On the eve of local elections: violation of campaigning rules, voter bribery, unequal application of anti-epidemic measures in the regions
Local authorities still have time to implement standardized protection against COVID-19 in elections, regardless of current differences in means supply at election commissions and polling stations in communities. Unfortunately, within the public activities of parties and candidates, typical abuses and violations of electoral standards were present, which have negatively impacted the competitiveness of the election process. Representatives of Civil Network OPORA presented this information and other findings at a Kyiv press conference on 23 October.
Countering foreign interference in the election process, particularly by the Russian Federation, is a critical task for democratic states. Civil Network OPORA has investigated the European Solidarity party's statement regarding a letter to the party leader, Petro Poroshenko, from the Main Department of the Security Service of Ukraine in Donetsk and Luhansk oblasts, requesting information about the party's candidates in local elections. OPORA's analysis concluded that it was a provocation to publicly discredit the SBU and cause public confrontation between electoral subjects and Ukrainian authorities. The email address of the letter European Solidarity received imitated an official domain name of the Security Service of Ukraine but was in fact sent from a free mailing service, rambler[.]ru.
Civil Network OPORA has also addressed the MIA of Ukraine to suggest providing an opinion on the actions of the State Secretary of Hungary for National Policy, Arpad Janos Potapi, in terms of compliance with Ukrainian election legislation. OPORA's observers detected evidence proving the Hungarian official's participation in support of the KMKS Party of Hungarians of Ukraine's election campaign during his visit to the Zakarpattia oblast.
President of Ukraine Volodymyr Zelenskyi has launched an initiative to hold a public poll on 25 October 2020, covering attitudes towards certain societal development issues, financed by the Servant of the People political party. Given citizens' varying opinions on the initiative, representatives of the National Police of Ukraine urged voters not to obstruct the poll. OPORA notes that the President's activities possess features of hidden advertising in support of a specific political force. This poll may be a violation of the principle of equal opportunities for all electoral subjects. Although it will take place outside election commissions, its quasi-official status, based on the President of Ukraine's initiative, mobilizes a particular political party's technologies to violate the standards of equal opportunities for candidates and parties campaigning on Election Day is banned.
The process of the 2020 local elections includes not only the implementation of the new Election Code, but also the realization of anti-epidemic measures during voting. OPORA believes that Parliament's failure to take a proactive position and insufficient organizational and informational activities involving election commission members and local government representatives has negatively affected the coordination of efforts realized by authorities at all levels. Observers noted that local government bodies became more active in implementing the Anti-Epidemic Procedure measures as Election Day approached. For their part, local government bodies responded more effectively once the Government obliged them to finance anti-epidemic measures themselves. Thus, the risk of its unequal application in different communities or even oblasts of Ukraine is already apparent.
Civil Network OPORA has analyzed the age, education, gender, party affiliation, etc. of 271,362 candidates nominated either independently or by one of 147 parties. In general, the largest number of candidates for council members at all levels, as well as mayoral candidates nominated by: the Servant of the People party - 29,469 (10.9%), AUU Batkivshchyna - 28,491 (10.5%), the For Future party - 26,602 (9.8%), the European Solidarity - 22,763 (8.4%), the Opposition Platform - For Life - 19,176 (7.1%), while 16,914 (6.2%) persons ran independently. The vast majority of mayoral candidates also ran independently - 1,081 (37.1%).
The vast majority of candidates are non-partisan - 76.1%; are highly educated - 75.1%; and are aged 35-50 years old - 44.4%. 55.5% of candidates in local elections are men, and 44.2% are women. Most candidates work in the business sector (LLC, PJSC, SFG, IE, etc.) - at least 29.2%. Every seventh candidate is unemployed (14.6%), and 10.9% of nominees work in local government bodies and other authorities. According to Civil Network OPORA's calculations, 257 (70%) current mayors are running for one more term. Fifty-six current MPs are candidates for local council members and city mayors.
Due to citizens' increased risk of contracting COVID-19, it has proved hugely challenging to mobilize approximately 350,000 people who will directly interact with voters in crowded places (including those in self-isolation or with respiratory symptoms). These challenges will remain relevant until voting results are obtained. Precinct election commissions will require minimum staffing, especially on the lowest administrative territorial levels, such as small towns, townships, and village communities. Although the number of actors eligible to nominate candidates for PEC members has increased, most failed to show much interest or levels of activity to contribute to election commissions' capacity so that they could perform on a higher competitive basis.
Territorial election commissions established 29,284 precinct election commissions. However, at 2,581 polling stations (9% of the total number), voting will not take place, as they are located on Ukraine's territories temporarily occupied by the Russian Federation. In addition, civil-military administrations have stated the current infeasibility of elections in certain areas.
A key challenge for the all-round evaluation of the PEC formation process relates to the lack of comprehensive and exhaustive information on the results of their establishment. There is no material available on the subject on either the Central Election Commission's official website or from other open sources. Although there are several problematic commissions, the formation process of PECs monitored by observers ran in line with the legal formalities and within the deadlines set by the law. The largest number of seats in PECs (established in towns with the district centers status) was claimed by the "Servant of the People" party (14%), "Batkivshchyna" AU (13%), "European Solidarity" (12%), and the "Opposition Platform – For Life" (10%). In total, parliamentary factions prevail in the composition of precinct election commissions, accounting for 63%. Distribution of executive positions (chairperson, deputy chairperson, secretary) claimed by political parties in PECs is generally balanced and proportionate.
A vital procedure from the reporting period was the production of ballot papers and their transfer from the production company to the TEC in charge of the respective elections. 7 of the 152 TECs OPORA observed failed to meet the deadlines for approval of texts for the ballot papers and to determine the degree of their protection. In 72% of cases, printing companies and individual entrepreneurs produced the ballot papers. Since parliamentary political parties failed to submit any proposals, it was impossible to establish commissions to control the production of ballot papers for at least 7 of 152 TECs. Mistakes in the printed ballot papers were detected in 5 cases. Thus, the process of production and receipt of ballot papers only recorded such irregularities as TECs breaking set deadlines, the low interest of local organization of political parties in controlling functions provided by the Electoral Code, and mistakes detected in the text of printed ballot papers in some communities. OPORA calls upon TECs, PECs, and the law enforcement authorities to duly provide for the storage of ballot papers before election day and proactively respond to reports of violations of the relevant laws.
The last month of the election campaign showed that the list of all the most active election actors (ranked long before the start of elections) has not substantially altered. Most potential election actors launched early campaigning activities almost in parallel (also using various forms of pre-election charity), relying on the lack of formal restrictions on funding transparency funding and rules for holding events. Therefore, the electoral actors who launched their campaigns within the lawful timelines could not compete on equal footing. Other parties or candidates had already found ways to avoid legal liability while breaking democratic election standards. According to OPORA observers, in October, 83 political parties exercised various forms of campaigning activities (during early campaigning, this was around 70 parties). Four political forces conducted large-scale national campaigns: "Servant of the People," "For the Future," "European Solidarity," and "Batkivshchyna" AU. Concerning candidates' campaigning activities when running for local heads of district and regional centers, "Servant of the People" counted the most actors (active in 73 districts and 19 region centers).
Compared to early parliamentary elections, the number of political ads posted on Facebook has doubled. In as few as 44 days, from 5 September to 19 October, 86,964 political ads were posted on Facebook. Although social media had a huge impact on election campaigns, the Electoral Code failed to resolve campaign regulation issues on the Internet, especially on social media. Legal uncertainty contributed to a situation in which political forces launched social media activity long before the formal start of election campaigning. CEC RESOLUTION No 24, which defines the forms for submitting financial reports for all election actors. Moreover, it includes a requirement to distinguish between the costs of campaigning online, specifically on social media.
Since the beginning of the election campaign on 5 September until 16 October, OPORA detected 6,220 unique pages sharing political ads on Facebook. According to our estimates, political forces and candidates for positions of different levels spent approximately USD 2.6 million (circa UAH 70 million) on Facebook ads. The highest spender was the "For the Future" political party, which spent over USD 370,000. In addition, the party established a network of 63 regional pages. This network was one of the largest and helped the party target the entire territory of Ukraine. Large amounts for political ads supporting the party came from the pages of its leaders, Ihor Palytsia and Oleksandr Shevchenko, who spent over USD 70,000 (almost UAH 2 million) and over USD 43,000 (over UAH 1 million), respectively. Although the "Nash Kray" party was not highly active at the beginning of the campaign, they increased their presence after the second half of September and spent over USD 150,000 (over UAH 4 million on Facebook ads. The "Servant of the People" party holds the third position in terms of social media campaigning costs, having spent almost USD 148,000 (almost UAH 4 million) on political ads during the monitored period.
Although the campaign was generally competitive, a key challenge remains: multiple repeated cases of violated election standards and unsatisfactory statistics for minor electoral fraud recorded by law enforcement and OPORA observers. In October, the most frequent violations of electoral law detected by OPORA observers related to the placement and dissemination of printed campaigning materials. These lacked source data, and printed campaigning materials were often placed in unauthorized sites (as of 22 October, the total number of verified cases went over 700). Smaller numbers, but no less serious, were recorded for cases of indirect voter bribery, such as the unlawful handing out of goods and services to voters (over 60 cases, but with decreased intensity in recent weeks). There were additional repeated cases of administrative resource abuses (48 cases in total). The actual scale of these abuses is much higher in terms of breaking democratic standards of elections rather than formal legal rules. In addition to irregularities related to campaigning, the most common types of breaches were cases of procedural infringement by territorial and precinct commissions related to the implementation of stages in the formation of election commissions, holding opening meetings, registration of candidate lists, and the production of ballot papers (a total of 84 verified cases).
OPORA observers conducted systemic monitoring for obstructions to candidates' and local political party organizations' activities, which included cases of damaging their campaigning materials and reports from election agents about illegal actions directed at them. The organization, therefore, states a considerable conflict level within the election process. This included a series of attacks on candidates and their campaigners and damage or destruction of their property and campaigning materials. Candidates also reported frequent obstruction to their activities, which requires due investigation by the National Police of Ukraine. OPORA calls upon Ukraine's law enforcement bodies to actively control the situation involving possible clashes or confrontation during elections and to respond resolutely to violence against electoral actors, especially during the stages of voting, vote count, and the establishment of voting results
According to the National Police, since campaigning began at 7am on 20 October, they have registered 5,881 claims and reports relating to the election process. Charges were served under two criminal proceedings under Article 160 of the CC (voter bribery) in Kyiv and Odesa Oblasts, and under two criminal proceedings under Article 157 of the CC (obstruction to the exercise of suffrage) in Dnipropetrovsk and Kirovohrad Oblasts. Twenty-two criminal proceedings were dismissed: 11 cases – under Article 160 of the CC (voter bribery), 9 – under Article 157 of the CC (obstruction to the exercise of suffrage), 2 – under Article 158 of the CC (submitting fake data to the register), 1 – under Article 159-1 of the CC (breaking the rules for election campaign funding). The total number of protocols on committing an election-related administrative offense filed by the police is 1,367.
The Unified State Judicial Register published almost 200 court decisions; 73 decisions were redirected to the police for proper filing. About 80 cases resulted in guilty verdicts. In 48 cases, proceedings were either dismissed due to lack of evidence or constituent elements of an administrative offense, or the court only issued a verbal warning.