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Election Commission Establishment and Roles
The role of the CEC and subordinate Subject (district, territorial - raion, city, and others - and precinct/polling) Commissions is the natural starting point for examination of signature collection and verification issues. In order to carry out these functions, these Commissions need to be set up and their powers and responsibilities clarified by law and subordinate regulations.
The statutes are fairly complete regarding the structure of the Election Commission hierarchy. The Basic Guarantee Law provides for the establishment of a permanent Central Election Commission and subordinate Subject Commissions, (Article 12, 13). The Federal Assembly Law provides for a permanent CEC to be established (Article 17) and for Subject Election Commissions to be established within 30 days (Article 18). It further provides for subordinate CECs to be established for each election thereafter no later than 92 (Article 19), 60 (Article 20) and 44 (Article 21) days in the district, territorial, and polling precinct jurisdictions, The Presidential Election Law establishes a similar legal framework (Articles 10 through 14).
Beyond hierarchical and time frame provisions, the statutes give some additional guidance. For example, the membership of Commissions at the territorial level is to include a combination of legislative branch and executive branch representation - at least half reserved to the legislative branch (Article 18 Duma Law, Article 12 Presidential Law). Principles of election of chairman by secret ballot, avoidance of conflict of interest, and the expectation that commission leaders have a higher legal education are also part of the statutory scheme.
Statutory provisions become a little more problematic when one examines both core commission membership provisions and procedures for supplementing these memberships with representatives of political parties and public associations. For example. Article 18 of the Federal Assembly Law provides that territorial election commissions within Subjects of the Federation shall consist of between 10 and 14 members initially and are to be supplemented by one voting member of any electoral association or electoral bloc that has registered a federal list within that district.13 Depending on the local political climate, this approach allows for substantial variance between regions in terms of political inclusiveness or exclusiveness. Moreover, apart from politics, this approach makes it likely that subordinate Subject Election Commissions at various levels will differ significantly in the number and composition of their membership and in the amount of prior experience they have had with the electoral process.
Furthermore, like in many systems structured on a parliamentary basis, the government and parliament in the Russian Federation, depends for its continued existence on the confidence of both the executive (President) and the legislative body rather than exclusively on periodic and regularly scheduled legislative elections. Since the Duma can potentially be dissolved at any time other than the grace period immediately after its election, the need to recreate a new set of subordinate CEC institutions can also arise at any time. Moreover, this time is likely to be one of more than the usual political tension and controversy.14
The above statutory uncertainties, coupled with potential diversity in membership and variance in expertise and experience of the subordinate bodies, pose special complexities for the Central Election Commissions, Subject Commissions, and staffs in designing appropriate regulatory approaches to address complicated questions of election qualification provisions, such as verification of signatures and resolution of disputes. Unfortunately, except for the decision of the courts when dealing with complex and heated issues on a case by case basis, there may be insufficient guidance available from outside the CEC. Neither the various alternative legislative drafts nor the commentary of outside Russian Federation experts devote much attention to practical questions of what factors to take into account when promulgating signature verification regulations and procedures and how commissions and courts shall resolve those disputes which may arise.
In the area of signature verification procedures, the text of these laws leaves a substantial number of ambiguities, gaps, and potential inconsistencies. These ambiguities include questions of which entities - the Central Election Commission, District Election Commissions, or subordinate level Election Commissions at the rayon, city, kray, or autonomous okrug - are responsible for the evaluation of signatures submitted for compliance with the regulations, the standards which are to be applied, and the administrative and legal procedures which are to be used to resolve controversies in these areas. Recent experience from the 1995 Duma and 1996 Presidential elections has shown that these controversies and uncertainties are potentially among the most damaging and destabilizing for Russian democratic institutions.
One of the places to start to assess the kind of regulatory reform that may be needed is to look at the practical experience of the CEC and subordinate Subject CEC's in terms of the number and frequency of violations. Materials prepared by CEC staff as to the types of violations in signature list documents for the 1996 Presidential election have catalogued the following kinds of violations: non - standard form of a signature list, title of the Subject of the Russian Federation missing; wrong number of the registration act; signature of an authorized agent missing; date of signing by an authorized agent missing; name of an authorized agent missing; incomplete data about an authorized agent, incomplete address of an authorized agent; wrong passport data of an authorized agent, signature of a signature collector missing; date of signing by a collector missing, name of a signature collector missing; wrong data provided by a signature collector, incomplete address of a signature collector; wrong passport data of a signature collector; signature of a voter missing; date of signing by a voter missing; wrong data about a voter; incomplete address of a voter; name of a voter missing; wrong passport data of a voter; wrong date of birth of a voter; signature of a voter put by someone else (falsified); repeated data about a voter; signature of individual under 18; date of signing by signature collector preceding the date of signing of the voter, date of signing by authorized agent preceding date of signing by a voter; signature of petition collector falsified by another person; repeat copies of petition; and other violations.
Most of these violations fall in the category of potentially natural and inadvertent mistakes. Such mistakes are inevitably likely to occur when large numbers of actions are taking place. Many of them are intrinsically harmless - if a voter in good faith wants to sign a petition for a candidate but inadvertently makes a mistake in the number of his passport or his street address, there is no logical reason why the candidate should suffer and the voters' own genuine wishes (and that of other signers) be disregarded. There are sometimes obvious ways to deduce whether an ambiguity is an omission or error - if for example a date or a title of the Subject of the Federation is omitted, this information can be often deduced upon review (e.g. the dates or addresses of other signatures on that petition).
Other than the reference to violations of Constitutional and Federal law, the statutes, however, give little guidance as to how these discrepancies should be handled. It may be interesting to look at which violations were most common or most infrequent and how the percentages of violations - and for that matter the absolute numbers - varied for different candidates. It appears, for example, that non - standard list form or signer under 18 were infrequently recorded violations. By contrast, mistakes in the passport number of the signer or signature collector were a good deal more common. Of course the most troubling were the situations most likely to involve fraud or serious abuse, such as voter signatures filled in by someone other that the voter. Regrettably these were far from the least frequent form of violation.
On January 22, 1996, perhaps in reaction to the experience of the December 1995 Duma election, in anticipation to problems that might arise in the future, or in response to widespread inquiries in society, the Central Election Commission issued a series of instructions on the collection and verification of signatures for candidates for President of the Russian Federation. In doing so, the CEC made reference to Article 19 of the Basic Guarantees Law and Articles 34 and 35 of the Federal Presidential Election Law.
Apart from restating the requirements of the law as to signature quantity, geographical distribution, time frames, and data required of the signers, the instructions clarified that signature gathering should not disturb work place or residential order, emphasized that physical or psychological pressure should not be applied to secure or discourage signatures, and noted that signatures in pencil would not be accepted. The instructions further endeavored to clarify which resources electoral associations or electoral blocs could and could not use to compensate the persons assigned to help in the gathering of signatures. The instructions further established a working group of the CEC, including outside experts, to participate in the signature verification process and provided that in the event of doubt about the validity of signatures, the CEC could send these signatures for investigation to appropriate state organs. The regulation further provided that while in dispute, these questioned signatures would not count towards the number needed to qualify a candidate.15
The CEC also directed that Election Commissions of the Subjects of the Federation establish by March 29, 1996 working groups on the territories of each of them, consisting of Commission members with right of decisive vote, as well as experts qualified in the verification of signatures. This direction, pursuant to their authority to issue such binding regulations (Article 15) specifically delegated to the Subject Commissions the authority to verify the authenticity of signatures and to report on the results of verification.
A number of the Subjects of the Russian Federation have specifically addressed questions of signature verification in their election laws related to local representative and executive organs. Comparison of approaches taken (Ivanov Oblast Legislative Assembly - December 26, 1995; Moscow Oblast Duma - August 11, 1995; Pskov Oblast Legislative Assembly - April 27, 1995; Chelyabinsk Oblast Head of Administration - April 6, 1996; Chita Oblast Head of Administration - July 27, 1995; and Murmansk Oblast Head of Administration - June 28, 1996) reveals substantial variation. Nearly all specify a time frame for the district election commission to carry out signature verification, usually within 3 or 5 days. Half specify that a certain percentage of invalid signatures - 2% (Pskov) or 3% (Murmansk, Chelyabinsk) among those submitted may or shall disqualify a candidate from registration There are also different approaches as to whether mistakes in the signature sheets should be treated the same as falsifications and whether challenges to a candidate can be brought in court after the conclusion of an election.
Looking to Comparative Perspectives
The CEC and its subordinate bodies have undertaken an important and complicated task of profiting from the lessons of recent Russian Federation elections. Solutions to problems that arose will obviously have to come from Russian experience. However, since the Ballot Access system in the United States shares with the Russian Federation the characteristic that states, similar to Subjects of the Federation, have received the delegation of responsibility and the legal authority to regulate ballot access of candidates to both federal and local political office, it may be useful for the CEC and Subject CECs to be aware of approaches taken in various U.S. jurisdictions. Because these issues are politically contentious, the decision was made to publish this information as a politically neutral collection of data on how each of the states regulates access to the ballot for legislative and executive branch elections.
American law has established an organ of government called the United States Federal Election Commission, which in many respects plays an election supervisory role equivalent to that of the Russian CEC.16 The FEC, which is designed to be a non - partisan body of civil servants with political and professional expertise in the regulation of elections, has established an information Clearinghouse which publishes and periodically updates a collection of documents, Ballot Access 1, 2, 3, and 4, which make this information available to state legislatures, other interested parties, and the American public.17
Ballot Access 1 provides a discussion of general principles (chapter 1), U.S. constitutional history, (chapter 2) and a series of Issues and Options analyses (chapter 3) addressing the following topics:
Section 1) Candidate access to the primary election ballot.
Section 2) Candidate access to the general election ballot.
Section 3) Recognition and ballot access of political parties and other political organizations.
Section 4) Filing fees and deposits.
Section 5) Petitions and papers.
Ballot Access 2: for Congressional Candidates, describes for each State the ballot access requirements in both primary and general elections for major party, minor party, independent, and write - in candidates for the U.S. House of Representatives and the U.S. Senate. Ballot Access 3: for Presidential Candidates, similarly describes for each State the ballot access requirements in primary and general elections for major party, minor party, independent, and write - in candidates for U.S. President. Ballot Access 4: for Political Parties, describes for each State the rules and procedures in each State regarding the formation, recognition, ballot access, and continuation or termination of political parties.
While the specific provisions relevant to the current American political party system are of limited applicability to CEC and Subject CEC concerns, it is useful to focus on the discussion of general principles set out in Ballot Access 1. These principles may be worthy of careful consideration because they address general notions of democratic values and the need to create and maintain an appropriate balance with reference to these values and the appropriate legal and administrative mechanisms to satisfy them most effectively. Thus, as set out in the Clearinghouse Introduction:
«The process by which parties and candidates come to appear on the ballot is fundamental to democracy inasmuch as it determines what choices will be presented to the electorate.»
«Totally unrestricted access to the ballot might well result in burgeoning numbers of parties and candidates for public office, many of which may be frivolous or without substantial popular support. Such an unrestricted field of choice could easily result in voter confusion as well as increased administrative costs and counting delays. Highly restrictive ballot access requirements, on the other hand, may unduly limit choices by precluding parties or candidates which represent important fractions of public opinion. The problem, then, is to define a fair and reasonable set of criteria and procedures by which parties and candidates qualify to appear on the ballot.»
«All too often, ballot access requirements come into question only when there is a crisis involving them - with the result that new laws and procedures are hastily adopted according to the chemistry of the moment rather than according to any overall rational scheme. Worse still, legal challenges to ballot access requirements frequently delay other critical deadlines in the election process (such as ballot preparation and absentee voting) and may therefore effectively disenfranchise many voters as well as add substantially to administrative costs.»18
Comparative reflection on the procedures developed in the Russian Federation at both the national and the oblast/republic level suggests a significant amount of conceptual overlap of Russian Federation and United States federalism approaches to questions of Ballot Access. There are of course substantial historical differences between the American and the Russian experience, in particular the long - standing American preference for an essentially two - party system, with most major candidates achieving their ballot position through competitive pre - election processes within these party structures. There are also the different paths taken at a number of initial forks in the road, where the American system has periodic regularly scheduled elections and leaves to the individual states (subject to compliance with the Constitution) the determination of ballot qualification procedures for both federal and state and local elections. By contrast the Russian Federation statutory scheme applies the Basic Law standards of ballot qualification directly to all oblasts and republics for federal parliamentary and presidential elections.
Despite these differences, there is value in comparative discussion of a large number of common issues. Ballot Access procedures in both countries are directed at choosing among and implementing policy considerations such as promoting political stability and avoiding excessive factionalism, protecting the integrity of the election process and avoiding voter fraud, limiting the likelihood of overcrowded ballots, voter confusion, and frivolous candidacies, ensuring fair and non - discriminatory opportunity of access to the ballot for all candidates and political parties, and encouraging election choices and vote outcomes that are meaningful and clear expressions of the electorates' will. The situation is complicated by the fact that various of these policy goals are in potential or actual conflict with each other and in a democracy such conflicts can never be finally resolved. The good Ballot Access system ensures that the procedures and mechanisms for resolving these conflicts are fair, objective, and enjoy a broad political consensus.
At this juncture, some brief mention of United States political and constitutional history may be useful. Prior to the late 1800's, for roughly 100 years after American independence, American legislatures and judges largely refrained from involvement in monitoring U.S. Ballot Access mechanisms. However, a growing population and increasing concerns about political corruption combined to produce more state regulation in these areas. Concerns about voter confusion and administrative efficiency led to the imposition of qualification requirements, such as nomination petition signatures and/or filing fees.
During the 1930's, with America's Great Depression and the fear of communism and fascism, ballot regulation added more controversial elements such as candidate loyalty oaths and even explicit proscription of Communist Party access to the ballot in a large number of states. Subsequently, as the McCarthy era ended and America faced up to its own unpleasant unfinished business represented by discrimination against minorities. Ballot Access concepts have evolved in the direction of expanded protection of minority rights and easier access conditions generally.19 More recent trends include reduction of signature requirements, more critical scrutiny of state access restrictions by the courts, limitations on filing fees, and a general philosophy favoring broader candidate and easier minority party access.20 The primary principles of American constitutional law that are applicable to these issues include First Amendment freedom of association principles (similar to the political freedoms guaranteed by the Constitution of the Russian Federation and Article 3 of the Basic Guarantee Law) and Fourteenth Amendment entitlement to equal protection of the law, that is both procedural and background fairness in the operation of Ballot Access provisions (analogous to Article 5 of the Basic Guarantee Law).
In the American political system, candidates get on the ballot by primary, convention, signature petitions, filing fees, or some combination of the above. A primary is a separate election held some weeks or months in advance of the regular election for the purpose of designating candidates from political parties. A primary can either be held exclusively among the registered members of that party (closed) or to any voter who choose to participate (open). A convention is a gathering or meeting, similarly held in advance of the election itself, occurring on a date specified either by state law or party regulations, not dissimilar to the electoral association congresses or conferences referenced in the Russian Duma and Presidential election laws. The petition route is essentially similar to the signature gathering procedures used to meet the 1%, 200,000, and 1,000,000 signature requirements of the Russian Duma Law (Articles 39 and 41) and of the Presidential Election Law (Article 34).
Filing fees (increasingly disfavored in American Ballot Access laws) involve the payment of a specified sum of money, usually to state officials to demonstrate the seriousness of a candidate and to defray some administrative costs. In some cases the fee is paid to party organizations to obtain the right to battle for the nomination of that party in a primary, or less frequently, at a convention. Minor party (cut - off points vary between major party and minor party status, as will be discussed subsequently) or non - party or independent candidates usually obtain access to the ballot for the regularly scheduled election through the petition (signature) route or through filing fees. In most but not all state jurisdictions and elections, additional candidates are allowed to participate by having their names written in by the voters (hence the term write - in vote) often but not always with advance registration or notice to the vote supervisory officials of the political jurisdiction.
Other issues covered by American election laws and regulations - and most of these will seem comparatively familiar for Russian election officials - include restrictions on confusing or offensive political party names, geographic distribution requirements, petition collection and filing deadlines and windows, pledges by competitors to support successful candidates of their parties (increasingly disfavored), bans on the participation of unsuccessful primary candidates in the upcoming regular election as an independent (still usually permissible in legislative elections though not in U.S. Presidential elections), requirements that independents «disaffiliate» from other established political parties, and procedures and standards for evaluating nomination petitions, authorizing or disqualifying candidates by state election officials, and procedures and standards for review by state and federal courts.
Ballot Access in American Federal Legislative Elections
The best way to provide some potentially useful examples for Russian consideration of how American Ballot Access procedures work is to go through a number of illustrative state - by - state approaches. Table 1 provides a slightly oversimplified state - by - state schematic chart of American Ballot Access procedures for United States Congressional candidates, that is, on the federal level, for members of the U.S. Senate and House of Representatives. This table is similar to the previously discussed CEC comparison of Russian Federation Subject procedures for legislative elections in oblasts, republics, krays, and autonomous okrugs. The selection of examples of how different American jurisdictions address these issues is meant to illustrate a range of options available for the CEC and Subject CECs.
Many American state procedures distinguish between recognized major party candidates and minor party candidates or independents in terms of the number of signatures needed to order to qualify for the ballot. (It should be kept in mind that in most states the more important process from a practical standpoint is the political primary and that in most states these primaries are restricted either to party members or to voters who choose to participate in the affairs of that party exclusively). In some cases, candidates of recognized major political parties - and this applies almost exclusively to the Democratic and Republican parties - are exempted from signature requirements (e.g. Arkansas, Connecticut, Nevada, Wyoming) that minor party candidates or independents must meet. In other cases, candidates of recognized political parties are required to secure a lesser number of signatures than independent or minor party candidates (e.g. Maine, New Hampshire, Ohio). By contrast, in other states there is no differentiation between the number of signatures required of recognized party candidates versus independents (e.g. Alabama, Hawaii, Massachusetts, Rhode Island, Vermont, Wisconsin). A few states even require a lesser number of signatures for independents to get on the ballot (e.g. Colorado, for the House, and New Jersey).
There are different and contradictory rationales for the decision to make it harder or easier for a major party candidate to access the ballot than for a minor party, new party, or political independent. The former preference reflects the long - standing American view that the two - party system has stood the U.S. in good stead and is a firm guarantor of stable democracy. The latter reflects more recent thinking to the effect that election laws and procedures should not operate in a discriminatory fashion, that there are advantages to increasing political diversity (such as to better express a broader range of views of the electorate or to increase voter turnout by offering a wider choice), or that even if the two - party system is preferable, this decision should be made by the voters themselves rather than being influenced by the rules - of - the - game.
It should be noted that in a number of states the laws do not specify how parties must designate their candidate but instead leave these selection processes to party primaries or conventions (e.g. Kentucky, Mississippi, South Carolina, Tennessee.). In most circumstances, the parties may themselves establish candidate signature requirements. The difference between these states and the ones above is that any changes in these requirements may be made by the parties themselves rather than by changing state law.
For states that have more than one Congressional (House of Representatives) District, signature requirements for Senate candidates may contain some degree of geographical distribution provisions similar to those mentioned in Articles 37 and 39 of the Russian Federation Duma Election law and Article 34 of the Russian Federation Presidential Election law (e.g. Arizona, Iowa), Sometimes, however, such requirements are lacking (e.g. Oklahoma, Wisconsin) These requirements can apply both for regular party and independent candidates (e.g. Virginia) or be more onerous for independent candidates (e.g. New York) or be less onerous for independent candidates (e.g. Oregon). House candidates universally must gather their signatures from within their districts.
Of those jurisdictions which use filing fees, many of the amounts are quite modest (e.g. Alaska $100, Guam $100). Some states either explicitly make the fee for Senate candidates higher (e.g. Maryland $290 for Senate and $100 for House) or do so by a formula (e.g. 1% of the annual salary of the office (e.g. Montana, Nebraska)21, Some states explicitly provide that the filing fee is an alternative to signature collection, at least for recognized party candidates (e.g. Minnesota, California.).22 Some states establish comparatively higher fees (e.g. Texas, $4,000 for Senate candidates and $2,500 for candidates for the House. Perhaps the highest filing fee currently required is in Florida, at 7.5 % of the annual salary of the office, although signature petitions may be submitted in lieu of the filing fee. A number of states allow the filing fee to be waived for those unable to afford to pay (e.g. Georgia) or refund the fee if the candidate is unopposed in the primary or gets more than a specified vote percentage in the election (e.g. Oklahoma, 15%).
States also differ as to whose signatures can be relied on to place a candidate on the ballot. For petitions required to qualify for a primary, many states require signatures only from registered party voters while independent candidates may qualify on the basis of any registered voters (e.g. Michigan, North Carolina, North Dakota). Other states accept the signatures of any registered voters for both party and independent candidates (e.g. Missouri).
As to candidate exclusions, the most common feature is a provision which prohibits a candidate who loses the competition in a major party primary from subsequently appearing on the ballot as an independent candidate for that same office. This restriction applies in more than a dozen states (see Table 1, far right column.). Some states establish that an independent candidate must not have been affiliated with another party for a specified period of time (e.g. Delaware, 3 months). The rationale for this provision is to prevent party splitting. At the same time, however, the counter argument can be made that if a party nominates a candidate who is quite unpopular or extreme in his or her views, it is an unfair infringement on the democratic process to prevent other members of that party from organizing a candidacy to take their opposing views directly to the electorate.
Ballot Qualification Issues for American Candidates for President
Table 2 provides a state - by - state picture of qualification standards for United States Presidential candidates in a format not dissimilar from Table 1 for the federal legislative branch. It should be kept in mind that from a legal standpoint the American system allows each state to determine candidate eligibility for listing on the ballot for President in that state, subject only to the broadest overall supervision of compliance with the U.S. Constitution. Issues such as the number or percentage of signatures required or their geographic distribution do not usually rise to the level of constitutional questions. Also, from a practical standpoint, the American system relies heavily on presidential primaries within political parties (a relatively rare selection device from a comparative international election systems perspective) to winnow out the field of candidates as contrasted with the Russian Federation approach (more common on a comparative basis) that relies on a two - round presidential selection process in the event no candidate receives a majority in the first vote.
That being said, comparative discussion of the different state approaches to this question may also be useful for the CEC. Some of the important issues for comparative analysis involve:
- The differences between major party and minor party or independent status;
- The cut - off point for determining major party status;
- The appropriate number or percentage of qualifying signatures to get on the ballot;
- The basis for measuring this number or percentage - voters, party members, or prior elections;
- The use of filing fees;
- The treatment of write - in candidates
States vary as to the quantum of votes required to establish major party status, with the legal entitlement and practical advantages that status may provide.23 Some states choose to set a substantial barrier, such as 20% (e.g. Alabama, Georgia, Texas). Other states allow for significantly lesser barriers (e.g. Indiana - 10%; Kansas, Nebraska, North Dakota - 5%; South Dakota - 2.5%; Utah - 2%, and West Virginia - 1%). Most states draw a fairly sharp distinction between recognized or major parties and all others (e.g. Illinois, Missouri). However, a number of states have an additional category for minor or newly - established parties (e.g. Indiana, Ohio) whereby these parties are also allowed to nominate candidates by competition in a primary ballot or by holding a convention.
States also vary as to how they calculate the qualifying number of votes. Many use the most recent statewide vote for president or governor - the chief executive officer of the state - (e.g. Arkansas, Kentucky, New Hampshire, Wisconsin). Some states use a number of signatures or a percentage vote in the alternative, without specifying what office it was cast for (e.g. Idaho, Minnesota, Montana, New Jersey). A number of states provide the alternative of a specified quantity of signatures or the percentage vote for a specified office (e.g. Rhode Island, 5% of the last vote for President or 1,000 signatures). A number of states tie the requisite percentage of votes to those cast for a lesser state office such as secretary of state (e.g. Indiana) In theory this implies that the party has a more stable and durable core of supporters who are willing to vote for its lesser candidates, and not just a popular presidential or governor nominee.
A number of other states do not specify by law how parties will choose their candidates for president. Instead they leave it to the discretion of party rules (e.g. Alaska, Arizona, Hawaii, Louisiana). A number of other states provide that for major party candidates a state officer, such as the secretary of state, shall be given the discretion to identify the likely candidates of the major parties from common knowledge, self - declaration, or newspapers or other mass media, while additional candidates are given the right to compete by collecting signatures (e.g. Massachusetts, Michigan, Mississippi).
As contrasted with Table 1, federal legislative candidate designation, a comparatively small number of states establish geographical support requirements (e.g. Oregon, Pennsylvania, Wisconsin). There is logic to this because after all, any nominated candidate will in any event have to demonstrate broad geographic support in order to carry the state. Similarly, a comparatively small number of states use filing fees for presidential candidates, either mandatory (e.g. Maryland) or as an alternative to signatures (e.g. Colorado).
Most states allow write - in votes with advance registration or notification to election officials. The purpose of this notification is to allow state election officials to arrange for a mechanism to count these ballots rather than being confronted with an unexpected and confusing situation on election day. A few states do not allow write - in votes, deeming them inconvenient and burdensome. One state (Colorado) allows write - ins to be counted with the payment of a fee by the candidate. A couple of states exclude defeated primary candidates from running as presidential candidates in the same election as independents.
In general, most American analysts believe that the balance of considerations shifts strongly towards favoring less restrictive ballot accessibility for presidential candidates than for legislative election candidates (at least short of the issue of counting a large number of obscure write - ins). While questions of administrative inconvenience suggest the contrary, the more persuasive conclusion is that democracy benefits from allowing those people who choose to do so to select from a large menu in expressing their personal preferences for leadership of the country. With an electorate as large as that of the United States, it is unlikely that non - serious presidential candidates will disrupt the balance of power or frustrate the vote in a close election, even given the phenomenon of the electoral college. By contrast, in the most recent round of American legislative elections, a significant number of Senate and House races were decided by less than 2% of the vote (in other words, a shift of 1% the other way would have elected another candidate) and in fact in a number of cases the margins were less than 1,000 votes and at times less than 100 votes or were determined only after repeated ballot recounts.24
13 One natural question that arises is whether that member is entitled to participate in any proceedings regarding whether that electoral association list is qualified to register in that election district. The question may illustrate the «chicken or egg» riddle. However, its practical resolution will become increasingly important assuming responsibility for resolving issues of signature collection misconduct and signature verification is delegated «downward» to the district, raion, city, and precinct levels.
14 The same situation may arise with the Office of the President, inasmuch as the Russian Federation Constitution provides for interim service by the Prime Minister as President, rather than a designated constitutional succession process leading to new elections on a date certain.
15 This section of the regulations should be examined carefully in light of the subsequent decision of the Supreme Court in the Bryntsalov case and any other court rulings.
16 The CEC should take comfort in the fact that opinion in the United States is far from unanimous about the FEC. In the recent U.S. Presidential election. Independent Party candidate Ross Perot challenged the FEP as a creature of the Democratic and Republican parties because it refused to order him admitted to the debates between Presidential candidates Bill Clinton and Bob Dole. The FEC defended its exclusion ruling on the grounds that he failed to meet the percentage rating in the polls that had been established in advance as an objective standard to qualify for admission. A Federal district court judge rejected a law suit filed on behalf of Perot. However, for a more detailed critique of American Ballot Access provisions, attention is directed to a just - released report entitled Voter Choice '96, issued by the Brennan (former Supreme Court Justice) Center for Justice of New York University School of Law. It is anticipated that a copy of this Report will soon be available at the IFES information center in Moscow.
17 If not yet available, copies of the Ballot Access publications would make a useful addition to the CEC library.
18 See endnote W.
19 See Bullock v Carter, 405 U.S. 134 (1972). For more extensive discussion of U.S. constitutional history relevant to Ballot Access questions, see Ballot Access 1, Chapter 2, The Constitutional Issues. For more detailed legal discussion of Ballot Access questions in the United States that illustrates how resolution of these issues has changed over time, see e.g. Nicholas - Political Parties and the Law in the United States, 2 Pol, Stud 258 (1954), Fay - The Legal Regulation of Political Parties, 9. J. Of Legis 263 (1982).
20 See Ballot Access 1, Chapter 2, The Constitutional Issues, p 16.
21 The salary for United States Senators is higher than for Members of the House of representatives.
22 The approach of Minnesota, in making alternative routes available to recognized party candidates but not to independents illustrates what may be the most important practical kind of benefit conferred by recognized party status. Since it is filing fees that are increasingly disfavored by law, this distinction could probably survive a legal challenge.
23 In general the advantage of major party status in the United States if the legal right to choose candidates in a party or convention and either automatic ballot status thereafter without the need to collect signatures for each election or the ability to achieve this status by collecting a much smaller number of signatures than minor parties or independents. Primary campaigns also allow candidates to raise money, build support, and increase their name recognition among voters, although they also sometimes have the drawback of costing the candidate money and exposing him/her to damaging criticism that is harmful in the subsequent general election. Nearly all states allow major parties to select their candidates by primaries or in conventions, either in practice or by explicit provisions of law. A substantial fraction of states do not have any mechanism for minor parties to participate in primaries and a larger proportion of states preclude independents from being listed as such on state primary ballots.
24 In nearly every American election cycle, there is one or more challenge to the results of a federal, state, or local election. A number of jurisdictions provide for automatic vote recounts if the margin or votes or percentage of votes is less than a certain amount. Here too, the law is subject to change. On December 4, 1996, (yesterday, as this paper was being drafted) the United States Supreme Court heard oral argument from the opposing sides on the question of whether a state may prevent a nominee from being listed as the candidate of more than one party. When this case is decided, it may have significant practical implications on barriers to third party candidates.
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