BILL №9265-1, OR HOW TO UNDERMINE THE ELECTORAL PROCESS Policy Paper

BILL №9265-1, OR HOW TO UNDERMINE THE ELECTORAL PROCESS Policy Paper Authors: Denys Kovryzhenko Director, Legal Programs, Legislative Initiatives Laboratory

Oleksandr Chernenko Chair, Board of the Committee of Voters of Ukraine

Kyiv, Ukraine

Literary editing: Lidia Wolanskyj. This Analytical Paper was prepared by the members of Civic Experts Council as part of its "Ukraine’s EU integration policy platform" Project implemented under Ukraine National Initiatives to Enhance Reforms (UNITER) program, which is funded by the United States Agency for International Development (USAID) and the International Renaissance Foundation. This Analytical Paper is made possible by the generous support of the American people through the United States Agency for International Development (USAID). The contents are those of "Ukraine’s EU integration policy platform" Project and do not necessarily reflect the views of USAID, Pact Inc, the International Renaissance Foundation or the United States Government. No part of this Analytical Paper may be reproduced or transferred in any form or by any means, graphic, electronic, or including photocopying or by any information storage retrieval system, without the proper reference to the original source.

CONTENT

Background ............................................................................................................. 4

What’s new in the latest version of the Bill “On the election of national deputies of Ukraine”? ............................................................................................ 5

How closely does this Bill meet international standards? ................................ 7

How to not support democratic electoral standards ...................................... 9

General recommendations to improve the Bill ............................................... 12

Recommendations to stakeholders and interested parties .......................... 13

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BACKGROUND

On October 10, 2011, a group of VR Deputies that included O. Yefremov, I. Sharov, I. Rybakov and A. Martyniuk, among others, submitted a Bill of Law called “On the election of national deputies of Ukraine” for debate in the Verkhovna Rada. Registered as Bill №9265-1, it is a reworked version of a bill of the same name that was prepared with the participation of the Working Group on improving electoral law in Ukraine. Although this Bill did take into account some minor observations from international institutions and members of the Working Group, the key recommendations made by the Venice Commission, IFES and community activists were ignored.

Worse, the final draft of the Bill was expanded with provisions that are in complete violation of international standards and were never even considered in the Working Group. These include depriving voters outside the country of their right to vote in single mandate districts, expanding the grounds for denying the registration of candidates, and more. The Bill also makes it possible to corrupt the electoral process at just about any stage and does not guarantee that an election will be run in line with democratic standards.

This policy brief reports on an independent lay review of Bill №9265-1 and not only contains a list of the main changes but also establishes which of the rules proposed by the deputy group pose a threat to the democratic nature of the results of the 2012 VR election should this Bill be passed by the Verkhovna Rada of Ukraine. The authors also identify a series of changes whose adoption might improve this Bill and propose several options for further action on the part of potential observers, civic activists and representatives of international institutions.

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WHAT’S NEW IN THE LATEST VERSION OF THE BILL “ON THE ELECTION OF NATIONAL DEPUTIES OF UKRAINE”?

Among the most controversial points in the latest version of this Bill are returning to the mixed electoral system, raising the threshold for parties and depriving parties of the option of running as a political bloc in elections. However, these are only the tip of the iceberg of the main changes to the bill:

instituting a mixed electoral system: 225 VR deputies will be elected in a single-seat electoral districts based on a simple majority (FPTP) system and 225 will be elected in a single national district that encompasses the territory of Ukraine and the overseas “district;”

raising the threshold for a party to gain seats from 3% to 5% and, for the first time, counting only valid ballots that have been cast for candidates from the party, not all ballots;

shortening the campaign period from 120 days to 90 days;

dropping the option of voting “against everyone”;

allowing candidates to be nominated both by parties and by self-nomination; requiring candidates for the single national district to register in the Central Electoral Commission (CEC) while candidates for a Single-Seat Electoral District register in the District Electoral Commission (DEC); and requiring a cash deposit on registration;

allowing voters in the overseas district only one vote, in the single national district, rather than two votes, as in all other districts;

allowing the number of voters to range from 20 to 2,500 in a polling station, without actually setting any limits on deviations from this range;

allowing candidates in single-seat districts to nominate representatives only at the Polling Station Commission (PSC) level;

not allowing those who propose representatives to the District Electoral Commission or the PSC to withdraw representatives that they themselves nominated to the commissions;

considering electoral commissions empowered to make decisions provided that a majority of the members of the commission is present; allowing commissions to make decisions based on a majority vote of those present; and, if two thirds of a commission is not present at its meetings on Election Day, requiring that all decisions be made by a two-thirds vote of those who are present;

requiring that preliminary voters lists be prepared by bodies authorized to maintain the State Voter Registry (SVR AB) and that, 20 days prior to Election Day, these lists be transferred in a single paper copy at the offices of the SVR AB to the Polling Station Commission (PSC); allowing requests to update or correct these lists may be submitted to the PSC or the SVR AB no later than 5 days before Election Day and related requests to the courts no later than 2 days before Election Day; requiring all changes to voter lists on Election Day, other than the correction of typos or inaccuracies, to be made exclusively by court decision; and allowing voters to change their polling station without changing their official address, which is similar to absentee voting;

not setting limits on expenditures from campaign funds but limiting contributions from individuals to party campaign funds to 400 minimum salaries and those to individual candidate campaign funds to 20 minimum salaries;

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allowing the registration of a candidate to be declared void if electoral law has been violated;

completely canceling state funding of election campaigning, such as free air time on radio and TV, free printing of informational posters for polling stations, free printing of campaign platforms;

granting official monitors from community organizations (COs) the status of participant in the electoral process, which will allow them to challenge a decision, action or inaction regarding the election in the courts, but not before the electoral commissions; giving all community organizations whose statutory mandate is electoral issues, regardless of when they were registered, the right to have monitors at the elections; and requiring that CO monitors be registered with the DEC;

setting the time for voting on Election Day from 08:00 to 20:00 and requiring the DEC to invite all voters outside the premises to enter to vote 5 minutes prior to closing and then lock the premises;

requiring that “withdrawn” stamps be held by the DEC and not the PSC, allowing them to be turned over to the PSC only if the DEC or CEC have made a decision to alter the ballot in question;

allowing challenges to be filed with electoral commissions regarding the actions, inactions and decisions of only a narrow circle of electoral participants: commissions and their members, parties, candidates for office, authorized individuals, proxies, and monitors, but not the press, government bodies or so on.

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HOW CLOSELY DOES THIS BILL MEET INTERNATIONAL STANDARDS?

The previous version of Bill №9265-1, known as the “improved Bill of Law “On the election of national deputies of Ukraine” and drafted as part of the activities of the Working Group to improve election legislation, was sent for an audit to the Venice Commission and the OSCE/ODIHR, as well as to the International Foundation for Electoral Systems (IFES).

Without going into the specifics of the recommendations these institutions offered, it is worth considering at least the key provisions of the Bill that do not meet international standards:

The electoral system itself

changing the current system from strictly proportional to a mixed one, rather than to a proportional system with regional, open lists;

raising the threshold to 5%; c) prohibiting the participation of political blocs (groups of parties) in elections;

The territorial organization of elections

establishing the boundaries of polling districts just before the election campaign start, not 6 months prior;

setting an excessively high cap on the number of voters (2,500) in polling station lists;

not providing a clear list of legal grounds for setting up temporary overseas polling stations;

The formation and activity of committees

not allowing individual candidates to be represented in District Electoral Commissions;

giving priority to parties that already have their own VR factions to sit on DECs and PSCs;

allowing commissions to make decisions with less than a majority of their total members;

Campaign finance regulation

leaving contradictions between the rules for financing parties and the rules for financing election campaigns;

not establishing restrictions on the size of campaign chests;

not requiring complete disclosure on sources and volumes of contributions and the type and volume of spending, both prior to Election Day and after the election;

not providing for independent monitoring of the financing of political parties and election campaigns, or effective, proportional, preventive penalties for financial abuse;

Candidate registration

providing very tight timeframes for candidates to register in single-seat electoral districts;

requiring excessive cash deposits for parties and individual candidates alike and offering very limited conditions for refunding them;

Election campaigning

dropping all forms of state funding for campaigning;

establishing requirements for private broadcasters and printed media that restrict their editorial independence;

establishing penalties for violations of electoral legislation by the press, such as withdrawal of licenses and so on, that could be out of proportion to the seriousness of the actual violation;

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Election campaigning

establishing undemocratic restrictions: a ban on commenting and evaluating the content election campaign programs for at least 20 minutes before and after they are broadcast; a ban on campaigning in the foreign press; a binding requirement on the press to publish responses to information that they consider inaccurate at the demand of a candidate or party; a ban on the participation of foreigners or individuals without citizenship in campaigning; and a ban on publishing public opinion polls during the last 10 days prior to Election Day;

Procedures for defending voting rights

violating the principle of equal electoral rights by providing different voting rights in different districts;

not providing for the necessary oversight, including monitors, of changes in polling stations for voters who have not changed their official address;

not mandating documented confirmation of grounds for voters to vote at wherever they happen to be on Election Day;

Election monitoring not providing monitors from COs the right to monitor everywhere in the country, not just within the polling stations, or with the right to challenge through electoral commissions;

Counting votes and challenging the process

establishing a “margin of tolerance” (10-20% cases of illegal ballot-casting) for the violations of electoral law that constitute grounds for declaring an election invalid;

prohibiting the declaration of the results of the vote in polling stations invalid;

setting overly tight timeframes for challenges to be filed and considered.

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HOW TO NOT SUPPORT DEMOCRATIC ELECTORAL STANDARDS

The new version of Bill №9265-1 contains a slew of shortcomings that will not support the holding of elections in line with international standards for democratic, fair, transparent and free elections. Moreover, the Consortium of Electoral Initiatives has continuously pointed out most of these shortcomings, although they have not been resolved. Key among them are:

Switching to a mixed system

The VR election of 2002 proved that, in and of itself, the mixed electoral system favors pro-Administration parties: with the abuse of “administrative resources” at the level of single-seat districts, these parties gain considerably more seats in the legislature than they would under a proportional system in large districts or in the single national district.

Timely formation of electoral districts and gerrymandering

Electoral districts will only be formed 110 days prior to Election Day, which makes it impossible for potential candidates to plan their campaigns in advance or to challenge CEC decisions regarding the boundaries of these districts. The new Bill does not allow for county lines and the borders of oblast-subordinated towns to be taken into account when forming electoral districts. This means that districts in certain regions could be chopped up into several different territories, such as part of a city and a rural county or counties, just to “make life difficult” for the opposition.

Unregulated procedures in setting up polling stations

The procedure for setting up ordinary polling stations and auditing them for compliance with the law is not even mentioned in the new Bill, which makes it possible for the CEC to resolve any issues at its own discretion. The only option provided is for these matters to be regulated in a separate law, but there is no guarantee that this will be done prior to the next election. The supposed cap of 2,500 on voters in a single polling station is not fixed, which means that even within Ukraine, there could be polling stations with 3,000 voters or more, which will complicate voting and protract the ballot-counting process.

No clear criteria for setting up temporary overseas polling stations

The current Law calls for overseas polling stations to be set up only in countries with a sizeable number of voters from Ukraine - and then only in major cities. The new Bill does not include such provisions: the temporary overseas polling station is effectively set up in “manual” mode. For instance, some countries might end up with an excessive number of polling stations, as we saw in 2004, while others might not have any.

Problems in forming and organizing the work of electoral commissions

The procedures for setting up commissions will also favor pro-Administration parties and candidates: a) there is no option for parties or individual candidates to withdraw members of a commission that they themselves nominated, which opens the door to “buying” representatives of opposition parties or candidates sitting on these commissions; b) priority is given to parties who have their own factions in the Verkhovna Rada in forming commissions: they are allowed three members on every commission, whereas parties that were part of a bloc’s faction can only have a total of three representatives between them; c) individuals will be added to commissions “based on their previous experience working

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on election commissions,” which will make it possible to be very selective in choosing commission executives; d) no official decisions are made to reject a candidate for a place on a commission, making it harder to challenge a rejection; e) a commission can theoretically make valid decisions with a minority of its members present (25%+1 votes) f) the list of reasons for dropping an individual from a commission is very long, yet a member who has been removed can only be replaced by a representative from the same party or candidate only if the commission’s size is at the lower limit.

Risks of fakery on voter lists

The Bill allows voters to change their polling stations without actually changing their official addresses, which is similar to absentee voting. The current procedure is not governed by law but by CEC Resolution №57 dated April 1, 2011, which does not allowing monitors to control the issuing of permits to change polling stations by the SVR AB and does not provide any reliable mechanism for preventing massive denial of voters who are not on the voters’ lists. In and of itself, the option of changing polling stations gives rise to the risk of massive “migration” of voters on Election Day in support of specific candidates. This Bill also allows changes to be made to voters’ lists on Election Day by court decision. The Administrative Code of Justice states that claims regarding adjustments to voters’ lists that are filed on the Friday before Election Day are to be reviewed and decided on an emergency basis by judges—which means without the necessary verification of facts and coordination with the SVR AB, which increases the risk of massive additions of fake voters to voters’ lists.

Off-site voting without formal documentation

The Bill does not require voters to provide documents confirming the reason why they have to vote where they are staying at the time of the election. This also increases the risk of massive off-site voting by voters, which is much harder to monitor.

Shortcomings in the process of nominating and registering candidates

The timeframes for submitting document to register candidates in single-seat electoral districts is very short, from as little as 5 to no more than 11 days, and only a single day is given for fixing any mistakes in the registration documents. Moreover, candidates can be removed from the register if they do something for which they were already issued a warning or after two warnings have been issued. One of the grounds for issuing such warnings is violating limitations on election campaigning activity, but the procedure for establishing that such a violation actually took place is not contained within the Bill. All these flaws increase the risk of “undesirable” candidates being excluded from the electoral process.

Reduced voter access to information about parties and candidates

The Bill does not require that candidates in single-seat districts provide an electoral platform, while declarations of income, reports on the application of money from their campaign chests, election platforms, and biographical information about candidates will only be published on the CEC website. When voters show up at their polling stations, they will see neither photographs of the people they are electing nor programs, nor biographical information, since the premises of the polling stations will only have posted the lists of electoral candidates. Declarations of income will be made public by the CEC only insofar as they do not contain confidential information, but what constitutes “confidential” information is not stated in the Bill. All this increases the difficulty for voters to make a knowledgeable choice.

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Risks of stealing the election in ballot-printing and in counting the ballots

In contrast to the current Law, the Bill does not provide for printing ballots with any degree of security against counterfeiting or printing the polling station number on the ballot, which provides rich ground for the printing of counterfeit ballots or running “additional print-runs” for certain stations. Ballots are to be printed with no more than 0.5% more than the number of registered voters in a district—currently 2%. Unless there is some protection against “voter migration,” many voters could discover on Election Day that there simply aren’t enough ballot papers for them. Moreover, the Bill does not call for publicizing a protocol confirming every transfer of ballot papers, only a summary of all the ballot papers delivered, on the CEC website. This further weakens control over their printing. The Bill actually prohibits declaring the election invalid in any district, even if it is declared invalid in the majority of polling stations.

Complications in trying to challenge decisions, actions and inactions

The Bill provides only two days for challenges to be submitted and reviewed, and two days for reviewing any administrative suits. With such tight timeframes, those who are challenging will be hard put to formulate the challenge effectively while electoral commissions and courts will be unable to review the circumstances of each challenge properly or fully. Moreover, the Bill discriminates against CO monitors by prohibiting them from submitting challenges to electoral commissions altogether.

Civil servants not banned from campaigning in off-hours

The current Law prohibits civil servants or government officials from participating in any election campaigning whatsoever, whereas the new Bill only prohibits doing this during working hours.

No proper penalties for violations

For most violations of electoral law, only small fines are foreseen, which are unlikely to encourage the necessary respect for the requirements of the law. Some violations have either no penalty at all or the penalties are completely disproportionate: indirect buying of votes merits merely a warning. The CEC does not have enough oversight authority to properly prevent violations of electoral law.

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GENERAL RECOMMENDATIONS TO IMPROVE THE BILL

If the Verkhovna Rada passes first reading of Bill №9265-1, a number of steps need to be taken before it is submitted for second reading:

ensure that voters in the overseas district outside Ukraine can exercise their full right to vote, as guaranteed by the Constitution of Ukraine;

establish that polling stations are to be set up 6 months prior to the official start of the election campaign and require that county and city boundaries are respected in the process, at least for oblast-subordinated cities;

clearly identify the grounds and procedures for setting up, operating and disbanding all polling stations, including the overseas ones;

provide for: а) clear, non-discriminatory formation of electoral commissions, for instance, in relation to opposition parties in the legislature and parties that are not represented in it; b) the option for those who have nominated a representative to an electoral commission to withdraw such commission members, along with a list of grounds for such a withdrawal; c) the option to replace a commission member who has been dismissed by another commission member from the same entity that nominated the first candidate to such commission; d) the requirement that electoral commissions pass decisions by an absolute majority of votes based on the entire membership of the commission, while including in the law a mechanism to prevent disrupting commission sessions for lack of a quorum;

provide the option to withdraw the registration of a candidate for election to the legislature only in those cases where the individual has lost the right to be elected;

ensure that: a) those who vote off-site have documentary proof of the need to do so; b) those who wish to vote at a polling station that is different from their official address have an absentee voting permit; c) there is a mechanism to get an absentee voting permit and voting with an absentee ballot, as written into the current Law “On electing national deputies of Ukraine;”

ensure that informational posters about parties and candidates are available at all polling stations;

establish a suitable security mechanism for overseeing the production and transfer of ballots to electoral commissions to prevent improper use of these ballots;

enshrine the necessary guarantees that violations of voting rights can be redressed through the courts and electoral commissions, especially by extending the timeframe for submitting and reviewing administrative challenges from 2 to 5 days; ensure the option of declaring the vote at a given polling station invalid if there is evidence of systemic violations that make it impossible to determine the results of the vote; institute effective, dissuasive penalties for violating electoral legislation.

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RECOMMENDATIONS TO STAKEHOLDERS AND INTERESTED PARTIES

Future monitors – make yourselves thoroughly familiar with the provisions of the new

elections law; understand the weak spots that are likely to allow votes to be stolen; learn to properly formulate administrative challenges to be filed with the courts; and, should you be allowed to file challenges with the commissions, to formulate those properly as well.

Civil society organizations – continue to campaign for changes to the Bill, including

after its adoption; run a broad-based campaign to make voters aware of the problems with this law, the nature of voting rights and their protection, the ways that the election might be stolen and how to respond to such attempts; ensure that voters are provided with enough information about parties and candidates to ensure a knowledgeable choice; start monitoring as early as possible, based on the system that is in place, starting with preparations for elections in the regions (campaigning, abuse of administrative resources in the early stages of the campaign, and so on); ensure public monitoring of campaign finances and the publicizing of the electoral process in the press; ensure broad-based monitoring of the election on the part of observers; establish effective communication between CSOs, the press and potential participants in the electoral process; and ensure proper coordination between national and international monitors.

The international community – pay attention to the dangerous shortcomings of this

Bill; make use of diplomatic tactics to encourage the Rada to bring this Bill in line with democratic standards; ensure full-scale short-term and long-term monitoring of elections; support the third sector and the media in their efforts to ensure that elections are run in line with international standards.