OPORA's Position on the Approval of the Electoral Code Before Reconsideration

The proposals from the President of Ukraine to the Electoral Code in the version of the parliamentary committee are planned to be considered by the MPs during the plenary week of December, 3-6, 2019. The Committee of the Supreme Council of Ukraine on Public Administration, Local Self-Government, Regional Development and Urban Planning invested much effort to have an inclusive discussion of proposals to the Electoral Code. However, their final version was discussed without members of an intersectoral working group.

The Parliament needs to finalize its position both on progressive innovations, and also on highly risky suggestions. Under these conditions, the Verkhovna Rada of Ukraine must firmly follow requirements of the Regulations when considering the issue of Electoral Code, and provide for full-fledged discussion by Ukrainian parliamentarians of all the suggested changes.

The organization hereby calls parliamentary subjects to make use of procedural possibilities to finetune the text of the document. In particular, the parliamentary committee is recommended to hold another meeting before the consideration of the Code by the Parliament of Ukraine. The objective of such session shall be the discussion of controversial issues of the document, with account for proposals from deputy factions and the public, as well as official approval of the final version of proposals to the Code. These steps of the committee will help provide for legality and inclusivity in the preparation of the Electoral Code for review.

OPORA will insist on further immediate review of a series of provisions of the Electoral Code.

Approval of the Electoral Code is a long-term obligation of the Ukrainian parliament, also pertaining to the MPs newly elected in July, 2019. Social legitimacy of election reform can only be reached through consistent actions by legislators, fulfilment of political commitments in terms of providing for quality of procedures, and exercise of citizens’ voting rights. It is unacceptable to block the final adoption of the Code, or to aggravate certain provisions after the second review.

The final version of changes to the Code includes advanced provisions on securing voting rights for internally displaced persons, labour migrants, and other mobile groups of population. Solution to the problem of IDPs and labour migrants has been supported by national and international organizations since 2014. Parliamentary voting for this proposal will show that in its policies the state has followed the priority of protecting citizen rights. Enabling voters to change their voting addresses on the grounds of their personal justified application will make it possible for IDPs and labour migrants to take part in the 2020 local elections. At the same time, changes to the Electoral Code include a set of precautions against possible abuse of the simplified procedure.

Changes to the Code introduce the electronic mode for the CEC and the polling station commissions to obtain applications and other documents from voters and candidates. Approval of the Code will finally enable the launch of a very important part of internal reforms of the CEC. The changes provide for establishment of expert groups at the CEC obligating the Commission to take their decisions into account. It is the first time that we have a legal framework to control financial expenses of candidates and parties in social media, interaction of the National Council for Television and Radio Broadcasting with global platforms. Changes to the Law of Ukraine “On Advertising” suggest the option to ban early campaigning by parties and potential candidates, while currently significant financial resources are spent therefor.

OPORA supports the listed proposals in the part of voting rights of citizens, accountability of election campaigns, and improvement of activities of election administrators.

Unfortunately, MPs will also consider ambiguous Code provisions in terms of their conformity with the democratic election standards and the Constitution of Ukraine.

Among such initiatives, OPORA lists the right of the CEC to reject candidates’ registration on the grounds of the letter from the SBU on their possible involvement into crime against the state or into terror crimes. In addition, granting powers to the CEC to resolve issues with their own decisions is not regulated by the Electoral Code.

Political conflicts may be raised by the proposal to counteract “technical” candidates and “clones” by rejecting their rights to run for elections in the event some circumstances are revealed proving they attempted to mislead voters. The issues of having persons involved into illegal actions and the problem of “technical” candidates shall be addressed by raising efficiency of performance of law-enforcement and judicial bodies, but not by empowering the CEC and the SBU with the authorities untypical for them. The law-enforcement officers and the courts shall establish the facts of committing crimes by persons, or prove the fact of bribing a “technical” candidate by an influential electoral participant.

The proposals to Electoral Code try to raise professional competence of election commission members by stipulating the possibility to include as members the employees of regional or territorial branches of the CEC. OPORA welcomes the initiatives to provide for uninterrupted operations of election commissions but highlights the need to thoughtfully and gradually shift to professional election commissions, with respect for rights of electoral actors.

Changes to the Code imply inclusion of the representatives of regional/territorial CEC branches to the managerial staff of the DECs and TECs. It is also the possibility to establish secretariats of district election commissions. At the same time, no mandatory requirement is established for attestation of competence of commission members representing electoral subjects. The proposals bear a potential risk of breaking the balance between professionalization and independence of commission members.

The Electoral Code does not provide for the actual guarantees for having political parties conform with the requirements on representing two genders in electoral lists. No significant progress has been reached in assuring voting rights of citizens with disabilities through comprehensive review of approaches to accessibility of polling stations, to campaigning materials, and to operations of election commissions. The same as in the current law, official observers from NGOs will not be able to operate observation on the level of the CEC since their powers will be reduced to certain constituencies.

Defining an electoral system is a political issue whenever key democratic principles for elections are followed in the law. However, the Electoral Code shall provide for transparent and balanced procedures of distribution of mandates among the candidates. At the same time, they shall not provoke illegal practices on the part of electoral subjects. For example, changes to the Code provide that the mandate shall be given to the candidate receiving more votes, upon condition that there is no minimal barrier to move up the voting list. Candidates with small priority by the number of votes (potentially – with one vote) shall receive a representative mandate. The lack of minimum barrier to move in the voting list may cause massive cases of bribery and falsification of vote count protocols by candidates. The draft Electoral Code was registered by people’s deputies in October, 2015, but it was adopted as late as in July, 2019, on the eve of completing the mandate of the previous iteration of the Parliament.

This September, the President of Ukraine Volodymyr Zelenskyi applied the veto privilege to the Electoral Code. The decision of the Head of state was based on important and justified remarks about the need to enhance the guarantees protecting voting rights of citizens and efficiency of electoral procedures. The Committee for Organization of Public Administration, Local Self-Government, Regional Development and Urban Planning had to elaborate on the presidential veto solely on the basis of his remarks, without any specific options for their possible adoption. In fact, they had not been filed in the form of specific legislative proposals.

The parliamentary committee in charge of the drafting of Electoral Code has actively communicated with the national NGOs and international organizations, and various expert communities. Activities of the Committee for Considering Recommendations to Electoral Code is an important experience of interaction of the newly elected people’s deputies of Ukraine with the civil society organizations. During one of the final stages, CCE joined the discussion and suggested literally a new version of the Electoral Code. The proposal from the high authority of election administration laid the basis for the final version of changes to the Code to be considered by the Supreme Council of Ukraine this week.

OPORA welcomes the interaction of the parliamentary committee with the public and the initiative CEC expressed. At the same time, OPORA highlights the non-transparency in producing the final version of proposals to the Code. Significant innovations of the Code failed to pass the joint discussion within the working group composed of people’s deputies of Ukraine, CEC members, and representatives of national and international organizations.

OPORA prioritized remarks on changes in the Election Code

OPORA identifies the following critical shortcomings in the proposed version of the Electoral Code:

Excessive expansion of grounds for rejecting registration of candidates or cancellation of their registration

Possibility for rejection of candidate’s registration or its cancellation on the grounds of a justified request from the Security Service of Ukraine. The request may be related to possible engagement of a person in separatist, terrorist, subversive, or reconnaissance and disruption activities, or other actions against integrity of the state border of Ukraine, foundations of homeland security, peace, safety of mankind, and international law and order. The proposals do not specify the procedures for verifying the grounds for SBU’s request to the CEC.
Possibility for rejection of candidate’s registration or its cancellation in case of having CEC establish circumstances confirming that the person’s actions claiming the status of electoral subject are intended to deceive voters, or impede their free will expression (initiative as to preventing “technical candidates”).
Unrestricted scope of information about the candidate that the CEC can selectively request from any public authorities, local self-governments, and law-enforcement institutions to make the decisions on his/her registration.
Possibility to cancel the candidate’s registration in the event of revealing the fact of submitting untruthful information by such person. The acting law does not provide for any such grounds. At the same time, there is an obvious complexity for its unified use in different specific situations.
A possibility is introduced to reject a candidate’s registration not only in cases of failing to submit one of the listed documents but also in case of lacking certain data in one document at least. The proposal opens the way for excessive formalism in decision making on registration or rejection of candidate’s registration.

New grounds for rejection of candidate’s registration go against the presumption of innocence and empower law-enforcement bodies, CEC, and other public authorities with excessive mandate on establishing a person’s right to run for elections.

On the one hand, under Article 62 of the Constitution of Ukraine, a person is considered innocent in crime and may not be subject to criminal liability until the guilt is proven by due process of law and established by the court judgement of conviction. At the same time, the Constitution provides that no one shall be obliged to prove their innocence in committing a crime, while the accusations may not be based on assumptions.

During the 2019 extraordinary parliamentary elections, the CEC was unjustifiably accused of ‘“unlawful” registration of candidates assumedly involved in a crime against the state. However, in our opinion, political conflicts around certain candidates shall not become justifications for infringing the person’s presumption of innocence and for restricting citizen rights and freedoms.

On the other hand, selectiveness in verifying candidates and the unidentified volume of requested information may lead to unequal application of the law. For example, changes to the Code provide that a request for information may be filed on foreign citizenship of a candidate, even though it cannot serve as the grounds for rejection of registration. In combination with the provision of cancellation of candidate’s registration, in case of submitting untruthful information, the suggested proposals may lead to unconstitutional restrictions of voting rights of citizens.

Legal uncertainty and excessiveness of certain powers of the CEC

CEC is granted with powers to independently decide on the issues of preparation and conduct of elections not regulated by the Code.

The Constitution of Ukraine clearly indicates that the procedures of organization and conduct of elections shall be regulated by the laws of Ukraine, while public authorities shall act only on the grounds, within powers, and in a manner provided by the Constitution and the laws (part 2 of Art. 19; par. 20 of part 1 of Art. 92).

OPORA hereby consistently insists on internal reform of the high authority for election administration, and on capacity enhancement of the Commission to respond to breaches of the law. However, raising efficiency of the CEC cannot be taking place at the cost of breaking the principle of legal certainty of election process in general. The Commission itself shall be the least interested stakeholder to invalidate the principle since they often face the unjustified accusations either of inaction or excessive interference.

CEC is entitled to independently set the procedures for experimenting with organization and establishment of election and referenda results with the use of innovative technologies, technical and software media, the introduction of online services during elections.

OPORA supports the empowering of the CEC with the mandate to initiate experiments in the area of electoral process. However, the organization insists on legal definition of key requirements thereto. The process of undertaking such experiments is connected with the rights of electoral subjects, and it shall be stipulated by the laws of Ukraine.

The same as before, official observers shall not be able to conduct the full-fledged observation over CEC activities, or attend its meetings without their prior authorization.

The same as in the previous version of the Code, the new version does not provide for the right of non-governmental organizations to register their observers to monitor CEC activities. The powers of all observers without exceptions are limited to constituencies they are registered in. It implies that the same as before observers shall not be able to fully evaluate operations of the high authority for administration of elections.

Changes to the Law of Ukraine “On Central Election Commission” provide for having the Commission conduct working meetings where observers, journalists, and other persons may attend only upon Commission’s invitation.

Current version of the Law of Ukraine “ On Central Election Commission” does not directly provide for a meeting as a form of operations of the commission, while the practice to conduct them had been introduced on the level of Commission Regulations. The proposal to legalize the meetings of CEC members on the level of the law require further discussions about its conformity with the principles of collegiate character, transparency, and openness of the Commission’s activities. As it has been mentioned multiple times before in the reports of international observation missions, the practice of approving final decisions of the Commission in closed meetings with the declarative role of official meetings does not meet the standards of election administration.

The final version of the Code fails to take into account the proposals from the public on detailed regulation of procedures for appointing, dismissal, and termination of powers of the CEC members, setting requirements to the process of consideration of proposals from factions and groups of the new composition of the Commission by the President of Ukraine. According to OPORA, the long-standing history of politically biased rotations of the CEC members or exceeding of their powers are a bright illustration of the relevance to establish the full-fledged procedures on the level of the Law.

The Code ignores the remarks from the President of Ukraine Volodymyr Zelenskyi on protection of voting rights of persons with disabilities

Decisions of the CEC, of territorial commissions, other materials of election commissions shall not be published in the format accessible to users with vision and hearing impairments;
It is suggested to exclude the provisions of the previous version of the Code on subtitling or translation into sign language of the election campaigning materials in media;
It shall not be secured smart use for the election commission member with disabilities on the stage of composing the membership and operations of the election commission (writing application to the commission, access to its meetings and to the facilities, etc.).
DECs shall not be appointing members of the commission in charge of controlling access to facilities and polling booths for voters with disabilities.

Narrowing of legal guarantees for participation for persons with disabilities in the electoral process does not meet the position of the President of Ukraine declared in the veto. It is only the legal obligation that will force the state make the electoral process accessible, and to find due resources therefor.

Efficient guarantees for equality of two genders in electoral process are not provided in the Electoral Code

During formation of voting lists at the parliamentary and local elections, political parties and their local branches are obliged to follow the gender quota but the Code does not provide for any sanctions for the breach.

Lack of imperative provisions on rejection for registration of the voting list in case of failing to follow the gender representation undermines efficiency of legal guarantees for equal access of men and women to electoral process. In the previous version of the Code, the CEC had the right to reject the registration of the entire voting list on the grounds of the party’s failing to follow the gender quota.

Risks of the selected approach to professionalization of election commissions of lower levels (DEC, TEC, PEC)

Changes to the Electoral Code provide for the possibility to appoint employees of the regional branches of the CEC for positions of heads, deputy heads, and secretaries of the DEC, without vote. In this case, the principle of proportionate distribution of managerial positions in commissions among the electoral subjects may not be abided.
DEC is entitled to increase the membership of the PEC for due organization of voting, while no clear criteria are set for the plausibility of such decision;
There is provided a possibility to establish secretariats for district election commissions, while no procedures are suggested for the interaction of secretaries with the commission members.
Certification of competence of members of district and territorial election commissions remains non-mandatory. This provision invalidates the status of the Center for Training Electoral Participants at the CEC, and goes against the tasks to professionalize members of election commissions.

According to OPORA, proposals to change approaches to composing election commissions or increasing their membership are under-elaborated. Employees of the CEC branches may assume the key functions in the commission operations. It may potentially lead to abuse of administrative resources on the local level. At the same time, electoral subjects shall be entitled to further nominate incompetent persons for commission membership. It would aggravate mutual control between the “professional” members from the CEC and representatives of political parties. Moreover, doubts are raised by the practical capacity of the model when the head or the deputy head of commission have no vote at its meetings.

The alternative to such approach may be the appointment of the managerial staff from the party representatives and candidates certified by the Center for Training Electoral Participants at the CEC. An acceptable option for professionalization of election commissions is to appoint officials of the territorial CEC branches only for positions of secretaries or nonvoting commission members.

Unjustified expansion of grounds for commissions to reject the complaints for breaches of the law

Election commissions will be able to reject the investigation of complaints in the event there is no sufficient evidence for the breach of law (an evaluation category is introduced on the sufficiency of evidence);
Election commission will be able to reject the satisfaction of complaint in case of eliminating the consequences of the violation or cancellation of illegitimate decision (election commission need not establish the fact of illegitimacy of a decision or action).

New proposals on regulating pre-election campaigning and political advertising delete advanced provisions from the previous version of the Code

The previous of version of the Code used to have provisions on counteraction to covert pre-election campaigning, on ban for political advertising of parties that are not electoral subjects. The provisions were supposed to prevent campaigning by third persons in favour of election participants, and illegal funding of the campaign;
As compared to the previous version of the Code, the current version has excluded the provisions on peculiarities of official notifications on candidates who hold official positions, and on activities of officials during elections, and a permit-free system for campaigning activities;
The new proposals fail to include the ban to use commercial and social advertising for campaigning purposes;
The changes to the Code do not provide for a distinction between direct and indirect vote-buying;
Pre-election campaigning in printed and audiovisual media is regulated in general terms and is not detailed enough as compared to the previous version.
Proposals to the Code do not provide for the application of requirements of the Law of Ukraine “On Advertising” to the pre-election campaigning disseminated via means of advertising. These requirements were provisioned in the previous version of the Code.
The suggested definition for the term of “political advertising“ fails to cover the activities of candidates but only regulate the activities of political parties.

The updated chapter of the Code on pre-electoral campaigning does not account for a series of progressive provisions of the Electoral Code that have been supported by the Parliament of the previous convocation. The changes to the Electoral Code used the provisions of the current laws on pre-electoral campaigning that do not reflect any positive innovations of previous discussions on the Electoral Code.

Shortcomings in information support of elections, undue conditions for control and observation over elections

Provisions of the previous and new version of the Code do not provide for immediate publication on the CEC website on payment transactions from the accounts of election funds;
Compared to the previous version of the Code, the scope of information is narrowed due for submitting by DEC and TEC to the CEC for publication;
There are no control mechanisms for the CEC over DEC and TEC compliance with the requirements to transfer their decisions for publication on the CEC website;
The Electoral Code fails to provide for the realistic control mechanism over keeping record of the State Registrar of Voters on the part of political parties and other electoral subjects.
Changes to the Electoral Code do not directly establish the right of official observers to get acquainted with electoral documentation.

Civil Network OPORA has multiple times suggested options to eliminate proposals to the Electoral Code and provisions to its previous version. The organization’s developments can be used to improve the Electoral Code until it is finally approved, or through introducing changes thereto upon approval. The second option is totally unacceptable, in view of the relevance of providing stability for the codified electoral code.

Summarizing recommendations: The committee of the Verkhovna Rada of Ukraine on Organization of Public administration, Local Self-Governance, Regional Development and Urban Planning shall hold an additional meeting preceding the review of the Code in the plenary session, with the purpose to:

eliminate critical shortcomings prepared by the Committee for Proposals to the Code;
duly take into account the positions of deputy factions and groups, and the public;
comply with the requirements of the Regulations when approving the final version of the comparative table to the Electoral Code.