E-voting: invisible for observers, invincible for lawyers

Nowadays, in times of AI, neural networks and deep fakes, anything digital causes doubt and suspicion. The line between fantasy and reality, natural and artificial, is as thin as ever.

To emphasise this trend, we ordered the illustration for this article from Midjourney, a popular neural network trained to generate fine art.

We asked it to generate an image to visualise the phrase "seven robots sitting at a table and wearing classical black robes and white curly wigs of judges". Such phrases at Midjourney are called "prompts". It did the job well, but the front judge has an unnatural palm with five fingers and no thumbs. A tiny strange detail betells the fake.

Considering the strange results generated by the Distant Electronic Voting system in 2021 and 2022, it is easy to understand how that system was "prompted." Or, rather, how the Central Election Commission was.

Those results were not just artificial. They were unnatural, too, drastically contrasting with the normal, or offline, voting on the premises of the election commissions. Those results caused a wave of protests that were brutally crashed.

Then came the phase of lawsuits that reached even the Constitutional Court. This article by Ivan Burlitsky, a lawyer at the Institute of Law and Public Policy, describes in his blog his impressions, surprises and disappointments from the hearing at the Court (1, 2).

In Russian constitutional norms, the DEV is categorised as a subsidiary, supplementary, auxiliary, or even deviatory type of voting. But, alas, in times of AI and neural networks, deep fakes and distant voting, we witness how a deviation becomes a constitutional norm, whereas the time-honoured norms turn into deviations.

Ivan Brikulsky, lawyer of the Institute of Law and Public Policy, for his blog

On September 29, 2022, the Constitutional Court of the Russian Federation (the CC) issued its first judgment on the problem of the DEV. In it, the Court turned down the petitioner. In the current situation, it was clear that the Constitutional Court was unlikely to issue a positive decision, but it might have corrected the lawmakers and made the DEV more transparent and less dangerous for the candidates. Instead, the Constitutional Court took a very formal approach and did not respond to the most essential arguments of the complaint.

What did the Court say?

In essence, the Constitutional Court did not adequately respond to any of our arguments. The text of the decision resembles a personal opinion and personal attitude towards the DEV rather than a substantiated response to the violations.

The first problem is the shortsighted attitude that the regulation must be amended only after the candidates' rights are violated. According to the CC, the complainant was unable to prove in the courts any violations by the DEV that would have led to the annulment of the voting results, and therefore no violations were committed. That is, the candidate and observer are confronted with the DEV system that they cannot inspect on their own and verify that it is open, transparent or public. The tools provided by the Central Election Commission (the CEC) or the Department of Information Technologies of the City of Moscow (DIT) are insufficient. Transparency, openness and publicity are constitutional principles of elections. The candidates find themselves in a situation in which the black box of the DEV system cannot be audited, and, therefore, they cannot in any way confirm the alleged irregularities. This means that they are also deprived of the right to judicial protection. However, the CC took a formal approach in the decision, essentially reaffirming the absolute defencelessness of the candidates.

What is interesting here is that the Constitutional Court is supposed to assess the constitutionality of a rule that violates the applicant's rights, but instead, it has gone into an assessment of the factual circumstances, which directly contradicts the Law of the Constitutional Court.

Secondly, there are no questions to the Unified state web portal State Services (StateServices) from the side of the Court. The Court concluded that the laws and the CEC's decision fully guarantee that the Distant electronic system ensured proper authentication, identification of voters, and the secrecy of the vote are sufficient. The CC declined to assess the norm and limited itself to a formal assessment. That is, the CC ignored the argument that the entire procedure of identification through StateServices cannot guarantee voter authentication, and the portal itself does not guarantee the secrecy of the vote. In other words, the Court allowed that the DEV might establish less voter protection than traditional paper voting offers.

Third, Distant electronic voting increases civic engagement. In the CC's view, such kinds of voting, like the DEV, voting by proxy, online or by post, promote civic engagement and increase interest in elections. There is nothing wrong with the concept of the DEV itself. However, this argument of the CC is inconsistent with the arguments of the complaint: we have said that the shortcomings lie in the individual features of the DEV, not in the concept itself. Here the CC is expressing its opinion rather than responding to the arguments in the complaint.

Moreover, the CC also says that the voter chooses the most convenient form of voting and, therefore, he or she is responsible.

Fourthly, the complainant links the violation of his rights to the manner in which the Electronic Voting was conducted, not to the law. According to the CC, the applicant is not challenging the law but rather the CEC regulation. However, this is untrue: we have pointed out that the root cause of the constitutional violation is an absolutely empty provision in the law on the DEG, which had not established any guarantees and opportunities for candidates, voters and observers. Due to a single line in the law, the CEC and the Moscow DIT were given unlimited power to regulate the DEV as they wished without regard to the requirements and guarantees required by the law. Moreover, the CC is being a little deceptive: we challenged the norms that were used in the complaints against the DEG.

What has the CC not responded to at all?

The first is the argument of legal uncertainty. We have pointed out that the key shortcoming of the DEG is the complete gap in its regulation. In short, all regulation of the DEG was limited to: firstly, one line in Federal Law #67 (FL #67) that the CEC could conduct the DEG at will, and secondly, a special federal law which was only a reference law and referred to those norms in the FL #67 which, at that time, did not regulate the DEG at all. In other words, the entire defect in the DEG is derived from the fact that the lawmaker simply did not establish any safeguards or mechanisms in comparison to what is in place for paper voting. This applies both to the principles of conducting elections and to the rights of candidates and observers. As a result, the range of rights and guarantees for their implementation is unreasonably narrowed. The CC did not respond to this argument: the words " loophole" and "uncertainty" are mentioned only once in the text of the decision - as arguments of the applicant.

The second is that the StateServices do not allow to confirm the voter's identity and to ensure the secrecy of the vote. The complaint stated that Moscow's StateServices did not have the level of guarantees and reliability that would be consistent with the constitutional principles of elections. In essence, the StateServices system allows the user of the portal to be impersonated, their account to be used, and their identity to be revealed. The CC did not respond to this argument: it limited itself to saying that it could not question such a procedure. That is, it did not assess any guarantees, procedures or mechanisms - it simply refused to do it.

The third is that the organiser of the elections was the Moscow DIT (Department of Information Technologies of Moscow). The situation in which voter identification and the voting procedure, as well as the vote tabulation, take place through the StateSerivices system leads to the fact that the organiser of the election is the administrative body, i.e. the DIT of Moscow. The CC did not respond to this argument.

Fourth, on the violation of the principle of equality of candidates. We have pointed out that the rights of candidates in the districts with the DEG and in the districts where paper voting took place are very different. They are not in favour of the DEG. In other words, candidates in DEG districts have fewer rights and protections than other candidates. The CC did not respond to this argument.

Incidentally, the complaint had a peculiarity of its own. The fact is that by the time the complaint was lodged with the Constitutional Court, the norms we were challenging had already become obsolete. Very quickly after the elections, the legislator introduced changes which, in fact, reproduced the old regulation. Obviously, this was done in order to cut off the other candidates from going to the CC. But we still challenged the new regulations on the DEG as well. In other cases, the CC itself had also spoken about this, pointing out that a defective norm cannot be overcome by the re-adoption of the same norm or by transferring its legal content to new laws. However, in its definition in our case, the CC does not go into this argument. It simply says that it has no grounds for not trusting the new regulation.

And what does this mean?

In short, the CC did not respond to 80% of the arguments of the complaint: it simply ignored them and did not even mention them. Instead, it somehow assessed the factual circumstances of Mikhail Lobanov, the complainant, and expressed its personal position on the matter of the DEG and the forms of subsidiary voting, in direct contradiction to its own previous positions and the law.

In fact, this decision is neither good nor bad. Firstly, the CC has not responded to the arguments on the DEV practically at all, which means it does not close the door to other applicants. Secondly, its positions cannot be applied by analogy or linked in any way to other DEV cases: the decision does not contain any substantive positions that would affect anything at all. Rather, what is important is that the Constitutional Court is once again going beyond its competence and assesses facts and circumstances rather than the constitutionality of the norms. Earlier, it had already done so in decisions on new subjects (of the Federation, i.e. occupied territories of Ukraine - REM).

In my view, the CC has its own "red lines", i.e. the range of questions on which it will never make a positive decision, even in the form of definitions. In the Schlosberg [URL] case, it was clear that such lines include cases involving extremists or those involved in extremist activities, and in the EG case, the CC simply abstains from any assessment of electronic voting.

Ivan Brikulsky, lawyer of the Institute of Law and Public Policy, for his blog

A little over a year has passed since the last State Duma elections. Many lawsuits challenging the outcome of Distant Electronic Voting are still ongoing. Still, the Constitutional Court of the Russian Federation has already issued an unfavourable ruling against one of the applicants. In short, the ruling did not satisfy either opponents or supporters of electronic voting. Although the Court rejected the applicant, it did not delve into the problems of the Distant Electronic Voting or the DEV. Among other things, the Constitutional Court rejected the applicant also because he attributed the violation of his rights to the procedure for conducting the DEV, and it is not within the court's competence to examine such acts. Let me remind you that the general form and all the procedures of the DEV were regulated not by law but by an act of the Central Election Commission of Russia (the CEC). In other words, the complainant cannot challenge the CEC normative act before the Constitutional Court. Does it mean that Mr Lobanov (link) made a mistake, and it was wrong to challenge the procedure of the CEC?

Admissibility of Complaints and the DEV-Laws: A Bit of Formalism

If one approaches the issue formally, it seems the Constitutional Court is correct. Indeed, Article 125 of the Constitution and Article 3 of the Law provide a clear list of acts, the constitutionality of which may be reviewed on citizens' complaints. The CEC acts are not included in this list, which means that the admissibility requirements were not met, as the applicant was challenging an improper legal act before the Court.

The fact is that the primary norm of the law challenged by the applicant was formulated very briefly: the right of the CEC to decide on the holding of the electoral vote in the form of the DEV. This norm did not establish guarantees, rights or procedures, clear competence of the CEC and other bodies, and limits of their powers. Such a provision could be called not just blanket or referential but empty: it does not regulate anything at all. Other laws that dealt with the DEV had a similar defect of "emptiness": they were no less vague, referred to one another, did not regulate critical questions, and sometimes even referred to other laws and norms that did not apply to the DEV in any way.

Once again, attention should be drawn to the primary provision challenged in the Constitutional Court. According to its provisions, "in cases and in accordance with the procedure" established by the CEC, Distant Electronic Voting may be held during elections. The provision itself makes a very important point: the legislator does not simply hand over to the CEC the right to regulate the procedures of the DEV but gives complete carte blanche: to regulate the entire institution of the DEV "to the CEC's liking". But how compliant is this approach with the Constitution? In fact, this "corridor of opportunity" allows the CEC to appropriate any powers, including those not based on the law. Any executive powers should be based solely on a particular and explicit law. To do otherwise is to usurp power, which the Constitution does not allow.

The law handed over the right to regulate fundamental rights to a body without establishing any guarantees or requirements for such regulation. The procedure for conducting the DEV is based solely on this law and is a direct consequence of this legislative approach. Therefore, all violations of electoral rights will be directly linked to the law that allowed such regulation.

It should be reminded that the Constitutional Court has already assessed similar situations.

Firstly, when it assessed the constitutionality of a law on environmental protection and a government decree. The challenged law itself did not contain regulation of the challenged details of the decree, transferring this issue to the level of executive power. Notably, the Constitutional Court explicitly stated in the decision: it examined the government's degree in its systemic relationship to the law because the regulation itself was adopted pursuant to the law, and the power of the government was based on and derived directly from the law.

Although, in this case, the Constitutional Court assessed the government decree rather than an act of another state body (such as a ministry), the problem is almost identical: an inadequate level of regulation which leads to a violation of rights. It follows that the law can and should be reviewed together with the act that is based on it and that causes the infringement.

Secondly, when assessing gaps in the law. The mere fact that there is a gap in the law does not mean that the complainant can go to court on that basis because it is the legislator's prerogative to close the gap. But if the principle of equality is called into question because of such a gap, or if constitutional rights and freedoms are otherwise violated, and it is impossible to remedy the problem through the courts, then the problem becomes constitutional and can be resolved through the Constitutional Court's instruments. The Constitutional Court has developed extensive practice on the issue of deficiencies. If, in the complaint against the DEV, we could not claim that a gap in the law on the DEV allowed the adoption of a CEC act that violated rights, how did the Constitutional Court assess the gaps before that?

To sum up - nothing prevented the Constitutional Court in the DEV case from acting with the same logic, assessing the law and stating that such "delegation" was unacceptable. History, as they say, does not like the subjunctive mood, but if the Constitutional Court had nevertheless assessed as law, it would have had to make a statement on the whole "chain" of regulation of the DEV. And the usual CC's practice in such situations is not on the legislator's side.

Intent or recklessness: why was a "blank" DEV law passed?

The legislator acts very cunningly and prudently.

First, he adopts an entirely empty norm and, under the guise of clarifying or regulating it, transfers the right to regulate the DEV to another body, the CEC. The CEC then uses its position to introduce new restrictions and limitations on the rights of candidates and voters. These restrictions and limitations are reflected in the fact that the procedures for conducting and organising the DEV do not allow observers, candidates or even commission members to verify a person's right to vote, control the issue of ballots and correct the counting of ballots. The entire voting process takes place outside the view of key participants in the electoral process. In other words, their rights, as well as guarantees of openness and transparency, are limited. As a result, it is virtually impossible to challenge the outcome of the DEV in the courts: the voter or candidate cannot trace the alleged irregularities or gain access to proper information. And, since we are talking about challenging not the results of the DEV but its arrangement, the situation is even more interesting: how can the courts verify this act of the CEC for compliance with the law if the law itself is a total gap?

The legislator also understands that candidates who are unsuccessful in the courts will go to the Constitutional Court. And so, it is prudent to create such obstacles that cannot be overcome at a higher level by ensuring that the Constitutional Court refuses on formal grounds and does not go into an in-depth analysis of the DEV norms. Even at first glance, it is clear that it would have been difficult for the Constitutional Court to justify the obvious shortcomings and defects of the empty DEV norms if it wanted to. Next, as conjurers say, follow my hands: the vehicle for such obstacles is the DEV procedure, i.e. the CEC normative act, which cannot be subject to constitutional normative oversight.

We were aware of this when writing the complaint: making the CEC's act one of the subjects of normative control was our conscious choice.

We pursued several objectives here. The first one was to show the complete legal defect of the law and the complete chain of regulation "from the beginning to the end". In principle, the focus of the complaint was precisely on the legal ambiguity and gap in the regulation of the DEV and on the inadmissibility of transferring such an amount of authority from the legislator to a state body. Secondly, it was necessary for the Constitutional Court, based on its old positions, to pronounce itself on the quality of the regulation, to assess the norms in a systemic relationship and to emphasise once again the unacceptability of such a legislative approach.

In the end, as they say, we have what we have.

Instead of conclusions,

The assumption of some kind of intent on the part of the lawmakers may seem strange: can a body have some sort of evil will? A human being may possess it, but does the legislature have it? To this end, let us try to answer some questions. First, did the legislator assume that the empty provision on the DEV would lead to a violation of electoral rights and guarantees of judicial protection? Was it realised that the DEV would affect the level of political competition in Russia? Finally, did the legislators (including the constitutional majority) wish the consequences that the DEV would lead to in terms of the distribution of mandates?

The questions are, of course, rhetorical.