By-elections - preliminary statement

Civil Network OPORA administered a comprehensive independent observation over the course of interim elections of people’s deputies in constituencies No 50 (Pokrovsk, Donetsk Oblast), and No 87 (Nadvirna, Ivano-Frankivsk Oblast). We focused on the legality of procedures, competitiveness of the campaign, and its compliance with the international democratic standards. On the election day, March, 28, OPORA ran a short-term observation that included the registration of violations and abuse, and the quality assessment of procedural compliance by all electoral actors. In total, there were 45 observers administering the non-partisan monitoring on election day, while the long-term observers will continue their work in the constituencies until the election results are established.

According to OPORA, the election campaign was characterized by a high level of competitiveness between the candidates. However, there were some cases of administrative influence and breaking of campaigning standards. It testifies to the need to have a legislative regulation of activities of officials and civil servants from public administration authorities during the election process, and to develop legal approaches to prevent the practices of implicit campaigning and financial incentivization of voters (such as in the form of an electoral charity). 

Engagement of officials from local self-government in de facto pre-election campaigns to support various candidates goes against the democratic standards of public administration functioning. The challenge of the election process was aggravated by the official meeting conducted by the President of Ukraine Volodymyr Zelenskyi on the epidemiological situation in Ivano-Frankivsk Oblast engaging Vasyl Virastiuk, a candidate in constituency No 87. On election day, March, 28, in Ivano-Frankivsk Oblast, a head of regional state administration and people’s deputies of Ukraine from the “Servant of the People” deputy faction held a press-conference on decentralization and other aspects of local self-governance development. The event did not include any campaigning slogans expressed by the participants but OPORA drew the people’s deputies’ attention to the need to clearly distinguish between their deputy-related activities and the party-related objectives of the current election process and attempts to attract voters’ attention to candidates. Therefore, making use of the administrative resources for electoral purposes has been a serious issue, whereas the peculiarity of this election process in Ukraine is the engagement of various political forces to the respective resource misuse. 

A specific expression of administrative influence on the course of election process was when people’s deputies were making use of their status and powers to interact with the local self-government bodies or their officials in order to participate in the candidates’ electoral campaigns. This type of interaction of people’s deputies with the representatives of local communities incentivized the breach of the principle of political neutrality of public administration. 

Running the pre-election campaigning beyond the statutory terms and implicitly (such as through the activities of charitable funds and initiatives) has been a key factor, among others, to keep the electoral finance in shadow. It affects the campaign competitiveness and puts the electoral contestants onto an uneven playing field. During the interim elections, OPORA registered the ongoing cases of financial incentives to voters though the dissemination of medical equipment, food packages on behalf of candidates or the related charities. The pre-election activities with elements of implicit voter bribery were undertaken by the pro-active candidates, such as Oleksandr Shevchenko, Ruslan Koshulynskyi, Marusia Zvirobiy-Bilenka (in constituency No 87), Andriy Aksionov (in constituency No 50). On the other hand, on the eve of the election day, people’s deputies of Ukraine from the “European Solidarity” party faction informed about the delivery of oxygen concentrators to hospitals within the constituency No 50. Amidst the election process, this activity includes elements of failing to abide by the law banning the indirect voter bribery.

OPORA hereby calls upon the National Police of Ukraine to investigate all claims and reports on the possible violations of electoral law, with a keen focus on the facts of voter bribery and attempts of illegal ballot. Specifically, on the election day, reports have been received from electoral actors on the possible corruption of voters on the election day in constituency No 87 (Ivano-Frankivsk Oblast). According to the reports from law-enforcement officers, they ran the on-the-spot check of an incident concerning the possible transfer of money to voters in an unidentified car. Although the urgent police check failed to confirm the transgression, observers insist on ensuring the comprehensive investigation of the reports. In constituency No 50, the National Police of Ukraine announced about the investigation of an incident on the possible illegal ballot casting into a ballot box at a polling station in the town of Myrnohrad, Donetsk Oblast.

The growing role of religious organizations and communities in election process poses risks for the politization of religious organizations and undermines the trust to the election process, with no guarantees for the equal access of candidates and parties to interact with voters in the institutionalized and collectively organized form. 

The process of voting and vote count testified to the need to make further legislative steps to reform the election administration system and to enhance the professional principles for election commissions. On the election day, we faced the outcomes of the low awareness raising for PEC and DEC members who would often break the anti-epidemic measures.  

Breaking the law during the vote and the vote count at polling stations

OPORA observers provided for the observation over all voting and vote count procedures at 20 polling stations in each of the single-member constituencies (constituency No 50 and No 87).   The organization’s representatives identified and verified 41 cases of breaking the electoral law in the single-member constituencies. The observation findings have not been representative for the entire voting process and the vote count but they manage to highlight its key challenges and trends.

 On March, 28, OPORA observers registered a direct and indirect failure on the statutory requirements and election standards banning the campaigning activities on election day. The campaigning materials of candidates have not been taken away in due time, whereas certain candidates intentionally posted the implicit political ads. Specifically, the implicit outdoor political ads were massively posted in constituency No 50 in favour of a candidate Andriy Aksionov.  

OPORA observation identified major issues in the material and technical support of election commissions and voting premises. At 10 polling stations in the two constituencies, there were various degrees of violations of the requirements on the number of ballot boxes, voting booths, anti-epidemic standards and conditions for access to voting for people with limited mobility.

On the election day, OPORA observers in constituency No 87 (Ivano-Frankivsk Oblast) registered some attempts of voters to receive the ballot papers without presenting due IDs (they presented driver’s licenses, international passports, etc.). 

In single-member constituencies No 50 and No 87 some attempts have been identified when voters tried to vote in lieu of their family members. It has been historically common in Ukraine’s election for people attempting to vote in place of their family members, which requires a full-fledged awareness campaign by the government. 

Certain incidents registered during the vote contained elements of illegal technologies. Specifically, at a polling station No 260502 (constituency No 87),  OPORA observers and a PEC chairperson identified a voter taking photos of their ballot paper in a voting booth.  Upon the inspection, the fact was established of the voter’s photographing the filled ballot. However, the police officer made a decision to let the citizen freely leave the polling station. The police officer claimed there was no fact of photographing the filled ballot by the voter, which does not correspond to reality, according to observers. OPORA hereby urges the National Police of Ukraine to additionally explore into the circumstances of the incident and provide a legal evaluation. 

During the vote, OPORA representatives at certain polling stations found out about voters missing on the voter rolls, in spite of their right to be included. Although there are no grounds to qualify the large scale of the issue, the incidents testify to the need to conduct the full-fledged audit of the State Voter Register.

PEC members made a series of violations of election procedures at the polling stations attended by OPORA observers. Specifically, at two polling stations in the single-member constituency No 87, the PEC members were given more ballot papers than stated in the relevant official extract to enable the voting at a place of stay. At a polling station in constituency No 87 (No 260504) some ballots were left with the PEC chairperson to keep, although they shall be distributed among the commission members.

 OPORA official observers also responded to cases of handing out the ballots and processing voter lists by one PEC member instead of two, which goes against the electoral law requirements. Moreover, the organization representatives also noted that members of certain PECs did not ask the voters to shortly lift their facemasks to properly identify them. 

At the polling stations of constituencies No 50 and No 87 attended by OPORA observers, the vote count ran with no gross violations. Thereat, the organization representatives registered certain incidents when the vote count protocols stated the wrong time of their drafting, breach of count procedures for ballots and control vouchers, and other requirements to the respective process. At the polling station No 260336 (constituency No 87), the PEC chairperson refused to issue a copy of a vote count protocol to an observer. However, upon the declaration of intention to address the police to protect their rights, he agreed to abide by the requirements of the acting law of Ukraine. At a polling station in constituency No 50, a PEC secretary transported the electoral documentation to the DEC, although it shall stay at PEC premises, according to the law.

It should be mentioned that PEC members failed to fully ensure the compliance with anti-epidemic measures, such as face mask requirements. The fact may testify to the low awareness raising conducted for commissioners.

Voter Turnout

According to preliminary estimates, the voting administered amidst the quarantine restrictions was attended by 21.02% voters of the single-member constituency No 50 (Donetsk Oblast) and 35.05% in SMC No 87 (Ivano-Frankivsk Oblast).  Following the extraordinary elections of people’s deputies of Ukraine in 2014, Ukraine has had interim elections in 12 single-member constituencies, of which the lowest turnout was registered in constituency No 183 in Kherson Oblast in 2016  (16.39%).  Electoral law of Ukraine does not set any requirements to the turnout in order to recognize the elections as such that have taken place. Voter turnout at the interim elections to the Verkhovna Rada of Ukraine depends on the intensity of campaign and the level of competition between the electoral actors.  In 2021, at elections in constituencies No 50 and No 87, pandemic was an important factor affecting voter motivation to participate in the vote. OPORA urges the Government of Ukraine and local self-governments to analyze the abidance by the anti-epidemic measures at the interim elections of people’s deputies in order to enhance their efficiency in suchlike situations. 

Voter turnout at the interim elections of people’s deputies of Ukraine (2015-2021)

Recommendations

To candidates for people’s deputies of Ukraine

• To refrain from undermining the DEC operations and support the lawful process of establishing voting results.
• To use all possible options to prove the violations they recorded, regardless of the obtained results.

To the National Police of Ukraine

• To provide for the comprehensive and unbiased investigation of reports and complaints about the violation of electoral law and inform the public about their preliminary findings.

To DEC

• To ensure the legal nature of establishing voting results in constituencies and to duly respond to complaints from electoral actors.

To the Verkhovna Rada of Ukraine

• To initiate a public discussion on the need to provide comprehensive improvements to the law and review the current practices of officials and civil servants of different levels in exercising public functions during the election process.
• To improve the statutory system for accounting and control in the field of electoral finance during the election process with regard to the human capacity and the scope of powers of election administration bodies. 

To the CEC

• To take measures to ensure due access of voters and election commissions to the data base of the State Voter Register for them to implement the election procedures as part of the current restructuring of the network of departments of the State Voter Register keeping authority.