On July, 9, 2020, the Verkhovna Rada Committee on the Organization of State Power, Regional Development, Local Self-Government, and Urban Planning completed the process of preparing the draft Law of Ukraine No 3485 for the second reading. The draft law introduces substantial changes to the Electoral Code, the Code on Administrative Offense, the Criminal Code, the Laws of Ukraine “On Central Election Commission” and “On the State Voter Registry.”
According to OPORA, the proposals developed by the parliamentary committee include both progressive and urgent changes, and also the risky novations. The committee shows a consistent position in supporting initiatives to secure voting rights for citizens and to counteract electoral fraud. However, there is an expressed political motivation coming from certain MPs to provide for favorable conditions for influential parties at local elections. Such motivation was particularly evident during the discussion on the application of the proportional electoral system, the internal barrier to placing candidates at the beginning of the party's electoral list, the form of the ballot paper, and the application of gender quotas when nominating candidates.
Comprehensive changes are made immediately before the election process, which indicates that the parliament has not complied with the principle of stability of election legislation. This will require the people's deputies of Ukraine to take a balanced approach to the adoption of ambiguous proposals to the Electoral Code.
The dedicated committee, as in the previous stages of the electoral reform, established a Working Group to prepare the draft law for the second reading engaging independent experts, the public, and the CEC. Unfortunately, the Committee's inclusive approach has only been partially implemented. 40% of the 4,000 amendments submitted by MPs were considered within the intersectoral Working Group; other amendments were processed by the Committee and its subcommittee without the participation of the civil society and experts in a public meeting mode. In the future, the Committee should clearly define the procedure for joint work with stakeholders to prevent non-public consideration of resonant changes to the legislation in the run-up to the election process.
Among the positive improvements in the electoral law to be supported by the people's deputies of Ukraine, OPORA includes the following:
- Making comprehensive amendments to the Criminal Code of Ukraine, the Code of Administrative Offenses in order to ensure the inescapable punishment for electoral fraud, and to introduce the proportionate sanctions therefor.
The amendments to the legislation developed by the law enforcement agencies of Ukraine and OPORA have been awaiting consideration since 2017, but thanks to the political will of the parliament of the 9th convocation, finally can they be adopted.
The proposals, if supported by parliament, will ensure an appropriate balance between the punishment for electoral fraud and its prevention, create favorable conditions for the investigation of violations, as well as the cooperation of voters with the investigation.
- A drastic reduction in the amount of cash collateral at local council elections under the proportional electoral system and at mayoral elections, which in the current version of the Electoral Code is a threat to the competitiveness of the electoral process.
The current Electoral Code provides for the depositing the cash collateral by local party organizations and candidates for mayors at the rate of 4 times the minimum wage per 10,000 voters. Instead, after the changes are approved, the cash deposit could be reduced 9 times. For example, the current version of the Code provides for a candidate for the position of Kyiv mayor to deposit UAH 4.1 mln; the new changes reduce the amount for such a candidate to UAH 460,000.
The introduction of an adequate cash deposit in local elections is critical to the competitiveness of local campaigns. Its reduction is especially necessary in the context of the deputies' intentions to extend the proportional electoral system to a larger number of territorial communities and thus limit the possibility for self-nomination. The obligation of local leaders to run for councils exclusively from parties required to make excessive contributions will create non-competitive advantages for financial and political forces, and limit local campaign participants.
- Improving the form of the ballot in elections under the proportional system in order to provide conditions for personalized voting.
Following the difficult debate, members of the Verkhovna Rada Committee recommended that the parliament change the form of the ballot, which in the current version of the Electoral Code encourages voters to vote only for the party as a whole, not for its list or a specific candidate. The current Electoral Code stipulates that a voter first votes for the local organization of the party; whereas they could state the number of an individual candidate only after the entire list of other political forces. It is obvious that a significant part of voters will not be informed about the possibility of voting for a candidate from the party and will not find a place to express their will. This problem becomes especially acute in the scarcity of time for the information campaign, and will lead to offsetting the effect of open voter lists.
OPORA welcomes the decision of the people's deputies who are members of the Committee to provide in the form of a ballot paper a space to vote in front of each party, and also a template to indicate the number of a particular candidate from a political force supported by the voter. Improving the form of the ballot will contribute to the personalized voting, and will ensure a real influence of citizens on the promotion of candidates in the electoral lists of parties.
- Reducing the barrier for the promotion of candidates within the electoral list of a political force passing the electoral threshold.
According to the current Electoral Code, in order to place a candidate in the first part of the electoral list, s/he must gain 25% of the electoral quota. Such an excessive requirement will restrict competition between candidates from a party that overcomes the electoral barrier, and weaken the influence of voters on the promotion of political nominees on the electoral list. The decision of the relevant Committee of the Verkhovna Rada of Ukraine to reduce the internal barrier for candidates on the list to 5% of the quota will contribute to achieving the expected results from the introduction of a proportional system with open lists, and deserves parliamentary support.
- Legislative regulation of the procedure for initiating and conducting pilot projects on electronic voting.
OPORA encourages the Committee's decision to abandon the first version of the draft law on the possibility of not applying certain provisions of the Electoral Code in the case of the CEC's implementation of electronic voting projects. The previous approach could destabilize the electoral process by substituting legislative procedures for organization and administration of voting with the CEC bylaws. Instead, the proposed provisions allow the CEC to initiate and conduct pilot projects in the event of the adoption of a special Law. It is also possible to introduce electronic services to facilitate communication between the electoral subjects and the election administration, in which the CEC has already achieved significant success on its own initiative. At the same time, the organization calls on the parliament to bring all sections of the Electoral Code in line with the new approach, avoiding legal uncertainty or ambiguity.
- Keeping a five-day period for judicial appeal against violations, decisions, actions and inaction of election commissions in accordance with the Code of Administrative Offense.
In preparing the draft law for the second reading, the Committee took into account the comments of the expert community on the inexpediency of reducing the time limit for judicial appeal from 5 to 2 days.
Simultaneously with the positive innovations in the Code, OPORA states for the draft law No 3485 some dubious proposals, or even risky for democratic elections. Such possible changes include:
- Application of the proportional electoral system in all territorial communities with the number of voters over 10,000, but not only in large cities of Ukraine (90,000 voters or more).
Changing the electoral system for a significant number of territorial communities in Ukraine immediately before the election contradicts international standards of stability of election legislation and will affect the preparation of potential candidates for future election campaigns. Compared to the current version of the Electoral Code, the possibility of self-nomination of citizens in local elections is significantly limited, which directly contradicts previous recommendations of Ukraine from international organizations and basic documents in the field of election standards (in particular, the OSCE Copenhagen Document). Excessive partisanship of local governments can lead to undesirable polarization of the regions of Ukraine in the election, and to no opportunities for local leaders to be elected by self-nomination. The politicization of local governments, in addition to the electoral system, can also be enhanced by parties controlling their nominees through an undemocratic procedure for recalling local council deputies.
Separately, it shall be mentioned the uncertainty of the initiative to abolish the electivity of elders in terms of predictability of the legislation on the eve of the election.
- The prospect of increasing abuses and cases of political corruption in the system of election administration by granting parliamentary groups the right to influence the formation of election commissions.
The Committee of the Verkhovna Rada of Ukraine did not reject the provisions of the first version of the draft No 3485 on granting the right to submit mandatory candidates to the TECs and PECs of those local party organizations that have concluded a cooperation agreement with the parliamentary group. This innovation distorts the general logic of forming stable election commissions based on the submissions of political parties that are subjects of the election process or of parliamentary parties, since parliamentary groups are not participants in the election process or subjects of the party system development.
The practice of giving parliamentary parties an advantage in the formation of election commissions is aimed at the stable work of the latter, while the introduction of the same advantage for non-ideological and non-partisan associations of deputies is a step in the opposite direction. In addition, a de facto mandatory quota in parliamentary election commissions will limit the opportunities for non-parliamentary parties. Uncertain legal form and amorphous political significance of agreements between local party organizations and parliamentary groups can potentially lead to corruption in the formation of election commissions.
- Expanding the possibility to recall elected officials of local self-government bodies on the people's initiative
Not only does the draft law fails to address the previous criticisms of the undemocratic procedure for recalling deputies and other elected officials (in particular, coming from the Council of Europe and the Venice Commission), but also increases the risks of non-compliance with the principles of free representation. Among other things, the withdrawal of the local council deputy from the faction as a reason for his recall is proposed to be replaced by the termination of membership in the faction. This will strengthen the party leadership's control over elected officials and break the guarantees of their independent activities. These threats are exacerbated by the risks of excessive partisanship of local governments already mentioned in the Statement, in the event of narrowing the possibility of self-nomination in local elections.
- Introduction of a cash deposit for candidates in local council elections who are elected by the majority electoral system.
Amendments to the Electoral Code propose to introduce a cash deposit for elections in small communities, which are held under the majority system. Its amount will be moderate (20% of the minimum wage, which is UAH 800), but the relevance of such collateral is not sufficiently justified. Previous local elections have not been accompanied by serious abuses of passive suffrage by “technical” candidates, but the need to make a deposit may discourage citizens from running in small communities. In addition to the extra costs, potential candidates will face an inexpedient bureaucratic procedure for making such a deposit.
At the same time OPORA calls on the parliament to at least leave unchanged the guarantees of equal representation of men and women in the electoral process. It is important to ensure the effectiveness of the "gender" quota in the electoral lists of parties after all possible technical and legal improvements.
OPORA hopes that the deputies will support the progressive changes in the election legislation and reconsider the ambiguous proposals for holding democratic elections. A balanced approach to the revision of the Electoral Code is the key to holding the upcoming local elections in a competitive environment and on the basis of democratic principles of the electoral process.
The list of advantages and disadvantages of the draft law, which is mentioned in this Statement, is not exhaustive. The full legal analysis of the draft law on the eve of its consideration can be found in the appendix.
An intermediate analysis of the state of development of local party organizations in the context of discussions on changes in the Electoral Code can be found at: https://www.oporaua.org/report/vybory/partii/20153-partizatsiia-mistsevikh-viboriv-ta-spromozhnist-samikh-partii-chi-spivpadaiut-politichni-bazhannia-z-realnistiu
Overview of the draft law No 3485, taking into account the amendments supported by the Committee before the second reading
On May 18, 2020, it was registered in the parliament a draft Law on Amendments to Certain Laws of Ukraine on Improving Electoral Legislation (Reg. No 3485), which, according to the Explanatory Note, declares the elimination of gaps and inconsistencies, correlation of deadlines, simplification of electoral procedures and their unification in order to ensure compliance with international standards of elections and the sustainability of democratic principles and procedures in Ukraine. At the same time, the draft law touched upon a whole list of electoral legal relations. In accordance with international standards, its legal regulation shall not change in the run-up to election.
On June 6, 2020, this draft law was adopted in the first reading, to which MPs submitted about 3,906 amendments, a significant number of which were uniformly duplicating each other. Thus, it was a real challenge to improve the election legislation. Given the short deadlines before adoption and before the end of the current parliamentary session, during which the amendments had to be considered, the common problem of legislative spam has a negative impact on the quality of consideration of the proposed changes. In this regard, as in previous stages of the electoral reform, a Working Group with experts was established to finalize the amendments to the Electoral Code. Despite a pre-scheduled one-day discussion of changes to the Electoral Code, representatives of the subcommittee and experts involved worked for three full working days to review as many amendments as possible, and to broadcast the process online for a wider audience. Due to the excessive number of amendments and the lack of time, the Working Group passed as little as slightly over 1,600 amendments out of their total number. Instead, the rest of the amendments were considered by the subcommittee and the Committee without the involvement of members of the Working Group in the form of a public meeting.
The proposals approved at the meetings of the Committee on 1, 2 and 9 July 2020 include both positive innovations and threatening changes. In particular, the position of experts was supported on the inclusion in the text of the draft law of amendments to the Code of Administrative Offense and the Criminal Code of Ukraine, innovations in terms of changing the electoral address and increasing accessibility during the exercise of voting rights for voters with disabilities. However, the Committee did not take into account the recommendations of experts, in particular on the need to comply with international standards regarding the preservation of the current electoral system in the run-up to elections or to prevent restrictions on conducting elections only twice a year, on procedural aspects of the operations of the CEC and other election commissions.
It is worth noting some shortcomings in the work of the Committee during the consideration of amendments at the meetings on July 1-2. In particular, the comparative table with amendments was not published in advance; in most cases only the numbers of amendments were announced, not their content; certain amendments have not been voted but only underwent technical and legal revisions in connection with the adoption of the previous amendment (for example, this situation arose with regard to voting for Amendment 1309 (setting the 10,000 voters threshold for the application of the electoral system). At the same time, the Committee did not vote for amendments 1310-1312 (which extended the proportional electoral system to district councils); 1354, 1355, 1357 (introduction of two-round voting in mayoral elections, starting from 75,000 voters); 1365, 1366 (specified the moment when the electoral system shall be determined, and prohibited to change it at these elections).
In order to eliminate these shortcomings, it was necessary to review certain decisions of the Committee of July 2, 2020 at a meeting of the Committee on July 9, 2020. Among other things, the agenda included the issue of clarifying the provisions governing the functioning of the administrative bodies of the State Register of Voters and the organization of the preparation for local elections. In particular, the proposals were supported on the remuneration to CEC members, Secretariat staff and Commission offices; on the continuation of operations of the voter register bodies until the establishment of regional representations, as well as the election of district councils under the proportional system; an amendment suggested by P.Bakunets was supported about the two-round vote at elections of municipal territorial communities with the number of voters 75,000 or more.
In view of the above, we will consider the most important innovations that were supported by the Committee before the second reading.
- Local elections, status of deputies of local councils and elected officials of local self-government bodies.
- Election system
Given the consensus between parliamentary factions and groups, it was supported in preparation for the second reading a proposal to expand the application of the proportional electoral system with the so-called “open” lists in territorial communities with the number of voters 10,000 or more. At the same time, such changes contradict international standards and to some extent limit the exercise of passive suffrage. First of all, it is reflected in the fact that the amendments to the draft law supported by the Committee provide for a change in the electoral system shortly before the election, while in accordance with the recommendations of the Venice Commission basic elements of electoral law, including the electoral system, election commissions and constituency boundaries, cannot be reviewed less than a year before the election. Secondly, the wording of the draft law prepared for the second reading, in contrast to the texts of the current Electoral Code and the draft law No 3485 adopted in the first reading, proposes to extend the proportional system, in which candidates can be nominated only on party lists, with no possibility to self-nominate, onto territorial communities with the number of voters 10,000 or more (in the current version, this system is used in cities with the number of voters 90,000 or more), and at the level of district and regional councils. Thus, a ninefold reduction in the threshold of the electoral system four months before election day can significantly limit the exercise of passive suffrage of Ukrainian citizens who planned to stand for elections.
Such a possible innovation of the Electoral Code will aggravate the inconsistency of Ukrainian legislation with the OSCE Copenhagen Document, which stipulates that states must respect the right of citizens to hold political and public office, personally (individually) or through political parties or organizations that shall compete without discrimination (par. 7.5.).
In addition, the two-round voting in the mayoral election will be introduced in cities with 75,000 voters or more (currently, it is 90,000 voters or more).
A rather controversial proposal to be implemented in the run-up to the local elections is the abolition of the electivity od starosta (elder). The committee proposes to appoint the starosta by village, settlement, or city council for the term of its office, upon the proposal of the relevant village, settlement, or city head.
On the positive side, the Electoral Code may set a deadline for announcing the electoral system to be used in a particular territorial community, contingent on the number of voters. In particular, it is proposed to determine the electoral system to regulate elections of deputies of city, village, or settlement council and mayors, based on the number of voters eligible to vote in the relevant local elections, as of the first day of the month preceding the month in which the election process begins for the respective local elections.
- Formation of Election Commissions
Despite criticism from the expert community, including during the Working Group on the Revision of the Electoral Code, the Committee did not take into account amendments aimed at abolishing the possibility of a party that has concluded a cooperation agreement with a parliamentary group to submit mandatory candidacies to TECs and PECs. In its Analysis of the draft amendments to the Electoral Code, OPORA has already pointed out that this proposal violates the proper standards of the formation of election commissions and may lead to widespread unfair political technologies and political corruption. Democratic election standards allow certain advantages of parliamentary parties in the formation of election commissions in order to stabilize the activities of the latter. This practice is based on the assumption that parliamentary parties are more stable and capable, with the political weight of the parties being a criterion for selecting proposals from a large number of political forces. But, we hereby emphasize that it is a question of participation of parties rather than deputy groups in the formation of election commissions. The parliamentary group is an association of individual deputies, not a faction of the political party that won the previous election. When the unstable, non-partisan and ideologically unformed parliamentary groups are given the right to influence the formation of election commissions, it destroys the logic of the election administration process and poses a threat for massive political and corruption abuse.
- Nomination and registration of candidates
The Committee supported the amendment clarifying and supplementing the restrictions on voting in various local elections. It allowed to simultaneously run for the position of a local mayor and a deputy to the local council of the same territorial community.
Despite the fact that the clarifications more clearly regulate the possibility of combining the nomination of candidates for local mayors and deputies of the respective councils, OPORA proposed to reformulate the wording of Part 4 of Art. 216 of the Electoral Code. It suggested to specify not the level of local councils (because the legislation does not contain such a concept), but the types of local elections, given the classification enshrined in Art. 3 of the Electoral Code of Ukraine.
The wording of the draft law adopted in the first reading had the guaranteed mandates for the first positions in the lists of party organizations fixed only nominally, without guarantees to receive them. At the same time, amendments were supported before the second reading tht created real mechanisms to guarantee the first number in the list of the party to have the mandate, in particular by changing the formula of the electoral quota (see more in “Electoral quota”). Along with it, the political consensus on the role of the party leader is natural, although it may contribute to the development of local party organizations of a leadership type.
Also, before the second reading, the Committee proposed to increase the minimum number of deputies that could be included in the territorial electoral list – from 5 to 6. Such changes were consistent with the amendment pre-approved by the dedicated subcommittee on gender quotas at the representation level in each group of six candidates (first to sixth, seventh to twelfth, and so on) in each electoral list of men and women (three candidates of each sex). Eventually, they have not been supported.
It should be noted that the Committee took into account amendments 2092, 2093, 2115, 2130, 2131, which intend to strengthen the role of the central level of the party and pose a threat to intra-party democracy. It is particularly relevant due to the need for a local party organization to coordinate nomination of candidates with the party governing body; due to securing the right for oblast party organizations to nominate candidates in all types of local elections, which makes it impossible for local party organizations of lower levels to nominate candidates.
In addition, the Committee head issued a verbal order to the Secretariate to finalize the draft and provide for the requirement for mayoral candidates and oblast council deputies to submit a reference certificate about the record about them in the Unified State Register of Individuals Committing Corruption or Corruption Related Offense. However, the amendment has not been brought forward for voting on the committee. As a result, the presence or absence of the respective provision in the draft law could only be checked after the publication of the comparative table.
- Gender Quotas in Local Council Elections
It is worth noting that the dedicated subcommittee recommended supporting an amendment on gender presence in each of the six candidates (first to sixth, seventh to twelfth positions, etc.) of each electoral list of men and women (three candidates of each sex). It went in line with amendments 2159 (on increasing the minimum number of candidates in the territorial electoral list to 6) and 2165 (on settling cases with the number of candidates for deputies, which is not six-fold). At the same time, unlike the last two amendments, the Committee did not support the gender amendment agreed by the subcommittee and left the current approach to gender representation in the current version of the Electoral Code when compiling unified and territorial voter lists at the level of a group of five (numbers one to five, six to ten, etc.) of each electoral list of men and women (at least two candidates of each sex). In this regard, in order to avoid imbalance in certain provisions of the Electoral Code, the above amendments, which were supported by the Committee, will require technical and legal refinement. In particular, it is necessary to take into account amendment 2166 on the alternate inclusion of candidates of different sexes to the last positions in the list of candidates (from 1 to 4), if their number is not a multiple of five.
- Electoral Deposit
OPORA recommended to reconsider the introduction of a deposit in elections to village, settlement, and city councils, which are held under the majority electoral system in multi-member constituencies, and not to extend the grounds for non-refund of deposit to candidates, but to introduce a minimum threshold for returning the deposit to candidates with the minimum number of votes. The Committee did not take these recommendations into account.
Instead, the Committee approved the relevant block of amendments, taking into account the change in the threshold of application of the relevant electoral system, according to which the amount of the cash deposit in the wording of the draft law before the second reading will be:
- for elections of deputies of the Verkhovna Rada of the Autonomous Republic of Crimea - 250 minimum wages;
- for elections of deputies of village, settlement, district in the city, city (city with up to 10,000 voters) and district council - 20% of the minimum wage;
- for elections of the village, settlement, city mayor (the city with up to 75,000 voters) - 1 minimum wage;
- for elections of deputies of the city council (the city with 10,000 voters or more), regional council, the candidate for a position of the mayor (the city with 75,000 voters or more) - 4 minimum wages in the monthly amount established on the day of the election process, per every 90,000 voters.
Moreover, the Committee took into account the amendment clarifying the paying of a cash deposit by candidates in non-cash form in one payment.
- Ballot Paper Form
The Committee supported amendments 3186, 3188, 3263, which provide for a new form of a ballot for the election of deputies to the Verkhovna Rada of the Autonomous Republic of Crimea, regional, city (cities with 10,000 voters or more) councils. Unlike the previous form of ballot, it will contain in front of each party not only a space to vote for the party, but also a space in the form of a template to indicate the candidate’s number a voter wishes to support. Given that voting for candidates remains optional, such a ballot structure will facilitate personalized voting, with candidates receiving the required number of votes to change the order on the electoral roll. Thus, the open nature of voter lists can be ensured due to the real influence of voters on the placement of candidates therein. At the same time, these amendments do not provide for a new form of ballot for the election of deputies to district and district councils in the city. According to the amendments approved by the Committee (in particular, 1312), they will also run under the proportional representation system by the open lists of local party organizations in multi-member constituencies. That is why the relevant provisions will require technical and legal finalization.
On the other hand, these innovations are consistent with Amendment 3311 on the invalidity of ballots. In other words, supporting the amendment to change the form of the ballot does not require clarification of the amendments related to the validity of ballots during the vote count.
- Electoral Quota
To ensure the effectiveness of the provision on the guaranteed mandate for the first number of the list of the passing party, amendments were supported on the change of electoral quota formula. In particular, it is proposed to calculate the electoral quota as a whole part of the result of dividing the total number of votes cast in support of all territorial electoral lists of party organizations by the number of seats calculated by subtracting from the Verkhovna Rada of the Autonomous Republic of Crimea, regional, city (cities with 10,000 voters or more) for the total number of guaranteed seats for each party. The wording of Part 3 of Art. 257 of the Electoral Code will guarantee at least one mandate on the level of single lists for each party organization that will participate in the distribution of mandates. At the same time, the text of the amendment repeatedly fails to take into account the introduction of a proportional electoral system at the district council level. Thus, the provision will require technical and legal refinement.
- Changing the Order of Candidates in the Territorial Electoral List
One of the most progressive and positive amendments supported by the Committee is the reduction of the minimum number of votes required for a particular candidate to advance up the list from 25% to 5% of the electoral quota, which will ensure a real impact of voters on the order of candidates in the territorial electoral list.
- Data of Vote Count Protocols, Establishment of Voting Results
The Committee did not support amendments that would return to the protocols the data on voters voting at the place of stay, which could significantly affect the possibility for electoral subjects to control the establishment of voting results.
- Recalling as a form of early termination of powers of deputies in local councils and elected officials in local governments
The Committee supported the amendment designed to continue the partisanship of local councils, namely the legislative consolidation of the institute of recalling deputies upon the people’s initiative as one of the elements of the imperative mandate. It is proposed that a deputy of a local council who has been elected to the council on the list of a political party may be recalled, in particular if their activities do not comply with the party’s or its cell’s agenda, provided such deputy is not a member of the faction of a local party organization. The possibility of recalling deputies has been repeatedly criticized by the Council of Europe and by the Venice Commission as a semi-democratic institution that goes against the principle of free deputy mandate.
In addition, the vote in Amendment 103 suggested that among the grounds for recall, the ‘withdrawal of a local council deputy from the faction’ shall be replaced by ‘termination of membership,’ which could lead to the so-called party dictatorship. In fact, the local organization of the party may at any time decide at its discretion to expel a person from the parliamentary faction, which is the termination of their membership. Such changes will lead to the introduction of a ‘rigid’ party-imperative mandate. It will deprive the deputy of the local council of adequate guarantees for independence in carrying out his activities.
It should be noted that the amendments to the Law of Ukraine “On the Status of Deputies of Local Councils” were not the subject for consideration of the draft law No 3485 in the first reading.
- General Changes to the Electoral Code and Changes to Other Sectoral Legislation.
- Electronic Services and Electronic Voting
When the Working Group was revising the Electoral Code, a compromise was reached on the standardization of electronic voting, enshrined in the decision of the committee.
The initial version of the draft law provided for the right of the CEC to make its own decisions on electronic voting. The unanimous public statements of the expert community concerned the impossibility for organizing such voting in a way that would guarantee security and credibility in the election results. On the one hand, the Committee has enshrined changes in the powers of the CEC, which provide for the introduction of such experiments in accordance with the law. However, amendment 490 on the wording of Article 18 of the Electoral Code on the use of innovative technologies in the electoral process does not provide for the need to adopt a special law for conducting experiments or pilot projects on electronic voting in the new version.
At the same time, the norms that allow not to apply the provisions of the Electoral Code and impose the regulation of certain election procedures on the CEC, in case it decides to administer the vote by using hardware and software (machine voting), remained in the books governing certain types of elections (Articles 113, 118 - 121, 168, 172 - 176, 240, 248 - 251, 283-1). The provisions shall certainly apply only in a systematic connection with the general provisions, but, in our opinion, they also needed clarification on the regulation of procedures at the level of law only.
The threats of using electronic services exclusively when compiling vote count protocols shall be emphasized separately. The lack of a paper protocol form prepared according to the template established by the CEC can lead to the impossibility of drawing up protocols at polling stations in case of technical failures or power supply problems. Moreover, it may lead to a significant reduction in mutual control of commission members and the ability to monitor the process. Electoral legislation should provide for the parallel possibility of drawing up vote counting protocols both in paper form and by means of an automated information-analytical system or software.
It is worth noting that the novelties in terms of the introduction of innovative technologies are proposed to be enshrined in Art. 18 of the Electoral Code, thus removing from this article the provision on one-time voting, which is not an equivalent replacement and raises doubts in terms of the validity of the need to place these provisions in this article.
- Availability of the Election Process
There are positive changes aimed at maintaining the accessibility of electoral procedures for voters with disabilities. The Committee rejected amendments aimed at removing the provisions on the reasonable accommodation of voters with disabilities. In this part, the draft law No 3485 was left in the wording of the first reading.
- Unification of Terms for Election Procedures and Election Processes
At the meeting of the Committee, they supported the amendments submitted by a People’s Deputy Ruslan Knyazevych – No 561, 633, 634, 639, 663, 670. According to the chairman of the dedicated subcommittee, they concern the establishment of uniform deadlines for all types of elections (60 days) and require additional consideration of these amendments further in the text of the Code. It should be noted that the voted numbers of amendments do not cover the general term of the election process. Therefore, Amendment 990 to reduce the term of the election process in parliamentary elections from 90 days to 60 days was taken into account by the Committee through technical and legal revision, without voting therefor. Such changes are not justified, as they were not properly discussed during the Committee meeting and the subcommittee took place in private. In addition, reducing the duration of the election process may negatively affect the quality of certain election procedures, as well as contribute to abuse on the part of electoral subjects through “early campaigning.”
As the amendments of the deputy Knyazevych were submitted only to the general provisions and the book concerning the parliamentary elections, it remains unclear whether the Committee supported the reduction of terms also for the presidential election (from 90 to 60 days) and the increase for local elections (from 50 to 60 days).
It is worth noting that based on the results of the national conference “Presidential and Parliamentary Elections 2019 in Ukraine: Conclusions and Recommendations,” its participants concluded that the timing of the election process, scheduled for early parliamentary elections of 60 days, is insufficient and to some extent inconsistent with terms of appeal and certain election procedures, which manifested itself in the process of printing ballots in July, 2019.
- Logistics of the Election Process
The working group had a long discussion on the feasibility of additional financial costs for local self-government in organizing the election process. According to the results of the discussion at the committee, the provision on material and technical support of election commissions from the local budget was sent for technical and legal revision by removing the word “free of charge” from the text of Article 61, as amended in the first reading.
At the same time, the wording of the committee adopted the provision approved in the first reading, according to which the National Police of Ukraine is obliged not later than eight days before election day to provide round-the-clock security for election commissions, and if necessary, at the request of the Central election commission, for bodies of the State Register of Voters. The provision does not stipulate the level of election commissions that must be provided with protection. At the same time, as the practice of holding previous elections shows, the National Police does not have enough staff to ensure the protection of ballots even three days before voting at the level of thirty thousand precinct election commissions. Thus, the provision of Part 1 of Article 61 in the wording of draft law No 3485 will be virtually impossible to use in practice, and should be clarified by determining the level of election commissions and / or the possibility of involving other bodies, in addition to the National Police.
- Change of Election Address and Temporary Change of Polling Station Without Changing Election Address
The Committee did not support the amendments that intended to bring back the need to state the motivation both for the change of the election address and for the temporary change of the place of voting.
- Financial Reporting and Declaration
The committee supported amendments to refer the responsibility for the publication of financial statements to the NACP, instead of the CEC. According to the amendment 537 supported by the subcommittee, the NACP shall provide for the publication of financial statements on incomes and use of proceeds from election funds in the public part of the Unified State Register of Political Parties Reports on Assets. It manages to at least partially unify the financial reporting procedures for parties in the period between elections and during the election period. At the same time, the respective amendments in the books of the Code related to different types of elections failed to have been supported. Thus, the provisions from the general part will be hard to implement in practice.
In addition, the Committee supported the amendments on introducing changes to the law on anti-corruption in part of cancelling the declaration of income by persons who assumed a status of local council deputies or local heads, which will not foster the transparency of the electoral process or the shaping of conscious expression of will. Besides, the Secretariat voice suggested to finalize the text in technical and legal terms, and keep the provision on declaration for candidates to oblast council deputies. However, since the final text has not been worded for the verbatim report, we need to wait until the comparative table is published to be able to read it.
- Amendments to the Law “On the Central Election Commission”
The Committee, in its own version, supported the amendment to enshrine among the CEC independence guarantees the appropriate remuneration for both members and employees of the CEC Secretariat. Additionally, they supported the exclusion of provisions not to reduce the salaries of the Commission Chairperson, Deputy Commission Chairpersons, Commission Secretary, members of the Commission, employees of the Secretariat of the Commission, its regional and territorial representations.
The Committee took into account the expert recommendations on keeping a five-day period for judicial appeal in the Code of Ukraine on Administrative Procedure. At the same time, the provision of the Electoral Code remains in force, which provides for a two-day period for filing a complaint with election commissions.
The Committee also approved the amendments, which were supported by the representatives of the Working Group on the Revision of the Electoral Code, namely, the scope of appeals to the territorial election commission was expanded compared to the wording adopted in the first reading. At the same time, the CEC will only consider complaints about the inaction of territorial and district election commissions.
- Electoral Fraud
The positive aspects of the draft law include the proposed amendments to the Criminal Code of Ukraine and the Code of Administrative Offenses, which allow for the necessary investigations into violations of the voting rights of investigators, detention of perpetrators directly at the polling station, prosecution of candidates who agree to run for illegal remuneration, administrative and criminal liability for indirect voter bribery. At the same time, the question of the need to harmonize certain norms with the draft law “On Popular Will Through an all-Ukrainian Referendum” remains open.
- Amendments to the Law of Ukraine “On Amendments to Certain Laws of Ukraine Concerning the Definition of Territories and Administrative Centers of Territorial Communities”
To complete the process of forming empowered territorial communities and holding local elections in 2020 on a new territorial basis, the Committee supported Amendment 4039. According to it, the first elections in territorial communities approved by the Cabinet of Ministers of Ukraine will be held simultaneously with regular local elections. The powers of councils and heads of villages, settlements, and villages that have become part of such communities will continue in the new bodies of local self-government.
- National Elections.
- Electoral Regions
Given that the next parliamentary elections are scheduled for 2023, OPORA emphasized that changes in the territorial organization of elections require a comprehensive discussion of all stakeholders and therefore may be postponed until the next stages of electoral reform.
The Committee rejected amendments aimed at keeping 27 constituencies, which would correspond to the text of the current Electoral Code. On the other hand, only 25 regions were left in the wording of draft law No 3485 by the second reading. On the one hand, in the absence of a fixed number of seats distributed in constituencies (the so-called “floating” magnitude of the constituency), a reduction in the number of constituencies does not change the “weight” of the vote. However, on the other hand, it is anticipated that electoral constituencies such as Kyiv and Dnipro (where the number of voters is significantly higher than in others) will be represented in parliament with a significant numerical advantage.
In addition, amendments to the Electoral Code do not provide for the formation of regional lists in a foreign constituency, which would violate the principle of equal suffrage, as voters who vote outside Ukraine will be forced to vote only for the national electoral list. Thus, they can not influence the placement order of candidates in regional electoral list. In fact, voters will vote according to two different proportional systems: with closed party lists (in a foreign constituency) and with ‘semi-open’ lists (in Ukraine).
- Formation of Election Commissions
The Committee retains the right to a proportional share of each category of management positions in the relevant election commissions throughout the election process, except in cases where the subjects of the election process do not submit appropriate replacements within the time limits set by law, in case of early termination of powers.
In addition, the amendment supported by the Committee to increase the mandatory representation in the district election commissions from one to two representatives from the parliamentary faction is quite controversial. In this regard, subject to the formation of a minimum district election commission (12 members), 10 candidates may be included from parliamentary factions (2 from each faction) and only 2 vacancies will be left for distribution by the draw. This may violate the principle of equal elections, as such innovations will significantly limit the ability of other political parties who are electoral subjects to be represented at the level of district election commissions.
- Nomination and Registration of Candidates
In view of the reduction of constituencies, the borderline requirements for the maximum number of candidates who can be nominated on regional lists have been changed from 17 to 18.
In addition, the Committee did not touch upon the list of documents required for the registration of candidates, which, in accordance with the draft law approved in the first reading, was supplemented by a certificate of conviction issued by the authorized body after the election process. These changes were criticized by members of the Working Group on the revision of the Electoral Code, while the Committee did not support the deputies’ amendments to remove the certificate from this list. Given the approved amendments to reduce the duration of the election process, at least in parliamentary elections, in the event of a delay in the issuance of such a certificate by the authorized body, there is a possibility of restrictions on the exercise of passive suffrage.
Also in the first reading, changes were made to the grounds for rejecting candidate registration. Specifically, in addition to the absence of at least one of the documents specified by the Electoral Code, the list of grounds was supplemented with provisions on the absence of information in these documents, which must be specified in accordance with the requirements of the Electoral Code. The experts stressed the importance of preventing the undermining of the legal certainty for the grounds to reject candidates’ registration, and of avoiding the complication of the process of candidate registration in this regard. Legislative proposals do not clearly define the list of information, which absence in the candidate’s documents disables registration. Thus, they leave a wide space for interpretation by election commissions. The Supreme Court of Ukraine, in turn, has repeatedly drawn the attention of election commissions to the importance of avoiding excessive formalism when considering candidate documents. OPORA emphasizes that the irresponsibility or violation of the law by individual candidates cannot be a justification for the deterioration of the position of bona fide participants in elections.
At the same time, the Committee did not support the consideration of the amendments of deputies who remove this provision. Instead, the Committee took into account the amendments that provide for immediate notification of the relevant entity in the absence of mandatory information in the registration document. They also include a possibility for elimination of the identified shortcomings by submitting the updated or replacing registration documents no later than on the next day. In the event the updated or other documents are not received within this period, the relevant documents shall be considered missing. Although this provision partially eliminates the risks of restriction in the exercise of passive suffrage, the timeframe set for correction may not be sufficient to address the shortcomings of the documents required for registration.
- Gender Quota at Parliamentary Elections
The Committee kept a requirement for gender representation in the nomination of candidates at the level of having men and women included into each group of five candidates (places from the first to the fifth, from the sixth to the tenth, etc.) in each electoral list (at least two candidates of each sex). They supported the proposal that in case the party forms national and regional electoral lists with the number of candidates which is not a multiple of five, the latter in the list of candidates (from 1 to 4) are required to alternate candidates of different genders in the list.
- Paying the Electoral Deposit
The amount of a deposit in the national elections remained unchanged. The Committee took into account the amendment clarifying the payment of a deposit by candidates in all types of elections in non-cash form, in one payment.