Opora

In November 2015, elections were stolen from the citizens of Kyiv oblast. “How elections could have been stolen?” – you'd ask. They were held, of course, but mandates were given not to the candidates who won them under this electoral system.

What are chances to become an MP, when it's clear from the official tabulation that voters didn't choose you? According to Kyiv Oblast Election Commission acting in 2015, there is such a possibility. The thing is, a skillful person should distribute mandates. Here is another riddle. Can a party, which overcame the electoral threshold, receive zero mandates? The answer lies in the results of elections to Vasylkiv Raion Council: in a land of unlimited opportunities – Ukraine – everything is possible.

However, we would like to mention some facts before telling you the whole story. They are important for understanding of a miracle happening from time to time on local elections in Ukraine.

Restricted public access to the data on local elections is a precious trove for a fraud. Website of the CEC gives only the list of winners in local campaigns and total number of votes they received in support. As long as there is little data available for journalists and the public, they can’t check whether the election outcomes is tabulated correctly. Information at the level of precincts and districts is available only for individuals directly involved in an election process. Another option to access such information is to dig the archives when the election ends, provided that all the documents were painstakingly collected and sent to archives. As you can see, the truth about election outcomes can be vanished from accessible sources right after the election.

No systematical oversight over activities of TECs gives greater chances to hide real election outcomes. The CEC and courts often act like sleeping angels, not able or not authorized to conjure out malicious TEC members. Prompt response to violations is vitally important for a fair election.

Despite such inauspicious conditions, we decided to assess some councils and check whether the electoral system is used in an unbiased way. You can't hide dirt from a pig, and violations from us. So let our story begin.

A miracle in Kyiv Oblast Council: transformation of the elected

Distribution of mandates on elections to oblast, city, and raion councils, held under the proportional system, is made in several stages. Firstly election administration bodies determine which parties received 5% of votes or more for all their candidates. These very parties shall receive mandates.

Then, the votes given for all these parties are divided into the number of mandates in a council to determine the electoral quota. The number of votes given for each party is divided into the electoral quota to determine how many mandates it receives. The whole number received from such division is the quantity of mandates a party receives. Remainders are used to determine which party receives vacant mandates. If a party has the biggest remainder after division, it receives an additional mandate. The procedure is repeated until all the mandates are distributed.

However, the formula for distribution of mandates is quite difficult for an unprepared audience to understand. It's difficult difficult to follow the process, if you are not a competent and motivated candidate, which has all the data on hands and is able to verify it.

After prolong calculation of ballots at precincts in Kyiv oblast, “wonder-workers” from oblast TEC did their job and determined the number of mandates for each of 8 parties which received 5% of votes or more (PPB, AUU “Batkivshchyna”, Radical Party, “Samopomich”, AUU “Svoboda”, UKROP, Opposition Bloc and Nash Krai).

However, despite Kyiv oblast TEC had calculated the electoral quota correctly (7,124 votes), it illegitimately gave one extra mandate to both “Samopomich” Union and Opposition Bloc.

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There were no manipulations with ballot papers, re-writing of precinct protocols, or substitution of documents. What the TEC did was wrong distribution of mandates: “Samopomich” was supposed to receive 8 mandates based on the integer and one for the reminder, but received ten mandates. Opposition Bloc received 5 mandates based on the integer and wasn't supposed to get an additional mandate based on the remainder, but received it thanks to TEC's decision.

One man's gain is another man's loss. As a result, AUU “Batkivshchyna” and UKROP party didn't received their additional mandates. Although the voters chose Marianna Rymarenko from the “Batkivshchyna” (Bila Tserkva) and Nesterov Denys from UKROP (Horlivka, Donetsk oblast), their legally gained mandates were given to Bukovskyi Roman from the Opposition Bloc (Vyshhorod) and Openiok Yurii, the citizen of Kyiv from “Samopomich”.

A fairytale about transformation of Kyiv Oblast Council members had a chance for a happy end.

AUU “Batkivshchyna” challenged TEC decision in District Administrative Court of Kyiv, but had lost. However, the court decision revealed that the TEC calculated mandates for parties using some computer program, developed by its own programmer (!), which is not established by any existing law . According to the court, Head of the TEC emphasized on mathematic errors in calculations made by the programmer, but the commission voted for the wrong decision. The court refused the AUU “Batkivshchyna” based on a formal, even casuistic, reasons. However, it had agreed that the mandates were distributed illegitimately.

Candidate from the electoral list of AUU “Svoboda” Maksym Zapaskin rushed to help the “losers” from AUU “Batkivshchyna” and UKROP, and repeatedly appealed to the court demanding cancellation of TEC decision distributing mandates illegitimately.

The Representatives of the Opposition Bloc have also joined the plot demanding from the court to reject the challenge from “Svoboda” member. Here is how the court reasoned its decision: only candidates can challenge TEC decisions, and representative of AUU “Svoboda” has already became an elected councilor. The court didn't fulfill the demand of Opposition Bloc, which had received an extra seat in the council, but it had also refused to reconsider decision of the TEC concerning the cancellation of illegitimate distribution.

It is considered improper to criticize court decisions in a civilized world, but it's really difficult to refrain.

According to the court, it's impossible to correct the protocol on election outcomes because the law doesn't provide such an opportunity. Following this logic, one may write any number in the protocol and insist that it can't be changed for the correct one.

Representatives of the “Samopomich” Union, which were against the challenge from AUU “Batkivshchyna” in the beginning, have also challenged the decision of oblast TEC concerning the distribution of mandates. However, the court didn't manage to consider it, because the party recalled it immediately, referring to a rejection of a similar challenge from “Svoboda” member.

There was no happy ending in this story. The district court had rejected all the challenges demanding to correct the distribution of mandates, and the case did not make it to the court of appeal. Representatives of the AUU “Svoboda” and Petro Poroshenko Bloc, which appealed against the previous decisions, have abandoned their claims.

Thus, TEC and the court turned pumpkin into a carriage, and the carriage, elected by voters, became a wrinkled pumpkin forever.

According to a plaintiff from the “Svoboda” Maksym Zapaskin, who currently represents this party in Kyiv Oblast Council, the courts closed their eyes on vivid facts three years ago. “I suppose they misused the administrative resource. The decision was indeed ridiculous. I thought such things were left behind in 2012, but they still happen,” – Mr. Zapaskin emphasized. According to the councilor, his political party refused to appeal against the court decision because Kyiv Oblast Council was holding its constituent assembly. He believes it is impossible to correct the distribution of mandates among parties once the council gains its authority.

Representative of AUU “Svoboda” doesn't believe there could be a conspiracy among political parties in 2015, which had wrongly lost or gained their mandates. “Everyone was hold on this mandate then. Now, “Samopomich” has partially shifted to the PPB. If AUU “Batkivshchyna” had received more seats then, it would have been more confident in the oblast counci now,” – the member of oblast council explained political consequences of illegitimate decision taken by the TEC.

Another member of Kyiv Oblast Council, member of “Samopomich” Union Roman Tytykalo, witnessed the situation by himself. Representative of a party, which received an extra seat in the council, had refrained from giving an explicit assessment to TEC decision. “I find it difficult to comment on the accuracy of TEC decision. I am a jurist, not mathematician. However, the formula is not clear and transparent enough,” – he said.

According to Mr. Roman, each election commissions used computer programs, developed on their own initiative, or Excel to calculate mandates. Therefore, the existing problems are methodological, and one more time prove that members of election commissions should pass trainings. “It seemed that each team was aimed at its own result, and the political dialog started only after they gathered in local self-government bodies,” – Roman Tykalo said about pre-electoral moods in Kyiv oblast.

Hardly someone wants to dig in the past now, almost 4 years after regular local elections. Authors of this article tried hard to talk about the situation with representatives of AUU “Batkivshchyna” and UKROP, who had lost their mandates in oblast councils, but they didn't want or didn't have a chance to give any comments.

The continuation of the fairy tale is here.

Authors: Oleksandr Kliuzhev, Vasyl Kosyi, Robert Lorian, Yurii Lisovskyi

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