The US Supreme Court and Viktor Orbán – birds of a feather

Both show that they know how to manipulate election rules to reach a desired result

I met Viktor Orbán in September 2011. He was Prime Minister of Hungary (for the second time), and I was a speaker at a conference in Bucharest, Romania, held in the ridiculously enormous leftover palace of the Romanian dictator Ceausescu. Orbán was rugged, handsome, with a bit of swagger, like the former semi-professional soccer player and young anti-Communist dissident he once had been.

As his Fidesz party was affiliated with the European People’s Party, the largest center-right party of the European Union that had organized the conference, he was considered a rising star, a young-ish leader in the mold of a pro-market, small government, pro-European leader with an almost Kennedy-esque charm. As we conversed, he was polite, amiable, speaking nearly fluent English (which he had studied in high school, and refined when he had been a student briefly at Oxford). He asked about my recently published book Europe’s Promise: Why the ‘European Way’ Is the Best Hope in an Insecure Age, and I remember that he joked something about the subtitle and whether I wasn’t being overly-optimistic about Europe’s “promise.”

Flash forward eleven years later and Orbán has transmogrified into an alarmingly different leader – that of a right-wing national populist promoting his brand of western Christian civilization and culture-war narrative to any conservatives who will listen. One group listening is the Conservative Political Action Conference, the largest and most influential gathering of conservatives in the US, which recently hosted Orbán as a keynote speaker at its annual conference in Dallas, TX.

Barking out the hit tunes for his audience, Orbán alternatively railed against and mocked immigration, Islam, gender identity, progressive politics and globalization. In Hungary he has erased gender studies from university curriculums, built a border fence to keep out refugees, and written Christian values into the constitution. Orbán is a more successful Trump who actually has implemented much of his far-right agenda, and gotten reelected three times.

In his speech to CPAC, Orbán raised the stakes by declaring that his brand of conservativism is in an ideological “battle for Western civilization”; a week before, Orbán gave a speech that criticized the “mixing” of European and non-European races, saying "We [Hungarians] are not a mixed race and we do not want to become a mixed race." This prompted a resignation from a close adviser who described Orbán’s speech as “a pure Nazi text worthy of Goebbels.”

“I’m here to tell you that we should unite our forces,” he told the pious American conservatives assembled. “Because we, Hungarians know how to defeat the enemies of freedom on the political battlefield…I am here to tell you that our values: the nation, Christian roots and family can be successful in the political battlefield.”

In hindsight, I can’t help but wonder if, when I met the then-affable prime minister, Orbán didn’t already know the full extent of the political trajectory he was starting to goose-step toward, which he later branded as “illiberalism” in a speech in July 2014. While Orbán sees himself locked in a noble and existential battle with other Western leaders and countries over what “the West” actually is, others see Orbán-ism as closer to what former Hungarian education minister Bálint Magyar has called a “post-communist mafia state.” Like Putin’s Russia, Orbán’s Hungary is boldly flying its ideological flag as a message to attract countries, leaders and people that want to align with them, simply because they don't like the West of liberal, social democratic sympathies.

Using democracy to kill democracy

But Orbán’s brand of crony capitalism and Christian nationalism has also exploited the “loopholes of democracy.” Representative government can only work if there is a modicum of fairness, justice and respect for lawfulness built into not only most people’s attitudes but also the institutions that form the scaffolding of democracy. America’s founders built into our political system a degree of separation of powers and checks and balances. Under the Trump administration, culminating in the January 6 collapse of political civility, these features are now struggling mightily in the US. Even more effectively than Trump, Orbán has systematically undermined representative government in Hungary, including mostly eliminating any actual opposition.

Orbán has accomplished this primarily by using the rules of democracy to manipulate and squeeze democracy itself. What I call “python democracy,” strangling Hungary’s civic and democratic institutions. While some have called him a quasi-dictator, his regime continues to hold elections. But he has rigged the rules so that the results are grotesquely lopsided. In 2010, which was the election that kicked off the next 12 years of Orbán-ification of Hungary, his Fidesz received a small majority of 53% of the popular vote, helped by a rash of scandals by the previous government. Yet astoundingly Fidesz ended up with a super majority of 68% of the seats. How did Orbán pull that rabbit out of his hat?  

Hungary has long used an electoral method for selecting its National Assembly that combines US-style single-seat “winner take all” districts with a European-style proportional representation method called party list. Proportional voting is well known for electing political parties into a legislature in proportion to their voting strength at the polls. If a party wins 10% of the popular vote it gets 10% of the seats, instead of nothing, which is what you get in the US system; if another party gets 40% or 60% of the popular vote it receives 40% or 60% of the seats. It is a very fair system in that way, in that both majority and minority perspectives can win a place at the legislative table.

But the “winner take all” system is known for various distortions which can often result in one party winning a disproportionate number of seats. Those distortions stem from a number of factors, including partisan residential patterns – liberals dominating in cities, conservatives in the rural areas, with suburbs more undecided – but also from the political party in power controlling the redistricting process and manipulating the legislative lines to win a greater share of seats. This kind of “gerrymandering” has always created both the perception as well as the reality of unfair and undemocratic distortions.

Sometimes that disproportionality is fairly small. But not in Hungary. In that 2010 election, Fidesz won about 54% of the overall popular vote in the “winner take all” districts – but ended up with an astounding 98% of the district seats. Now that’s a gerrymander!

In 2014, the winner-take-all distortions were even worse. Fidesz won less than 45% of the popular vote, so you’d think that another political party might be able to command a majority of the parliament. Instead, Orbán ’s party captured 91% of the single-seat districts, and two-thirds of the seats overall. In the 2022 election, things were hardly better, with Fidesz winning “only” 82% of the single-seat district races, and 67% of the seats overall even though it only won 54% of the popular vote.

Part of the explanation for Orbán’s success is that, following his overwhelming supermajority in 2010, and not long after I met him, Orbán began a process of rigging the constitution to change a number of electoral laws that would cement his advantage for years to come. First, he increased the percentage of winner take all districts from 46% of all seats to 53% of seats. Then, he became the Gerrymanderer in Chief by giving the power to redistrict the entire country to his political party instead of an independent commission. He also allowed the population of the districts to vary greatly in population size by up to 35% (in the US the allowable variance is about 5%). This allows Fidesz to pack voters from the opposition into a smaller number of heavily populated districts, and spread out its own supporters among a great deal of less-populous districts. This is a major factor in creating such huge “votes to seats” distortions in the "winner take all" districts that allows his party to be vastly overrepresented.

Orbán also packed the courts and eroded judicial independence, and packed the media with his allies and curtailed press freedoms, including forcing some media outlets out of business. Orbán and his allies now own many of the papers in the country, and only a handful of independent outlets survive.

This is life in a python democracy. In short, Orbán has squeezed all important institutions to establish a new quasi-model of illiberal government in which he doesn’t need to use thuggish tactics against his political opponents or grab power with the point of a gun. He was able to do it by manipulating the practices of Western democracy to control fundamental institutions and undermine democracy itself. Freedom House, a neutral nonprofit that rates political democracies according to specified criteria, has given Hungary its lowest score of any of the 28 member states of the European Union, saying it has “slid into authoritarian rule.” This is an alarming development, to see a new and free democracy led by a charismatic leader who uses his electoral mandate to legally dismantle the constitutional systems he has assumed stewardship over. Hungary under Orbán has devolved into a new form of government that is being called by some political scientists a “legalistic autocracy.”

And now Orbán the “culture warrior” is becoming influential among other conservatives, not only in the European Union but…also in the United States.

SCOTUS = Judicial Orbáns in the US

Besides adopting a lot of Orbán-like inflammatory rhetoric, one of Orbán’s tactics that Republicans have tried to push to the limit is the gerrymandering of partisan district lines. Of course, gerrymandering wars have gone on in the US since our national birthquake, and both the GOP and Democrats resort to it. But in recent years Republicans have cleverly outmaneuvered Democrats in the redistricting wars. Consequently, most political experts believe the GOP will pick up enough seats in November’s election to win a national House majority.

Even more alarming, however, is that GOP efforts now have a new and powerful ally – a deeply right-wing Supreme Court. The third branch of government now has a 6-3 majority that appears to be undergoing its own “Orbán-ization,” in which its judicial leaders are using the vagueness of some legal and democratic norms to overturn precedent and push a backward-looking jurisprudence. These Judicial Orbáns already have begun flexing their power to undermine US democracy by using their extraordinary authority to reverse long-standing judicial practices employed by lower courts to resolve redistricting tensions.

For example, since the beginning of this year, lower court judges in Ohio, Louisiana, Alabama and Georgia have ruled that GOP legislators illegally drew those states’ congressional maps along racial or partisan lines that would likely result in unfair Republican victories. But in all four cases those judges were overruled by the US Supreme Court or a federal appeals court, which shredded previous judicial oversight practices that allowed those judges to order new maps or have an expert redraw them to ensure that the coming elections would be fairly contested.

In Alabama, a three-judge federal panel ruled in January that the state legislature had likely violated the Voting Rights Act and diluted black voters’ power by drawing the state’s seven House seats in a way that decreased the potential for black representation from two seats to one. So the judges ordered the legislature to draw a new map four months before the May primary elections. In the past, that amount of time would have been considered generously sufficient by the Supreme Court.

But this Court blocked the lower court’s order and restored the state legislature’s rejected map for this year’s elections. Led by Justice Brett Kavanaugh, SCOTUS invoked a previously little-used informal legal doctrine called the “Purcell principle” that says when elections are imminent, you should not change the rules. Which mostly makes sense, but the Purcell precedent involved a case where an election was a few days away, not four months. What changed was not the doctrine but it’s interpretation by a far-right Court majority, which gave no explanation for this new interpretation.

Following that case, the New York Times reported that

a month later, a federal judge in Georgia cited Mr. Kavanaugh’s words in deciding not to order a new congressional map for that state — this time three months before primary elections — even though he said the State Legislature’s map, like Alabama’s, probably violated the Voting Rights Act. And in June, the Supreme Court blocked a lower court order for a new congressional map in Louisiana on the same grounds. The justices did not explain their reasoning.

“We’re seeing a revolution in courts’ willingness to allow elections to go forward under illegal or unconstitutional rules,” said Richard Hasen, a professor at UCLA School of Law.

Ohio may be the best example that reflects this Orbán-ization of the courts. There, both congressional and state legislative elections are about to be conducted using maps that the Ohio supreme court has twice ruled are unconstitutional partisan gerrymanders. The Ohio Redistricting Commission, which was approved by 71% of Ohio voters in November 2015 to abolish the shenanigans of partisan gerrymandering, nevertheless was dominated by Republicans. The GOP-drawn lines were so egregiously illegal that the state supreme court — which also had a GOP majority — ordered the commission to redraw the illegal district lines. Instead the Republicans dragged their feet, waiting nearly 7 weeks to produce a second congressional map until finally they were threatened by the supreme court with contempt.

Guided by Kavanaugh-like logic, a three-judge federal appeals panel voted 2-1 to reject the state supreme court ruling and re-imposed the redistricting commission’s illegal legislative maps. The two deciding judges, who were both appointed by President Trump, also cited looming election deadlines as their rationale, even though the election was three months away.

Following the federal court interference in what is supposed to be a state-overseen process, Ohio Supreme Court Chief Justice Maureen O’Connor wrote that the federal court had helped the GOP-dominated redistricting commission to “engage in a stunning rebuke of the rule of law.” O’Connor, a staunch Republican who served 24 years in statewide elected office, longer than any women in Ohio history, was attacked by others in her party who called for her impeachment.

What happened in Ohio and the other three states was an outright defiance of democracy by Republican-appointed federal judges, and a warning sign for the rest of the nation about what may lie ahead. Experts have predicted that using the illegal maps in these four states, which make up nearly 10 percent of the seats in the House, is likely to hand Republicans five to seven House seats that they otherwise would not have won. That shift alone might be enough for the GOP to win the House majority.

The path forward from here

What the US needs to do to ensure a fair and representative democracy is to reverse Viktor Orbán’s steps and make our electoral system more based on proportional representation and less on “winner take all” representation. If we abolish single-seat districts entirely in favor of multi-seat districts elected by ranked choice voting, that would eliminate the need to redraw legislative district lines and substantially weaken the ability of any political party to manipulate results. That in turn would open up our political system to more political perspectives, giving voters more choice. Voters would actually be able to elect their favorite candidates and political parties, instead of always picking the lesser of two evils.

The Viktor Orbán I met in 2011 has morphed into the world’s most dangerous standard bearer of white Christian nationalism combined with crony capitalism. Rather than copying Hungary’s toxic trajectory, Orbán’s rise should serve as a warning to Americans across the political spectrum. His promotion of authoritarianism mixed with the remnants of Hungarian democracy – essentially using democracy itself to kill democracy – is the true threat to Western civilization.

Steven Hill @StevenHill1776