Volume 7 Number 3

Summer 1998

Rewriting the rules of the democratic game

The New Russian Law on Electoral Rights
Joseph Middleton

If public pronouncements are to be trusted, then fair and genuinely contested elections have become a fundamental objective on the Russian political agenda. But, under postsocialist conditions, fair elections present special challenges. Alongside a comprehensive franchise, it is necessary to organize an evenhanded and transparent administration of elections and to establish mechanisms for appeal and protest against unlawful actions. Most important of all, fair elections presuppose an effective legal framework, consistent with general democratic standards, but tailored to each country’s specific needs and inherited problems. An opportunity to consider how these various challenges are being met in the Russian Federation is provided by the recent adoption, on September 30, 1997, of the Law on Fundamental Guarantees of Electoral Rights and the Right to Par-ticipation in a Referendum of Citizens of the Russian Federation (Sobranie zakondatelstva Rossiiskoi Federatsii [1997] no. 38, item 4339).

One of the recurring themes in discussions of Russian electoral law is the need for an electoral code. Such a code would provide an authoritative and comprehensive source of broad principles, general mechanisms for conducting elections, and even detailed regulations for specific elections. The new law is certainly not a codification in that sense. Rather, it is a piece of “framework legislation,” on the federal level, that envisages the adoption of other measures to deal with specific elections. All such laws and lesser normative acts, whether adopted at the federal, “subject,” or municipal level, are required to conform with the new law.

As its title indicates, the new law seeks to impose a foundation of individual rights and entitlements regarding elections and referenda, though it goes considerably further than that. Indeed, it provides a much more detailed treatment of elections and referenda than its predecessor, of a similar title, adopted in 1995.

The administration of elections
The task of administering elections lies with the electoral commissions at various levels of the federal hierarchy. The commissions generally enjoy an analogous jurisdiction over the conduct of referenda. At the apex of the system stands the Central Electoral Commission (CEC). Each subject of the federation has its own electoral commission. At the next level are the district (okrug) or territorial commissions, and below these stand the precinct electoral commissions, serving the individual polling stations. In general, only the CEC and the subject commissions are standing bodies. A decision taken by any commission within its sphere of competence is binding not only on lower-standing commissions but also on other state bodies, officials, and individuals. All commissions, according to the law, are independent from state and local government bodies.

The law provides varying degrees of regulation on the composition of electoral commissions. It is most explicit about the federal level: as a permanent body, the CEC is composed of fifteen voting members, five each appointed by the president, the Federation Council, and the Duma. All members must be lawyers. There are also consultative members who do not vote.

The CEC enjoys extensive powers and resources in the conduct of elections, particularly, but not only, federal elections. These powers have made it intermittently the focus of a great deal of public interest and the source, at least potentially, of significant political influence. It coordinates and supervises the registration of voters and the calculation of results. For both tasks it employs a nationwide computer network, GAS-Vybory, whose role is bound to increase substantially in the future. Other CEC functions include providing the format for federal election ballots, considering complaints, developing programs for distributing airtime for campaign broadcasts, and assigning federal funds to other electoral commissions.

The fifteen members of the CEC are designated as voting members, distinguishing them from consultative members. The voting members serve on electoral commissions on a permanent basis, while consultative members serve only during a single federal election campaign. They are entitled to attend commission meetings, examine documents, ask questions, and otherwise contribute to deliberations. They have no vote, however, and, at lower levels, they are not permitted to be directly involved in the issuing, counting, or processing of ballots. These members are there to represent the interests of a particular candidate, electoral association, or electoral bloc registered in a given election. The fact that such members are guaranteed the right to be present at every level of election administration, from polling stations to the CEC, and to play an active, if limited, role in such administration, is one of the instruments by which the new law aims to enhance the fairness of elections.

Nomination of candidates
The right to nominate candidates for any election belongs to voters, the candidates themselves, and to electoral associations and electoral blocs. An electoral association is described in Art. 2 of the law as a political-social organization (a political party, organization, or movement) devoted to the various forms of political activity defined in that article. The charter of an electoral association must be registered at least one year before the polling day for which it seeks to nominate candidates. An electoral bloc is formed by an alliance of two or more electoral associations.

Once nominated, the candidate or list of candidates must be supported by the gathering of voters’ signatures, in the required numbers, and by the general procedures complying with the regulations laid out for particular elections. For instance, each candidate in the 1996 presidential election was required to collect the signatures of one million voters.

In recent years, there have been numerous allegations of abuses in the collection of signatures. For example, it is said with some justification that it is only businesses and state agencies that have the resources to collect the huge numbers of signatures required for federal presidential elections. Perhaps with this in mind, the law prohibits candidates holding state office from using that status to their advantage, including using their resources and manpower to collect signatures.

Most court challenges to CEC decisions in the run-up to the 1995 Duma elections concerned this aspect of the campaign. Of the seventeen candidates who sought registration for the 1996 presidential race, six were denied registration because of defects in their signature lists. Rather than providing any substantial reform in this area, the new law merely leaves the task of establishing the scrutiny procedures for lists of signatures to be resolved elsewhere.

Even if these inherently problematic arrangements are abandoned, the problem remains that some effective system is still needed to limit the number of candidates running in any given election. In an interview, Viktor Sheinis, of Grigory Yavlinsky’s Yabloko bloc, has suggested the use of electoral cash deposits, which would be refunded if the candidate receives a certain number of votes. But there is bound to be some popular resistance to an arrangement that appears to allow candidates to buy their place on the ballot. This would also operate against independent candidates who are not bankrolled by a party or movement. Another possibility would be to allow nominations only by registered political parties. This, too, would operate against independents and, in any case, would be hampered by the continuing absence of any law on political parties. But Sheinis’s option may well prove to be the most attractive means for reducing the oversupply of candidates.

Openness in elections
Article 26 of the law deals with openness (glasnost) in the activities of electoral and referendum commissions. Most of the article seeks to consolidate the function and status of domestic election observers. They are defined elsewhere in the law, in Art. 2, as persons appointed by a candidate, electoral association, electoral bloc, or social association, all of whom must have been properly registered, or simply designated by a group of voters. “Social associations” include most Russian NGOs devoted to human rights and free elections, of which there are now several. The opportunity for voters to nominate an observer is one novelty introduced by this law. Time will tell if the opportunity is seized.

Observers are entitled to scrutinize voter lists, to attend polling stations on polling day, to be present outside the polling stations when voting occurs, to observe the count, to check the electoral protocol—the tally (discussed below)—and to receive a certified copy of it, and to protest the decisions of polling-station commissions to superior commissions. Observers may not be required to disclose in advance where they intend to be on election day. Like observers in other countries, they may not actively participate in the voting process (other than by casting their own vote) or obstruct the work of the commission.

Unfortunately, the law deals with international observers—who have played an active part in recent federal elections—only cursorily. Most regrettably, it does not extend to international observers the same rights and entitlements enjoyed by domestic observers. In practice the unequal treatment of international observers has proved particularly important in such situations as gaining access to unusual polling stations, for example, those in pretrial prisons or military installations, and obtaining certified copies of the electoral protocols.

Apart from the extensive opportunities extended to observers, whether partisan or independent, the other important guarantee of openness in the elections is provided by the use of electoral protocols or protocols of results. The new law sets out the detailed format of a protocol for any election. At the precinct level, the protocol is an official form compiled by the members of the precinct electoral commission. It indicates not only the number of votes received by each candidate but also such information as the number of ballots received and issued, the number of voters on the voter list, and the number of voters who have voted, including the number of those who have voted by means of mobile ballot boxes. The form is stamped and signed by each member of the commission. Observers are entitled to receive certified copies of the document at this stage. In the 1996 presidential election, international observers reported almost no problems in obtaining these documents. Protocols from polling stations are then collected by the next higher commission—in federal elections a territorial commission—which produces its own protocol, not only summarizing the results of that territory but also showing the results from individual polling stations. Observers are entitled to receive copies of these protocols, too. This process is repeated up through successive electoral commissions, arriving finally at the CEC. In this way, it should be possible, by collecting copies of successive protocols, to retrace results down through various levels and ensure that the final numbers have been correctly tallied.

For both rounds of the 1996 presidential elections, international observers were urged to obtain polling-station results and then trace them as far as they could to check for accuracy. One exception aside, the only discrepancy discovered was a minor mathematical error.

Tatarstan was the exception. This was the only place monitored by the European Union Election Unit where an electoral commission refused to issue domestic and international observers with certified copies of protocols. The problems here were investigated mainly by Communist Party observers and proxies. By comparing the protocols obtained from the territorial commissions with the summary sheet produced by the Tatarstan Central Electoral Commission, they discovered that the number of votes shown for Boris Yeltsin had been beefed up by 45,540. Between them, the other candidates had lost exactly the same number. The biggest loser by far was Gennady Zyuganov, the Communist Party candidate. This rather glaring discrepancy was ultimately scrutinized by the Russian Supreme Court in late June and early July of 1997, and a criminal investigation was ordered. This case provided a demonstration of the way the protocol system works to detect fraud. It also showed that the Russian judicial system can sometimes work efficiently.

Turnout
Since the introduction of contested elections, voter participation has fallen far below 99 percent, the traditional turnout at Soviet-era elections. (Turnout was about 67 percent for the 1996 presidential election.) But some of the methods used to encourage high turnout have given rise to serious allegations of abuse.

The most consistent focus for concern in this area is the continuing use of mobile ballot boxes, which, at least in theory, are transported on request to the homes of voters. The potential for abuse is clear. Once a ballot box is taken from a polling station and away from the prying eyes of observers, there is a real temptation to influence or interfere with voting. One method is to trawl for votes in areas where supporters of a favored candidate are believed to be concentrated. Another is “helpfully” to complete and cast the ballots for voters who—for reasons of age, infirmity, or illiteracy—are unable to read or mark the ballot themselves.

The fact that mobile ballot boxes may have been abused in previous elections is suggested by the protocol statistics. Given that the only grounds for using the mobile boxes is ill-health or other “respectable reasons,” the proportion of voters using these boxes should be approximately equal in all regions of the country. Yet, in the first round of voting in the 1996 presidential election, only 2 percent of voters used mobile boxes in the city of Moscow, compared with 16 percent in the Aginsk-Buryatsk Autonomous Okrug. Anecdotal evidence from the Pskov Oblast suggests that, in some areas, as many as half of the voters had used mobile ballot boxes. These higher figures suggest that, in many cases, the old habit of taking ballot boxes from door to door, irrespective of whether the voter has requested it, continues to flourish. Voting without the presence of electoral observers not only threatens the secrecy of the ballot; it also undermines the constitutional principle that participation in elections and referenda must be voluntary.

Finance and media
The proper regulation of spending during election campaigns and the closely related issue of media access are likely to prove the most enduring of the obstacles to the free and fair conduct of elections in Russia. Admittedly, this is by no means a purely Russian phenomenon. In recent times, electoral spending in violation of the established procedures has been justifiably criticized in the UK and US, for instance. And political forces in both countries seem extremely reluctant to address the issue in a serious way.

In seeking to regulate campaign finances, successive Russian election laws have focused on the creation and use of official campaign accounts. Under the new law, each candidate, electoral association, and electoral bloc must set up a designated bank account for its campaign fund immediately after registration. The law allows contributions to such funds from candidates, electoral associations and blocs themselves, from voluntary contributions by individuals and organizations, and from the state (channeled through electoral commissions). It also forbids outright some entities from contributing to election funds. These include foreign states, foreign businesses and individuals, international organizations, Russian businesses with more than 30 percent foreign capital, charities, and religious bodies. The size of contributions is limited by the law governing a particular election. Candidates, electoral associations, and blocs are required to submit periodic and final account statements, and these statements must be published.

Two particular obstacles diminish the effectiveness to be expected from these provisions. First, there is little indication that proper accounts have been submitted and published in relation to the elections held in recent years. The electoral commissions have a role to play here, if they are prepared to enforce compliance with the rules. The main difficulty they face is a familiar one: the dominant political parties and groups have little interest in scrutinizing their opponents’ finances when they are so keen for their own to be left unexamined. An electoral commission in Russia that dared to investigate too carefully the finances of one party or movement might well invite the wrath of all the parties.

The second problem is the difficulty of controlling spending in favor of a particular candidate or party by supporters who choose not to make donations to official campaign funds. When, during the 1996 presidential race, it was apparent that much more was being lavished on television advertising for the Yeltsin campaign than for his challengers, one explanation offered was that certain wealthy supporters had chosen to pay for commercials on their own initiative. It was argued that such donations circumvented the limits on campaign spending. The new law has gone some way toward addressing this particular aspect of campaign financing by requiring all media spending to be transacted with official campaign funds.

Approximate equality in campaign spending may not be achievable by legislative means at all. If it is, it will require the adoption of a law on political parties and, given that broadcast advertising is the most expensive and perhaps influential form of campaigning, a law on broadcast media as well.

The new law goes much further than its predecessor in regulating campaigning in the media, in all its forms. It makes particularly detailed provisions in relation to media owned or financed in part or in whole by the state, which must ensure equal campaigning opportunities to candidates, electoral associations, and blocs (Art. 39.1). State television, radio, and newspapers are required to provide free airtime and print space to election candidates for campaign material. Of the free airtime provided, at least one-third must be devoted to discussions between candidates. Other media are required to provide airtime and print space on a contractual basis and on equal terms for all candidates (Art. 39.2).

For federal elections, viewers are to be treated to no less than one hour of free election broadcasts during peak viewing times every weekday during the election campaign (Art. 40.1). How this time will be divided is not entirely clear. The law requires broadcast time to be divided between candidates, electoral associations, and blocs on an equal basis (Art. 40.2). This may be straightforward enough for presidential elections, where each candidate receives the same amount of time. (This occurred during the 1996 race.) Yet where individual candidates are competing with major electoral associations (or parties), each fielding an extensive candidate list, it would be strange if single candidates receive the same amount of time as associations and blocs.

Disputes and offenses
The practical value of legislative standards hinges on the legal liability that attaches to violating those standards. In general terms, the new law consolidates the principle that any action or omission of a state or municipal body or of any electoral commission believed to have violated electoral rights, may be protested to a court. The actions and omissions of electoral commissions may also be protested to a higher electoral commission.

The law goes into considerably greater detail than its predecessor in identifying a range of actions entailing criminal or administrative liability. Offenses defined in the law include vote buying, exceeding campaign-finance ceilings, exploiting an official position, violating the secrecy of the ballot, and refusing to give an employee time off to vote (Art. 65.1). On the criminal side, these provisions provide substance for the coercive provisions of the Criminal Code of 1996, which identifies broad areas of criminal activity in electoral matters, together with a range of penalties, but without specifying the exact behavior that would qualify as criminal. Article 141 of the code provides a maximum penalty of deprivation of freedom for five years for obstructing the exercise of electoral rights or for obstructing the work of an electoral commission. Article 142 provides a maximum penalty of four years’ deprivation of freedom for falsification of electoral or referendum documents or deliberately falsifying a vote count.

Experience to date suggests that, in practice, most reports of electoral violations are incompletely investigated and that, even when clear evidence of violations exists, disciplinary action against election administrators and others is rarely taken. Any real improvement in this respect may well require more assertiveness and independence on the part of election administrators and prosecutors, together with an acceptance that political stability is not served in the long term by ignoring election violations once the results have been published and political excitement has subsided.

Conclusion
By imposing standards which, where they differ from previous ones, are generally higher and better, the new law on electoral guarantees seeks to raise the quality of future elections by improving the rules by which they are conducted. It seeks also to exercise a kind of benign coercion over the many regional legislatures as they begin to cobble together their versions of the rules governing the electoral game. Many regional leaders would presumably prefer to conduct their elections in their own way by their own standards. Indeed, if complaints following the 1996 presidential election are a guide, many regional leaders would prefer to play by the old rules, which made the outcome of elections reassuringly easy to predict. Perhaps it was discomfort with an electoral system whose outcome could not be known in advance that prompted the Federation Council to veto—unsuccessfully—the current law in its passage through the parliament.

 

Joseph Middleton is a barrister and is contributing editor (Russia) for European Current Law. He was the legal officer in the European Union Election Unit for the 1996 Russian presidential elections and has subsequently worked on elections in Bosnia, Chechnya, Armenia, and the UK. This article is based on a paper presented at the conference “The Legal Foundations of the New Russia,” held by the Centre for Russian Studies, Norwegian Institute of International Affairs, in November 1997.

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