The recently published Policy Alert voices concern about the decision of the Polish government to hold a national referendum alongside the elections for Sejm and Senat, citing the short time for public debate, the wording of questions of the referendum, its binding effect, campaign finance rules, and general organizational issues. The authors propose several recommendations to address these concerns.

By Magdalena Musiał-Karg and Fernando Casal Bértoa.

On 8 August 2023, Polish President Andrzej Duda scheduled the next parliamentary elections for October 15th, 2023. Arguing its intention to minimize costs, the Polish government decided to hold a national referendum alongside parliamentary (both Sejm and Senat) elections.

To this end, an amendment to the Referendum Act was adopted on July 7th. By harmonizing the voting times (i.e., from 7 a.m. to 9 p.m.), both votes will be held completely in a simultaneous manner for the first time. The Sejm adopted the resolution to hold a nationwide referendum by an absolute majority of 226 votes (with 210 against and 7 abstentions) on August 17th.

The referendum campaign began on the day the Sejm announced the adoption of the referendum resolution (i.e., August 18th) and it will end 24 hours before voting day. Coinciding with the election silence, the referendum blackout period will start on Friday (October 13th) at midnight, and will last until the end of the voting.

The idea of holding a referendum and a parliamentary election on the same day is a controversial initiative of the ruling party (Law and Justice) and has met with unequivocal rejection from all opposition parties. Many electoral experts have expressed their criticism of what they see as an explicitly partisan use of one of the most important consultation mechanisms that democracy has.

The referendum will include four questions:

1. Do you support the selling-off of state companies to foreign-owned businesses, leading to a loss of control by Polish women and men over strategic sectors of the economy?
2. Do you support an increase in the retirement age and the reinstatement of the increased retirement age to 67 for men and women?
3. Do you support the removal of border barriers between the Republic of Poland and the Republic of Belarus?
4. Do you support the admission of thousands of illegal immigrants from the Middle East and Africa, in accordance with the relocation mechanism imposed by the European bureaucracy?

Concerns about the referendum:

The timing of the referendum clearly violates the principle of vacatio legis (i.e. the obligation to leave 14 days between the publication of a legal act and its entry into force).

The wording of the referendum’s questions have been formulated in an ambiguous manner, which influences the perception of voters and manipulates the voters’ decision.

The binding effect of the referendum and the lack of planned policy announcements by the government makes it hard for the voter to predict how the government aims to deliver on the referendum’s results.

The vague wording of the constitution regarding the legal basis for referendums for “matters of particular importance to the state” allows those in power to determine what is considered “particular important”.

As the same district election commission will conduct the voting at the same polling stations using the same ballot box, refusal to accept a referendum ballot will be noted by the election committee in the register of voters. As voters of oppositional parties are likely to refuse participation in the referendum, this can potentially reveal voting preferences and compromise the secrecy of the vote.

As the provisions of the electoral law on spending limits and campaign finance reporting do not apply to referendums, and it will be almost impossible to distinguish between referendum and general election spending, unlimited and uncontrolled campaign spending seems inevitable.

Recommendations

• Enactment of electoral law and its amendment respecting the principle of vacatio legis and keeping at least a six-month period before the popular vote. This will avoid an instrumental use of referendums.

• The institution of the referendum should not be used instrumentally. It is evident that the vote scheduled for October is to benefit the ruling camp and strengthen their position. The referendum should not be a plebiscite in support of its initiator. It should allow the electorate to express their opinion on issues that are important for them and the state. This will respect the idea of direct democracy that complements representative democracy.

• Questions in the referendum should be formulated in a non-suggestive and non-emotional manner.

• Substantive and lengthy public debate should be held on issues included in the referendum so citizens can make informed (i.e., with a clear understanding of the consequences) decisions at the time of voting.

• Separate voter lists for parliamentary elections and the referendum could be a less controversial and more transparent solution, not only for the commission but also for voters. As a matter of fact, it could not only make it easier for voters to collect their ballots at polling stations (e.g., they would not have to refuse to collect their ballot in case they do want to abstain) but might also prevent election committees from making annotations in the same electoral roll.

• Issues related to the financing of both campaigns are particularly important. Since the referendum campaign does not have identical restrictions as the electoral one, it would be appropriate to consider measures that increase the transparency of referendum campaign spending;

• For the sake of avoiding inequalities, the electoral campaign should be separated from the referendum campaign, and candidates running in the parliamentary elections should be prevented from campaigning in the referendum; and

• Fundraising restrictions and limited spending on the referendum campaign should also be introduced.

• It is highly desirable to restrict the participation of state-owned companies and their foundations in any political activity, in particular the referendum campaign. This will limit the widespread practice of using state resources to gain political advantage.