Concept of the amended Law of Ukraine on the Election of People's Deputies of Ukraine
1. Election system
The need to change the election system used for the parliamentary elections has been discussed for a long time already. As a result of this discussion, international organizations, politicians, experts and civil society representatives have reached a consensus about the need to hold elections to Ukrainian Parliament under the open-list proportional representation system. In 1755, the Parliamentary Assembly of the Council of Europe emphasized in its Resolution 1755 (2010) that Parliamentary elections in Ukraine should be held under proportional representation electoral system based on open election lists and regional election districts. Recommendations regarding introduction of regional open-list proportional representation system were also given by the Venice Commission, particularly in its opinion on the Law of Ukraine on Elections of People's Deputies in 2011. Regional open-list proportional representation system allows to eliminate drawbacks of closed-list proportional representation and mixed (parallel) electoral systems used to organize parliamentary elections in Ukraine in 2012 and 2014.
In contrast to majoritarian systems, proportional representation electoral system do not cause loosing many votes given for parties not overcoming the election threshold or those not participating in the distribution of mandates for various reasons. It also secures the balance between political configuration of the Parliament and real level of support the certain party receives. Besides that, this system considerably decreases the risk that some places in the Parliament will remain vacant. As long as elections under proportional representation system are usually held in quite large districts, it decreases the probability of different abuses (misuse of administrative resources etc) influencing the election results. This electoral system will also facilitate institutional development of parties, while elections under majoritarian system makes parties institutionally weaker, what is proved by the results of its application in Ukraine. However, proportional representation electoral systems, especially if held in some multi-mandate districts, have more complicated voting process, vote count and determination of election results if compared to majoritarian systems. Thus, a wide-scale awareness campaign should be held for the voters and members of election commissions.
In contrast to the closed party list proportional system, regional open-list proportional representation system gives the voters an opportunity to influence the priority of candidates nominated by a party for distribution of seats in the Parliament. Thus, it facilitates the renewal of political elites and development of inter party democracy. At the same time, this system is very flexible and allows to control to which extent the party lists are closed in order to balance the renewal of political elites and influence of party leaders. However, if a wrong type of open-list system is chosen, parties will become weaker and the Parliament inefficient, what is usually observed when elections are held under majoritarian systems.
There is no point of comparing the open-list proportional election system and parallel electoral system used for organization of 2012 parliamentary elections, as long as the parallel system has all the drawbacks of majoritarian system and closed-list proportional election system.
Of course, not only majoritarian, proportional, and mixed electoral systems can be used for parliamentary elections. A lot of countries use other systems that have never been used in Ukraine (Ireland, Malta, Germany, Australia, Japan etc.). However, application of these systems in Ukraine can result in unpredictable political consequences, or make the voting process, vote count and determination of voting results much more complicated what may increase the risk of election fraud influencing the results.
Thus, in order to facilitate the renewal of political elites and development of inter party democracy as well as to decrease the fragmentation of factions, it was proposed to conduct parliamentary elections under the proportional representation electoral system with open party lists in multi-mandate election districts. Besides that, in short-term and mid-term perspective, it would be good to prohibit self-nomination in order to preserve stable faction division in the legislative body.
2. Territorial election organization
As long as many parties can participate in the election process as electoral subjects, amendments to the Law of Ukraine on the Election of People s Deputies of Ukraine should secure that parties couldn't nominate a lot of candidates in multi-mandate districts. Thus, electoral districts may contain either one or some oblasts, or even their parts. In this case, the Law should determine district boundaries or establish strict requirements to the districts (adherence to the principle of boundary continuity, taking into consideration of the boundaries of raions and cities of oblast significance, districts should contain equal number of voters with maximum deviation of 10-12% from the average number). If the Law will not establish district boundaries, the CEC should be obliged to check from time to time (before the beginning of regular elections) whether the district division corresponds to Law requirements. Another possible way is to create districts according to the Law #1068-2 (introduced by the MP of Ukraine V. Chumakov and others). However, if many parties will nominate candidates, the vote count process and determination of election results can be complicated due to the large number of candidates in districts.
As long as there is no point to create a separate overseas polling station (candidates and parties cannot finance the campaign abroad and election commissions cannot control the observance of electoral legislation outside Ukraine), all overseas polling stations should belong to one multi-mandate election district (for example, a district in Kyiv city).
3. Nomination and registration of MP candidates
Only duly registered parties should be eligible to nominate candidates. Thus, parties should submit two lists of candidates: lists for the corresponding regional districts and a list for the nationwide election district including all candidates nominated by parties in multi-mandate districts. In both types of lists, it's better to place candidates in the priority determined by a party. Such approach will give the voters an understanding in which priority a party sees the role of candidates in the certain district, and secure distribution of compensatory mandates the candidates which were not supported by the voters for some reason (party leaders, officials, party donors etc.).
In order to prevent so-called "technical” political parties from participation, the monetary pledge should consist of 2,000 minimal wages. The pledge should be returned to the parties which overcome the electoral threshold and (optionally) to the parties which receive 4% of valid votes.
The Law should provide the precise and exhaustive list of reason for refusing to register candidates in order to prevent violent or unjustified interpretation of such reasons by the CEC.
4. Formation of election commissions and their powers
The elections under open-list proportional representation system should be organized by three-level system of election commissions including the CEC, territorial election commissions and precinct election commissions. Elections in a multi-mandate national district should be organized by some TECs, and the results in the certain districts should be determined by the CEC.
In order to minimize the number of misuses occurring during the draw of lots organized to determine members of PECs and DECs nominated by parties, which were usually detected during the previous national elections, amendments to the Law of Ukraine on the Election of People s Deputies of Ukraine should determine that each participating party can nominate 1 candidate to each TEC and DEC, and these candidates should be included to the corresponding TECs and DECs provided that they correspond to established requirements.
In order to decrease the number of "technical” parties participating in the election process and urge electoral subjects to participate in formation of election commissions, parties should be obliged to nominate members to at least 2/3 of all TECs and DECs (to small, average, and large commissions separately). It would be reasonable to establish that all members of PECs and DECs nominated by the certain party will be withdrawn if it fails to meet the abovementioned requirement.
It would be also reasonable to amend the Criminal Code of Ukraine establishing that nomination of election commission members and all the submitted documentation are electoral documents, and their falsification can result in criminal charges. Electoral subjects nominating election commission members are responsible for authenticity of such electoral documents.
As long as the voting process under the open-list proportional representation electoral system is quite complicated, the CEC should be responsible for organization of awareness campaign to explain voters the procedures regulating the voting process and determination of election results. The corresponding awareness campaign should start after the new wording of the Law of Ukraine on the Election of People s Deputies of Ukraine enters into operation and during the election process. The CEC should secure the production of information posters explaining the voting procedure for each polling station. Such posters should be placed in each polling booth on the election day. Members of PEC responsible for issuance of ballots to voters on the election day should be also obliged to explain voting procedures to them.
It's also worth to oblige the CEC to determine the rules of filling in the precinct protocols and protocols summarizing the results of voting in multi-mandate districts long before the election day (for example, within 10 days after the beginning of the election process), and to explain the procedure of filling in the corresponding protocols to TECs and PECs (seminars, trainings etc.).
5. Compiling and updating voter lists
The Law should ban any changes made in voter lists (besides correcting errors and mistakes) on the election day. Al electoral disputes regarding voter lists must be resolved 3 days before the voting day so that court decisions could be taken into consideration of State Voter Register maintenance bodies when compiling final voter lists. Therefore, the deadline for challenging decisions of State Voter Register maintenance bodies on non-inclusion, inaccurate inclusion in or exclusion of voters from voter lists should be not later than 5 days before the voting day.
6. Election campaigning
Due to the need to cut expenses on the organization and conduct of elections, it's worth to cancel printed election programs and airtime on radio and television financed from the state budget. Budget funding should cover only printing expenses for lists of MP candidates in the corresponding multi-mandate districts (in a specified number of copies depending on the size of a polling station) that must be placed in polling booths. The Law should establish that these lists are not a part of election campaign. If the registration of candidates is canceled during the election process, PECs should put stamps “Removed” in such lists. Individuals using such stamp in a wrong way (contrary to the CEC decision or without the corresponding decision) shall bear criminal responsibility for their actions.
To ensure a due discussion between candidates nominated by parties, the Law should provide mandatory debates between parties on national TV channels. Such debates should involve only first five candidates from the list of MP candidates nominated in nationwide election district.
In order to cut the funds parties and candidates spend on election campaigning, its worth to prohibit outdoor political advertising during the election process, and consider the possibility of prohibiting or limiting (for example, limited duration of campaigning videos, audio recordings etc.) the placement of political advertising on radio and television. The certain amendments should be made to the Code of Administrative Offenses establishing responsibility for violation of such limitation by advertisers in a form of a fine.
As long as the results of sociological polls are usually being manipulated shortly before the election day, they should be published not later than in 7 days before the voting day.
As long as most of the parties don't follow the rule that all campaigning should be stopped and removed till 12 p.m. of the last Friday before the election day, and communal services usually cannot remove all printed campaign materials, it's worth to consider possible cancellation of prohibition on campaigning on the eve of the election day and during the election day itself. Parties and candidates should have the right to disseminate printed campaigning materials (information leaflets, flysheets) on the election day.
MP candidates should also have an opportunity to disseminate campaign materials at special polling stations (through administration of the corresponding establishments or institutions under supervision of PECs), and to meet with the voters in such polling stations (in accordance with the schedule of the corresponding institutions and establishments) on dates established by the corresponding PECs and approved by administrations of institutions and establishments. TECs should inform the parties and candidates about the dates established for the conduct of the corresponding meetings not later than the notification date established by the Law (for example in 3 days before the meeting).
7. Financing of campaigning activities
As long as limitation of campaign contributions results in shadow financing of elections in Ukraine, the Law of Ukraine on the Election of People's Deputies of Ukraine shouldn't establish any limits on the size of electoral funds or the maximum amount of campaign expenses made by parties and candidates.
Both parties and candidates should create election funds. Providing that open-list proportional representation electoral system will be used, meaning that the voters will vote for the certain candidates, it's worth to give the corresponding right to candidates so that they could advertise themselves, their programs and plans for parliamentary activities. All the parties and candidates must open electoral funds within the established term after the CEC registers them.
The parties should be eligible to open electoral fund accounts both for general campaigning in the nationwide district and in the certain multi-mandate districts.
Full reports on the receipt and use of such funds should be published by the CEC. Besides that, election fund managers should submit such reports both before the election day (interim reports) and after the voting (final reports). Interim reports should cover the longest period possible before the voting day (for example from registration of a candidate to the 7th day before the election day). Managers of electoral funds must be brought to administrative responsibility if they fail to submit such reports.
In order to make parties and candidates less dependent on the limited number of donors, the maximum size of contribution made to election fund should be equal to 50 minimum wages.
8. Voting, vote count, and determination of election results
The voters should have the right to vote both for the list of candidates nominated by the certain party in multi-mandate district and for the certain candidate in such list. Such approach will help to decrease the level of inter-party competition between candidates from one party.
To cast a vote, one should write the number of a chosen party and (optionally) the number of a candidate from the list of a chosen party. The parties should receive their numbers by the draw of lots conducted by the CEC after the registration of candidates.
As long as a lot of candidates from various parties are likely to participate in elections held under the open-list proportional representation electoral system, it's worth to reconsider the procedure of filling in vote count protocols and determination of election results. This procedure should allow to promptly correct mistakes or errors in numbers and fast production of original protocols in the required number of copies. For example, these protocols could be filled in and printed with the help of the Vybory Information and Analytical System.
Taking into consideration the peculiarities of the open-list proportional representation electoral system, election results should be determined by the CEC.
It sounds reasonable that mandates should be distributed between parties which receive not less than 5% of valid votes in nationwide election district. Although such threshold is going to decrease the chances of small and new parties to get into the Parliament, it will also decrease the risk of forming a new parliament that is inefficient because there are many MPs supported by voters only in the certain districts (regional parties).
To secure the equal "price" of the mandate (i.e. the number of valid votes necessary to receive a mandate), the electoral quota should be determined on the national level by dividing the total number of valid votes by the constitutional complement of the Verkhovna Rada of Ukraine. To compensate possible deviations from the principle of proportional representation resulting from the voting in multi-mandate districts, the mandates should be divided in three stages: (1) on the national level (determining the number of mandates received by each party which has overcome the electoral threshold with the use of simple quota and the largest remainder method); (2) on the level of multi-mandate districts (determining candidates which are considered to be elected as MPs in the certain multi-mandate districts by dividing the number of valid votes a party received in a district by a quota; determining the number of mandates received by a party in a district and candidate who are going to receive these mandates (candidates having the largest fractional remainders after the votes cast for them were divided by a quota will have the right of priority during the distribution of mandates); and (3) on the nationwide level (dividing the remaining mandates left after their distribution in multi-mandate districts between candidates nominated by a party until all the mandates the party received are distributed (candidates having the largest fractional remainders after the votes cast for them were divided by a quota will have the right of priority during the distribution of mandates).
The Concept is developed by: Civil Network OPORA, Ukrainian Center for Independent Political Research and Internews-Ukraine, supported by the International Foundation for Electoral Systems.
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