, to not take such a decision simply by those in power. The Hong Kong example should not serve as an example of how to cope with elections. The decision there to postpone was a misuse of powers serving ulterior motives and a violation of what was left of democracy. Italy and Switzerland had referendums recently; Poland had (after an initial postponement) its presidential elections in the second round, and the US had its presidential elections. The latter relying upon many early votes and voting by post. The Netherlands will have its parliamentary elections in march 2021 and is therefore now considering how to have them take place safely and securely. We have so many techniques now that enable us to scrutinize the fairness (camera’s in polling stations; camera’s observing the process of counting etc) and similarly we may rely on old fashioned tools such as voting by post and increasing opening hours of polling stations. If all to serve the sacred democratic purpose of frequent and effective elections.
Professor of (Comparative) Constitutional and Administrative Law, Maastricht University Netherland
Email : aw.heringa@maastrichtuniversity.nl
