Supporting democratic progress in Ukraine.

IFES Ukraine

The International Foundation for Electoral Systems

IFES Comment on avoidable delay to snap parliamentary elections

On June 25, the CEC conducted the lottery envisaged by law to determine the order of appearance of party lists on the proportional ballot. On June 26, the CEC adopted a corresponding decision on the final design of the ballot based on this lottery. Twenty-one political parties took part in the lottery. A few days later on June 29, the CEC, upon the party’s successful appeal to the Supreme Court, registered the “Mikheil Saakashvili’s Movement of New Forces” party. The CEC subsequently amended its decision on the ballot design to accommodate the newly registered party and assigned number 22 on the ballot to the Movement of New Forces without conducting a new lottery. In their decision (CEC decision No. 383), the CEC explains that it conducted a consultation on this issue with representatives of all competing political parties since the legal framework does not specify which actions to take if a political is registered following the deadline for conducting the lottery. The CEC decision further refers to a general agreement among the competing parties not to conduct a new lottery since parties had already begun using the assigned number in their campaign and re-doing the lottery would potentially cause voter confusion. The Movement of New Forces stated that it would not appeal the decision; the period for complaints expired on July 4.

On July 2, before the legal expiration of this complain period, the Agrarian Party filed an administrative lawsuit to the Sixth Administrative Court of Appeal in Kyiv against the CEC decision No. 383 that amended its earlier decision on the form and text of the proportional ballot. The party argues that the CEC has violated Article 80 of the Parliamentary Election Law by not conducting the lottery after the registration of all candidates and, further, that the CEC has given the candidates of a specific party privileges over others in violation of Article 3.5 section 1 of the law by assigning a particular number to one party.

Yesterday, on July 4, the Sixth Administrative Court of Appeal satisfied the claim of the Agrarian Party. The text of the decision is not yet publically available, but from reactions and press coverage it is known that the court ordered the CEC to re-do the drawing of lots with participation of all 22 political parties that have registered party lists in the nationwide constituency to determine a new order of their appearance on the proportional ballot. The same day, the CEC appealed the decision to the Supreme Court. The court will have two days to rule on the appeal (thus a decision is due no later than Saturday, July 6).

Meanwhile, the CEC, operating under very tight technical and legal deadlines, has already begun printing the ballot papers for the party list vote. Based on CEC comments to the press, it is estimated that more than 5,200,000 party list ballots have already been printed. Under the current legal framework, if the CEC has to redo the lottery and print new ballots, they will also have to initiate a new ballot paper procurement process and request funds from the state budget to cover the additional expenses. By law, the CEC must end ballot printing by July 13 and begin ballot distribution to district election commission on July 14. Thus, time is running out for ballot printing and the timely preparations for the vote on July 21 are now in jeopardy due to the lawsuit.

The CEC has once more found itself in charge of managing a situation where deficiencies in the legal framework create uncertainty about the applicable rules and procedures. Once again, the CEC is forced to find solutions and take decisions without proper guidance from the legal framework. The CEC did the right thing when consulting the registered political parties to find a solution and ensure consensus for its decision on the final ballot design so it could begin ballot printing on time. Ultimately, it is the politicians, as part of the legislative power, who are responsible for deficiencies in the law while the CEC is an administrative body that implements the legal framework. Many believe that the Agrarian Party acted irresponsibly by not assuming its share of responsibility for this legislative uncertainty. By instead deciding to break their unwritten agreement as reported by media and challenge the CEC decision, the Agrarian Party has jeopardized the timely conduct of the election.

The Sixth Administrative Court of Appeal could have ruled that the rights of the Agrarian Party had not been infringed upon by the decision of the CEC and denied the party’s lawsuit for this reason. It is now up to the Supreme Court to consider the case on appeal. It is yet to be seen if the Supreme Court will take the same legalistic approach as the first instance court and stick to the “letter” of the law, thereby requiring the CEC to do another lottery, or if it will instead uphold the “spirit” of the law by supporting the CEC’s amended decision. IFES hopes that the court will find a way to dismiss the appeal of the Agrarian Party and avert potentially insurmountable roadblocks to preparations for the July 21 elections.