EUR;CoE;EU;CECC;JCCJ;WCCJa) Hungary / b) Constitutional Court / c) / d) 09-05-2014 / e) 3141/2014 / f) On the winner compensation in the election system / g) Magyar Közlöny (Official Gazette), 2014/15 / h) .
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Institutions - Elections and instruments of direct democracy - Electoral system.
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Institutions - Elections and instruments of direct democracy - Electoral system - Method of voting.
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Institutions - Elections and instruments of direct democracy - Determination of votes - Counting of votes.
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Fundamental Rights - Equality - Scope of application - Elections.
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Headnotes:
The provisions of the Act on the Elections of Parliament Members concerning the winner compensation do not violate the constitutional requirements of the equality of the right to vote.
Summary:
I. The applicants (a political party called "Together" and its representative) submitted a constitutional complaint, requesting the examination of the Act CCIII of 2011 on the Elections of Parliament Members (hereinafter, the "Act"). They contended that a provision of the concerned Act is contrary to the requirement of the equality of right to vote. The provision stipulated that the votes cast for the winning candidate in the individual constituency and the number of votes remaining after deducting the number of votes for the runner-up candidate plus one are considered as surplus votes during the distribution of the mandates from the party list. In their view, the mandates that may be won from the party list by the surplus votes are meant to be a compensation in connection with the votes cast in the individual constituency. However, the compensation of the winner without any constitutional reason restricts the requirement of the equal weight of votes.
The parliament features 106 district mandates and 93 party-list mandates. Voters cast two votes in national elections: one for representatives in the voters’ individual constituency, and one for party lists. Individual constituencies are awarded on a winner-take-all basis. The votes are aggregated across the country and additional parliamentary seats are awarded to parties based on these results, above and beyond the seats won in the individual districts.
The unique feature of the election system is the winner compensation. Previously parties were compensated by gaining extra votes in their party list totals, which occurs when their candidates win a lower share of individual constituencies than the popular vote would predict.
Under the new election system, the party winning an individual constituency will be awarded not only that particular mandate, but also extra points in the party-list calculations when it wins by more votes than needed.
II. In accordance with its case law, the Constitutional Court pointed out that the Fundamental Law does not contain detailed provisions about the electoral system itself, prescribing only some electoral principles. Therefore, the Parliament has wide discretion to decide on the electoral system, the rules of the electoral procedure and the order of the distribution of mandates. However, this hardly means that the requirements of the Fundamental Law should not be taken into account.
The practice of the Constitutional Court does not require the "effective equality" of the right to vote. The equality of right to vote does not mean that expressed political wills prevail equally without any derogation.
In the view of the Constitutional Court, the application of the majority ? proportional or the mixed electoral system ? does not mean the violation of the equal weight of the votes. The challenged provision does not obstruct the right of the petitioners to vote and stand as a candidate in elections of Members of Parliament. Also, it does not violate the equal chance of the candidates prior to the elections. According to the Constitutional Court, the present system does not support the organisation whose candidate won the relative majority during the elections. Instead, it supports the organisation that nominated the winner candidate in the individual constituency. This is not necessarily the same organisation with the relative majority regarding the final result of the elections. Furthermore, only a significant number of extra votes cast for the winner candidate results in a mandate.
III. Judge Béla Pokol judge attached concurring opinion and Judges András Bragyova, László Kiss and Miklós Lévay judges attached dissenting opinion to the decision.
Hungarian.