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Choice Illusions: Through ‘Rule by Law’ to ‘Electoral Capture’ in Hungary and Poland?

By Stefan Szwed

This article is a shortened version of the eponymous re:constitution Working Paper, which was originally published the Forum Transregionale Studien in 2025 and can be read here.

Introduction

National populists across Europe, especially the likes of Hungary’s Victor Orbán and Poland’s Jarosław Kaczyński who were elected to office, like to champion themselves as ‘men of the people’. They front as defenders of democratic majorities, which they claim are falling victim to expansive ‘liberal’ qualifiers of democracy proper. They purport to have the wind of vox populi beneath their wings. This support, they argue, is not merely an endorsement to govern, but a ticket to reverse the supposed progressivist wave that swept democratic polities to not simply tame crude majoritarianism, but effectively to neutralise the people’s will.

Their parties’ relationship with the presumed political majority has a symbiotic quality. They claim input legitimacy from the mandate they receive at the ballot, but also pivot their output legitimacy in distinctly majoritarian ways. Theirs is a quest for a different kind of a state, a ‘true’ democracy freed from constraints that empower minority positions at the cost of the people whose spokesperson role they assume. Both parties treat liberal democracy where constitutional separation of powers constrains – but as Martin Krygier reminds us, also enables power to flourish in all the right places – with suspicion and contempt (2016). They see it as a foreign import, ill-suited to the realities of East Central Europe, and more universally, a set of flawed ideas that rob the people everywhere of their voice in government.[1]

Pitting the rule of law against democracy is a clever ideational but also rhetorical tool that has allowed the two governments to progressively dismantle the former whilst claiming output legitimacy in the name of popular choice (Jakab 2022). But while narratives that accompanied attacks on the Hungarian jogállam and Polish państwo prawa promised a more democratic future, they also served the (input legitimacy) end of securing continued successes at the ballot.[2] This was achieved not merely thanks to the virtuous circle of democracy – making output attractive to voters – but also by gaming the system to the incumbents’ decisive advantage. The pair have tinkered with rules for elections and curated the political environments in ways that helped to entrench their dominance. Aided by earlier lessons of defeat, they swiftly took charge of independent institutions and entered an ad perpetuum campaign mode. And while the way they tilted the playing field is commonly known, elections in Hungary and Poland have not simply become less fair: they became decidedly unfair and should not be described as fully free.[3]

This Working Paper proceeds to first briefly reflect on and position its arguments in the existing literature, and then advances to examine the democracy backsliders’ legitimacy predilection. It subsequently outlines some of the key challenges to election integrity posed by Fidesz and PiS, and later places them in the wider context of democratic elections across the EU. Before concluding, it turns to explore the question whether tinkering with the ballots in Hungary after 2010 and Poland after 2015 has added-up to a form of capture.

A man with a grey beard wearing a blue suit.
Stefan Szwed. Photo: Private.

1. State of the art

While the literature on democratic and rule of law backsliding in East Central Europe is vast, questions about the veracity of national populists’ majority claims have been rare. Many authors take popular support for Orbán and Kaczyński for granted.[4] They acknowledge the role of output and input legitimation: the illiberal future painted to woo core voters (Sadurski 2019, Levitsky et al 2020, Holesch et al 2021). A bulk of the work belabours the reasons for populism’s allure during the age of strongmen. Their rise of and slide to authoritarianism are studied with a view wavering electoral appeal across time and space, with puzzlingly little attention paid to the difference between populists who seek and those who are in office: the distinction between aspirants standing to be elected, and incumbents wishing to hold on to power.[5]

Many scholars of backsliding across the region focus on institutional fragility and weak political culture – often with a slant towards historical determinism – as though these variables could provide exhaustive explanans for both the rise and persistence of Fidesz and PiS. Literature on political capture dissects the dismantlement of independent institutions, but scarcely zeroes in on its effects on the ballot. Some scholars have even contrasted the ‘indirect’ or ‘less visible’ attacks on democracy in Hungary and Poland with more overt or ‘crude’ attempts to jail oppositionists in Turkey or ‘steal elections’ in the United States (Sadurski 2022).[6]

Many of the texts on democratic backsliding in Hungary and Poland remain mired in normative considerations. They bemoan the decline in democracy and rule of law standards, but their focus is directed at capture of the judiciary and other ‘physical’ state institutions, rather than elections, which are generally branded as ‘competitive but unfair’ (Levitsky and Way 2010, 2020). They look to the exigencies of separation of powers, checks and balances or protection of minority positions, but seldom ask whether majority claims made by Fidesz and PiS hold water.

These blind spots are the more surprising seeing that autocracy-creep is widely acknowledged (Cianetti et al 2021, Szelényi 2022, Tilles 2021). Several authors enumerate (re-)election violations, especially in Hungary (Scheppele 2022b, Mares and Young 2019, Magyar and Madlovics 2022), but rarely address them as a matter analytically distinct from the rise of autocratic populism. The question of election integrity in the context of the global strongmen moment is treated defensively: while irregularities are recognised, the tacit belief that Fidesz and PiS command majorities is puzzlingly persistent. There are several reasons for this state of affairs.

First, the two parties are indeed popular with voters, owing to ideational proclivities, but also their effectiveness. Naturally, the ability to spread their messages and deliver on their promises may be facilitated by institutional capture (Scheppele 2022a). Beyond programmatic appeal, some of this attractiveness is down to clientelism or even diffuse forms of vote-buying through welfare programmes such as Workfare in Hungary and the 500+ child benefits in Poland. Regardless, many authors matter-of-factly assume that voter support encompasses majorities.

Second, the (strong)men of the people claim is not merely a rhetorical hoax. Fidesz and PiS are exceptional campaigners. They have been successful because they articulate their messages aptly and address voters who have felt forgotten during the age of socio-economic transition. They target their audiences over time and woo the non-urban electorate whose language the liberals never learned to speak. Many observers see this as the populists’ natural and critical advantage that is merely amplified by some of the transgressions enumerated in this paper.

Third, the opposition has often appeared feeble, which has hurt its chances at the ballot (Tilles et al 2018). Liberals unseated by Fidesz and PiS struggled to acknowledge the epochal change. They were slow to adjust or offer alternatives, other than anti-government messages awash with warnings of democracy’s imminent demise. The relative absence of a meaningful generational turnover in their ranks has helped to solidify the view of ncient elites as establishment that remains out-of-touch. This too has made it easier for scholars to overlook the substantive obstacles they face (Grzymala-Busse 2017, Ilonszki et al 2021, Kelemen 2017, Solska 2020).

Fourth, scholars and practitioners alike have tended to underappreciate the role of captured media in the two countries. While decrying the absence of ‘internal balance’ in the public broadcasters’ programming, some observers have naively treated ‘external balance’ as a saving grace. Others show complacency in the face of arguments that national conservative viewpoints are underserved by private media, said to exhibit a naturally occurring (neo)liberal bias. Finally, many see the Internet as a rising counterweight to traditional outlets that spread government propaganda. While apologists are more common in the Polish context, many authors have been oddly forgiving of the extent to which the media have manipulated the hearts and minds.

Finally, when it comes to election integrity in the age of populism, it is ‘election denialism’, or allegations of fraud waged by sore populist losers, that stole the show from actual challenges to free and fair ballots in backsliding regimes (Norris 2017). Indeed, charges of electoral malpractice have become a page from the national populist playbook at least since Donald Trumps’ lost re-election bid in 2020 (Fiedler 2021). Accordingly, it is the populist attempts to question the credibility of sound contests that have often preoccupied scholarly and public attention rather than the seemingly foggy irregularities witnessed at Fidesz and PiS’s re-elections.

In sum, there is recognition of something rotten in the Hungarian and Polish national populists’ repeated victories. But few authors call a spade a spade, or go past the axiom of ‘competitive but unfair’. The fact that voting proceeds peacefully and is well administered has helped to prop up the foundational myth of illiberal revolutions: that majorities stand behind them. This may be also in part because students of populism fall into the analytical trap of treating elections as a provenance of democracy, rather than exercises in the rule of law. Unwittingly, some lend credence to the populist trick of pitting the two against one another, thus propagating the majoritarian legitimacy fallacy. But as students of democracy surely know, government by the people needs the rule of law for majorities to form and express their will credibly. And rule of law needs democracy to ensure the legitimacy of legislation, lest it deteriorate into rule by law.

In the context of Hungary and Poland, this raises the question: why do backsliding regimes continue to pursue legitimacy through the ballot?

Keep reading here.


Notes

[1] Decrying progressivism, for instance, PiS intellectual guru Zdzisław Krasnodębski argued that despite the war in Ukraine, it is the ‘west [that] presents greater danger to Poland’s sovereignty than the east’ (Domański 2022).

[2] Hungarian and Polish terms for the ‘rule of law’ connote a constitutionalist tradition and translate more readily into the German Rechtsstaatlichkeit.

[3] PiS won the plurality of votes in the 2023 parliamentary elections, but failed to form a government.

[4] While this claim pertains mainly to the literature that focuses on Hungary and Poland, treatment of election integrity in writings that advance ‘mid-range’ conceptions of democracy is limited: e.g. the comparative authoritarianism turn broadly describes ballots as ‘competitive but unfair’, paying little attention to their quality and/or the differences among the regimes (Levitsky and Way 2010, 2020).

[5] Both parties won their first ballots on more moderate platforms than they espoused in office (Sadurski 2019).

[6] The belief that majorities are firm allowed some authors to blame the people for the decline of democracy in the two countries, rather than the power abusers in office (Weiler 2020).


About the Author

Dr. Stefan Szwed is Marie Curie Fellow at Columbia University and Ca’Foscari University of Venice, as well as Visiting Fellow at the Real Instituto Elcano (Madrid). The author would like to thank the re:constitution team in Berlin for their generous and unfailing support, as well as the European University Institute’s School of Transnational Governance in Florence and International IDEA in Stockholm as host institutions.


Citation: Stefan Szwed, Choice Illusions: Through ‘Rule by Law’ to ‘Electoral Capture’ in Hungary and Poland?, in: TRAFO – Blog for Transregional Research, 14.04.2026, https://trafo.hypotheses.org/65061


OpenEdition suggests that you cite this post as follows:
Forum Transregionale Studien (April 14, 2026). Choice Illusions: Through ‘Rule by Law’ to ‘Electoral Capture’ in Hungary and Poland? TRAFO – Blog for Transregional Research. Retrieved May 11, 2026 from https://doi.org/10.58079/1629c


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