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3. Administrative Structure
The administrative structure underpinning implementation of the election process is soundly formulated under the law. The Central Election Commission (CEC) stands at the top of the administrative hierarchy with lower level commissions serving within each of the 89 Subjects of the Russian Federation. Subordinate to the Subject Election Commissions (SEC) are approximately 2,700 Territorial Election Commissions (TEC) serving raions, cities and other administrative subdivisions within each Subject. Under the supervision of the TECs are Polling site election commissions (PEC) serving at the polling sites. For Duma elections, an additional layer of administration authority is added with the formation of District Commissions who supervise election preparations in the 225 constituencies.
Background: The Federal Law on Basic Guarantees of Electoral Rights of Citizens
The existing election commission structure represents a major step forward in the evolution of an administrative hierarchy that is more independent and multilateral in its representation of diversified interests. Under the previous constitutional system, the Central Election Commission (CEC) was an extension of the Russian Parliament and consisted of 29 members appointed exclusively by the Congress of People's Deputies. With the premature dissolution of the Supreme Soviet in the fall of 1993, the authority of the sitting CEC was also suspended. In the midst of the political crisis President Boris Yeltsin established a new commission by edict consisting of 21 presidential appointees. This body was responsible for the conduct of the December 1993 Parliamentary Election and Constitutional Referendum. Another edict was issued in December of 1993 whereby the President conferred permanent status on the Commission vesting in it the responsibility to conduct the elections to federal organs of statue authority, referenda and elections to representative organs of state authority of regional and local jurisdictions. Having been appointed exclusively by the President, and due to its dependence and on the Presidential Apparat and the influence of the President and his staff on its policy and procedural decisions, serious questions were raised as to the independence of the CEC.
With the adoption of the Federal Law on Basic Guarantees of Electoral Rights of Citizens on 12 December 1994, the permanent status of the CEC was reinforced. Article 11 of the Law on Basic Guarantees established the commissions at all levels as «legal entities» and provided the legal foundation for their autonomy stating that they «shall be independent within their competence of bodies of the State and local self-government during the preparation and conduct of elections.» The law also specified the qualifications for CEC members requiring that they have a higher juridical education or a degree in law.
Perhaps the most significant provision of the law, however, was the introduction of a more equitable formula whereby nominations for membership on the Commission institutionalized its political diversity and enhanced its independence from any one political body. The provisions of this law provide for balanced membership with appointments coming from a cross section of legislative and executive bodies of power. Under this law 1/3 of the CEC's 15 members are appointed by the State Duma from nominations proposed by political parties and factions within the Duma. Five members are appointed by the Federation Council of Federal Assembly from nominees proposed by the legislative and executive bodies of state power at the Subject level. The final 5 members are appointed directly by the President of the Russian Federation. Leadership within the CEC is determined internally by its own members by secret ballot.
The new Commission seated on the basis of this law was formed in March of 1995. Several members of the previous Commission were named to the new body, including Nicolai Ryabov, by nomination of the President, and Alexander Ivanchenko who was nominated by the State Duma. Both were re-elected to their previous leadership posts as Chairman and Vice-Chairman, respectively. Of the five members nominated by the Duma, their sponsors included the New Regional Policy Group, Russia's Choice, Liberal Democratic Party of Russia, the Communist Party and the Agrarian Party. The ramifications of the new nomination procedure was immediately apparent with the CEC publicly taking a more independent stance on Yeltsin's proposals on issues of electoral reform, in some cases outwardly criticizing them.
According to the Law on Basic Guarantees of Electoral Rights, elections are to administered through four levels of election commissions which are delineated in Articles 10-18. Two levels are established as permanent bodies: Central Election Commission and the 89 Subject Election Commissions. The remaining two are lower level commissions created in the days priors to the election. The Territorial Commissions are created no later 60 days prior to the election and Polling site election commissions formed no later than 44 days prior to the election date. Under the 1991 law, there were only three levels of election commissions for presidential elections: precinct, territorial, and central. Rights and responsibilities of commissions were not specifically enumerated.
Rights of Candidates to Have Representation on Electoral Commissions
Another significant feature of the Law on Basic Guarantees relates to opportunities for candidates or their nominating organizations to have representation on the various election commissions. The Law on the Election of the President reinforces this right by providing that each registered candidate is entitled to appoint one member with deliberative vote to represent them on every election commission at every level. These representative members have the right of deliberative vote for the purposes of discussion and debate as issues come before the relevant committees. However, they are precluded from participating in the deciding votes as formal decisions are adopted. The representatives of the candidates serve to provide a level of transparency that has true merit. As envisioned by the law, the interests of candidates can be represented at all levels of the administrative structure. Their presence provides an important guarantee that candidates have access to full information regarding the policies, decisions and actions of committees that will affect their participation in the process.
Under Article 13 of the Law on Basic Guarantees, the terms of deliberative voting members expire 30 days after the final election returns are made public, except those deliberative members representing candidates or electoral associations who are actually elected. In the case of the latter, their deliberative voting members retain their posts until the elected official's registration is terminated in the next election to the same body. In effect, since repeat voting must take place not later than 15 days after the estimation of the results of the initial election these provisions seem to mean that deliberative voting members at all levels remain in their posts for both first and second rounds of an election should a run-off election be necessary. As the winner of these presidential elections only President Yeltsin's deliberative voting member will be retained in his post until the president's registration is terminated at the time of the next election cycle.
During their terms deliberative voting members are entitled to have access to any materials and documents of their respective commissions and are to be notified of any and all sessions. They also have the right to speak at any of the sessions of their commissions. Article 19 of the Law on the Election of President expands these provisions by including additional detail. For example, in the presidential law, notification of meetings must be given to deliberative voting members «in advance.» The right to have access to materials and documents is augmented to include not only materials of their respective commissions, but also any subordinate commissions. In addition, the expanded language in the Law on Election of President ensures that deliberative voting members also have the right to receive certified copies of documents and materials.
For Consideration
5.1. The Law on Election of President affords the privilege of appointment of the representative members with deliberative vote exclusively to registered candidates. However, under Article 13 of the Law on Basic Guarantees of Electoral Rights, upon the registration of a candidate (list of candidates) , the nominating electoral association or the nominee proper» are entitled to a deliberative member. If the intent of the Law on Basic Guarantees is that in elections involving a «candidate list» the nominating organization appoints the deliberative voting member, but in single mandate elections, the candidate makes the appointment, it is not clearly stated. Consideration should be given to clarifying this point, or bringing the two laws into conformity. Presumably the Law on Basic Guarantees is the foundation law setting the fundamental principles to which all other electoral laws must conform. It is confusing as to which law prevails when the two have conflicting provisions. This conflict points to the need for the Law on Basic Guarantees to provide specific guidance as to which of its articles may be waived in lieu of other federal or local laws.
5.2. There also seems to be a subtle difference between the stated rights of members committees with deciding vote, and those with deliberative vote. Under Article 19 of the Law on Election of President, members with the right of deciding vote are entitled to be present at «all» sessions of the committee. However, the word «all» is omitted in a more general statement of this right in the context in which deciding and deliberative members are both being referenced. In the general statement of their rights, the law refers to their right to be «informed of meetings» of a respective election committee. They are also entitled to speak at «meetings» and to ask questions and receive reasonable answers from other participants at the «sessions.» The fact that the word «all» used in reference to members with deciding vote is not reiterated in text that includes reference to members with deliberative vote leaves it open to question whether there are sessions or meeting to which they may not be entitled to participate. Additionally, if there is a difference between the terms «meetings» and «sessions» in these contexts, they should be defined in the law.
5.3. The rights of deliberative voting members to receive certified copies of documents, and to have the same access to documents and materials of subordinate commissions should be duplicated in the Law on Basic Guarantees. These privileges are very important to the overall transparency and openness of the process, and should be uniformly applied for any type of election.
5.4. The laws are very sparse in descriptions of the functionary role of deliberative voting members, particularly on election day. In order to avoid confusions that were apparent during the presidential election cycle, duties and activities in which deliberative voting members may and may not engage on election day should be delineated. (Additional discussion of this issue appears in Chapter 10, Conduct of the Poll, and Chapter 11, Counting of the Votes and Reporting Results.)
5.5. Article 19 should be augmented to clarify the terms of members of deliberative vote who represent candidates who fail to advance to the second round of election. Subject to interpretation, the law implies that all deliberative voting members, regardless of the success or failure of their candidate, remain in their posts during the second round election. However, there is a technical question which provides opportunity for subjective interpretation since the right to have deliberative voting members belongs only to «registered candidates.» There is room to question whether a defeated candidate who will not appear in the second round retains his status as a «registered candidate.» It might be beneficial for the law to be clearer as to the status of deliberative voting members who represent candidates who have failed to advance to the second round.
The Authority of the Central Election Commission
The Central Election Commission (CEC) is charged with responsibility to organize the preparations for the conduct of the elections, and to guide the activities of lower level commissions, establish policy and oversee the uniform application of election legislation. Within its competence, the CEC is also authorized to adopt decisions which are, in turn, binding on lower commissions, state bodies and bodies of local government, publica associations, state enterprises, agencies and organizations throughout the Federation. Under the law, the CEC is authorized to issue instructions and other normative acts on questions of application of the law. In addition, the CEC registers presidential candidates. Although public associations, under which electoral associations (political parties) are categorized, are registered by the Ministry of Justice, coalitions of electoral associations or non-political associations called electoral blocs are also registered by the CEC. In coordination with Subject Electoral Commissions, the CEC organizes the national system for the registration of voters.
The CEC bears the burden for significant administrative and logistic management functions including distribution and use of funds allocated from the federal budget for the conduct of the election, and provision of lower level commissions with facilities, transport, communications and other material and technical support. The CEC also allocates funds to registered candidates for use in their campaigns, and formalizes the instructions governing the granting of air time on the mass media to candidates on a free and paid basis. Although actual printing is accomplished through lower level commissions, the design and content of forms, protocols and other election documents as well as the text of the ballots are the responsibility of the Central Electoral Commission.
The Commission is vested with the authority to adjudicate complaints or appeals regarding decisions or actions of subordinate election commissions. As warranted, the CEC is authorized to take decisions regarding complaints Ultimately, the CEC has the authority to override decisions of lower commissions.
Under the law, it is the CEC which is mandated to establish uniform procedures for the processing of the election results. They are also required to make the announcement of final results in the mass media and establish the process for the transfer of documents related to the conduct of the election to archives. As necessary the CEC is also responsible for organizing and conducting repeated voting and second round elections.
Under Article 12 of the Law on Basic Guarantees of Electoral Rights of Citizens a member of the CEC may be relieved of duty by decision of the body which appointed the member, only under certain circumstances. They include:
- voluntary withdrawal by means of a written application;
- loss of citizenship of the Russian Federation;
- entry into force of a conviction by a court of law;
- a ruling of a court that the member is incapacitated, of limited capacity or declared deceased by a ruling of a court.
- death of the member.
For Consideration
5.6. Article 12 of the Law on Basic Guarantees and Article 15 of the Law on the Election of President use conforming language that indicates that the Central Election Commission acts on a permanent basis. However, there is no provision in law which sets the terms of individual members. Under Article 12 of the Basic Guarantees law, however, a term of some specific duration is implied given its description of the grounds on which a member may be relieved of duty «before the expiry of the term.» This is an ommission that should be rectified.
In setting a term for members of the Central Election Commission, it is recommended that the terms be staggered so that no more than half of the members expire at any one time. In addition, staggered terms should also apply to the groups of 5 delegates appointed by each of the three appointing bodies.
Staggered terms would serve two important purposes. First, the election process would be enhanced by the continuity and institutional memory that would be preserved due to the fact that there would always be some experienced members remaining on the Commission at the point new members were appointed. Secondly, the independence of the commission would also be strengthened. Under a staggered term system, only a certain number of members would be appointed by any sitting Duma, Federation Council or Presidency. The remaining members would be carried over until after the next elections when their terms would expire and they would be replaced by appointment of the newly elected bodies.
5.7. Under Article 11 of the Law on Basic Guarantees the specific authorities and procedures of the CEC and the other electoral committees formed for the elections to federal bodies of state power are to be established under the federal laws governing the specific types of federation-wide elections. This article also dictates that electoral committees formed for the elections to the bodies of state power at the subject level or elective bodies of local self-government are to be established by the statutory acts of the relevant representive bodies.
The law does not address the authorities of the Central Election Commission in relation to elections at the subject and local level. The ommission will more than likely provide fuel for controversy as Subjects exercise their increasing autonomy relative to their passage of their own election laws. The question of jurisdiction is likely to become an even greater issue in the Republics and autonomous oblasts. Whether it is ultimately decided that the role of the CEC in regional and local elections is to be consultative or supervisory, the parameters of their authority should be defined in the law.
Lower Level Commissions
For the presidential elections there are 3 subordinate levels of electoral commissions: Subject Electoral Commissions(SEC), Territorial Electoral Commissions (TEC) and Polling Station Electoral Commissions (PSEC.)
Subject Electoral Commissions are appointed to serve in each of the 89 Subjects of the Russian Federation. Comprised of 10 to 14 members who are appointed by the representative and executive bodies of the subjects . Under Article 13 of the Law on Basic Guarantees of Electoral Rights of Citizens, the representative and legislative bodies of the Subjects must take into account the suggestions of public organizations, elective bodies of local governments, and groups of voters convened through their places of work, service, study or residence. At least õ of the members of the SECs must be appointed by the representative bodies of the relevant Subjects. As a general rule, Chairman, his Deputy and a secretary of the Subject Electoral Commissions are required to have a higher legal education. Their members serve 4 year terms.
The SEC provides for the interaction of the Central Electoral Commission with the bodies of state power within the subjects, and coordinates the activities of subordinate electoral commissions within the boundaries of the Subject. The are vested with the authority to hear complaints and adjudicate disputes regarding actions or decisions of lower commissions and to overturn their decisions when warranted. It is the Subject Electoral Commission that is responsible for the printing and distribution of the ballots in the format directed by the CEC. The SECs enumerate the polling stations within their jurisdiction and will ultimately be responsible to summarize the voting results within the Subject as a whole.
Territorial Electoral Commissions are appointed each territorial subdivision within the Subjects. A TEC has 5 to 9 members who are appointed by the elective body of local government within the city, raion or other local unit making up the territory. The elective bodies are required to take into consideration the suggestions of public associations, and meetings of voters at places of work, service, study and residence in making their appointments. Based on a joint decision of a Subject Commission and Central Electoral Commission, more than one Territorial Electoral Commission can be established within an administrative territorial unit if the area has an exceptionally large number of voters.
The TECs inform the voters as to the locations of the polling stations. They are also responsible for ensuring that ballots, materials and supplies are distributed to the polling sites and oversee the work of Polling Station Election Commissions within their territories. The Territorial Electoral Commissions play a key role in providing for equal legal conditions for the pre-election campaigns of the candidates at the territorial level through coordination with their supervisory Subject Electoral Commission. In addition, the TEC is authorized to hear complaints about actions or decisions taken by Polling Station Commissions and may overturn their decisions as warranted. The TEC is responsible for summarization of the election results reported from the precincts within their jurisdictions. The terms of TEC members expire after the official publication of results of the election of the President.
Polling Station Electoral Commissions have 5 to 9 members who are appointed by the elected bodies of local government who are also required to consider the suggestions from public associations and citizens groups. The PSEC plays a significant role in notifying voters about its members, working hours as well as the polling hours and location of voting on election day. They also compile the final list of voters assigned to the voting station and make the list available for public scrutiny so that errors and omissions can be corrected. On election day, the PSEC is responsible for organization of the polling station, processing of voters, and the counting of votes at the end of the voting day. The terms of PSEC members expire after the official results of the election of President are published.
District Election Commissions represent an additional layer in the election administrative structure. These commissions serve at the constituency level and are responsible for coordination of activities and supervision of polling station election commissions during elections to the State Duma.
For Consideration
5.8. Article 13 of the Law on Basic Guarantees, and Articles 12 the Law on the Election of the President dictate that appointments to the Subject Election Commissions are to be made by the appointing representative and executive bodies of the subject based on proposals of public associations, elective bodies of local self- governments, and groups of voters convened through their places of work, service, study or residence. Similar provisions are made for the appointment of members to Territorial and Polling Station Election Commissions. However, the laws fail specify the degree to which appointing bodies are obligated to select members from the proposals submitted. In order to ensure that there is a cross section of members representing diverse interests, the law should impose parameters and guidelines by which members must be selected and limit the number of members that can be appointed from any single group submitting proposals.
5.9. Article 11 of The Law on Basic Guarantees of Electoral Rights provides that election commissions are «independent within their competence, of the bodies of state or local self-government during preparation and conduct of elections.» However, election commissions at the lower levels are totally dependent on local executive authorities for their financing, staffing , resource and logistical support. Local executive authorities also play a role in the appointment of lower level commissions. Therefore, there is reason to be concerned that the independence of these commissions may be in question, especially in view of the degree of power local administrations maintain over the events and activities in their jurisdictions. In order to further dilute their potential influence over lower level election commissions it is recommended that the law state that individuals employed by or proposed by an executive authority may not be appointed to more than 1/3 of the seats on any election commission. In addition, it is recommended that the law dictate that no member employed or proposed by the relevant executive body may be elected chairperson of an election commission. (For a further discussion see Chapter 14, General Issues: Influence of Local Administrations.)
5.10. The law makes no provisions for premature relief from duty of members of subject, territorial and polling station commissions. At least limited guidance is provided in the law related to early resignation or dismissal from the Central Election Commission. Consideration should be given to specifying circumstances or grounds on which a member of a lower level commission may withdraw from service or be relieved for cause. The procedure for replacement of the member should be dictated by law.
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