Constituents who have residency in Hungary, but work or study abroad for a prolonged period of time, and consequently are not going to be in Hungary on the day of the parliamentary elections, may only vote at the foreign embassies. In certain cases, this might necessitate a journey of several hundred kilometres, and entail considerable costs, or even prevent them from voting. At the same time, constituents who are going to stay abroad on the day of the election as well, but who do not have residency in Hungary, can vote by post, which is cheap, simple and convenient. HCLU, representing a constituent working abroad, has contested these discriminative rules at the Constitutional Court.
The Parliament naturally has broad freedom when establishing the electoral rules, and it can freely determine the modes of voting. However, legislators can only use this freedom to create rules within constitutional limits: they are obliged to formulate these rules so that they do not impinge the provisions of the Fundamental Law, and do not constrain fundamental rights unconstitutionally. The Parliament may introduce or abolish the institution of voting by post, but it cannot do it unconstitutionally, or in a way that discriminates against any groups of constituents.
The ruling directly affects hundreds of thousands of Hungarian voters who are staying abroad to work or study, but have not renounced their Hungarian residency. According to the quick report of The Hungarian Central Statistical Office’s Demographic Research Institute, published in the summer of 2013, 7.4 % of Hungarian citizens between 18 and 49 who have residency in Hungary live permanently abroad. This estimated data means approximately 335,000 persons.
The law must not discriminate between citizens living abroad, based on the possibility of electoral fraud, when that possibility exists both in the case of citizens having and citizens not having Hungarian residence. The possibility of cheating depends solely on the appropriate procedural guarantees ensuring the realization of electoral procedural principles for voting by mail, similarly to voting personally at the election district after proper identification protects the purity of the elections, and voting by procedural guarantees ensures the voluntary nature of the participation in the electoral procedures. Gerrymandering and cheating in the elections must be counterweighted by procedural guarantees devised against such possibilities, and not by discriminative limitations of rights. Insofar as the legislators consider these guarantees appropriate and sufficient for voting via mail by constituents who do not have Hungarian residency, then they cannot be considered insufficient in reference to constituents who do have Hungarian residency. And vice versa, if the guarantees serving the elimination of gerrymandering are insufficient, then they are insufficient both for constituents having and not having Hungarian residency. In this case, however, the legislators should have repealed the institution of voting by mail not only for a part of the circle of constituents, but for the whole in general.
The motion can be downloaded here.