Binder, Christina

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To Vote or Not to Vote?Christina Binder 2020-07-07T14:24:22The COVID-19 pandemic poses considerable challenges to democracies acrossthe world. This is particularly apparent with regard to the holding of elections whichstates have approached in various ways. Some have decided in favour of in-personelections: e.g. France held the first round of local elections in March, South Koreaits parliamentary elections in April 2020. In other elections, exclusively remote votingmethods were used, as in the March 2020 Bavarian local elections. Many electionshave been postponed, such as the parliamentary and local elections in Serbia,which were pushed from 26 April to 21 June 2020. All of these approaches haveconsiderable implications for the human rights of the individuals under a state’sjurisdiction.States face the following tension: On the one hand, the obligation to protect therights to health and life requires states to limit the spread of the pandemic byreducing human-to-human contact. The risk posed by in-person elections becamevisible during the local elections in France, after which infections of voters aswell as poll-workers were reported. Thus, states’ duty to protect might call formitigation measures, including an increased reliance on remote voting, or even thepostponement of elections. At the same time, these measures encroach upon theright to political participation. In particular, an indeterminate postponement threatensthe requirement of periodic elections; remote voting touches upon the electoralprinciples of universal, equal, free and secret suffrage. Against that background, anintricate balancing of the various interests in light of international human rights lawseems necessary.An international human rights perspective: therights to health and life v. the right to politicalparticipation and related freedomsStates’ duty to protect the right to health may be derived inter alia from Art. 12ICESCR and Art. 11 (Revised) European Social Charter.  These require states tolimit the spread of the disease through appropriate measures, including isolatingindividuals or even community quarantines. In the context of the COVID-19pandemic, anti-contagion policies, social distancing and quarantines prevailed.Insofar as individuals’ lives are at risk through the further spread of the pandemic,similar considerations may be derived from a state’s duty to protect the right tolife as enshrined in Art. 6 ICCPR and Art. 2 ECHR. In that regard, the EuropeanCourt of Human Rights (ECtHR) has already held that a state may be responsibleif it knows about life threatening risks but fails to take the appropriate measures toprevent them (see e.g. Budayeva et al v Russia [2008]; Öneryildiz v Turkey [2004]).In view of a foreseeable danger of contracting COVID-19 when holding regular- 1 -elections, states may consequently be justified and even required to adopt relevantmitigation measures, introduce remote voting or even postpone an election (in urgentsituations).The right to political participation (Art. 25 ICCPR; Art. 3 of Protocol 1 to the ECHR)requires, in principle, the holding of periodic elections based on universal, free,secret and equal suffrage (see, e.g. HRC General Comment No 25 [1996]; ECtHR,Hirst vs UK [2004]; Tanase v Moldova [2010]). The criterion of periodic electionsconcerns elections in regular intervals; universal suffrage refers to the mostcomprehensive and broadest possible turnout; free elections relate to the freeexpression of voter’s will; the secret ballot demands secrecy regarding how someonevoted. Equal elections refer to the fact that each person should have only one votewith each vote having the same voting power. The right to political participation thussets stringent standards for the conduct of elections.States basically have two possibilities to justify interferences with the right to politicalparticipation. The most “comprehensive” option are derogations due to states ofemergency. The conditions set in the respective treaties’ emergency clauses (Art.4 ICCPR; Art. 15 ECHR) are similar: “In time of public emergency which threatensthe life of the nation”, states may derogate from their obligations to the extent “strictlyrequired by the exigencies of the situation”. On that basis, in light of the imminenthealth emergency caused by the COVID-19 pandemic, a state may thus arguablyderogate from the right to political participation. It may rely (exclusively) on remotevoting even if voting outside the secure area of the polling stations challenges theprinciples of equal and secret suffrage or, in the extreme, postpone the elections.So far, ten states have derogated from certain rights under the ECHR (althoughsome have withdrawn the derogation since); in total 18 states have done so underthe ICCPR. While not referring explicitly to the right to political participation, thesederogations concerned related political freedoms such as the freedoms of assemblyand association as well as of movement.Indeed, also in the absence of a specific derogation, states may seek to justifyinterferences with the right to political participation. The right to political participationis a relative right, whose enjoyment can be restricted under certain conditions:restrictions need to be provided for by law, pursue a legitimate aim and be based onobjective and reasonable criteria – i.e. they must be proportionate (see e.g. HRC,General Comment No 25, para 4; Labita v Italy [2000]; Dicle and Sadak v Turkey[2015]). Accordingly, limitations of the right to political participation to contain thepandemic may thus be permissible if these conditions are met. This opens room forstates to adopt according mitigation measures or to rely on remote voting, as wediscuss next.Mitigating measures and remote voting methodsVarious countries have implemented measures to avoid or reduce gatherings ofpeopleduring elections. South Korean voters were encouraged to make use of earlyvoting options. Along with voting by mail, this helped to ensure that nearly one thirdof all registered voters voted ahead of election day. States might also extend the- 2 -hours of voting or spread it out over several days. Likewise, specific measures arenecessary for vulnerable groups (the elderly, people with health conditions etc.):To reduce the risk of infection, persons from these groups should be allowed andencouraged to vote through remote voting.Moreover, similar as in other social situations, there are clear indications thatwearing face masks and plastic gloves helps to contain the transmission of thedisease among those participating in elections. This was made mandatory innumerous countries. In addition to that, e.g. in South Korea, polling stations weredisinfected, and voters required to disinfect their hands. Further, the temperatureof voters was taken and those with higher temperature were sent to speciallydesignated polling stations. In several countries, poll workers also received specialtraining and equipment to ensure their protection.What is more, the current COVID-19 pandemic has (re-)opened the debate aboutremote methods to complement – or even replace – traditional in-person voting,to avoid human-to-human contact amongst voters and poll workers on electionday. Voting by mail (so called postal voting) has become one of the most widelydiscussed options to replace or complement in-person voting. In some states, votingby mail has been introduced or encouraged for this purpose, mostly where suchoptions had already been previously provided for, as was the case in Bavaria.Also, internet voting regained prominence in debates. However, only a handful ofcountries in the world rely on internet voting regularly (e.g. Estonia), while severalothers have tested this method but later returned to traditional voting (e.g. Norway).Due to the high levels of planning, preparation and testing needed, it is almostimpossible that countries will be able to introduce new internet voting systems duringthe COVID-19 pandemic, while still complying with international human rights lawand best practices in electoral matters.In sum, a state has different options depending on the domestic situation: It candecide to hold an election notwithstanding the pandemic with according mitigationmeasures and/or in reliance on remote voting methods or rather postpone theelection. In the following, we discuss parameters for choosing between theseoptions.Parameters whether to hold or postpone electionsThe parameters at play include, perhaps most importantly, the current or expectedintensity of the pandemic. Relevant criteria are, for example, the curve of infections,the reproduction factor (R below or above 1) or the number of hospitalised persons.On the basis of these data, a state will have to assess the probability and extentto which in-person elections will presumably contribute to a further spread of thedisease.In addition, financial and logistical considerations will play a role. These include astate’s means to implement appropriate mitigation measures during the elections, itsoverall operational capacities and the manpower available on election day.- 3 -Another important factor is the possible protection of vulnerable groups, especiallyof COVID-19 risk groups. Is a state able to make arrangements to protect thesegroups against infection, e.g., through secure mobile-voting or by making them votein separate polling stations?More generally, turn-out considerations may play a role. A state should assesswhether people will vote notwithstanding the pandemic: a very low turn-out risks tode-legitimize the results.Another factor is the domestic legal or constitutional framework and whether thereis a basis to postpone elections or introduce remote voting in face of the pandemic.Does the existing legal framework provide for such options or are amendmentsnecessary?  Relevant good electoral practice requires utmost transparency towardsall electoral stakeholders (parties, candidates, voters, observers, etc.) and accordingprocedural safeguards in case of amendments (involvement of the parliament, notonly of the executive branch).Another parameter is the overall political situation.A state may face differentscenarios, depending on local conditions, such as the risk of civil unrest whenpostponing elections. In particular, when elections are postponed for indefiniteperiods voters may well suspect abuse through the possible cementation of politicalpower.From the perspective of states’ obligation to respect the right to political participation,the parameter perhaps most important is the probability of holding elections inaccordance with international standards notwithstanding the pandemic. A state willhave to consider whether and to what extent the principles of universal, free, equaland secret suffrage can be upheld notwithstanding the measures adopted to containthe disease and decide what restrictions can ultimately be accepted as possibletrade-off.ConclusionHow to proceed with elections in face of the COVID-19 pandemic? Ultimately,situation-specific solutions are called for. International human rights law leavesleeway for states to postpone elections or rather proceed with mitigation measuresand/or in reliance on remote voting methods, depending on domestic conditions.At the same time, international human rights law guides states in this decision andalso sets limits to state action. Surely, not all electoral standards can be compliedwith in extraordinary times as the COVID-19 pandemic, certain trade-offs need tobe accepted. Still, a minimum core of electoral principles has to be upheld at anytime for elections to be meaningful and enjoy the trust of the public: An internationalhuman rights perspective provides valuable guidance in this respect.The authors wish to thank Mag. Philipp Janig for valuable comments on an earlierdraft of this contribution.- 4 -- 5 -

To Vote or Not to Vote?

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To Vote or Not to Vote?

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