Strasburg Conference Recommendations on the Election System Development in Russia
Draft
General Election System Assessment
A review of the election system, which is acting in the Russian Federation at the federal level, and with the federal law regulating issues of election legislation in the subjects of the Russian Federation shows that the election system meets international democratic standards, and in certain aspects can itself serve as an example. In this context, a high level of detailed development of the federal election legislation of the Russian Federation is worth mentioning. By the level of detailed approach it can be referred as one of the most detailed systems of election legislation in the world practice.
We can point out a number of interesting legislative solutions, among which of special interest is the introduction of such novelty as an option to vote «Against All of the Above», which on the one hand, allows citizens in the process of voting to express their attitude towards possible shortcomings or malconduct in the course of the candidates' or parties' nomination and registration, and on the other hand prevents election of candidates who are rejected by voters. Some other solutions which have been drafted in the Russian legislation are also worth attention.
Of course, since the system of the federal election legislation of the Russian Federation was established not long ago, it needs further improvement in a number of parameters.
On Further Improvement
On General Approach to Changes
Since the election legislation, in particular on the national level, is one of the most important system-forming factors in relation to political structures of the society, any more or less serious changes taking place in it must be undertaken with a special care and only on condition of extremely serious grounds for that, as opposed to the one based on political conditions. For Russia it is of a special importance, as within the framework of the acting federal election legislation, for the first time in the history of the country a normal system of political parties started to shape. An efficient parliament with a stable factional structure was established, which, as the world parliamentarism practice shows, is very important to legitimize activities of the state power bodies in the mind of public. Experience of many countries shows that advantages and shortcomings of the election system can be proven in the course of several election cycles, and abrupt changes, especially in the politically unstable and extremely conflict situation are extremely undesirable, as they can result in serious shocks in political and public life.
Nevertheless, on the basis of the results of the federal election law system review, it is possible to give recommendations for its further improvement.
Concrete Recommendations
Main recommendations are as follows:
1. It is necessary to continue work on shaping the legislation related to the activities of political public associations, to develop in more detail requirements to their organization and activities, which shall be transparent for the society. As a step towards their transformation into political parties, it is necessary to provide for their better differentiation from other non-political associations, strengthening their political and legal responsibilities.
2. Detailed development of a number of issues, which are regulated by the existing Federal Law «On Basic Guarantees...» and which are related to the conduct of voting and further vote tallying, apparently being to a great extent conditioned by the needs of the current environment, may become a further obstacle on the way of implementation of election systems on different levels of the world practice, methods of voting organization and vote tallying. With regard to this, it is advisable to somewhat re-write these sections of the law to be able to use the experience that has been stored in the world practice, on the federal level and on the level of subjects of the Russian Federation.
3. The inclusion in the Federal law «On Basic Guarantees of Election Rights...» of requirements about a minimal level of voters' turnout for any election level seem doubtful. The availability of such norm may become a serious and absolutely ungrounded obstacle for politically active voters that are aware of their civil responsibilities, for realization of their right to participate in state governance.
4. The idea of introduction to the Russian election system of an election deposit - an institution that is widely spread in the practice of democratic countries - should be approved. Conditions of paying the deposit and returning money should be developed in more detail.
5. A possibility, provided by the legislation, of dissolving election commissions that committed serious violations, is quite acceptable in the context of responsibility of all subjects that are acting in the legal field. However, exclusion of the Central Election Commission of RF from the list of election commissions that may be dissolved for the same reasons seems to be not quite logical. Of course, the procedure for the CEC dissolving as a result of serious violations must be well thought of, but it is necessary to have a procedure of this kind for the body, which is not elected (and shall not be elected) by citizens.
6. For further work with the election legislation we could recommend to unite different federal laws regulating election administration by different state and municipal bodies into a unique election code, like it was done in the legislation of a number of European countries.
Specifics and Problems of Russian Election System
Victor Sheinis
Deputy of the State Duma
of the Federal Assembly of RF
Presentation Thesis
1. In its current form the Russian election system was established in 1993-1995. In the late 1992 the development of new election legislation was initiated by a group of deputies and experts of the democratic orientation within the framework of the Constitutional Commission of the Congress of peoples deputies of RF. One of the latest options of the developed draft law which evidently did not have any chances to be ratified either by the Congress or by the Supreme Soviet of the RF was transformed (with certain modifications) into Regulations on the election of deputies of the State Duma, and members of the Federation Council, which entered into force by Presidential Decree in the environment of an acute political crisis of the late 1993. On their basis in December 1993, first elections to a new Russian Parliament were conducted.
2. The legislative basis for the existing election system is currently formed by the following laws that were adopted in the conditions of heavy political struggle.
- The framework law «On Basic Guarantees of Election Rights and the Right to Participate in the Referendum of the Citizens of Russian Federation», the jurisdiction of which goes to elections of all levels in the Federation and whose norms are of priority in relation to all other election laws (a law with a different name entered into force in 1994; in 1997 its new edition was adopted, and at present the State Duma adopted a big block of amendments to this law, further passing of which is blocked by the Federation Council and the President).
- The law «On Election of Deputies of the State Duma of the Federal Assembly of the RF» (it entered into force in 1995, at present its new edition is being finalized for the second reading in the State Duma. A further movement of the law is being hampered by the unfinished process of the adoption of amendments to the above mentioned framework law).
- The law «On Election of the President of the Russian Federation» (was adopted in 1995, it also needs updating because of the framework law reform).
- The law «On Reforming of the Federation Council of the Federal Assembly of the RF»: in 1995 the democratic order of the general and direct elections, on the basis of which the Federation Council was established in 1993, was annulled. Now this house includes heads of legislative and executive bodies of power from 89 subjects of the Russian Federation. Hence, the house is formed with an evident violation of the constitutional principle of separation of powers. It is not adapted for systematic professional legislative activities.
- An updated version of the law «On Public Associations» of 1995: amendments entered into force in 1998. They clearly specified criteria of a political public association - a subject of election process.
- The law «On Securing Constitutional Rights of the Citizens of the Russian Federation to Elect and be Elected to the Local Bodies of Self-Government « of 1996.
- The law «On Adoption of the Map of Single Mandate Constituencies for Conduct of Elections of the Deputies of the State Duma of the Federal Assembly of RF»: it was first adopted in 1995, and has to be updated before each elections to the State Duma.
- Laws on the election of presidents (heads of executive power), legislative (representative) bodies of the state power, bodies of the local self-government, adopted in each subject of the RF.
3. Acute political struggle is going on around election legislation. The object of the hardest opposition is the order of forming of the «lower» Parliament house - the State Duma. Fundamental principles of the election system are being attacked. Namely,
- its mixed majoritarian-proportional character: each voter has two votes, one is given to the concrete candidate in a single mandate election constituency, the other one - to an election association list;
- parity ratio of the two parties of the Duma elected on the basis of the majoritarian and proportional principles is one to one;
- 5% threshold which is cutting off election associations that fail to get necessary support of citizens, from participation in the mandate distribution.
These principles were laid down in the Presidential Regulations on Elections of 1993, the Law on the Deputies of the State Duma of 1995, and the updated version of this law adopted by the State Duma in the first reading in 1997.
4. In certain aspects, the Russian election system to the State Duma is resembles the German system of elections to Bundestag, which leads to an erroneous identification of both systems. In reality the Russian system is much closer to its derivative election systems of the Ukraine and some other former USSR republics. As to the German system, it has not only similar features, but also differences, which need to be taken into account. The most important are the following:
In Germany it's basically a proportional system, since it's the second vote of citizens that forms political party structure of the Bundestag. The first vote only corrects the name composition of each faction. Both methods of parliament formation are organically merged. In Russia systems of deputies' nomination and election work independently from each other. Each of them forms its own half of the parliament. A link between them is a possibility for a candidate to run both in a single mandate constituency and on a party list. Political structuring of the Duma happens only after elections, when the deputies elected in single mandate constituencies join factions formed by the «listed» candidates, or form their own groups. Before that point many of them prefer not to declare their party affiliation.
In Germany parties come out with their lists separately in each of 16 lands. In Russia, federal lists are nominated, as it is impossible to share 225 mandates between 89 subjects of the Federation and keep proportionality. To a certain extent it is compensated by the requirement which has become obligatory since 1995. This is a requirement for election associations to differentiate between the federal part (which guarantees candidates election if the association gets over the threshold), and regional components, with which a distribution of mandates is done on the basis of a special technique.
In Germany the political party system had been well formed and its regeneration took place rather quickly after a 12-year break. In Russia, the bulldozer totalitarian regime swept down all forms of public self-organization for a long time, and the state and party monopoly during the time period of three generations left in the minds of most citizens a stable rejection of any party structures. That is why the German election system has to do with parties, and the Russian one - with prototype parties acting under the name of election associations.
Finally, the 5%-threshold in Germany and Russia has different flexibility: in Germany it does not apply if a party gets three mandates in constituencies, whereas in Russia it bears an immutable character.
5. The election system for elections to the State Duma is currently under criticism. Claims as a rule are dressed into as legal ones. It is claimed that the existing order contradicts the Constitution, violates equality of citizens' rights, establishes ungrounded advantages for not well established parties, acts in favor of the capitol and harmfully in respect to the regions, etc. A number of claims of this kind were filed to the Constitutional Court. The lack of legal grounds of those claims was repeatedly revealed in public discussions. In fact attempts to overturn our election system is inspired by political interests. The Constitutional Court in its decision of 1995 on the claim of a group of the deputies of the State Duma that were trying to prove a non-constitutional character of basic regulations of the law, said: «The order for election procedures which are contested in the claims may have, as it is testified by the world and home experience, different solutions... It depends on the legislation body, whether the election system will be majoritarian, proportional or mixed, whether a certain percentage of citizens' votes will be introduced (votes that will need to be collected in support of the election association list in order for it to have the right to participate in the distribution of the deputies' mandates)... The choice of this or that option, and its stabilization in the election law depends on concrete social and political conditions, and is an issue of political expedience».
However, political interests of influential public forces, which dispose of power forces and have access to mass media, predetermine heavy pressure on election system, which puts this issue in the center of political struggle. Among participants of this attack the following structures can be singled out:
- presidential structures that are not satisfied with the party composition of the Duma and that are only starting to get rid of the illusion that the transition to a purely majoritarian system will result in a less oppositional parliament;
- regional political and economic elite, unsatisfied with the role played by the parties in general, that counts on making their nominees elected successful mostly in majoritarian constituencies;
- loud «public» represented by small, often extinct or unborn parties or clan formations that fail to get over the threshold.
6. The necessity to protect stability of basic principles of the election system does not take down the issues of its improvement, certain modification of election legislation, which the State Duma is trying to implement. However, solution to different important issues offers alternatives and it's difficult to make a choice.
6.1. Out of political and moral considerations, it is advisable to guarantee that the share of the votes that matter and that are directly transformed into mandates does not get too low, when voting by the party lists. Nevertheless, elections of 1993 and 1995 that were conducted by the same rules, but in different situations, gave different results. In 1993, 8.7% of voters didn't see representatives they voted for among the Duma election associations; in 1995 the percentage was 44.8%. However, opponents to the proportional system ignore the fact that the majoritarian system of a relative majority with a one round voting resulted in the «loss» of still more votes (around 70%). But the advantage of proportional system, which in principle is capable of giving a more adequate representation of the minority, must be turned reality. At least five different solutions of this problem are considered. These options are aimed at raising the share of the votes represented in Duma as compared to 1995, and at the same time at preserving working capability of the parliament, consisting of several large political factions, and not of a multitude of atomized fragments.
6.2. Another task, closely connected, is separation of viable participants of election process from the sea of ambitious non-political and quasi-political, marginal or extremist formations. Election associations get certain rights in elections. It is necessary to balance them with respective obligations and restrictions, in particular, in the sphere of commercial and charity activities, international relations, etc. The status of election association should not be acquired easily and simply, like it was in 1995. The presence of 43 election associations and election blocs in the election ballot in the federal election constituency is absurd and has nothing to do with establishment of democracy, only misinforming voters. Little pirahnas, although unable to feed themselves well, were biting off bits of the electorate, both from the winners, and from 4-6 parties, that were in the «risk zone» and that stayed overboard. Although strict limitation of the pool of valid election campaign participants by political parties only seems premature some new norms have been introduced in draft laws developed, both known to the world practice and original norms, which are meant to assist in the establishment of party and political system in Russia.
6.3. The procedure of primary selection for registration of both candidates and election associations that have the right to nominate their lists, running for elections in single mandate constituencies also needs improvement. So far the main load has been put on cluttered and inefficient process of collection, presentation, and verification by election commissions of voter signatures in support of candidates and party lists - a process that is getting more and more commercialized and criminalized. All attempts to improve this procedure fall under the notion «sub-optimization», which was suggested by an American scholar and which means an optimization of activities that are not worth the effort. In the prepared draft laws the first modest step has been made towards rationalization of registration conditions: when the law is adopted, along with signature collection and replacing it, an election deposit will be used. Under certain conditions the deposit will go to the state's income. Later it will be possible to fix the right to nominate candidates and lists as belonging to political parties that pass the established threshold during a number of consecutively conducted elections.
6.4. On the basis of the experience, both positive and negative, acquired in elections of different level, Duma law makers introduced some other norms to the draft election laws, which refer to different aspects and participants of the process: strict limitations of early voting, whose simplified procedures leave opportunities for distortion of voters' will; additional opportunities that are provided for representatives of candidates and election associations for observation of election commissions' activities and vote counting; additional obligations for law-enforcement bodies; measures to fight fraud and voter bribes; measures against violations of obligations of candidates and election associations to voters; gradual transition from equal State election campaign financing of election associations towards differentiated financing, depending on the results of previous elections; systematization of violations that may lead to refusal of registration or void registration of candidates and election associations, etc.
7. At present the situation around election legislation is as follows. Intending to shake the basis of the Law on the Elections to the State Duma, the Federation Council and Presidential Administration are blocking the amendments to the framework law, and hence, are not letting an updated version of the Law on the Elections to the State Duma go for the second reading. The Duma once overcome the Federation Council's veto and cannot overcome the Presidential veto of the Draft. It will be even more difficult to overcome the resistance to adopt the new version of the Law on Elections to the Duma. However, opponents of the law do not have mechanisms to make the Duma give up basic principles of existing election system. If updated law versions are not passed, the Duma elections of 1999 and Presidential elections of 2000 (or earlier) will be conducted on the basis of the framework law «On the Basic Guarantees of Election Rights...» in the edition of 1997, and the laws on elections to the Duma and President in the edition of 1995. Possibilities for achieving rational compromises on a number of accompanying issues will be lost and the efforts spent on improvement of election legislation will be waiting for the times when they will be needed, and when needed, the base characteristics of the election system will stay unchanged. Blocking the laws leads to this development of events which is far from perfect.
8. The bottom line is that the election system in Russia by its main features corresponds to the present stage of social development: on the one hand, it gives each voter an opportunity to elect his/her own candidate in whom (by the tradition established back in the Soviet times) he/she sees a protector of local interests, and on the other hand, this system counteracts a dangerous tendency of regional separatism, favors establishment of federal political parties. The federal election legislation meets international democratic standards, and in certain aspects (formation of election commissions, public control over the elections administration, agitation procedures and campaign finance, procedures for voting order, vote tallying and reporting, etc.) describes election procedures in more detail and more precisely than it is done in other democratic countries. Attempts to overthrow election legislation disregard its stability, important in the process of establishment of democratic institutions in Russia. Violations of electoral rights of citizens that are so common in our public life are related not so much to the imperfection of election legislation but to weaknesses of public institutions and court system, and unwillingness of the executive power to abide by the law. Democratic state of law is guaranteed not only by law.
As to the election legislation itself, its improvement seems to be necessary and desirable in three main directions. It is necessary:
- To bring laws adopted in the subjects of RF in compliance with the basic principles of the general, equal and direct election rights, that are laid and appropriately interpreted in the federal legislation;
- To reinstate - unfortunately impossible in the near future - direct elections of the Federation Council in order to return its status of a professional parliamentary house;
- To further develop procedures of formation of election constituencies, nomination and registration of candidates, voter information, tabulation of votes, prevention of violations, etc. Here of primary importance for Russian legislators is to learn more about election legislation and practices of democratic states.
9 November, 1998
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