Changing Horses In The Mid-Stream, Or How “Electoral Legislation Was Improved”? | VoxUkraine

Changing Horses In The Mid-Stream, Or How “Electoral Legislation Was Improved”?

Photo: depositphotos / palinchak
13 August 2020

These changes fundamentally change the electoral rules that will apply in these elections. While some of the changes were critical to ensuring citizens’ suffrage (such as lowering bail), several others violate international election standards.

Thus, the Code of Good Practice in Electoral Matters of the Venice Commission of the Council of Europe* does not allow changes in the basic provisions of electoral legislation less than a year before the election. The purpose of this norm is equal opportunities for awareness of candidates. If the ruling team, which plans to change the election rules, understands well what to prepare for, then for the election campaign of non-governmental forces, such sudden changes can cause significant damage.

Party monopoly

Now parties are actually becoming monopolists in nominating candidates at the local level. The most important approved change is the reduction of the threshold for the application of the proportional electoral system from 90 thousand voters to 10 thousand. Now self-nomination is possible only in small communities (up to 10 thousand voters). European best practice, embodied in the standards of the Council of Europe and the OSCE**, stipulates that everyone should have the right to stand as a candidate, i.e. to run in local elections independently. Despite public criticism, 273 deputies supported the norm of lowering the threshold for self-nomination.

Another innovation is the party’s additional ability to recall a deputy. Now, in case of inconsistency of the deputy’s activity with the policy of the party from which he was elected a deputy or the program of the party, it can recall him. This increases the candidate’s dependence on the party. The Venice Commission has repeatedly  called on us to cancel the possibility of recalling a deputy of local councils (imperative mandate) introduced  in 2015. Instead, the new law strengthened it.

The local self-government body should, first, be accountable to the community that elected it and guided by its interests. Belonging to a party makes a local elected official dependent primarily on the party leadership. In small communities, the need to ensure the proper living of the community outweighs the need to ensure the party structuring of local political life.

“Closed” open lists

The plan to reform the electoral law, which introduced open lists, provided that voters would be able to vote for individual candidates on the list. This will affect their numbers on the list and, consequently, their chances of getting on the board. Before the vote, the parties will form their order of candidates on the list. If as a result of voting the deputy has gained the necessary share of votes (so-called, electoral quota) he moves up the list.

The electoral quota is a fraction of the division of the number of votes cast for the passing parties (who have overcome the 5% barrier) by the number of seats in the local council MINUS guaranteed first numbers of passing parties. In other words, it is the “price” of one mandate in the votes of voters.

The party puts its candidates on the regional list in a certain order, which is nominated in the constituency (into which the territory of communities / districts / regions is divided).

In order to change this order and rise higher on the regional list, the candidate must gain a certain number of votes, overcoming the internal party barrier, namely: 25% of the electoral quota.

The previous Electoral Code stipulated that 25% of the electoral quota should be scored to move up the list. This is a very high barrier that is almost impossible for candidates to overcome. Accordingly, it will be difficult for voters to influence the order of candidates on the lists, and this order will largely depend only on the party leadership. In fact, this rule makes the lists “closed”. When considering possible changes to the law, there was a discussion about reducing this barrier from 25 to 5%. Such recommendations were also given by the profile committee.  However, parliamentarians did not support this change.

Parliament has also decided to introduce a guaranteed number one on the electoral rolls. The candidate from the party with the first number will not be nominated in the regional lists in the constituencies, and if the party overcomes the 5% barrier, will automatically get to the local council.

Powers of the CEC and innovations

The changes allow for the widespread use of innovative technologies in the electoral process. The CEC is allowed to determine individual polling stations at its own discretion and without regulation by a separate law and to conduct pilot projects and experiments using such technologies there.

One of the possible technologies is machine voting. The practice of introducing such a vote, even in stable democracies, is ambiguous and carries significant risks. Because of these risks and low confidence, western democracies, such as France, Finland, etc., are abandoning it.

In addition, the changes introduce a system of territorial representations of the CEC, which will partially assume the powers of election commissions. According to the authors of the changes, the creation of such offices will not happen soon. There are two points to consider regarding this innovation. The formation of territorial representations of the CEC, on the one hand, will increase the professionalism of election officials, but, on the other hand, carries the risk of abuse of administrative resources (which such representations will constitute for the current government).

Formation of election commissions

The procedure for forming election commissions was changed. Election commissions will now include representatives of non-parliamentary political parties that have entered into agreements with parliamentary groups. Previously, only parliamentary factions, as much more legally stable entities, were guaranteed the right to be represented in commissions.

This change entails two shortcomings. The first is that parliamentary groups formed of majoritarian in parliament, in contrast to parliamentary factions formed on the basis of elected parties, can be constantly transformed for political purposes. The legislation does not set such detailed requirements for the formation and functioning of deputy groups as for parliamentary factions. The second is the unknown legal nature of agreements that non-parliamentary parties may enter with parliamentary groups. In addition, it can lead to “trade” in seats on commissions.

Real improvements

One of the few positive changes was the 9-fold reduction in the election bail. Prior to that, its size was unprecedentedly high. No European country has had such a bail in local elections. For example, for the mayor of Kyiv, it amounted to about UAH 4 million. (which is more than the bail of a presidential candidate). For example, the bail for the mayor of London – only about 10 thousand dollars.

The second positive innovation is the new form of the bulletin. Now the field for the number that the voter will indicate in support of an individual candidate is right next to the party list, and not at the bottom, as it was before. With the previous ballot format, it was less likely that a voter would “go down” to the ballot in order to support a single candidate in addition to the party list.

 Other changes

Another innovation is the abolition of the election of starostas  for  village  and settlements. Now they will be elected by the local council. Until now, the starostas of villages and settlements that were part of the amalgamated territorial communities (hromadas) were elected by the voters of the  starosta’s districts formed on the basis of such settlements and villages.

Possibilities for simultaneous voting have also been expanded. Now the candidate for the head of the community (hromada) can run for the relevant local council. And a candidate for the head of the community (with less than 75 thousand voters) can also run for the district or regional council at the same time. A candidate for local council deputies may run for no more than two levels of councils (i.e before the district or regional council).

Criminal and administrative liability for election offenses has been strengthened.

Instead of conclusions

As always, the issue of election rules is a hot subject of political struggle. These changes are no exception. At the same time, because of decentralization, the authority over local government resources has increased significantly. Accordingly, rates in local elections have increased. The strengthening of the role of parties in local councils entails the risk of shifting the political acuity we see at the national level to the community level.

Finally, this partisanship of local councils reduces the opportunities for renewal of political elites at the local level. Independent and progressive candidates will be forced to “bend” to political parties capable of nominating them. For many of them, this will be an unacceptable scenario and, consequently, will force them to give up running.

The main provisions of the election legislation, in particular those concerning the electoral system, the composition of election commissions and the delimitation of polling stations, should not be open for change less than a year before the election II.

** Clause 7.5 of the 1990 CSCE Copenhagen Document, which proclaims “the right of citizens to run for political or public office individually or as representatives of political parties or organizations without discrimination”


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