On May 19, the CEC decided to implement the Resolution of the Grand Chamber of the Supreme Court of Ukraine to cancel its protocol on the results of the by-elections of the People's Deputy of Ukraine, and drew up a new protocol. The winner of the election was Vasyl Virastiuk ("Servant of the People" party), who received 14,811 votes. According to the new protocol, the candidate from the "For the Future" party, Oleksandr Shevchenko, won 13,942 votes.
According to OPORA, the most democratic way to solve the problem could be a political and legal decision to hold repeat elections, for which the Ukrainian parliament should take responsibility. All other options do not allow to convincingly determine the true will of citizens and do not provide adequate public confidence in the results of the vote.
Decisions of the CEC to implement the decision of the Grand Chamber of the Supreme Court were taken by the Commission in the absence of clear mechanisms for legal resolution of the unprecedented situation in the constituency. Although CEC decisions can be seen as an option to enforce court decisions, they do not address a key issue in the election process, such as the lack of reliable identification of voting results within the constituency. On the other hand, repeat elections (with proper legislative support) will allow all political actors to participate in the new election process and will guarantee voters the right to fair election results. Parallel to the parliament's impactful decision to protect the voting rights of citizens, law enforcement agencies shall intensify the investigation of the revealed violations.
As OPORA has already noted, in the non-standard legal situation in constituency No 87, there are no ideal solutions and the appointment of repeat elections may increase fraudulent voting technologies in the future. However, in our opinion, under this approach to protecting the voting rights of citizens, benefits outweigh the potential risks. It will help avoid legal uncertainty and public illegitimacy of the election results in constituency No 87. On the other hand, the current situation will affect the assessment of the state's compliance with election standards, despite significant previous achievements in this area and reform of electoral law.
Analysis of recent CEC decisions on the results of the by-elections of the People's Deputy of Ukraine in constituency No 87.
On May 19, 2021, pursuant to the Resolution of the Grand Chamber of the Supreme Court of May 1, 2021 (No 9901/114/21), the Central Election Commission adopted the following resolution whereat:
1) the results of voting at polling stations No 260109, No 260025, No 260028, No 260536, No 261029, No 261030 from the by-elections of the People's Deputy of Ukraine in constituency No 87 were invalidated;
2) it is determined that the results of the by-elections of the People's Deputy of Ukraine in constituency No 87 will be established on the basis of the DEC protocol on voting results with the “Clarified” note, of April 14, 2021, according to the Resolution of the Grand Chamber of the Supreme Court of May 1, 2021, in case No 9901/114 / 21, Resolutions of the Grand Chamber of the Supreme Court of May 14, 2021, and this resolution of the CEC, disregarding information on voting results at polling stations No 260109, No 260025, No 260028, No 260536, No 261029, No 261030 on the by-elections of the People's Deputy of Ukraine in constituency No 87. On the same day, the CEC drew up a protocol on voting results at elections of the People's Deputy of Ukraine to constituency No 87, according to which the winner was the candidate from the Servant of the People party, Vasyl Virastiuk. Virastiuk received 14,711 votes, while Oleksandr Shevchenko received 13,942 votes.
The new CEC protocol on the results of the by-elections of the People's Deputy of Ukraine in constituency No 87 deletes in their entirety the voting results at 6 polling stations where 504 missing votes for the candidate Oleksandr Shevchenko were identified. The previous CEC protocol, revoked by the Grand Chamber of the Supreme Council, took into account the recount results in these polling stations, which revealed a discrepancy between the actual number of ballots and the PEC protocol data. In its decision, the Grand Chamber of the Supreme Court noted that the absence of 504 ballots for a candidate affects the establishment of voting results in the constituency. In addition, according to the court, the CEC should take all possible steps to ensure the rule of law during the elections and has the capability to restore the violated rights of voters. At the same time, the operative part of the Resolution of the Grand Chamber of the Supreme Court of 01.05.2021 (No 9901/114/21) only declared illegal actions of the CEC to establish the election results and canceled the protocol on voting results for people's deputies of Ukraine in a single-member constituency No 87.
It should be noted that by the Resolution of 14.05.2021, the Supreme Court refused to satisfy the claim from the Central Election Commission to clarify the Resolution of the Grand Chamber of the Supreme Court of 01.05.2021 (No 9901/114/21). In request for clarification of the court decision, the CEC asked whether the CEC could take actions not expressly provided for by law, including re-voting in certain polling stations without legislative regulation of such a procedure, and if so, in what way, and also whether the CEC shall decide to invalidate voting at certain polling stations and establish the election results in the respective single-mandate constituency disregarding voting at such polling stations. In the motivating part of the Ruling, the Supreme Court noted that the loss of 504 ballots with votes for one candidate, in the event the number of votes cast for each candidate is identified by the election commissions, surely affects the determination of election results, also for the need to take into account the valid votes. In addition, the court emphasizes that the conclusions set out in the ruling are not limited to the possibility to act in a manner not provided by law, but to the possibility, acting within the law, to exercise their discretion in accordance with international election principles, with strict observance of the rule of law. In this case, the exercise of such powers involves a decision directly by the Commission, and not by other entities, in order to establish the actual results of the expression of will.
An analysis of the Resolution of the Grand Chamber of the Supreme Court of 01.05.2021 (No 9901/114/21) shows that today's decision of the CEC may indeed be one of the options for interpreting the positions expressed by the court. However, given that representatives of one of the candidates declared a different understanding of the positions of the Grand Chamber of the Supreme Court at the CEC meeting, today's decision of the CEC is likely to be appealed to the courts in the future. The possibility of judicial control of the Grand Chamber of the Supreme Court over the position chosen by the CEC was emphasized by the CEC chairperson in his statement.
The Grand Chamber, referring to the Explanatory Report of the Venice Commission to the Guiding Principles on Electoral Matters, draws attention to the possibility of annulling the results of elections at one of the polling stations, and not only to annul the results throughout the country or district. According to the Venice Commission, reproduced in the court's decision, the possibility of annulment of results in certain polling stations avoids two extremes: annulment of elections in general in a situation where violations affected only a small area, and refusal to annul on the pretext that the territory affected by the violation was rather small (see paragraph 116 of the Grand Chamber Resolution).
At the same time, it should be noted that para 115 of the Resolution of the Grand Chamber of the Supreme Court states that the institution of re-voting may be applied in problematic polling stations by analogy with two or more candidates in the constituency receiving the same number of votes. The Law of Ukraine “On Elections of People's Deputies of Ukraine” obliges the CEC to call a second ballot in which the candidates with the largest and identical number of votes take part. It is noteworthy that in the motivating part of the Resolution the Grand Chamber of the Supreme Court drew attention to the possibility of using, by analogy, the institution of repeat voting only in individual polling stations and not in a single-member constituency as a whole. However, it is worth noting that in the Resolution of 14.05.2021, the judges noted that the Grand Chamber, without interfering with the CEC's discretionary powers to determine the election results, presented possible options for resolving the problematic issues.
Despite the fact that the CEC did not use the possibility of re-voting by analogy with the law either in individual polling stations (referred to in the Resolution of the Grand Chamber of the Supreme Court of 01.05.2021 in case No 9901/114/21), or in the district as a whole, OPORA hereby notes that such a decision could undermine the democratic nature of the elections. First, even in the case of the analogy of the law, the criteria remain legally uncertain for inclusion of candidates in the re-voting ballot: two front-runners in the constituency, winners of voting in each polling station, or all candidates in this election. At the same time, the format of repeat voting at individual polling stations and related procedures will not have any legislative support and will not be covered by budget funding. Second, re-voting at individual polling stations would in fact be a new electoral process that determines the winner for the entire single-member constituency. In the conditions of voting of a small number of voters, mass manifestations of voter bribery are also probable, the risks of which exceed any positive expectations from the repeat voting.
Thus, OPORA declares the need to tackle the problems of the process of by-elections of the People's Deputy of Ukraine in constituency No 87 at the parliamentary level by providing citizens with the opportunity to freely and fairly elect their deputy in the by-elections.