Yesterday, Austria’s constitutional court annulled the presidential elections that were held on May 22nd. These elections led – with a mere 0,6% difference – to a victory for the Green Party-backed independent candidate Alexander van der Bellen over the populist right-wing candidate Norbert Hofer. If Hofer had won, it would have been the first time that a populist right-wing politician would become the President of Austria, which many (including me) see as a worrying sign of the way European politics has been developing (and this was all pre-Brexit!).
I’ve been dealing with an inner-ear infection and haven’t had the energy to read very widely on the web, but am struggling with a question to which I couldn’t find the answer. So let me ask that question here, since our readers who are knowledgable about Austrian politics may be able to enlighten me.
The irregularities that have been reported are formal irregularities – such as ballots being counted before the election observers were present, or the postal ballots from citizens living abroad being counted on election day, whereas they should only be counted the next day. However, according to the reporting in The Guardian,
While the court emphasised that there was no evidence of the outcome of the election having been actively manipulated, the confirmed irregularities had affected a total of 77,926 votes that could have gone to either Hofer or Van der Bellen – enough, in theory, to change the outcome of the election.
So, if I understood this correctly, there is no evidence of fraud in the voting itself. The irregularities are related to the insufficient respect for the formal rules when counting the votes. There is no evidence that fake ballots have been added, or ballots have been removed, or any such thing. I don’t see any reporting that the irregularities would have made a difference to the outcome, but I can understand that, as the President of the Constitutional court mentioned, that it is of utter importance that the people have faith in the electoral process.
But would the solution then not simply be to recount the votes? What is the reason that rules out this much more straightforward, fairer and less costly alternative to a complete new presidential election?
And there is also the question what the effect will be of an election being annulled if there is evidence of some formal rules not being strictly followed: if that is sufficient to annul an election (rather than to merely have a recount of the votes), it seems to incentivise losing political parties to turn more quickly to the constitutional court to ask for new elections. This may lead to political instabilities and political opportunism – both of which we can do without.
{ 44 comments }
christian_h 07.02.16 at 8:03 pm
It’s utterly absurd to repeat this election even though nobody has even tried to claim the minor rule violations at issue had any impact on the vote count.
Ecrasez l'Infame 07.02.16 at 8:04 pm
Just think through what the consequences of the absence of observers would be on the availability of evidence of fraud.
christian_h 07.02.16 at 8:04 pm
“Possibility”, Ze K. There is no evidence that anyone voted twice, only that rules designed to prevent it were disregarded.
christian_h 07.02.16 at 8:06 pm
Observers were absent because these are volunteers and they work Mondays and Tuesdays. I’d bet a lot of money that these things happen as a matter of course in every Austrian election.
someguy88 07.02.16 at 8:21 pm
What kind or recount? Do we recount just the places that would favor a recount for Al Gore or do we recount everything?
Well, obviously, we agree to anything that keeps out the others, and condemn anything that keeps us out.
Daragh 07.02.16 at 8:22 pm
Perhaps a silly question but – the election was held over a month ago. Have the ballots been preserved, and in such a manner that the integrity of their preservation can be assured? It may be that a recount is a technical impossibility.
Alan 07.02.16 at 8:28 pm
The distinction between ‘formal’ rules and ‘real’ rules is actually pretty thin and courts round the world are likely to a annul an election when the ‘formal’ rules are not followed, because that means there is no way to know if the ‘real’ rules have been observed. The only jurisdiction that consistently uses ‘real’ rules as opposed to ‘formal’ rules is the US where courts have repeatedly refused to look at process without evidence of a ‘real’ doubt in the result. Since, absent actual evidence of tampering, there is never any way to prove a doubt, US courts almost invariably refuse to even examine elections. That is how one George Bush was declared the winner in Florida.
I am by no means sure it would advance the cause of democracy for Austria to adopt the US practice.
Ingrid Robeyns 07.02.16 at 8:56 pm
Daragh @ 7 – I’ve been also considering that question, but shouldn’t ballots be preserved until the deadline for a formal complaint has passed – and if a formal complaint has been submitted to the Constitutional Court (as was the case) then the ballots should be preserved? I genuinely don’t know, which is why I hope someone else knows. Anyhow, I find a new election something one should not proceed to lightly, especially not if a recount would be possible.
Collin Street 07.02.16 at 9:03 pm
You can’t just recount the votes; if the boxes were opened before the scruitineers got there, then the chain of custody on the ballots is broken, and we can’t guarantee that the ballots are genuine.
Or:
Have the ballots been preserved, and in such a manner that the integrity of their preservation can be assured?
No: our guarantee of integrity was lost at the start of the count.
Daragh 07.02.16 at 9:32 pm
Ingrid @9 – Absolutely agreed on all counts (and similarly unenlightened as to the fate of the ballots – I’ll make inquiries with more knowledgeable friends and colleagues when back at the office next week if you’d like).
christian_h 07.02.16 at 10:02 pm
Alan, I believe the vast majority of countries will only repeat elections if there is evidence that (1) an actual miscount, by accident or intent occurred and (2) the size of the miscount could have changed the outcome of the vote. In this case there was no evidence for either.
Alan 07.02.16 at 10:22 pm
Your two points are accurate and the High Court of Australia, for example, applied those principles in ordering a repeat of the election for senators from the state of Western Australia in 2014. The decision to order a repeat of the presidential election conforms to those principles. In Western Australia 1370 ballots were lost by the electoral commission in transit between local counting centres and the state counting centre.
The Austrian law, according to the Constitutional Court, requires the presence of observers before the ballot boxes are opened, That did not happen. Boxes were opened without observers and the count of postal votes actually began the day before, again without observers. Once the boxes and postal votes were opened unlawfully their contents became a nullity. They were just as lost as the Western Australian ballots. You cannot just look at those boxes and assume their contents are not a nullity.
I am relying on the Guardian, if anyone can point me to the text for the decision, I’d be happy to read it.
There was an actual miscount.
The miscount could have affected the result.
P O'Neill 07.02.16 at 10:23 pm
It seems that (1) the Austrian constitutional court was not especially keen on the idea of postal votes to begin with, because of the possibility of lesser oversight on the voting process notably in terms of who was actually voting, thus (2) any irregularities on the postal votes were being held to a very high standard, and (3) since postal votes are assigned to the same districts as in-person votes, the view was that the entire count was contaminated.
Not saying I agree with it. But that’s what coming across from Austrian media discussion.
kidneystones 07.02.16 at 10:37 pm
@ 12 Actually, no – on both your points. From the Guardian link: “While the court emphasised that there was no evidence of the outcome of the election having been actively manipulated, the confirmed irregularities had affected a total of 77,926 votes that could have gone to either Hofer or Van der Bellen – enough, in theory, to change the outcome of the election.”
Simply counting the votes on the wrong day? Again, no. From the Guardian link: “Interviews with more than 60 witnesses revealed that officials responsible for counting votes had often paid little regard to official guidelines, starting to count without election observers present in the room. Some election observers, in turn, signed off protocols they hadn’t read.”
There are plenty of statisticians who can comment on the distribution patterns, but the substance of the decision seems to be this: The election may have turned on a large number of postal votes. These votes were not counted with the scrutineers mandated by law present. The 77,000 tainted ballots could have swung the election. The ‘results’ of the early illegal unsupervised vote counting evidently differed from the distribution patterns we might expect – namely a great number of these unsupervised ballots were awarded to one candidate.
Had the far-right candidate ‘won’ under such circumstances ( think Bush 2000) I can’t imagine anyone here calling for anything other than a new election.
The new elections on September 25th, or October 2nd (Guardian). Granting that three months is a (very) long time in this cycle, one does get the sense that the Austrian election will take place at a time when other nations are also well on the way to their own in-out votes on EU membership. Given the chaos across Europe at the moment and failure of the EU bureaucrats to construct a robust response to demands for reform, I’d say the future of the EU in its current form look extremely bleak. That in turn will make remaining in the EU a harder sell in my view. The principal counter-argument being Austria has to ‘remain’ in order to ensure reform.
J-D 07.02.16 at 11:08 pm
One does get that sense, but another different one does not get that sense.
Martin 07.03.16 at 12:11 am
I think the problem is that a decisive reason for the overturn does not get reported in international media:
It has long been common to pass on early results (from parts of the country where ballots had already been closed) to certain institues (e.g. to project a result at the very minute the vote ends) and even media. But there has never been a legal basis for such leaks. That way – and because leaks never remain as targeted as intended – the result has been palpable long before the official announcement and even before the first projections. Even Hofer conceded his loss long before the first projection was in (he would hardly have done so on the basis of exit polls, given the narrow result). At least one newspaper (the “Kronen Zeitung”) declared van der Bellen winner long before, too. These leaks could thus theoretically have influenced the voting behavior of the later voters. The president of the high court was explicit that this alone would have been sufficient to overturn the result. I.e. an important part for the decision was pure sloppiness concerning the reporting of the early vote.
It seems to me that this point blocks the possibility of a recount entirely, whatever other reasons there might be regardless.
An interesting implication: As the president of the high court remarked upon request, almost all elections (not only presidential) of the recent past could possibly have had to be overturned, too. It’s just that, up to now, nobody contested any of those (and deadlines have now long been missed, of course).
Layman 07.03.16 at 2:17 am
“You cannot just look at those boxes and assume their contents are not a nullity.”
Nor can you not just not look at these boxes and not assume their contents are not a nullity. Nope.
Alan 07.03.16 at 2:45 am
18
The boxes were opened without witnesses and contrary to law. There is no way to validate the pieces of paper in those boxes.
Collin Street 07.03.16 at 3:21 am
Nor can you not just not look at these boxes and not assume their contents are not a nullity. Nope.
We cannot look at the boxes. We don’t have boxes, we have piles of paper that are asserted to have been found in the boxes.
We have literally no reason to trust the purported ballot papers beyond faith in the electoral officials’ integrity, faith that we already know is somewhat misplaced by virtue of the fact that they chose to break the protocol and the law by opening the boxes in the first place.
What’s the point of having a tamper-detection protocol if you’re going to ignore it when it tells you the ballots have been tampered with outside the proper process?
ZM 07.03.16 at 5:15 am
Ingrid : “But would the solution then not simply be to recount the votes? What is the reason that rules out this much more straightforward, fairer and less costly alternative to a complete new presidential election?”
We had a similar situation in Australia a while ago and there had to be another election for the Senate of the Parliament of the Commonwealth of Australia in the State of Western Australia.
Our issue was a bit different, I think the irregularity in WA was that about a 1000 votes went missing. This indicated there may have been some sort of tampering with votes.
In the Austrian case it is that votes started being counted without election observers in the room. This is an irregularity, the observers are there to make sure everything is being done the right way.
I think the election authorities come down pretty hard on this sort of thing in order to ensure that democratic elections maintain a very good reputation, and also to strongly discourage any sort of tampering with votes and future irregularities.
Yankee 07.03.16 at 5:54 am
The court seems to be demanding a quite impossible standard of excellence in election administration. Alan @8 is quite right except that ignoring the ‘real’ events, focusing entirely on the ‘formal’, is pretty stupid. It’s so stupid that the unavoidable thought is that the win is being stolen so others can try again. The social cost of that thought should be part of the calculus of deciding to void the election. One necessary component of a fair election is that it produce a definitive result; it would seem the court has destroyed such a possibility.
Possibly something is wrong with a system that produces all these microscopically close elections. It’s about the stability thing again.
Ingrid Robeyns 07.03.16 at 6:43 am
A political scientist sent me the following link, to a newspaper article that is highly critical of the annulment:
http://mobil.derstandard.at/2000040263644/Kein-Applaus-fuer-die-Verfassungsrichter
Two citations:
“Aber in der Verfassung selbst steht dezidiert, dass eine Wahl nur dann aufzugeben ist, wenn eine Verletzung auf das Ergebnis “von Einfluss war” – nicht “von Einfluss hätte sein können”
and
“Die Richter haben aus einer juristischen Mücke einen gefährlichen Elefanten gemacht, der jetzt über die österreichische Demokratie trampelt. Es ist eine Verletzung unserer Rechtsordnung, dem Wahlverlierer eine zweite Chance zu geben, in der er dann einen strukturellen Vorteil hat: mehr Geld, viel Motivation und einen juristischen Sieg in der Tasche.
Holziger [=der Verfassungsgerichtshofspräsident] und Co. haben einer Partei, die mit dem Rechtsstaat sonst wenig am Hut hat, erlaubt, sich als Verteidiger unserer demokratischen Werte zu präsentieren. Sie haben damit genau das gemacht, was ein Höchstgericht nicht tun sollte: Politik.”
That seems exactly correct to my mind.
kidneystones 07.03.16 at 7:26 am
@ 23 Thanks for this. I don’t trust my own shabby German, but I don’t get the sense that author/authors are disputing the legality of the decision.
Any chance of a reliable translation to go with the OP, please?
praisegod barebones 07.03.16 at 7:53 am
Kidneystones @24: The first is: it says that the constitutional standard is that the election should be overturned if the irregularity *did* change the result, rather than if it *could have*. (It seems like an odd standard, but that’s what the quotation says.)
Robespierre 07.03.16 at 9:23 am
@Kidneystones 16:
As a counter: election officials and observers always sign lots of paper they haven’t even glanced at. Always. If you require a ton of modules to be signed and demand results in a few hours, that’s what you get.
Charles 07.03.16 at 9:55 am
@Kidneystones 24: The latter quote says roughly
“The judges have made a dangerous elephant out of a juridical fly, which now tramples on Austrian democracy. It’s a violation of our legal order to give the election losers a second chance in which they have a structural advantage: more money, more motivation and a judicial victory in the bag.
“[Constitutional Court President] Holziger and co. have allowed a party which otherwise wouldn’t give a damn about rule of law to present itself as a champion of our democratic values. They have thereby done precisely what a supreme court shouldn’t do: politics.”
Ingrid Robeyns 07.03.16 at 9:57 am
Here’s a translation of the second quote (others should feel free to correct, I’m translating from one foreign language to another, and I’m not a translator!):
“The judges have turned a legalistic mosquito into a dangerous elephant, which is now trampling over Austrian democracy. It’s an injury of the rule of law, to give the losers of the elections a second chance, in which they have a structural advantage: more money, more motivation, and a legal victory in their pockets.
Holzinger [= the president of the Constitutional court] and Co have allowed a party, which otherwise has shown little interest in the Constitutional State/Rule of law, to present themselves as defenders of democratic values. Hence they did exactly what a constitutional court should not do: to engage in politics.”
[I am unsure whether the best translation for ‘Rechtsstaat’ is ‘constitutional state’ or rather ‘Rule of law’ – and realise these terms in English also may mean different things in different legal regimes]
Ingrid Robeyns 07.03.16 at 10:03 am
Thanks Charles @27! (our comments crossed, but now everyone has two independent translations which come down to the same).
Perhaps somewhere a English student of German, or a German student of English, may find it a useful and fun exercise to translate the entire newspaper article, but I fear my dizziness (and kids in the house) won’t allow me to do that, sorry.
kidneystones 07.03.16 at 10:39 am
Thank you very much in reverse order to Ingrid, Charles, and praisegod barebones. These are most helpful individually and together.
The quotes are illuminating (I got as far as ‘elephants, the state, and the law’ and knew I was in trouble). The second is a useful swipe
The first is more interesting in that it seems to frame the decision as an argument between two competing (established?) needs – the need to follow the rules, and the need to interpret the rules in a way that ‘makes’ sense, or does not violate a ‘higher’ order of justice.
@26 Robespierre. Agreed. I’ll stay with my original position for the moment for two reasons. One, if the far-right had opened the ballot boxes early and without supervision and then claimed the votes gave them the election, we’d absolutely (I assume) want the courts to rule as the have. Second, one of the principal tropes of far-right propaganda is that the standard organs of democracy (elections – the judiciary, etc.) can’t be trusted. I’m not convinced the far-right will win the in the fall.
Brexit should teach everyone a few simple lessons – condemning those on the anti-EU side of the argument as bigots is an extremely risky strategy. I tend to stop listening to people who seriously compare othersto Hitler. The coming election gives the non far-right parties plenty of time to get their act together and come up with a compelling argument to win a greater share of the vote.
Crazy, I know.
Again, many thanks!
kidneystones 07.03.16 at 11:50 am
@ 16 You’re quite welcome to ignore the rise of anti-EU sentiment in a great many EU member states. Turkey wants in, and large numbers of people in a number of EU nations, including Britain and Austria, oppose such a move. There’s really rather a lot of data on Turkey’s contested membership. One link here will have to suffice:
http://www.express.co.uk/news/world/685612/Austria-leave-EU-Turkey-member-bid-Brussels-European-Union
Alan 07.03.16 at 1:13 pm
@28
With the greater possible respect, this two paragraphs contribute very little to advancing either the scene of logic to the rule of law. The paragraphs contain no constiutional or legal argument of any kind.
The second paragraph argues that the court should find that the far right are not nice people and therefore their case should be rejected and any other course of action is ‘politics’.
David 07.03.16 at 2:36 pm
Ingrid – the usual translation of “rechtsstaat” is indeed “rule of law” in English, though in fact the two concepts are rather different. Anyone familiar with the French “état de droit” tradition will know what I mean. The usual *English* translation of that is “law-based state” (not just “Constitutional state”) i.e. a state where everything is governed by rules and laws, and the formal correctness of a decision or an action can be at least as important as its content. If the election process was not formally correct in every aspect, whether out not it affected the result (and I confess my German is not good enough to be sure) then it can be challenged. Whether you think this challenge should be successful, of course, depends on who you support, as with most questions related to the Rule of Law, which in the end are political, not legal.
J-D 07.03.16 at 10:35 pm
Thank you indeed for telling me what I’m welcome to do, but you are mistaken in supposing that I am ignoring the existence of opposition to Turkish membership of the EU. I am aware that many people are strongly opposed to the (potential) admission of Turkey to the EU. However, ‘many people are strongly against letting Turkey join the EU’ does not equate to ‘other EU members (apart from the UK) are going to hold votes on whether to remain EU members’.
Yankee 07.05.16 at 4:50 pm
Here is the FBI report that faults HRC for “carelessness” which I suppose refers to the whole notion of using a private server in that environment. I wonder if it’s even possible to be effective in a potent, time-constrained environment (like diplomacy or an election)while following “the rules”. Actually I don’t wonder, pretty sure the math says not.
Alan 07.05.16 at 4:58 pm
What math would that be? really this is a remarkable thread. On the one hand we have a claim that the constitutional court was playing politics by ruling on the facts, rather than the parties, before it. Now we have an unsubstantiated appeal to math to justify a claim thats elections are just too hard to run properly.
jgtheok 07.05.16 at 10:46 pm
Alan@32,
I believe the objection being raised is based on pragmatism. How many nationwide Austrian elections, in the foreseeable future, are going to meet the standards being demanded by this court decision? If the answer is “few to none,” well, an unenforceable or only selectively enforced rule is indeed a problem. (Though this thread hasn’t sold me on that answer…)
Legal pragmatism has its own dodgy side. But jurisprudence without it has a nasty tendency to produce such glorious precedents as “separate but equal.”
Alan 07.05.16 at 11:48 pm
I doubt many legal scholars would see ‘separate but equal’ as a product of anything but legal pragmatism. If the argument is that the court decision is bad because it is inconvenient for Reason X then it’s a fairly silly argument. The particular content of Reason X is not really relevant.
jgtheok 07.06.16 at 2:14 am
Alan@38
Perhaps I misunderstood terminology? Most people would consider “cannot function” to be a sensible objection, and certainly in a different category than “inconvenient.” So, what is your issue with the practical objection that this precedent may not function (i.e., for reason of infinite recursion on legally valid challenges to the vote result)?
Back in the day, many must have claimed that ‘separate but equal’ was a perfectly sensible interpretation, and any objections based upon difficulties of implementation (“inconvenient for Reason X”) were silly.
Great legal minds eventually noted that “separate … facilities are inherently unequal.” Yet, despite the valiant use of the verb “to be,” this conclusion seems dubious as a logical proposition. Rather, it summarizes experience that ‘separate but equal’ could not work in the world those great minds were actually living in.
Alan 07.06.16 at 2:36 am
jgtheok@39
You haven’t established anything like the condition of ‘cannot function’ and tossing in ‘math-y’ sounding expressions like ‘infinite recursion’ adds nothing to your argument.
No matter how it is dressed up, the only objection to the court’s decision in this thread is that it is inconvenient.
What is proposed that the court should have decided against the hard right because they are the hard right. That would not meet any serious definition of legal pragmatism. It would be simple judicial misconduct.
Elections can be run properly and according to law. All that is needed is electoral officials who do not take invalidating shortcuts. ‘It’s inconvenient to give the extreme right another chance of election’ is just not a valid reason for a court to disregard the constitution and the laws.
J-D 07.06.16 at 3:52 am
Calling that standard ‘odd’ doesn’t go near it.
Suppose that it can be proved that roughly a thousand bogus ballots were introduced into the count. Suppose the successful candidate (that is, on the count under challenge) prevailed by a margin of three hundred votes. Clearly that means the result could have been changed by the irregularity. Should a challenge be dismissed just because it can’t be proved that the irregularity actually did change the result?
jgtheok 07.06.16 at 4:38 am
Alan@40
Sorry if I used unfamiliar terminology. More verbosely, there will be some typical number of votes that wind up being invalidated by random logistical screw-ups. (Given a nation-wide effort conducted, apparently, by semi-trained volunteers, this number will be well above zero… though hopefully less than 78K.) If the actual margin of victory falls below that number, then any attempt to redo the election likely just leads to another challenge. (In this context, can’t actually go on forever – but may not render a decision within the necessary time frame.)
That newspaper article, however, was primarily complaining about something else – that the “wrong” group seemed more likely to win the do-over. Plus, some earlier comments in the thread suggested that the court’s concern was less an insistence on balloting perfection, and more that a bunch of questionable ball0ts were reported early and may have disproportionately influenced later actions (hence, not fixable by recount). So, the pragmatic argument seems a bit of a red herring.
You chose to interpret @37 as a passionate defense of all things Left; it was not so intended. But it’s late, you’re clearly spoiling for a fight, and I refuse to give you one since, annoyingly enough, I agree with you. Good night.
J-D 07.06.16 at 5:56 am
Consider this. Suppose an election appears to have been decided by seventeen votes. Suppose irregularities affecting hundreds of votes are discovered. Suppose the result is invalidated and the election conducted again, and this time the apparent margin is not seventeen, but seventy thousand votes.
It seems to me perfectly consistent to argue that irregularities affecting hundreds of votes are sufficient justification to overturn a victory margin of seventeen, but nowhere near sufficient justification to overturn a victory margin of seventy thousand.
Alan 07.06.16 at 8:57 am
jgtheok@41
Not every miscount will effect an election result, so not every election will be voidable. To argue that every election has some degree of irregularity greater than zero is not the same as arguing that every election will have a degree of irregularity that makes it voidable. Apart from anything else, I suspect that the training received by the semi-volunteer electoral officials will be considerably more rigorous at the next election than it was at this one.
Austria may also care to reconsider the composition of the federal electoral board. OSCE Report:
The weakness in that structure is there is no-one who has a full-time job ensuring election integrity, and the 15 party representatives not only have other jobs demanding their attention, some of them have, as OSCE noted, a conflict of interest. It would be better to include at least one professional with expertise in the area and have the number of judges at least equal the number of party representatives. When the high court voided the Western Australian senate election the electoral commissioner, and their deputy for Western Australia, both resigned.
The OSCE report also noted there is no right of citizen observation as opposed to party observation. That is a common weakness in electoral administration, but one that Austria may also care to address.
Alex K--- 07.06.16 at 3:10 pm
@David (33): At a high level of generality, it’s probably a good enough idea to render “Rechtsstaat” as “rule of law,” in the sense of “government of laws, not of men.” Back in the 19th century, Germans and Austrians might have taken it literally, as you write, “a state where everything is governed by rules and laws, and the formal correctness of a decision or an action can be at least as important as its content.” However there was considerable debate over the meaning of the concept in Weimar Germany and post-WWI, pre-Dolfuss Austria. Since the end of WWII, Germany’s Constitutional Court has moved away from formalistic interpretations towards a focus on the protection of “fundamental rights.” Germany’s Basic Law, adopted after WWII, begins with a list of these rights, so the top court’s approach follows the logic of the foundational text.
In Austria, though, the Constitution seems to be a living document in the sense that it’s constantly and easily amended. It’s based on the 1920 constitution with multiple changes, and the 1920 statute already incorporated laws going back to the 19th century. According to comparative law scholar Rainer Grote:
In this legal environment, the Austrian Constitutional Court is probably an indispensable hermeneut.
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