Overview of the Proposed Federal Law On Public Control over Elections and on the Openness and Publicity of Vote Returns
(As Passed in Second Reading)
19 April 1996
(Note: As of 18 April 1996, IFES was advised that the legislation had been passed by the Duma of the Russian Federation and sent to the Federation Council for consideration. As of this writing no information was available regarding any amendments which may have been made between 2nd and 3rd reading, although no substantive changes were expected.)
This legislation focuses on 4 main objectives including:
creating opportunities for participation by «citizen» observers in addition to observers representing the media, candidates, electoral associations, blocs and initiative groups who are already authorized under existing legislation;
expanding on the rights of all categories of election observers to be present at polling stations and relevant district or territorial commission offices on election day beginning prior to the opening of the polls through the counting and summarization of the election results;
creating a basis for the verification of results through an automatic recount of ballots from a random selection of precincts to be selected by lot within each relevant district or subject;
providing public access to data maintained on the state automated information system to users through public telecommunications networks on a «read only» basis.
One senses that the legislation's supporters are attempting to foreclose on opportunities for alterations or manipulations in the summarization and reporting of election results. The main emphasis of the bill seems to be an attempt to provide a layering of oversight whereby partisan and non-partisan observers will be able to track individual vote totals from the precinct level all the way through summarization at the territorial and subject levels to the reporting of consolidated results for the federation as a whole.
An example of one of the mechanisms proposed in the draft legislation for ensuring that precinct results can be verified by die general public and observers and, therefore, tracked for accuracy in the manner in which they are reported in the summary tables, is through the mandatory posting of a copy of the precinct protocols for public display. Under the proposal each precinct would have to post a third copy of its protocol in an accessible place for public viewing. The law would require the posted notice to remain on display until at least 9:00 p.m. on the day after the election. IFES has encouraged the public posting of results throughout its consultations with the Central Election Commission, officials and participants for some time. While this is proposal offers a significant advancement of transparency. IFES believes that it could be further enhanced by a similar requirement being implemented for public posting of copies of the actual summary tables at territorial levels for all elections. It is in this first level of consolidation where the system is most vulnerable to errors or manipulations.
The most significant amendment of the proposed legislation between 1st and 2nd reading was deletion of any reference to its applicability to referendum elections. It is open to speculation as why these provisions were removed. There are already suggestions that depending on the outcome of the 16 June presidential election, important referendum elections could be soon to follow, including, perhaps, a question regarding establishment of a constitutional commission.
With regard to elections of candidates, the earlier version limited its coverage only to the elections related to «officials and the federal bodies of state power.» The updated version clarifies this language by specifically identifying its relevance to «all elections of the President of the Russian Federation and deputies of the State Duma of the Federal Assembly» and officials of the bodies of stare power of Subjects and local governments. It also extends its applicability to elections of representatives' bodies of the Subjects and local governments.
Under the proposal, leeway is given to subjects and local governments to enact their own laws relative to issues covered within this legislation so long as their normative and legal acts do not diminish or «restrain» the rights granted under the federal law.
Another provision from the earlier draft, which has been deleted, relates to a requirement that territorial election commissions publish the complete information contained in their protocols and the summary table on vote returns not later than 5 days after the election. It is not clear how or if mass media publication of the results in such detail will be mandatory at all. Article 33 of the Law on Basic Guarantees of Electoral Rights of Citizens requires that district commissions «dispatch general electoral district election outcome data to the mass media within three days after election day.» However, for the presidential race there are no district commissions. The Law on the Election of President is not very specific about the information, which must be published in mass media. For example, under Article 55 of that law an «official announcement of the results of the election» must be published in the mass media by the Central Election Commission no later than 3 days after the signing of the federation-wide protocol. It is not clear how much detail the «announcement of the results» must contain. At the lower levels, territorial and subject commissions are to make protocols and summary tables available for «familiarization» to citizens, members of the commissions with deliberative vote, electoral association and blocs, observers and representatives of the mass media, but there is no apparent obligation to ensure that detailed summaries are published. This omission will make it difficult for interested persons. parties, observers or candidates to make full comparisons of precinct results against the consolidated results announced at territorial, subject or federation levels. To do so effectively would require an extraordinary organizational effort to pull together enough information from individual observers to perform meaningful verifications.
This legislation represents an interesting approach to the commonly accepted practice recognized in most western democracies to allow neutral domestic monitors to observe polling, counting and summarization activity on election day. Typically, these domestic observers are organized by non-party NGOs and work under the umbrella of an entity that directs their activities, accumulates their findings and formalizes and publishes their observations into a consolidated report.
The vision promoted by this legislation, however, eliminates the concept of organizational participation. Rather, the emphasis is on individual observers who, on the face of the legislation, act independently. Under the proposal, any citizen who is included on the voter list for a particular polling station may become an observer at that site by gathering the signatures of 10 other voters identified on the same list. Upon presentation of this list to the polling station commission, and with no advance notice required, the observer will be authorized to remain present at the polling site for all election day activity including the counting of votes. A voter who wishes to observe the summarization process at the district or territorial level may do so if they are registered within the jurisdiction and acquire the signatures of 50 citizens who are also eligible voters in the jurisdiction.
The proposed legislation states that the citizen is «considered an observer» from the time he or she presents his list. However, election commissions would be entitled to verify the contents of the signature list even to the point of «interrogating» the persons whose signatures appear on the list.
The overall intent of the proposed legislation goes a long way to opening the process to the general public thereby adding a layer of transparency as yet not contemplated in existing law. Except for foreign observers and representatives of the media, the current laws only afford partisan observers access to the polling sites. Among the partisan observers are proxies of the candidates, and representatives of the electoral associations or blocs who nominated them. Even initiative groups, the unaffiliated groups of citizens who have independently nominated candidates, are left with no options to observe on election day under the current law.
The law makes no restrictions as to how many «citizen» observers can be at the same polling site. Nor must any advance notice be given of a person's intent to be an observer.
The proposed provisions contemplate that individual voters would have the interest and the initiative to pursue their opportunities as observers independently. As drafted, the law would also place the ultimate burden on the individual observer to «submit proposals and comments» to the precinct election commission or to «make oral or written statements concerning violations of the electoral legislation.» The law anticipates that an individual observer would also be prepared to appeal actions or omissions of the precinct election commission to a higher commission or to a court.
The expectations that individuals would independently pursue these options may be unrealistic. Under the proposed legislation these observers would only be eligible to observe in the precinct in which they vote. This law would, therefore, preclude a citizen observer from visiting more than one site, again limiting the opportunity to identify trends, which may be in play. There may be reluctance on [he pan of citizens to participate as an observer in their own neighborhood. A private citizen could be concerned that, as an observer, he or she might be perceived as «oppositional.» The same might be true regarding signatories who may ultimately be unwilling to sign the supporting documents required for someone to gain access to the polls as an observer especially since they, too, must be voters whose names appear on the voter list for the same polling site.
The implementation of the legislation in actual practice may not ultimately achieve the desired ends. It is unlikely that on an individual basis these observers would have access to the kind of information or training that would contribute to their being able to observe the elections productively. Without guidelines or coordination «citizen» observers may not be equipped to evaluate the performance of the officials accurately or effectively. The legislation poses a scenario, which could result in observations, which are «anecdotal,» with no mechanism whereby trends or consistencies can be derived. It is this latter information which is considered the most valuable in determining the degree to which election day processing and counting and reporting of results has been accurate, free and fair.
For these reasons in most democratic contexts provisions for participation by domestic, non-partisan observers rely on involvement of non-governmental or non-political public organizations to fill this void. Under the umbrella of such an organization, observers may benefit from a coordinated effort. Through a more cohesive focus and systematic approach to the observation mission, there is a greater likelihood that their cumulative findings can be reported in a meaningful way. Even if observations do not disclose pervasive violations or purposeful manipulations, the findings of observers are important to help officials and lawmakers make decisions about how laws or regulations need to be changed, or where additional clarification and training is required.
It should be noted that nothing in the law would preclude a non-governmental or public organization from coordinating a domestic monitoring effort, even if their participants fulfilled the requirements as individuals. Nor would there be any limitation on political organizations implementing such a program as long as members of their delegations presented themselves as «citizen observers.»
Rights of Observers
This proposed legislation serves to expand on the rights of all observers and clarifies the terms of their access not only to polling sites and district, territorial or subject headquarters, but also their access to information contained in documents, voter lists, protocols and summaries. In addition to their rights to attend the proceedings at polling sites from the «beginning» of the work of the precinct election commission, during the actual conduct of the polling, and through to the completion of the counting or votes and the completion of the protocols of returns. Under the draft they would also be entitled (0 observe the conduct of voting which occurs outside the polling place, such as voting by citizens who are ill or incapacitated and who will cast their ballots at home.
Key to the law is additional wording that makes it clear that observers are to be provided conditions «ensuring the visibility of the ballots,» and which allow them «to see the contents of ballots as they are counted.» If the law were to pass, there should be no question about observers being made to watch from outside a doorway, or in an area where their vision of [he activities is restricted in some way.
The entire text promotes access to information and the entitlement of observers to copy the data on election documents for their own record. The draft text also entitles observers study any ballot during the vote counting. There is one portion of the text in Article 4, however, that may be open to subjective interpretation. The final paragraph of this article suggests that while studying voter lists, ballots, and other election documents, observers «shall not be entitled to demand that the relevant documents be handed out.» Apparently the Russian wording leaves it open as to whether the restriction means that they will not be able to actually handle or touch the documents personally, or whether it means that they cannot demand to have official copies given to them to keep.
precincts. The law does allow the recounts to be delayed if the precincts selected by lot are in remote locations. If they are to occur at the polling site, it may be difficult for members of the relevant district or subject commission to disburse themselves to be present at several locations simultaneously. It does not seem likely that the recounts could occur at the subject headquarters so quickly either. Under the Law on the Election of President, ballots and materials do not need to be forwarded to the headquarters until up to 10 days following the election. No provisions address the issue as to how ballots and supporting documents are to be safeguarded in the interim.
Finally, the draft is silent as to how the recounts are to be addressed in the final reporting of results. There is no language to the effect that the recounted results are to be considered as the «official» results to be identified in consolidated summary of returns. Also left unanswered is how a requirement that the Central Election Commission summarize the federation-wide results by the 15th day after the election will be met, if recounts result in delays in the reporting by subjects. According to Article 55 of the Law on the Election of the President, the Central Election Commission is required to publish the final results not later that 18 days after the election. Under Article 40 of the Code on Administrative Offenses, officials are held accountable for failure to submit or publish information concerning the election results on time. If the draft were to be passed without these issues being addressed, it would be incumbent on the Central Election Commission to develop comprehensive regulations to clarify the procedures regarding the recount process and the integration of the «recount» results into the summarization of final returns.
Access to the Automated Information System
The law paves the way for users of the public information telecommunications networks available in Russia to have access to all the data on the Election Commission's automated system through use of modem. Access would be on a «read only» basis. The draft includes wording that makes this service available «in the event that the automated information system is used at the elections.» It is likely that there will be at least limited use of a computer data base for election related information and the reporting of results during the presidential elections, although the preparedness of each subject to fully participate is not yet known. In view of the short time to implement the technology involved in providing such service, it would be beneficial for the Central Election Commission to prepare an advance campaign, which not only describes the service, but also presents information geared to promote reasonable expectations among users. In particular, a public information campaign should include a description of the time frame in which data will be forthcoming with an explanation of normal delays, which should be expected. There should also be an effort to develop a campaign to forestall suspicion or distrust which could result if technical shortcomings or data entry errors result in adjustments or changes in the entries comprising the overall summary of results. While it is commendable that this progressive approach to dissemination of results is being considered, any problems or delays could have unfortunate consequences unless there is an effective public information program to promote reasonable and realistic expectations.