How did the Electoral Code work in the local elections 2020: an overall assessment | Center for Political Analysis «Observatory of Democracy»

How did the Electoral Code work in the local elections 2020: an overall assessment

The Center for political analysis «Observatory of Democracy» sums up the results of the first approbation of the Electoral Code on the material of the local elections 2020 in the Kharkiv region. How did the «open lists» and «gender quotas» work, to what extent was the local government renewed, and in what direction the electoral legislation should be improved – all these issues the study of the «Observatory of Democracy» summarizes.

The main effects

I. «Regionalization» of the party system

First of all, the results of the local elections showed an extremely high degree of fragmentation and «regionalization» of the party system. The trend of this campaign was the successful participation in the election of local party projects (usually «the named»), limited to only one region. In the Kharkiv region, a similar party project, «Bloc of Kernes-Successful Kharkiv», won elections to regional and Kharkiv city councils, but did not participate in elections in any other region.

Such «regionalization» was the response of «local elites» to the «partisanship» of the electoral system provided for in the Electoral Code. As elections to all councils with more than 10,000 voters did not provide for the possibility of self-nomination, there was a need for a party actor to nominate candidate teams. «Local elites» were faced with a dilemma – either to negotiate a franchise with major parliamentary parties or to go to the elections in their region with their own party project. Given the risks associated with the «imperative mandate» provided by the Electoral Code, the largest share of «local elites» has chosen a second, «independent» strategy.

That is, the Electoral Code, on the one hand, created the need for nominations from parties, and, on the other hand, did not force these parties to participate in elections on a national scale. Although there were some initiatives in the spring that would oblige parties to nominate candidates in at least two-thirds of the regions or introduce the notion of a «national threshold», the ruling party eventually abandoned the implementation of such amendments. It is difficult to determine unambiguously which of these extremes, «fragmentation» or «conservation» of the party system, is worse.

Probably given the very name «local elections», the trust of citizens in local self-government (as opposed to central government), as well as the principles of democratic pluralism, the implemented model with a large number of party actors is «less evil». However, the risks of weakening state sovereignty, which are evident in the government’s conflicts with mayors over quarantine restrictions, should be taken into account. In this sense, «regionalization» and the strengthening of the influence of «local elites» pose certain threats. In addition, such «regionalization» and «personalization» (we are talking about the named projects) do not contribute to the formation of parties in the political sense and the stabilization of the party system. Most of these local projects won’t participate in the parliamentary elections and will be co-opted into national parties.

Thus, the Electoral Code has created the institutional conditions for the formation of a «two-dimensional party system» (when there are de facto regional parties that participate in local elections and nominate candidates independently, have great influence in the relevant local councils, and «dissolve» in national parties in the run-up to parliamentary elections).

II. (Non) renewal of local government

Among the incumbent mayors of the regional centers who ran in the elections-2020, only one (the mayor of Chernivtsi) lost on October 25. 11 won more than 50% of the vote and won in the first round, another 8 took first place and advanced to the second round. Accordingly, the thesis that regional political regimes in Ukraine are much more stable than national ones has been confirmed.

At the level of the Kharkiv region, there is also a tendency to a weak renewal of local government. The composition of heads in 56 communities (gromada) of the Kharkiv region was renewed by less than half – new leaders were elected in 24 communities out of 56 (42,9%). At the same time, at the level of city communities, this percentage is even lower – 11 out of 17 current mayors were re-elected (64,7%). At the same time, 2 out of 6 cases of «renewal» (35,3%) were inevitable, because the winners of the mayoral elections in 2015 in Kupiansk and Dergachi did not live to see the elections-2020.

The Electoral Code has no impact on the renewal of local government. However, if the legislation on presidential elections contains restrictions on running for a third term, it may be appropriate to consider the same option for mayors and prescribe it in laws on local government and the Electoral Code.

III. Effectiveness of gender quotas

The introduction of gender quotas in these elections concerned lists of candidates for local councils (40% for councils of more than 10,000 voters and 30% for other communities). By the way, among the already mentioned 20 mayors of regional centers who tried to be re-elected, there is no woman, and gender quotas do not regulate the level of the election of heads, but just deputies, in communities.

In general, gender quotas have helped to increase the representation of women in local councils. For example, the percentage of women in the Kharkiv City Council has increased from 21,4% to 33,3% compared to the previous term (these are preliminary calculations of the voting results, not the registration of deputies, i.e. they do not take into account the waiver of seats). At the same time, there is a clear imbalance between the minimum 40% quota for women candidates on the electoral lists and the final score of 33,3% of women who have been elected as deputies. This gap becomes possible precisely because of certain gaps in the Electoral Code.

First, the requirement to include at least two people of one gender in each of the five lists leaves it possible to put men in the top three, leaving women in 4th and 5th place, who are much less likely to pass the current system. For example, the percentage of women in 1-3 places of district lists to the Kharkiv City Council from the «Opposition Platform-For Life» was only 9,1%. And although the party has complied with the general norm of 40% gender quotas in every five lists, only 3 women of the 19 deputies from the «Opposition Platform-For Life» have been elected.

Secondly, the Electoral Code requires adherence to gender quotas at the time of «formation of the singe and territorial lists», but does not regulate the situation when women candidates write applications for refusal to run after the registration of party lists by territorial commissions. This is how the gender quotas in the «Party of Sharia» were circumvented, which has made a faction of 7 deputies (no women) to the city council.

Third, the Code does not provide safeguards against the mass rejection of elected women candidates, i.e., as in the previous paragraphs mentioned, parties have the option of «technically including» women to the lists, but effectively circumventing gender quotas.

IV. (Semi) open lists

Another progressive novelty of the Electoral Code was the introduction of «open lists». However, the presence in the law, in addition to territorial lists, the concept of «single lists» (the order in which voters cannot influence), as well as a threshold of 25% of the quota of personal votes required to move up the territorial list, removed the proposed electoral formula from classical principles of «open lists». That is, party leaders have retained key levers of influence on the «programming» of the personal distribution of party seats while allowing voters to support a particular candidate on the list does not always impact the outcome.

At the level of elections in territorial communities, where the composition of the relevant council is relatively small (22-34 seats), we see many cases where the majority of deputies passed on single lists (i.e. where votes for specific candidates have no impact on the order of candidates). At the level of the Kharkiv Regional Council, 40 out of 120 mandates were distributed according to single lists, and 80 – according to territorial ones in constituencies. 72 out of 120 elected deputies (60%) received more than 1,188 «personal votes» (1,188 votes is 25% of the electoral quota). 24 candidates (20%), who were put by parties in «impassable places», thanks to the “personal votes” of voters were able to change the order of territorial lists and get to the council.

The main positive result of the introduction of the new system is the high degree of readiness demonstrated by voters to vote for it. Almost 80% of voters (among those who came to the polling station) exercised the right to vote not only for the party but also for the candidate from its territorial list. The percentage of ballots that were declared invalid was only 5,5%, which seems quite a moderate score for the debut application of a relatively complex electoral system.

V. Commissions, districts, «election tourists»

In general, the approbation of the Electoral Code revealed several other relatively negative aspects of the new law, which, however, did not form a critical weight in the elections in the Kharkiv region. Among them are:

  • «Conservation» of election commissions by parliamentary parties (an increase of their guaranteed quotas and, accordingly, institutional discrimination of non-parliamentary parties). The main argument in favor of this initiative, the authors of the Code called the fight against quota trading in the commissions of «artificial parties», which are registered, but de facto do not work. However, quota bargaining continued, and the argument itself seems an inappropriate effort to hide open lobbying and creating non-competitive advantages for parliamentary parties.
  • The emergence of «election tourism» through the simplification of the procedure for changing the election address. Such a negative phenomenon was characteristic of some wealthy but small (by the number of voters) communities (particularly in resort areas). However, in the Kharkiv region, this did not become widespread, and there was no evidence in any community that the use of this technology distorted the expression of the will of the true inhabitants of the community.
  • Disproportionate representation of districts and communities in the district and regional councils. The Electoral Code regulated the formation of constituency commissions only from the point of view of comparing the contours of constituencies with the new administrative and territorial system, but in no way introduced (at the level of councils > 10,000 voters) restrictions on the number of voters. Because of this, the commissions formed constituencies that corresponded to the contours of the new districts but differed from each other several times in the number of voters. As a result, according to the results of the voting, constituencies (i.e. territories and settlements) received disproportionate representation in elections to region and district councils (from 19 to 34 thousand voters per deputy in different constituencies to the regional council).

Key recommendations

Based on the results of expert-analytical monitoring of the elections in the Kharkiv region, the Center for political analysis «Observatory of Democracy» has developed several recommendations for improving the legal framework of the electoral process in order to bring it closer to basic democratic standards. They can be considered by the profile committee of the Verkhovna Rada and included in the expert discussion in the process of developing a package of amendments to the Electoral Code.

1. The electoral formula for the distribution of seats in local councils in the current version of the Electoral Code is far from the «open list system» declared by the authors. The first factor that significantly reduces the influence of voters on the getting seats of certain candidates from the parties is the existence of «single lists» with a fixed order of candidates, which is not affected by the votes of voters. These «single lists» consist of one-third to one-half of the seats, and this is a corrupt loophole for party leaders, which should be removed from the Code, leaving only territorial (district) lists.

2. The second factor in «blocking» of «open lists» is Article 259 of the Code, which allows changing the order in the territorial (district) list only to those candidates who have overcome a certain threshold of personal votes of 25% of the electoral quota. Thus, it has become possible for candidates to be higher on the list who are less supported by voters than others: from the point of view of the logic of «open lists», this is absurd. Accordingly, it seems appropriate to remove from the text the provisions on any threshold to «personal votes», and the final order of candidates in the district lists should be formed in descending order of the votes cast for them.

3. It is advisable that the restrictions on the maximum permissible deviations in the number of voters in different territorial constituencies in the elections of one council will be prescribed in the Code. This will help to equalize the proportional representation of the territories, put candidates on more equal conditions, and reduce the gap in the «weight of vote» of voters from different constituencies.

4. Although the deposit for local elections has been reduced compared to the first version of the Electoral Code, it still remains a significant artificial threshold, a certain «property qualification» for parties that do not have large sponsors. It seems appropriate to introduce into the legislative field an alternative as it is the collection of signatures. That is, for actors which do not have the required amount, instead of a deposit as a certain «guarantee of the seriousness of intent», the option of collecting signatures of voters in support of the party list or candidate for mayor as a condition for registration should be provided.

5. Gender quotas in these elections have indeed helped to increase the representation of women in councils, although 40% of women on the electoral party lists have not always converted to 40% of women among elected candidates. In particular, some gaps in the Electoral Code have become apparent. The law requires parties to adhere to quotas «during the formation of lists», but in no way regulates quotas at the time of voting. Accordingly, in the period between the registration of the party list by the election commission and the voting day, quotas may be violated due to mass refusals of female candidates to run (as happened in the city case of the «Party of Sharia»). The Electoral Code needs to be amended to prevent such parties from circumventing gender quotas.

6. Another loophole left in the parties regarding the violation of gender quotas is the waiver of the mandates of the elected female candidates who were included in the lists as «technical candidates». The Code should provide for such a situation, and in order not to distort gender representation in the council, it is possible to prescribe the following wording, which in case of a deputy’s resignation would give the mandate to the next candidate of the same sex in the party list.

7. It is worth considering the possibility of introducing into the Electoral Code and laws on local self-government norms banning the incumbent heads of territorial communities from running for a third term. This would help to renew power and be in good synchronization with similar legislation on restrictions on running for a third presidential term.

8. Given the experience of the Kharkiv region, which was at the epicenter of the second wave of the epidemic during the election campaign, while the current mayor of the regional center was absent, and the head of the regional state administration conducted an active election campaign, it seems appropriate to introduce stricter conditions for registration of candidates by the territorial election commission in two aspects. First, the need to verify the documents submitted for registration. The commissions should be more careful and responsible in whether the candidate has given his personal consent to run, or whether it is done by other actors on his behalf. Secondly, the Law «On Civil Service» should return the heads of state administrations and their deputies to the category of «civil servants» and prohibit territorial commissions from registering civil servants as candidates without providing them with documents on leave during the campaign.

9. The Code needs to review the quota-based algorithm for territorial and precinct election commissions, which currently provides excessive non-competitive advantages to parliamentary parties. Increasing the quotas of parliamentary parties from 1 to 2 guaranteed seats in each commission, as well as providing guaranteed quotas to parties that have signed an agreement with parliamentary groups, discriminates against non-parliamentary parties, which are given very few seats by draw. Lobbyists of such parliamentary usurpation of commissions argued that it was necessary to combat trade in quotas, but in practice, such a step does not prevent political corruption, but only provokes situations where de facto regional parties of «local elites» agree on quotas with parliamentary forces.

10. Given the record low turnout, as well as epidemiological factors, it is necessary to deepen and accelerate the study of remote voting and the possibility of their introduction. In the medium and long term, e-voting seems to be the only way to preserve the legitimacy of elections as a basic institution of democracy, given the growing trends of absenteeism in Ukraine.

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».