Free speech, elections and the Coronavirus pandemic

Paige Morrow
Free speech, elections and the Coronavirus pandemic - Civic Space

Lockdowns and restrictions on freedom of movement put in place in response to the COVID-19 pandemic will have a significant impact on elections slated to be held in numerous countries this year. Traditional campaigning activities, as well as the organisation of the vote itself, face unprecedented challenges, which put at risk the fair and democratic nature of votes. This raises important questions about whether votes should be delayed, or, if proceeding as scheduled, how they can be carried out. Can free and democratic elections take place during any stage of lockdown or restrictions? What approach should states take in these unprecedented times?

Free and democratic elections are not only about casting a vote in fair conditions, but ensuring citizens are informed about candidates, parties, and their political platforms. In many countries, bans on holding events and attending public gatherings will prevent or severely limit the organisation of campaign rallies, political speeches, debates, fund-raising events, and public demonstrations. Political candidates may not be able to undertake door-to-door canvassing, which can reduce their ability to communicate directly with voters. Although in some countries, political parties and candidates have been able to quickly adapt to online campaigning, this can prove more difficult in in cases when there is limited time before the election to change campaigning strategy. It might also be problematic in countries where there is a large digital divide, meaning accessing information from candidates online is more difficult for certain groups. There are also fears that Coronavirus related disinformation will be on rise, including fake electoral announcements that voter registration had been suspended in certain regions, and other efforts to disrupt democratic processes and mislead voters.

Where states have declared a state of emergency or public health emergency and put in place these kind of restrictions, voters’ entitlement to receive information about candidates and exchange political opinions remains unchanged. Voters are entitled under international standards to receive comprehensive, accurate, and reliable information about the voting process. Equally, political parties and candidates must be allowed to have access to the electorate on an equal basis. International human rights law continues to apply during this time, and must be respected.

How should states respond?

First, restrictions on political campaigning should be time-bound and regularly reviewed to ensure that they are still needed, and that no less restrictive measures would achieve the same public health objectives. States also have a broad range of obligations to protect freedom of expression and information of both the public and the candidates.

Voter education

While Coronavirus-related restrictions are in effect, electoral monitoring bodies should make special efforts to ensure that voters have access to information and opinions regarding the political options available to them.

Electoral monitoring bodies should proactively disclose information regarding the process for registering to vote and the voting timetable. It is also important that the rules are decided sufficiently in advance to allow for adequate communication with voters.

Facilitating the right to vote

Where the decision is made to continue with an election during the pandemic] , efforts must be made to facilitate voting outside of physical polling stations, including through absentee or early voting, provided that the legal and procedural provisions already exist for this to occur. The states should also ensure that there are robust systems and infrastructure in place to allow people to vote beyond polling places. Specific measures should be adopted to accommodate the needs of those at risk of discrimination in this respect, such as elderly people, persons with disabilities, or people with health conditions to ensure they can exercise their right to vote.

Countries that have proceeded with scheduled elections in early 2020 have seen low voter turnout owing to fears concerning the risk of exposure to infection at polling stations. This is believed to have led to record-low voter turnout for the first round of France’s municipal elections in mid-March, as well as the parliamentary elections in Iran, which saw the lowest voting rate since the 1979 Islamic Revolution. In the United States, turnout in some Democratic primaries was affected, except where there was significant early voting and vote-by-mail participation.

A number of countries have also considered online voting, but this raises concerns regarding security and ensuring public trust in the integrity of the process. Internet voting often relies on a strong identification infrastructure, such as biometric voter cards, which can be expensive, time-consuming and difficult to introduce, and therefore unlikely to be a feasible option in the short-term for most States.

 Postponing elections

The decision to postpone or delay elections should not be taken lightly given the fundamental right to free and fair elections at regularly scheduled intervals. So far, more than one in four countries worldwide – at least 51 states – have postponed national or subnational elections, and only 18 others have continued as scheduled in early 2020. Some states are exploiting the Covid-19 pandemic situation to undermine democratic processes; for example, Hungary even passed a law that postpones or cancels all by-elections and referendums until after the state of emergency is lifted, leaving the status of national general elections uncertain.[EH3]

International human rights law does not explicitly address whether elections should ever be held in times of national emergency – nor does it provide for postponements. However, a delay should be considered an option of final resort and should be limited in time. Proceeding with elections is important to ensure the accountability of elected officials and maintain faith in the democratic process. Any postponement may have a deleterious impact on democratic standards, including through potential loss of voter confidence in the legitimacy of the process and the result. Lengthy or indefinite postponement are unacceptable, not only because they undermine the ability of citizens to hold their governments accountable, but also because they prevent an effective oversight of government conduct through parliamentary process.

At the same time, in certain limited situations where restrictions on fundamental rights make it unlikely that a free and fair election can be guaranteed, it can be appropriate to delay elections – ideally following consultation with all political parties, the national electoral commission, and relevant stakeholders. Even where a state of emergency has not been officially declared, the measures enacted in response to the pandemic may be so restrictive, and there is no possibility in a short period of time to arrange for alternative measures, such as postal or electronic voting, that a short delay to the vote is preferable.[

During the COVID-19 pandemic, elections continue to be an important means to protect democratic rights, especially while state power is being concentrated in the executive branch through the adoption of restrictive emergency measures. However, in order to ensure elections are truly free and democratic, states must ensure the means and resources are available to ensure a secure voting environment and respect for fundamental rights – especially freedom of expression and information – during the run up to elections and the voting period itself.