Austria – Complaint against narrow runoff result might lead to partial do-over of election

After Alexander Van der Bellen won the runoff with a razor-thin margin, calls for a recount and even accusations of electoral fraud from Norbert Hofer’s (FPÖ) supporters were expected. The FPÖ has now lodged a formal complaint with the Austrian Constitutional Court which could trigger a partial rerun of the second round of presidential elections. It is clear that there were some irregularities in the counting of votes and bodies on various levels failed to follow correct protocol. Unfortunately, Austria’s Ministry of Interior and the respective state electoral bodies have also not done the best job in preventing the emergence of further doubts. Given that the FPÖ has yet to make public its list of suspected violations – which is said to exceed the number of previously publicised cases – it is difficult to establish what the outcome of their complaint will be. In any case, the FPÖ has already succeeded in gnawing off some of the new president’s legitimacy before he has even taken office.

The known cases of electoral violations mainly concern the counting of postal votes, idiosyncratic decisions or errors by local officials, and turnout exceeding 100%. Some of the state-level agencies started counting postal votes (which were eventually decisive for the election) too early and some others at least opened the post vote envelopes already on Sunday instead of Monday morning. Although this was against protocol, there is not indication that there was any manipulation or interference with the ballots. In another case in the town of Helfenberg, there were three ballot papers too many in the box after the end of the day even though all voters had been registered twice before casting their vote. Eventually, the local electoral commission decided to take out three invalid votes to make numbers match – while certainly unusual, this seems like a fair decision in relation to its effect on the outcome. The problem here is that the mayor ripped up the three supernumerary ballot papers – a clear violation of federal law. There was also one case where a women was unable to cast her vote due to an error on the electoral register (where she was listed as a postal voter).

More troubling is the report of the municipality Miesenbach in Lower Austria where apparently a handful of 14 and 15 year-olds where allowed to vote – the general voting age is 16. Overall, fifteen teenagers below the voting age were listed as eligible to vote of which five eventually cast a ballot. The reason seems to be that the local electoral commission mixed up the electoral register for the presidential election with the so-called ‘Wählerevidenz’, a constantly updated list based on the local resident registration database. 380 valid ballots were cast in Miesenback, 258 for Hofer and 122 for Van der Bellen, so that it didn’t have a significant impact. Nevertheless, this is a blunder that cannot be easily justified.

For a while the official election website showed 146.9% turnout in Waidhofen/Ybbs

For a while the official election website showed 146.9% turnout in Waidhofen/Ybbs

Last but not least, an embarrassing error fuelled accusations of electoral fraud on the day after the election. The official election website on the pages of the Ministry of Interior showed an impossibly high turnout of 146.9% for the district Waidhofen in the city of Ybbs. A screenshot was widely shared across social media, particularly by supporters of Norbert Hofer. The Ministry later traced the error back to the state electoral commission. While the local district had submitted correct data, the state commission made an error during data entry and transmitted the incorrect data to the Ministry. Human error happens in every election but raises questions over the suitability of the IT systems used by Austrian authorities, e.g. why is there not automated checking of improbable values in the systems? In some other districts, turnout even exceeded 200% as a great number of people made use of proxy voters. In addition, the number of distributed ballot papers was slightly lower than votes received in a few more electoral districts. Nevertheless, while this may seem suspicious to international observers, this is simply due to the postal vote system in place in Austria (as well as in the Czech Republic, Slovakia and Germany). Postal voters receive their ballot paper by post and can either send it back by mail or go to any relevant polling station to cast their vote. The latter happens particularly often when people are on holiday and still want to cast their vote in person (in Germany this is limited to SMD districts).

These known cases alone should not be sufficient to trigger a partial re-run of the presidential runoff in the affected districts. However, the FPÖ claims that violations were recorded in 94 of 117 postal voting districts. Given that it was the postal votes that turned the result around and Van der Bellen eventually won with only 31,000 votes (0.6%) difference, such a claim – if it proves true – would definitely require a do-over of some sort. The Federal Returning Officer, Robert Stein, has however expressed doubts that the whole second round would be repeated. In any case, the FPÖ might have found a way to once again mobilise the anti-establishment vote that Norbert Hofer received. From the point of view of a rational observer, a ‘conspiracy’ against the FPÖ by the state (including public TV stations – one of the FPÖ’s recurrent targets during the election campaign) may be out of the question. Nevertheless, it is likely to resonate with the FPÖ’s core electorate which sees the stigmatisation of the far-right party and categorical exclusion from the federal government as an injustice and plot orchestrated by SPÖ and ÖVP. Even if the complaint is entirely unsuccessful, it casts a shadow over Van der Bellen’s election and will give additional ammunition to the FPÖ in the run-up to and after the next parliamentary elections.

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