The previous proposals to the Electoral Code include some debatable, or even threatening provisions that require a broad expert and parliamentary discussion. The deputy factions and groups shall work on the basis of transparency and openness, and engage the stakeholders, in order to timely inform about the primary changes to the Code, and avoid any possible risks for democratic elections.
To date, people’s deputies of Ukraine have been discussing the draft of comprehensive changes to the Electoral Code, both for local elections, and for regulating the national elections, for activities of the Central Election Commission and the State Voters Register, as well as for the process of withdrawal of local council deputies.
Many amendments to the Electoral Code developed by the MPs from the dedicated Committee on the Organization of State Power, Local Self-Governance, Regional Development and Urban Planning intend to eliminate the shortcomings and gaps in the law. Specifically, the Committee took into account the progressive positions of the CEC on the unification and simplification of electoral procedures, on better clarification of requirements to fill the electoral documents and to the vote count procedures, on certain aspects for establishment and operations of election commissions, on submission of documents by candidates, a.o. An attempt has been made to clearly regulate the parallel running of candidates at local elections. In general, people’s deputies of Ukraine and the CEC invested huge effort to eliminate the gaps and the unbalanced provisions of the Electoral Code, and to enhance the quality of procedures.
At the same time, some politically most resonant initiatives include introduction of changes to some chapters of the Electoral Code on local elections. In terms of complying with the democratic election standards, some amendments are problematic.
According to OPORA, the proposed changes eliminate the barriers for the citizens of Ukraine to exercise their suffrage, and pose new challenges for democratic elections and their compliance with the electoral process.
Thus, the draft amendments fail to solve the issue with the lack of the institute of self-nomination of city council deputies in big cities (over 90,000), and also it prevents the running for candidacy of deputies from a much higher number of cities (15,000 and above). The possibility may only be provided by self-nomination of lists of independent candidates.
Moreover, for the cities with the proportionate electoral system, it is suggested to set the amount of a monetary deposit of double salary per 10,000 voters. The current version of the Code implies that political parties deposit fourfold of the salary amount per 10,000 voters. Therefore, the monetary deposit for local organizations of political parties has been reduced twofold only, still remaining excessive. In big cities, the deposit size will limit the possibilities of local party organizations to nominate their candidates for the lack of funds, and because of political competition on the grounds.
It is also suggested to introduce the deposit for self-nominated candidates and political party organizations running for elections of deputies to village councils, township councils, and city councils (under 15,000 voters), under the majoritarian electoral system in multi-mandate constituencies.
For the self-nominated candidates, the deposit will amount to 1.5 fold of minimum wage, while a local political party organization shall deposit twofold minimum wage per each candidate in a multi-mandate majoritarian constituency. In our opinion, the monetary deposit on the lowest community level would be reasonable to increase or originally introduce only in the event of actual threats for electoral process, due to abuse of passive voting rights.
It shall additionally be noted that the draft amendments suggest increasing the number of local council deputies in small communities (min. 22 deputies for the smallest hromadas). When combined with the mandatory monetary deposit for local organizations, the provision shall be a large financial burden for their participation in elections on a basic level of local self-government.
The draft amendments suggest introducing the right to submit the candidacy to TECs and PECs that can be used by local party organizations signing the cooperation agreement with a deputy group in the Verkhovna Rada of Ukraine. A deputy group is an alliance of individual MPs, rather than a party faction, winning in the previous elections and entitled to run for all coming electoral campaigns. Empowering all the unstable, nonpartisan and ideologically immature deputy groups with the right to influence the composition of election commission will undermine the logic behind the election administration process. Besides, it poses risks for mass political and corrupt abuse.
Moreover, initiators of amendments to the Electoral Code suggest resuming the procedure when the parties’ governing bodies approve candidates for positions of city mayors and for lists of candidates from local organizations. It will be the mandatory precondition to register the voting list and the candidates. According to OPORA, the suggested provision will affect the still weak practices of internal party democracy, and will pose additional risks of the centralized political corruption.
In addition, it is proposed to demotivate parties to create their local organizations by empowering oblast organizations to nominate their candidates at local elections in cities. Oblast organizations of political parties will be able to nominate their candidates for members of TECs and PECs, instead of city and district organizations, if the latter are not available within the party structure. It would result in the centralization of internal party processes, and refusal of political parties to create and develop their local organizations.
No less important is the task to improve the general provisions of Electoral Code, chapters on elections of the people’s deputies of Ukraine, and on the President of Ukraine. However, the parliament will have to allocate sufficient time therefor, and provide for the fully-featured discussion on the level of MPs, national and international experts.
OPORA hereby reiterates the importance of abiding by the rights of electoral subjects to appeal against the decisions, actions, or inactivity of election commissions, or against other breaches of electoral law. Specifically, the suggested amendments reduce the terms for possible appeals against decisions, actions, or inactivity of election commissions from 5 to 2 days from the day of the event or the decision making. The draft obliges the candidates to object only to the violations committed by election commissions connected with the electoral district or region where it had been registered.
It is important to prevent any deterioration of legal certainty for the grounds to reject the candidate’s registration, and to prevent any complications for the candidate’s registration in this respect. In particular, the draft amendments suggest the possibility for election commissions to reject candidate’s registration due to lack of data in the documents stipulated by the Code. Legislative proposals fail to specifically list the data which absence in the candidate’s documents disables the registration, thus leaving a broad field for interpretations by election commissions.
The Parliament shall take a comprehensive approach to consider the proposals on improving the process of composition and operations of election commissions. Any hasty decisions shall be avoided, to prevent any disruption for election administration system. The draft amendments provide for the possibility to establish secretariats for district and territorial election commissions, upon the CEC decision, and on the basis of its territorial offices. The new proposals to the Code also provide for the possibility to include candidates for DECs and PECs positions of heads, deputy heads, and secretaries upon nomination by the CEC territorial offices.
OPORA supports the consistent position of the CEC on professionalization of election commissions. However, the systemic changes cannot be adopted without a fully featured discussion on the parliamentary level, and with no simulation for all consequences certain proposals may cause for democratic nature of elections, and for the due balance of the election administration system.
The Electoral Code shall keep the previously approved standards for citizens’ access to information on elections, such as in an open data format. At the same time, the CEC shall receive the realistic funding and the necessary time to expand the list of open electoral data accessible to the public.
People’s deputies are now discussing an initiative to assign to the CEC the powers to run pilot projects with new technologies implemented (such as machine assisted voting). OPORA does support the idea to assign the CEC with powers to implement the pilot projects, but highlights the importance of staying committed to the legitimacy of all electoral procedures. The parameters of pilot projects shall not substitute the legitimate course of the voting process and vote count, while the by-laws shall not replace the Electoral Code.
Within the electoral reform, it is important to enhance the standards for financial transparency of election funds. Thus, certain provisions do reduce the volume of data about individuals contributing to election funds. According to OPORA, the initiatives shall be rejected, while the reform of laws on party and election finance shall continue on the basis of internationally recognized standards and recommendations.
It is important to avoid the unjustified sanctions for heads of political parties, their local organizations, candidates, or heads of local organizations in case of detected facts of submitting falsified application from citizens giving their consent to act as election commission members, as proxies, or official observers. The sanctions shall be applied to specific actors in fault, rather than demotivate political and civil society leaders from undertaking responsibility in the election process. On the other hand, the problem of abuse of powers during elections can be tackled by introducing comprehensive, proportionate, and effective sanctions, proposed in the joint recommendations of Ukrainian law-enforcement bodies and OPORA since 2017.
It shall be specifically emphasized that the issue of improving the proportionate electoral system, with voting for electoral lists at the parliamentary elections, calls for a more detailed discussion. The initiatives suggested to date, on reducing the number of constituencies and changing other parameters of electoral system at the parliamentary elections, have not been discussed, and shall not be adopted within the same package of local elections rules.