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13. General Issues
Throughout this report there have been discussions of various issues that may provide food for thought as lawmakers and election officials review the presidential elections to evaluate its strengths, analyze its weaknesses, and pursue options to continue to build on the solid foundation which has already been built. In spite of the difficulties and sporadic infractions, violations and inconsistencies the presidential elections were carried out in a competent and efficient manner and generally in compliance with the laws and regulations governing election day activity. The voters were well served and were offered full opportunity to freely exercise their right to vote, and through their ballot, to express their political will. Except as noted, the elections have been widely considered an overall success. However, there are issues which will deserve serious consideration as officials and lawmakers continue to build on the systems and institutions that have not been rooted in fertile soil.
Influence of Local Administration
Warranted concern has been raised that undue and improper influence of some local administrative bodies continues to interfere with the fairness of the pre-election campaign and the independence of election officials in the discharge of their duties. The law is quite clear with regard to the participation of local administrations in the pre-election campaign.
- Article 38 prohibits the conduct of pre-election campaigns or the spread of any pre-election campaign materials by «federal bodies of state power, bodies of state power in Subjects of the Russian Federation, bodies of local government, as well as their officials in the process of fulfilling their officials duties.....»
- Article 45 restricts the sources from which candidates may receive financial support for their campaigns. Among them are «bodies of local government, state and municipal enterprises, agencies and organizations.»
In spite of such clear language, there have been a number of complaints that local administrations overtly and covertly violated the law and their actions had gone unchallenged by appropriate electoral and enforcement authorities. A number of examples of circumstances alleged by various candidates and noted by observer delegations leave in question the degree to which compliance with these provisions of law are taken seriously by the officials involved. They illustrate the need for this issue to be addressed if the integrity and fairness of the election process is to be preserved.
A number of observer delegations noted in their reports of election day activity that representatives of local administrations were on hand at a number of polling stations and seemed to be intruding on the work of election officials. In some instances, including those witnessed by IFES observers, local administrators were actually giving orders and directives to the polling station commissions and overseeing the general conduct of activity. Similar observations were reported by election participants. In Chelyabinsk, for example, Yabloko (the Electoral Association supporting Yavlinski) filed a formal complaint with the Subject Election Commission about the intrusive role of administrative authorities at the polling stations. Ultimately, the Subject Commission rendered a decision that the activities of these officials were in violation of the law and later in the day they were notably taking a lower profile. According to Yabloko representatives, however, they observed little change in the second round during which administrative authorities continued their oversight of polling station commission performance. Similar allegations were forthcoming from the Communist Party of the Russian Federation (KPRF).
Another concern that was raised was that observers representing Yeltsin seemed to have been affiliated with local administrative authorities. Because the preponderance of these observers seemed to come from local administrations, it leaves open the question whether they were volunteers or whether they had been drawn into service because of their availability through administrative structures. In contrast observers representing other candidates generally seemed to be more directly tied with the campaigns of the candidates. There is room to consider whether representatives of local administrations should be restricted from participating as deliberative voting members or observers altogether. Their continued presence in these capacities can only served to fuel existing concerns and perceptions about the intrusive or improper influence of administrative authorities in the conduct of election. Article 38 of the Law on the Election of President already precludes these officials from participating in pre-election campaigns in their official capacity. It can be argued that being a partisan deliberative member or observer for a particular candidate falls into this category. Prohibitions against the participation of administrative officials in these roles is warranted to prevent a conflict of interest which could arise due resulting from their potential influence over the conduct of the election itself.
Concern was expressed by the Communist Party Campaign Headquarters in Rostov, that local officials had formed a «shadow» campaign organization which had been registered by the Ministry of Justice. One such group called «Home for the People» sent a solicitation letter requesting financial contributions for the conduct of charitable activities in the region, organization and conduct of youth programs and projects, consultancy and information services for the public, and to acquire «printed and advertising materials for the conduct of election to the bodies of state power.» Nothing in the letter made specific reference to the presidential campaign. The amount being asked for in the letter was 5 million rubles. The letter provided an account number in which the funds were to be deposited that was apparently not related to the electoral fund of the president. However the signature on the letter was purportedly that of the Vice Mayor of Rostov. It was alleged that the letter had been sent to directors of state enterprises, utility companies, work collectives and collective farms. Concern was expressed that this public association was actually an extension of Yeltsin's campaign apparatus and that the funds channeled through its account were probably used for pro-Yeltsin propaganda, side stepping the restrictions of Article 45 against campaign contributions from «bodies of local government, state and municipal enterprises, agencies and organizations.
During its visit to Rostov, IFES observers also received a copy of an instructional document which provided recommendations and discussed procedures which should be followed in developing information and propaganda for the repeat voting to increase voter turnout and to promote a Yeltsin victory. This instructional document was created by the «Oblast Headquarters for Yeltsin Support.» According to its title page, however, the target audience for these detailed instructions was not only the staff of the regional Yeltsin campaign offices, but also to local and regional administrations. Among the details covered in the instructions were admonitions that certain events and actions related to the campaign had become «inadequate and insufficient' during the second round. The activities being described included «organization of anti-Communist meetings; slashing criticism of Zyuganov and communists; and, anonymous criticism.» Aside from the fact that these instructions were directed to administrators who are precluded under the law from engaging in campaign activities in their official capacity, distribution of anonymous propaganda is also illegal. There was no way to ascertain the impact that these instructions had on decisions or activities actually undertaken by local administrative authorities. However, there is a legitimate question as to whether the adequate and strictly enforced boundaries between campaign and administrative functions have been sufficiently drawn. At the very least local administrations should have responded advising the organization of the restrictions of Article 38 prohibiting local administrations from engaging in any pre-election campaign activity or distribution of campaign propaganda. And, of course, the question as to appropriateness and legality of distribution of instructional materials which promote illegal campaign activities deserves scrutiny whether or not such activities are actually implemented.
The blurred division between the separate functions of administrators and elected deputies in their official capacities and as participants in campaign organizations was not necessarily one sided. As a Deputy to the Duma, the head of the Communist Party campaign in Rostov acknowledged his use of State Duma letterhead for certain campaign related communications. According to a complaint filed in Moscow, Zyuganov also used Duma letterhead, staffing and resources for a mailing to local officials to assure them that if he were elected they would not lose their posts. In contrast, IFES learned that Valentin A. Kolesnikov, the head of the Yeltsin campaign headquarters in Rostov had taken leave of his post with the regional administration as Vice Chief of the Inspection Department to work on the campaign.
In one of the more serious instances, a head of a local administration in a territory outside the city of Rostov was very candid about his own efforts to ensure that voters would favor Yeltsin at the polls during the second round.. He discussed with IFES observers the pro-Yeltsin campaign strategy designed and implemented by the local administration and funded from the administrative budget. The strategy involved preparation of pro-Yeltsin propaganda and recruitment and payment of individuals to distribute them to voters. In pursuing the matter, IFES observers were advised that no such funds were expended for similar purposes in support of Zyuganov. This official, who had been appointed to his post, also indicated that the local administration had «taken other measures» to ensure that the community voted for Yeltsin and indicated that they would «make sure they didn't let the President down.» When pressed as to how this kind of activity could be reconciled with provisions of law which preclude officials from engaging in campaign activity in their official capacity, he did not seem to have much difficulty justifying the position of the administrative body. He reiterated that Yeltsin had actually visited the territory, and that, as the IFES team understood it, the community had recently received at least part of 11 billion rubles which the president had promised which had prompted the administration's interest in seeing that the president was reelected.
The law clearly restricts donations from bodies of local government, state and municipal enterprises, agencies and organizations to the electoral funds of candidates. It is recommended that the law restricting participation of local administrations in campaign activities be strengthened to explicitly prohibit their own use of any funds from the budgets of these bodies to engage in any campaign activity or to prepare or distribute or otherwise support the campaign of any specific candidate. The law should apply to both executive and legislative bodies as well as their officials and staff members. The laws should also impose personal liability on such persons for violations.
In discussing these issues with members of the Central Election Commission there was general agreement that such violations are a serious impediment to the conduct of a free and fair election. It was also acknowledged that these types of violations are the vestiges of the soviet system where local officials were «responsible for the outcome of an election.» It must be acknowledged that these types of allegations pose difficult challenges to authorities responsible for responding to complaints and adjudicating grievances because of the failure of complainants to file substantive and timely evidence. Some would suggest that the current language of the law is quite mild in dealing with these kinds of activities. In fact, the CEC had recommended stronger language which would have put clearly defined fetters on administrative authorities and officials with regard to involvement in partisan campaign activities. Apparently there was resistance to passage of the stronger language among a number of Duma members who considered the impact the proposal would have on their own ability to campaign for or against other candidates or their electoral associations in their official capacity as deputies.
Clearly the issue needs to be revisited. Unless these types of allegations are uniformly investigated, and unless affirmative action is taken to censure and penalize any proven complicity in such activities, the effectiveness of restrictions imposed on administrative officials by the law will be seriously shortchanged, and the integrity and fairness of the election process and public confidence in the system will remain in jeopardy.
Simultaneous Conduct of Federal and Local Elections
On June 16, 1996 a number of Subjects of the Russian Federation held simultaneous elections for President and a variety of local offices. In some subjects the simultaneous elections covered elections for municipal mayors, as well as city and raion councils. It has only been since the summer of 1995 that local legislative bodies had been authorized to enact their own election laws for local offices. It was only late in 1995 that a presidential decree was issued ending the appointment of governors in favor of their being elected.
Although the Central Election Commission has supervisory responsibility over Subject Election Commissions, the extent of their participatory role in local elections is unclear. Just as importantly, the lines of authority over conduct of an election for particularly blurred when both local and federal elections are being conducted simultaneously by the same election officials and at the same polling stations. Obviously, during the presidential election cycle the focus of the CEC was necessarily directed to issues related to the conduct of the Presidential Election. As a result, it was not clear whether there had been time for the Central Election Commission to consider issues which could arise from the simultaneous conduct of the presidential and local elections.
In the Moscow Mayoral elections, for example, a number of details had to be incorporated into election day processing that differed from those used for the presidential election. In particular, special procedures were necessary in view of the fact that certain voters who would be eligible to vote for president would not be eligible to vote in the mayoral election. Under local election law and as covered in the Law on Basic Guarantees of Electoral Rights advance voting in the 15 days immediately preceding the election is permitted in place of the absentee voting allowed with an Absentee Certificate provided for under the presidential election law. Moscow election officials accommodated the differences well, although it is not clear the degree to which Federal and Local officials specifically coordinated their efforts to find resolutions to some of the problems which had to be dealt with. The fact that different services were provided for the different types of elections also caused confusion and inconvenience for voters attempting to exercise their electoral rights under conflicting rules.
With the new independence granted to local elective bodies to define their own election laws the these types of issues are likely to be compounded. The Law on Basic Guarantees of Electoral Rights dictates general parameters to which these local laws will have to comply. However, within those constraints, there will still be room for tremendous diversity in manner in which the various local election laws approach technical aspects of the election process. The Central Election Commission is already evaluating and molding the role it might play as local election laws are being drafted and enacted. For example, the CEC has been called upon to review some local laws and has limited its input to provide advise as to whether these laws comply with the requirements of the Law on Basic Guarantees. But no legal guidance has been formalized which defines the relationship of central and local election authorities on an on-going basis. The lines of authority between central and local election officials will have to be clearly articulated to accommodate those times when local and federal elections are held on the same day.
A formal approach should be considered for accommodating these circumstances in order to avoid jurisdictional problems that could potentially arise. In particular, the role of the CEC to provide technical assistance or the extent of its supervision over Subject Commissions needs to be defined to determine who has senior authority when local and federal election laws conflict with one another. Key to the issue is that on any specific federal election day there could be any number of local elections each being conducted under a different local law.
Subject Commissions conducting local elections on the same day as federal elections may not yet have resources or directives on which to rely for guidance in evaluating their own election laws to determine where there may be provisions which are in conflict with those present in the relevant Federal law. Substantive as well as technical conflicts could result in administrative confusion and contribute to potential disruption of efficiency and accountability at the polling sites on election day. What follows are examples of the kinds of questions regarding procedural details that could arise from conduct of the separate elections under different election laws.
I. Are the laws consistent regarding the appointment of polling site election commissions?
II. Will one voter list be used for both elections, or will separate lists be necessary?
III. Will there be circumstances when a voter will be eligible to vote in one type of election but not another being held on the same day?
IV. Are critical deadlines different in the two laws for the same activity?
V. Do the local laws and federal laws contain consistent provisions with regard to voter services such as accommodating voters voting at home or voting in advance? If not, will voters needing these services be issued only one type of ballot? How will the audit trail for ballot accountability be maintained?
VI. Does the local law make provisions for the presence of observers at the polling sites? During counting? During summarization of results? If there are differences in the types of observers who may be present at various phases will some be made to leave?
VII. If there are complaints regarding misconduct or violations at the polling site which commission structure (local or federal) is ultimately responsible for adjudication, mediation and remedy?
For Consideration
15.1. Obviously, there are many considerations that need to be addressed. Some have suggested that there should a legal requirement that local elections be held on days separate than those scheduled for federal elections. This concept is common in a number of established democracies. The arguments in favor of simultaneous conduct of elections include fiscal efficiency, and prospects of ensuring that both local and federal elections enjoy maximum participation of voters who can become more apathetic if they are called to the polls too frequently or for a series of elections scheduled in close sequence.
15.2. A viable alternative to a prohibition of simultaneous elections is enactment of a law that says that if local and federal elections are to occur on the same day, the provisions of the federal law will supersede the local law. Where necessary, exclusions are specifically identified. Conversely, local elective bodies could consider legislation which would set aside certain provisions of local law deferring to the federal law for the purposes of holding their elections simultaneously with a federal election.
15.3. If the current flexibility is to be maintained, there are at least some issues that should be addressed to ensure that potential problems can be alleviated to the greatest extent possible. Formal guidelines might include the following considerations.
I. How will the Central Election Commission be apprised of a local jurisdiction's intent to conduct an election at the same time as a federal election? The CEC should have access to an ongoing calendar identifying the election dates in those subjects and municipalities that will be conducting gubernatorial and local elections.
II. It would be helpful for the Commission to devise a checklist that Subject Commissions could use to help them in their comparison of the two sets of laws
III. It would be beneficial for the Central Election Commission to devise a reporting mechanism whereby Subject Commissions could notify them of substantive difficulties that they may encounter based on their comparison of the different laws.
IV. The capacity of the Central Election Commission to provide technical advise or support in determining how potential problems may be overcome in handling the different elections under different sets of procedures should be clearly defined.
Citizenship as it Relates of Voting
Certain circumstances were encountered during the presidential elections that suggest that issues regarding citizenship as it relates to the eligibility of voters to participate in the election needs to be revisited. IFES observers at the Embassy in Washington noted that questions remain related to proof of citizenship. One of the officials at the Embassy explained that most passports being presented were USSR issued, but the regulations do not clearly indicate how to distinguish between Russian Federation citizens and citizens of former USSR republics. Therefore citizens of other NIS countries were allowed to vote in the presidential election. Observers also witnessed the refusal of a ballot to a Russian citizen who had been a resident of the United States for two years. This voter was not issued a ballot because there was no registration in her passport although the dates on her passport were still valid.
Other international delegations reported another issue that arose related to questions of citizenship or residency. In particular, there appeared to be an inadequate resolution of issues related to eligibility of ethnic Russians who had immigrated from NIS countries but had no documents that proved their citizenship. In some instances voters in this circumstances told observer delegations that they had been turned away even though they had been on the voter lists and had participated in the Duma election in December of 1995.
For Consideration
15.3. Guidelines for polling stations should include information to assist officials in determining if a voter satisfies the citizenship requirements, particularly at polling stations outside the Russian Federation. The instructions should define citizenship for voting purposes, and describe documents or passport information which can be accepted as proof of citizenship. The guidelines should be more explicit with regard to the status of persons holding USSR passports. It would also be helpful if the 1992 citizenship law that is referenced in the regulations be readily available to election commissions serving these sites.
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