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II. Electoral Process Issues
A. Administration
B. Registration and Voter Lists
C. Voting
D. Election Monitoring and Issues of Transparency
E. Role of the Courts and Adjudication of Grievances - Issues
A. Administration
1. Training of Election Commissions
Understanding and implementing election law is an important element of any election process. The process by which laws, regulations, and procedures are imparted to those responsible for administering an election can be crucial when determining if the election is conducted in free, fair and in a professional manner. The procedures used to train election commissions in the Russian Federation have greatly improved. The establishment of a permanent CEC in 1993 has proven to be a catalyst for developing improved training procedures and has allowed for a more critical analysis of the conduct of the election. Indeed, members of the CEC and their staff have participated in professional development conferences for election officials and observed elections in other countries.
Training in the Russian Federation is conducted «top down,» that is the CEC conducts training programs and conferences for the SECs starting about three months before the election. The SECs organize most of the election commission training in their jurisdiction, working with the DECs and TECs. Most of the training of the PECs is conducted by the TECs.
According to interviews with those involved in the electoral process, training at the lower level election commissions is inconsistent and in need of uniformity. While some SECs utilize sophisticated techniques, such as professional training videotapes, this is the exception rather than the rule. Criticisms expressed by some of the PECs included: 1) no training manuals are provided; 2) PECs did not appear to have an adequate knowledge of the election law; and 3) Only the Chairman appeared to have any real knowledge of the law or procedures.
Recommendations:
- A training video. The CEC and SECs should consider developing a professional training video that could be shown to all PECs in the Russian Federation as part of their instructional program. Such a training video would provide for more uniformity and give all of the estimated 750,000 polling station workers the same information.
- Improved training manual. While it is acknowledged that the CEC is committed to providing a training manual to all levels of election commissions in the Russian Federation for the 19 December 1999 election, the CEC should try to provide a more descriptive and illustrative product. While the IFES team has not seen a training manual for the 1999 Duma election, a manual was in production. The items such a manual should cover include, for example: frequently asked questions; standard methods to set up and operate a polling station; counting ballots, including samples of valid and invalid ballots; how and where unused ballots should be stored on election day.
2. Campaign Period
The Duma Elections Law makes a commendable differentiation between the rights and obligations of candidates when they are nominated and once they are registered. A candidate is nominated by a party or group of voters to participate in the election process. Once nominated, a candidate can be registered by the CEC provided that he/she meets the basic criteria, including either a high level of public support expressed by signatures of voters or a strong commitment expressed by an electoral deposit (Articles 45 - 47 of the Duma Elections Law).
The issue of campaigning in between the nomination and registration process is a complicated one that is often raised. According to Article 42.1 of the Duma Elections Law, a candidate nominated by voters in a single-mandate district can begin collecting signatures once the appropriate election commission has been notified by the candidate. According to Article 43.3 of the Duma Elections Law candidates nominated by associations and/or blocs can begin collecting signatures once the CEC has certified their list of candidates. The provisions of the Duma Elections Law are not clear with respect to the expenses encountered when supporting the registration of candidates and on the issue of the publicity for candidates or his/her party. Currently there is no official interpretation of the law.
According to Article 53 of the Duma Elections Law the official campaign starts when a candidate is registered. This raises the following question: Is it against the law for a nominated candidate to publish information that gives details about his background and qualifications during the period of collection of signatures in support of a candidate? The courts will have to decide this issue. In the United States the courts have ruled that giving out information about a candidate cannot be regulated. However, if the information states «VOTE FOR,» then this is advocacy and is part of the campaign.
For example, in the United States, in the state of Kentucky, the election for the offices of Governor and Lieutenant is held at the same time and the candidates run as a team. The election-related expenditures have a ceiling of $1.8 million dollars. During the time a candidate for governor is selecting his running mate or team he can make expenditures for travel, telephones, and other expenditures necessary for making the decision. Once the registration papers have been filed, the campaign expenditures are then restricted by the $1.8 million ceiling.
3. Role of Public Mass Media4
During elections to the State Duma, the mass media operates under the general conditions established by the Constitution of the Russian Federation, the Russian Federation Law «On the Mass Media» and some other legislative acts, with due account for various special requirements and restrictions imposed by the Duma Elections Law and the Basic Guarantees Law. These laws contain very detailed provisions regulating the participation of the mass media in election campaigns. These norms must be observed both by media executives and by journalists who highlight the election campaign, and by those who directly participate in the electoral process (candidates, electoral associations and electoral blocs).
An important fact distinguishing current regulation regarding the participation of the mass media in election campaigns is that the laws do not provide for adoption by the CEC of any instructions concerning election campaigning. Current election legislation also does not define several concepts important for regulation of election campaigning in the mass media. For example, there is no definition of «political advertising.» Various provisions of the Duma Elections Law relating to the mass media can only be elucidated by means of clarifications issued by the CEC, although such clarifications cannot create new legal norms.
Greater obligations during the election campaign are established for TV and/or radio broadcasting organizations and periodicals which meet at least one of the following criteria:
- the founders (co-founders) of the given organization are state or municipal bodies, organizations or institutions;
- in the year before adoption of the decision to call the elections the given organization or periodical was financed by not less than 15 percent of its budget from public funds.
Along with the obligations common to all mass media (not to misuse the freedom of mass information, to observe the period established for election campaigning, to comply with the requirements to the publication of the results of public opinion polls, etc.), these organizations are required to guarantee equal conditions for election campaigning to registered candidates and electoral associations/blocs. They are also required to provide them with free air time and free space on the pages of periodicals and to publish decisions of election commissions and the information concerning financial operations through the special accounts of electoral funds of candidates, electoral associations/blocs. By law, these obligations must be performed with their own funds.
B. Registration and Voter Lists
Under the law, eligible Russian citizens are placed on a voter roll. The same law allows citizens to be placed on the voter list on election day if they have been erroneously omitted. During the past decade, the compilation of voter lists has improved significantly in the Russian Federation. For the most part, gone is the hand-written or typewritten list of voters that could be found at polling stations in the first half of the decade. In nearly all Subjects of the Russian Federation, computerized voter lists are the standard. This has allowed for greater efficiency in processing voters on election day. In addition, this provides an opportunity for the election authorities to move towards a uniform federal voter registry which could eliminate duplications and discourage voter fraud. It has been suggested, however, that governmental agencies compiling non-voter information on Russian citizens (housing, employment, pension, etc.) do not cooperate sufficiently with the authorities charged with the responsibility of updating the voter lists.
1. The Right to be Registered to Vote
Article 32.2 of the Russian Constitution gives citizens of the Russian Federation who have reached the age of 18 the basic right to elect their leaders and take part in a referendum. The Basic Guarantees Law further defines these rights in Article 3.1 by stating «A citizen of the Russian Federation shall participate in elections on the basis of universal, equal and direct suffrage by secret ballot.» It law goes on to indicate that such participation shall be «free and voluntary» and that no citizen can be «forced» to vote. Only the Constitution can establish restrictions regarding permanent residence (where the citizen could be registered) or current residence (where he/she lives most of the time).
2. The Voter List
Citizens must be «registered,» meaning they have to be placed on a voter list in order to cast the ballot (Article 17 of the Basic Guarantees Law). Such registration shall take place at the municipal or local administrative level on January 1 and July 1 of each year. It is the duty of the government to find and place voters on the voter list. Voter registration is compiled electronically utilizing the State Automated System (SAS) known as «Vybory.» Vybory creates a data base of voters which allows for electronic comparisons and sorting. The voter lists are created on the basis of long-established methods and practices. Federal and Subject governmental bodies are to assist local bodies and election commissions in the registration of voters, In addition, Passport services, Department for Civil Acts Registration and other federal agencies are involved in the process of voter list compilation and verification. Lists are maintained and updated by an authorized body, usually a local government official. For election day use, voter lists must be provided to the PECs in two printed copies with the names placed in alphabetical or street address order. The list must contain the first, middle and last name and the date of birth of the voter. The lists shall be certified and signed by the chairman and secretary of the territorial or precinct election commission. Those in the military shall also have the right to be on a voter list that may be compiled by a commanding officer of the unit. A citizen can only be placed on one precinct voter list (Article 18 of the Basic Guarantees Law).
While there is a database created for each district, there is no country-wide data base available at the present time. The 225 single mandate districts are based on the number of voters that were registered as of January 1, 1999. Currently there are 107 million voters on the rolls which includes the 88 subjects (without Chechnya). In the 1995 Duma election, there were 104 million voters on the rolls. Since the State Duma did not adopt new boundaries for single mandate election districts by September 9, 1999 (the last day they could do so) the CEC will use the 1995 district boundaries.
3. Appealing the Voter Lists
Voter lists shall be transferred from TECs or DECs to PECs no later than 25 days prior to an election. The PECs shall update the list and post it no later than 20 days before the election. According to Article 18.14 of the Basic Guarantees Law, at any time until the close of polls on election day an eligible citizen may make an appeal to the PEC if his/her name is not found on the voter list. Such appeal may be made before the election or on election day. Prior to election day, PEC officials have 24 hours to act on such an appeal. They have only 2 hours to make a decision on election day. Voters can be denied an appeal of their non-enrollment only for good reasons and with proper documentation from appropriate authorities. Such exclusion shall be signed by the chairman of the PEC. A voter may appeal this denial to higher election commissions. Such appeal must be considered within 3 days or immediately on election day.
Recommendation:
A Uniform Voter Registry. Under the law, election commissions shall develop a voter list using SAS Vybory. The development of a nationwide uniform federal voter registry would eliminate duplicate registrations and discourage potential voter fraud. A Unified Registry typically consists of one nationwide master list of voters which is developed by combining the names of voters placed on the rolls by local governments or election authorities. Typically, such lists are developed electronically and placed into a computerized master database. Such a database is maintained by a central election authority and can be accessed and printed in its entirety or by electoral district or polling station. Other databases, such as employment lists and pension registries, can be compared with such lists
Registries can be kept current up to the moment of voting. Voter lists can be compared well before an election so that time is available to remove duplicate voters and give those voters time to indicate which of the duplicate addresses is the voters’ latest address.
The biggest advantage of developing a nationwide list of voters is that it prevents fraud by removing duplicate voters, that is people who appear on the registry more than once. The master list can become a national population register and give the central government important information on population trends and the movement of voters. Another advantage of such a nationwide list is that it allows the election authority or another central body to use such a list to develop a computerized electoral mapping system to create equal-sized electoral districts.
C. Voting
1. Receiving Ballots and Ballot Security
The CEC is responsible for the accountability and protection of ballots for the Duma election. Most ballots for both single-mandate districts and for proportional party lists are printed at the SEC level. After ballots have been printed and handed over to the TECs, all rejected and surplus ballots are destroyed. A record is drawn up by the printing house and signed by all election commission members present to certify that all surplus ballots have been destroyed. A ballot transfer document is drawn up between the SEC and the TEC in the presence of the DEC indicating the number of ballots to be transferred and the time of transfer. Ballots are transferred to the PEC no later than four days prior to the election. For a ballot to be certified, two members of the PEC are required to sign all ballots and place the election commission’s seal in the upper right of the ballot.
Recommendations:
- The paper used in ballot printing allows for fraudulent duplication due to the absence of any specifications in the law concerning paper quality. Article 71 of the Duma Elections Law expressly states that ballots cannot be numbered and that the printing should be in black and white. These specifications limit what can be done to prevent duplication of ballot papers. The use of watermark paper would reduce the risk of fraud but watermarked paper is rather expensive. What could be used instead is micro printing. Realizing that ballots are printed throughout the Russian Federation, the CEC could encourage all SECs to use micro printing where it is available. This would not cover the entire Russian Federation but could be used in all the large population centers accounting for a high percentage of voters. In addition, while uniformity of the ballot is important, the non-availability of micro printing in one area of the country would most likely not be noticed by voters on election day. Micro prints are generally not visible to the untrained eye.
- Special packaging of ballots or binding with rubber glue would also provide officials with better control. Special packaging in groups of 100 or 500 ballots would provide a more accurate and easier count when verifying the number of ballots during transfers. Also, on polling day the members of the PEC would have a better control on the number of ballots not certified.
- A transfer record for each point of ballot transfer from the printing organization to the TEC down to the PEC should show two signatures of the persons receiving the ballots, an exact count and verification of the number of ballots received and the time the transfer took place. The law does not mention that signatures should be put on the transfer record. However, the CEC requires that all transfer records be signed by three persons. Appropriate security personnel should be involved during all phases of ballot transport and storage.
- Ballot certification includes the signatures of two members of the PEC and placement of the election commission seal at the upper right of the ballot. In past elections, both of these activities took place in advance to save time and to keep the voting line moving. It is suggested that the seal could be placed on the ballots immediately before issuing the ballot to the voter. This should not cause any significant delay during the processing of voters and would build a final piece of security into the process.
This practice (the signatures of two members of the PEC and the election commission seal placed on the ballot in advance) was observed during the September 19 Leningradsky special election and is a clear lack of ballot security. While no fraud was registered by political parties or candidates in the electoral process, this simple last (the seal being placed on the ballot immediately before issuing the ballot to the voter) step is critical to make sure that the ballots which go into the ballot box are highly controlled and their origin certified. This is an important step that should be emphasized in training materials.
2. Mobile Ballot Boxes
The Basic Guarantees Law and the Duma Election Law provide for mobile ballot boxes on election day (Article 54 of the Basic Guarantees Law; Article 75 of the Duma Elections Law). The laws state that voters who cannot get to the polling station by themselves for reasons including health and physical disability can vote by means of a mobile ballot box to be provided by the PEC. A voter may make a written or oral request to the PEC to send a team (consisting of at least two members of the commission) to the place of residence of the voter (or other location, such as a hospital). Such requests must be received by the PEC no later than 18:00 on election day and must be signed by the voter. Citizens who cast ballots by this method shall vote in the same way as they would do at a polling station and shall place their ballot in special mobile boxes that shall be sealed and counted in the same manner as the regular ballot box. Official observers may accompany the mobile ballot box teams as they visit voters requesting such assistance. A notation shall be made on the voter list of any voter who cast a ballot in the mobile ballot box. Mobile boxes are opened first, the ballots are then counted and entered in protocols in a separate line.
3. Vote Counting and Tabulation of Results
The law provides for a reasonable mechanism to count and tabulate the results of the election and determine the allocation of Duma seats (Articles 77 - 82 of the Duma Elections Law). The protocol which has to be completed and signed by all commission members at the polling station is a very detailed document. Counting is to be conducted «openly and publicly» with all counts announced publicly and noted on an «enlarged» copy of the protocol posted for all to observe. Authorized observers and election monitors shall be allowed to examine ballots and materials, under the supervision of election officials. All ballots issued to the polling station must be accounted for. The number of ballots used (including those for early and mobile voting) must match the number of voters who voted at the polling station. Unused ballots are to be counted first, cutting off the lower left corner to render them unusable. Next, the number of spoiled ballots is noted in the protocol. The number of voters who signed the lists and those issued absentee certificates shall be entered in the protocol, with a distinction made between absentee voters casting ballots for single-mandate districts and those voting only a federal ballot. The count of early voters is also entered. After such accounting is complete, the ballot boxes - starting first with the mobile box(es) - are opened by breaking the seals. Ballots shall be separated and stacked according to the votes cast, including those not marked or marked incorrectly. Not less than two PEC members shall count each stack of ballots separately. All ballots are to be accounted for, including invalid ballots. If any doubts arise as to the voters’ intent, the PEC shall decide the matter in a public vote with the corresponding decision to be noted on the back of the ballot and signed by not less than three members. After the PEC completes its work, ballots and other election materials shall be placed in sealed boxes or bags and transferred to the TEC. Such materials can only be opened by a decision of a higher election commission or a court.
PEC protocols are submitted to TECs and DECs where they are checked and summarized. These commissions then issue their own protocols to higher level commissions. This document shall contain all data relating to the receipt of the protocols, ballot materials and summary of results from the polling stations within their jurisdiction. DECs have up to four days to determine the election results for single-mandate districts. The CEC receives a copy of all protocols from sub-level commissions and, no less than 14 days after the election determines the nationwide official results of the election (including which parties qualified for parliamentary representation by receiving at least 5% of the votes cast) and announce the results publicly. Preliminary results will be available a few hours after elections are over, thanks to SAS Vybory.
Application of the law during the counting process appears to be the major problem in this important area of the election process. In recent local and national elections, observers have noted the fact that, while counting procedures may be clearly indicated by law or regulation, PECs tend to do things «their» way. For example, while the law clearly states that PECs must post and complete an over-sized copy of the protocol while tabulating the results, this is not always done. Another example cited by observers is that mobile election boxes are not counted first, as required. Some PECs take very careful steps to check and re-check the accuracy of their count. Others appear to allow for minor «variations» in the count. There are those who may speculate that such technical violations are minor, however, such minor aberrations could certainly lead to more infractions and increase opportunities for fraud.
Recommendation:
Improve training directives. It is imperative that all training documents and directives issued by the CEC make it abundantly clear that SECs, DECs, and PECs are to follow the law and regulations to the letter of the law. All members of such commissions should be trained in counting procedures and should be encouraged to question any chairman of a commission that does not conform to established procedures and the law. Those who are found to violate procedures should not be allowed to serve again. Those who violate the law should be prosecuted.
4. Early Voting
The ability to vote prior to the election is narrowly limited in the Duma elections. Early voting is limited to those at polar stations, ships at sea on election day and those in other remote locations. Such voting cannot take place earlier than 15 days prior to election day, it must be authorized by the appropriate DEC and conducted by at least two PEC members. While voting may take place at the designated polling place, election commissioners may also take mobile ballot boxes to voters for early voting. Voting procedures shall be the same as on election day and special protocols shall be completed for such early voting. It should be noted that Duma elections restrict early voting more than other elections, including local elections.
D. Election Monitoring and Issues of Transparency
The Basic Guarantees Law establishes certain fundamental mechanisms for transparency. The Duma Elections Law and decrees issued by the CEC have expanded on these provisions concerning the transparency of the election process (Articles 26, 29, 30 and others of the Duma Elections Law). Without question, there have been substantial improvements in this area since 1993.
The election laws provide for reasonable transparency of the election process. Political parties, non-governmental organizations, and international monitors all have certain rights to observe and monitor the administration of the election process during its many stages, especially in the counting stage (Articles 31 – 33 of the Basic Guarantees Law; Articles 77 - 81 of the Duma Elections Law). In past elections, such monitoring has resulted in the prevention of fraud and in recommendations which have substantially improved the process. Russia should be applauded for its efforts to open up this portion of the election process to public scrutiny. However, there are some shortcomings, mostly having to do with problems with the lack of information provided about the expenditure of funds by candidates and political parties/blocs. In addition, local election commissions overly rely on the CEC to determine if observers could be permitted at local elections (even though the CEC technically does not have any control over local elections), often using that as an excuse to deny credentials to legitimate observer groups. Another problem cited is that while CEC meetings are ostensibly «public» according to the Basic Guarantees Law, realistically, one must write in advance to gain entrance to the building housing the CEC (due to proper security measures). Perhaps a mechanism could be found, such as live video broadcast of such meetings, to allow greater immediate access to the information provided and debated at CEC meetings.
1. Domestic Observers
Candidates for the Duma, political parties and blocs with candidates on the ballot, election commission members, and the mass media are permitted to «freely» attend any and all meetings of election commissions as they proceed administer the election (Article 29 of the Duma Elections Law ). The commissions are required to inform such persons when the commission is holding its meeting or working with electoral documents. It should be noted that many commission members represent a political interest in that many are appointed after being recommended by political parties/blocs.
Observers are entitled to inspect voter lists prior to an election. On election day, the same group may be present at the polling stations or at meetings conducted by higher level commissions. Party associations/blocs are only permitted to have one person at a time at any polling station. Each observer must present official credentials from the political party/bloc or candidate whose interests they represent, and valid personal identification. No prior notification is required for sending an observer to a polling station. Observers may make remarks to the commissions and may also appeal decisions and actions of a commission to a higher level commission or a court. Observers are entitled to make a copy of any protocol or other document issued by an election commission and have such document certified by the chairman or secretary of a commission. Domestic observers cannot interfere in the voting process in any manner nor can they campaign at any time at the polling station. Observers may wear identification badges but such badges cannot have any signs of election campaigning.
2. International Observers
Article 26 of the Basic Guarantees Laws and Article 30 of the Duma Elections Law basically govern the activities of international observers. Article 2 of the Basic Guarantees Law defines foreign (international) observer as «a person representing a foreign or international organization that is entitled to monitor the preparation and administration of elections and referenda in the Russian Federation in the procedure set forth by this Federal Law.»
International observers must be «appropriately invited» to observe elections in the Russian Federation and must be duly accredited by the CEC. Approved observers are to receive identity cards from the CEC that must be shown when requested and that allow them to properly monitor the election process. The term of the observer shall begin when first accredited by the CEC and last until the day official general election results are published. International observers have the right to act independently and have essentially the same rights as domestic observers.
On 10 September 1999, the CEC issued a directive regarding international observers for the 19 December Duma election. The document reiterates what the laws direct regarding international observers and shows a specimen of the certificate to be issued to such observers. A copy of the directive can be found in the Attachments.
E. Role of the Courts and Adjudication of Grievances - Issues
While outside of the CEC’s direct control for this upcoming election, one area which could use improvement is the resolution of election grievances – when a participant in the electoral process actually lodges a grievance and wants a situation to be redressed. Where does one lodge a complaint? Especially, when can he expect a resolution? Elections have fixed deadlines and administrative realities while citizens and participants have guaranteed constitutional rights to participate in an electoral process. One must note at the outset that the adjudication of electoral grievances is one of the consistent weak points, along with enforcement of electoral laws, in the practice of western democracies. In the United States, for example, the average length for the resolution of a complaint on campaign finance is calculated in years. In Canada, there are less than fifty cases that are brought to the attention of the courts during an entire electoral process.
There are several techniques to remedy this problem, some of which are already being implemented. Solutions are systemic or organic. A systemic solution is giving the CECs exclusive competence on all matters of electoral disputes. This approach has been favored in most Latin American countries, where the electoral commissions act both as a court and as an administrative body. In some extreme cases, like Colombia, Mexico, and Peru, the function of adjudication of electoral grievances is distinct from the logistical and administrative body which actually carries out the election. In the Latin American legal doctrine such a solution actually creates a «fourth power» in addition to the judicial, executive, and legislative components of power. Such a water-tight solution to the resolution of electoral grievances is most likely not appropriate in the case of Russia, where confidence in the electoral institutions is high but tradition commands that a right of review be granted to the courts.
Another systemic solution is to limit the right of appeal within the electoral apparatus itself, requiring complainants to go through the election system before it addresses the court. This is a very important potential solution as it would limit the possibility of presenting electoral disputes simultaneously to the courts and the electoral commission. This double-barrel approach, which is often used, opens the door to confusion and litigation more than it helps to preserve their rights. Furthermore, it is within the generally accepted principles of administrative law to reinforce the core competence of administrative tribunals; often they know better the intricacies of the law and the manner in which it should be applied – this is why they were created in the first place.
Organic solutions have to do with the development of the institutions themselves and how they interact with each other in applying the law. An example of this is the recent positive change in the Basic Guarantees Law in Russia of March this year, which empowers the CEC to «cut to the chase» and to get a decision on important issues rapidly. The amendments to the Basic Guarantees Law allow for the CEC to seek the judgment on the merits by the Supreme Court directly «if the irregularities indicated in the complaints concern a large number of citizens or if due to some other circumstances the irregularity has assumed a special public significance.» In such cases, «the Supreme Court of the Russian Federation shall consider the complaint on the merits» (Article 63 of the Basic Guarantees Law). This method of allowing the CEC to address the Supreme Court will enable important issues to be dealt with rapidly – and with a high degree of finality. This is especially important when national elections or significant candidates are significantly effected by decisions – leaving the country waiting can destabilize more than the rule of law. The same amendments also make clear the jurisdiction and inner hierarchy of the election system, bringing the electoral apparatus one step forward to a fully integrated electoral body. This has been welcomed by IFES as a positive development, one which should keep electoral issues within the election system.
Recommendation:
Another organic solution has to do with training, coordination, and exchange of information between the courts and the electoral commissions. The team found that this has already been initiated in Russia and at a high level. For example, the CEC and the Constitutional Court held a coordinating workshop in Moscow last year. Such initiatives help to build institutional confidence and coordination. The team recommends that such workshops should be replicated with lower level courts and election commissions to foster interactivity and promote a greater awareness of the responsibility of the court system in the electoral process.
4 For more on mass media and elections see «Mass Media and Parliamentary Elections 1999 in Russia» published by IFES/Institute for Election Systems Development /National Press Institute in cooperation with CEC. Available on the web at www.democracy.ru.
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