By Graeme Orr (University of Queensland, Australia)
To the billions of us under stay-at-home recommendations and orders, it can feel as if time has paused. Yet scan the news, and the world seems to be hurtling into an uncertain future. Politics and governance, alongside social, economic and work arrangements are straining to adapt, at best. At worst, they are lurching wildly. To echo Yeats, in the few months since Covid-19 spread from China across the globe, it feels as if ‘All is changed, changed utterly’.
Amongst such high concern and drama, what room is there for the ordinary functioning of electoral democracy? Elections serve two great roles. They are the seasonal regenerators of legitimacy in representative government. And they are great rituals, the only truly public gathering in a secular society. An unexpected contagion and lockdowns undermine each of these roles. Must elections be held, and if so when? How are they to be conducted, practically and fairly? In what follows, I will try to distil some of the principles at work and reflect on unfolding practice both near (to me in Australia) and far.
To vote or not to vote: constraints on postponements
As to the ‘must’ and ‘when’, some elections are more constrained than others. The US presidential cycle, most obviously, is constrained by the need for there to be a new presidency in the new year. Whilst the famous ‘first Tuesday after the first Monday in November’ date is not locked into constitutional stone, it would require an unlikely agreement between the Democrat-controlled House and the Republican-controlled Senate to delay it any deeper into winter. Even then, time would need to be left for electoral challenges, and for the Electoral College to formally cast its votes, before the four year terms of the incumbents, Trump and Pence, expire on 20 January 2021.
Almost all nations seek, in some way, to fix the length of their legislative and executive terms. New Zealand, like the UK, has no entrenched ‘Constitution’. But even its three-year term, due to expire later this year, may only practically be extended with the approval of 75% of the Parliament. The Achilles heel of such flexibility is that the ‘when’ of an election becomes politicised The New Zealand Labour government is resisting calls from not just the opposition, but its own coalition partner, to delay its September election date.
Sub-national elections are no less important at this time, especially in federalised systems where power over health provision and movement restrictions lies with the regions. In Australia, four-yearly general elections are due in both the State of Queensland and the two mainland Territories (Northern Territory and Australian Capital Territory). In each case, a particular date in Spring is fixed in law. But in those Territories, the dates are only loosely moored. (Canberra’s legislature can undo its election date. The Australian Parliament may re-jig the Northern Territory’s cycle. Safeguarding the health of vulnerable Indigenous communities, which make up a quarter of that Territory, is a vital concern.)
In contrast, Queensland is locked into an election later this year. Its Constitution allows the date to be postponed in ‘exceptional circumstances’ like ‘a natural disaster’, provided the Leader of the Opposition agrees. But this is a one-off option and limited to a five-week delay. A longer postponement or cancellation would require a referendum, and it would be perverse to hold one state-wide vote simply to avoid another.
Local elections tend to be the least constrained in their timing. Indonesian authorities were initially determined to press ahead, in September, with regional polling for local governments and some provincial governors. But with electoral officials becoming infected, the polls were vacated in favour of an early December date, freeing up scarce funds to help the more immediate problem of combatting the virus. Local elections in the UK, including the London mayoral race, were postponed by an entire year, rather than be held in May. The Australian state of New South Wales followed suit. Parlous events in Great Britain have clearly vindicated the postponement there.
There are, however, no crystal balls. New South Wales authorities would have fretted that a September polling date risked being engulfed by a late-winter, second wave of the virus. As it happens, Australia dramatically curtailed the first wave of the epidemic. In hindsight it would have been ideal to bring forward the election. The significant challenges for electoral planning become immense if an election is already in train when the virus begins its exponential growth or re-growth. French municipal elections proceeded to their first round in March, to the chagrin of some electors. But almost immediately, the second round run-offs that were due the following week, were put off by almost three months.
The French case is instructive as to the devilish choices to be weighed. With turnout down to around 45%, the freeness and representativeness of the first round of voting was questioned. Yet even with an ostensible pause in campaigning, the delay has spoiled the momentum of challengers and heightened the benefits of incumbency. Can a fair or informed local or regional election sensibly take place, when public attention is swamped by national responses to an international crisis?
In contrast, Queensland in Australia ploughed on with local elections that were already in train. (That experience is described further below). In the scheme of things, local administration is of less importance in a pandemic than state and national leadership. It may make sense to keep experienced local administrators in place during such challenging times, especially in countries where they are part-time officials. Similarly, postponing filling some seats in an upper house, like India’s Rajya Sabha, poses limited legitimacy problems. But to say this is only to magnify the predicament if the timing of national parliamentary, gubernatorial or presidential elections are affected.
Finding method in madness
What of the ‘how’ of elections in these times? Writing about the US mid-term elections held during the 1918 ‘Spanish Flu’ pandemic, Jason Marisam noted that three issues are as important today as then: 1. neutral administration, 2. electoral law and electoral officials’ emergency powers and 3. disenfranchisement of voters unable to attend the polls.
The independence, professionalism and resourcing of electoral administration varies around the world. It does not always correlate with GDP, however, as patchwork US experience has shown. And whatever their funding, all electoral management bodies rely on an army of far-flung casual staff to conduct polling and the count at thousands of locations. This creates challenges for consistent application of workplace health and safety in a time of contagion.
Ultimately it is for parliaments to decide which voting avenues are available. The great ritual of election day assumes in-person voting on a single, focused day when the polity can witness itself coming together. But viruses love mass gatherings. The simplest alternative would be an all-mail election. Such elections are almost unheard of at national level, although Australia managed an all-mail plebiscite in 2017, to legalise gay marriage.
All-mail balloting means a delayed count. It also raises significant security issues. If every household receives ballots, the risk of fraud through ballot theft is magnified. There are also logistical challenges in the safety of the additional staff required and handling the flood of extra paper. Each postal vote involves a physical delivery to the elector, then a physical delivery to the electoral authorities of a doubly enveloped ballot. Long ballots and multiple races add, literally, to the weight of the problem.
What of internet voting? In parts of the world, such as Estonia, there are well-established systems and legal protocols for internet voting. In other parts, however, such infrastructure is lacking. Even where remote voting is available, it may have only ever been deployed as a limited option, not a central feature. Australia’s most advanced e-voting platform is New South Wales’ ‘iVote system’, offering internet and telephone voting. It was designed to be an adjunct to in-person voting, to assist electors who are disabled or outside the jurisdiction. Scaling up such systems (software, servers, helplines) to meet nationwide demand, whilst ensuring security of the passwords etc that each voter must receive – let alone the hacking risks – would normally require years of planning, not months. In some countries, more than others, such an experiment in a time of uncertainty would stretch the public’s trust. Voting from home, whether by the internet or post, also endangers the secrecy of the ballot for those in subordinate relationships.
Ultimately, elections in this pandemic will require ‘mixed methods’. This will give options to voters who, depending on age, health, population density etc, have different needs and concerns. Legislating so that electors need not provide any reason to vote early or by post is one way of diluting polling day turnout during a pandemic. But early voting is no panacea: predicting and managing early voting may present more safety issues than polling day itself. Offering multiple options to all is also costlier than focusing on a singular polling day. Finally, partisanship may pollute such decisions. There is an unedifying wrangle in the US at present, and a spectre of state legislatures finagling electoral laws this year, in the name of accommodating the virus, to suit the party in power. Most obviously, there is a deep spat between Democrats, who want to maximise turnout by making postal voting a right or even a norm, and elements of the Republican party who want to maintain constraints.
Experiences to date
In the Queensland experience noted earlier, local elections went ahead on 28 March, in the face of rising numbers of infections. Although those numbers were subsequently and quickly quelled, that was not knowable at the time. Almost two months earlier, Queensland had been the first state in Australia to declare the virus to be a ‘public health emergency’. At the time, few hackles were raised. The emergency declaration was gazetted in three short paragraphs, alongside lists of unclaimed money held by energy companies and a decree that Elton John’s ‘Farewell Yellow Brick Road’ concert was to be a ‘major sports facility event’. Awareness of the virus then crept up, like the virus itself. Citizens responded, including by seeking out early and postal voting options, intensifying existing trends to ‘convenience voting’. Polling day itself took place ten days after Queensland’s Chief Health Officer gave broad orders to restrict movement to counteract the virus, including limiting gatherings in public to just two people, except if necessary for work.
There were democratic reasons for these elections proceeding. Two local government areas needed to come out of administration. In deciding to proceed, the government heeded medical advice that queuing to poll was safer than buying groceries. Whilst this caused angst in parts of the media and community, it is fair to say there are few more orderly places than an Australian polling booth under the secret ballot.
As in April’s national elections in South Korea, there is as yet no statistical evidence of a spike in infections due to the polling. As reported by Youngmi Kim for GLOBALCIT, South Korea was exemplary: polling stations were disinfected, voters were to wear masks, temperature checks were conducted and gloves provided. Queensland was a little more rudimentary, with some hand sanitiser provided, physical distancing practised and electors encouraged to ‘bring your own pen or pencil’. But things were less sanguine in Wisconsin, where the virus was entrenched and polling more chaotic.
National elections in Mali also proceeded in March and April, using the two-round system, with the decisive second-round on April 19. Polling went ahead with in-person voting, overshadowed as much by the kidnapping of the opposition leader as by the early stages of the virus outbreak. Again, the democratic instinct trumped health fears. After being long delayed by civil unrest, Mali’s elections were seen as crucial for hopes of a return to political stability.
Giving electoral officials emergency powers involves embracing enhanced administrative discretion and powers of direction. Yet elections, as with much else in government in a pandemic, requires deft agency rulings. In ordinary times, electoral commissions would run a mile from such powers, to preserve their perceived independence. They tend to see themselves as administrators rather than regulators: as umpires implementing detailed rules laid down by parliaments, not as designers of the game. To make rules is to invite criticism, especially when the rules have (unintended) partisan effects or (inevitable) impacts on liberties.
There are also rule of law issues. Normal law-making processes are considered, considerate of public consultation and accountable to elected representatives. In a health emergency, these ideals are upended. Executive power reigns supreme but is channelled through a complex chain of delegation and experts. In Queensland’s case, hurried legislation delegated power to a Minister, who urgently bestowed powers on the electoral commission. Alongside that, the health emergency awakened the powers of the Chief Health Officer, who issued a detailed public health direction for the election.
An example of an electoral commission directive governing the Queensland elections was a strict limit on campaign activities and paraphernalia at polling places. That direction was made under direct statutory delegation. Although a staple of Australian campaigning, such paraphernalia had come to be seen by some voters as wasteful, even prior to any concerns about viral transmission through their handling. As a result, few eyebrows were raised at what, in normal times, may have been an unconstitutionally draconian limit on political communication. A second example was a direction to candidates and scrutineers. To the upset of some candidates, this limited scrutineering, to maintain safe physical distancing at the election night count.
Around the same time, Ireland’s Seanad elections proceeded. These are generally low-key affairs; they do not involve a mass electorate and have long been by postal vote. But one Irish innovation of note was how the counts, from Dublin Castle and the two university constituencies, were streamed live over several days. Whilst potentially soporific, the streaming of the counts was accompanied by explanations from the returning officers and offered a visual token of openness.
Ensuring the franchise
To focus on the nuts and bolts of the when and how of elections, however, risks losing sight of the broader question of what makes an election ‘free and fair’. What of disenfranchisement? Calling off a poll would be the ultimate disenfranchisement. But holding one in an ongoing pandemic will affect turnout. It may be practically or psychologically harder for certain groups – the elderly, the afflicted, those in mandatory quarantine and those stuck overseas – to poll. Cynics might say that elections are already skewed by higher turnout amongst older citizens. But that will not mollify the individuals who miss out. How would an all-postal vote pan out, in a time of high contagion, for instance? Will everyone feel safe venturing out to find that increasingly rare beast, a local post-box? Are younger people, stuck at home and relying on online shopping, growing more familiar with the postal service?
South Korea’s national election was widely seen as a success. Turnout, at two-thirds of the electorate, was the highest for many years. Given the pandemic, and that it proved a no-contest, this speaks volumes of the resilience of the population. In Queensland, turnout was just over 75%. Of that, nearly 50% was in-person early balloting, 30% turned out on polling day and 20% voted by post. Compulsory voting applies in Australia. Is such forced enfranchisement fair, where there may be personal risk? 75% turnout for a mere local election demonstrates the power of compulsion to habituate voting. But the other quarter of the electorate will have to receive ‘show cause’ penalty notices for not turning out. Already, senior politicians have expressed a hope that any registered elector citing ‘virus concerns’ will have the usual fine for not voting waived.
Electoral politics amidst radical uncertainty
The account of challenges to electoral democracy given here is, at most, a preliminary one. (International IDEA is usefully collating information about elections both delayed and proceeding, around the world. Others more expert than I are laying out templates for specific contexts.) My account is rooted in the contours of the present epidemic in particular jurisdictions, assuming controllable paths of contagion and continuing social order.
It also eaves out broader political considerations. Chief amongst these is whether incumbents have undue advantage in times of upheaval. The South Korean government was returned in a landslide. Not a single office changed stripe in the vast local government area that runs Queensland’s capital of Brisbane. Will electors become more risk averse, as politics as normal and opposition critiques become muted? Will antagonistic politics quickly resume, as evidenced by protests in the US and sharp critiques of government policy in the UK? Or will electors focus only on the virus, to the neglect of broader policy matters – rewarding administrations who, through good fortune or management have seen the virus contained, whilst punishing those where its effects are most profound?
The Plague (La Peste) has returned to the bestseller lists. Its author, Albert Camus, intended it as an allegory of Vichy France, rather than a study of life in a time of contagion. But Camus would have shared the melancholy many of us feel in the present, as fear washes through our days and radical uncertainties challenge our personal and societal choices. In the book, Camus wrote that ‘each of us had to be content to live only for the day, alone under the vast indifference of the sky’. This is the existential dilemma we all face, as individuals, at present.
Collectively, though, we live under far from indifferent systems of government, systems growing vaster as they seek to protect us and grapple with radical uncertainty. Whether this future will accentuate nationalism and authoritarianism, or democratic socialism, or technocratic liberal-centrism, is hard to say. But one thing is certain, electoral democracy will play the ultimate role in deciding our political fates.
Graeme Orr is professor of law at the University of Queensland, Australia and author of The Law of Politics (2019, 2nd ed) and a book on elections as rituals. Different versions of this commentary previously appeared in (2020) AusPubLaw (6 April) and Inside Story. A related presentation for the Electoral Regulation Research Network of Australia can be streamed here.