CONCEPT OF THE AMENDED LAW OF UKRAINE ON THE ELECTIONS OF DEPUTIES TO THE VERKHOVNA RADA OF AUTONOMOUS REPUBLIC OF CRIMEA, DEPUTIES OF LOCAL COUNCILS, VILLAGE, TOWN AND CITY HEADS

1. Duration of the election process

Taking into consideration the changes in election systems to be used for organization of local elections, the procedure of election commission formation, and peculiarities of candidate registration, the duration of electoral process should be extended to 90 days.

2. Electoral systems for local elections

We propose to hold elections to village, town, city (besides councils in large cities ), raion in city and raion councils under majoritarian system with one or some multi-mandate election districts, where from 2 to 5 councilors can be elected. Each voter should have the right to cast one vote. Candidates which receive the largest number of votes in the corresponding multi-mandate election district should be considered elected. The number of mandates should be determined for each district.

Such election system has a number of advantages if compared with other election systems. For example, in comparison election by a relative majority system in single-member districts, the proposed system will decrease the number of votes lost (i.e. votes given for candidates who didn't win a mandate), doesn't require conduct of interim elections in case of early withdrawal of a councilor (as long as a candidate following him by a number of voters will be considered elected), and doesn't require division of a multi-apartment building or a street between some districts. Another advantage of this system in comparison with the absolute majority system is that it’s not going to increase expenditure on preparation and conduct of elections. In contrast to the mixed election system, the proposed electoral system ensures that raion councils elected under this system represent common interests of territorial communities. One more advantage of the proposed system in comparison with the mixed system is that it allows the voters to vote for the certain councilors in all districts within the corresponding administrative-territorial unit. As for the drawbacks of the proposed electoral system, we have to mention that the misuse administrative resource and voter bribery are likely to influence the election results, but minimization of such influence more depends on the efficiency of law-enforcement bodies than on the choice of election system.

According to the Coalition Agreement, elections to local councils (besides village and town councils) should be conducted under open list proportional representation system. However, we are convinced that it's not reasonable to use this system for elections to local councils, besides oblast councils and councils in large cities, due to the following reasons: 1) organization of the voting, vote tabulation, and determination of election results can be complicated if some elections are conducted under open list proportional representation system; 2) authority of raion and raion in city councils does not spread on political issues and, therefore, their partisanship is not necessary; 3) open-list proportional representation system can be efficient only if there are 12-13 mandates per district. Thus, membership of the corresponding councils (especially raion councils) can increase if such system is used for organization of elections. It should be mentioned that shortening of local council membership is one of the tasks under the Coalition Agreement.

Under the proposed election system, district boundaries (with exception of elections to raion councils) should be determined by territorial election commissions (TECs) responsible for determination of election results in the corresponding local councils. If elections are held in some multi-mandate districts, redistricting should be made on the principle of boundary continuity, and districts should contain equal number of voters (with maximum deviation of 10-12% from the average number). Within 3 days after regular or early elections are announced, TEC should analyze election districts on the basis of information provided by the corresponding State Voter Register maintenance body and, if districts do not correspond to the requirements established by the Law, TEC should pass a decision concerning the change of district boundaries. On the elections to raion councils district boundaries will be the same as boundaries of villages, towns, and cities of raion significance. Thus, raion TECs are not required to pass decisions on redistricting. The Law should determine the level of representation each territorial community has in raion council. However, the maximum membership of a raion council should not be established.

We propose to organize elections of village, town, and city heads (besides mayors of large cities) under the relative majority system, in accordance with the effective Law of Ukraine on the Election of Deputies to the Verkhovna Rada of Autonomous Republic of Crimea, Deputies to Local Councils, Village, Town and City Heads. Introduction of the absolute majority system is inexpedient due to the following two factors: 1) the need to save budget funds; 2) the absence of considerable confrontations between the corresponding heads and local councils, as well as budget resources and authorities.

However, we propose to use the absolute majority system for organization of mayoral elections in 30 large cities (with more than 90,000 voters [1]) Candidates can be nominated by local organization (oblast, or city - in Kyiv or cities of oblast significance) of the party, or they may nominate themselves. A candidate for mayor of a city should be considered elected if he/she receives more than 50% of valid votes. If none of candidates receives required amount of votes, a repeat voting should be conducted with two candidates who has received the largest number of votes.

Despite such system is going to result in a number of problems (additional expenses on repeated voting; low voter turnout on repeated voting; commission members representing candidates that do not participate in repeated voting are not motivated to fulfill their duties after the election day), it is going to increase the legitimacy of city mayors, give new local politicians more chances to be elected as mayors, and prevent election of mayors by absolute minority.

It's also possible to use a "nominal" absolute majority system to save state budget funds. Thus, if there is a large margin between candidates winning the 1st and the 2nd places (for example, 15%), the repeated voting is not held.

Elections of members to oblast councils and city councils in large cities (i.e. cities with electorate exceeding 90,000) are proposed to be organized under the open-list proportional representation electoral system, similar to those introduced by the bill #1068-2 to be used for parliamentary elections in Ukraine.

Territory of each city (if it's not divided into districts) will be divided in multi-mandate districts with continuous boundaries and 7-12 MP candidates. If a city is divided into districts, elections are to be held in multi-mandate districts with continuous boundaries based on boundaries of city districts and with 7-12 candidates for members of a city council in each district. The corresponding city election commissions should pass resolutions on the creation of election districts. Oblast election commissions are not going to pass resolutions on the creation of electoral districts, as long as boundaries of these districts will coincide with boundaries of the corresponding cities of oblast significance. Each district can have from 7 to 12 registered candidates for members of oblast council. Candidates for oblast and city councils should be nominated by oblast (city) party organizations (i.e. there is no self-nomination). Each party should provide a general list of candidates in oblast (for oblast council elections), a general list of candidates in a city (for city council elections), and lists of candidates in the corresponding multi-mandate districts to form the abovementioned lists. Local party organizations which receive more than 5% of valid votes (but not less than election quota in oblast or city) should have the right to participate in distribution of mandates in oblast and city councils. Election quota should be determined through dividing the number of votes given for all party lists (in oblast or city) by the total membership of the corresponding council. The membership of a city or oblast council depends on the number of multi-mandate districts, number of candidates which can be nominated, and number of voters in the corresponding districts. The bill #1068-2 determines basic principles of mandate distribution between party organizations and candidates in the corresponding lists. Here are some possible ways of voting under the proposed system: 1) a voter writes in (selects) a sequence number of candidate in ballot paper; no voting for a list of candidates in multi-mandate district; 2) a voter writes in (selects) a sequence number of party organization which nominates a list of candidates in multi-mandate district and, optionally, the certain candidate in this list.

The proposed system will secure better representation of common interests of territorial communities in oblast councils (in comparison with the current one); decrease the influence of the administrative resource and bribery on election results (in comparison with majoritarian systems); facilitate the development of local party organizations in raions, cities, and oblasts; enhance inter party democracy; prevent dispersion of political views in the corresponding councils; balance interests of the voters and the parties in selection of the certain candidates.

3. Elections on occupied territories and in the ATO area

It is proposed to establish the procedure of holding elections on territory of the Autonomous Republic of Crimea, city of Sevastopol, and the area of anti-terroristic operation in Donetsk and Luhansk oblasts by a separate law.

4. Election commissions

All elections should be administered by TECs and PECs. TECs in villages and towns can also have powers of PECs in the number of voters in the certain village is not higher than the maximum number of voters in a large polling station. If elections are held simultaneously, the TECs of lower level will execute powers of higher-level TECs which will determine results of the corresponding local elections.

We propose to establish that high-level election administration bodies should be responsible for election commission formation. Thus, the CEC should form oblast election commissions and Kyiv city election commission; oblast election commissions should form raion election commissions and city (in cities of oblast significance) election commissions; city election commissions (in cities that are divided into districts) should form raion in cities election commissions; raion election commissions should form village, town, and city (cities of raion significance) election commissions. Village, town, raion in city, and city councils shall, for their part, form PECs.

On one side, such an approach will allow to distribute between different election administration bodies the following authorities: formation of election commissions; early withdrawal of commission members; ascertainment of electoral legislation violations and consideration of complaints concerning election law violations. On the other side, if commissions are formed in such order, some abuses may appear during formation of raion and city TECs by oblast election commissions, and the duration of TEC formation may increase.

Thus, it's reasonable to use the current way of forming TECs, when oblast, raion, city (cities of oblast significance) and raion in Kyiv city election commissions are formed by the CEC, and all the other lower-level commissions are formed by the corresponding TECs that are formed by the CEC. Such an approach will help to prevent abuses that can appear during formation of raion and city TECs (as long abuses in the CEC are less likely to appear than in lower-level commissions), and shorten the period of election commission formation. However, it has a drawback: the CEC will have more functions and responsibilities related to the formation of election commissions, early withdrawal of commission members, and settlement of electoral disputes. In any case, local councils and local self-government bodies should not participate in election commission formation. This will allow to secure efficient implementation of court decisions related to formation of election commissions, withdrawal of their members, depoliticization of election commission formation, and reduction of abuses committed during formation of election commissions or withdrawal of election commission members.

Besides that, each TEC should have members nominated by registered local party organizations. Raion organizations of the corresponding parties should have the right to nominate candidates for village, town, and city (in cities of raion significance) commissions. Self-nominated candidates that are electoral subjects will also have an opportunity to nominate candidates for PEC members. Thus, every electoral subject should have the right to nominate one candidate which cannot be rejected if admissible under law.

It's worth to establish for mayoral elections held under the absolute majority system that authority of PEC members should be early terminated after the repeated voting is scheduled, and mayoral candidates are eligible to nominate equal number of candidates for members of PECs in large, average, and small polling stations, to ensure that PECs have the smallest possible membership.

We propose to leave the current regulation of TECs and PECs (work forms; quorum requirements; procedure of transferring and receiving electoral documents etc.) without changes, as it's laid out in the effective Law on Local Elections. We also propose to make the CEC responsible for organization of and trainings for election commission members concerning election administration and voter awareness rising (with citizen organizations involved in the development and dissemination of the corresponding materials). Awareness campaign should concern the election under open-list proportional representation electoral system in the first place.

5. Nomination and registration of candidates

Self-nomination should be available in all local election campaigns except for elections to oblast councils and councils of large cities. Electoral pledge is a condition for registration of candidates. It should be made by candidates themselves or by parties which nominate them, and the amount is determined by the number of voters in administrative-territorial unit. Cancellation of registration should be possible only due to a small number of reasons. Thus, a candidate violating electoral legislation should be brought to administrative or criminal responsibility with registration remaining valid.

6. Election campaigning

Local budget should be used only to finance the production of information posters for electoral subjects (local party organizations (on elections to oblast councils and councils of large cities) or candidates). All the other campaign expenses should be covered from electoral funds only. Similarly to parliamentary elections, it's proposed to prohibit the placement of outdoor political advertising as well as advertising on television and radio. Besides that, advertisers and the subjects spreading advertising should bear administrative responsibility for violation of the corresponding prohibitions. We propose not to establish the maximum size of campaign funds and campaign expenses. Opening of a campaign fund account should be an obligation but not a right of the corresponding electoral subjects. Candidates for members of oblast councils and large city councils nominated in multi-mandate districts should not have the right to have personal campaign fund. Instead, their campaign expenses should be covered by local party organizations. Managers of campaign fund accounts should be responsible for reporting on the receipt and use of election funds before the election day (5 days before the voting day) and after the final election results are announced. The corresponding reports should be fully published by local printed media. As for elections to oblast councils, city councils of large cities and mayors of large cities, interim and final financial reports should be sent by the corresponding city and oblast election commissions to the CEC, which should publish them on its official website.

7. Voters lists

It's proposed to prohibit making any changes to votes lists on the election day (besides correction of mistakes and inaccuracies). Any requests for correction of inaccuracies should be submitted directly to a State Voter Register maintenance body, but not to a PEC. Besides that, time constraints established for submission of appeals concerning non-inclusion, wrong inclusion, or exclusion of voters from voter lists should be shortened, so that all electoral disputes related to these issues were resolved before State Voter Register maintenance bodies finalize voter lists.

Temporary change of the voting location without changing the election address is not recommended for local elections.

If a voter is in a stationary medical institution located outside an administrative-territorial unit of his/her registration, such voter will not receive ballot papers used to cast votes on the territory of the corresponding administrative-territorial unit.

8. Voting methods and ballot paper forms

Taking into consideration that different electoral systems can be used if local elections are held simultaneously, it's essential to established a maximally unified voting method, in order to avoid voters' confusion regarding a type of elections they participate in and the voting procedure they need to follow.

Thus, two types of voting methods could be used: 1) writing in the sequence number of a candidate in the list of candidates in the corresponding district (and the number of a party list if elections are held under open-list proportional election system, with an opportunity to vote both for a candidate in a list and for a party list in a multi-mandate district), and 2) writing in "+" or other mark to cast a vote.

The first voting method will help to cut expenses on the production of ballot papers, decrease the number of ballot boxes at polling stations and the size of packages with election documents. Thus, it will make the transportation and custody of election documents easier. At the same time, if such voting method is used, all lists of candidates/parties (if elections are held under the open-list proportional representation electoral system with possible voting for party lists) should be placed in voting booths during all elections held simultaneously, what can be quite difficult to achieve. Besides that, if a registration of a candidate is canceled, the stamp “Removed” should be used not in ballot papers, but in the lists of candidates placed in voting booths. Such lists can also be damaged or destroyed, especially during the voting process. Thus, each PEC should have large amount of copies. The production of such lists should be centralized and controlled by election administration bodies and electoral subjects. Another disadvantage of such ballot paper is that number of a candidate written in by a voter may be illegibly written and, as a result, such ballot will be not valid. Thus, despite production of ballot papers will require less financing, expenses on awareness campaign and production of information posters will increase.

On one side, the second voting method (writing in "+" or similar mark) is more habitual for a voter and doesn't require additional awareness-rising efforts. On the other side, it will require more expenses on ballot papers which are going to be bigger and additional ballot boxes will be needed. besides that, packages with electoral documents will be larger and their transportation will be more complicated, especially if many candidates are going to participate in elections. However, information posters of candidates/parties can be placed outside ballot boxes and include detailed information about the corresponding candidates (photo, biography etc.). Besides that, if registration of a candidate is canceled, the stamp "Removed" will be made in ballot papers, but not on information placards.

9. Major risks of changing the electoral system used for local elections

Increased membership of oblast and raion councils. Taking into consideration that elections to oblast and raion councils will be held under electoral systems which require election or nomination of a large number of candidates in each election district (2-5 for elections to raion councils and 7-12 to oblast councils), the membership of these councils (especially oblast councils) can significantly increase (up to hundreds of councilors in oblasts consisting of many raions and cities of oblast significance). This problem can be solved either by decreasing the number of mandates in the certain districts (only for elections to raion councils), or by increasing the territories of districts through inclusion of some adjacent raions (villages, towns) into it. However, cities shouldn't be joined to raions or vallages/towns.

Duration of the election process should be increased. In order to efficiently organize local elections scheduled for October 2015 (according to the Constitution) under the Law which radically changes electoral systems for local elections as well as the corresponding election procedures, more time should be spent on awareness rising, trainings for members of election commissions, campaigning, formation of election commissions etc. Judging from the experience of 2010 local elections, it's impossible to properly organize the electoral process during 60 days, and secure high-quality and fast solution of electoral disputes in court or out of court. Therefore, regular local elections should start in 90 days before the day of voting. Thus, the Parliament should adopt the new wording of the Law on Local Elections not later than May 2015.

Additional information and awareness campaign is required. After election systems and voting methods used for local elections are changed, information and awareness campaign should be held to explain the voters the voting procedure, how the winners are going to be determined etc. If information campaign is not held or is inefficient, the legitimacy of local elections held under new electoral systems can be in question, as long as the voters would understand neither the voting procedure, nor the procedure of mandate distribution, nor consequences of these new election systems. Information campaign should start immediately after the new Law enters into operation and, what is the most important, before the beginning of the election process. Besides that, it should continue during the whole period of the election process. The CEC should be responsible for the information campaign which must include printed, audio, and video advertising, leaflets, posters, booklets etc. Besides that, the CEC should actively cooperate with NGOs experienced in preparation of information materials and organization of citizen awareness campaigns related to elections.

Election commission members should be properly trained for implementation of election organization duties. Introduction of new electoral systems for local elections, especially open-list proportional representation system for elections to oblast councils and city councils of large cities, will require new trainings for members of election commissions. Such trainings should be duly financed by the state, and conducted right after the corresponding election commissions are formed.

The risk of discrediting the proportional open-list system. If organization of elections to oblast councils and city councils of large cities under the open-list proportional representation system is made inefficiently and not on a high level, the legitimacy of election results will be in question and, therefore, politicians and the voters themselves will not trust this system. As a result, they can decide not to use this system for 2019 parliamentary elections. Thus, the Government, election administration bodies, and NGOs must make any effort necessary to eliminate the abovementioned risk. They should organize high-quality awareness campaign for the voters, thorough trainings for election commission members, and provide interpretation of the new Law on Local Elections immediately after it's adopted.

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[1] The number of voters in the smallest oblast center (Uzhorod city) is 96,000. Only one city of oblast significance – Pavlohrad – has 90,000 - 96,000 voters registered (not including cities in Donetsk and Luhansk oblasts, the ARC, and city of Sevastopol).  There are 30 cities with 90,000 and more voters registered (including Kyiv). There are 7 cities with more than 90,000 voters in Donetsk oblast (Yenakiieve, Kramatorsk, Sloviansk, Horlivka, Donetsk, Makiivka, and Mariupol), Luhansk oblast has only 5 such cities (Alchevsk, Krasnyi Luch, Lysychansk, Sievierodonetsk, and Luhansk).