Free, but not fair - A report on the Polish 2023 Elections

The Polish Parliamentary Elections 2023 were the country’s 10th free parliamentary elections since the end of communist rule in the country, and with a turnout of 74,4%, they had the highest voter turnout ever achieved in the Republic of Poland. The political landscape had become divided and public debates heated in recent years, while the country’s relations with its neighbours significantly cooled down. A process of democratic backsliding after two consecutive terms of the PiS government meant that these elections presented a crucial turning point for both Poland and the rest of Europe. Therefore, ensuring the correct execution of free and fair elections was crucial for this important state at the heart of Europe.?

This report summarises my key findings of the Election Observation Mission I took part in and summarises the background of the political landscape in Poland.

Background

Since the 2015 election of the United Right, led by PiS, Poland has been continuously moving away from the EU while undermining the liberal democratic system in the country. The Polish government had been in a fight with the EU over issues related to, inter alia, the rule of law, media freedom, refugee redistribution, and several social issues. On an international level, this antagonised Poland’s neighbours and allies, with especially Germany being framed as a main enemy of Polish sovereignty. On the other hand, the PiS-led government worked closely together with Hungary’s Fidesz ruling party to protect each other from EU attempts to address and sanction the aforementioned issues, and for a while had a close working relationship with the Visegrad Four. This relationship cooled down significantly over the outbreak of the Russian invasion of Ukraine but was nevertheless crucial to both Hungary and Poland to back each other against pressure from Brussels. Domestically, PiS initiated a process of democratic backsliding, undermining key liberal democratic pillars like media freedom by establishing control over most media outlets. Many journalists who had previously worked for public media and television left or were replaced due to the restructuring of local and regional news outlets to party propaganda channels, controlled by the government or taken over by state-controlled companies. The most controversial takeover was that of the Polish state oil company Orlen buying the biggest newspaper publisher, Polska Press, from its previous German private owner, after Orlen had previously acquired its biggest domestic competitor. The EU did little to stop this process, with then-Commission Executive Vice President Margrethe Vestager even specifically approving the deal, showing how the EU had not been able to properly tackle the democratic backsliding tendencies in one of its biggest member states.

Simultaneously, the government was working against the separation of powers, e.g., by establishing significant government control over the constitutional court. Consequently, the constitutional court was increasingly seen as a government puppet. A famous ruling of the PiS-controlled court was the 2021 decision to not acknowledge EU law as above national law, labelling parts of the Treaty of the European Union as unconstitutional (Case K 3/21). Another important ruling was the 2020 declaration (Case K 1/20) that took a de facto policing approach by prohibiting almost all sorts of abortion rights. This ruling triggered the biggest wave of protests the country had seen since its Solidarno?? (Solidarity) independence movement in the 1980s, called Strajk Kobiet (Women’s Strike). It extended from a discussion about abortion to an overall criticism of the government and the situation in the country. Many other legal changes made it more difficult for critical media to obtain sufficient revenues from advertisement and made it harder for private media to be received by everyone equally, leading to a growth in state-controlled media consumption. The polarising debates led to an increasing social divide, where emotions rather than arguments played major roles in both official and unofficial debates. Even the opposition leader Donald Tusk was heavily criticised for his performance in the last pre-election TV debate for his personal attacks against PiS party leader Morawiecki, signifying the change of political culture over the past years. However, many agree that this change can for the most part be attributed to the government’s and state media’s framing and polarisation.

The Mission

I went to Poland with the organisation Silba - Initiative for Dialogue and Democracy , a Danish NGO run by volunteers and working within the OSCE framework for election observations. We arrived several days before the day of the election (E-Day) to conduct training that would prepare every observer for the mission, which entailed studying the methodology of the OSCE Office for Democratic Institutions and Human Rights (ODIHR) . Furthermore, we got in touch with civil society organisations, journalists, foreign representatives, other observers, and diplomats who all shared their opinions on the situation in the country and their expectations, fears, and predictions regarding the electoral process. It was worrying to realise the extent to which the government had been cracking down on opposing voices: while none of the partners we talked to was afraid for their lives, many had experienced threats, violence by the police or radicalised groups, and legal charges, despite often taking non- or bi-partisan approaches and seemingly adhering to the law. Their reason for continuing their activities was, to put it in the words of one journalist we met, because “we should not take democracy for granted”. ?

An issue that affected our mission more than anything else was that despite the timely application for the accreditation, the foreign office took until the last second to hand out the accreditation badges to not only our mission but to all NGOs present. Even the Electoral Commission complained about the slow speed at which the foreign ministry was working on our applications. Two days before E-Day, Silba decided to create pressure by giving interviews to newspapers, online and TV media, since way over 100 observers from multiple European organisations were still clueless about their applications. Eventually, we received the badges the night before the election, 8 hours before the opening of the polling stations; by that time, most observers had already left Warsaw for other cities and were therefore forced to observe without the officially printed and signed accreditation badge.

Another point of concern was the secrecy of the vote. Due to the referendum being held together with the other two elections, every voter received three different ballots. The referendum questions were framed in a very one-sided and vague way, not clearly showing what a vote either for or against it would mean in practice. The first question, e.g., was: “Do you support selling state assets to foreign entities, leading to the loss of Poles’ control over strategic sectors of the economy?” For this reason, most opposition parties had agreed to compromise it by encouraging people to abstain from the vote, rendering the outcome invalid if not at least 50% of the people had voted for it. Polish election law requires voters to vocally express their wish to be exempted from the referendum since taking the ballot would automatically count it as valid. This way, there was a lacklustre secrecy of the vote according to international standards since it was very easy to see who voted for or against the government.

Observations

Regarding the secrecy of the vote, I felt the tendency of voters refusing to partake in the referendum preferred to come outside of rush hours and avoided arriving in groups, especially in the smaller town of Ciechanów where I conducted my observation. Connected to the secrecy of the vote was the common family and group voting, which occurred in the vast majority of the more than 100 polling stations observed by Silba alone. There was an inadequate number of voting booths, and the layout planning within the stations was insufficient: people were encouraged to sign the ballots on open tables in the middle of the room and next to each other. Couples and families were almost always casting votes together, discussing and comparing their ballots in front of polling station officials (PSOs) who only rarely interfered. Another point of criticism was the presence of campaign materials close to polling stations, observed in around one-third of the cases: Normally, campaign materials should be kept over 30 metres away from stations to not exert undue influence on voters, but this was often ignored. My team in the small town could only identify PiS posters breaking this law, although some other teams found opposition parties doing so as well.

The lack of our accreditation badge meant that we often got into lengthy discussions with the PSOs and were sometimes refused to enter stations and observe. This, however, seemed to also depend on the mood of the chairperson in each station; many PSOs were rather suspicious or unfavourable of our presence. They either straight out refused to even look at our electronic accreditation or only did so after letting us wait around for a while and making up their mind after having called around. On the other hand, others reacted in very welcoming and accommodating ways when seeing international observers: even after calling around for guidance on how to proceed with us, they let us stay. This was surprising since it shows how everyone was seemingly given different advice despite calling the same institution, presumably the electoral commission.

Some willingly shared information about their training and background, which appeared surprisingly little: Only the chair of each station received about 3 hours of preparatory training, and then had the responsibility to instruct all other PSOs. This led to many mistakes and situations of uncertainty since almost all PSOs were unfamiliar with certain rules and regulations, calling around for guidance or swiping through PowerPoint presentations on E-Day when in doubt. Some PSOs with more experience expressed their discontent about the recent changes in the electoral system, voicing concerns that the counting might not be doable in time. Indeed, many polling stations were forced to stay open much longer and count until noon of the following day. Many members of our missions had to quit the polling stations before their voting had been finalised since it was already early morning, and everyone had been awake for around 24 hours then. By that time, we could experience the situation deteriorating within the stations, since PSOs started bickering and fighting over how to count. Especially the referendum caused everyone headaches. Furthermore, the later the night, the more loosely rules were adhered to. However, no major misconduct that seriously threatened the freedom of the election could be observed.

All in all, the issues we observed on E-Day were often of minor to mediocre impact. Many things did not work out perfectly and need to be improved. No major flaws that would present massive problems and question the freedom of the elections were detected whatsoever. A recurring opinion we heard and which we as observers shared was that the elections were free, but not fair. This means that despite most laws being followed and people being allowed to cast their vote freely, many did not have the chance to take informed and fair decisions: the amount of disinformation, intimidation, social divide as well as lack of civil liberties and protection created an atmosphere not suitable for elections in a liberal democracy.

Aftermath

PiS (Law and Justice) gained the majority of votes and mandates in the Sejm election with 35,4% and 194 seats won. However, they were no longer able to form a majority government, even if the extreme right Konfederacja (Confederation, 7,16% & 18 seats) had wanted to cooperate with PiS, which it announced pre-election that it would not. A coalition of the three opposition parties KO (Civic Coalition, 30,7% & 157 seats), Trzecia Droga (The Third Way, 14,4% & 65 seats) and Lewica (The Left, 8,61% & 26 seats) was ultimately able to agree on a common government, considering their common pro-European stances, opposition to the illiberal system established by PiS, and overall shown unity so far. But between the election and the eventual government change, PiS was still stalling for weeks and playing the card of Andrzej Duda as their president, who tasked former prime minister Morawiecki to form a government. It was obvious this could not have worked, but it gave the party precious time to prepare for the inevitable change of government. For example, Duda appointed 72 new judges right after the election results were announced, likely attempting to keep PiS in power positions despite its commencing time as opposition party.

What the elections will mean for Poland and Europe is still not entirely clear, but a few points can be predicted. Since the majority in both chambers is now pro-EU, better cooperation with its neighbours and less antagonism directed at Brussels and Berlin seems likely. It was already announced that some of the PiS government plans, like its massive upscaling of the Polish army, would in large parts be upheld and continued. This might mean that a growing Polish economy and military paired with better inter-EU cooperation will only increase the gravitation of power towards the East of Europe, a process that started after Russia invaded Ukraine and the accompanying spotlight on Eastern European member states. On the other hand, it might lead to souring relations with the Visegrad group, since Hungary’s Fidesz and Poland’s PiS had been protective of each other against EU interference with their rule of law and other related issues. The election of Robert Fico in Slovakia might also mean that it is seen as less of a valuable partner for Poland, given Ficos' strong anti-Ukrainian stance. Inside of Poland, expectations are high that rule of law questions will be resolved by the new government and the democratic backsliding reversed. This will be challenging given the still powerful role of Duda who can veto reform attempts. Given the new government manages to perform and convince people until the presidential elections in 2025, replacing Duda with a moderate candidate would give it more leverage in the second half of its term. Western and Central European states should take this opportunity to bring Poland as one of the biggest EU members back at the table and treat it as an equal. However, no miracles and a return of the same pre-PiS Tusk government should be expected.

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