Voting in the Pandemic

On Sunday, 30 January 2022, Portugal will go to the ballots on a snap election. These will be the fourth elections under the COVID-19 pandemic. Despite some initiatives to adapt the legal framework of the right to vote to the challenges of a pandemic, the amendments failed to accommodate the cases of persons under compulsory quarantine on election day, disenfranchising hundred thousands of voters in 2020-2021. Ironically, the severity of the new variant Omicron, possibly limiting the rights of up to a million voters, appears to restore the right to vote, even though on a dubious legal basis.

Initial Amendments to Accommodate the Challenges of the COVID-19 Pandemic

Since the beginning of the pandemic, three elections have taken place in Portugal: the Azores regional elections in October 2020, the presidential elections in January 2021, and the local elections in September 2021. It was only in November 2020, in preparation of the presidential elections, that electoral reforms to adapt the legislative framework to pandemic conditions were introduced. The number of voters in each polling station was reduced and early voting was expanded to include people under compulsory quarantine, the votes being collected at home by the electoral authorities. This procedure was enshrined in a separate act to be in force for all elections taking place in 2021. It would only apply if the health authorities had ordered the confinement up to ten days before election day and if individuals were confined in the same or neighboring municipality where they registered to vote.

The presidential elections took place under a constitutional state of emergency. This mechanism allows for the suspension of some fundamental rights, including political rights. However, the presidential decree that renewed the state of emergency for the period encompassing election day did not specifically allow any suspension of the right to vote, although it provided possible limitations on freedom and movement. The decree provided that elderly people living in residential structures might vote in their own homes. It also specified that a provision should be made for most voters to move freely to exercise their right to vote. Significantly, this was not an exception to the compulsory confinement but only to general limitations of freedom and movement. Since the governmental decree that executed the state of emergency did not individually provide for an exception to the confinement regime to allow the right to vote, thousands of citizens have been disenfranchised of their right to vote. Although the government has never disclosed the exact figures, around 280.000 individuals were under mandatory confinement on election day.

Subsequent Reforms for the Local Elections of September 2021

In anticipation of the local elections of September 2021, more legal accommodations were adopted, such as the extension of the voting period by one hour, an increase in polling stations, and the possibility to vote for those who had been placed under confinement until the eighth day before election day. However, the fundamental problem remained untouched: how could persons under compulsory quarantine be allowed to vote? The Liberal Initiative presented one proposal that would enable splitting the electoral act into two different days to disperse voters and separate infected from non-infected voters. The proposal was rejected by the two largest parties, which, in turn, failed to present an alternative option. A parliamentary resolution proposed by the People-Animals-Nature Party was eventually adopted, recommending the government to prepare and present studies for introducing remote electronic voting – an initiative worth pursuing but not helping with the short-term challenges posed by the pandemic.

Once again, the legislative reforms introduced did not expressly provide for those placed under quarantine after the eighth day before election day. They also did not cover the individuals placed under compulsory confinement in other municipalities than where they were registered to vote (unless they were in neighboring municipalities). Notably, health authorities report the implementation of compulsory quarantines to the security forces, and failure to obey the authorities’ orders constitutes a crime.

The local elections were held on 26 September 2021 while a state of administrative emergency was in force. As I have explained here, in Portugal the pandemic has been addressed using the constitutional and administrative states of emergency. Taking a broad interpretation of its powers under civil protection and health legislation, the government has implemented freedom restrictions through administrative regulations and orders, circumventing both the parliament’s role as the primary legislator in fundamental rights’ restrictions and the political control of the President of the Republic. Despite criticism by constitutional law experts, no abstract review has been triggered on this constitutional conundrum. However, the Constitutional Court will deal with it in the framework of concrete review cases, some of which are already pending.

Accordingly, the confinement regime was born by an administrative regulation that was not subject to prior parliamentary delegation. Initially, the Electoral Commission dismissed the constitutional relevance of the suppression of the right to vote of confined individuals claiming that it was virtually impossible to find a solution that covered every affected voter. However, on a later moment, it stressed that the government could not restrict said right without parliamentary authorization since the Constitution established that only the parliament is competent to pass restrictions on political rights. Besides, restrictions could only take place in “catastrophic circumstances, during short periods, if there was an imminent risk for the security of individuals” (Deliberation, p. 17). However, the government and electoral authorities upheld the interpretation that the right to vote of quarantined individuals was suppressed. Without providing specific clarification regarding the suppression of the right to vote, the government has consistently reiterated that civil protection and health legislation empower it to enact broad restrictive measures to rights and freedoms, a controversial interpretation that is yet to be confirmed by the Constitutional Court.

The Early Legislative Elections of 30 January 2022

After the minority Socialist government was defeated in a key budget proposal, the President of the Republic called the election. The electoral law is an exclusive matter of parliament which had been dissolved on 5 December 2021. Moreover, due to constitutional obstacles, any amendment to the electoral law introduced after the dissolution of parliament would not cover the upcoming election. Before its dissolution, the parliament passed an act extending the exceptional and temporary early voting scheme for individuals under compulsory confinement or resident in care homes for the elderly. Essentially, the same rules adopted for the local elections were maintained, except for the voting period extension by one hour.

Yet again, the exclusion of voters subject to compulsory confinement – based on an administrative regulation under the condition of a state of statutory or administrative emergency – was a contested topic. With a record surge in COVID-19 cases due to the Omicron variant, the government requested a legal opinion from the advisory council of the public prosecutor’s office at the beginning of January 2022. It specifically asked whether individuals under compulsory quarantine could be allowed to vote and, if so, under which conditions.

The opinion was made public less than two weeks before the election clarifying that it would not take any position on the controversy of the constitutional validity of the mandatory quarantine provisions due to lack of time. According to the advisory council, the interpretation, which had previously been upheld by the government with regard to the presidential and the local elections that infected and quarantined voters were excluded from the right to vote, would result in a suspension of this fundamental right. However, suspending fundamental rights is only possible in a framework of constitutional emergency, not in the current state of administrative emergency. Even if the exclusion constituted a restriction and not a suspension, it would still be unconstitutional because it affected the essential content of the right to vote. In light of the Constitution, the correct interpretation is that the compulsory confinement regime does not abridge the fundamental right to vote.

The opinion thus called for an urgent amendment of the electoral law to include all the individuals prevented from voting in person on election day. Furthermore, the provisions establishing compulsory confinement should be amended for reasons of legal certainty to clarify that the right to vote is safeguarded.

Accordingly, the government amended the confinement regime. Instead of explaining that the right to vote was already embedded in the general confinement regulations, it opted to entail it as an exception to the quarantine rules, thus further aggravating the unconstitutionality of the restrictions adopted through administrative regulation. Despite its questionable legal basis, however, the amended regulation still managed to avoid the worst-case scenario that would result from the disenfranchisement of more than one million voters on election day (roughly 10% of the eligible voters). The exception to the confinement regulation recommends infected and other quarantined individuals to vote between 6 and 7 pm on election day.

Conclusion

The pandemic effectively disenfranchised thousands of individuals from their right to vote in the regional, presidential, and local elections of 2020-2021, raising serious rule of law concerns. The sovereign organs were slow or even failed to react to this breach of citizens’ fundamental rights and violation of the principle of democracy.

Furthermore, accountability and oversight mechanisms did not provide adequate protection: the Electoral Commission effectively reported having received complaints from affected voters on the presidential and local elections and issued deliberations warning authorities that administrative orders could not suppress the right to vote. However, the electoral administration and the health authorities did not act according to these guidelines. The general interpretation of the confinement regime was maintained, subjecting those who would breach it to the crime of disobedience.

Had it not been for the magnitude of Omicron’s figures, the COVID-19 pandemic would still be suppressing the right to vote of those under compulsory quarantine in Portugal, even if other jurisdictions have successfully proven that the ballots are safe and that creative solutions can be developed to virtuously safeguard democracy and public health.