ELECTORAL CODE AND LOCAL ELECTIONS: “THE DEVIL IN THE DETAILS”
To paraphrase a well-known saying, you can endlessly look at three things: how the fire burns, how the water flows, and how the Ukrainian legislation on elections is rewritten on the eve of the elections themselves. On January 1, 2020, the long-suffering Electoral Code entered into force, a priori euphoric attitude towards which for many representatives of civil society overshadowed the essence of the document in all its editions.
Meanwhile, the text of the Code itself has undergone significant changes several times over the past six months. Moreover, the version of the document adopted by the parliament and signed by the president can hardly be considered a constant for future elections – after the administrative-territorial reform, it will definitely be necessary to introduce technical amendments, along with which further substantial changes can be adopted.
In the media, articles on the adopted Code appeared with headlines on “the end of the majoritarian vote” and focused on innovations for the elections to the Verkhovna Rada, while the cardinal change in the system for the upcoming local elections in 2020 was not dealt with in detail – we fill this gap with the first material of the Center for Political Analysis “Observatory of Democracy” in this year.
New “rules of the game”
The previous article provided a detailed analysis of the government’s concept for improving local election legislation and the explanation why this concept should not be adopted. Of the positive ones, the final (today) version of the Code has ignored this Concept, providing for regional councils and councils of large cities (from 90 thousand people) a proportional representation electoral system with regional open lists in multi-member districts.
- According to the Code, parties submit a single regional / city list with a fixed sequence of candidates, simultaneously assigning each candidate to one of the N multi-member districts – thus, the party forms N district lists within a single regional / city.
- The number of multi-member districts is equal to the nearest lower integer from dividing the size of the council (mandate) by 10 (± 2 deviation from the resulting quotient is allowed) – for the Kharkiv Regional Council it is 12 ± 2, for the city council it is 8 ± 2.
- For each five (places from 1st to 5th, from 6th to 10th, etc.) of all lists, a 40% gender quota is provided.
- Self-nomination is not allowed.
- The system is positioned as a model with “open lists”: the voter in the ballot notes the party whose district list he supports, and can also enter the number of a specific candidate from this list, which he supports (optional).
- Parties with more than 5% of the vote in the entire region / city are allowed to distribute mandates.
- For the distribution of mandates, an “electoral quota” is calculated — the number of votes required getting one mandate — it is equal to the sum of all votes cast “for” parties, which overcome the threshold, divided by the number of council mandates.
- At the first stage, mandates are distributed among district party lists. For each district list, the number of received mandates is calculated as the quotient of dividing all the votes cast by the district list by the electoral quota. Moreover, all rounding is performed towards the nearest smallest integer. For the personal distribution of mandates within the framework of district lists, at this stage the open lists mechanism operates (with some nuances, which are discussed in the next subsection).
- At the second stage, all “residual votes” (appearing at each “passing party” due to rounding towards a smaller integer at the first stage) are distributed already within the framework of a single regional / city list in the format of “closed lists” (the personal order is fixed by party at the stage of nomination of candidates, the voters’ votes have no affect here).
The law provides a majoritarian system with multi-member districts (from 2 to 4 mandates in the district) for the “lower” level of elections in rural, township, city (up to 90 thousand people) and district councils. It is such a model in the already mentioned Concept that is proposed for all levels of local elections, and its main shortcomings were discussed in our previous article. The general algorithm of this system, which is likely to be used for most UTCs, is presented below.
- The territory is divided into multi-member districts so that the approximate number of constituencies is equal to the whole quotient of dividing the number of council mandates by 3 (that is, three-mandate constituencies should be created baseline), the permissible deviation is 1 constituency.
- At the same time, deviations in the number of voters in constituencies cannot be more than ± 15% of the average (the average is calculated as the quotient of dividing all voters by the number of constituencies).
- Self-nomination is allowed.
- Candidates are also nominated by parties, and in each constituency they can nominate several candidates (from 1 to M, where M is the number of mandates distributed in the constituency). For this level of councils, the law provides a 30% gender quota in party candidate lists.
- The voter has only one vote, which he or she casts for any of the candidates running in his constituency. The winners are considered M (the number of constituency mandates) of the candidates with the most votes (the first three places will be the base for passing in each constituency).
As for the size of the councils, the authors of the latest edition of the Code took the current “line” as a basis, abandoning plans to reduce the deputy corps.
|The number of voters||The size of the council|
|Up to 1 thousand voters||12 deputies|
|1-3 thousand voters||14 deputies|
|3-5 thousand voters||22 deputies|
|5-20 thousand voters||26 deputies|
|20-50 thousand voters||34 deputies|
|50-100 thousand voters||36 deputies|
|100-250 thousand voters||42 deputies|
|250-500 thousand voters||54 deputies|
|500-1000 thousand voters||64 deputies|
|1-2 million voters||84 deputies|
|From 2 million voters||120 deputies|
Accordingly, 120 mandates are provided for the Kharkiv regional council, 84 mandates are for the city council, and 34 mandates are for other cities of regional significance in the region.
“Pitfalls” of the Code
Given the deserving positive assessment of the electoral system prescribed in the Electoral Code for local elections, some provisions of the law can be called the “devil in detail”.
Thresholds. In the original text of the Electoral Code, which was adopted by the Verkhovna Rada of the previous convocation, there was no formal barrier to the elections to regional councils and councils of large cities (that is, the “electoral quota” was the only arithmetic threshold – the number of votes needed to obtain one mandate). Probably, such “openness” is not very beneficial for large parties that will not receive the redistributed mandates given for “parties under the line”. After the presidential edits for this level of councils, they first introduced a 4% threshold, and at the last moment corrected it by a 5% threshold (the same formal barrier was in the 2015 elections).
At the “lower” level (cities with up to 90 thousand people, district, township and village councils), the real barrier is much higher: With a basic three-mandate constituency, a candidate needs 25% + 1 vote for guaranteed getting a seat; on average, approximately 12-15% for the third place may be enough. Of course, this is bad news for parties with a rating of up to 10%, interest in the franchise of which is significantly reduced.
However, the main threshold mechanism “sewn” into the Electoral Code for a key level of regional and city (90,000+) councils was laid down in the 225th article, which determines the amount of money deposit for parties and mayoral candidates. Its size is calculated by the formula: “4 minimum wages for every 10 thousand voters of the relevant council”. For the Kharkiv city council and mayoral candidates, this amount will be approximately 2 million hryvnias (1,045,000 / 10,000 * 4 * 4723), for the regional council – twice as much.
The wording “4 minimum wages for N voters” was taken from the old Law, according to which the 2015 elections were held – they only changed the ratio by erasing one zero (instead of 4 “minimum salaries” for every 100 thousand voters they made “10 thousand voters”). A tenfold increase of the deposit (plus allowance for a fourfold increase in the minimum salary compared to 2015 — that is, the de facto “40-fold increase of the deposit”) – will not beat the large rating parties, as the deposit is returned to parties that have overcome 5% threshold, but all the rest (especially non-parliamentary forces) will be forced to think three times about the practicability of their participation in such an increase in the price of the “entrance ticket”.
It is interesting to compare the amount of the deposit for the local (225th article) and parliamentary (156th article) elections: if the formula “4 minimum salaries for every 10 thousand voters” is introduced for local councils, then for the lists to the Verkhovna Rada the deposit is fixed at the rate of “1 thousand minimum salaries”. In practice, this means that, for example, submitting a list to the Dnipro Regional Council elections will cost a little more than participating in parliamentary elections. A party that wants to submit lists to all regional councils of Ukraine will spend about 56 million hryvnias on the deposit – 12 times more than it would cost to participate in the parliamentary elections.
Party building. Recent elections to the UTC once again showed that out of 350+ Ukrainian parties, literally a few have real representation at the grassroots level of villages / towns and they can / want to pick up a team of candidates for nomination in the constituencies. The election code in this sense does not lay any incentives for the development of local party building, but rather, on the contrary.
Firstly, the level is expanding where there is no special need for party franchises: the option of self-nomination is now available for district councils (unlike in 2015), rural, townships and cities (up to 90 thousand people – and in the last elections in all cities there was a proportional representation system with party lists). If adapted to the potential administrative-territorial structure, then at two out of three levels of self-government (UTC and the district), candidates may be interested in literally 2-3 party franchises, while other parties will have nothing to offer for local groups of influence (again, in contrast from the situation in 2015, when the candidates were forced to look for the party-subject of nomination).
The experience of the elections on December 22, 2019 in the Donetsk UTC (Balakleisky district of the Kharkiv region) is significant, in which self-nominated candidates won in 23 districts out of 26. It is likely that now parties (except electoral dominants and administrative patronage parties of power) will have even less arguments in negotiations with candidates and incentives to drop to this level of party building.
Secondly, the Electoral Code fixes “party centralization” in the issues of the subject of the nomination: it follows from Article 217 of the Code that the regional organization of the party may be the subject of nomination for councils at different levels (that is, there is no need to register cells in each district and city of regional significance), and for any “conflict of lists” between organizations, the law will be on the side of higher rank.
Open lists. The most delighted representatives of civil society in the Electoral Code were the “abolition of the majoritarian vote” and the “introduction of open lists”. As already shown above, the majoritarian system is maintained for many levels of local elections, but the so-called “open lists” left several wide gaps for the parties to control the order in which their candidates get a seat. To illustrate, we will simulate this by the example of elections to the Kharkiv City Council.
With 84 mandates for elections to the City Council, 8 ± 2 constituencies must be formed, subject to certain conditions (Article 201):
- boundaries of districts should be inextricable, and the districts themselves should not overlap each other;
- the territory of the district (area of the city) cannot be divided between two districts;
- within one district (area of the city), more than one district may be formed.
Characteristically, there are no requirements for equality of constituencies in terms of the number of voters. Suppose (and that would be logical) that each of the 9 districts of Kharkiv will become one multi-member constituency in elections to the city council.
Only those parties that won more than 5% of the vote in the city as a whole are allowed to distribute mandates in such district lists. Further, to calculate the mandates received by each party, the “electoral quota” is used – the sum of all votes cast “for” the party, which overcome the threshold, divided by the number of council mandates. We roughly model the quota: 1,045,000 (voters) * 50% (turnout) * 85% (votes for “passing” parties) / 84 (council size) = 5,287 votes. For modeling, we take two “passing” parties – one (“Party X”) “rating” with a result of 30% and the second “borderline” (“Party Y”) with a result of 5%. For simplicity of calculations, let both parties with homogeneous support within all regions, as well as a conditional turnout of 50% be the same for all regions.
At the first stage, mandates are distributed among district lists. In each district (area of the city), the number of mandates received by the district party list is calculated as the integer part of dividing the sum of votes (received by this district list) by the electoral quota.
|District||Votes for Х||Votes for Y||Mandate Quota X||Mandate Quota Y|
|Total||156 760||26 127||29,65||4,95|
Source: data on the number of voters in the regions for modeling were taken from the website of the State Register of Voters.
In our simulation, “Party X” got the right to 30 mandates, and “Party Y” – to 5 mandates. But at the first stage, Party X distributed 25 mandates between district lists, and Party Y assigned 1. The remaining 5 and 4 mandates, respectively, go to the “compensation level”, where closed lists operate with a fixed sequence of candidates made by party (Article 260). That is, it turns out that for the “borderline parties” the de facto mechanism of open lists does not work, but it becomes more effective the higher the party’s result. Or it can be formulated differently: each party has a “closed” part for 4-5 “passage seats”.
The second gap is related to the way in which the last version of article 259 was rewritten on the personal distribution of mandates laid down by district lists. Instead of the traditional mechanism of open lists, when the priority of the candidates depends on the number of votes cast for each of them, the following “filtering” wording appeared: “Candidates who have received a number of electoral votes equal to or greater than 25 percent of the electoral quota determined in accordance with Article 257 (3) of this Code shall be placed at the beginning of the regional electoral list of the relevant party organization in decreasing order of the percentage of the electoral votes that have supported a respective candidate … <> … After candidates who has received a number of votes equal to or greater than 25 percent of the size of the electoral quota, in a regional election list other candidates are placed in the order specified by the party organization in the nomination process”.
That is, to change the order of the already district list, appointed by the party, the candidate needs to get a certain threshold of “personal” votes – in our simulation it is 25% * 5278 = 1,320 votes. Given that:
- it should be from 5 to 12 candidates in district party lists,
- probably (as the experience of other countries where open lists were introduced for the first time), far from all voters will want to use the option of optional voting for a particular candidate from the list (whose number must be entered on the ballot after the “tick” for the selected party)
=> it can be assumed that this threshold will often be unattainable for any of the candidates in the list, and then, within the framework of district lists, the mandates will also be distributed according to a certain priority order. At the same time, the easier it is to achieve the threshold of personal votes, the more votes cast for a party — that is, there is also a pattern that the most “closed” lists will be for “passing” parties with results of 5-10%.
- The version of the Electoral Code that came into force on January 1, 2020 (which may be subject to new changes) involves two electoral systems for the election of deputies of local councils: for the level of regional councils and cities with a population of 90 thousand or more – a proportional representation system with party lists in multi-member districts and 5% threshold; and a multi-member majoritarian system (2-4 mandates per district) with the possibility of self-nomination for district, city (up to 90 thousand population), township and village councils.
- The proposed system is a de facto rejection of many provisions of the concept of improving the electoral law, presented by the Ministry of Regional Development in the fall of 2019. In particular, the key requirement of the Concept – the mandatory representation of each UTC in the regional councils – will not be implemented within the framework of the system laid down in the Code (which in itself is not negative if the number of voters is too small to obtain a mandate).
- A multiple increase in money deposit, which is returned only to parties that will get seats in the council, can be a powerful “filter”, leading to a decrease in the number of participating parties. From the point of view of democratic standards, such a “rise in price of entrance ticket” and the lack of equal opportunities for parties is an extremely negative phenomenon – it was possible to realize the same idea of a “filter” through a mechanism for collecting signatures for registration, rather than an absurdly expensive deposit for participating in local elections.
- In addition to the deposit, the Code contains several other norms that demotivate the democratic party building – for example, the ability to use the regional party organization as a universal subject of nomination (without the need to register district or city cells), as well as expanding election levels where candidates have the option of self-nomination.
- The main “showcase element” of the Code – “open lists” – is not fully implemented consciously, and the parties have enough built-in gaps to not give the order of priority in the lists to the voters. Modeling on the example of the Kharkiv City Council shows that for the “borderline parties” that enter the councils with little results, the de facto system of “closed lists” will work with minimal influence of voters on the personal distribution of mandates.
Anton Avksentiev, Ph.D. in Political Science,
Center for Political Analysis «Observatory of Democracy».
The paper was prepared under the project «Promoting Democratic Elections in Eastern Ukraine», with the support of the National Endowment for Democracy (NED). The content of the publication does not necessarily reflect the views of the NED and is the sole responsibility of the Center for Political Analysis “Observatory of Democracy”.