Analysis of latest draft law on changes to the Electoral Code

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:

STRENGHTS

• 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:

RISKS

• 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