By PATRICK KINGSLEY
The credibility of the judges who oversaw Turkey’s referendum last week is being called into question because most of them were hastily appointed when President Recep Tayyip Erdogan purged the judiciary after last summer’s failed coup.
A narrow majority of Turks voted to change the Constitution on April 16 in a poll that formally granted vast new powers to the office of the Turkish presidency beginning in 2019 and informally validated the already-authoritarian mind-set of Mr. Erdogan.
But the legitimacy of Mr. Erdogan’s victory has been tainted by accusations of voter fraud at polling stations across the country — and by an odd series of erratic decisions on the day of the vote by the judges who head the electoral commission. Eight of the 11 judges on the panel had been recently replaced.
The opposition has questioned the results of thousands of ballot boxes, after videos showed evidence of ballot-box stuffing and voter intimidation on the day of the vote, and opposition campaigners faced prolonged intimidation during the campaign that preceded it. But the single biggest controversy was the last-minute decision by the electoral commission to override electoral law and allow officials to count what the opposition says are millions of votes that lacked an official stamp proving their authenticity.
The decision has cast a shadow over the commission, known by its Turkish initials, Y.S.K. It was once one of Turkey’s most trusted institutions, but it now faces accusations of inconsistency, incompetence and bias.
The Y.S.K. board consists of 11 voting members selected from the judiciary, and a quartet of observers representing each of Turkey’s four largest political parties, who can participate in the board’s discussions but cannot cast votes. “You are not a referee. You are taking sides,” Osman Baydemir, an opposition lawmaker, said last week in a speech that was aimed at the judges.
Most of the members of the Y.S.K. board were appointed under controversial circumstances last September, when several thousand jurists accused of links to the group that the government accuses of orchestrating a failed coup were unseated. Three members of the Y.S.K. board were fired during this crackdown. Five other members left their posts earlier in the year, at the end of their terms, but had not yet been replaced.
Eight new members were then appointed by a separate judicial body that was itself reconstituted in the weeks after the coup, as Mr. Erdogan’s government sought to reassert its grip on state institutions.
“The fact that eight of the 11 judges on the board were appointed during a crackdown on the judiciary, and amid such an environment of fear, raises questions about their neutrality and their willingness to vote against the government,” said Koray Caliskan, a politics professor at Bogazici University in Istanbul.
New details have now emerged about the chaotic way the board made decisions on the day of the vote, after interviews with three of the four observers who were present throughout their deliberations.
Shortly before 6 a.m., the board sent a text message to election officials reminding them that all ballots must be validated by an official stamp. At 10 a.m., two hours after voting began, they issued a statement with the same conclusion, with the clarification that the stamp could be placed on either the front or back of the ballot.
Yet just hours later, in the same room on the fourth floor of the commission’s headquarters in Ankara, the same judges made a U-turn that the opposition says has rendered it impossible to verify the results of the contested election. At 4:10 p.m. — with counting already underway in eastern Turkey and 50 minutes before the polls would close in populous western Turkey — Recep Ozer, the observer representing Mr. Erdogan’s party, asked the board to retroactively allow election officials to count unstamped ballots.
He was in such a rush that he had no time to prepare his request on a computer. Instead, he jotted it down by hand and presented the handwritten document to the judges.
Kursat Turker Ercan, the representative of a far-right nationalist party that backed the referendum, said little. But Hadimi Yakupoglu and Mehmet Tiryaki, the representatives of the two largest opposition parties in Parliament, were shocked. It was “unbelievable,” Mr. Yakupoglu said, that such a move would come so late in the day. “It’s so dangerous,” Mr. Yakupoglu remembers telling the judges, as they debated Mr. Ozer’s proposal. “We can’t trust the result of the election after this.”
Mr. Yakupoglu was concerned not only that the proposal would break the law or that its timing would undermine the credibility of a respected Turkish institution. Just as significantly, it would make it impossible to know which unstamped ballots had been added fraudulently and which by mistake.
“With this decision,” Mr. Tiryaki remembers saying, “we will never be able to know if papers were brought from the outside and stuffed into the ballot boxes.”
As the clock ticked on, Mr. Ozer denied there was a significant risk of fraud. Instead, he said he had information that thousands of legitimate voters had innocently used invalid ballots because inexperienced election officials did not realize the ballots needed to be stamped, or had not had time to do so. Should these voters, he asked the judges, be denied their democratic right because of someone else’s administrative error?
Asked why this was never as big an issue in previous polls, Mr. Ozer said that the presiding officers at each polling station were likely to have been unusually inexperienced this year because of recent changes in the way they were appointed. Additionally, ballot papers were delivered to polling stations later than usual for security reasons, meaning that officials had less time to stamp them, he said. As a compromise, Mr. Tiryaki and Mr. Yakupoglu suggested that the situation could be reviewed on a box-by-box basis during the appeals process that follows the election. But Mr. Ozer insisted the decision needed to be made on a national basis, then and there, while the judges were still in the dark about who had won. “What is fundamental here: The counting was not over, and the Y.S.K. members didn’t know about any result from any ballot box,” Mr. Ozer said in a recent interview in his office.
Despite the significance and tense nature of the debate, all parties said it was conducted in a surprisingly calm manner. Turkey’s political discourse is increasingly toxic, but the four observers have learned to get along after working for so long in such proximity. Their offices are within a few yards of one another, and they sometimes share lunch together.
In the end, about 4:50 p.m., 10 minutes before voting closed in western Turkey, the 11 judges voted unanimously in Mr. Ozer’s favor. Shortly after 5 p.m., with counting almost finished in eastern Turkey, their decision was sent via text message to the officials presiding over the 166,000 ballot boxes. Three hours later, the president claimed victory. But the manner in which it was achieved has — in the eyes of Mr. Erdogan’s critics — damaged both his legitimacy and that of the electoral commission.
“The saddest thing about all this is that the Y.S.K. used to be the most trusted institution in Turkey,” Mr. Tiryaki said. “But this decision shakes that trust.”