OPORA Statement on Adopting Electoral Code Upon its Second Review

Civil Network OPORA hereby welcomes the efforts of Verkhovna Rada of Ukraine to build a dialogue and reach a compromise on the Electoral Code. Political legitimacy of the law is an important element of building public trust to the institute of elections.

Second review of the Electoral Code does formally complete a lengthy process for codification and improvement of electoral law in Ukraine. The process was controversial and politically contested but the people’s deputies of Ukraine successfully fulfilled their long-standing commitments to approve the Electoral Code.

Electoral Code includes both advanced and inefficient provisions. It is the outcome of taking into account various political interests. The veto from the President of Ukraine allowed to address certain significant challenges of election process that cover a wide range of rights or procedures. A real breakthrough managed by the Parliament was in the elimination of barriers to enable participation of internally mobile citizens.

Despite the closed nature of certain stages of discussions between the parliamentary factions the work on changes to the Electoral Code revealed cases of high quality interaction between the parliamentarians, a parliamentary committee the CEC, and experts. The practice also provided for understanding of the needs, interests, and motivations of actors. It is equally important as the final drafted document.

People’s deputies of Ukraine declared their intention to readdress the Code in February, 2020. Therefore, OPORA will insist on an inclusive and public process. Verkhovna Rada of Ukraine has all due capacity and experience to further administer the election reform on the basis of a broad parliamentary compromise. Adoption of the Electoral Code shall be synchronized with the enhanced efficiency of sanctions for electoral fraud and procedural possibilities to identify and investigate the violations.

The major challenge for the new Code was a decision of the parliament to restrict the openness of voting lists at parliamentary and local elections. The position contradicts the remarks from the President of Ukraine expressed in the veto, whereby he openly spoke against allocating mandates to the top ten candidates according to the party’s order of priorities. The Parliament failed to make a step forward on issues related to taking into account the role of social media and the Internet in electoral process since the Code remains outdated in this respect.

Another debatable aspect is the fact of deleting provisions on the CEC and the State Voters Registry, while keeping effective the special laws. The CEC powers and the aspects of functioning of the State Voter Registry are beyond the Code regulations (such as on referenda). However, some people’s deputies of Ukraine and experts deemed the adopted decision as an attempt to avoid a comprehensive reform of the law on CEC, thus keeping the status quo.

An important achievement of the improved Code is enfranchising Internally Displaced Persons, labour migrants, and other internally mobile citizens. Voters can apply to Registry Authorities with a justified application to change the voting address to vote at all levels of elections. The progress of Ukraine on that matter is obvious but the CEC still needs to adopt quality by-laws and inform citizens on new procedures. After the remarks of the President of Ukraine, it was made possible to keep guarantees for political participation for people with disabilities on the level of the Parliament and in certain aspects. Cabinet of Ministers of Ukraine was assigned, among other things, to secure an ongoing monitoring of polling stations for persons with disabilities, on the grounds of the designed criteria. On the other hand, local authorities are obliged to provide for accessibility standards to all polling stations before 2025. OPORA urges the parliament to continue the work to further take into account the elaborated guarantees for electoral participation for people with disabilities. OPORA also commends the fact the Code kept the mechanisms for a balanced representation of two genders in political party voting lists.

The Code succeeded in certain advancements on electoral data. In particular, on the level of the law, they regulated the publication of the CEC decisions and the data sets in all DECs in a machine readable format. However, according to OPORA’s estimates, the list of available electoral data is not extensive, and as soon as in February, the Parliament is recommended to expand the opportunities for citizens to access information on elections.

The Code includes an innovative possibility for CSOs to register their observers on the CEC level, to be able to conduct a full-scale observation over its operations. A positive consequence of the parliamentary dialogue was to reject provisions from the list of proposals that related to expanding the grounds for rejection and cancellation of candidate registration, and on the unjustified amplification of CEC powers. The Parliament cancelled the reform discrediting decision of their predecessors to postpone the effective date for the Electoral Code until December, 2023. Moreover, it provided for its application since next January.

On December, 19, 2019, Verkhovna Rada of Ukraine adopted the Electoral Code upon its second review. The Code was approved in July by the previous parliament and vetoed by the President of Ukraine Volodymyr Zelenskyi. The Parliamentary Committee on public administration, regional development, local self-government and city planning processed the proposals from the President of Ukraine in two phases. The first phase included the work of a joint group of Ukrainian MPs and representatives of civil society. On phase two of considering proposals to the Code, they held non-public consultations between the deputies, without engaging the independent experts. Upon the veto administered by the head of state, a parliamentary committee has adopted different versions of changes to the Electoral Code three times. Of them all, it was only the last version that managed to be consensual for the parliamentary political groups. The dialogue success was fostered by the decision of Dmytro Razumkov, Chairman of the Verkhovna Rada of Ukraine, not to submit the Code to vote on December, 5, 2019, without reaching an agreement between the deputy factions and groups.

The President of Ukraine made 17 remarks to the Electoral Code, though not arranged in the format of specific changes to the text. Volodymyr Zelenskyi also highlighted that the list of remarks was not exhaustive. Verkhovna Rada Committee processed the remarks from the President of Ukraine without any specific criteria for their adoption. In fact, no list of articles and chapters of the Code was suggested to restrict any possibilities of the parliamentary committee to introduce changes thereto.

General remarks of the President of Ukraine related to the following needs: distribution of all mandates exclusively on the basis of the personified voting; following the gender quota in the lists in case of rejecting the candidate registration; securing voting rights for internally displaced persons and people with disabilities; regulating the issue of residence requirement and its fulfilment by the candidates; enabling equal access of presidential candidates to compose the DECs and polling stations commissions to avoid prevalence of parliamentary parties; enhancing the rights of NGOs for judicial appeals; eliminating the restrictions for the parties eligibility to nominate candidates only upon having their branches in 14 regions; saving budget funds by canceling reimbursement of campaigning costs for parties with 2% of votes, and to some other electoral actors; regulating the status and the funding of TECs that qualified as permanent bodies in the previous version of the Code; providing for legality of procurements during elections; introducing limits for election funds and bringing the Code into conformity with other laws. However, the Committee on organization of public administration, regional development, local self-government and city planning considered the issues that reach beyond the presidential remarks.

During the consultations between factions appointed by the Chairperson of Verkhovna Rada of Ukraine, a key issue was that of opening party voting lists under the proportionate system. At Ukrainian parliamentary elections, at elections to regional and local councils (90,000 and more voters), a proportionate voting system with open lists is suggested. A voter will be able to vote not only for a party but also for its certain candidate. According to the final version of the Code, deputies decided to reject the proposal of Volodymyr Zelenskyi to introduce a proportionate system with fully open voting lists.

Changes to the Code foster the increased party influence on distribution of mandates and the reduced effect of the personified voting.

Volodymyr Zelenskyi objected to the provision of the Code former version to distribute 10 first mandates of the voting list according to the order of priority determined by the party. Additionally, they raise concerns on the possibility to distribute “compensatory” mandates on the national level without having voter’s votes impact the candidate promotion.

Changes to the Electoral Code not only ignore the remarks from the veto, but also undermine the influence of voters on promotion of candidates in voting lists of the passing parties. The effect results from keeping the 9 mandates (one less than before) “protected” against the influence of votes, and the implementation of excessive threshold to move the candidates up the lists.

To move up the regional lists, candidates need to get at least 25% of the national quota (at least 7,000, when modeling the 2019 election results). In the event the voters reject the personified voting, the candidates from the passing party will find it difficult to overcome the established threshold. In this case, deputy mandates shall be distributed by the order of priorities established by the parties, while in practice, the system is going to function upon analog to the closed proportionate system.

OPORA conducted a simulation of electoral system on the basis of 2019 parliamentary elections. The requirement to get 25% of the electoral quota to promote a candidate, and also fixing the 9 guaranteed mandates for each party overcoming the threshold rather leads to the closing of voting lists for the “small” parties, since the disproportionate high number of their candidates will receive mandates under party order of priorities.

A new ballot template does not facilitate the personified vote for certain candidates. A voter supports the entire party list and may optionally put the position number of the candidate from this party in the end of the entire ballot text. The need to put the marks twice and the inconvenient placement for the number of certain candidate de facto incentivizes voters to keep the voting practice for the closed party lists. Voters will vote only for the party, and will ignore or avoid the support of its specific candidate.

In addition to the issue with open party lists, the Electoral Code also suggests the modification of the proportionate election system which also includes certain other shortcomings. The number of deputy mandates in each region depends on the active approach of voters. The higher the turnout, the bigger the representation of the constituency in the parliament. The approach does not conform with the practice of most democracies with experience to apply a proportionate open lists system. Usually, the number of mandates distributed over the regions depends on the number of registered voters. It enables stable proportionate representation of all regions in the parliament; whereas it will not be dependent on the changeable turnout rates. For example, temporary security escalations or even the weather conditions may reduce the voter turnout. Consequently, the region will be underrepresented in the parliament for 5 years. Dependence on the number of mandates in the region on the turnout may provoke local elites to abuse administrative resources and to resort to fraud.

In general, OPORA hereby calls the Parliament’s attention to the need to improve the Criminal Code and the Code of Administrative Offense in order to provide for legitimacy of applying new electoral systems and other provisions of the Code. Back in 2017, the Cabinet of Ministers of Ukraine introduced a draft law (agreed upon by the public and by law-enforcement authorities) on providing for the inescapable nature of punishment for electoral fraud (No. 8270 in the previous parliament). It would be reasonable for Verkhovna Rada of Ukraine and the Government to resume the work to enhance the capacity of law-enforcement officers to prevent, identify, and investigate crimes against citizen voting rights.

Issues of campaigning on Internet and transparency for its funding sources are not going to be settled in the Electoral Code.

People’s deputies of Ukraine rejected the preliminary arrangement to extend the legal requirements on election campaigning and information support for elections also to users of Internet and social media. The scope of political advertising on the Internet is getting increasingly high but the actual costs incurred by candidates do not comply with the actual numbers in their official reports. Previously, the working group of the parliamentary subcommittee agreed to empower the National Council of Ukraine on Television and Radio Broadcasting to conclude agreements with owners of transnational platforms to counteract disinformation and to provide for funding transparency of political advertising. Unfortunately, consultations between factions failed to result in any deletion of aspects related to campaigning and political advertising on the Internet from the Electoral Code. The block of aspects shall become a subject of expert and comprehensive discussions during the future changes in the Electoral Code.

In the Electoral Code, CEC authorities are not going to be excessive, while aspects to reject or cancel the candidates registration shall be settled on the grounds of legal uncertainty.

In the course of discussions, MPs rejected the previous initiatives to empower the CEC to autonomously regulate legal gaps in the Code and compose the managerial staff of the DECs and TECs out of the employees of the territorial units. The proposals were treated by Ukrainian parliamentarians as potential threats for legitimacy and legal certainty of elections, equal representation of candidates and parties in election commissions. Regrettably enough but the Code’s final version kept the TEC right to increase the number of polling station commissions at local elections, upon their decision, with no specific requirements to justify it.

They managed to avoid the non-conformity with the democratic elections standards in the process of candidate registration or cancellation by election commissions. Previously, the parliamentary Committee recommended to provide for the possibility to reject the candidate registration on the grounds of a justified Security Service request on the person’s engagement with crime against the State; or in case the CEC establishes the circumstances evidencing to the candidate’s misleading the voters by his nomination (“technical candidates”). Proposals affecting the presumption of innocence or undermining the legal certainty of election process failed to find support from the Verkhovna Rada of Ukraine. “Technical campaigners” and “clones” shall be counteracted by establishing clear a definite liability for bribing candidates, but not downsizing the democratic election standards on the level of the law, or the conditions for the exercise of voting rights.

In the future, the Code provision on the functioning of media during elections and on campaigning shall be enhanced; the list of electoral data mandatory for publication shall be extended. It is important for the Parliament to balance professionalization of election commissions and participation of candidates and parties in the organization of election exercise. At the bare minimum, it would be reasonable to introduce a mandatory knowledge certification for candidate applying for positions in the DECs and TECs, with the help of the Training Center at the CEC. Additionally, new procedures shall be found for electoral actors and the public exercise to exert control over quality of data and State Voters Register that are currently declarative in nature. Complicated as it is, the discussion is needed on strengthening legal precautions and sanctions on the abuse of administrative resources in electoral interests.

As regards the adoption of the Electoral Code, OPORA hereby recommends to the CEC, to the Ministry of Justice of Ukraine, and to other authorities, the media, and the civil society, to develop a plan for awareness campaigns for voters. On the basis of the plan, it would be reasonable to identify the additional funding sources for voter awareness raising, including also the funds from international donors. We believe, the key focus of awareness campaigns shall be the voting modes and peculiarities of new election systems, procedural details for changing the voting address on the grounds of a motivated voter application.

In the event the Parliament decides to continue the fine-tuning of the Code, the Verkhovna Rada Committee on organization of public administration, regional development and local self-government should timely determine the procedures therefor, and provide for engagement of all stakeholders.

To have due implementation of new electoral systems and the Electoral Code in general, the Cabinet of Ministers of Ukraine shall submit to the parliament, while the Verkhovna Rada of Ukraine shall support the draft law providing the inescapable nature of punishment for electoral fraud. Law-enforcement bodies and the public have joint developments to improve the Criminal Code and the Code on Administrative Offense. At the same time, having the new electoral Code becoming effective with the simultaneous enhancement of guarantees for electoral legitimacy would help avoid the abuse of new procedures and election systems.