Last month’s Portuguese parliamentary election was full of surprises, from the turnout numbers to the scale of the victory of the centre-left Partido Socialista (PS-S&D).
Now, the election is part of the news cycle again for the wrong reasons: vote count irregularities that will lead to a partial rerun of the process.
Voting from abroad
For electors abroad, postal voting is the default in parliamentary elections. Voters are mailed a small packet containing four items: the ballot, a green envelope in which to seal the ballot, a white prepaid envelope in which to insert the green envelope, and a brochure with instructions. This matryoshka of materials is relatively convoluted in itself. The process has at times become more confusing because of unexpected failures. For example, for the 2015 election, a subset of voters were sent green envelopes that were bigger than the white envelopes in which they were meant to be inserted.
However, the requirement that has consistently tripped up voters is that of the inclusion of a photocopy of their national ID card. Portuguese law makes it illegal to request copies of one’s national ID card in virtually all cases. Postal voting is a key exception. This requirement is spelled out in the brochure, but is routinely ignored. Under the law, ballots returned without this document are to be considered invalid and counted alongside spoilt ballots.
The number of these invalid ballots from voters outside of Portugal exploded in the 2019 election. This is not due to the process itself, but rather because the number of eligible voters also exploded. Before then, citizens abroad had to actively register to vote; starting in 2019, voter registration became automatic. The number of registered voters increased six-fold from the previous election. The number of actual voters increased in a similar proportion. The number of invalid ballots, however, grew by the magnitude of 12. There were more invalid ballots from citizens abroad in 2019 than there total votes in the 2015 election.
Vote counting and electoral law
Similarly to previous elections, there were two electoral districts outside of Portugal: one for electors in Europe and another for electors outside Europe.
The districts were subdivided into smaller sections covering specific countries or agglomerations of counties/continents of varying sizes. Each of these subsections was covered by dedicated electoral committees. These committees are primarily responsible for counting the votes, but they also enjoy broad autonomy. They are expected to follow the law, but their decision is final, even when it stands in contradiction. Above these subdivision electoral committees sits another electoral committee, which oversees the count for the entire electoral district and has final say over the proceedings.
Following the debacle from the 2019 election, with tens of thousands of votes being invalidated for the absence of a copy of the voter’s ID, the parties vowed to amend the electoral law and avoid a repeat occurrence.
They did not. Instead, the parties met informally with representatives of the Ministry of the Interior after the election and agreed to turn a blind eye to the absence of the identification document. Ballots arriving without a copy of ID were to be counted. The electoral committees agreed to follow this directive.
A failure to communicate
After preparations for the count started, the centre-right Partido Social Democrata (PSD-EPP) decided to break with the informal agreement to count all votes. Instead, it now framed the arrangement as illegal and demanded the exclusion of votes which did not follow the rules.
This information, however, was not formally shared with the members of the electoral committees. By the time the issue bubbled up to the surface, it was too late. Many had commingled votes accompanied by a copy of ID and votes without that document. There was no turning back; after the exterior envelopes are discarded, the materials are indistinguishable.
The overarching electoral committees were then left with two options: counting all the votes as valid or excluding votes from all the (sub)electoral committees where votes were combined. Their decisions were different. The committee for countries from outside of Europe chose to count the votes. The committee for the Europe district opted to have the commingled votes discarded.
In doing so, it discarded 80% of its total vote.
Back to the polling booth
With the vote count finished, this saga moved to the courts. There were no challenges to the inclusion of irregular votes in the electoral district covering the territories beyond Europe. So, despite being in flagrant violation of electoral law, these votes were counted and are now formally included in the totals.
Court challenges only targeted the exclusion of votes in the electoral district of Europe. Yesterday, the constitutional court refused to allow the invalidated votes to stand. However, it also claimed that the procedural error of combining all ballots nullified any results.
In the end, electors in Europe will go to the polls again. As announced tonight by the electoral commission, the deadline for the return of (as yet unsent) postal ballots is 24 March.
The predicament of waiting for two MPs
From the point of view of parliamentary arithmetic, this election is largely irrelevant. The centre-left PS will continue to enjoy a slim overall majority regardless of the outcome. In any case, there is little expectation that a new vote will yield different results. PS and the centre-right PSD should elect one MP each once again.
Rather, the re-run is of consequence because it adds six more weeks of a caretaker government. These are six more weeks in which the country will be forced to limp along without addressing any of its legislative priorities and with a budget that is piecemeal.
Instead, the budget for 2022—the very reason why the election was called in late 2021—may only be approved in the second half of the year. Even if nine months late, it will be a budget with less scrutiny. The same parties who will balk when the mammoth piece of legislation is inevitably rushed through should remember this is a self-inflicted wound; these are direct consequences of neglecting to amend and abide by electoral law.
