EUR;CoE;EU;CECC;JCCJ;WCCJa) Hungary / b) Constitutional Court / c) / d) 23-07-2014 / e) 26/2014 / f) On the election of members of Budapest City Council / g) Magyar Közlöny (Official Gazette), 2014/101 / h) .
Keywords of the systematic thesaurus:
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Institutions - Elections and instruments of direct democracy - Electoral system - Method of voting.
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Fundamental Rights - Equality - Scope of application - Elections.
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Keywords of the alphabetical index:
Direct voting / Local election system / Double majority / Compensation, elections.
Headnotes:
The lawmaker is allowed to create an election system whereby the voters directly elect one candidate for two positions if based on appropriate reasons. However, provisions that give extra compensation to losing candidates on the basis of a special quota related to the size of the population of each district is contrary to the equality of the right to vote.
Summary:
I. On 10 June 2014, Parliament approved an amendment to Act L of 2010 on the Local Government Representatives and Mayors Election System. Previously, the electorate voted for the party lists; now, however, the Budapest assembly seats are assigned to the direct winners of districts. Budapest residents will not vote separately for city assembly members and district mayor, as the Budapest assembly will be made up of the city mayor, 23 district mayors along with 9 losing district mayoral candidates from the party lists.
The amendment, additionally, stipulated that losing candidates could gain mandates to the Budapest assembly from a compensation list. Mandates would be distributed according to the weight of individual districts in terms of their population. The amendment also introduced a dual majority system. Besides a simple majority in the Budapest assembly, the majority should also represent more than half of Budapest residents.
Fifty-seven opposition Parliament members requested the Constitutional Court to review the new regulations concerning the elections of the members of the Budapest assembly.
According to the petitioners, it is unconstitutional that the districts mayors become automatically members of the assembly without being elected (23 members in total) directly by the voters. Furthermore, the equality of the right to vote is violated as well, because the votes from different districts do not carry the same weight, as the number of voters is significantly different in the 23 districts of Budapest and also due to the provisions of the compensation list. According to the latter provision, in order to have a mandate from the compensation list, the votes of the non-winning candidates for mayor are weighted, resulting in multiple weights for the votes of the voters belonging to bigger districts.
Moreover, in the petitioner’s view, the right to personal data is restricted unconstitutionally as the voter shall request for information about his or her personal data on the registration sheet only until the decision on the registration of the candidate or until the list becomes valid.
II. The Constitutional Court, first, held that the changes concerning the basic regulations of the municipal electoral system of Budapest are not contrary to the Fundamental Law. As far as the direct vote is concerned, the Constitutional Court explicated the meaning of direct election: voters vote for the candidates directly and they do not elect electors. Thus, the challenged regulation does not violate the principle of direct election. The voters elect the mayors of districts of Budapest directly and they become members of the Budapest assembly automatically.
The Constitutional Court pointed out that there is no requirement T deducible from the Fundamental Law that does not allow the lawmaker to create such an election system in which the voters elect directly one candidate for two positions at the same time based on appropriate reasoning. Owing to the partial modification of the municipal electoral system, it was an appropriate and acceptable reason that the lawmaker prescribed the mayors of the districts of Budapest to be the members of the Budapest assembly as well in order to solve the functional problems of the city.
Second, the Constitutional Court found the rules regarding the compensation list unconstitutional. Regarding the requirement of the equality of the right to vote, the Constitutional Court took the different size of the districts into consideration when it examined the provisions that compensate the inequality among the weight of votes of the districts. The Constitutional Court declared that weighted calculation of the surplus votes is not an appropriate regulation to eliminate the differences among the districts. Furthermore, this regulation results in another kind of inequality. That is, the votes for the non-winning candidate are worth six times the value in the biggest districts than in the smaller ones. Because this weighing system is contrary to the equality of the right to vote, the Constitutional Court annulled it.
Third, the current regulation introduced a new decision-making system, namely the double majority system that ensures that the majority presents the major part of the inhabitants in every single decision, in order to enforce the equality of right to vote. The Constitutional Court declared that taking the effective functioning of the assembly and the historical traditions of the districts into account, the double majority system offsets properly the differences due to the different size of the districts.
Fourth, the Constitutional Court declared unconstitutional that the voter shall request for information about his or her personal data on the registration sheet only until the decision on the registration of the candidate or until the list becomes valid. The Constitutional Court annulled this regulation unanimously as there was no acceptable reason (e.g. enforcement of other fundamental right or protection of other constitutional value) to restrict the right to access personal data of the voters.
The Constitutional Court annulled the unconstitutional provisions; otherwise the petitions were rejected.
III. Judges Elemér Balogh, András Bragyova, László Kiss, Péter Kovács, Miklós Lévay, Péter Paczolay and László Salamon attached dissenting opinion, and judges István Stumpf, Péter Szalay and Mária Szívós attached concurring opinion to the decision.
Hungarian.