2020 roadmap for electoral, referendum and political finance reforms

Executive Summary

On December 19, 2019, after eight years of consultations and negotiations between political actors, civil society, and the expert community, the Verkhovna Rada of Ukraine finally adopted a new election code. The final version of the code largely reflects recommendations proposed by civil society and election experts to ensure human rights and facilitate the political participation of various stakeholder groups, including IDPs and other internally “mobile” groups of citizens, voters with disabilities, and women. It will also serve to expand the list of election-related data available in the public domain and allow for proper evaluation of electoral processes. The electoral reforms, however, should not be limited only to the harmonization of the electoral laws and the introduction of the new electoral systems.

The new open-list proportional system introduced by the Code for parliamentary and local elections has a number of features of the closed list proportional system. In particular, ballot papers are designed in such a way that they encourage voters to vote for one of the party lists rather than for an individual candidate on the respective lists. The box for selecting an individual candidate is placed at the very bottom of a lengthy ballot; many voters would likely not notice the box, simply vote for one of the party lists, and leave rather than take the additional time to identify and fill in the number of their preferred candidate. Under the open-list proportional system to move to the top of the multi-mandate constituency (MMC) list, a candidate would need to receive a number of votes that equal 25 percent of the electoral quota.

The electoral quota may, in parliamentary elections depending on voter turnout, be rather high, some 7,000-9,000 votes. If no candidate receives votes amounting to 25 percent of the electoral quota, seats are distributed to candidates on the MMC party list according to the sequence determined by the political party in question. In addition, in parliamentary elections, if a party meets the national vote threshold for seat allocation, the top nine candidates on that national party list are given priority in getting elected, regardless of voter preference. These top nine candidates are not assigned to any MMC, so voters cannot cast a preferential vote for them even if they wanted.

In addition to the harmonization of the electoral laws and electoral system change, a meaningful electoral reform should also provide for improvement of the election procedures, the effective implementation of these procedures in practice, the introduction of proportionate, effective and dissuasive sanctions for election-related offenses, ensuring that election commissioners are professional and that the role of the law enforcement agencies and courts in protection of the electoral rights is strengthened.

Key reform priorities for elections, referendums, and political finance should include:

• further promotion of political competition, in particular, by allowing independent candidates to stand for local elections and by strengthening voters’ influence on the allocation of seats to candidates under the open list proportional system used in parliamentary and local elections;
• decreasing the size of the electoral deposit to be paid by parties and candidates to run in the local elections; clarification of the procedures, which the respective election commissions must follow when they verify candidates’ compliance with the eligibility requirements set forth by the electoral legal framework; disallowing candidates for certain elections to withdraw their candidacy in the last minute before the election day and thereby potentially derail the election;
• establishing a unified approach for the composition of the election commissions in all elections (where it is practically possible and makes sense); establishing the regional and local branches of the CEC; implementing internal structural and operational reforms within the CEC (including the adoption of a CEC communication strategy for various stakeholder groups, enhancing transparency, accountability, and inclusiveness of CEC operations, the introduction of long-term planning of CEC operations); strengthening the professionalism of members of election commissions through mandatory training and certification of election commissioners;
• ensuring a better regulation of election campaigning, in particular, election campaigning on the Internet and in the new media;
• enhancing transparency of political and campaign finance; addressing the recommendations for political finance reform proposed by the Group of States Against Corruption (GRECO), the Venice Commission and the Office of Democratic Institutions and Human Rights of the Organization for Security and Cooperation in Europe (OSCE/ODIHR); taking measures to prevent excessive funding of political parties and election campaigns by imposing restrictions on paid political advertising on radio and television; full launch of the electronic financial reporting system for political parties and candidates;
• improving the procedures for voter registration and for overall administration and maintenance of the State Register of Voters; auditing of the State Register of Voters; further facilitation of electoral participation of IDPs and economic migrants;
• combating impunity for election-related offenses and ensuring an effective election dispute resolution;
• promoting more extensive use of information technology in elections (without shifting to Internet voting);
• ensuring better accessibility of elections for voters with disabilities; facilitating active women participation in the election process; and
• strengthening other forms of direct democracy, including referenda.

The issues covered in this document, as well as the recommendations it offers to address these issues, could and should create the basis for further election, referendum and political finance reforms in Ukraine. Most of these reforms should be implemented no later than in May 2020 so that the improved provisions of the Election Code and other relevant legal acts can benefit the 2020 local elections. Electoral contestants and administrators need to be properly prepared for these elections: the CEC, in particular, needs to be given ample time to issue the necessary guidelines, conduct voter awareness, develop and distribute election-related materials as well as adopt the secondary legislation necessary for the proper enforcement of the new electoral legal framework.

Introduction

In Ukraine, 2019 was marked by a number of positive election-related developments. Despite the intense competition between the two leading presidential candidates, Volodymyr Zelenskyy and Petro Poroshenko, the 2019 presidential elections were generally held in line with international standards for free, fair and democratic elections. For that reason, these elections were praised by international and domestic election observation missions.

The pre-term parliamentary elections held on July 21, 2019, also complied with international standards. The election of the new President and creation of a pro-president majority in the new parliament (Verkhovna Rada) created the necessary political environment for the acceleration of election, referendum and political finance reforms. The need for such acceleration has been repeatedly highlighted by election experts and civil society activists for years.

The early termination of powers of all the CEC commissioners on September 13, 2019, and the subsequent appointment of the new CEC members to replace the dismissed commissioners proved that the CEC remains vulnerable to political influence, as their dismissal was not necessarily tied to their performance holding elections in 2019. However, the CEC’s renewal also opens a window of opportunities for implementing needed operational and structural reforms within the institution, which were not implemented by the previous CEC due to time constraints and the administrative burden of having to conduct two national elections in 2019.

The adoption of the Election Code by the new Verkhovna Rada on December 19, 2019, was a tremendous step towards implementing election law reform. Most provisions of the new code became effective starting from January 1, 2020. The adoption and promulgation of the code generally harmonized the electoral legal framework in Ukraine, which has been a long-standing recommendation of international observer missions and domestic experts since the beginning of the 2000s.

While certain aspects of elections will still be regulated by the Law on the Central Election Commission and the Law on the State Register of Voters, the fact that many election procedures for the presidential, parliamentary and local elections have been harmonized is a significant achievement.

The advantages of the election code go beyond the harmonization of election procedures. Other advantages of the code include, in particular:

• introducing an open-list proportional system for the parliamentary and some local elections, in which voters are able to influence the allocation of seats to candidates on party lists;
• ensuring better accessibility of elections to voters with disabilities;
• introducing enforceable gender quotas in all types of electoral systems used to elect MPs and local councilors, including the single non-transferable vote system used in lower-level local elections;
• enhancing the overall transparency of many election procedures;
• establishing CEC branches at regional and local levels in charge of voter registration and with certain devolved powers of the CEC Secretariat; and,
• institutionalizing the CEC Training Center and making it in charge of ensuring the professionalism of the election commissioners and voter outreach.

The new election code also addressed lessons learned from the 2019 elections. In particular, it specified the term “residence in Ukraine,” explained how to calculate the term of residence, and how the respective election commission and other state agencies should verify candidates’ compliance with the candidate eligibility requirements (including residence).

The new Rada succeeded in taking measures to regulate the procedure for initiating and holding a national referendum by establishing a parliamentary working group tasked with the drafting of a new National Referendum Law. Parliament also enhanced the political finance legal framework. Amendments to the Political Party Law adopted in December 2019 provided for the establishment of an electronic system for party financial reporting and specified the requirements to the financial data to be disclosed by parties in their quarterly financial reports. They also removed legal constraints with respect to sources of party funding, established procedures for making private donations to political parties, and increased the annual amount of public funding available to eligible political parties.

Despite these welcome measures, there are still a number of outstanding issues to be addressed within the framework of electoral legal reform. In particular, the Code of Administrative Adjudication needs to be harmonized with the new election code; the system of sanctions for administrative and criminal election-related offenses needs to be further strengthened; and, campaign finance would benefit from enhanced transparency to decrease the heavy dependence of the parties and candidates on shadow and oligarch funding.

Other necessary improvements include the introduction of requirements for mandatory training of the election commissioners, strengthening the accessibility of elections for voters with disabilities, and facilitating the more extensive use of information technology in elections. Due to the accelerated process in which the new code was adopted, it suffers from a number of flaws and inconsistencies that must be addressed. In particular, the chapters of the code governing national and local elections use inconsistent election terminology and certain procedures (e.g. for the establishment of the election commissions) still have to be unified for both national and local elections.

This document highlights the key issues in the areas of elections, referendums and political finance, and offers a set of recommendations for improvements in the respective areas.

Key recommendations

Based on the issues identified in this document, the International Foundation for Electoral Systems (IFES) and OPORA Civil Network suggest a set of key recommendations in the areas of elections, referenda, and political finance. The table below identifies the respective reform priorities, the measures needed to make these priorities achievable, the agencies in charge of implementing the respective measures, and the deadlines for taking these measures. Encouragingly, several of the recommendations offered below for the consideration of the CEC are already under review or being implemented by the Commission.

The Parliamentary Committee on State Power, Local Self-Governance and Regional and Urban Development should renew public consultations to consider the proposed recommendations with all stakeholders, including the CEC, representatives of parliamentary factions and groups, local self-governance bodies, the expert community, and civil society activists.

Given the emergency situation regime across Ukraine, such consultations should be conducted using the available on-line platforms complying with the principles of transparency and inclusiveness and terminate no later than by the end of April 2020 so that the electoral legal framework and practices are improved in a timely fashion, i.e. well in advance of the 2020 local elections.

2020 roadmap for electoral, referendum and political finance reforms. Expanded version

This document was developed jointly by International Foundation for Electoral Systems (IFES) and Civil Network OPORA and made possible with funding from the United States Agency for International Development (USAID), Global Affairs Canada, and UK aid. The opinions expressed herein are those of the authors and do not necessarily reflect the views of USAID, nor the governments of the United States, Canada, or the UK.