The Growing Litigiousness of Czech Elections

Abstract

The 2006 Czech elections produced a record number of lawsuits, more than all previous elections to the Chamber of Deputies combined. This article explains the rise as due primarily to the introduction of a new administrative court with special responsibility for electoral disputes. Although the law makes a successful challenge to a result almost impossible, low-cost litigation is attractive to minor political parties as a form of campaigning. The article focuses on the two aspects of the 2006 election that generated the most complaints, media coverage and disproportionality between seats and votes.

Notes

¹This is the lower and more important house of the bicameral legislature in the Czech Republic.

²On the 1996 election complaints, see Mladá fronta DNES, 25 June 1996. Complaints received by the Supreme Court after the first post-communist elections were treated as non-justiciable and redirected to the Czech legislature's mandate and immunity committee. For 1998, see Mladá fronta DNES, 2 July 1998, and Hovorková (1998). For 2002, see Mladá fronta DNES, 29 June 2002.

³ Mladá fronta DNES, 17 December 1996.

⁴The Czech Republic had 8,333,305 registered voters in 2006 (see http://www.volby.cz/pls/ps2006/ps2?xjazyk=CZ, accessed 21 February 2007); the US in 2004 had 156,421,000 registered voters (see http://www.nationmaster.com/country/us-united-states/dem-democracy, accessed 21 February 2007); France in 2002 had 40,969,371 registered voters (see http://www.electionguide.org/election.php?ID=444, accessed 21 February 2007). There has been a comparable rise in electoral litigation in Russia, from 223 cases in 1996 to 2,083 in 2003 (see Popova 2006, pp. 391 – 92). Since Russia had 108,906,244 registered voters in 2003 (according to http://gd2003.cikrf.ru/WAY/76799135/sx/art/76805049/cp/1/br/76799124, accessed 21 February 2007), their rate of suits is one per 52,283 voters.

⁵The effective number of parties is one way of measuring the fragmentation of a party system by dividing one by the sum of the squared proportion of popular votes or legislative seats won by each party. It conveys not the exact number of parties represented, but the concentration of power among them. Volatility levels measure changes in a party's share of the vote in one election against its share at the next. See Birch (2003, pp. 122 – 23) for the mathematics.

⁶It was estimated that the NSS would reduce the Constitutional Court's workload by one-fifth (Pavelková2002). The relief came just as the 10-year terms of a dozen of the Constitutional Court's 15 judges were ending, and it took almost three years for President Václav Klaus and the Senate to agree on their replacements; for months the ‘bobtailed’ court lacked the quorum to conduct abstract review of legislation (‘bobtailed’ is used here in the sense of not having the full complement of judges; this term has been used to describe the US Supreme Court in similar situations). In addition to its heavy caseload, the Supreme Court was distracted and bitterly divided by Klaus' attempt to unseat its chairwoman, Iva Brožová, allegedly for failing to keep lower courts in line. The Constitutional Court ruled in July 2006 that the president lacked the necessary authority (Pavlíček & Blechová2006).

⁷See, for example, Robert Malecký, ‘Žalobu proti zvolení lze podat k soudu’, Lidové noviny, 1 June 2006, available at: http://www.lidovky.cz, accessed 21 February 2007; Právo, 5 June 2006; Mladá fronta DNES, 5 June 2006. On 6 June the leading news agency ČTK ran a story informing the public that the 10-day period in which to file a complaint with the NSS was beginning; the article was reprinted on page two of Právo the following day.

⁸On the origins of the Czech electoral system, see Birch et al. (2002, pp. 68 – 75).

⁹Available at: http://www.judikatura.cz/cgi-bin/jus/aspi_lit_4?WVCNC+2280+jus-1, accessed 13 April 2007.

¹⁰See Office for Democratic Institutions and Human Rights (2000), point 38.

¹¹ Volby 6/2004-12 [‘Volby’ (elections) are a sub-category of the court's case law]. All NSS decisions, unless otherwise noted, are located in the court's online database, available at: http://www.nssoud.cz/anonymous.php, accessed 21 February 2007.

¹²This decision does not say so, but the Constitutional Court mentioned in one of its own cases that the NSS took this three-step test from the practice of the interwar Czechoslovak electoral court. See Pl. ÚS 73/04, published in Sbírka zákonů, part 50 (15 April 2005), p. 3370.

¹³The NSS judges are listed at http://www.nssoud.cz/soudci.php, accessed 21 February 2007.

¹⁴According to a NSS press release, ‘Souhrnná informace o stížnostech na volby do Poslanecké sněmovny 2006’, issued 4 July 2006 and available at: http://www.nssoud.cz/tiskzpravy.php, accessed 21 February 2007.

¹⁵The campaign period is not delimited, but the allocation of free billboard space and free airtime begins 16 days before voting commences; see section 16, paragraphs 1 and 4, of Law 247/1995, as last amended by Law 418/2004 (available at: http://www.mvcr.cz/volby/predpisy.html, accessed 13 April 2007).

¹⁶According to media monitor InnoVatio, available at: http://aktualne.centrum.cz/clanek.phtml?id=173534, accessed 21 February 2007.

¹⁷Available at: http://www.ceskatelevize.cz/ct/zakony/vysilani.php, accessed 13 April 2007.

¹⁸‘Balance’ is understood by the court in terms set down in section 6.2 of the code of conduct for Česká televize as ‘considered especially by the weight of individual political parties in a democratic society derived primarily from the results of elections to the main bodies of representative democracy. At the same time it is necessary to ensure that the ratio between appearances of officials of ruling parties and opposition parties be approximately equalized in the time allocated. Česká televize will also create conditions for the appropriate participation of extraparliamentary parties and movements in these discussions' (see Česká televize 2003, p. 17).

¹⁹This decision, although groundbreaking, does not appear in the court's online database of cases. It can be found instead on an NGO site advocating open government, available at: http://www.otevrete.cz/index.php?akce=clanek&id=541, accessed 21 February 2007.

²⁰The decision (I. ÚS 526/98, available at: http://www.judikatura.cz/cgi-bin/jus/aspi_lit_4?WVCNC+814+jus-1, accessed 13 April 2007) was controversial in part because Lastovecká was the daughter of the then-chairman of the Constitutional Court, Zdeněk Kessler (who was not on the panel that decided her case). Lastovecká later became a judge on that court, and not surprisingly voted in the Nádvorník case to uphold the victory of a fellow ODS senatorial candidate. Among the four dissenters were Miloslav Výborný, formerly a prominent member of Zápotocký's Christian Democrats, and Eliška Wagnerová, who as chair of the Supreme Court in 1998 had authored the decision demanding a rerun in the Lastovecká Senate race.

²¹Available at: http://www.coe.int/t/f/droits_de_l'homme/media/Liens/1PreviousJudgments_fr.asp, accessed 13 April 2007.

²²The case of Handyside vs. United Kingdom is available at: http://www.echr.coe.int/ECHR/EN/Header/Case-Law/HUDOC/HUDOC+database/, p. 18, accessed 13 April 2007.

²³See Volby 5/2006-37; Volby 18/2006-22; Volby 23/2006-14; Volby 30/2006-17; Volby 40/2006-27; Volby 44/2006-24; and Volby 45/2006-14.

²⁴After the NSS had issued its decisions, a more detailed study by two political sociologists concluded that the Kubice incident had not won it for ODS; voters who made up their minds in the final days of the campaign actually leaned to the Social Democrats (Frydecká2006). Media monitor InnoVatio already noted a sharp increase in scandal-related negative references to ČSSD in the press, radio and television starting in January 2006, well before the campaign was in full swing. See ‘Mediální image ČSSD poškozují kontroverzní kauzy a agresivní politický styl. To negativně ovlivňuje preference strany v předvolebním období’, posted on 2 May 2006, available at: http://www.innovatio.cz/indexx.htm, accessed 21 February 2007. At the same time, ČSSD began to rise in the polls, and was converging with frontrunner ODS by the end of May; see http://volby.novinky.cz/ps2006_pref, accessed 21 February 2007.

²⁵On these issues, see Belin (2002), Lawson and McCann (2004), Ramsden (1996), and White et al. (2005).

²⁶After the 2002 Chamber elections, Pravý blok filed five complaints at the Supreme Court against the media's alleged favoritism of parliamentary parties, but they were dismissed for arriving after the deadline. See 11 Zp 30/2002, 11 Zp 33/2002, 11 Zp 34/2002, 11 Zp 35/2002 and 11 Zp 36/2002, available at: http://www.nsoud.cz/rozhod.php, accessed 21 February 2007.

²⁷The cases are Volby 25/2006-111; Volby 53/2006-265; Volby 60/2006-36; Volby 65/2006-33; and Volby 66/2006-88.

²⁸Details are from ‘Volební pořady redakce zpravodajstvíČT’, available at: http://www.ct24.cz/volby/index_view.php?id=155956, accessed 21 February 2007.

²⁹Available at: http://www.ceskatelevize.cz/ct/zakony/vysilani.php, accessed 13 April 2007.

³⁰The InnoVatio report, which categorised 43,077 references to parties between 1 April and 2 June, appeared on 9 June 2006 at: http://aktualne.centrum.cz/clanek.phtml?id=173534, accessed 21 February 2007. The report was cited by complainants and NSS alike to support their arguments.

³¹The most commonly used example of a ‘highest average’ method, d'Hondt is a sequence of divisors (1, 2, 3, …) applied to each party's share of the vote. The highest quotients then determine which party receives seats. For a helpful example, see http://aceproject.org/ero-en/topics/electoral-systems/How%20votes%20become%20seats.doc/view, accessed 13 April 2007.

³² Volby 10/2006-28; Volby 25/2006-111; Volby 28/2006-72; Volby 40/2006-27; Volby 49/2006-35; Volby 50/2006-41; Volby 51/2006-30; Volby 53/2006-265; and Volby 65/2006-33.

³³I calculated this figure using the region-level returns on http://www.volby.cz/pls/ps2006/ps9?xjazyk=CZ (accessed 21 February 2007) to find how many votes went not just to parties that failed to cross the threshold but also those votes that went to parties that did cross the threshold but in some regions did not win seats owing to low district magnitude.

³⁴See the 2002 results at http://www.volby.cz/pls/ps2002-win/ps63?xjazyk=CZ, accessed 21 February 2007.

³⁵Disproportionality is derived as the square root of ½[Σ (v _i  – s _i )²] where v _i is each party's share of the vote, and s _i each party's share of the seats (Gallagher 1991, p. 40). I have calculated the Czech score using the election results available at: http://www.volby.cz/pls/ps2006/ps (accessed 21 February 2007); the Spanish scores can be found in Appendix B of Gallagher and Mitchell (2005). Spanish elections, it should be noted, have been showing a trend toward greater proportionality, with those of March 2004 scoring a 4.24.

³⁶See the post-election interview with Lebeda in Mladá fronta DNES, 8 June 2006, p. 3.

³⁷Available at: http://www.judikatura.cz/cgi-bin/jus/aspi_lit_4?WVCNC+2538+jus-1, accessed 21 May 2007.

³⁸‘Afs’ refers to appeals cases involving taxes, accounting and finance.

³⁹One study comparing Canada, Britain, the Netherlands, New Zealand and the United States found that ‘about one voter out of six typically changes her mind during the month preceding the election’, and between 5% and 10% of voters change their minds on election day itself (Blais 2004, p. 802).

⁴⁰Although we still know woefully little about the effects of spending in party-list elections, recent research on multimember Irish races finds that ‘challenger spending is more effective than incumbent spending at mobilising additional voters through increasing turnout’ and ‘even the marginal effects of spending an additional few hundred euros has a substantial pay-off in electoral terms at the lowest levels of expenditure’ (Benoit & Marsh 2003, pp. 571, 576; see also Arceneaux 2005).

⁴¹The relevant passages of the Polish electoral law (2001) are Chapter 10, articles 82 and 83 (available in English at: http://www2.essex.ac.uk/elect/database/indexCountry.asp?country=POLAND&opt=leg, accessed 21 February 2007).

⁴²Verkhovnyi Sud Rossiiskoi Federatsii, case GKPI2004-1295, available at: http://www.cikrf.ru/_3/reshenie_161204.htm, accessed 21 February 2007.

⁴³Belgium, Denmark, Germany, Italy, Latvia, Luxembourg, the Netherlands, and Slovenia. Sweden uses an electoral causes committee appointed primarily by the legislature. In Germany and Latvia the decision of the legislature can be appealed to the courts (Massicotte et al. 2004, pp. 152 – 57).