Comments Regarding Revisions to the Law On Elections Of Deputies To The State Duma Of The Russian Federation
International Foundation for Election Systems
The International Foundation for Election Systems (IFES) commends the State Duma and the Central Election Commission of the Russian Federation for their work in producing the draft Law on Elections of Deputies to the State Duma. IFES is honored to have had the opportunity in the past four years to provide commentary on the reforms which are reflected in this draft. IFES respectfully submits these additional comments as work progresses towards completing revisions to the Law on Elections of Deputies to the State Duma of the Russian Federation.
I. Voting System
IFES recognizes that any proposed change in voting systems for the State Duma will be controversial, as exemplified with current debates on the representational system. The Foundation has no position on which system - Single-member district[SMD], Mix, or Proportional - is preferable within the Russian Federation. However, within the current system, IFES strongly recommends consideration be given to instituting second round (»run-off») elections for single-member elections for State Duma.
In the December 1995 elections of deputies to the State Duma, only 12 of the 225 deputies elected in single-member districts - only five percent - were elected by majority votes of their constituents. One hundred and forty-two deputies - sixty-three percent - were elected with 30% or less of the vote. By any objective measure, this results in a shallow level of representativness for the deputies elected through SMDs. At the present stage of development of political parties and associations in the Russian Federation, too many deputies are elected in single-member districts with significantly less than 50% of popular support based on an election system in which numerous candidates run in one-round «first past the post» voting.
It is true most countries utilizing «majoritarian» voting systems only require plurality rather than majority outcomes. For example, this includes the United States, Canada, Australia, and other countries following the British Parliamentary tradition. Such countries have developed two or three dominant and institutionalized political parties. Moreover, second round (»run-off») elections are often used for «open» political party primary elections and «special» (vacancy-filling) elections in the United States, where the first round is expected to contain numerous candidates.
As a field of candidates in a single-member district increases to more than three, the percentage of votes needed to win a plurality dramatically decreases. This situation creates a potential for winning candidates to be supported by only one minority political interest rather than any substantial consensus; the «winning» candidate may be actually be disfavored by the majority. At best, plurality outcomes in those circumstances may not be representative of voter sentiment. A good example of this is the 1986 presidential elections in Portugal. In that race, the first place candidate in the first round received 46.3 percent of the vote, while the second place candidate received 25.4 percent; in a second round, required by the election law, the candidate previously ranked second defeated the candidate previously ranked first by a vote of 51.4 percent to 48.6 percent.
Given present political circumstances in the Russian Federation, IFES encourages election law drafters to consider adoption of a second round (»run-off») elections in districts where first rounds do not yield a majority outcome - especially if consideration is given to adopting an entirely «majoritarian» system for State Duma elections. Second round elections should be conducted within two weeks of the first, and should be conducted between those two candidates receiving the most votes in the first round (One variation: France has utilized a system in which, absent a majority outcome, all candidates who received more than 12.5 percent of the vote in the first round participate in the second, which is decided by plurality outcome, but is usually a majority or near-majority result). The Draft Law should not impose a participation requirement (»voter turnout» threshold) for second round elections to be valid.
IFES is aware of practical objections to proposals for second round voting in elections for deputies to the State Duma: increased costs of election administration, strain upon voter interest and political uncertainties created during the time between rounds. In order to alleviate these concerns, you may wish to consider establishing a «floor level» which would require a second round of voting only if no candidates obtain a certain threshold. For example, if no candidate receives at least 30% of the valid votes casted in their favor, then one must hold a second round. By using the valid votes as a basis for calculation, it produces a slightly lower threshold than if one used the total number of votes casted. While each of these problems is significant, IFES believes these disadvantages do not outweigh the long-term damage to political stability and public confidence that may be caused by the outcomes based upon the «first past the post» system in single-member districts.
II. Election Law Provisions
Abuse of office. Article 38 prohibits candidates from taking advantage of their official position or status to advance their candidacy for nomination or election. This prohibition might be strengthened, and its application to representatives and supporters of the candidate also made clear, if a complementary provision was included within Article 56 (»Electoral Funds of Candidates, Registered Candidates, Electoral Associations, Electoral Blocs»). Such a provision could say, for example (perhaps at the end of Paragraph 8):
It is prohibited for candidates or their representatives, or for representatives of electoral associations or blocs, to utilize the funds, personnel, facilities (except as provided for all candidates) or other resources of bodies of state power or bodies of local government or state and municipal enterprises for election campaign purposes.
Withdrawal of candidacy. IFES is aware of circumstances in past elections in Russia in which candidates have withdrawn prior to the election after having enjoyed the benefits of candidacy, including public subsidies and media time. In some cases, candidates may have never intended to finish the pre-election campaign, and may have only used their candidacy for private gain or to indirectly benefit other candidates. Paragraphs 12-18 of Article 46 address this problem; paragraph 18 specifies the extreme circumstances (death, illness, etc.) when withdrawal of candidacy will be excused. Paragraphs 12-14 state that District Election Commissions or the Central Election Commission, as appropriate, shall be entitled to collect a reimbursement of budget funds from candidates and electoral associations who have withdrawn candidacies without compelling reasons. These provisions appear to mandate that reimbursement be required absent the enumerated reasons for withdrawal.
Despite some experiences of abuse of candidacy, and a proliferation of candidates, IFES believes the Law should clearly indicate that election commissions are not obligated to seek reimbursement from candidates who withdraw without one of specified «compelling» reasons - if such commissions determine the candidate sought office in good faith. It is not unusual in crowded fields of competing candidates (such as in party primary elections for nominations in the United States) for candidates to drop out before the election if they sense they have no chance of winning. Such «winnowing of the field» is often better for narrowing voter choices, and should not be penalized if candidates have run for office in good faith.
Campaign Finance Regulation. The campaign finance regulation issues which are found in article 56 have been addressed in a separate memorandum following the Roundtable on Campaign Finance held jointly by the Foundation and the Central Election Commission of the Russian Federation in December 1997. For convenience, this memorandum is attached.
Ballot security. In the article 61, paragraph 9, the Draft Law requires a «transfer deed» to document the information about receipt of ballots by a district commission from a printing shop. It then specifies that chairmen of subordinate election commissions shall be responsible for transfer and receipt of ballots. IFES suggests that signed forms be required at these subsequent steps to document the transfer and receipt of ballots at the levels of territorial election commission and polling site election commission, signed by the Chairman and two other commissioners.
In addition, the Draft Law could specify which type of ballot is acceptable, in general terms, in order to increase ballot security. Simple measures such as numbering, counter-foil, or other methods widely available at low cost could significantly improve ballot security. The exact nature of the security measure can be left to the determination of the responsible election office, within a range of specific choices.
Absentee certificates. The Draft Law provides for the practice of absentee voting in Article 62. That provision begins by stating that absentee certificates shall be documents of strict accountability, whose degree of protection shall be determined by the Central Election Commission of the Russian Federation. The article ends by providing that names of voters who present absentee certificates shall be added to the voter lists (additional or «special» voter lists) of the polling site where they are then permitted to vote. As a further safeguard for this voting procedure, and for verification of voter lists generally, IFES recommends adding requirements to the Law for scrutiny of these «special» lists immediately following the election to perform the basic task of checking for any names that appear more than once.
During elections for deputies to the State Duma in 1995 and for President in 1996, it was observed that polling site election commissions routinely created extensive additional (»special») voter lists to accommodate voting by citizens who were not listed on the regular voter registry list compiled by local authorities for the polling site but who possessed valid and appropriate identification documents. This practice was particularly significant in places of highly mobile populations, such as near military bases.
The intention to permit voting by the greatest number of qualified citizens, including by use of absentee certificates, is commendable. However, the widespread use of additional election day voter lists undermines the basic security afforded by formal voter registries, and introduces an opportunity for fraud and abuse into the process.
The State Duma election Law could provide a remedy for this problem by requiring polling site election commissions, as part of their transmittal of the polling site protocol, to immediately and directly provide to district election commissions a copy of any additional voter list created that day. This step should be separate from and sooner than the subsequent transmittal of all voting materials to the district commission. When the district commission has completed its responsibilities for vote tabulation and prepared its own protocol, the district commission should then be required to data input these lists received from polling site election commissions and search for any duplicate names and passport/identification numbers to identify any persons voting in more than one polling site.
While this procedure is not specifically contemplated by the revised Federal Law on Basic Guarantees of Electoral Rights and the Right of Referendum of the Citizens of the Russian Federation [hereinafter «Basic Guarantees Law»], it is also clearly not precluded by any provision of that Draft Law. IFES strongly recommends consideration of this type of anti-fraud reform in the area of voter registry lists to farther protect the integrity and transparency of the electoral process.
Mobile ballot boxes. Article 65 (»Voting Outside the Voting Premises») stipulates extensive procedures and safeguards for use of the mobile ballot boxes. To facilitate the opportunity under paragraph 11 for non-voting commissioners and observers to accompany the mobile ballots boxes, IFES recommends adding language to require the Chairman of the polling site commission to announce before all present at the polling site when the mobile ballot box(es) are to be sent out, both approximately one-half hour before and at the time the box(es) leave the polling site. Additionally, the time when the mobile ballot box(es) are sent out should be noted in the protocol.
Display of polling site protocols. IFES supports efforts at greater transparency and accountability in the vote tabulation process and, in the December 1995 elections, encouraged the Central Election Commission to recommend that a copy of the «third protocol» be posted at polling sites. This is now a part of the requirements of the Basic Guarantees Law; the third protocol has to be displayed for public acquaintance at the polling site.
In an advancement of this idea, paragraph 4 of Article 60 (»Voting Premises») of the draft election law for the State Duma states that enlarged forms of protocols of voting results shall be displayed inside the voting premises to record voting results as they are tabulated. Article 67 (»Counting of Votes and Compilation of Protocols of Voting Results by Polling Site Election Commissions») makes references to or provides for the use of this enlarged protocol. If this procedure is desired, it should be specified further in article 67 of the election law. This article in particular will be relied upon by polling site commissions for guidance in counting and recording vote outcomes on the protocol. Of course, enlarged protocol forms will need to be provided to polling site commissions with other ballot and election materials, and more detail should be given about its completion and posting through separate administrative guidelines.
Requirement for public display by polling site election commission of a reproduction of the third protocol copy is desirable in theory but has often proved impractical in practice, due to the lack of copying capability at polling site locations or any appropriate or safe place for its display. IFES recommends to election law drafters that consideration be given to providing for public posting of all polling site protocols within the area of the territorial election commission in one place (which are almost always local administration buildings with copying machines and public areas) for a period of ten days following the election. This time period is consistent with the time frame for posting of election results by district election commissions under Article 66.
Representatives of electoral associations and blocs, candidates, news media and other interested persons should be encouraged to examine these protocols and to compare the posted protocols with copies received from polling site observers.
Correction of polling site protocols. The draft election law for the State Duma includes a new provision in paragraph 33 of Article 67 to permit polling site commissions to submit a corrected version of their protocol after already having submitted a protocol to the territorial election commission pursuant to paragraph 26. IFES appreciates the practical need for such a provision, but believes this procedure should be tightly controlled to prevent fraud or confusion in vote tabulation. First, this procedure should be limited to the first 24 or 48 hours after submission of the original protocol by the polling site commission; thereafter, any correction of the protocol should require a more formal process (perhaps only with court approval). Second, the polling site election commission should be required to submit a brief written explanation for the circumstances of the correction. Third, the Draft Law should require notification be transmitted by the territorial commission to the district election commission whenever the territorial election commission has received a subsequent «corrected» protocol from a polling site election commission (which is essential if the voting results have already been transmitted to the district commission). The receipt and use of any corrected protocols from polling site commissions should be noted in protocols of both the appropriate territorial election commission and district election commission.
Nullification of election results. The language in paragraph 3 of Article 69 of the draft election Law for the State Duma, regarding circumstances in which district election commissions shall declare election results for the single-member districts null and void appears to be based on Article 58 of the Basic Guarantees Law. However, subparagraph (c) simply states without further governing legal standard that the district election commission may make such a declaration «by a court decision.» Article 64 of the Basic Guarantees Law more clearly sets forth the grounds by which a court could decide to invalidate an election, and does not limit the effect of the court decision on a district election commission's decision. IFES recommends that all provisions of the Draft Law regarding potential nullification of elections be explicit as to define precise procedure and potential reasons by which such decisions are made.
III. Future Considerations
IFES looks forward to continued work in cooperation with representatives of the State Duma and the Central Election Commission, with other election commissions, and with other legal experts and participants in seeking further refinements and reforms of election laws in the Russian Federation. In particular, IFES recommends a comprehensive review of current procedures for adjudication of grievances, enforcement of election laws and appropriate penalties for election law violations under all applicable statutes. The gradation of penalties in relation to the level of the offense by violators of the law is important. Such an endeavor may deserve separate and long-term study beyond the immediate effort to revise the draft Law on Elections of Deputies to the State Duma.