On July, 16, 2020, Verkhovna Rada of Ukraine approved in the second reading the draft law No 3485 on changes to electoral law. The decision that implies amendments to the Electoral Code, the Criminal Code and the Code on Administrative Offense, the laws on the CEC and the State Voter Register was supported by the 308 people’s deputies of Ukraine. 

Approval of the draft law No 3485 was the regular next step of the discussion in the parliament of the 9th convocation about the Electoral Code that has been on since August, 2019, since the moment the presidential veto was applied thereto. Accepting the proposals to the Electoral Code from the President of Ukraine in December, 2019, did not eliminate all the remarks from the people’s deputies of Ukraine and the experts. It resulted in the review of voting rules in the run-up to the 2020 local elections. Therefore, the Verkhovna Rada of Ukraine of the 9th convocation failed to provide for the guarantees for sustainability of electoral law, which replicated the improper practices of the previous parliament. The sectoral committee of Verkhovna Rada on electoral law and the parliament in general showed the intention to avoid the monopoly influence of one political group on the final rules for election administration. However, the broad parliamentary compromise also regretfully included the arrangements about politically biased decisions on election system, and on certain aspects of election administration. 

OPORA states the significant progress in the field of securing suffrage for citizens that the Ukrainian parliament has reached in finalizing the Electoral Code. The current composition of the parliament approved the effective decisions on regulating problematic aspects in exercising the suffrage for internally displaced persons and internal migrant workers. The issues arose back before the 2015 regular local elections, but it was efficiently resolved only in December, 2019, with further finalization this July. The parliament’s readiness to take into account the citizens’ needs on the level of the law enabled the CEC to implement the practical mechanism for changing the electoral address to internally mobile voters. Specifically, the legislative decisions opened the way to securing rights to more voters, and also they created the preconditions for the higher election administration authority to administer elections via the innovative electronic services to change the electoral address. 

Verkhovna Rada of Ukraine showed the readiness to enhance the efficiency of the law to counteract electoral fraud, their investigation and application of the respective sanctions to the perpetrators. People’s deputies of Ukraine supported most changes to the Criminal Code and the Code on Administrative Offense that have been jointly developed by the law-enforcement bodies and expert organizations back in 2017. Unfortunately, the politically biased statements of certain people’s deputies at the parliamentary session led to deleting the provision on the liability for voter bribery from the package of legislative innovations. As the previous elections show, it is a rather efficient technology for the influential electoral actors to make their own ‘network’ of fake candidates to mislead voters and to establish the non-competitive control over election commissions. 

OPORA hereby commends the parliament’s decision to crucially lower the monetary deposit at local elections, as compared with the previous version of Electoral Code, which excessive amount could largely impact the election competitiveness. The negative impact could be especially critical in the combination with the monopolization of the parties’ right enshrined in the law to nominate their candidates to most local councils and to enhance control over the elected persons through the mechanism of their withdrawal. Competeitiveness of elections can also be improved due to the revised ballot template at elections with the proportionate system. Unlike the previous version, it will help personal voting for the certain candidate from the political party they chose.

People’s deputies of Ukraine also created the positive legislative framework for full-fledged securing of voting rights for people with disabilities who are still facing the huge obstacles in access to the operations of election commissions and during reading the pre-election campaigning materials. It is obvious that the practical exercise of the new guarantees for voters with disabilities will require due coordination among authorities and election commissions, and also due financial support from the Government. However, the proactive position of the parliament and the CEC offers a chance to Ukraine to solve problems for this group of citizens in the election process. 

In addition to the important progress of the government in voting rights for citizens and the election anti-fraud, OPORA needs to quote the parliament’s infringement on the principle of stability of the key elements of the electoral system. 

Extending the proportionate electoral system to the territorial communities with the number of voters 10,000 or more, crucial reduction of opportunities for self-nomination, deleting the election of starostas (elders) in amalgamated hromadas less than two months before the election process, do not comply with the international standards of democratic elections. In fact, in Ukraine, there has developed a negative political tradition for making a legal framework for elections shortly before their start. It creates potentially unfavourable conditions to prepare local leaders and political groups for elections. Instead, legal uncertainty of electoral process is less critical a problem for the financially capable political actors. 

The complicated electoral systems, new reality for election administration in the context of having Verkhovna Rada of Ukraine create big districts and lack of time to train the election commission members – these are key organizational challenges for the 2020 electoral process. They were enhanced by the parliament’s decision to empower deputy groups of the Verkhovna Rada of Ukraine to conclude agreements with local party organizations, and thus claim the mandatory representation in TECs and PECs. The deputy groups of the parliament are not subjects of electoral or party processes, while their agreements that do not have any clearly defined legal status and consequences may cause further destabilization of election commissions and aggravate the signs of political corruption.

OPORA hereby pledges the Verkhovna Rada of Ukraine and its responsible committees to provide for due technical and legal finalization of Electoral Code provisions about the equal representation of men and women in the party voting lists. 

Instead, we hereby recommend to the Cabinet of Ministers of Ukraine, to the Central Election Commission, and to other competent authorities to immediately launch the awareness campaigns for voters on key innovations in the electoral process 2020.

The detailed description of key changes to the Electoral Code can be found further. 

A detailed description of key amendments to the Electoral Code approved in the second reading 

Individual violations of the routine procedure

It shall be noted that postponing the process of developing changes to Electoral Code to May, 2020, that provoked the justified concerns from NGOs , when changes covered not only the technical amendments needed for conducting the regular local elections in October, 2020, but all the books of the Electoral Code and the related laws, introducing a big number of amendments to the draft law in the second reading, and the inconsistency of positions of deputy factions and deputies within certain factions as to a series of key provisions of the draft law, led to the consideration of the draft law No 3485 in the last days of the regular session, shortly before the start of election process. Thus, the situation required the immediate adoption of the draft law and was accompanied with certain procedural breaches.

At the outset of considering the draft law, the Speaker of the Verkhovna Rada announced that in order to pass at that plenary session about 4,000 amendments with the heads of deputy factions and groups, it was arranged to consider the draft law under the following procedure: 3 min for an input from a deputy faction/group; up to 15 amendments to get an approval or a confirmation from each deputy faction/group; a separate vote for each 3 blocs of issues about the following: 

  • the minimum number of votes required for the promotion in the territorial voting list, to choose from the 5, 25, 50 % of the electoral quota;
  • the threshold of applying a proportionate election system, to choose from the hromadas with the number of voters 5, 10, 15 or 35 thousand voters; even though during the consideration of this issue the amendments announced for voting were 426 (10,000), 1331 (25,000), and 423 (35,000); 
  • the form of a ballot, to choose from a ballot with the space to indicate the candidate number opposite each party and a ballot with the unified space to mark such number in the end of the ballot.

With regard to it, the following breaches of the routine procedure shall be singled out. Under Art. 102, 119 of the Law of Ukraine “On the Parliamentary Procedure of the Verkhovna Rada of Ukraine” a draft is usually considered under the procedure of three readings, such as in the second reading there is the article-by-article discussion, while with the adoption of the consideration of the draft law 3485 announced by the Speaker of Verkhovna Rada, all amendments were not to be considered. In addition, the quantitative restrictions on the consideration of amendments or proposals from factions/groups shall only be exercised under the special procedure stipulated by Art. 119-1 of the Rules and Regulations, but no decision to apply it was approved by the Parliament. It shall be noted that in the session room, no procedural decisions were adopted to single out the three blocs of issues and their separate consideration following the consideration of the draft law. In addition, we should not forget about the restriction established by Part 4 of Art. 102 of the Rules and Regulations on the impossibility of final adoption of draft codes and laws containing over 100 articles (paragraphs) to take place immediately after the first or second reading. Also, prior to the consideration of the draft law, an amendment was announced on the threshold for the application of the proportional election system at the level of hromadas with 5,000 voters or above, which was not submitted to the draft law. As a result, the specified number of voters was not put to the vote.

Final version of key policy aspects (electoral system, promotion on the list, ballot, monetary deposit, gender quota)

Election system. Regretfully, the Parliament focused on the application of the proportional electoral system in districts and oblasts of all territorial communities with the number of voters 10,000 or more, but not only in large cities of Ukraine (90,000 voters or more). As OPORA has already stated, the application of such system contradicts international standards for the stability of electoral law, and restricts the possibility for self-nomination of citizens at local elections, and may lead to partisanship and the unwanted polarization of Ukraine’s regions on the basis of voting results. The undemocratic procedure for recalling local council deputies deserves a negative assessment. During the plenary session, the deputies initiated consideration of amendments to the procedure for recalling deputies of local councils and elected officials on the ground, in order to reject them, but the parliament did not support the deputies' proposals.

The abolition of the electivity of elders (starostas) is dubious in terms of predictability of the legislation on the eve of the election.

Promotion on the list. Contrary to the position of the dedicated committee, the minimum number of votes required for a candidate to advance to the first part of the territorial electoral list was not reduced from 25% to 5% of the electoral quota. Thus, the parliament did not take a step towards increasing the influence of votes on the election of a candidate, i.e. on ensuring the true openness of voter lists.

Amendments 1309 and 3672 (from a People's Deputy Oleksandr Puzanov) regarding the obligatory placement of the first number in the territorial list first, when determining the order of elected candidates were not supported by the Parliament. 

A new form of a ballot. Parliament approved a new form of a ballot for the election of deputies to the Verkhovna Rada of the Autonomous Republic of Crimea, regional, district, city district, as well as city, village, township council (territorial community with 10,000 voters or more), which, unlike the previous form of a ballot paper, will contain in front of each party not only a place to vote for the party, but also a place in the form of a stencil to indicate the number of the candidate who wishes to support the voter. Given that voting for candidates remains optional, such a ballot structure will facilitate personalized voting, candidates receive the required number of votes to change the order of the voting list, and partially help to overcome the excessive threshold for promotion in the territorial electoral list at 25% of the vote.

Monetary deposit. The Parliament reduced the monetary deposit in administrative territorial units where a proportional system is applied at elections of local deputies, and a majoritarian system of the absolute majority for mayoral candidates. At the same time, a deposit has been introduced on the level of small towns, villages and townships for candidates for deputies and local heads, such as:

  • for elections of deputies to the Verkhovna Rada of the Autonomous Republic of Crimea  - 250 minimum wages; 
  • for elections of deputies of village, settlement, district in the city, city (city with the number of voters up to 10 thousand people) and district council - 20% of the minimum wage;
  • for elections of a village, settlement, city mayor (city with the number of voters up to 75,000 people) - 1 minimum wage;
  • for elections of deputies of the city council (city with the 10,000 voters or more), regional council, mayoral candidate (city with 75,000 voters or more) - 4 minimum wages in the monthly amount set on the day of the election process, per every 90,000 voters.

Gender quota. The Parliament kept the approach to gender representation during the compilation of the unified and territorial election lists set in the current version of the Electoral Code. It is about securing the presence of men and women in each group of five (positions from one to five, from six to ten, and so on) in each voting list (at least two candidates of each gender), regardless of the proposals from deputies either to extend them (such as to have the groups of six “3 x 3” candidates of each gender) or to reduce them (such as to have “7 x 3” candidates of each gender in the groups of ten). Therefore, following the technical and legal finalization, the minimum number of candidates was kept who could be nominated in the territorial voting list, on the level of a group of five. However, the Committee supported the amendment about the 6 candidates. It is still debatable whether the changes can be covered by the technical and legal adjustments.

The Parliament failed to support the amendments 4047 and 4050 (from the people’s deputy Nataliya Korolevska) that consolidate in the Code the need to have elections to the oblast council of Donetsk and Luhansk oblasts.

Amendments supported and declined by the Parliament on the procedural issues of Electoral Code

It shall be noted that the Parliament took into account about 40 amendments from a people’s deputy Serhiy Kalchenko that have not been supported by the dedicated Committee, despite the fact that they intended to improve key electoral procedures and did not have any political bias. The amendments were about the 4 key blocs: 

  • organization of the work of election commissions (rejecting the possibility to hold meetings at the CEC that cannot guarantee the presence of representatives of electoral actors; the procedure for mandatory publication of all decisions of election commissions, including protocol decisions) no later than on the next day of DEC decisions on the official website of the CEC); the moment of entering the commission’s decision into effect; the procedure for canceling the election commission’s decision is clearly regulated to be exercised exclusively by the election commission of the higher level, or the court); 
  • transfer of ballots (rejecting the fix field meetings on the transfer of ballots in national elections, transfer of ballots through the authorized representatives other than at the meetings of the higher level commission at local elections; deleting the provisions on the possibility of additional procurement of ballots by the respective election commission, in the event it is established that at certain polling stations there were more voters at the moment of finishing the production of ballots than the number of produced ballots); 
  • return of transcripts to protocols, including also as to the number of voters who vote outside the place of stay and at the voting premises;
  • candidate registration, such as at the national elections they rejected the approach when the lack of certain information can be considered as lack of document; at the same time, they generally supplemented the provision for local elections about the lack of at least one document with provisions on the inconsistency of such documents to the requirements of Electoral Code (including also about the amount of the deposit); at all types of elections, they excluded the provisions on the need to submit a reference certificate on criminal record; however, in the list of required documents for candidate registration at elections of people’s deputies, they kept a statement on debt for child spousal support (if any), and excluded the similar provisions at local elections.

In addition, the following provisions have been deleted: 1) pursuant to them, a voter in a foreign constituency shall vote exclusively under the general national closed voting list, which implies the factual introduction of an election system for voters abroad that is different than the system valid on the territory of Ukraine; 2) as to the possibility to identify a personality or a citizenship via electronic identification under the procedures established by the Central Election Commission.

There is a possibility to announce the first elections in administrative territorial units established by the resolution 3650 on the creation and liquidation of ‘rayons’ (districts).

In addition, the procedural innovations include the formation by the CEC of territorial election commissions in all cities (rather than only in cities of oblast status). The interim provisions of the draft law synchronized the establishment of territorial election commissions and the first elections in 2020, which would allow to start a process of forming territorial election commissions as soon as on July, 27. The candidacies to the composition of the respective territorial election commissions may be submitted by the oblast, district, city, city district councils in the cities of Kyiv and Sevastopol. In the event they are not available within the party structure, it shall be administered by oblast organization of the party. Since the composition of territorial election commissions shall include from 9 to 18 members, while the commission shall mandatory include two candidates from local organization of a political party that created a deputy faction in the parliament, and one candidate from a local organization of the political party that concluded an agreement on political cooperation with the deputy group, local political parties that are not related with the parliamentary factions or groups have a chance to get only six representatives in territorial election commissions by drawing lots.

The Parliament rejected an amendment 1684 from a people’s deputy Dmytro Gurin that established a special procedure for forming territorial constituencies in the city of Kyiv; and amendment 561 from Serhiy Velmozhnyi that provided for impossibility to create or change the boundaries of territorial constituency used for the preparation, organization, and conduct of the national elections, during the electoral process at these elections.

The deputies did not support the amendments intended to double the payment to members of district and precinct commissions (amendments 852, 853 from the deputy Anton Poliakov); establishing the maximum number of candidates for people’s deputies who can be nominated at the party’s convention in certain oblasts (1158, 1149 from the deputy Ivan Krulko).

One debatavle aspect during the discussion of amendments to the Electoral Code in the second reading was a possibility enshrined in the draft law for the CEC territorial offices to perform the functions of the district election commission as a legal entity. However, the relevant provision was clarified by assigning to the representative office only the functions of financial and logistical support of the election process.

Moreover, the expert environment noted that there may arise issues in the event when the documents for the registration of a deputy elected into two councils are submitted to two territorial election commissions. 

One of the most challenging issues in preparing the draft for the second reading was the provision on the possibility for applying an electronic voting. As a result, provisions on the use of innovative technologies in the election process were approved by the parliament in the version suggested in amendment 496 (from people’s deputies Oleksandr Puzanov and Oleksnadr Kachnyi). Besides, further in the text, all books of the Electoral Code technically and legally took into account all other proposals corresponding with this amendment (such as 922, 941, 948, 969, 1220, 1236, 1245, 1252, 1277, 3181, 3262, 3287, 3300, 3404, 3941 ). Therefore, it is provided for the following:

  • decision on the introduction of innovative technologies, hardware and sofratware tools during the organization and conduct of elections in a form of an experiment or a pilot project shall be adopted by the CEC;
  • through an experiment or a pilot project, there may be conducted only the following: 1) voters voting at a polling station with the help of hardware and software (machine assited voting); 2) conducting the vote count with the help of technical tools for e-count; 3) drafting vote count protocols, conclusions and results of voting with the use of information analytical system.
  • Conducting experiments or pilot projects shall be exercised at certain polling stations determined by the CEC, parallel with the conduct of elections at these polling stations, in line with all requirements and procedures for the respective elections and voting; moreover, it shall not lead to a wrongful impression with voters about the replacement of election procedures for certain elections with the procedure of respective experiments or pilot projects;
  • results of experiments or pilot projects are used for improvement of the law as to enforcement, and do not have any legal consequences for establishing the vote or voting results, do not create any grounds and cannot be used for appeals for decisions, actions, or inaction of electoral actors.

The amendments supported by the Parliament do not pose any threat for replacement of electoral procedures established by the Code due to the experiment declared by the CEC. At the same time, in the working group considering the amendments to the second reading, they mentioned the need to regulate the conduct of experiment with a separate law that had to undergo the procedure of due expert and public discussion before its adoption.

Changes to the Criminal Code of Ukraine and the Code of Ukraine on Administrative Offense in part of inescapable punishment for electoral fraud

As earlier mentioned by OPORA at the previous stages of dicsussing amendments to electoral fraud, a positive aspect is the Parliament’s support of changes to the Criminal Code and the Code of Ukraine on Administrative Offense that would provide for due balance between the punishment for the fraud during elections and their prevention, and create conducive environment to investigate the violations, and also for cooperation of voters with the investigation.

However, since the deputies supported all amendments (83, 85 from the people’s deputy Roman Kniazevych), they deleted the provisions on voter bribery from the suggested bloc of changes about the inescapable punishment for electoral fraud. They enabled the bringing to responsibility for the use of technical candidates. Thus, the Criminal code will further not set the efficient measures to counteract this type of violation of citizen voting rights.