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Comparison of Russian Federation Duma and Presidential Election Laws
With respect to issues of Ballot Access, the Russian Federation Duma and Presidential laws both provide for advance registration of signature collection entities in the form of electoral associations, electoral association blocs, or initiative voters' groups. Both provide a period of time for the collection of signatures, with designated information about the signers in prescribed format. They also provide for the orderly submission of these signatures to the Central Election Commission (for Duma federal lists and for candidates for President of the Russian Federation) and to respective District Election Commissions within Subjects of the Russian Federation (for Duma single - mandate district candidacies). The number of signatures required, 200,000 with no more than 7% from one Subject of the Russian Federation for Duma federal lists (Article 39), and 1,000,000, with no more than 7% from one Subject of the Russian Federation for candidates for President of the Russian Federation (Article 34) both seem to represent reasonable choices of demonstrated levels of overall popular and diverse geographic support from different parts of the Russian Federation. More importantly, they clearly come within the strictures of the Basic Guarantees Law providing that the level of signatures required for ballot qualification is not to exceed 2% of registered voters (Article 18). The requirement of 1% of voters signatures' for single - mandate district candidates similarly meets the test of reasonableness on a comparative basis and, more importantly, complies with the Basic Guarantees Law (Article 19).
Additional Ballot Access Variants Considered in the Russian Federation
It is important to note from both historical and analytical perspectives a number of differences in the proposed Draft Law on the Election of Deputies of the State Duma of the Federal Assembly of the Russian Federation that was submitted by the Presidential Administration on behalf of the President of the Russian Federation. The primary differences included:
Proposed Article 5 - 300 single mandate districts, and 150 proportional representation districts, as compared with the 50 - 50%, 225 seats each, that was ultimately approved;
Proposed Article 39 - A requirement that electoral associations collecting signatures on behalf of Federal lists of candidates gather 250,000 rather than 200,000 signatures, while keeping the 7% limitation on signatures from any one component of the Federation;
Proposed Article 42 - A provision barring a candidate from a Federal list from also running as a candidate in a single - mandate district;
Proposed Article 62 - A provision requiring that an electoral bloc consisting of two or more electoral associations must attain a threshold of 7% of the vote, rather than the 5% threshold required of a single independent electoral association, in order to share in the allocation of proportional representation seats;
Proposed Article 70 - A provision establishing that any electoral association which participated in the previous election and gathered more than 5% of the vote cast for the Federal list of candidates be exempt from the signature collecting requirements for that entity's candidates both for the Federal list and the single - mandate districts in the next election.
With respect to those proposed alternatives which directly or indirectly involve Ballot Access, and in particular Proposed Articles 39, 42, and 70, it may well be useful for the Central Election Commission to revisit these and other alternatives drafts considered by the Duma and the Federation Council. Although these alternatives were deleted from the statutes that ultimately passed through the Parliament and were signed by the President, some of these versions may contain approaches that can be incorporated into regulations or tried out in various Subjects of the Federation. At the same time, however, it should be recognized that implementation of these approaches could require new legislation and that any advantages may be outweighed by the value of stability and experience with the current system.
It is also useful to note the different approaches in the proposed Draft Law on the Election of the President of the Russian Federation that was submitted on behalf of the incumbent President of the Russian Federation, The primary difference was the proposed requirement (Article 35) that a candidate obtain not 1,000,000 but 2,000,000 signatures. This proposal retained the 7% limitation regarding any single Subject of the Federation. Given the fact that eleven candidates obtained sufficient signatures to qualify for the ballot but only five of them (apart from Tuleyev's withdrawal) actually obtained more than 1 million votes in the actual election, this issue may warrant further consideration in the future when a change in the law might not be seen to benefit an incumbent president running for reelection.
The draft alternatives considered during the debates about the 1995 Parliamentary and Presidential elections have been the subject of extensive review in the Russian Federation expert community. Mention in particular should be made of the publication - Elections to the State Duma, Legal Problems, prepared by a working group from the Institute of Legislation and Comparative Law of the Government of the Russian Federation in April 1995 (V.I.Vasiliev, A.B.Vengerov, A.V.Ivanchenko, A.E.Postnikov, and N.V. Shelyuto).5 Their volume discusses a wide range of questions from the perspective of knowledgeable participants and observers of the parliamentary debates about alternatives for State Duma formation during a time of rapid political change and continuing political tension. Book topics include both specific questions relevant to Ballot Access, such as the number of signatures appropriate for federal list and single - mandate candidate qualification, as well as fundamental questions inherent in alternative approaches to building viable representative democratic institutions. Chapter subheadings and contributions by the authors include:
- Development of the 1993 Duma Election Legislation from a Legal and Historical Perspective
- Election Commissions, Their Legal Status and How to Implement It
- Nomination and Registration of Candidates
- Pre - Election Campaigning and the Monitoring Role of the Information Court
- Financing Elections
- The Voting Itself, and the Determination of the Results
as well as a pair of model electoral statutes that contain principles that may still be applicable to address current system concerns.6
With respect to general Ballot Access questions, the collection presents cogent discussion concerning:
- The extent to which ballot status should be reserved for «serious» parties;
- Whether party leaders should be entitled to run on both Federal and single - mandate lists;
- How much election regulations should provide for the monitoring of intra - party activities;
- Whether candidate nominations should be required by secret ballot;
- What, if anything, should be done about the preponderance of Moscow - centered candidacies;
- Pros and cons from the perspective of a constituency identifying with its representative(s) of proportional representation versus single - mandate districts;
- The rationale for allowing self - nomination;
- The use of a financial bond (the equivalent of filing fee) to avoid electoral anarchy;
- How best to remedy electoral law or regulation violations from the standpoint of invalidation of the mandate of an elected deputy vis a vis holding violators administratively or criminally responsible; and
- Pros and cons of delegating electoral monitoring functions to local level commissions to maximize institutional capability to check candidate submissions and signature collection reliability, while avoiding local favoritism or discrimination.
Regulation of Subject Legislative Branch Elections
Another useful starting point for analysis of Russian Federation experience comes from the legislative activity of Subjects of the Federation for regulation of their own legislative branch elections. Under the Russian Federation Basic Law, the power to regulate these elections is vested almost exclusively within these Subjects. Based on a compilation prepared by the Information and Analytical Department of the Central Election Commission of the Russian Federation (data for approximately three quarters of the Federation members, updated as of June or July 1996, and translated by Edward Kuleshov) the following general principles can be noted:
- Only a small percentage of Subjects seem to have opted for mixed or proportional rather than majority/plurality elections,
- There is a slight preference for single round versus runoff elections (30 vs 26 of the Subjects);
- Turnout of 25% of eligible voters is ordinarily established as the cutoff for valid elections;
- No Subject is reported as using a filing fee.7
- Signature requirements are most commonly based on 2% of registered voters, with greater (Bashkiria, Buryat, Sakha, Murmansk, Nizhne Novgorod, Tambov, Tomsk, Tyumen) or lesser percentages occasionally being specified.
Russian Federation election laws - the Basic Guarantee Law, the Law on Election of Deputies of the State Duma of the Russian Federation, and the Law on Election of the President of the Russian Federation - establish timetables for the setting up of electoral associations, the nomination of candidates by electoral association, blocs, and voters, the collection of signatures to qualify these candidates for the ballot, and the registration of these candidates as qualified. According to the Basic Law, Article 19, the nomination period for President and Duma Deputy positions must be at least 45 days. It must also be at least 45 days for all other elected offices on the Federal level and at least 30 days for all offices within Subjects of the Federation. Both the Law on Election of Deputies of the State Duma and the Law on the Election of the President have additional provisions. Article 32 and Article 28 respectively, providing that electoral associations that wish to nominate candidates must be registered by the Ministry of Justice no later than six months prior to the announcement of the date of the election.
The Duma election law further provides (Article 39) that registered electoral associations and electoral blocs may begin to collect signatures on behalf of their Federal list and single - mandate district candidates as soon as they have nominated these candidates at duly - held congresses or conferences (Article 36 and 37) and have thereafter, within 3 days (Article 38) received certification of their candidate lists from the Central Election Commission. By contrast, signature collection on behalf of candidates nominated by groups of voters can start on the day of official publication of the list of single - mandate electoral districts by the CEC. (Article 41).8 Signature lists must in either event be turned in at least 55 days before the scheduled election (Article 42). In the case of Federal List candidates, the CEC then has 10 days to register the properly - submitted list (Article 42) In the case of single - mandate district candidates, the signatures are submitted to the appropriate District Election Commission, which has 5 days to register the qualified candidate (Article 42).
The Presidential Election Law also specifies that signature collection should not begin until after an electoral association or electoral bloc has taken the formal action to nominate a presidential candidate by holding a congress (conference), carrying out a secret ballot, and submitting its papers for registration to the CEC. (Article 32). A similar procedure involves a specially - created and registered voters' initiative group of at least 100 citizens. (Article 33)9. Thereafter the CEC is obliged within 5 days to register authorized representative of the electoral association, electoral bloc, or voters' initiative group (Article 33) and the process of signature collection proceeds. Sufficient signatures must be submitted to the CEC at least 60 days in advance of the election (Article 34) and the CEC is obliged to register the properly - qualified candidate within 10 days (Article 35).
The 1995 Duma parliamentary campaign was marked by more than 40 electoral associations and blocs qualifying for the ballot with federal election lists, of which only four - representing approximately 50% of the total vote cast - cleared the 5% threshold standard for allocation of proportional representation seats. Six other groupings - representing approximately an additional 25% of the total vote cast - came within nearly a point of the 5% qualification threshold.10 (This contrasted with the results of the 1993 Duma election, when 8 parliamentary groups cleared the 5% threshold and only one additional fraction came near 1% short of the qualifying threshold). The parliamentary campaign in single - mandate districts usually had a substantial number of candidates qualifying for the ballot, in many districts in excess of half a dozen or even 10 candidates. CEC records reportedly identified more than 2,700 persons who endeavored to run in the 225 single - mandate districts and more than 5,600 candidates who ran for the 225 federal list seats.
The 1996 Presidential election campaign was marked by eleven candidates qualifying for the ballot with more than a million signatures. Of these, however, only 5 received more than 1 million votes. In this context, the primary problems of Ballot Access in the Russian Federation do not appear to be excessively high hurdles for ballot qualification (as is sometimes argued in the American context). Rather they appear to lie more in the realm of developing principles of objectivity, fairness, stability, and respect for legal institutions.
Although the Electoral Commissions, Courts, and Russian expert communities are all thoroughly familiar with the major controversies that arose around candidate disqualifications and court challenges in the 1995 Duma and 1996 Presidential election campaigns, it is useful to revisit the major cases to confirm the need for legal clarification and administrative guidance. In the matter of the Yabloko Public Association, led by Gregory Yavlinsky, the issue involved the federal list of candidates. The list was certified as having been properly nominated by a Yabloko congress in secret ballot (Article 36 and Article 38). However, there was apparent non - compliance with Article 47 concerning the withdrawal of some of these candidates (between 5 and 10% of the list) by a decision of the Central Council of Yabloko on October 17, 1995.11 Accordingly, the CEC rejected the Yabloko Federal list on October 29, 1995, based on Article 42 and Article 47 of the Federal Assembly Election Law. As is well known, the Supreme Court of the Russian Federation overturned the CEC decision on November 4, 1995,12
With respect to qualification for the Presidential Election ballot, the candidacy of V.A. Bryntsalov was rejected on the grounds that an insufficient number of valid signatures remained after some of them had been invalidated. Grounds for invalidation included technical insufficiencies, failure to meet legal requirements, and, most importantly evidence of the fictitious or unproven status of various of the signature collectors. This evidence was used not only to disqualify signatures submitted by one or more collectors in a number of Subjects of the Federation but also as the basis for disqualifying all of the signatures of any collector sponsored by the authorized representative who had presented the specific signatures that were disallowed. The Supreme Court reversed the CEC disqualification on a number of grounds:
- Doubts about the validity of signatures gathered by a particular collector should not be imputed to all signatures submitted by the authorized representative who presented that collector;
- A challenged candidate should have the opportunity to present evidence concerning the valid status of his/her collector or authorized representative;
- The law does not specify that a signature collector, unlike the actual provider of the signature, be over 18 years old;
- The CEC is not authorized to continue the process of signature purging beyond the 10 day period set forth to register or deny registration of a candidate.
The cases discussed above represent a small fraction of the administrative and court challenges that have been brought to bear against CEC and subordinate election commission decision - making. For a fuller discussion of these controversies, see the forthcoming work of the International Foundation for Electoral Systems, The Election of President of the Russian Federation, especially Chapter 7, Nomination and Registration of Candidates, and Chapter 13, Adjudication of Grievances.
5 The author of this report has had the pleasure of meeting Dr. Postnikov and several of his colleagues and discussing these issues both in the Russian Federation and in the United States.
6 One of these draft statutes presents an approach combining principles drawn both from the Duma and the Presidential drafts of the legislation. The other is a concept paper presenting an interesting theoretical approach to combining single - mandate and proportional representation principles, with due regard for the values of maximizing voter choice and of strengthening party development as important in building a stable democratic political system.
7 Given a history of limited political choice in the past and a suspicion of inequalities of wealth in the present, it is perhaps understandable that there is thus far limited support for the concept of a filing fee. Should this change, it is almost certain that the initiative will occur on the local level.
8 This arrangement seems to give electoral associations more time for signature collection in the case when a Duma election occurs at the end of its regular term, inasmuch as these associations can control the date of their nominating congresses regardless of when the list of single member districts is published. On the other hand, they are obliged to collect a larger number of signatures.
9 The action of the voters' initiative group in choosing a candidate does not involve a secret ballot. The question arises as to why electoral associations and electoral blocs should not also be free to promulgate rules that would allow them to designate their candidate «on the record» rather than by secret ballot.
10 Concern has been expressed about the «representativeness» of the 1995 Duma for this reason. The Constitutional Court rejected a challenge to the 5% threshold standard shortly before the election.. The degree of concern on this issue was perhaps diminished by the fact that the unsuccessful parties - Women of Russia (appx. 4.6%), Communists/USSR (appx. 4.5%), Congress of Russian Communities (appx. 4.3%), Party of Workers' Self Rule (appx. 4.0%), Democratic Choice of Russia/United Democrats (appx. 3.9%), and Agrarian Party of Russia (appx. 3.8%) represented a spectrum of opinion not significantly different in range from that of the four successful parties. This contrasted with the situation in the last Polish election, when due to political party fragmentation, one side of the political spectrum came to be significantly under - represented in the parliament. The situation still involved all the proportional representation seats going to the first four parties with roughly 50% while excluding the next six parties with roughly 25% of the vote. One approach that has been discussed for helping to ensure more representative outcomes is to apply an objective mathematical formula that holds that all fractions that come within a specified percentage of the leading parties or the cutoff threshold or each other within a certain range share in the division of seats. As in the Postnikov model, percentages or thresholds can be adjusted, making it more likely that the above six parties would have been included than a single party that gathered four percent of the vote. Such an approach obviously would require legislative action, but these kinds of rules of the game can play an even more important role than Ballot Access regulation in encouraging political party development and parliaments that best fulfill the representative function.
11 A number of candidates had either failed to submit statements concerning their consent to run or had failed to submit statements of their withdrawal before they were removed by the Yabloko Central Council,
12 The Supreme Court of the Russian Federation issued a similar ruling overturning the CEC decision involving the Derzhava Movement of Alexander Rutskoy in analogous though not identical circumstances during the same general time period.
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