Correspondence voting abroad in light of possible changes in Polish electoral law - a challenge for the Polish consular service
Updated: 14 hours ago
Introduction – the evolution of postal voting in Polish electoral system
Polish electoral law has undergone many changes in recent years, including the postal voting. The possibility of voting by correspondence was introduced as part of a deep reform of the electoral system in Poland and the adoption of a unified Electoral Code on 5 January 2011[1]. Initially, this solution only applied to voting by Polish citizens staying abroad. Just a few months later, the Code was amended and the possibility of postal voting was extended to include also elections held in Poland, but in a very narrow scope: only concerned people with a significant or moderate degree of disability[2]. Nevertheless, a group of members of Parliament then submitted an application to the Polish Constitutional Tribunal to examine whether postal voting violates the principle of secrecy and directness of voting guaranteed by the Constitution. In its judgment issued on 20 July 2011, the Tribunal found that the postal voting procedure was consistent with the Polish Constitution[3]. The option of postal voting became available to every voter as a result of subsequent amendment to the Electoral Code in 2014 (with only certain exceptions)[4].
A fundamental change occurred in 2018, when the Electoral Code was amended, practically eliminating postal voting (leaving such an option only for people with disabilities)[5]. According to the authors of the amendment, this change was intended to prevent abuses during voting[6]. This legal status changed somewhat in 2020, when the possibility of voting by post was extended to two additional groups of people: people in mandatory quarantine or isolation (change introduced in connection with the COVID-19 pandemic) and people over 60 years of age[7].
Current situation and new law passed in 2024
Under current Polish electoral law, still only a disabled voter with a significant or moderate degree of disability, a voter subject to mandatory quarantine, isolation or home isolation on the day of voting, and a voter who turns 60 on the day of voting may vote by post.
The new law passed on 14 June 2024 restores the possibility of postal voting, including voting abroad[8]. It is still not yet in force since the President of the Republic of Poland decided to apply to the Constitutional Tribunal for examining its compliance with the Polish Constitution within the procedure known as “the preventive application”[9] and the case is still pending (case Kp 1/24). The reason for the President's application is the omission in the new regulation of the existing possibility of voting by correspondence for persons subject to quarantine, isolation or isolation at home in elections to the bodies constituting local government units[10].
The application does not contain any allegations concerning constitutionality of voting abroad, the reinstatement of which became the main argument justifying the amendment of the Electoral Code in question. Taking this into account and being aware that this type of voting may be reinstated by another amendment to the electoral law, it is therefore worth taking a closer look at the challenges that postal voting poses for consular services, that are directly responsible for organizing the voting process abroad.
Voting by correspondence abroad – challenging tasks for consular services
Correspondence voting was exceptionally permitted due to the COVID-19 pandemic during the Polish presidential elections held in 2020, also abroad[11]. Although the introduced legislative solutions were incidental in nature, and the course of the elections was strongly influenced by the ongoing pandemic, an analysis of the electoral protests submitted to the Polish Supreme Court (the SC) allows to point out certain problems typical of this type of voting.
First of all, the allegations raised concerned not receiving the election package at all or not receiving it within the appropriate time limit that would have allowed it to be returned on time. In many cases reviewed by the SC, the factual circumstances indicated that the packages were sent by the consul within the statutory deadline, while their delayed delivery was due to the “mode of operation” of the local post office.
On this occasion, the SC recalled the basic, general principle regarding holding elections abroad: "(…) the consul's activities related to elections are not activities guaranteed by international law, which the foreign receiving State and its legal system cannot block, or in relation to which that State cannot impose conditions for their performance. On the contrary, the performance of consular activities of the sending state depends on the consent of the receiving State, expressed at least in the form of a lack of objection to the appropriate notification in this regard. The performance of these activities must be consistent with the realities of the host country and may not be contrary to its legal solutions"[12]. In this regard the Court stressed that while in the case of postal voting in Poland the relevant legal act (Electoral Code) provides not only for sending the package to the recipient, but also for the method of its delivery, in the case of postal voting abroad this issue is not regulated for an obvious reason: the system of delivery abroad remains outside the scope of influence of the Polish legislator. Delays in delivering packages are therefore beyond the scope of matters that the consul has influence on. However, the preparation and sending of the package itself is certainly a major challenge for the consular services due to the potentially high “demand"[13].
A solution that can prevent a voter from receiving a package too late to have a chance to return it in time for the package to arrive on time is to introduce appropriately long deadlines. In the law adopted on 14 June 2024, the desired solution is to introduce a sufficiently long deadline for notifying the consul of the intention to vote by correspondence, this deadline is no later than 30 days before the voting day (and not 15, as was the case in 2020). Consequently, the deadline for the consul to send the package seems to be long enough: no later than 13 days before election day (also much longer than the deadline of 6 days before election day, as was the case in 2020).
Sufficiently long deadlines for registering to vote by correspondence and sending the package can certainly help reduce the number of packages not delivered on time, but they will not eliminate all the problems associated with this type of voting. Other irregularities were also reported as part of the election protests in 2020, such as: the loss of a return package containing a completed ballot paper by a foreign postal operator[14] or erroneous delivery of an election package instead of a certificate of the right to vote (which prevented the voter from voting due to a change of residence from abroad to Poland)[15].
In particular, the situation of losing voting package (regardless of whether it is a package sent by the consul or a return package) may be dangerous due to the possibility of losing sensitive personal data. The package consist of, inter alia, “a declaration of personal and secret voting” with the form that includes the name (names), surname and PESEL (registration number) of the voter. The legislator's preferred method of sending the election package by the consul (both during the 2020 elections in question and in the new law adopted in 2024) is unregistered mail, because such mail usually reaches the recipient faster. However, choosing unregistered mail instead of registered mail reduces the level of security of the transmitted personal data. The Polish President of the Personal Data Protection Office drew attention to this issue in his opinion on the draft of the new electoral law of 2024.
Sometimes the circumstances of a case may give the impression that a violation of the right to vote has occurred when in fact it has not. An example is a situation in which a voter tracking a voting package in the electronic system of a postal operator does not see confirmation of its receipt, when in fact the package has reached the address of the appropriate consulate. Such situations may be caused by an overload of the operator's system, which must deliver thousands of packages to the same address in a short period of time[16].
Of course, conducting elections abroad involves many other duties and challenges for the consular service, such as entering voters into the register or providing them with correct information, however, the problems indicated in this post concern strictly postal voting. The legislator must therefore be aware that although postal voting is certainly much more convenient for voters, who often have a very long way to the headquarters of the electoral commission, it nevertheless involves additional duties for the consular service, the performance of which will require ensuring appropriate financial and human resources.
[1] Act of 5 January 2011 Electoral Code, Official Journal 2011 item 112 (Ustawa z dnia 5 stycznia 2011 r. Kodeks wyborczy, Dz.U. z 2011 r. poz. 112).
[2] Act of 27 May 2011 amending the Act - Electoral Code and the Act - Provisions introducing the Act - Electoral Code, Official Journal 2011 item 881 (Ustawa z dnia 27 maja 2011 r. o zmianie ustawy — Kodeks wyborczy oraz ustawy — Przepisy wprowadzające ustawę — Kodeks wyborczy, Dz.U. z 2011 r. poz. 881).
[3] Case K9/11, https://trybunal.gov.pl/s/k-911 (in Polish).
[4] Act of 11 July 2014 amending the Electoral Code and certain other acts, Official Journal 2014 item 1072 (Ustawa z dnia 11 lipca 2014 r. o zmianie ustawy – Kodeks wyborczy oraz niektórych innych ustaw, Dz.U. z 2014 r. poz. 1072).
[5] Act of 11 January 2018 amending certain acts in order to increase citizens' participation in the process of electing, functioning and controlling certain public bodies, Official Journal 2018 item 130 (Ustawa z dnia 11 stycznia 2018 r. o zmianie niektórych ustaw w celu zwiększenia udziału obywateli w procesie wybierania, funkcjonowania i kontrolowania niektórych organów publicznych, Dz.U. z 2018 r. poz. 130)
[6] Republic of Poland Parliament (Sejm), 8th term, No. 2001, justification, (Druk Sejmowy Nr 2001 Sejmu Rzeczypospolitej Polskiej VIII kadencji, uzasadnienie).
[7] Act of 31 March 2020 amending the Act on special solutions related to the prevention, counteracting and combating of COVID-19, other infectious diseases and crisis situations caused by them and certain other acts, Official Journal 2020 item 568 (Ustawa z dnia 31 marca 2020 r. o zmianie ustawy o szczególnych rozwiązaniach związanych z zapobieganiem, przeciwdziałaniem i zwalczaniem COVID-19, innych chorób zakaźnych oraz wywołanych nimi sytuacji kryzysowych oraz niektórych innych ustaw, Dz.U. z 2020 r. poz. 568).
[8] Act of 14 June 2024 amending the Act - Electoral Code, No 296_u (Ustawa z dnia 14 czerwca 2024 r. o zmianie ustawy – Kodeks wyborczy, Druk sejmowy nr 296_u).
[9] According to art. 122 (3) of the Polish Constitution adopted on 2 April 1997, Official Journal 1997 item 483 with amendments (Konstytucja Rzeczpospolitej Polskiej z dnia 2 kwietnia 1997 r., Dz. U. z 1997 r. poz. 483, z późn. zm.).
[10] https://www.prezydent.pl/prawo/wnioski-do-tk/wniosek-do-tk-nowela-kodeksu-wyborczego,89238 (in Polish). The President’s application concerns also the constitutionality of the procedure for adopting the act.
[11] Act of 2 June 2020 on special rules for organizing general elections for the President of the Republic of Poland called in 2020 with the possibility of postal voting, Official Journal 2020 item 979 (Ustawa z dnia 2 czerwca 2020 r. o szczególnych zasadach organizacji wyborów powszechnych na Prezydenta Rzeczypospolitej Polskiej zarządzonych w 2020 r. z możliwością głosowania korespondencyjnego, Dz.U. z 2020 r. poz. 979).
[12] Resolution of the SC of 29 July 2020 I NSW 115/20 (Postanowienie SN z dnia 29 lipca 2020 r., sygn. I NSW 115/20), text available in: Sąd Najwyższy. Izba Kontroli i Spraw Publicznych. Wybrane orzecznictwo w sprawach zainicjowanych protestami wyborczymi złożonymi w związku z głosowaniem za granicą w wyborach prezydenckich 2020 roku, Warszawa 2022, p. 43.
[13] For example, in the 2020 elections in question, approximately 840,000 electoral packages were sent out, of which over 80% were returned to Poland and added to the total vote pool; ibid. p. 181.
[14] Resolution of the SC of 29 July 2020 I NSW 1977/20 (Postanowienie SN z dnia 29 lipca 2020 r., sygn. I NSW 1977/20), ibid. p. 126-128.
[15] Resolution of the SC of 28 July 2020 I NSW 5507/20 (Postanowienie SN z dnia 28 lipca 2020 r., sygn. I NSW 5507/20), ibid. p. 177-178.
[16] For example, the post office serving the Polish Consulate in Manchester had to deliver almost 40,000 parcels to the consulate's address within a few days. The situation described above was the basis for the election protest resolved by Resolution of the SC of 30 July 2020 I NSW 2015/20 (Postanowienie SN z dnia 30 lipca 2020 r., sygn. I NSW 2015/20), ibid. p. 131-132.
Comments