By-elections - first month of campaigning

On November 27 and December 22, 2020, the Central Election Commission called the by-elections of people’s deputies in single-member constituencies No.50 (Donetsk oblast) and No.87 (Ivano-Frankivsk oblast), correspondingly. By-elections were called in connection with the victory in regular local elections gained by MP Ruslan Trebushkin, who ran for mayor of Pokrovsk, and MP Zinoviy ​​Andriyovych, who was elected head of Nadvirna territorial community.

The electoral process in by-elections is governed by the Law of Ukraine “On Elections of People’s Deputies of Ukraine” that ceased to be in force and effect following the adoption of the Electoral Code (except for provisions relating to the organization, preparation and conduct of by-elections of people’s deputies of Ukraine). This led to a number of organizational and legal problems, in response to which the CEC published several clarifications on the matter of preparation of various stages of the electoral process.

Nomination and registration of candidates, formation of district election commissions and campaign rollout were the key organizational stages in the first month of electoral process taking place under quarantine restrictions and red-alert level of epidemiological risk in Ivano-Frankivsk oblast.

OPORA’s observers would like to draw stakeholders’ attention to unsatisfactory situation with regard to implementing the government resolution on the procedure for undertaking anti-epidemic measures during organization and conduct of elections. First of all, this problem manifests itself in inadequate supply of personal protective equipment to the election commissions, non-compliance with relevant technical procedures and failure to inform voters about specifics of implementing anti-epidemic measures in the course of organization and conduct of elections. Continuation of current practice in a pandemic environment poses the risk of destabilizing the final stage of electoral process, including the vote on Election Day – March 28.

In the process of examination of submitted documents the CEC refused to register 30 potential candidates on reasonable grounds (as of March 1). The main reasons for denial of registration included non-compliance with the requirements for payment of security deposit and violation of the procedure for submitting financial declarations by persons authorized to perform the functions of the state or local self-government. Members of the CEC debated on the resolution to register Artem Marchevskyi as a candidate (nominated by the “Opposition Platform – For Life” party), whose election program called for restoring cooperation with Russia and the CIS countries and “putting an end to thoughtless Ukrainization”. As a result, four CEC members abstained from voting on the resolution. However, the CEC is not empowered to establish the fact of non-compliance of candidate’s election program with requirements of the law, while determination of such a fact does not constitute legal grounds for refusal to register a candidate.

As of the beginning of March, only 6 out of 25 registered candidates in district election constituency No.50 (administrative center – Pokrovsk) and five candidates in DEC No.87 (administrative center – Nadvirna) were conducting noticeable campaigns. Despite the absence of large-scale campaigning activity, it is evident that several parties and candidates launched their campaigns long before the official start of electoral process. Election campaign in the regions generated strong interest from parliamentary parties and national-level politicians. All parliamentary parties nominated their candidates in the by-elections of people’s deputies.

The practice of launching campaigns before official registration and setting-up of election fund accounts was the key problem of campaigning activity at the initial stage of electoral process. Legal uncertainty and the absence of formal requirements for regulating pre-term campaigning aggravate the problem of shadow campaign finance and prevent the public from exercising control over income and expenditures incurred by potential candidates. As a result, electoral subjects find themselves in unequal conditions which has a negative impact on the overall level of competition in the election campaign. 

Meetings with voters and outdoor advertising of candidates were the most commonly used methods of campaigning. According to our observations, the candidates refrain from making extensive use of traditional media at local level, while direct communication and political advertising on social media platforms, including Facebook, are gaining popularity.

Direct interaction in the form of meetings is aimed at certain social groups and institutions (the youth, senior citizens in the court-yards of residential buildings, health workers, religious community) and is often accompanied by covert agitation combined with provision of material benefits to voters and organizations under the guise of charitable assistance. In practice, charitable foundations are officially in charge of such activities performed on behalf of candidates, since the law “On Elections of People’s Deputies of Ukraine” does not expressly prohibit their involvement in pre-election campaigning. For instance, candidate Oleksandr Shevchenko standing for parliament in the election constituency No.87 is involved in public events of charitable fund “Tilky Razom” founded by Ihor Palytsia (candidate’s fellow party member). Charitable fund “Association of coal mining cities of Donbas region “Shakhtarskyi kharakter” founded by potential candidate Andriy Aksyonov performs similar activities in the election constituency No.50. According to OPORA’s observers, candidates Ruslan Koshulynskyi and Marusya Zvirobiy-Bilenka also provided charitable assistance.

Candidates are ready and willing to violate democratic election standards by taking advantage of the imperfection of electoral legislation while avoiding legal liability for provision of material incentives to voters. Law enforcement agencies and lawmakers must adequately respond to cases of “pre-election charity” that became a tradition for Ukrainian elections in single-member majoritarian constituencies.

In February, people’s deputies were actively involved in pre-election campaigning, which is neither prohibited nor allowed by the law “On Legal Status of People’s Deputy of Ukraine”. However, the risk of abuse of administrative resources in by-elections is primarily associated with the participation of state officials and incumbent MPs in the election campaign as candidates and their efforts to mobilize support from public administration representatives at various levels. For example, incumbent mayors of cities in election constituency No.50 demonstrated covert and outspoken support for one of the potential candidates, who wasn’t officially registered at that time, during working hours. Such actions create non-competitive advantages for certain electoral subjects, although they do not constitute formal grounds for prosecution of local government officials.

The situation with regard to organization of electoral process insofar as it relates to the functioning of district election commissions and reorganization of departments responsible for maintenance of State register of voters is still an unresolved and controversial issue. In particular, the absence of specially equipped premises in DEC No.87 resulted in inadequate supply of material and technical resources which made it impossible to organize proper maintenance and usage thereof. Furthermore, as of the beginning of March, the departments responsible for maintenance of State register of voters in the newly formed Ivano-Frankivsk and Kramatorsk rayons remain inoperative. These departments are authorized to provide (record keeping) services to voters in certain localities within the boundaries of single-member constituencies No.50 and No.87. The unresolved issue prevents voters from exercising the full range of rights conferred to them during organization of by-elections of people’s deputies.