Elections in a close order formation

Essential changes to Russia’s electoral legislation were introduced after its aggression against Ukraine. Indeed, one might discern some military flavour in these adjustments: discipline, unification, centralisation, monopolisation of chain of command, and elimination of tools of civil control. Dr Arkady Lyubarev, candidate of legal sciences, co-author of federal and Moscow electoral legislation, and the editor-in-chief of the draft Electoral Code, gives his assessment of the further deterioration of the electoral system in Russia – REM

In general, most of the novelties continue the tendencies of the recent years in terms of restrictions on citizens’ electoral rights, reduction of public control over elections and discrimination of the opposition in their right to participate in elections effectively. At the same time, most novelties are not particularly significant against the background of previous restrictions.

However, two novelties can be assessed as significant restrictions. These are the abolition of members with the advisory vote, which deprives the opposition of one of the most effective tools for controlling the activities of electoral commissions, and the scaling down the proportional representation, which allows for a significant monopolisation of the legislative bodies of the subjects of the Russian Federation.

Between the beginning of the election campaigns for the Joint Voting Day in 2021 (i.e. July 2021) and May 2022, only three federal laws were adopted and came into force, thereby introducing changes into the electoral legislation. However, two laws (No. 360-FZ of 2 July 2021 and No. 90-FZ of 1 April 2022) have introduced minor and not very significant changes.

Federal Law No. 60-FZ of 14 March 2022, On Amendments to Some Legislative Acts of the Russian Federation, introduced significant changes. Regarding the crucial changes, they can be divided into ten groups.

Liquidation of municipal election commissions

The municipal election commissions are abolished. Their powers are vested in the respective territorial electoral commissions and may also be granted to precinct electoral commissions operating within the boundaries of a single municipal entity. The liquidation is in the trend of the last decade when powers of the majority of municipal election commissions have already been transferred to district or precinct election commissions. Now, the last municipal election commissions are being abolished. They are mostly the commissions of large cities, which had retained their independence from the vertical chain of command of the Russian electoral system. And in general, the novelty goes in line with the trend toward submission of local self-government to the central government. The novelty enters into force on 1 January 2023.

Abolition of members with the advisory vote

Positions of advisory members of territorial, district and precinct election commissions are now abolished. Such members are to remain only in the CEC and the electoral commissions of the subjects of the Russian Federation. In addition, it is prohibited to appoint one person as a member with the advisory vote to more than one election commission (an option that parties used to exploit in order to nominate a given individual to several commissions at once). The terms of appointment of such members have been severely shortened. These powers are now terminated on the publication date of the voting. This termination rule does not apply to the already appointed advisory members of the CEC and election commissions of the subjects of the Russian Federation. The previous legislature will regulate their powers. In other words, they will last until the registration of candidates or lists of candidates for the next elections in this constituent entity. So this control was harshly reduced in time: from several years to several days. Another restriction: an advisory election commission member is bereft of the right to attend meetings of lower-level election commissions and study their documents.

Indeed, it is still possible to appoint observers to the district and territorial commissions. But they can control commissions on election and tabulation days only, and observers’ powers are quite different from those of advisory members. In particular, observers do not have the right to participate in the commission’s decision-making, to speak at meetings or verify that the votes are counted correctly.

The liquidation is a severe blow to the ability to control the activities of mid and lower-level election commissions – not only in the voting process but also in the processes of candidate registration and campaign control. The institution of advisory members of election commissions had been in operation in Russia since 1993 and had been an effective tool for such control.

The threat of the monopolisation by one party

The amendments removed the requirement to distribute at least 25 per cent of mandates in regional parliaments on a proportional representation basis. This requirement had been originally stricter. Till 2013, it had been required to distribute at least half of the mandates via a proportional representation system. In 2013, the mandatory part of the representative system shrank to 25% and disappeared in federal cities. As a result, the legislative assembly of Moscow city has been elected via completely majoritarian elections since 2014.

The reservation of 25% for the proportional system prevented the monopolisation of power in regional parliaments by one party, which is often the case under the majoritarian system. This obstacle has now been removed. It is true that in the 2022 elections, regional legislators in none of the six subjects of the Russian Federation took advantage of this opportunity. But in 2023, we can expect the elimination of the proportional component in many regions.

Online voting

There is a new article on remote electronic voting. Such voting has been experimental since 2019 but has been regulated to a minimal extent by federal law. Therefore, on the one hand, adopting a separate article should be welcomed. However, on the other hand, the article is insufficiently detailed and does not contain adequate guarantees of electoral rights in remote electronic voting. Secondly, technically this voting is not yet sufficiently elaborated, reasonable suspicions of falsification accompany the practice of its application, and therefore its widespread use should be considered premature.

Deprivation of suffrage

The period of deprivation of suffrage for citizens convicted of extremist crimes has been extended to five years from the date of expiry or discharge of the criminal record. Previously, it has ended with the expiry or discharge of the criminal record. In addition, two additional articles of the Criminal Code, article 133, paragraph 2 (coercion to commit an act of a sexual nature against a minor) and article 134, paragraph 1 (sexual intercourse with a person under 16 years of age), have been added as grounds for deprivation of the right to vote. These innovations continue the trend of recent years in restricting suffrage. In the last year, there has been a dispute between civil society on the one hand and the CEC with the Russian Public Institute of Voting Rights on the other. The civil society experts estimated the number of Russian citizens deprived of passive suffrage at 9 million, while the CEC Chair stated an estimate of less than 1.5% of Russian voters, i.e. no more than 1.65 million.

Simplification of the delay of voting

The procedure for making decisions on the postponement of voting has been facilitated. From now on, the CEC does not need a reasoned proposal from the electoral commission of a Federal Subject. Similarly, when the electoral commission of a Federal Subject decides to postpone elections, it does not need a motivated proposal from the electoral commission that organises the election or referendum. Thus, the chances of arbitrary decisions have increased, as well as the risk of their use for political purposes. At the same time, the provision is made to allow an increase in the spending limit. In the event of a postponement, the limit rises by 20%. In itself, this provision is correct: in the case of postponement of voting, candidates and parties will have to start their campaigning virtually all over again. However, we believe that 20% is not enough: there may be situations when it will be necessary to increase this amount even further.

Precincts’ enlargement

The restrictions on the formation of polling stations have been changed. In the cities of federal importance, centres of Federal Subjects and urban districts with a number of voters over 500 thousand, the formation of polling stations with a number of voters exceeding three thousand is allowed. It should be taken into consideration, the previous limit of 3,000 voters was too high. As a result, the Russian polling stations had been among the largest in the world. So a gradual reduction in the size of polling stations was necessary, contrary to this tendency of their further growth.

Foreign Agents’ stigma

A new obligation was introduced for candidates and parties in case their campaign materials use a statement made by an individual listed in one of the “foreign agents” registers. The message must now be preceded by information that it is a statement made by a foreign agent. The requirement is the trend of restricting the rights of citizens recognised as “foreign agents” and, in fact, of opposition-minded public figures and experts.

Increased scrutiny of campaign materials

Candidates and electoral associations are made obliged to provide to the relevant election commission a copy of campaign material intended for use in TV and radio broadcasting or periodicals. The obligation increases the ability of election commissions to obstruct the campaign of opposition parties and candidates.

Legalistic adjustment

It has been clarified that if no required registration documents are submitted, the respective election commission decides to declare the candidates as “having lost the status of a candidate”. Previously, the wordings of decisions of election commissions in such cases were inconsistent. So, some commissions might decide to “deny registration”, which was legally incorrect. The novelty is, in principle, correct. Although it does not affect the implementation of citizens’ electoral rights, it simplifies the expert analysis of the processes of nomination and registration of candidates.

Conclusion

As it was mentioned above, the novelties continue the restrictive tendencies of the recent years: on citizens’ electoral rights, public control over elections, and the opportunity for effective participation of the opposition in elections.

In particular, the abolition of members with the advisory vote and the unrestrained proportional representation are the most dangerous amendments regarding citizens’ electoral rights.