The most prevalent cases of electoral misconduct in September in Ukraine related to illegal campaigning, according to Civil Network OPORA, who shared their findings at a press conference on October 2nd in Kyiv. However, OPORA considers the most alarming cases, with the gravest consequences for the democratic election process, to include material incentives for voters and abuse of administrative resources.
Transparency regarding the source and scope of funding for anti-epidemic measures would be indispensable, but this is currently unavailable. Elections are also rendered unstable due to pending decisions on changes to the Electoral Code (draft laws No 3971 and No 4117), which would regulate specific electoral procedures. This would include the grounds for accepting or rejecting the validity of ballot papers under the proportional system. Parliament has failed to secure legal certainty both when approving the final version of the Electoral Code and during discussions on its further improvements.
OPORA notes the Central Election Commission (CEC)’s due professional level in exercising its powers in local elections and commends the Commission’s efforts to inform voters and secure citizens’ voting rights. According to Olga Aivazovska, chair of the board at the Civil Network OPORA, from July 1st, to September 10th, 2020, about 100,000 voters changed their electoral address to cast their votes in their current place of residence. However, there remains a lack of definite consequences for electoral fraud, and individual polling stations appear to have experienced suspicious growth in voter numbers. OPORA plans to scrutinize polling stations and calls upon law enforcement bodies to observe them closely.
Flaws within certain provisions in the Electoral Code force the CEC to offer additional explanations for election procedures. In some cases, descriptions from this higher election administration body are excessive, for example, regarding indirect voter bribery or the ballot paper format. In elections conducted under the proportional system, candidates from party organizations appear on ballots listed numerically 1-12, with no zeros before the numbers 1-9 inclusive. This contradicts previous information given to voters, including information provided in CEC awareness campaigns.
"As of today, the ballot template has been adopted, but it is at odds with candidates’ election campaigns. If you take a closer look at campaigning materials, you can see that most candidates are promoting their numbers in the format of 01, 02, 03, whereas the final version of the ballot paper will include numbers with no 0 in front, configured as 1 to 9, in single digits, followed by 10, 11, 12. Candidates have not been informed about the difference in these numbers, which must be entered into the ballot paper. We believe this creates confusion and threatens the result, as the candidates themselves have already caused potential chaos in the campaigning process by specifying which number to include on the ballot paper. Additionally, including a box with two slots for numbers (of which one will be empty) means that extra numbers could be added to ballots. If a voter supports candidate No. 1 and marks this in the first slot of the two-digit box, a 0, 1, or 2 might be added. It offers three options for changing a vote, which will certainly impact the final results," – states Olga Aivazovska.
The CEC granted permission for observers from 116 non-governmental organizations (NGOs), and rejected such requests from 6 NGOs. 4 NGOs’ requests were denied for missing the deadline to apply. In 2 cases, the NGOs’ statutory activities did not cover any election or observation-related aspects. As in recent national and local elections, the CEC mandates for official observers were received by NGOs relating to political parties and candidates, among others. Certain NGOs’ links to political parties pose risks for the non-partisan observation process and could lead to politically-biased conclusions of observations.
Due to the impossibility of local elections in the 18 local communities of Donetsk and Luhansk Oblasts, electing district councils in these areas has been problematic. The decision not to conduct local elections in these Hromadas concerns 475,000 voters and inhibits the representation of common interests of territorial Hromadas on the district level. At the same time, elections of deputies to district councils in the government-controlled territories of Donetsk and Luhansk Oblasts will take place. OPORA has highlighted multiple times the lack of clear justifications for decisions taken in the civil-military administrations or the criteria for their drafting.
According to Oleksandr Kliuzhev, a senior analyst at OPORA, the nomination of candidates at local elections is a crucial part of the election process. Oblast party organizations enjoy priority in this procedure, whereas other party organizations (at the town, village, or township level) may exercise this right only in the case of an oblast party organization without a nominated candidate. Such “centralization” of the candidate nomination process at local election results from key parliamentary parties’ interests that do not usually have a broadly ramified network of regional centers. Therefore, the candidate nomination process ran into issues such as a lack of access to nomination conferences for journalists and observers, and the low motivation of political parties to provide transparency regarding these events.
"OPORA observers paid particular attention to party conferences. Why is this so important? Firstly, it enhances internal party democracy. It also reduces the risk of replacement of candidates after the final approval of election lists. Regretfully, candidate nomination and registration processes presented cases where there were grounds to believe that a certain rotation was taking place in the party lists, without any conference mechanism. They intended to shift the positions of leaders to maintain the gender balance on the lists. What are the key issues we identified at the stage of candidate nomination? Firstly, parties have a low interest in making their conferences open and transparent for journalists and observers. their conferences for journalists and observers. Quarantine restrictions would often be used as a formal argument not to allow journalists or observers to attend such meetings. However, our representatives believe that the key intention was to hold the conferences behind closed doors, especially if we consider the introducing rotations to the submitted candidate lists.
Moreover, several party organizations failed to meet the requirement of notifying the TEC about their conference. This is a breach of the general procedures for candidates at local elections, and it may serve as a reason to reject a candidate’s registration. Many parties failed to notify the mass media about the scheduled conferences, only posting announcements on their official websites, which were difficult to locate. According to our estimates, 50% of the 226 conferences attended by our observers did not notify the mass media that they had scheduled a conference and provided no information on venues or their location," - says Kliuzhev.
According to OPORA observers, the application of new electoral law was a key challenge for territorial election commissions, since they lacked time to familiarize themselves with it. A lack of awareness of electoral subjects and the ambiguity of specific provisions of the Electoral Code caused local party organizations and candidates to make mistakes and led to controversial decisions by TECs. In some cases, observers recorded conflicts between candidates and TECs, with elements of politically-motivated actions taken by TECs. Similar to the previous elections, there were issues with the non-uniform application of the law by election commissions in similar situations. These related to several concerns, including registration and rejection of registration of party lists compiled against gender quota rules, monetary deposits, the inclusion of other party members on party lists, lack of notice for party conferences, to name a few.
According to Oleksandr Kliuzhev, the candidate registration process was also undermined by cases in which so-called ‘clone candidates’ were registered with identical personal data to actual electoral participants. This occurred in Dnipropetrovsk, Transcarpathia, Kyiv, Luhansk, Odesa, Kherson, and Chernihiv Oblasts. Should voters confuse a popular leader with ‘clone candidates,’ it would distort the final voting results and violate the actual participants’ voting rights during the pre-election campaign.
Campaigning, Administrative Resources, and Electoral Charity
According to Oleksandr Neberykut, an analyst at OPORA, campaigning should begin after registering candidates and the releasing relevant election funds, which took place this year from September 15th to 24th. However, OPORA observers have noted active campaigning by 73 political parties before that date. Many more mayoral candidates and deputies to various councils independently launched their early campaigns. These potential candidates for local mayors styled themselves as self-nominated, claiming to be “independent” while still enjoying public support from individual parties. The most typical violations in the context of campaigning were: placement of campaign materials without any source data, posting them in places prohibited by law and in violation of landscaping rules, early placement of campaign materials before registration, and opening of election funds by parties and candidates.
“There are many such cases, but we understand that this is an administrative responsibility, so the risks for electoral subjects are reduced. Even if they do it knowingly (since some are ignorant of the law), they do not consider paying a fine as a risk. Fortunately, the police have a quick response to such situations. The third campaign after the presidential and parliamentary elections allows for the proper documentation of these occurrences. However, the number of such cases is so large that it is virtually unrealistic to record all of them. This is just the tip of the iceberg. Unmarked advertising is, essentially, not accounted for within the election fund. A huge amount of money is spent on it, and if it is recorded, there is no source data. We can refer to this form of campaigning as ‘shadowing,’” says Oleksandr Neberykut
As to the scale of campaigning activity in the regions, five political parties take the lead: “Servant of the People,” “For the Future,” “European Solidarity,” “Batkivshchyna” AU, and “Nash Kray.” They conducted full-fledged national campaigns in every region of Ukraine. In addition, three parties (“Opposition Platform - For Life,” “Proposition,” and “Palchevsky Victory”) are represented in campaigning events in most regions of Ukraine. Ten other political parties are actively campaigning in many regions of Ukraine, rather than on a national scale. The remaining active participants in the local elections (over 50 parties) concentrated their campaigning activities within specific oblasts. The most prominent local mayoral campaigns are campaigns by candidates for local mayors in district and regional centers; the most visible are representatives of the “Servant of the People” (active in 73 districts and 15 Oblast centers). The parties “For the Future” and the “Batkivshchyna” All-Ukrainian Union have a relatively smaller number of potential candidates for the position of local mayors of district and Oblast cities, who were actively running campaigning activities. However, the numbers are still significant on a Ukrainian scale.
“In the election process and candidate registration stage, certain charitable activity may be regarded as voter bribery, in legal terms. In this context, the activities of charitable foundations can represent a threat. These charities are considered by unscrupulous candidates as a semi-legal tool to offer voters financial assistance for electoral purposes (such funds are most active in Kyiv, Volyn, Ivano-Frankivsk, Sumy, Vinnytsia, Odesa, Luhansk, Ternopil, Kharkiv, and Poltava Oblasts). Given that the law formally prohibits charitable organizations from participating in election campaigning, such activities are covert in practice and are not positioned as de jure campaigning,” says Neberykut.
Many recorded incidents relate to the beginning of the new school year and the organization of public campaigning events directly targeting the audience of schools and higher education institutions (teachers, parents, students, and lecturers). This form of campaigning is most often found in regional centers and large cities - both exercised by deputy and mayoral candidates (mostly self-nominated). Some local political party organizations that occasionally resorted to pre-election charity events in August (including “Batkivshchyna,” “European Solidarity,” “Opposition Platform – For Life,” “Svoboda,” and “Servant of the People”) continued this common practice in the first half of September. These included various entertainment events for children and youth, football, chess, athletics tournaments, celebrations of city days (as well as those in villages and towns), accompanied by party symbols. Children, socially vulnerable groups, and socially-oriented institutions (schools, kindergartens, boarding houses, and hospitals amongst others) received gifts. At the end of September, the scale of pre-election philanthropy decreased due to the end of the candidate registration process and the risk of prosecuting electoral subjects for voter bribery.
According to Oleksandr Neberykut, a separate form of indirect bribery that is gaining ground is the promise of material benefits or other socio-economic benefits to voters, in exchange for support and on condition of the candidate’s election. The danger of negative consequences of such abuses increases when the election promise concerns public resources expenditure, which can be further classified as misuse of budgetary administrative resources. In addition, the threat of the COVID-19 pandemic also encourages candidates to use the topic not only for campaigning and voter mobilization but as an additional incentive to provide material benefits (such as free tests for coronavirus antibodies), which presents elements of voter bribery.
In September, in addition to an increased number of electoral misconduct cases of using various forms of administrative resources (staff, facilities, budget), there was also an increase in the number of officials and civil servants resorting to this type of abuse. While in August, the sporadic law-breakers were mostly heads of regional state administrations, in September, the level of involvement increased in the campaigning activities of heads of district councils and administrations, as well as city mayors. Officials who have registered as candidates for local mayors not only continue in office during the campaign but have intensified their public activities, using their status and reputation to mobilize voters for their support. Following the civil service legislation requirements, officials are required to observe political independence and neutrality in the performance of their official duties. OPORA observed that officials who are subject to the electoral process rarely succeed in complying with the legal requirement of political neutrality in the workplace in the context of the electoral process. Such situations show signs of conflict of interest and may undermine trust in the integrity of the electoral process, or the activities of public administration bodies.
OPORA has increasingly recorded the unlawful and unauthorized collection of voters’ personal data during campaigning. This happens especially under the guise of a questionnaire or by recording participants’ contact details at public events organized by parties and candidates (Vinnytsia, Lviv, and other oblasts). The increase in the intensity of campaigning is accompanied by an increase in conflicts and public confrontations between opposing candidates and parties, which can amount to discrediting methods, black PR, campaign obstruction, and property damage.
Moreover, election costs are pushed further into the ‘shadows’ by the legal uncertainty surrounding social media campaigns, combined with the impossibility of payment directly from the election fund for social media political advertising. It also creates unequal conditions for electoral subjects. In September, OPORA held a monitoring event for parties and candidates using political ads on the social media platform Facebook. According to the Political Ads Library, over 36,000 ads with political content were posted on Facebook, costing USD 1,150,000 to USD 1,400,000 (for comparison, in August, 20,000 posts were published on Facebook, for the total amount of USD 400,000). Facebook political ads were used by 35 political parties, with a total cost of almost USD 400,000. In mayoral campaigns, the candidates for mayor of Kyiv and Lviv were especially active in social media advertising.
“When it comes to political entities, the “For the Future” party takes the lead. They spent USD 103,291 and shared 3,728 posts with political elements on 30 different social media pages. The next most active was “Nash Kray,” who started actively spending on political advertising in September. During this month, the party spent over USD 64,000. The third highest spender was “Servant of the People” (USD 42,000), followed by “European Solidarity” (USD 35,000) and “Palchevsky Victory” (USD 28,000),” says Olga Aivazovska.
Police and Courts
OPORA calls on the National Police of Ukraine and other law enforcement agencies to actively respond to allegations and reports of voter bribery and other illegal activities, as well as to promptly inform the public about the interim results of relevant investigations.
According to the National Police, as of October 1st, some 1,808 election-related reports and notifications have been registered. The total number of protocols on administrative offense filed by the police is 271. 150 criminal proceedings were initiated, of which 83 cases relate directly to the violation of electoral law. There are fivecharge papers served on criminal proceedings, ten criminal proceedings closed, and 137 criminal proceedings under investigation.
Due to the election process’s excessively tight deadlines, it is difficult for territorial election commissions to appeal against procedural violations. Appeals against many violations were complicated by the lack of registered candidates and political parties. Potential candidates and parties had the opportunity to challenge the decisions, actions, and inactions of TECs only if the violation was limited to the voters’ personal rights. In 5 court proceedings, the inaction of the Central Election Commission was appealed; in all cases, the decisions confirmed the validity of the CEC’s legal position. 13 lawsuits concerned appeals against decisions of territorial election commissions on the division of constituencies.