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Comments
Election administration
International cooperation
Administrative consideration for the CEC
Nomination and registration of candidates
Voting procedures
Voter participation and ceilings
Sanctions and penalties
Acts of God and annullation of elections
Election administration
The draft Federal Law has been prepared in accordance with the Federal Law «On Basic Guarantees of Electoral Rights and the Right of Citizens of the Russian Federation to Participate in a Referendum.» In view of this fact assessment of many legal provisions embodied in the draft Federal Law was predetermined at the time when the Federal Law «On Basic Guarantees...» was adopted. IFES is aware of the guarantees enshrined in the Federal Law «On Basic Guarantees…» although the comments herein may go beyond the norms established in the said Law. IFES notes that a majority of its recommendations made in the attached report, 1996 Presidential Election: A technical Analysis, have since been addressed in the Draft Law or other electoral laws. The Draft Federal Law marks yet another milestone in the development of a strong and comprehensive electoral system in the Russian Federation.
The draft Federal Law reproduces the main parameters of the election system used in the presidential elections: nominators and form of nomination of candidates, voting procedure, procedure for determining election results. IFES identifies several areas where changes could have a significant impact within the realm of election administration. The issues mentioned below follow the order of the Draft Law.
We take the liberty to mention that in our opinion, on the overall text of the law, the draft Federal Law has certain shortcomings from the standpoint of legal techniques and clarity. These are found in the repetition of the same provisions, the variance in the terms used with a presumably same meaning, and the formulation of the norms the compliance with which is difficult to check. On one hand, the specificity of Russia’s legal environment, in particular the absence of stare decisis in the courts, requires a substantial level of detail in election its laws. On the other hand, legislators should be aware that based on IFES’ experience the expansion of the a law makes it increasingly difficult to administer while reducing the ability of participants in the electoral process to appreciate all the nuances it contains. In some respects, the electoral law is similar to a taxation code in its level of detail and all-encompassing scope.
It is particularly important to highlight the need of consistent use of terminology throughout the text and that of specific deadlines by a responsible party for actions or decisions to be undertaken. Deadlines should leave no room for interpretation and be consistent. The current draft switches from time to time from «no later than 60 days prior» to «60 days prior» election day. In terms of terminology, the term «political public association» provides a striking example of this issue. According to the standard rules of interpretation, the use of different terms must infer a different meaning. The term «political public association» is defined in the Law on Basic Guarantees within the framework of an electoral association as «a political party, political organization, political movement…» (Art.2). However, what presumably is the term «political public association» is expressed in the law as an «all-Russian public association»1, an «all-Russian political public association»2, a «political public association»3, or as simply as a «public association»4. These technical details are highlighted as they can distract the political debate from major societal issues to the interpretation of details of the electoral law.
International cooperation
The Article 12 of the Draft Law defines the status of election commissions for the election of the President of the Russian Federation. IFES respectfully suggests to clarify the ability of election commissions to enter in cooperative ventures with international organizations and movements who support in a neutral manner the electoral process. For example, the CEC of the RF should be able to continue to cooperate with international partners during the election process, in support of voter participation, training, and other informational initiatives as long as it deems it profitable for the carrying out of its duties.
On another matter, the formulation of Clause 6 of Article 12 creates an uncertainty as to whether a court may take a decision on the substance of the matter when adjudicating an appeal against a decision of an election commission. While it is in the interest of the electoral process to empower the electoral authorities with the maximum authority and power, the inherent guarantees offered by a judicial review process requires, in our opinion, that they can review the substance of the matter at hand in the interest of expediency.
Administrative consideration for the CEC
ARTICLES 15, 16
These articles should be clarified to indicate that members appointed by registered candidates who lost the first round are removed for the second round. In addition, these articles are rather vague concerning the duties and rights of non-voting members of election commissions. Non-voting members should have a specific term. Normally, non-voting members should have all rights given to voting members except a voting right.
Nomination and registration of candidates
One of the positive features of the draft Federal Law is that it sets forth in more detail the procedures for the formation and functioning of electoral blocs and lays down more clear-cut requirements to collection of voter signatures and their verification. The need to address these problems was stressed in the technical analysis of the 1996 presidential elections of IFES referenced herein. An example of this is the allowance to randomly check a sample of the signatures. At the same time, there is room for improvement of the suggested procedures.
ARTICLE 29
The clause 5 of Article 29 according to which registration of an electoral bloc may be refused because of «other violations of this Federal Law» runs contrary to the principle expressed earlier of the necessity to have a graded scale of penalties for various violations to the electoral law. This formulation creates uncertainty when the question of registration of a bloc is to be decided because the law does not contain an exhaustive list of reasons for which a bloc may be denied registration. The international experience demonstrates that such important issues should be decided upon a set of pre-determined conditions with little discretion on the part of the administrative authority. Note that the same provision is found Clause 3 of Article 39.
ARTICLE 37
While we understand the need to limit possible «escape hatches» of candidates’ assets, lawmakers may want to reconsider Article 37(1) (d). This provision requires that candidates in their statement submitted to the Central Election Commission of the Russian Federation indicate the income and property not only of their spouse but also their children. It is customary for a candidate or a person who is going to hold an important public office post to make a statement about their income and property. This helps to deter and detect fraudulent people going into or out of office. On occasion, these disclosure norms also include the spouse of the person; however, they rarely include children. The requirement for the spouse is quite logical because the candidate and his/her spouse may own common property. Including children of any age can put the candidate at a disadvantage for three reasons:
1. An adult child has no legal obligation to disclose his income to his parents;
2. A candidate, and in particular his children, have an inherent right to a private life;
3. A candidate could be disqualified for a false declaration of income for someone over whom he had no control.
IFES respectfully suggests to lawmakers to limit the provision to non-adult children, if such criteria should be maintained at all.
Voting procedures
ARTICLES 63 (10) and 65
The article 63 defines the requirement for the ballot while article 65 regulates voting procedures. The Draft Law generally reproduces the procedures that are well defined in the Law on Basic Guarantees. However, there is an opportunity for expanding significantly the security of the overall electoral process through a simple measure that has no additional economic cost. Article 63(10) requires the precinct election commission to seal and sign each ballot they receive without specifying a time limit to do so. The current practice is to have the PEC affix their seal prior to election day. Doing so increases the risk of having valid ballots go in the wrong hands. Therefore, the purpose of sealing the ballots is nearly completely defeated when it is done prior to election day. If the goal is to increase the measures of security in the process, then having the seal of the precinct election commission added on the moment a voter is admitted to participate in the election is the best time. At that point, only qualified voters will receive valid ballots. Otherwise, over 100 million valid ballots will be stored in 90,000 locations for a few days prior to the election process. The sealing of ballots at the precinct election commission level on the day of the election will not result in unacceptable delays for the voter given the level of experience of the poll workers and the size of the precincts. This is a simple measure, followed in many countries, which keeps control on ballots until the moment when qualified voters need them. Article 63(10) could be amended to specify when the seal is affixed by the PEC.
ARTICLE 67
Considerable progress has been made in the regulation of the procedure for voting outside the polling station. Many suggestions that were made by IFES before in connection with the presidential elections have been, in one way or another, embodied in the Federal Law «On Basic Guarantees...» and in the draft Federal Law under consideration. At the same time, we believe that the law must state how many ballot papers are to be given to members of a precinct election commission when they are to conduct voting outside voting premises. The number of ballot papers might be given in percent of the number of applications for voting outside the voting premises, while keeping in mind that voters may spoil some ballot papers. The Draft Law already stipulates in Article 67(4), for example, that no more than three (3) mobile boxes should be used. The extension of this requirement is that the number of ballots should also be limited for voting outside the polling station.
Voter participation and ceilings
The article 72 relates to the determination of the results of the election of the president of the Russian Federation. The relevant sections of the article read as follows: 4 (a) «The CEC of the RF shall declare the election (…) not to have taken place if: less than half of the voters included in the voters list took part in the election…». The establishment of a floor level of participation of 50% of the voter list could have serious political consequences if this level was not reached on election day – which, as the experience of Ukraine’s Parliamentary elections shows, outweigh any benefit of high participation. What would be the consequences of not reaching this threshold on the first round? For the second round? Also, While the voting is done on a voluntary basis, the Draft Law establishes nonetheless that a minimum of 50% of the voters must participate – rendering the «voluntary» aspect only applicable to an unidentified half of the electorate. In addition to the ensuing political crisis, candidates and electoral associations would be penalized by having to campaign all over again, at their expense, in another election. Finally, the establishment of a high quorum may lead some groups to seek to lower participation at any cost to have the legal basis to annul the elections.
For this reason, the international experience shows that quorums of participation in national elections are generally avoided. Either voting is compulsory as in Australia and Peru or it is voluntary as in Canada, the United Kingdom, and Germany, amongst others.
Sanctions and penalties
Generally, the scope of normative regulation of election procedures is much wider than in the current Federal Law «On Election of President of the Russian Federation». The draft Federal Law provides for much tougher sanctions against candidates for violation of various rules laid down by the election law, while leaving little change in the «life or death» approach for the sanctions and penalties. It is important that the sanctions established for various offences be adequately «graded» to the gravity of the offence and their application be predictable for the participants of the electoral process.
In the draft Federal Law under consideration the scope of normative regulation of election procedures is much wider than in the current Federal Law «On Election of President of the Russian Federation.» The draft Federal Law provides for much tougher sanctions against candidates for violation of various rules laid down by the election law. These changes establish fundamentally new conditions for the main participants in the election campaign - candidates, electoral associations, electoral blocs as well as members of election commissions responsible for the organization of the electoral process. With this perspective in mind, it is highly important that the requirements laid down by the law to the performance of various electoral actions be formulated as clearly as possible, making impossible any arbitrary interpretation on the part of law enforcement bodies. It is just as important that the sanctions established for various offences be adequate to the gravity of the offence and their application be predictable for electoral associations and electoral blocs.
The international experience shows that enforcement of electoral laws is notably weak in most established democracies.5 This situation is due in part to the political nature of the process, the difficulty in removing from office an elected candidate, the vigor with which candidates under scrutiny will defend themselves- in comparison to few resources on the part of the electoral commission. This is true in spite of the fact that graded penalties are generally offered in the arsenal of options at the disposal of the enforcing body. Having penalties that match the level of an offence is essential to ensure a fair process that will not disqualify candidates on smaller technical issues.
ARTICLE 80
As a rule, the sanction in the form of annulment of a candidate's registration should be minimized to the worst cases of electoral abuses. Once registered, numerous grounds on which a candidate's registration may be annulled are established by Clause 3 of Article 80. They will hang over all candidates like a sword of Damocles and it is quite unclear from the draft law what criteria are to be used to determine whether a violation of law is essential or not. We respectfully propose to define what is an essential violation. For example, violations that do not jeopardize normal conduct of the elections should not lead to disqualification. For this purpose, it is necessary to establish a differentiated system of sanctions for violation of election laws.
ARTICLE 81 Clause 6: Violations of Campaign Rules
The Clause 6 of Article 81 stipulates that any infraction committed by the losing candidates shall not provide grounds for the results of the Presidential elections to be voided. This rule, well-intentioned though it might be, may amount to a most convenient legal shelter for the so-called «dirty» election technologies. Infractions have an impact on election results; this linkage is of principal importance. Clearly, while committing infractions, one can work to have some other party lose (firstly) or a third party win (secondly) rather than secure one’s own victory. We respectfully suggest that criteria be added in this provision to the effect that, for example, the infractions committed by the losing candidate were not made with an aim to support the winning candidate.
Acts of God and annullation of elections
The legal regime of the state of emergency in the Russian Federation is regulated by the Constitution of the Russian Federation and RSFSR Law No. 1253-1 of May 17, 1991 «On the State of Emergency.» Under Articles 56 and 87 of the Constitution of the Russian Federation, the procedure for declaring a state of emergency and its regime is to be established by a federal constitutional law. At this time, there is no federal constitutional law in place providing the specific procedures and regime for the declaration of a state of emergency. «Acts of God» and other disturbances may occur during an election – what are their impacts on the validity of the overall process?
Only one provision that regulates «acts of god» in terms of their impact on polling is found in the Law on Basic Guarantees. Article 14(3) of the BG Law states that a referendum shall not be held when a state of emergency is declared in the territory of the Russian Federation, or in the territory where the referendum is to be held, and also within three months after a state of emergency has been lifted. This provision does not cover elections.
International experience with natural and social crises in times of elections shows that basic conditions of infrastructure, social cohesion, and the ability of electoral and governmental authorities to carry out elections are essential for elections to take place in crisis situations. In terms of elections, Caribbean nations, for example, have faced extraordinary situations in times of elections due to cyclones, hurricanes, floods, or other such natural disasters. Their main remedy is to either postpone elections in part or a whole of the country, depending on the magnitude of the crisis. The coastal states in the United States, such as North Carolina or Florida, have emergency provisions in their state election law that allow their election commission to suspend or adjourn an election in whole or in part due to «acts of god» according to specific criteria. In the Philippines, in May 1998, national congressional elections were suspended in a small part of the country due to a local rebel insurgency. In the majority of cases, the usual approach is to limit the suspension of electoral rights to a geographically limited area within a country in times of crisis.
In this respect, we submit for discussion the idea of having in the draft law specific provisions that would establish the impact of a state of emergency or other natural or civil disasters on the electoral process. It is important that any such provision in particular delineates the responsibility of the body responsible for deciding on this issue.
1 Draft Law, Article 21(9)
2 Draft Law, ARTICLE 28(1)
3 Draft Law, article 28(3)
4 ibid, articles 30(3), 36(5)
5 Administration and Cost of Elections Project, UN/IFES/IDEA, 1998.
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