Counting of what the electoral commission describes as “postal, foreign mission, and transferred votes” is continuing in Hungary; as I foreshadowed on Monday, it has resulted in Fidesz picking up an extra list seat. Tisza, however, appears to have held the lead in its most marginal seat, Zala 2nd district, with a recount giving it victory by 48 votes. That means a total of 137 seats for Tisza to 56 for Fidesz and six for the further-right Our Homeland.
Tisza leader Péter Magyar is expected to be confirmed as prime minister when parliament meets in the first week of May. Donald Trump broke his initial silence to praise Magyar as “a good man”, predictably distancing himself from Viktor Orbán once he had revealed himself to be a loser. But that cannot conceal the fact that this has been a major defeat for the Trumpist program in Europe, and at a time when it’s been going badly on other fronts as well.
The fact that Hungary is set for a peaceful transfer of power, with Orbán making no attempt to stay in power extra-legally, has led to a raft of comments to the effect that worries about his authoritarianism were unfounded. This is what I’ve previously called the paradox of authoritarian democracy: the only way that an authoritarian regime can prove that democracy has survived under its watch is by losing.
Of course it is a good thing that Hungarian democracy has survived, but it doesn’t follow that the threat was not there in the first place. A danger that has been overcome is not thereby revealed to have been unreal, and all the evidence is that the danger to Hungarian democracy was very real indeed. Tom Palmer’s report this week provides a good summary of the situation.
But a little comparative analysis also helps. Yesterday, in the case of Hopper v. Victoria, Australia’s high court unanimously struck down the part of Victoria’s Electoral Act dealing with regulation of political donations. The provisions will now need to be redrafted in advance of the Victorian state election to be held in November.
I won’t try to summarise the legal issues involved, because Anne Twomey has already done the job in this morning’s Conversation. But fundamentally the legislation, enacted in 2018, was designed to benefit political parties at the expense of independents, and particularly to benefit the three well-established parties – Labor, Liberal and National – at the expense of the rest.
In argument before the court, the Victorian government conceded that this aspect of the legislation could not be defended. Faced with the task of severing those provisions from the rest, the judges found that it was not practically or legally possible and that therefore the whole donations regime would have to go. Federal legislation, which last year implemented a slightly less egregious version of the same thing, is also under challenge and will probably meet a similar fate.
On the surface, this seems just like the sort of thing that Orbán’s government was guilty of: not taking an axe to the basic institutions of democracy, but re-writing the rules to disadvantage his opponents. Note, however, two crucial differences.
First, in Orbán’s Hungary the government did not lose court cases like this. The judiciary had been politicised and intimidated to an extent that, while probably not amounting to complete control, was sufficient to guard against defeat when the case was even marginally arguable. Australian governments have not achieved or even attempted this; our courts are among the most respected and independent in the world.
Second, the Victorian government did not attempt to benefit itself alone; the legislation was drawn to favor the main non-Labor parties as well, in order to secure the support necessary for passage against the opposition of the minor parties. Labor did not have the votes to pass provisions for its unilateral advantage, and it’s not clear that its conscience would have stretched that far if it had – and if it did, it would have had even less chance of success in court.
And this is characteristic of the way electoral change typically proceeds in Australia: less a competition in advantage by the major parties (although that does sometimes happen), and more a conspiracy by them to shut out their smaller rivals. That’s how Victoria, for example, got public funding of election campaigns in 2002; although rank-and-file Liberal members (back when the party still had such a thing) were opposed to the idea, the organisation decided that it was in its self-interest and so bullied its MPs into backing Labor’s legislation.
But Australia, like many other countries, also has plenty of examples of changes to electoral legislation that have backfired. Public funding itself is an example: designed to assist incumbents and to funnel money to their mates in the media industry, its lack of proper accountability mechanisms benefits those who are prepared to exploit it with the least scruples, which now means One Nation – as an extensive report today in the Guardian reveals.
And in Hungary, if Orbán had left the electoral rules the way they were when he took office, his opponents might not have won a two-thirds majority this time.
The World is Not Enough 