Legal uncertainty, illegal campaigning, and confusion over procedures - summary of the first month of the election campaign

EXECUTIVE SUMMARY

In September 2020, the local election process continued amid ongoing discussions in the parliament about the legislative regulation of the election in a pandemic. The government's key objective is to introduce clear action algorithms for the election commission members and voters, as well as to conduct proper outreach campaigns to explain the algorithms. The remaining uncertainty about the adoption of special legislative amendments undermines the ability of the election commissions and the central and local government agencies to adapt in advance to meet the new standards of safe voting. There is no clear understanding of the sources and amounts of financing of the measures preventing the spread of COVID-19. This clarity is, however, key to proper preparations for the election amid the pandemic. The election process stability was also negatively affected by ongoing discussions of potential amendments to be introduced to the Electoral Code to regulate certain election procedures, in particular discussions of the grounds for counting or invalidating ballots under the proportional representation system. Thus, the parliament has not provided sufficient legal certainty of the election process amid the adoption of the final Electoral Code and further discussions of the Code improvements.

OPORA recognizes the professional competences of the Central Election Commission (the CEC) in the local election process and welcomes the Commission's efforts to reach out to the voters and ensure their voting rights. In the reporting period, the procedures have been completed for the voters to submit their change of the voting address applications to the agencies responsible for keeping the State Register of Voters. This was supported with accessible e-services. Between July 1 and September 10, 2020, about 100,000 persons had taken the opportunity to change their voting addresses on the electoral rolls for their actual place of residence. Despite a short period allowed for communicating the new procedures to the voters, the government authorities, especially the CEC, demonstrated the ability to make information available and accessible to the public. No proper procedures have been fully introduced to ensure the certainty of punishment for election offenses, therefore questionable increases in the number of voters have been observed in some precincts because of the change of voter addresses. OPORA is set to closely monitor such polling stations and calls on the law enforcement agencies to pay special attention to them as well.

Certain deficient provisions of the Electoral Code have made the CEC explain the election procedures additionally. In isolated instances, such explanations by this higher election administrator were excessive, particularly regarding indirect vote buying. The CEC has also approved a ballot form under the proportional representation system. In terms of the format for indicating sequence numbers of the candidates, this form contradicted the information communicated during previous outreach campaigns. Therefore, it is advisable to explain promptly all the aspects of voting under the new electoral system to the voters.

Nomination and registration of candidates in the local election were key developments in the reporting period. Monitoring of the meetings held by local organizations of the political parties to nominate their candidates showed that the legal requirements to the transparency and openness should be tightened. This is necessary to both strengthen the democracy inside the parties and prevent changes in the electoral lists that can be introduced after their final approval.

The final version of the Electoral Code was adopted immediately before the election process, therefore the local party organizations, candidates, and members of the election commissions could not properly prepare for the candidate registration. These preparations were also negatively affected by time constraints and statutory procedures that were insufficiently clear. This resulted, in particular, in the unequal application of the Code's provisions about gender representation in the lists of the local party organizations, as well as about cash deposits and correction of mistakes and inaccuracies in the candidates' documents. OPORA has documented the registration of candidates by the territorial election commissions that breached the Electoral Code and the denial of registration on flimsy grounds.

OPORA has to point to a fairly widespread technology of the “clone” candidate registration that is used to divert the support of real candidates. Amendments to the Criminal Code allow law enforcement agencies to counter this technology by proving bribery of the sham candidates. Our observers welcome the investigations launched into the registration of clone candidates in several regions. The proactive position of law enforcement agencies must demonstrate the inevitability of punishment for misleading voters and obstructing passive suffrage rights.

The unresolved financial and technical issues have complicated the work of territorial election commissions that carried out such key election procedures as the registration of parties and candidates. According to the observers, the quality of the equipment and facilities used by the territorial election commissions was not critical, but the commissions suffered from the shortage of office equipment (computers and printers). This made the commission members use their own technical resources. Despite the general expectations that the problems were temporary and would be largely resolved in the near future, the local governments should pay more attention to the quality of equipment and facilities of the election commissions and respond promptly to reasonable requests from the commission heads. According to the observers, the commissions have insufficient supplies of antiseptics, disinfectants, and other means of personal protection. This poses a threat to the commission members and election process actors who have to communicate regularly with the commissions. Potentially, the establishment of precinct election commissions could give rise to much bigger problems and large-scale risks in this context, as the commissions would face the inability or unwillingness of village councils to provide computer equipment and personal protection means.

Although the formation of the election commissions took place outside of the election process timelines, the parliamentary factions and groups (local organizations of the relevant political parties) have assumed the main responsibility for their establishment. For the first time, the Central Election Commission had responsibility for consideration of the nominations and establishment of all oblast, raion, city, and town commissions. However, the issue of frequent replacements and relocations of election commission members remains pressing. As of September 25, the entities nominating the territorial election commission members had made 3,915 replacements (including multiple recalls and readmissions) of the commission members. Thus, the oblast, raion, and city/town territorial commissions have been renewed by 41% compared to those initially established by the CEC on August 10, 2020.

The completion of party and candidate registration has resulted in a clear legal framework established for all the election actors. This had a positive impact, scaling down the electioneering efforts at the pre-campaign stage that showed signs of vote buying (so-called electioneering gifts). Despite the decrease in the number of attempts by some potential candidates to distribute electioneering gifts in late September, the continued operations of charitable foundations connected with the election participants for whom the actual campaigning takes place (mostly in a covert form) require close attention and proper response of the law enforcement agencies. Equally important are preventive actions and response to campaigning violations, which were most often reported by OPORA observers in September.

The need to address the misuse of administrative resources, the issue that is becoming systemwide because of the broad participation of local government officials and elected representatives in the local election campaigns as candidates, goes beyond purely legal regulation or law enforcement intervention. It requires a holistic approach involving voluntary self-restraint of the stakeholders and their public commitment to adhere to the democratic standards. To intensify the fight against the misuse of administrative resources, OPORA developed a Code of Conduct for Local Government Officials and Civil Servants in the Election Process back in 2019. In the 2020 local election process, ten mayors, village and town heads have signed the Code, committing to adhere to the broad standards of combating the misuse of administrative resources.

In general, we can state that the election campaign is competitive at this stage, given the number and political spectrum of active parties and candidates (73 parties, of which 18 campaign on a large scale), as well as the intensity and variety of campaigning. However, the non-transparency of significant financial spending on electioneering at a pre-registration stage created unequal conditions for law-abiding election process actors.

Analyzing various forms of campaigning in the local election, we see that online campaigns are gradually becoming a dominant form for the parties and candidates. According to OPORA observers, campaigning in social networks and the Internet is the second most common form of campaigning after outdoor advertising. Monitoring of political ads on Facebook also shows a rapid growth in the magnitude and spending on political advertising. Last month, more than 36,000 political ads were posted online, costing from $1,150,000 to $1,400,000 in total (for comparison, 20,000 posts worth about $400,000 were posted on Facebook in August). In this situation, the absence of special requirements or restrictions for online campaigning in the election laws is particularly dramatic, resulting in opaque financing of promotion materials on the web and in the unregulated legal relations between all players that place orders, create and distribute the campaign content.

In the period under review, the CEC did not reconsider its decision, based on the conclusions of the civil-military administrations, regarding the impossibility to hold the first local elections in
18 communities in Donetsk and Luhansk Oblasts. The Commission took steps to examine the situation once again, sending requests to the National Security and Defense Council and the civil-military administrations, but the security agencies stuck to their conclusions. This restriction of the right of the communities, which are home to about 475,000 voters, to self-governance requires that the President of Ukraine, the Government, and the Parliament should give a definite legal answer about the terms and conditions of the relevant local elections there.

The 2020 local election is an important test for the Ukrainian law enforcement system's ability to implement new laws that was adopted to prevent, combat, and investigate election offenses. In particular, the Criminal Code of Ukraine and the Code of Administrative Offenses have seen significant improvements. It gives one hope that much of the obstacles preventing unavoidable punishment for electoral offenses have been removed and that this election campaign will have a better quality of investigations.

According to the National Police of Ukraine, 271 administrative offense reports have been drawn so far in the 2020 local election. Article 212-13 of the Code of Administrative Offenses was the record holder in the number of reports. The article establishes liability for the production and distribution of promotion materials without source data (194 reports). In the same period, the police initiated 150 criminal proceedings, of which 35 involved vote buying (Article 160 of the Criminal Code), while proceedings about obstruction to the voting rights (Article 157 of the Criminal Code) ranked second (26 proceedings).