Disclaimer! This information material is a continuation of OPORA’s study on the experiences of democratic states regarding the impact of war on electoral processes. Unlike our previous publication, which described the historical experience (seven cases) of democracy’s struggle for survival under conditions of war, occupation and martial law in the XX century, this material provides an analytical review of foreign legislation that regulates the issues of electoral process and continuity of government in the event of postponement of elections under special legal regimes.
The purpose of these publications is to find solutions for overcoming the consequences of full-scale war, including through the study of legislative readiness of foreign countries to meet the challenges faced by Ukraine as a result of military aggression.
Introduction
The topic of elections has long been the subject of Russian disinformation. The aggressor state is portraying Ukraine as undemocratic and the current Ukrainian government as illegitimate. It is cynical considering that Russia itself hasn’t seen a change of power for a long time, and its regime has nothing to do with democracy. Moreover, the Kremlin held pseudo-elections and pseudo-referendums in the occupied territories as one of the elements of its aggressive war.
In furtherance of their efforts to counter Russian disinformation campaigns and the largest scale of security threats since the Second World War caused by Russia’s military aggression, OPORA’s lawyers explored the legislation of several democratic states to determine the level of their readiness to respond to the challenges faced by Ukraine. In particular, we sought to find out whether the legal framework provides the state authorities and citizens with a response protocol applicable to cases where the elections or the expiration of the term of office of elected bodies coincides with special legal regimes (similar to the martial law of Ukraine) or foreign invasion (similar to Russia’s invasion of Ukraine with the use of various weapons, including long-range artillery and missile systems, land offensive and occupation of certain territories).
We chose to study the laws of the Group of Seven (the United States, Japan, Germany, Great Britain, France, Italy, and Canada) because of their global influence, close cooperation and significant assistance to Ukraine, as well as the legislation of those countries that have faced the challenges of armed conflicts and territorial claims over the past century (Israel, Bosnia and Herzegovina, Finland, Denmark, and South Korea).
Bosnia and Herzegovina (BiH)
The Constitution of Bosnia and Herzegovina (BiH) does not provide for the postponement of elections. At the same time, article 14.2 of the Election Law allows for the possibility of postponing (rescheduling) elections, but only in a certain constituency or polling station. Such a decision is adopted by the Central Election Commission of BiH based on the facts indicating that the elections cannot be held in accordance with the provisions of this Law, as well as in the event that voting process did not take place in a constituency or polling station on the day appointed for this purpose. Postponed elections are usually held within seven days, but in any case not later than 30 days from the date appointed for regular elections.
At the same time, Bosnia and Herzegovina is one of the few countries that has practical experience in organizing both postwar elections and postponed elections. The war that began after the collapse of Yugoslavia culminated in the conclusion of General Framework Agreement for Peace in Bosnia and Herzegovina (also known as the Dayton Peace Agreement, hereinafter – DPA). The agreement was initiated in Dayton (Ohio, USA) and subsequently signed in Paris on December 14, 1995. According to its provisions, the elections in BiH were seen as the basis for beginning the postwar reconstruction of this country.
In particular, Annex 3 of the DPA placed the parties under an obligation to hold free, fair and democratic elections, which would ensure the formation of new state authorities and provide a stable basis for strengthening peace. It also stipulated a deadline for holding elections – within six months of the date of entry into force of the DPA, and if the situation requires the postponement of elections – not later than nine months from the date of entering into force. Although the elections did take place in 1996, the compliance of electoral process with international standards and, consequently, the credibility of election results came into question. Nevertheless, this provided an opportunity to begin postwar reconstruction of BiH, and in 2010 the country was granted a NATO membership action plan. Ultimately, in 2022, BiH became a candidate for accession to the European Union.
Speaking of modern-day examples of rearranged elections, on May 23, 2020, the Central Election Commission of BiH postponed the local elections from October 4 till November 15 due to the COVID-19 pandemic. However, the elections did not take place within the legal period due to political disputes which delayed the adoption of the 2020 budget and the allocation of funds for pre-election preparation work. In 2024, BiH postponed local elections in the areas affected by the October 4 floods, where a state of emergency was declared.
United Kingdom
The United Kingdom of Great Britain and Northern Ireland is perhaps the only member of the G7 that has a successful democratic experience of postponing elections for a long time under conditions of war. This happened twice – during the First and Second World Wars. The UK government postponed regular parliamentary and local elections, which were supposed to take place in the first year of the war, and held them only after termination of armed hostilities. This is the most relevant experience for Ukraine in terms of political context. For more detailed information, refer to our article “The Experience of Holding Elections in Democratic Countries and the Survival of Democracy in Wartime”.
The legal order of the United Kingdom does not include emergency legislation in the classic sense. The closest analog is the Civil Contingencies Act 2004 (CCA). Part 2 of the CCA contains general provisions on emergency response activities and confers broad regulatory powers on the monarch, who has the authority to adopt “emergency regulations” by order of Council. In practice, the exercise of these powers is subject to approval by the government – primarily and mainly the Secretary of State for the Home Department.
A special Elections Act adopted in 2022 also does not regulate the postponement of elections.
Since the UK does not have a uniform codified legislative act in the form of the Constitution, the possibility of postponing elections depends on the laws passed by the Parliament as is evident from the experience of postponing elections in 2001 and 2020.
In 2001, the UK government postponed elections for the first time since World War II due to the outbreak of foot-and-mouth disease. The general election to the House of Commons was scheduled to take place on May 3 concurrently with the local elections. However, on April 2, 2001, both the parliamentary and local elections were postponed till June 7 due to travel constraints, which were imposed in rural areas to stop the spread of foot-and-mouth disease. To this end, the Parliament adopted a special election law (known as the Elections Act 2001), which postponed the local elections in England and Wales from May 3 till June 7, 2001, and in Northern Ireland from May 16 till June 7, 2001.
In 2020, the Parliament passed a Coronavirus Act 2020 (СА), according to which neither parliamentary nor presidential elections were to be held during the COVID-19 pandemic. Local elections in some constituencies were also postponed for a year. The CA provided a legal basis for the postponement of general elections. As for the elections to local councils, article 60 of the CA stipulates that “the poll for the ordinary election of councillors for any local government area in England that would otherwise be held on the ordinary day of election in 2020 is to be held instead on the ordinary day of election in 2021”. According to this article, the ordinary elections for the Mayor of London (section 6), mayors of other local (section 8) and combined authorities (section 10) were postponed. The ordinary election of police and crime commissioners was also rescheduled for a later time (section 12). Furthermore, article 64 of the CA amended the provisions that govern the timing of elections in Northern Ireland, while article 61 authorized the Secretary of State to postpone the elections from March 16 till May 5, 2021.
Denmark
The Constitution of Denmark as well as the laws on parliamentary elections and the state of emergency do not contain provisions for postponing or suspending an election. However, the Danish Constitution provides for application of safeguards against the so-called “power vacuum”. In particular, section 32 of the Constitutional Act sets time limits for exercising the powers of MP, which under no circumstances can be terminated before the conduct of relevant elections, i.e. representative mandates remain valid until the next convocation of parliament is elected.
The Constitution of Denmark also provides for several peculiarities of functioning of the State in emergency circumstances. For example, when the Folketing cannot assemble, the King may issue provisional laws subject to the condition that they shall not be at variance with the Constitutional Act, and that they shall always, immediately on the assembling of the Folketing, be submitted to him for approval or rejection (section 23). Also, in extraordinary circumstances, a bill which is supposed to be submitted to a referendum may receive the royal assent immediately after it has been passed, provided that the bill contains such a provision to this effect (section 42(7)).
Israel
Israel’s experience in holding elections in the face of security threats is often cited as a relevant example for Ukraine. However, in terms of legal regulation, the Israeli Constitution, which is not codified and consists of several Basic Laws (e.g., Basic-Law: the Knesset 1958, Basic Law: The President of the State 1964), did not contain any provisions on the postponement of elections for a long time.
It was not until 1992, almost 20 years after the Yom Kippur War, that an amendment on the Knesset was finally introduced into the Basic Law (Basic-Law: the Knesset). Special exceptions are provided for in Article 9 of the Basic Law which determines the date of elections to the Knesset (the third Tuesday of the month of Heshvan in the year in which the term of the outgoing Knesset ended, but should the preceding year be a leap year, the elections shall take place on the first Tuesday of that month). In particular:
(а) The Knesset shall not extend its term of office, save by means of a law adopted by a majority of eighty Members of the Knesset, and should special circumstances exist that prevent the conduct of elections on their designated date. The extension period shall not exceed the time required by the said circumstances. The election date shall be determined by the said law.
(b) Without detracting from the provisions of article 34, the Knesset is entitled, by a decision of a majority of its Members, to postpone the date of the elections set according to clause (a), as long as the new date shall not be earlier than the date for holding the elections to the Knesset in accordance with article 9.
Furthermore, article 131 of the Knesset Elections Law (Consolidated Version 1969) provides that on election day, and on the day preceding it, the power to impose a curfew under the Defense (Emergency) Regulations, 1945, shall not be exercised except with the approval of the Central Election Committee; however, this provision shall not apply if, at the time, military operations are ongoing in the territory of the State. Article 86 of that same law provides for the possibility of appealing to the Knesset against the election results.
In 1973, Israel faced the need to postpone elections for the first time in its history due to the so-called Yom Kippur War, which broke out 24 days before the scheduled elections and significantly affected the possibility of holding a ballot. Prior to the introduction of amendments in 1992, the Basic Law on the Knesset did not provide for the possibility of extending its term of office to more than four years, but a surprise attack on Israel launched by Egyptian and Syrian armed forces on October 6 and the unprecedented losses suffered by IDF in the early days of the war prompted members of the Knesset to pass a “special law” on postponing the vote for three months. Some commentators criticized the law and referred to it as a severe blow to Israel’s democratic process. However, the law applied only to this specific case and did not provide for the postponement of future elections (including those scheduled for 1973) during the war or armed hostilities.
The postponement of local elections was another extraordinary measure introduced by the Knesset amid the 2023 Israel-Hamas war, which was triggered by the devastating terrorist attack against southern communities on October 7, 2023. The elections were initially scheduled for October 31, 2023, but they were postponed till January 30, 2024 (in accordance with the law which allowed the government to order a further delay until February 27 pending approval by 80 members of the Knesset). Subsequently, the leader of one of the political parties asked for local elections to be delayed again for the reason that many of his party’s candidates are serving in the IDF reserve. As a result, on January 1, 2024, the Knesset postponed the elections till February 27, 2024.
Explanatory notes accompanying the relevant law quote a previous High Court of Justice ruling, which says: “The existence of a state of emergency, in which a significant part of the nation is drafted into the army and the other part of the home front is threatened by enemy attacks, is liable to make it difficult to hold a democratic election process that will achieve its main goals.”
Italy
Italy has no experience of postponing elections in the face of military threats, but it is one of the countries most affected by the COVID-19 pandemic.
According to article 60(2) of the Constitution of the Republic of Italy, the term of powers for each House of Parliament may not be extended, except by law and only in the case of war. Article 77(2) of the Constitution provides for the following: when the Government, in cases of emergency, necessity and urgency, issues under its own responsibility a temporary measure (provvedimenti provvisori) having the effect of law, on the same day it shall submit such measure for consideration and approval to the Houses of Parliament which, even if dissolved, shall be convened within five days of such submission. Italian legislation does not directly regulate the postponement of elections, but based on the experience of rescheduling the 2020 local elections and national referendum on reducing the number of parliamentarians amid the COVID-19 pandemic, it can be concluded that this is done by the decision of the Government.
On January 31, 2020, the executive branch of Italian Government declared a six-month state of emergency due to the outbreak of coronavirus disease (until July 31, 2020). The basis for introducing a state of emergency was provided by a legislative decree of January 2, 2018. Subsequently, the Government began adopting decree-laws pursuant to article 77 of the Constitution (which do not require declaring a state emergency). A referendum on reducing the number of parliamentarians was supposed to take place in Italy at the end of March 2020 followed by May 2020 local elections in several regions of the country. However, both electoral processes were postponed due to the COVID-19 crisis.
Canada
Canada is one of the few countries whose legislation regulates the possibility of extending the powers of elected bodies and postponing elections in a more or less clear way.
In particular, clause 4(2) in the “Democratic Rights” section of the Constitution Act of Canada (1982), which deals with rights and freedoms, provides that in times of real or apprehended war, invasion or insurrection, the term of the House of Commons and the legislative assembly may be extended by the legislature.
The procedure for organizing and conducting elections is regulated by the Canada Elections Act. In 2006, it was amended to provide for fixed election dates. At the same time, section 59 of this Act allows for the postponement of elections. Thus, the Governor in Council may order the withdrawal of a writ for any electoral district for which the Chief Electoral Officer certifies that by reason of a flood, fire or other disaster it is impracticable to carry out the provisions of this Act.
It is also worth noting that Canada has experience of extending the powers of the Parliament in the aftermath of the First World War. Prior to the enactment of the Canadian Charter of Rights and Freedoms, which forms an integral part of the Constitution Act of 1982, the Constitution Act of 1867 (known as the British North America Act) provided for a 5-year term limit for the House of Commons (section 50). However, in 1916, Canada made an exception to this rule was made so that the Twelfth Parliament could continue exercising its powers for a longer time due to the outbreak of First World War. The term of Parliament was extended through the introduction of a one-off constitutional amendment. For more detailed information on this topic, refer to OPORA’s analytical material “The Experience of Holding Elections in Democratic Countries and the Survival of Democracy in Wartime”.
Germany
Post-war democratic Germany has no experience of holding or postponing elections in the face of military security threats. In the event of armed aggression against the country, the Basic Law of the Federal Republic of Germany provides for the possibility of introducing a state of defense which entails legal consequences, in particular, for the elections and the term of office of representative authorities.
According to article 115-h of the Basic Law, any electoral terms of the Bundestag and those of parliamentary assemblies of the Länder that are due to expire during the state of defense shall end six months after the termination of the state of defense. A term of office of the Federal President that is due to expire during a state of defense and the exercise of his functions by the President of the Bundesrat in case of the premature vacancy of his office shall end nine months after the termination of the state of defense. The term of office of a member of the Federal Constitutional Court that is due to expire during a state of defense shall end six months after the termination of the state of defense. The Bundestag shall not be dissolved while a state of defense exists.
In addition, the Basic Law of Germany establishes detailed regulations for ensuring the continuity of power and preventing its usurpation during the state of defense. In particular, article 115-e stipulates that if, during a state of defense, the Joint Committee determines that insurmountable obstacles prevent the timely convening of the Bundestag or that the Bundestag cannot muster a quorum, the Joint Committee shall occupy the position of both the Bundestag and the Bundesrat and shall exercise their powers as a single body. This article also imposes restrictions on the adoption of any individual laws and on the amendment, repeal and termination of the Basic Law.
Thus, the Basic Law of Germany establishes the principle of continuity of power and provides for postponing the formation of state bodies for a rather long and clearly defined period after the termination of the state of defense. Furthermore, on June 5, 2024, the Federal Cabinet of Ministers of Germany adopted new framework guidelines for overall defense, which provide a description of necessary measures to ensure Germany’s independence and sovereignty in times of crisis and military conflict. Paragraph 19.2.2 of this document reiterates that the elections to the Bundestag and parliamentary assemblies of the Länder shall be delayed for six months after the end of the state of defense and that the Bundestag cannot be dissolved under conditions of a state of defense.
South Korea
Similarly to Israel, South Korea finds itself under constant threat of military aggression, which is posed by its neighbor – the totalitarian regime of North Korea. This factor influenced the process of formation of legislative framework on special legal regimes.
Paragraphs (1) and (2) of article 77 of the Constitution of South Korea provide for imposing two types of martial law: extraordinary and precautionary. Under extraordinary martial law, special measures may be taken with respect to the necessity for warrants, freedom of speech, the press, assembly and association in accordance with the procedure established by law. According to article 76(1) of the Constitution, in time of internal turmoil, external menace, natural calamity or a grave financial or economic crisis, the President may take minimum necessary financial and economic actions or issue orders having the effect of law, only when it is required to take urgent measures for the maintenance of national security or public peace and order, and there is no time to await the convocation of the National Assembly. This constitutional provision is intended to ensure the continuity of power.
Public Official Election Act establishes detailed procedures for postponing (rescheduling) elections (article 196), holding special elections (article 200) and simultaneous elections (articles 202, 203), determining the Election Day (articles 34-36), etc. In particular, article 196 of Election Act provides for the possibility of postponing elections in general (article 196), and regulates situations of impossibility of certifying the election results in relevant constituency and the destruction of ballot boxes (article 198). Article 196 (1) stipulates that if it is impossible to hold an election or an election has not been held due to a natural disaster or terrestrial upheaval or for other unavoidable reasons, the President shall postpone the election in cases of presidential elections and National Assembly elections, or the chairperson of relevant constituency election commission shall do so in consultation with the competent head of local government (including his or her proxy) in cases of an election of local council members and the heads of local governments. If the election is postponed, the procedure for election shall proceed all over again, and if only the Election Day is rescheduled, the election procedure shall resume where it had stopped. If the election is postponed as provided in paragraph (1), the President or the chairperson of relevant constituency election commission shall publicly announce the name of the election to be postponed and the reason for postponement, and the President shall without delay notify the chairperson of relevant constituency election commission thereof, and the chairperson of relevant constituency election commission shall notify the head of relevant local government.
USA
The U.S. approach to postponing elections differs from that of the vast majority of other countries under study. It places special emphasis on upholding the principle of periodic elections. In 1845, the U.S. Congress passed a federal law to establish a “uniform time for holding elections” for electors of President and Vice President (Presidential Election Day Act). According to this Act, “each of the States shall hold elections on the Tuesday next after the first Monday in November”. Since then, the United States has not postponed a single Presidential Election. Not even in the midst of the Civil War in 1864, when President Abraham Lincoln was re-elected. This is how the standard of national periodic elections was established. Postponement of elections would violate this century-old precedent. However, it is worth noting that no military operations have been conducted on the US mainland since then. That is why the U.S. Presidential Election took place even in 1944, when the World War II was in full swing.
The U.S. Constitution does not directly regulate the impact of extraordinary situations (the state of emergency or war) on elections, but it vests each branch of government with clearly defined powers. Section 2 of Article II does not empower the President to change the date of the election. Instead, it is explicitly stated that the President together with the Vice President shall hold office during the term of four years, while the Congress is entitled to determine the time of holding general elections.
In order for federal elections to be postponed, the U.S. Congress would have to pass an amendment to the federal act of 1845 and the President would have to sign it. In general, the U.S. election legislation is decentralized. While the U.S. Constitution and federal acts set up key parameters of electoral process, it is the State law that governs the majority of aspects of elections, such as primaries, eligibility to vote (with the exception of basic constitutional definition), activities of the Electoral College, and the conduct of State and local elections. As of today, the following federal acts are in effect in the United States: 1) Voting Rights Act (1965); 2) Uniformed and Overseas Citizens Absentee Voting Act (1986); 3) National Voter Registration Act; 4) Help American Vote Act (HAVA) (2002) and others.
Finland
The flexibility of the Finnish constitution can be explained by the use of special “exceptive acts”: instead of amending or changing the Constitution, the parliament can pass a special act as an exception to it. Such an act does not become part of the Constitution, and it may be repealed just like an ordinary act. In the past, exceptive acts were used so often that they threatened to undermine respect for constitutional provisions. Given the long-standing tradition of issuing presidential acts or decrees on constitutional issues, it is likely that Finland will be able to use one as a legal basis for postponing elections that are due to take place but cannot be held.
The Constitution of Finland guarantees that every citizen shall have the right to elect and be elected. This right may be restricted in the case of an armed attack against Finland or other public emergency posing a serious threat to the nation as determined by a government decree or an act. Government decrees concerning provisional exceptions to human rights and freedoms shall be immediately submitted to the Parliament for consideration and approval. It is worth noting that the 1999 Constitution of Finland (last updated in 2018) does not specify what would happen to parliamentary elections under conditions of war (invasion) or a state of emergency.
The Election Act of the Republic of Finland stipulates that if the municipality elections or election procedures cannot, for any reason, be conducted at the times provided in this Act, the Ministry of Justice may, at the Municipality Council’s suggestion, set a new time for the elections. For example, the 2021 municipality elections were postponed due to the COVID-19 pandemic. Furthermore, according to the Emergency Powers Act, the Government is vested with authority to postpone municipality elections for a certain period.
France
In France, the conduct of elections is regulated by the Constitution, Electoral Code, and Act No. 62-1292 of November 6, 1962, on the election of the President of the Republic by universal suffrage. Electoral legislation does not contain any provisions on the cancellation, postponement or impossibility of holding elections under special legal regimes.
The Constitution of France defines special legal regimes as emergency (or exclusive) powers of the President. The National Assembly cannot be dissolved during the exercise of such emergency powers (article 16), as well as during the state of siege (article 36), which is detailed at the level of legislation (Defense Code). The aforesaid Defense Code and the State of Emergency Act provide for the imposition of the state of emergency. While there is no explicit reference to the postponement or impossibility of holding elections, the imposition of special legal regimes may lead to restriction of certain political rights (peaceful assembly) or impede the normal electoral process (restraint on freedom of expression).
In 2020, the National Assembly adopted a special act on emergency measures in response to the COVID-19 pandemic. This act introduced amendments to other legislative acts and established ad hoc regulations, which provided for the postponement of elections to municipal and community councils, the councils of Paris and the city council of Lyon.
Modern France employs different approaches to postponing the elections under emergency conditions. For example, the first round of the 2017 Presidential Election was held under the state of emergency, which was declared after the terrorist attacks in Paris in November 2015.
However, the second round of municipal elections, initially scheduled for March 22, 2020, was postponed indefinitely and eventually rescheduled for June 28 due to the COVID-19 crisis. The decision to postpone elections was made pursuant to article 19 of the Act No. 2020-290 on emergency measures for responding to the COVID-19 pandemic. The Constitutional Council evaluated the constitutionality of this decision and ultimately concluded that postponing the elections due to the pandemic did not violate the right to vote or the principle of fairness of elections, or the equality of the vote, or the principle of separation of powers.
Japan
The current Constitution of Japan does not establish special regulations for the introduction of a state of emergency or martial law, unlike the previous Constitution of the Empire of Japan (1889-1945), which contained several clauses to take emergency measures such as imperial ordinances (article 8); the power to proclaim the law of siege (article 14); powers appertaining to the Emperor in times of war or in cases of a national emergency (article 31). However, paragraph 2 of article 54 of the current Constitution of Japan suggests that one of the Houses of Parliament, despite its closure, may continue to exercise its powers (convene an emergency session) in times of national emergency.
Ukraine
Article 64 of the Constitution of Ukraine confirms that the right to participate in the administration of state affairs provided for in article 38 (including the right to freely elect and to be elected to bodies of state power and local self-government), as well as the rights and freedoms necessary for realization thereof, in particular, the right to free expression of views and beliefs (article 34), freedom of association (article 36) and peaceful assembly (article 39), may be restricted under conditions of martial law. Such restrictions are naturally caused by the impossibility of complying with the constitutional requirements stipulated in chapter 3 of the Constitution, in particular, Article 71, according to which elections to bodies of state power and bodies of local self-government are free and shall be held on the basis of universal, equal and direct suffrage, by secret ballot. It is worth emphasizing that chapter 3 of the Constitution applies to all types of elections, meaning that its requirements must be met during the conduct of both national and local elections.
The prohibition on holding elections under martial law stems from article 83(4) of the Constitution, which does not allow the termination of powers of the Parliament and automatically extends them until the first session of new convocation of Parliament elected after the abolition of martial law. As for the President of Ukraine, article 108(1) stipulates that he or she shall exercise his or her powers until the assumption of office by the newly-elected President. This constitutional norm is aimed at ensuring the continuity of power, which is especially important in protecting state sovereignty and maintaining stability of constitutional order in the context of countering armed aggression.
Speaking of legislative regulation, article 20(4) of the Election Code stipulates that in the event of martial law or state of emergency being imposed in Ukraine or in its separate territories, the electoral process of national elections and/or local elections held in these territories or parts thereof shall be terminated from the date of entry into force of the respective decree of the President of Ukraine. Clause 3 of section 1 of article 19 of the Law “On the Legal Regime of Martial Law” also prohibits the conduct of presidential elections in Ukraine, as well as elections to the Verkhovna Rada of Ukraine, the Verkhovna Rada of the Autonomous Republic of Crimea and local self-government bodies under conditions of martial law.
The study allowed us to draw a number of conclusions:
- In many countries (Great Britain, Denmark, France, South Korea, USA, Italy, Japan), permanent legislation (as opposed to ad hoc acts on specific elections) does not give a direct answer to the question of what to do in case of emergencies which make it impossible to hold elections. This demonstrates that even the most consolidated democracies are often unprepared to deal with the challenges faced by Ukraine in the aftermath of Russian aggression. Based on the experience of postponing elections (usually local ones) during the COVID-19 pandemic, these countries can use the discretionary powers of the parliament (UK) or the government (Italy) to adopt ad hoc regulations for conduct of specific elections, which have even been subject to constitutional review (France in 2020).
- The constitutions of countries such as Denmark, Italy, Canada, and Germany contain provisions on ensuring the continuity of power, in particular, by extending the term of elected bodies for the period of emergency, allowing one state body to exercise the powers of another body (South Korea), or even forming a special body to exercise the powers of the main body, if the latter is unable to do so (Germany).
- The laws of Finland, Israel, South Korea, and Germany (albeit based on framework guidelines for overall defense) provide for the possibility of rescheduling or postponing the elections and establish the respective procedure. Others allow for rescheduling/postponing the elections only in a certain area or constituency (Bosnia and Herzegovina, Canada), which is irrelevant to the case of military aggression faced by Ukraine.
- Some countries held elections under extraordinary circumstances (in 2017, France conducted the Presidential Election under the state of emergency, which was declared after the terrorist attacks in Paris in November 2015; in 2024, Israel held local elections in the midst of the war with Hamas, although they were initially scheduled for 2023 and postponed due to the conflict). Unlike Ukraine, none of them experienced the horrors of war launched by a nuclear power. However, several countries postponed elections due to the COVID-19 pandemic (UK, Italy, France).
- The legislation of Ukraine stands out for its predictability and precise wording, as it explicitly prohibits the conduct and postponement of elections under conditions of martial law or a state of emergency. This prohibition follows from the implications of constitutional provisions which are in line with international norms. However, it should be acknowledged that our national legislation still needs to be improved to overcome the consequences of the war. First of all, this refers to provisions related to calling the elections or launching the electoral process within a month of the date of termination or cancellation of special legal regimes such as martial law or a state of emergency, as this time period is clearly insufficient.
General conclusion
As evidenced by our study, the legislation of many developed countries does not provide an answer to the question of how to deal with the electoral process that has begun or coincides with full-scale military aggression similar to the one faced by Ukraine. In this context, Ukrainian legislation is more predictable and well-defined. On the other hand, the countries that have a long history of engaging in conflicts with aggressive neighbors established appropriate regulations. At the same time, the majority of studied countries enshrine the principle of continuity of power in one way or another in order to protect themselves from a “power vacuum” under extraordinary circumstances, which completely refutes Russian narratives about the “illegitimacy” of Ukrainian government.
It is worth emphasizing that Russian disinformation campaign is often focused on accusing Ukraine of violating the principle of periodic elections, which entails the “loss of legitimacy” of representative bodies. However, reasonable frequency of elections implies that the observance of other key principles of electoral law should be ensured. Simply put, if democratic elections are impossible under the current circumstances, democratic states should not hold elections until they overcome such circumstances. The illusory conduct of election-like procedures without observing the principles of electoral law is more typical of authoritarian and totalitarian regimes, such as Russia, where elections have long ceased to be an instrument of expression of popular will which ensures the change of power.
One final comment is that Ukraine’s bitter tragic experience may serve as an example of a clear and predictable model of responding to the challenges facing democratic institutions, the functioning of which is the key to survival of the State under conditions of full-scale military aggression. After passing the test, the post-war election law of Ukraine can be adopted by foreign governments to overcome the consequences of wars or other emergency circumstances.
It should be reminded that Civil Network OPORA urged everyone not to recognize the results of “Russian presidential election” and the powers of the self-proclaimed Head of State. Furthermore, OPORA is trying to counteract the enemy’s continued attempts to manipulate public perceptions. In particular, we published the following information materials:
- Legal note on the impossibility of holding elections under martial law
- Why there can be no presidential elections until the end of martial law
- Why undemocratic elections affect the (il)legitimacy of presidential power in Russia.
Many videos on these topics are available on our YouTube channel “OPORA talks”.