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BLANK VOTING FOR THE GREEK PARLIAMENT
The 2004 Elections
Justice Konstantinos Vardavakis *
Only a few months ago, writing my paper about Blank Voting in 2004 General
Elections for Greek Parliament, I had no idea of the coincidence that has occurred in
presenting it to you the very same day of general elections here in Greece, being 16
September 2007. But it has happened.
In May 2005, the Special Supreme Court of Greece (A.E.D.), with jurisdiction in
dealing with issues of constitutional law and pleas concerning the election procedure
for Parliament, issued its surprising (and might I say unique in the European Union)
Judgment 12/2005.
The A.E.D. held that blank votes in the election procedure should be taken into
account to determine the seats of the Parliament.
The result that endured was that three seats of the Parliament changed both their
sitting member and also their political parties.
Of course, the decision took politicians, lawyers and constitutional law scholars by
surprise, causing a great deal of political noise for months. Despite this, in Hellenic
constitutional law theory the issue is not totally unknown. A lot of writing has been
published in the past supporting the "validity" of these kinds of votes. On the other
hand, a lot of disagreements have arisen as to the question of how these votes
should be counted, or whether to be counted at all, in the determination of an
election’s results.
As to the facts of the case, a candidate stood for election in a minor electoral area,
but was defeated. The claimant, asking the court to rule that his rival could not be
declared as elected if blank votes were taken into account.
That could happen because, after taking into account blank votes in his electoral
area, he could not reach the minimum number of votes needed for the election
meter. That is to say by adding the blank votes to the cast votes there would have
been a material difference in the quotient of the division between the number of
people who have participated in the voting procedure by the number of seats
assigned to the electorate in question.
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The central issue was, of course, whether the law (as discussed below) disallowing
valid blank votes to be counted for calculating the quotient for the result for the
electorate was, or was not, contrary to the Hellenic constitution.
The Hellenic constitutional law is totally based on people's sovereignty.
State sovereignty is a principle of international law directed against other states,
whilst people's sovereignty proclaims who is the leader in the state and all state
authorities are based on that.
Further, the Hellenic law regarding general elections for Parliament states, on one
hand, voting as a legally binding obligation with administrative sanctions and criminal
penalties in case of abstention, and secondly, allows blank votes and pronounces
them as separate category in the election’s results; but on the other hand, orders that
these votes not be taken into account for determining the seats of the Parliament.
The same ruling for blank votes exists in Italy and France, with the only exemption
being that the right to vote is not a legally but a morally binding obligation, dependant
on the people's will. In Germany and England such opportunity for blank voting does
not exist (in England, for example, voting not being compulsory). In other European
countries the issue is regulated by the percentage of the abstention that appears. No
political result is produced unless more than 50% of those who are entitled to vote,
exercise that right and vote. Otherwise the electoral procedure must run once again.
What would occur if the second procedure again saw abstention of greater than
50%? Problems.
The interesting issues, which came to light because of the said judicial decision, are
rather obvious.
We are living under a democratic political system made up of different editions; blue,
red, yellow and other, so we may be confused about the right meaning of the
terminology. Most people understand it as a simple possibility for participating in the
election procedure for government at their will.
Let us see some of these issues
1. The provision imposing legal obligation for voting under sanctions.
Looking back to the beginning of democracy, people's participation in political affairs
was established as a principal and major legal obligation.
In his famous epitaph speech for the dead given by the Athenian General, Pericles,
during the early years of the Peloponnesian War, the famed historian Thucydides in
the second book of his "History of the Peloponnesian War" declared with pride his
stand for democracy, saying;
There also exists a possibility for all citizens to have knowledge
and take care, not only for their private, but for the public affairs as
well, knowledge not shortage but full, because only we consider
not simply peaceful inactive, but base those who do not participate
in the political affairs of the city.
Severe words indeed.
Besides this, a lot of blood has been shed over previous centuries in the name of
gaining the people, or all of the population, the possibility of voting for their own
ruling. We should remember that the entire adult male population gained this right,
for example, in Greece in 1864, in France 1875, in Austria in 1907, in Sweden 1909,
in Italy in 1912 and in England only after the First World War. As to women, the
possibility of gaining this right was delayed much longer.1
Even now, in today's world, billions of people are suffering under severe government
systems against their own will. It seems an insult or abuse of privilege to these
civilisations, that we, who are privileged enough to be able to exercise our right to
vote for our leaders under a western political civilisation, would choose to abstain
from this basic right. Furthermore, sometimes abstention is guided by politicians
wanting to avoid clear condemnation.
After considering the above, the provision of the Hellenic law seems to follow the
right direction.
2. As to the validity and nature of blank votes in the elections.
In constitution law theory, scholars disagree whether blank votes fall into the field of a
human rights concept, or if it is simply exercising imperial or personal valid acts. In
Greece, all scholars have supported blank votes from a long time ago, and the courts
have thus accepted blank votes as valid acts in the election procedure. The grounds
of acceptance were the constitutional principles of people's sovereignty and those of
equality of all votes given according to the procedural requirements; the catholic right
of voting, rights applied to all citizens, and further, the constitutional obligation for
voting under sanctions.
The conclusion, is that these law provisions of the law harmonise with all of these
concepts.
All Greek courts have accepted the possibility of imposing necessary limitations to all
constitutional rights, being limitations either specific or implied, and as defined by the
courts. A democratically elected legislator gains or should have the power to impose
some deviations, mostly of procedural character, but only to the extent that these
deviations do not frustrate the centre, the chart, the nucleus of people's constitutional
right in question, and as to the election procedure, people's sovereign power to
express their own will of any character it may be.
This was exactly the issue the A.E.D. was called to answer. Where the law accepts
the validity of blank voting, but does not allow these votes to be taken into account
for electoral results, is it, or it is not, in accordance with the constitution? The
majority of the judges in the case upheld that a violation of constitution existed, whilst
the minority upheld the legislator power for limitation as regard, not the validity, but
only for the counting these votes to the election results2. A second issue follows the
affirmative answer for violation.
There is a gap the court should fill, as to what practical and legal effects should be
given to above votes, in the absence either in the words of the law or in its travaux
prepetoire of any indication about it. Could it be valid, but simply of an imperfect
character vote?
3. The Right to Disagree
In the whole of our life and from philosophical point of view, the possibility to say "no"
and further the legally supported right to say "no" and to disagree is, generally
speaking, broader and sometimes more important from the right to choose among
things.
This possibility constitutes the real aspect of freedom and expression of our
personality. Think for instance, of the secured right of a woman to say "no" to abuse
against her, or the secured right of one to say "no" against cases of blackmail, and
especially to say "no" to those who are in power and exercising authority. So, the
right to say "no" should be secured by law in any event. To say "yes" is, sometimes,
depending or imposed by all kind of dilemmas created by those who benefit from this
freedom and not solely by freedom itself.
On the other hand, blank votes are clearly distinguished from non-valid or informal
votes and also from abstention. Non-valid is a vote suffering by law as declaration of
people's intention, because it does not comply with all procedural or of substantive
law requirements, set by the law in question. Abstention is the effort of avoiding or
escaping from problems, usually those of critical character. But a blank vote is a
legally and politically integral and self-sufficient act, an official act of positive
character, but with negative subject-matter choice. It secures the right of people to go
to the polling station and firmly express their will, rejecting all or part of the proposed
possibilities or candidates in the election procedure. So it is a valid act and safeguard
clause, based on people’s sovereignty and freedom in our democratic system of
administration. In that sense, it should be rather secured in Europe for member
states they are not yet recognizing it and, as far as I know, thinking of the issue is
ahead.
4. From this starting point and further questions have arisen.
Who can actually be represented by blank votes in the parliament?
This question is the crux of constitutional law scholars' debate. Their thinking starts
from the fact that our system is a republic and parliament’s seats need definition of
representation by name.
The outcome before the A.��.D. in Judgment 12/2005 has shown that under the
Hellenic legal system this dilemma seems to be more hypothetical that actual.
This is because the Hellenic system provides for both minor and major electoral
areas. A number of minor areas, from 6 to 9, constitute a major electorate. The
effect of this is that if any anomalies occur in a minor area by the use of blank votes
the effect is limited through the convergence of the minor areas into the major
electorate issue, so that they may not affect the whole parliament.
We may simply have opportunities available to all of the people among the
candidates of the major area. No empty seats of the parliament may appear, as at
the end of the counting one or other of the candidates will be elected for the major
area and this happened in the case of question. So the law as it stood was sufficient
and did not need clarification. But this result will only occur if the percentage of
blank voting does not exceed 10% - 15%, either in a major area or in the whole
country. If that were to occur, then it would be up to politicians and their
advancement of good policies to persuade people to not use blank votes in the
election procedure.
But, in the absence of any low provision, specific or implied, what should happen
when blank votes exceed these percentages? How could the legislator resolve that
issue? The answers obviously vary and depend on the results.
One could say, below a scale of 50% of valid and determinative (as distinct from
blank) votes being case, elections should be repeated once and political parties will
therefore have the opportunity to repeat the election procedure but with more
acceptable policy programs and candidates.
Or, one could say, that the relevant number of empty seats should occur in the
parliament. Why not? In Greece for instance, the number of seats is set by the
politicians as 300 for a population of about 11.000.000 people whilst in the
Netherlands is set to 90 politicians for about 12.000.000 people. In that sense, blank
votes give people the power to regulate the issue directly by themselves. Should
blank votes rise above 50% in scale, it should be seen as an initiative for rethinking
about the political system and people may be asked, by use of a referendum, what
kind of democratic system they prefer; presidential as in U.S.A., of mixed character
as in France and the United Kingdom, or purely parliamentary as we have today in
Greece and so on.
Another argument was submitted to the court. Blank voting should not be taken into
account as it introduces a double system for parliamentary elections, one simple and
another using blank voting, meaning that some MPs will be elected by the use of one
system and some by the use of the other and that this is a situation that is not
permitted by the Hellenic constitution. The truth is that there is one system is one, but
some dissatisfied candidates (and their lawyers) have not previously relied on the
opportunities open to them under the law to bring a case before the court (as
occurred in Judgment 12/2005). Any court follows the provisions of its procedural law
and gives judgments only for the litigants in question and then only to the extent that
the case is argued before the court.
It is obvious that this decision of A.E.D. has brought into light some fresh ideas for
the integration of democracy. Whether this is for the good or the bad, only time will
show.
* Retired Justice of Arios Pagos, the Supreme Court of Greece
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