The martial electoral law

Recently, draft amendments to electoral legislation materialised. So far, they have only just been submitted to the State Duma, and the worst, as is traditional, appears during the discussion - in the second reading. By now, however, there is already much to be concerned about. The bill contains several lines that would seriously worsen the possibility of monitoring the integrity of the vote and the vote count. It is surprising that the authorities still find things that can be banned.

First, it introduces a ban on photo and video filming for all election commission members, proxies, candidates and voters. Only observers and media representatives will be able to take pictures. Secondly, "designated seats for observers and media representatives" must now be on voting premises. In practice, PEC chairpersons often perceive this as an enclosure for observers that they cannot leave. Until now, the commission chairperson can only designate a location for filming.

These novelties are essential because forming new PECs has now begun. The new members will be in charge of the 2024 presidential election. The further limitations show that the authorities do not perceive honest ways to achieve the desired result and are therefore trying to make the observation as difficult as possible, even at the cost of the constant scandals that will erupt in polling premises because of these amendments. In these circumstances, the role of independent and honest election commissioners and observers will be crucial.

Another critical part of the amendments is, as Darya Garmonenko and Ivan Rodin wrote for Nezavisimaya Gazeta, an attempt to bring into accord the limitations of martial law imposed on the occupied territories of Ukraine and constant pressure from the Kremlin to run elections there in a 'business-as-usual' fashion. MPs think that scandalous remote voting will help them to square the circle.

Electoral law is being adapted for the "Special Military Operation"¹

Elections will be excluded from limitations imposed by martial law in the so-called "new constituent entities of the Russian Federation"²

by Daria Garmonenko and Ivan Rodin for Nezavisimaya Gazeta

The Duma has begun work on amendments to electoral legislation. There are about two months to adjust the electoral rules to the so-called "special military operation" in time for this year's Unified Election Day (UED). MPs will therefore take their time, especially as it is not yet known which additional modifications will be required. The main innovation now appears to be a "remote election" regime for the so-called "new subjects of the Russian Federation". This trick would allow martial law to stay in force. It is worth noting that the Central Election Commission's powers will also continue to expand, following a model tested during COVID-19. In other words, the CEC will, as it were, be able to adjust not the technical elements, but the actual legal provisions of the law on its own.

On the 30th of March, the State Duma's legal department confirmed that the proposals to amend the electoral legislation, which were recently submitted by a group of senators and deputies, were constitutional. This is unsurprising since among them are the chairmen of the Legislation and State-building Committees of the upper and lower houses, Andrei Klishas and Pavel Krasheninnikov. They are in themselves a guarantee that the bill will be passed, and the fact that it is also an inter-factional initiative only strengthens this prospect.

The question, then, comes down to two things - when will the bill be approved and, even more importantly, what will the final version look like? The timing is much easier to understand: UED-2023 starts at the end of May/beginning of June, so the basic norms should be in force by then ³.

The second answer, however, can only be speculative for the time being. The fact is that the document that appeared in the Duma is a classic "steam locomotive". This is the nickname for an amendment, perhaps not a major one, to a law, which can only be used as a pretext to extensively adjust the law in all the right places by the second reading. The process of adding new provisions to the text is referred to as attaching 'coaches'. However, the authors, led by Klishas and Krasheninnikov, have already attached both technical and substantive trains to their initiative.

It is likely that this was originally a solution to a situation that has been highlighted more than once by both the European Court of Human Rights and the Constitutional Court of the Russian Federation. A citizen who is in pre-trial detention but has not yet been sentenced by a court has the full right to vote. In other words, they are entitled both to elect and to be elected. But while the passive right (i.e. to be elected) has been formally possible to exercise in recent times, the active right (i.e. to elect) has been difficult to execute, especially in distant places of detention. This is why parliamentarians are going to stipulate that special polling station electoral committees may be set up in pre-trial detention centres by the Russian Central Election Commission. The fact that this was the original amendment is evident from the fact that it is only due to take effect in 2024.

Everything else in the proposal seems to have come later. This includes a key innovation concerning the DNR and LNR, as well as the Zaporizhzhya and Kherson regions⁴, where martial law is in effect by presidential decree and thus elections are prohibited. "In order to ensure security, the protection of life and health of citizens, and the implementation and protection of citizens' electoral rights during the first elections" in these constituent entities of the Russian Federation "special requirements for the implementation of certain provisions of this federal law may be established". They must be stipulated in a regional act, which is subject to mandatory review by the CEC. However, the main potential feature is stated immediately - polling stations located outside the region requesting an exemption. The procedures for candidate registration and casting votes have also been relaxed.

And it is telling that the final explanations for everything will be given by the CEC, whose powers extend from technical explanations to law-making decisions. This is nothing new - it's exactly how Ella Pamfilova's office acted during the coronavirus pandemic. For example, it decided to hold elections over several days and allowed voting to take place 'on stumps⁵ (i.e. almost anywhere). This, of course, means that the Kremlin has full confidence in its control over the CEC, and isn't expecting any surprises. As for some other innovations, the full legalisation of so-called "civic observation"⁶ seems to be worth mentioning. Further adjustments in this area are likely. As, indeed, is the case with elections in the "new regions".

According to Mikhail Yemelianov, a member of the Central Council of the 'A Just Russia' party, these amendments will be adopted before June, i.e. in time to come into force for the upcoming elections. However, he was at a loss to speculate on what other innovations there might be: "It could be anything. For example, they might legally abolish voter rosters in paper form at precincts so that electronic screens and stylus signatures can be introduced everywhere. Or further restrict the rights of party observers, expanding the powers of Civic Chamber observers. However, I don't want to give the authorities ideas on how else they can limit the rights of citizens". Emilia Slabunova, a deputy from the Yabloko party in the Karelian Legislative Assembly, said: "Everything is being done to make the elections 146%⁷ under control; this, of course, is being done for the presidential election, among other things. They need an environment that creates an extra margin of safety, insuring not only against the unexpected but even against the impossible, against the things that cannot happen in principle." She explained that the elections are now definitely being switched to 'special operations rails', meaning that the authorities need to convincingly ensure both the voting process and the outcome everywhere, especially in the "new territories". But Slabunova had difficulty with her prediction about other amendments. "Only if a service such as call-in voting is introduced - again for the convenience of voters. You know, so that people can call from home and the commissioners can fill in the ballot paper and put it in the ballot box. You could also hold elections for a fortnight or make it so that the election does not end at all. Or, to demand a statement at the entrance to the polling station with a commitment to vote in a certain way. The rest is already over-regulated," she jokingly added.

Alexei Makarkin, first vice-president of the Centre for Political Technologies, stressed that all amendments are more than just technical: "Voting methods become obsolete sooner or later; for example, absentee ballots were popular in the 2000s, but with [distant] electronic voting, they're no longer needed. In his view, the bill simply formalises the innovations that are already in place, apparently, "all experiments have been recognised as successful, just as all tried-and-true practices have been decided to be introduced nationwide". "This is being done for regional elections, and if with an eye towards the future, it is more likely to be ready not for 2024, but for 2026, i.e. in time for the campaign for the Duma elections," suggested Makarkin. Political analyst Nikolai Mironov also told Nezavisimaya Gazeta about the number of technical decisions, including regarding the powers of the CEC. He indicated that since the draft was being introduced by a group of MPs from different factions, this underlined its significance and signalled that it would be adopted as soon as possible. "There is no ground-breaking amendment to be expected, just that the political situation is changing and laws are being adjusted to suit it. Now, with the help of this law, it may be possible to allow the "new regions" to hold elections taking into account martial law, for example, through distance [electronic] voting," the expert explained.

1. "Special Military Operation" is the official euphemism for the Russian-Ukrainian war, initiated by the unprovoked invasion of Russian forces on 24 February 2022.

2. It is the official euphemism for those Ukrainian regions that were occupied and illegally incorporated into the Russian Federation in 2022.

3. It is the expected start of the electoral campaigning for UED-2023. The voting will be over on 10 September 2023.

4. It is the list of illegally occupied and annexed territories.

5. "On stumps" is a catchphrase for voting virtually anywhere, with images of voting on tree stumps causing a maximum uproar.

6. The pro-governmental Civic Chamber and its electoral observers are well known for rubber-stamping any electoral result.

7. Regarding the "146%", see the article on former CEC chairman Churov.