Courts and Populist Electoral Politics – the Case of Hungary

Abstract

Elections are devices, through which the abstract concept of representation gains its specified institutional form, therefore they are highly relevant for populists. The paper examines the illiberal-populist project of redesigning the legal framework of elections in Hungary after 2010, focusing on the role of the Hungarian Constitutional Court (HCC) in reviewing electoral law as well as interacting with the ordinary courts through electoral adjudication. It is argued that although a distinct ‘populist imagination’ (Müller) of elections is discernible, there is no special populist electoral politics, rather the ‘inherent authoritarianism of democracy’ (Pildes) is exacerbated. In Hungary the electoral legislation was shrewdly tailored to the governmental parties’ needs, and electoral politics is constantly subjected to instrumental changes. It is argued that although apex courts could be key players in checking electoral manipulation, the HCC did not protect effectively the integrity of electoral law, and at a later stage it even intervened in an arbitrary and arguably politically biased manner. The paper argues that the Hungarian example underscores the need for enhanced court activism in terms of electoral law, especially when populists already came to power.