The Supreme Court, sitting in the Extraordinary Review and Public Affairs Chamber, did not uphold the complaint lodged by the electoral representative of the Coalition Election Committee Trzecia Droga Polska 2050 Szymon Hołownia - Polskie Stronnictwo Ludowe requesting the repeal of two resolutions of the National Electoral Commission (PKW) of 3 October 2023.
The challenged resolutions of the PKW include guidelines:
- for district electoral commissions, on the tasks and procedure for preparing and conducting voting in polling districts established abroad and on Polish sea vessels (Resolution No. 226/2023), and
- for regional electoral commissions, on the tasks related to determining the results of voting and the results of the election as well as the result of the referendum, and the procedure and rules for appointing plenipotentiaries of regional electoral commissions (Resolution No. 227/2023).
The charges raised in the complaint challenged the requirement to transfer the results of voting at district electoral commissions operating outside the Republic of Poland within 24 hours of the end of voting. The Supreme Court held that the guidelines in this regard correctly implement the explicit provision of Article 230(2) of the Electoral Code (EC). Modification of the guidelines in the direction suggested by the Complainant would amount to an unconstitutional interference of the PKW in a matter reserved for the legislator (statutory matter). The Supreme Court emphasised that an executive act, such as the PKW resolution, cannot amend universally binding provisions of the law (Constitutional Tribunal judgment of 16 March 2017, Kp 1/17).
Referring to the controversy concerning the time limit provided for in Article 230(2) of the EC, the Supreme Court pointed out that the same solution has been in force in the legal system for 30 years and it has never been questioned. Especially that the need for its application has never arisen, and the probability that it will occur now is relatively lower than it used to be in the past in view of the increase in the number of district electoral commissions established outside the country by almost 30% (from 320 to 417). Article 230(2) of the EC, on the other hand, provides a guarantee that potential problems with the transfer of the results of voting to the District Electoral Commission in Warsaw I, from small polling districts established outside the country (often in the areas of conflicts or natural disasters), will not block for an unspecified period of time the determination of the results of the elections and referendum on a nationwide scale. Moreover, the Complainant also perceives such a risk.
At the same time, the assessment of the correctness of potential application of Article 230(2) of the EC can be effectively made when deciding on the validity of election protests and taken into account when ruling on the validity of the elections.