President vetoes the Slovak parliament’s ban on publishing election polls for 50 days before the 29 February elections – what for, and what do the polls show?

Dr. Juraj Medzihorsky, Göteborgs universitet / University of Gothenburg

The law

On 28 October, Slovakia’s parliament approved an amendment to the electoral code that extends the pre-election blackout on opinion polls from the pre-existing two weeks to 50 days. Under the blackout, opinion polls can still be carried out, but their results cannot be published until after the elections. The change comes four months before the next parliamentary election scheduled for 29 February.

Should the blackout come into force, it will be the third longest in the world, after Tunisia’s 150-day and Cameroon’s 90-day blackouts. The map below highlights how unique such long blackouts are.

The justification accompanying the amendment is rather short. It claims that opinion polls are sometimes faked or manipulated, which detrimentally affects the voters, who should take into consideration only the programs and activities of the parties, and who have a right to be protected from disinformation.

The objections

Although polls of questionable quality and integrity repeatedly surface in Slovakia, the amendment’s sponsors do not provide any evidence of the supposed detrimental effects. Furthermore, Slovakian law does not recognize a right to be protected from disinformation.

In the ensuing debate, experts, opposition politicians, and members of the general public also pointed out that the amendment conflicts with freedom of expression and freedom of information as protected in Slovakia’s constitution and the European Convention on Human Rights. The enforceability of the blackout is dubious too. It is easy to bypass by publishing abroad – the Slovak and Czech languages are mutually intelligible, after all.

Furthermore, the State Electoral Committee has recently ruled that posting on a personal Facebook profile does not constitute publishing. Even if the blackout effectively prohibited the publication of serious polls in conventional media, it would merely make misinformation – e.g. alleged poll results leaked on any of the above routes – more effective by limiting the supply of reputable polls that could counter bias information.

Given this debate, it does not come as a surprise that a poll carried out shortly after the parliament voted on the blackout has shown that the 50-day blackout is rather unpopular.[1]

The political context

As the figure below shows, the blackout extension comes at a time when the governing coalition is not doing very well in the polls. Furthermore, several parties are close to the 5% threshold for the entry into the parliament.[2] At least some voters are hoping to avoid wasting their votes by checking out in the opinion polls which of the parties that they may like more or less equally has a better chance to enter parliament.

The polls show that the chances of the current coalition of SMER, SNS and Most-Híd to stay in power after the next election are very slim. The mainstream opposition parties – including SaS, KDH, and OĽaNO, all of whom are now hovering above the five per cent parliamentary entry threshold, plus the PS/Spolu alliance and Za ludí – keep repeating that they will not join a government coalition with SMER in it. Thus, SMER’s best chance of staying in government is a possible partnership with the far right ĽSNS (People’s Party Our Slovakia) and Sme rodina (We are family). The chances of such a radical national coalition would improve if at least some of the center-right opposition parties failed to make it into the parliament.

A further motivation for the amendment may be that in this year’s presidential elections, polls played an unusually important role in helping SMER’s opposition to coordinate. Specifically, two leading opposition candidates, Čaputová and Mistrík, made a public pact that stipulated that whichever of them will trail the other in polls will withdraw and support the other. The pact was fulfilled when Mistrík stepped down in favor of Čaputová, who then proceeded to win with a wide margin over SMER’s candidate Šefčovič. Čaputová’s rapid rise in the polls, shown in the figure below, came as a surprise to some. 

SMER and SNS are careful not to mention the presidential elections when attempting to justify the blackout. But some of their and the far right’s supporters often allege that polls manipulated voters into supporting Čaputová. 

The controversial blackout also takes some attention from an ongoing scandal that started last year with the murder of journalist Ján Kuciak and his partner Martina Kušnírová. The scandal revolves around the man identified by the police as the instigator of the murder, Marián Kočner. An entrepreneur with three decades of legal controversy under his belt, Kočner currently stands trial accused of orchestrating a multi-million € fraud. The murder investigation revealed Kočner’s sizeable information cache, including records that implicates politicians, judges, prosecutors, and police officers as his accomplices in a variety of illegal activities. The records also show Kočner as particularly close to several prominent SMER politicians, and worried that SMER might lose power. Hence, even if the Constitutional Court abolished the blackout, the controversy around it provides some respite to SMER.

What’s next?

On November 6, President Čaputová vetoed the amendment on the grounds that it violates several articles of the constitution and the European Convention on Human Rights, including those protecting freedom of expression and information and democratic political competition. Another point raised by Čaputová is that the blackout extension was passed in a legislative rider, bundled with unrelated amendments, which violates the Lawmaking Code. Now the amendment returns to parliament. If the veto was defeated there, the president will ask the Constitutional Court to suspend the application of the law and examine its constitutionality.

The government coalition of SMER, SNS, and Most-Híd is divided on the blackout. The amendment was proposed by MPs of all three parties, as one of the amendments to the electoral code initiated by SNS. The original proposal was to extend the blackout to one month. This proposal immediately raised controversy. In reaction, the former PM and current chairman of SMER Robert Fico announced that he would, in fact, prefer a two-month blackout. The 50 days that become the final proposal were presented by the coalition as a compromise. Before the amendment reached its final reading in the parliament, Most-Híd declared they will not support it. In the final vote, only a single Most-Híd MP, Elemér Jakab, voted in support of it. However, it still passed by 76 votes, thanks to the support of the far-right ĽSNS and some independent far-right MPs.

Can the next vote on the bill be a forerunner of the new governing coalition formed after the 29 February election? We intend to track here the polls that may tell us.

UPDATE: Parliament passed the proposed legislation but the Constitutional Court suspended its implementation, so it will not be in effect during the early 2020 parliamentary election campaign.

[1] See http://focus-research.sk/files/n260_Nazor%20na%2050%20dnove%20moratorium_oktober%202019.pdf, and in English https://spectator.sme.sk/c/22251700/most-slovaks-oppose-the-50-day-moratorium.html?ref=av-right

[2] On party names, see https://en.wikipedia.org/wiki/List_of_political_parties_in_Slovakia.

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