On 6 October 2023, the Supreme Court, sitting in the Extraordinary Review and Public Affairs Chamber, dismissed the complaint of the election representative of the KKW Trzecia Droga Polska 2050 Szymon Hołownia - Polskie Stronnictwo Ludowe (Complainant) against the resolution of the National Electoral Commission (PKW) on the guidelines for district electoral commissions (OKWs) on the tasks and procedure of preparing and conducting the voting in polling districts established in the country in the elections to the Sejm and the Senate of the Republic of Poland and in the nationwide referendum scheduled for 15 October 2023.
Annotation of not taking part of the ballot papers and the secret ballot
The Supreme Court found the Complainant's claims that the PKW is not allowed to provide guidelines to members of the OKWs ordering the use of annotations of not taking part of the ballot papers, as well as that such a guideline exceeds the PKW competence and additionally violates the secret ballot to be unfounded.
A refusal to take any ballot papers in the elections to the Sejm and the Senate or in the nationwide referendum must be recorded in the register of voters, as only such an annotation will allow the OKW to correctly account the number of ballots received. Annotations made by members of the OKWs on the register of voters are of no importance for the determination of the turnout of the election and the nationwide referendum. The OKW determines the number of persons who took part in the referendum (referendum turnout) on the basis of the number of valid ballots taken out of the ballot box, pursuant to Article 22(4) of the Act on the nationwide referendum (NRA). Contrary to the Complainant's erroneous claim, the annotations made in the register of voters can in no way "distort the true results of the turnout in the vote". The lack of the obligation for OKWs to make annotations in the 'Remarks' section of the register regarding not taking a ballot paper or papers by a voter would cause such electoral commissions to have ballot papers not taken by voters, which they would not have to account for in their voting protocols. Similar rules for making annotations in the register of voters have been applied for decades in elections to the Sejm and the Senate, in which two ballot papers are issued ex officio, as well as in the elections to local self-government units, in which, depending on the type of municipality, either three or four ballot papers are issued for various bodies.
Regarding the claims concerning the possibility of using two registers of voters, the Supreme Court pointed out that although the wording of Article 90(1)(1) of the NRA provides for registers of voters, using the plural form, which may lead to the thesis that the OKW may use more than one register, however, the interpretation that takes into account the whole provision, which specifies that voting is carried out "in the polling districts established for the relevant elections and on the basis of the registers of voters prepared for these elections", means that each the OKW uses its own copy of the register, and since there are a number of electoral commissions, there are also a number of registers they use.
The Supreme Court is of the view that the possible introduction of a second or further register of voters for each of the ballots held is irrelevant with regard to the principle of secret ballot. The adoption of the concept assuming the use of multiple registers of voters by a single commission in no way strengthens the protection of the constitutional value of the secret ballot, as the fact of not taking part in the referendum will still be shown in a separate register. In the Supreme Court assessment, it is not the way in which the OKW keeps records of the number of ballot papers issued, but the very concept of joining the referendum with the elections, in view of the different attitudes of the political parties as to participation in the referendum, that may lead to the indirect disclosure of voters' political preferences. It should be emphasised that the legislator explicitly allowed for such a potential situation by providing that the elections and the referendum may be held on the same day.
Remuneration for persons of trust in the nationwide referendum
The Supreme Court found that invoking a general reference provided for in the Act on the nationwide referendum to the appropriate application of the provisions of the Electoral Code, regarding the rights of persons of trust in elections, to the rights of persons of trust in a referendum is not sufficient. Especially in the situation where the expenditure of substantial public funds is involved, which always requires a clear legal basis. The regulations concerning the remuneration for persons of trust in parliamentary elections are a legislative novelty, and the legislator, in the course of the legislative process, did not consider the possibility of extending such solutions to persons of trust in a referendum.
The Supreme Court pointed out that the competence to remunerate persons of trust, as dues payable from public funds causing a significant expense to the state budget, should be directly provided for in the Act on the nationwide referendum. The same applies to the exemption from work in the course of the referendum, which may cause disturbances to third parties on a large scale.
The lack of an explicit regulation in this respect cannot be replaced by a reference in Article 19(1)(2) of the NRA or remedied by analogy by the PKW guidelines, which do not constitute a legal act within the meaning of the constitutional hierarchy of sources of law and cannot provide a basis for the expenditure of certain amounts from public funds.