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Ballot Access for American Political Parties More Generally
Keeping in mind that in the American system, and in many democratic systems, relatively stable political parties play an important role in electing candidates to a wide variety of federal, state, and local offices, it is worthwhile to examine principles established for American political party qualification for such offices generally. In the American system of federalism, state laws regulating Ballot Access normally apply to all offices within that jurisdiction, subject to constitutional supervision. Some of the more important considerations to be discussed include:
- The practical implications of a political party obtaining the designation of a «major» party;
- The practical implications of a political party obtaining the designation of a «minor» party;
- Approaches to qualifying parties as «major» or «minor» by past electoral performance;
- Utilization of geographic or other measurements of the diversity of electorate support;
- What factors determine the continuation or cancellation of Ballot Access status.
In most jurisdictions, obtaining the status of a major or recognized party carries with it a number of both legal and practical advantages. Perhaps the most common legal advantage is that the winning candidate of that party's primary or convention ordinarily obtains automatic status for the general election ballot for that office, without being obliged to collect signatures or meet other than routine legal requirements, such as notifying state officials of a candidacy within a specified time date. Many jurisdictions in fact specify a date for primary or convention in their laws.
As set forth in Table 3, states vary in the percentages of vote required in the prior election, with a range of 20% at the more restrictive end (e.g. Connecticut) down through 10% (e.g. North Carolina), 5% (e.g.. Rhode Island), all the way to 1% (e.g. West Virginia). States also vary in the measuring stick to which this percentage of vote is applied. Some states apply this requirement to votes either in the last statewide election for president (e.g. Kentucky). More common, in keeping with American notions of federalism, is to apply this percentage to the vote for governor (e.g., Georgia, Kansas, Wisconsin). Other options include applying this percentage to the vote for governor or president (e.g. Arizona), to the vote for any office (e.g. Indiana, Iowa), to the vote for a specified statewide executive branch office, such as secretary of state (e.g. Michigan) to a specified statewide vote for legislative offices (e.g. the New Jersey General Assembly), or to any statewide candidate (e.g. Minnesota).
A number of jurisdictions provide that ballot qualification as a recognized or major party can be obtained by alternative routes of prior voter percentage or a by having a specified percentage of voters in the state registered as members of that party (e.g. Arkansas, Massachusetts). Some provide that the necessary percentage is the same by either route (e.g. Louisiana, 5%). Some provide a higher threshold for prior vote percentage than for registered voters (e.g. California, 2% prior vote or 1% of registered voters). The theory here is that a smaller proportion of the electorate is likely to be committed «permanently» to any political party. Additionally, some states provide the alternative of a specified percentage of the vote in a prior election or the actual signatures of a percentage of the voters (e.g. Tennessee), or number of voters (e.g. North Dakota). Some states have a flat number of votes in the prior election, either for a specified office (e.g. New York - for governor) or for any candidate (District of Columbia). Some states combine a requirement of a specified percentage of the vote with the requirement of registration of a specified percentage of the electorate of the state in that party.
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particularly appropriate to look at different state approaches to the processes of signature verification and resolution of these disputes, combining for these purposes both the American legislative and presidential arenas.
Because of the enormous diversity in state - by - state ballot qualification procedures, this information does not lend itself to preservation in a chart format as in Tables 1, 2 and 3. Some of the most important questions that need to be addressed in the American regulatory system include:
- How to determine the validity of qualifying signatures for party and independent candidates;
- Who has the right and/or the responsibility for making these assessments;
- Who has the right to challenge the qualifications of candidates;
- What are the time limits for raising such challenges;
- What limitations or costs are placed on the making of challenges to candidates,
- What steps are taken in the event there are defects in candidates' submissions;
- What are the legal procedures and standards for the processes of review.
As might be imagined, the processes of candidate supporter signature verification present some of the most common and recurring difficulties for resolving disputes of Ballot Access. Any time large numbers of signatures are involved, it is reasonably foreseeable that a certain number of them will contain a combination of honest mistakes, incomplete information, illegible handwriting, or addresses that changed between the date of signature and the date of possible verification or challenge. American jurisdictions have come up with a variety of approaches to dealing with these issues.
Nearly all approaches rely on some variety of sampling techniques for assessing signatures. California uses a random sample to include 100 signatures for petitions containing between 100 and 2,000 signatures and 5% in case of petitions of more than 2,000 signatures. South Carolina uses a sliding scale of actual checks on the first 500 signatures, with 1 signature in 10 being checked after that. Texas provides for checks of either 25% or 1,000 signatures, whichever is more, and qualifies any candidate whose petition passes a recognized test of statistical significance. Almost all states which validate signatures apply the principle that if a sufficient number of valid signatures are submitted and there is no evidence of widespread fraud or abuse, invalid signatures are subtracted from the qualifying amount but the candidate is nonetheless qualified. The honest and wise candidate accordingly avoids unethical and unlawful conduct and takes care to submit a «cushion» above the necessary number of signatures in the format provided by election regulations well in advance of the deadline established by the rules.
A significant number of states (e.g. Illinois, Massachusetts, New York, Pennsylvania) start from the proposition that there is a presumption that candidates' nominating materials are in order and that signature petitions are considered valid until proven otherwise. Procedures in the vast preponderance of jurisdictions in fact operate on this assumption, whether express or implied. Perhaps the most atypical counter - example is the state of Florida, where election regulations in primaries impose on the candidate the burden of paying the local election supervisory officials a sum of either 10 cents for each signature checked or the actual cost for checking the validity of the signatures (with the candidate having the option to submit signatures in excess of the qualifying number by 15%, thereby ensuring the use of a less expensive random sample method). Not surprisingly, the latest available information indicates that this issue is in litigation.
The issue of who within the election system hierarchy is responsible for assessing signature validity and related matters is closely linked to the above issues. While jurisdictions split fairly evenly as to whether the formal responsibility rests on a statewide elected official, such as the secretary of state, or lower level election officials, in practice even the former operate almost exclusively in reliance on their local subordinates to do the actual work. Missouri's phraseology is typical: «The secretary of state has specific authority to determine the validity of signatures on petitions filed with his or her office that, in the secretary's opinion, are forged, fraudulent, or belong to those of other than registered voters. To make this determination, the secretary relies on the judgment of local election authorities.»
An issue naturally linked to the preceding one is the question of who has the authority to challenge candidate qualifications. Three alternative come to mind. The challenge can be made by any voter (e.g. District of Columbia), the state supervisory officials (e.g. Missouri) or another candidate (e.g. Oklahoma). Some jurisdictions provide for more than one option (e.g. Georgia, either state election officials or any qualified voter). Many jurisdictions require a good faith filing deposit to be submitted by the voter (e.g. Massachusetts, $25) or the opposing candidate (e.g. Oklahoma, $250). Some states (e.g. Kansas) provide that court costs will be assessed in the case of unsubstantiated challenges.
Many states provide that challenges to nominations must be filed within a specified period of time. This time frame is usually short (e.g. District of Columbia - 10 days, Pennsylvania - 7 days, Kansas, Massachusetts - 3 days). Many jurisdictions specify that in case a petition for nomination is defective, the candidate is to be notified in order to correct any deficiency other than a shortage of signatures) within a three day period (e.g. New Jersey). Other jurisdictions, probably the majority, (e.g. Wisconsin) state that nominating petitions will not be rejected so long as there has been «substantial compliance» with the law.
When it comes to litigation in court about election law qualifications, the American legal system usually treats these cases like any other legal matter. The standard principle would be that provided in Georgia's election code «The court may not substitute its judgment for that of the secretary of state as to the weight of evidence on questions of fact». Some courts are fairly strict in terms of deciding narrow factual issues (e.g. Massachusetts, where case law has held that valid reasons to reject a signature include an incorrect address or duplication of signatures). Most courts recognize that election disputes are time sensitive and like Illinois provide that a court hearing must be held within 30 days and the decision must be issued «promptly». As a further guarantee of the integrity of the process, a number of jurisdictions also provide that election qualification materials should be preserved for public inspection for a specified period of time.
Alternative Solutions to Ballot Access Problems Drawn from Eastern Europe and the CIS
Assessment of signature verification and dispute resolution approaches that might be useful in the Russian Federation may further benefit from looking at how other political systems besides the United States address these issues. Set out below are summaries of provisions drawn from the election laws of countries of Eastern Europe and the European territories (including Kazakhstan) of the former Soviet Union. The compendium of election laws from which these statutes are selected was put together by the Association of Central and Eastern European Electoral Officials following a series of conferences, the most recent of which took place in Ukraine in December 1994.25 There may be special merit in looking at countries which have had similar recent historical experiences in evolution from a one - party state to political pluralism.
The statutory approaches chosen have been selected specifically to raise issues that may be relevant for Russian Federation consideration, A number of these options are discussed approvingly in the conclusions and recommendations section. However, not every approach discussed here is recommended for adoption by the Russian Federation.26
Article 82 of the Law on Elections for the Peoples' Assembly of the Republic of Albania provides that anyone who offers money or jobs or other favors in any form in order to obtain someone's signature to support a candidate, to vote, or to abstain from voting is sentenced to deprivation of freedom from six months to three years. These sentences also apply to the voter, who accepts a job, money, or other favors.
Article 13 of the Law of the Republic of Belarus on Elections of Deputies to the Supreme Council of the Republic of Belarus provides that if a candidate for Deputy or their authorized representative violates the Electoral Law on matters such as interference with electoral commission work, failure to comply with electoral commission decisions, or falsification of voter signatures they are notified of the violation and in the case of repeat violation they are subject to disqualification.
Article 46 of the Bill for Election of National Assembly Members, Municipal Councilors, and Mayors of the republic of Bulgaria provides that if a candidate has been nominated in an excessive number of elections districts (Bulgarian law allows 2) and is properly refused registration in an additional district, the party or coalition which nominated that candidate may nominate a replacement within ten days of learning of the disqualification, but in any event no later than twenty days before the election.
Article 56 of the Law on Elections of Representatives in the Parliament (Sabor) of Croatia provides that the standard that the Electoral Commission should use for evaluating complaints about nomination or election procedures is the determination of whether irregularities in the nomination or election processes had substantially affected or could have affected the results of the election.
Article 46 of the Law on the Election of the President of Croatia applies the same standard for presidential elections and Article 59 of the Law on the Election of Representative Bodies of Local Self - Government applies the same standard for local elections.
Article 20 of the Law on Election of the Czech National Council provides that if lists of candidates submitted by the same political party for different regions of the country have inconsistencies, then the CEC summons representatives of the party to correct the list or in the alternative if the time for list - correction is expiring, the Commission may make the decision on its own.
Article 26 of the Bligikogu Electoral Law (Estonia) provides that the nominator of a candidate or candidate list shall deposit in the National Electoral Commission bank account an amount equal to twice the minimum monthly wage per candidate. The deposit shall be refunded if the candidate is elected or receives one half of the winning candidate vote in the district or if the candidate's party receives representational status.
Article 44 of the Act on the election of Members of Parliament (Hungary) provides that in the event of a violation of the electoral law, the reviewing court may:
(a) inform the parties concerned and the Hungarian Telegraphic Agency, or
(b) alter the decision breaking the law, or
(с) alter completely or in part the decision and order the election process or a part of it to be repeated.
Article 60 of the Law on Elections of the Republic of Kazakhstan provides that each nominee must deposit an electoral pledge in the amount of 5 times his wage to the CEC account. A candidate without a full time job deposits 5 times the minimum wage. (The statute does not appear to designate the time frame for this calculation). The pledge is returned if the candidate receives 5% of the vote in the electoral district.
Article 74 of the Law - Specific Features of Nomination for Presidency and Vice - Presidency of the Republic of Kazakhstan - provides that a candidate for President must deposit 10 times his wage. (The same time frame issue exists).
Article 31 of the Law on Elections to the Seimas (Lithuania) provides that political parties that have been registered no less than 35 days prior to the election or public movements which have been registered with the Ministry of Justice are eligible to nominate candidates, providing their candidacy is supported by 1,000 signatures.
Article 38 of the Law on Presidential Elections of Lithuania provides that candidates nominated for the office of President may be relieved of their work assignments and compensated at the rate of the average monthly wage for two months.
Article 20 of the Law on Election and Recall of Representatives and Assemblymen of Macedonia provides that registered political parties can propose candidates if they have membership in excess of 1,500, but that 100 signatures will suffice for a challenging party to get on the ballot.
Article 11 of the Law on Election to Parliament of the Republic of Moldova provides that if an investigation of a complaint is required, it will be carried out in the presence of a judge who is a member of the Central Election Commission.
Article 61 of the Law on Election to Parliament of the Republic of Moldova provides that the Constitutional Court is the organ charged with supervising the legality of elections for each electoral district.
Article 69 and 70 therein provide a framework for distinguishing between administrative legal violations of the election law and unlawful crimes.
Article 70 of the Law on Sejm Elections (Poland) provides that parties which have obtained in excess of 50,000 signatures for their committee, with registration in at least 5 electoral districts, are exempted from the individual district 5,000 signature requirement.
Article 24 of the Law on Election of the Chamber of Deputies and Senate of Romania provides that the Central Election Commission shall consist of seven judges of the Supreme Court of Justice and sixteen representatives of political parties.
Articles 72 - 78 of the above statute sets out the distinction between Petty and Criminal offenses.
Article 17 of the Law on elections to the Slovakian National Council provides that those parties which won more than 10,000 valid votes in the last election are exempt from resubmitting affirmations of 10,000 party membership for the current election.
Article 19 of the above statute provides that the Slovak Election Commission will contact representatives of parties with inconsistencies in designation of candidates for different constituencies and give them 24 hours to correct these inconsistencies.
Article 36 of the Slovenian Law on Elections to the Chamber of State provides that candidates of several national minorities can qualify for the ballot for special minority constituencies by meeting less stringent signature and support requirements than otherwise applicable.
Article 44 of the above statute provides that a designated electoral board that discovers «formal» shortcomings in a designated list of candidates notifies the proposing body to make corrections within three days.
Article 23 of the Law on Election of Peoples' Deputies of Ukraine provides that the nominating period for candidates begins 90 days and ends 60 days before the election.
Article 24 of the above law provides that if the signatures in support of a candidate are less than necessary due to signature disqualifications by the constituency electoral commission,, the nominee is notified and given 5 days to submit a sufficient number of valid supplemental signatures to qualify as nominee.
Article 43 of the same law provides that elections will not be considered valid if less than 50% of the voters in a constituency participate in the election.
Article 48 of the same law provides that in case a repeat election is required, neither unsuccessful candidates nor candidates whose nomination was canceled can run in that election.
Article 25 of the Law on the Election of the President of Ukraine provides that a candidate may be registered if he/she submits the signatures of 100,000 citizens, including at least 1,500 from each of 2/3 of the constituencies in the country.
Article 27 of the Law on the Election of Deputies and Chairpersons of Village, Township, District... provides that candidates for Chairperson of a regional (oblast) council must submit 10,000 signatures (a number substantially higher than the 1% of signatures otherwise required for nominations.
The Experience of Canada
In considering additional approaches to resolve Ballot Access problems in the Russian Federation, thought might be given to selected aspects of the Canadian experience. Like Russia, Canada is a Federation with a parliamentary system, although the structures of government are different. Canadian candidate qualification is comparatively simple on both the national and provincial level. For federal elections, candidates qualify through nomination by a fairly small number of electors. Signatures must be submitted by the candidate with «due diligence» as to their accuracy. The candidate is obliged to pay a filing fee of $1,000. One half of this is returnable if the candidate receives at least 15% of the vote for that office in the district. The other half is returnable when the candidate satisfies financial reporting requirements. Registered parties which have twelve or more members in the House of Commons and which nominate candidates for at least 50 electoral districts are afforded simplified ballot qualification provisions.
On the provincial level, Ontario law provides that no person who has been found guilty of committing an electoral offense within the last 8 years is eligible to be a candidate. It also provides that if only one candidate is nominated in a district by the close of the nomination period, that candidate is declared duly elected. It furthers provides that the only requirement for receiving the return of a «filing fee» is to exceed 10% of the valid votes cast in the election.
Illustrative excerpts of portions of Canadian federal and provincial laws are provided as an attachment to these materials. Further information about Canadian federal and provincial election laws and regulations can be obtained on the Internet at the web site http://canada.gc.ca.
Conclusions and Recommendations:
Russian election laws and regulations will evolve out of Russian political and legal institutional development. However desirable, a relatively stable two - party or multi - party system largely depends on politicians' creativity and capability to unite to address the serious economic and international problems affecting Russia and its people. Ballot Access provisions cannot do the work of political resolution of substantive issues. They cannot substitute for intelligent leadership and reasonable compromise on fundamental institutional questions such as the appropriate mix of proportional representation and single - mandate seats. They cannot play the primary role in reducing the number of candidates in Russian Federation elections to a more manageable or desirable level until that becomes the expressed will of the Russian electorate. Nor, from the opposite perspective, can they deal with statutory interpretations such as Article 32 - 35 of the Law on the Election of President of the Russian Federation (where the law has been held to treat signatures of each voters' initiative group or electoral bloc separately rather than cumulatively) that run the risk of potentially disenfranchising an extremely large number of voters.
That being said, fair and objective Ballot Access regulations on signature verification procedures and the objective and timely review of challenges can play an important role in establishing what Americans call a level playing field and transparent rules of the game. CEC data drawn from the practical experience of Russian election officials indicate that there are roughly thirty separate kinds of violations in the signature collection process. Some are and should be considered more serious than others, both from the legal and philosophical (good democratic government) point of view. Inadvertent errors in a person's name, address, passport number, and the like, whether committed by a voter, signature collector, or the authorized representative of a candidate, do not contradict the intent of the voter or candidate. They do not go to the heart of why signature collection procedures exist - to demonstrate support for the candidate. Nor do they go to the heart of why signature verification procedures exist - to demonstrate that voter support is not fraudulent but genuine.
Reasonable standard procedures to fulfill these goals require delegating the responsibility for the actual verification process to the local levels of the bureaucracy that have the capability to do the work. Those responsible for verification must know or be able to verify voter and /or collector/ authorized representative status in a timely and inexpensive fashion. They must accomplish these tasks in a manner that is both non - discriminatory in practice towards one candidate compared with another and that appears to be fair and non - discriminatory to the public as a whole.
Striking the appropriate balance under existing Russian Federation legislation is a difficult task. Because of potential ongoing shifts in electoral commission composition, current laws and regulations do not always allow governmental bodies to carry out these tasks reliably on the local level. Because of impossibly short time frames given the multitude of candidacies, the system does not make it easy for commission and staff activities to guarantee adherence to non - discriminatory standards of conduct and non - discriminatory appearance.
In figuring out how to approach these issues, the CEC and its subordinate bodies need to start from the general perspective of what the Federal Legislation states and how the Supreme Court and lower courts have interpreted it. Article 20 of the Basic Guarantees Law states that failure to register candidates should only be based on failure to comply with Federal or Federation Subject election laws. The Presidential Election Law (Article 35) state that refusal of registration should occur only in case of violation of the Russian Constitution or Federal law. Article 1 of the Basic Guarantees Law clearly covers Duma elections when it states that the law applies to all Federal Assembly elections.27
It does not appear from experience to date that the weight of Supreme Court and other judicial interpretations consider the regulations of the CEC and subordinate Subject commissions to be the equivalent of Federal law. To the contrary, Supreme Court interpretations in the Yabloko and Derzhava cases and the Bryntsalov case, as well as others, suggest that most courts will apparently bend over backwards to qualify candidates and leave the choice to voters rather than administrative agency bureaucrats. That is not an unknown outcome of litigation in the United States. Nor is it necessarily a bad thing in the early stages of democratic development, notwithstanding both understandable and practical reasons for the CEC issuance of various regulations and the broader philosophical principle that technical compliance with regulations is an important element of a rule - of - law society.
In this context, however, the CEC should probably resist the natural temptation, not unknown in the behavior of American governmental agencies as well, to resolve ambiguities about the amount of discretion provided for by the Courts and the statutory scheme by focusing its efforts exclusively on tighter and narrower regulatory requirements. Growth in respect for rule of law by the citizenry is best furthered by mutual respect among the different agencies and branches of government. Appropriate CEC regulations should focus on addressing the «bigger picture» issues on its plate first - how to ensure stability and predictability, if not in their memberships, at least in the application of widely accepted principles and rules by subordinate commission structures regardless of membership composition or political interest.28 At this stage of development, CEC approaches should probably emphasize the prevention of fraudulent conduct, where regulatory mechanisms and remedial and deterrence enforcement activities both do the most good with available resources and stand the best chance of gaining widespread court enforcement and societal acceptance. In the interim, progress towards more regularized technical compliance can involve both building a solid regulatory framework in accord with a judicial and societal consensus and encouraging a learning process for both politicians and the voters.29
At least while political institutions are still in flux and some broader political consensus issues like proportionality and thresholds remain under serious discussion, the CEC should probably apply presumptions like those discussed in the American state examples that documents are in order. They should probably seek to develop approaches that look to obtaining additional information to validate signatures with routine mistakes of passport number or address. They should strive to develop procedures to allow for the correction of inadvertent errors or ambiguities. Examples of possible approaches from Eastern Europe and the CIS include the Czech and Slovak CEC provisions for contact with party officials to clarify candidate lists; the Bulgarian CEC provision for substitute candidacies, the Ukrainian CEC allowance of supplemental signatures; or the Slovenian distinction between formal and more substantive violations.30 Other legal and interpretive concepts that may prove useful include the Belarus reference to disqualification only of repeat offenders, the Hungarian concept of notification about violations to the media, and thus the public, and the Croatian provision (applicable as a standard principle of American election law jurisprudence as well) that the standard for evaluating complaints in nomination or election proceedings is whether the conduct in question substantially affected or could have affected the results of the election.31
This approach does not imply CEC and Subject Commission passivity or inactivity. Where the Courts have upheld CEC rulings, where judicial opinions have supported Commission rationales, and especially where local legislative bodies have promulgated regulatory approaches that express a political consensus (and particularly if they have been subject to court review) Commissions may act more assertively.32 Even in the interim, unless instructed by the legislature or judiciary to the contrary, the Federal legislation gives the CEC statutory powers broad enough to develop a substantial body of administrative procedures and regulatory guidance.
Hopefully the material presented in this paper provides a bountiful menu of choices for the CEC and Subject commissions and staffs to examine. Ideas that might be usefully explored include approaches taken in a number of electoral laws from the United States and Eastern Europe (e.g. Macedonia, Poland, Slovakia) that provide for grand fathered qualification of recognized political parties that have achieved a certain percentage of votes in the preceding election. Also worth consideration is the issue of candidate security bonds or filing fees as in Canada, where the candidate's deposit is refundable if a certain vote percentage is achieved and/or if financial report filing requirements are met.
Additionally, CEC policy objectives may benefit from exploration of closer contact with the Supreme Court and subordinate judicial bodies from what would be called in the United States a «rule - making» perspective. The electoral law statutes of Moldova and Romania, for example, provide for much more direct court involvement both in oversight of the general rules of the game of the electoral system and in the resolution of particular controversies under those rules without an intervening independent administrative body. The Russian statutory scheme establishes an initial separation, although there is a certain amount of ambiguity as to whether aggrieved parties need to first exhaust administrative procedures rather than going directly to court. The time pressures created by the statutes make resolution of these ambiguities especially problematic regardless of which way the decision comes out.33
Perhaps the best Russian solution to this problem would involve a sustained dialogue between the CEC and the Russian Supreme Court (starting perhaps at the level of professional staffs) in order to exchange Court and CEC perspectives on the issuance of interpretive guidelines for lower court judges in selected areas of Ballot Access regulation where there is consensus as to a problem and its solution. If the author correctly understands Russian judicial procedures, such guidelines would be analogous in kind to the Supreme Court instructions that are occasionally issued on matters of judicial importance.34 It may be more acceptable for both institutions to consider addressing these issues outside the heat of a particular controversy, where the Supreme Court is compelled by law to act in review of a CEC decision in a pending case. The CEC could thereby benefit from the provision of additional objective guidance as to the statutes it must administer and the Supreme Court could thereby benefit from not having to potentially address many of these matters on its docket as cases of first impression that have to be decided
This approach may have the further advantage of airing and potentially resolving a number of additional sensitive issues. One is the possible ramifications of review of CEC decisions by individual Supreme Court judges rather than the usual three member panel. A second is the question of whether there may be circumstances, such as the reference to Constitutional supremacy in Article 35 of the Russian Presidential Law, where both the Supreme Court and Constitutional Court might be seen to both have jurisdiction over the same controversy, such as a candidate challenging disqualification for alleged offensive speech or conduct stirring up national hatred.35
In conclusion, as a matter of general principle, most international comparative experience suggests that election law regulation design and interpretation (especially in the early phase of system evolution) should probably lean in the direction of candidate inclusion rather than exclusion if the matter is limited to technical violation. Under normal circumstances, barring or removing a disputed candidate from the ballot is a more extreme solution than allowing the participation of a candidacy of uncertain merit measured by compliance with technical regulations. It is probably better to allow voters to resolve these uncertainties at the ballot box. From the same general starting point, most non - compliance with aspects of the regulatory system are probably best addressed by procedures that call them to the attention of a candidate for correction either in advance of closing the window for participation or allowing technical correction for a reasonable time after the qualifying period has elapsed. Most CIS Ballot Access systems lean towards this approach.
Perhaps the final principle to keep in mind is the fact that democratic election procedures normally anticipate ongoing evolution in how these issues will be resolved. There is not likely to be one final solution. Changes in legislation may warrant corresponding or balancing changes in regulation and as one component of a system is adjusted, it is likely that other readjustments may be advisable in order to fulfill competing goals and to take into account consequences that may not have been foreseen. If, for example, the requirement for six months in advance registration of political movements with the Ministry of Justice were to be liberalized or shortened by statute, the windows for signature gathering and the procedures for signature verification might also need to be adjusted. In this context it might not be unreasonable to require new political groupings to satisfy qualification requirements in an accelerated manner on the grounds that if they represent a genuine political force, they will be able to do so, and that this is a reasonable compromise between such conflicting goals. More generally, if the CEC is widely seen by Russian society as a creative mediator and neutral implementer of compromises that make the political system work better, it will be able to play a vital role in building a stable Russian democracy.
25 Copies of these statutory excerpts can be forwarded from IFES Washington if this compendium is not yet available in the IFES Moscow library.
26 A number of the provisions set out below are chosen to illustrate paths, both on Ballot Access questions, and on related matters, which the author believes should NOT be chosen For example, the Albanian law suggests that the punishment of voters who engage in illegal conduct should be equally severe as the punishment of the person who solicits them to do so. While a philosophical argument can be made to support this position, a more practical approach for election system regulators is to concentrate on deterrence of organized systemic violations. The Kazakhstan statutes seems to be vague as to time frame. Perhaps most significant for CEC consideration is Ukraine's experience with the statutory requirement that 50% of the voters must participate in order to make the results valid in a given constituency, rather than the 25% threshold used in the Russian Federation and nearly all other CIS electoral systems. While this approach represents a noble philosophical goal of encouraging turnout, its practical effect has been to leave quite a few jurisdictions deprived of any legislative representation for a considerable period of time. (This legal provision is now being reconsidered in Ukraine). This example illustrates how the consequences of choices in the broader statutory scheme of a country can far outweigh the implications of other more technical ballot qualification provisions.
27 It is also arguable from Article 1 that the Basic Guarantees Law application to Subject body executive and legislative branch election laws may provide a basis for challenges to Subject legislation that establishes signature requirements in excess of the 2% referenced in Article 18 of the Basic Guarantees Law. According to the CEC Subject election procedure chart discussed at p 7 infra, a number of Subjects have passed laws which require the collection of signatures of more than 2% of the voters.
28 A whole separate issue, now becoming the subject of increasingly heated controversy in the United States as well as in the Russian Federation, revolves around the subject of money. What should be done about imbalances in candidates' financial resources, whether to purchase air time, collect signatures, or afford the professional staffs that can make sure that all Ballot Access technical requirements are complied with? As a corollary to this issue, what should be done in cases of violation. These issues arguably have far more significance than technical matters of signature verification both in terms of public perceptions about a political system and the reality of electoral system fairness.
29 In a number of Subjects of the Federation, noted in the discussion of the approaches of various Oblasts regarding signature verification, there appears a bit of a trend in the opposite direction. CEC collections of local oblast election materials indicate that a number of localities appear to be imposing very strict signature irregularity disqualification standards, down to the level of 2% or 3% error standards, without regard to the degree to which the submitted signatures exceed the necessary qualifying number, whether the irregularities involve intentional misconduct or inadvertent mistake, and also, unfortunately, if the English translation is accurate, with ambiguity over whether enforcement is mandatory or optional. It would be interesting to know the extent to which any of these provisions have been subject to legal challenge and how these challenges have fared. Considering the principles of federalism and local initiative, it is probably better that such provisions arise as legislative initiatives at the Subject level rather than being seen as CEC national initiatives seemingly inconsistent with a number of Supreme Court decisions. Assuming appropriate provisions for avoiding selective or inconsistent enforcement are in place, it is quite plausible that courts will be increasingly inclined to support stricter standards promulgated after legislative debate and enforced consistently by officials at the local level.
30 More broadly, other than the general principles outlined in the subsequent text, the author would prefer to defer specific suggestions for resolution of particular Russian Federation Ballot Access issues until after having read the applicable CEC and Subject regulations and Court decisions addressing these issues.
31 Although not dealing with Ballot Access questions, that appears to have been the standard applied in the decision of the Amur regional court reported on Thursday November 28 ordering a rerun of the Amur Oblast gubernatorial election. The period for further appeal up to the Russian Supreme Court has not expired as this report is being drafted.
32 See note 30 above.
33 Questions of exhaustion of administrative remedies present troubling issues in the American legal system as well. Here, as in note 30 above, the starting point for analysis should be an attempt to reconcile how the Supreme Court, the CEC, and other commissions and courts have addressed the administrative exhaustion issue.
34 As Linda Edgeworth, Election Adviser, IFES Russia stated in remarks to the CEC on March 27, 1996, the fact that an issue is in litigation is itself an indication that the process is not working as smoothly as it could. The more advance guidance available to the parties, the more likely that elections will serve the role of efficient and peaceful resolution of societal controversies.
35 Like the barrier to the amalgamation of voters' initiative group signatures to reach the 1 million mark for nomination of a Presidential candidate, this is the kind of procedural hurdle which may hinder the constructive coalescence of democratic forces. Often in American experience, the development of a new political party has been stimulated by the fact of voter dissatisfaction with available choices and most Americans tend to focus on their choice of candidates fairly late in an electoral cycle.
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