On December 19, 2019, after eight years of consultations and negotiations between political actors, civil society, and the expert community, the Verkhovna Rada of Ukraine finally adopted a new election code. The final version of the code largely reflects recommendations proposed by civil society and election experts to ensure human rights and facilitate the political participation of various stakeholder groups, including IDPs and other internally “mobile” groups of citizens, voters with disabilities, and women. It will also serve to expand the list of election-related data available in the public domain and allow for proper evaluation of electoral processes. The electoral reforms, however, should not be limited only to the harmonization of the electoral laws and the introduction of the new electoral systems.
The new open-list proportional system introduced by the Code for parliamentary and local elections has a number of features of the closed list proportional system. In particular, ballot papers are designed in such a way that they encourage voters to vote for one of the party lists rather than for an individual candidate on the respective lists. The box for selecting an individual candidate is placed at the very bottom of a lengthy ballot; many voters would likely not notice the box, simply vote for one of the party lists, and leave rather than take the additional time to identify and fill in the number of their preferred candidate. Under the open-list proportional system to move to the top of the multi-mandate constituency (MMC) list, a candidate would need to receive a number of votes that equal 25 percent of the electoral quota.
The electoral quota may, in parliamentary elections depending on voter turnout, be rather high, some 7,000-9,000 votes. If no candidate receives votes amounting to 25 percent of the electoral quota, seats are distributed to candidates on the MMC party list according to the sequence determined by the political party in question. In addition, in parliamentary elections, if a party meets the national vote threshold for seat allocation, the top nine candidates on that national party list are given priority in getting elected, regardless of voter preference. These top nine candidates are not assigned to any MMC, so voters cannot cast a preferential vote for them even if they wanted.
In addition to the harmonization of the electoral laws and electoral system change, a meaningful electoral reform should also provide for improvement of the election procedures, the effective implementation of these procedures in practice, the introduction of proportionate, effective and dissuasive sanctions for election-related offenses, ensuring that election commissioners are professional and that the role of the law enforcement agencies and courts in protection of the electoral rights is strengthened.
Key reform priorities for elections, referendums, and political finance should include:
- further promotion of political competition, in particular, by allowing independent candidates to stand for local elections and by strengthening voters’ influence on the allocation of seats to candidates under the open list proportional system used in parliamentary and local elections;
- decreasing the size of the electoral deposit to be paid by parties and candidates to run in the local elections; clarification of the procedures, which the respective election commissions must follow when they verify candidates’ compliance with the eligibility requirements set forth by the electoral legal framework; disallowing candidates for certain elections to withdraw their candidacy in the last minute before the election day and thereby potentially derail the election;
- establishing a unified approach for the composition of the election commissions in all elections (where it is practically possible and makes sense); establishing the regional and local branches of the CEC; implementing internal structural and operational reforms within the CEC (including the adoption of a CEC communication strategy for various stakeholder groups, enhancing transparency, accountability, and inclusiveness of CEC operations, the introduction of long-term planning of CEC operations); strengthening the professionalism of members of election commissions through mandatory training and certification of election commissioners;
- ensuring a better regulation of election campaigning, in particular, election campaigning on the Internet and in the new media;
- enhancing transparency of political and campaign finance; addressing the recommendations for political finance reform proposed by the Group of States Against Corruption (GRECO), the Venice Commission and the Office of Democratic Institutions and Human Rights of the Organization for Security and Cooperation in Europe (OSCE/ODIHR); taking measures to prevent excessive funding of political parties and election campaigns by imposing restrictions on paid political advertising on radio and television; full launch of the electronic financial reporting system for political parties and candidates;
- improving the procedures for voter registration and for overall administration and maintenance of the State Register of Voters; auditing of the State Register of Voters; further facilitation of electoral participation of IDPs and economic migrants;
- combating impunity for election-related offenses and ensuring an effective election dispute resolution;
- promoting more extensive use of information technology in elections (without shifting to Internet voting);
- ensuring better accessibility of elections for voters with disabilities; facilitating active women participation in the election process; and
- strengthening other forms of direct democracy, including referenda.
The issues covered in this document, as well as the recommendations it offers to address these issues, could and should create the basis for further election, referendum and political finance reforms in Ukraine. Most of these reforms should be implemented no later than in May 2020 so that the improved provisions of the Election Code and other relevant legal acts can benefit the 2020 local elections. Electoral contestants and administrators need to be properly prepared for these elections: the CEC, in particular, needs to be given ample time to issue the necessary guidelines, conduct voter awareness, develop and distribute election-related materials as well as adopt the secondary legislation necessary for the proper enforcement of the new electoral legal framework.
The full report by IFES Ukraine and Civil Network OPORA can be found here