• Narrowly defeated populists contested Van der Bellen’s victory
  • Constitutional court testimonies show widespread rule neglect

Last month’s Austrian presidential election vaulted the country into the international spotlight after nationalist Norbert Hofer and Green politician Alexander Van der Bellen clashed in an acrimonious campaign that rang with the same divisive tones heard ahead of this week’s Brexit vote.

After Van der Bellen won the May 22 duel by a whisker -- the final count gave him 30,863 lead out of 4.5 million votes -- Hofer’s Freedom Party began collecting reports alleging irregularities at the polls. On June 8 they contested the election result before nation’s Constitutional Court.

On June 20 the court’s 14 judges began questioning 90 witnesses, mostly election officials and volunteers, in an unprecedented exercise to determine how votes had been counted. A verdict is expected before July 8 -- incidentally the day when Van der Bellen is scheduled be inaugurated.

What’s the Freedom Party’s complaint?

The anti-immigrant party led by Heinz-Christian Strache has focused complaints on absentee ballots. About 760,000 Austrians mailed in ballots or dropped them off in precincts or from different polling stations. Van der Bellen had a clear edge over Hofer among those voters, in line with absentee-voter preferences seen in previous elections.

In its 152-page complaint, the Freedom Party doesn’t claim the count was rigged and Austrian law doesn’t require them to show the results were manipulated. According to previous decision, it’s been sufficient to show that:

  • Electoral rules were violated 
  • Violations materially affected enough votes to change the result

Freedom Party’s lawyers say they found “illegal procedures” in 94 out of 117 regional election offices.

What were the alleged irregularities?

The Interior Ministry, which is responsible for the election management, has rejected Freedom Party’s allegations, saying that all districts filed proper protocols in which all election committee members confirmed that the electoral rules were observed.

The Freedom Party’s complaints boil down to two main issues: 

  • The counting or processing of absentee ballots began before the prescribed time
  • The counts began without all the political party volunteers to supervise the process

What have the witnesses told the court?

Amid lots of head-shaking among the 14 judges on the bench, there were four messages repeated in testimony after testimony on the first two days of trial: 

  • Electoral officials did violate the law
  • Electoral officials signed off on protocols without noting the violations or, in some cases, without having read what they were signing
  • Electoral officials said they always counted that way because given the number of mail ballots to count, there was no way to do it in time by following the law
  • Electoral officials didn’t think the transgressions would have changed the voting results

Notably, the the statements came from election volunteers from all parties, including Freedom. Prosecutors are now probing committee members for suspected forgery of an official document. Interior Minister Wolfgang Sobotka said he was “deeply disappointed” by the “unbearable degree of sloppiness” that the witnesses displayed, and said he was going to review the legal rules.

So are we really going to have another election?

If the judges stick to the previous case law, it’s “hard to imagine” how they could let the vote result stand, according to Ludwig Adamovich, the court’s retired chief justice.

However, the case is unprecedented because previous complaints were mostly local. The extent of the transgressions, which according to witness testimony occurred in previous polls, points to possible systemic voting issues not linked to a single election. Van der Bellen’s lawyers and the government have emphasized that beyond sloppiness, there’s no evidence for manipulation.

The judges have asked every witness about their views on whether the results were manipulated, suggesting views of the election officials could influence their decision. No witness -- including those Freedom Party members who took the stand -- said they saw votes being manipulated.

Who would win if the vote was repeated?

Van der Bellen maintained a lead of less than 1 percentage point and within the margin of error, according to a June 11 Gallup poll published by the Oesterreich daily newspaper. Should the vote be annulled by the Constitutional Court, Hofer’s campaign could use the verdict to invigorate voters by campaigning against an establishment that had tried to deny him victory. On the other hand -- since no actual manipulation has been shown -- a second campaign could also backfire in favor of Van der Bellen if the Freedom Party is shown to have made an illegitimate grab at power.

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