During Russia's coronavirus lockdown, lawmakers have radically changed voting procedures. That is very bad.
In mid-May, Russia's State Duma adopted four laws pertaining to elections. Two of them fall under a single title, “On amending certain legislative acts of the Russian Federation.” The most important provisions, however, were “tacked on” during the second reading. This has already become a kind of tradition: a bill about one thing is adopted in a first reading, but during the second reading it is transformed — sometimes beyond recognition. In this case, the formal reason for the changes is the coronavirus pandemic, which forced Russian lawmakers to expand opportunities for remote voting. In a special analysis for Meduza, legal scholar Arkady Lyubarev explains why these changes won't be limited to the duration of the pandemic — and why that’s a problem for Russians.
Voting by mail can be introduced in any elections
In a nutshell: Russia’s Central Election Commission (CEC) was given the right to introduce voting by mail during any given election. This is not so good, because this type of voting is difficult to carry out anonymously, and it makes it easier to bribe voters.
Voting by mail is not an entirely new provision for Russian legislation. It was actually introduced in 2002, at the initiative of the then-head of the CEC Alexander Veshnyakov, but at that time it was just an optional provision.
“The law of a subject of the Russian Federation could provide for the possibility of voters and referendum participants voting by mail. In this case, the votes of electors, [or] referendum participants, are submitted to the relevant commission no later than the end of voting on the election day. The procedure for voting by mail during elections to the governing bodies of subjects of the Russian Federation, local self-governing bodies, subjects of the Russian Federation’s referendums, [and] local referendums, pending the resolution of this issue by federal law, is determined by the Central Election Commission of the Russian Federation.”
This paragraph of the law “On basic guarantees of voters rights and the rights of Russian citizens to participate in referendums,” has existed in this form for almost 20 years, and has been almost forgotten about already.
That said, voting by mail has already happened*
Voting by mail has been put into practice in several regions, beginning in the Sverdlovsk and Yaroslavl regions. In March 2004, the regional Duma elections in Sverdlovsk saw voters cast 12 ballots by mail — 11 were received. The 2006 elections saw 102 ballots cast by mail, and 62 were received, in 2008 — 40 and 34 ballots, respectively. During the 2010 elections, however, voting by mail was cancelled in the region.
In the Yaroslavl region’s 2003 elections, a grand total of five ballots were cast by mail and four were received, while 2004 saw four and three postal ballots sent in, respectively. In the 2008 elections, there was no voting by mail.
In 2011, a one time test of voting by mail took place in the Murmansk region and in St. Petersburg. In the former case, voters sent in 1,370 ballots by mail, but only 489 of them were received. In St. Petersburg, 2,558 ballots were sent in, and 1,564 were received.
As you can see, Russia’s past experiences voting by mail turned out to be not so positive overall.
Now a new provision on voting by mail has been adopted in the new legislation:
“For elections to government bodies, local self-governing bodies, subjects of the Russian Federation’s referendums, [and] local referendums, the possibility of voters and referendum participants voting by mail, as well as through remote electronic voting, could be provided for, in the cases and manner established by the Central Election Commission of the Russian Federation.”
The new law differs from the previous one in three ways. First and foremost, the CEC is responsible for making the decision on holding elections by mail, not the regional legislatures. Although this innovation is presented as a response to the pandemic, the law does not bind the CEC to any conditions.
The second difference is seemingly minor: the 2002 norms provided the CEC with the authority to determine the procedure for postal voting temporarily — until the issue is resolved by federal law. Now, the CEC’s authority appears to be permanent.
The third difference is the removal of the restriction according to which only votes received no later than the end of the voting period are counted. This presents a serious dilemma: do officials wait until all of the ballots from voters arrive or count only the votes that arrive before the end of the voting period? In the first instance, it’s unclear how long officials should delay the counting process. In the latter, a situation arises in which the realization of citizens’ right to vote depends on the good work of the post office.
While it’s possible that the CEC itself will introduce restrictions, strictly speaking, any restrictions should be established by federal law.
What’s wrong with voting by mail?
Postal voting is relatively common in other countries, but their postal systems are typically more reliable. However, even this does not prevent scandals from taking place periodically. One of the main problems is maintaining the secrecy of the ballot. In this case, double envelopes are usually used: the outer envelope has an address, which is used to identify the voter, as well as an invitation to vote. There should be no identifying material inside the inner envelope.
But even this does not guarantee the secrecy of the ballot: this can be achieved only through the integrity of the election commission’s members, and oversight of their work. In other words, someone else should monitor that the commission's members first remove the inner envelopes from the outer ones, dispose of the external envelopes, and only begin to open the internal envelopes after that.
What’s more, voting by mail is especially convenient for bribing voters: one can simply collect a blank ballot from any given voter and cast it on their behalf; even voters won’t know how they voted.
How it works in Germany
In Germany, there is neither at-home nor early voting as we understand it — voting by mail actually replaces early polls. Moreover, you can not only send the envelope by mail, but also drop off your envelope in a box near the election commission.
A fundamentally important feature of postal voting in Germany is the fact that separate polling stations are set up for processing these ballots, where there is no voting and only counting. The results for each site are also published. Therefore, anyone can compare the results of the vote for regular and mail-in participants. In Berlin during the 2017 Bundestag Elections, for example, the differences were quite noticeable: Angela Merkel’s ruling party, the Christian Democratic Union (CDU), received 21 percent of the vote among regular participants, but 26.2 percent among those voting by mail; the far-right Alternative for Germany, on the other hand, received more votes at regular polling stations (13.6 percent versus 9.1 percent).
However, these differences are entirely understandable, and, more importantly, not fundamental. As for the Russian experience, the results of early voting were very different from the voting results on election day. This big difference in the results of special voting methods provokes especially serious suspicions.
However, in relation to the realities in Germany, the Berlin Electoral Commissioner, Petra Michaelis, expressed great concern about the high share of voting by mail: more than 27 percent of city residents used this method. She acknowledged that with postal voting, it’s impossible to guarantee that voters' choices were made freely and secretly — even in Germany.
Electronic voting can also turn up anywhere
In a nutshell: According to the new law, the CEC will be able to introduce Internet voting in any elections. This is bad because a computer system can be infiltrated (there have been precedents), and with remote voting it’s especially easy to put pressure on voters.
Russia’s first experiment with remote electronic voting took place in Moscow in 2019. Even though its organizers cheerfully reported on its success, many experts deemed it a failure. In Moscow's constituency No. 30, for example, the authorities’ candidate, Margarita Rusetskaya, lost to the opposition candidate Roman Yuneman at regular polling stations, but she received 1,120 electronic votes, while he received just 445. As a result, Rusetskaya outstripped Yuneman by 84 votes. That said, the electronic voting system froze, and did not allow everyone who wanted to vote to cast their ballot.
Voting in Moscow took place on the mayor's official platform, but the CEC has been trying to establish its own system, meaning a subtle competition is underway, away from prying eyes. This is perhaps why the Duma adopted the two laws at once. One is intended to continue the experiment in Moscow, while the other one gives the CEC the right to conduct remote electronic voting in any elections.
Meanwhile, the vast majority of other countries are in no rush to attempt remote electronic voting. The main challenge here is the inability to guarantee both the secrecy of the ballot and the accurate counting of the votes. Protecting voting from hackers is a fairly serious problem, which can hardly be definitively resolved. But for Russia there is an even more serious issue: the possibility of internal interference by individuals who have access to the system. These people could be working either within government agencies or in organizations dependent on the authorities, for whom the temptation to “correct” the results of remote electronic voting might be too great. And it’s not just society’s problem — even the election commission can’t control this process.
Experts are constantly drawing attention to the fact that the issues with remote electronic voting have not been worked out on a technical or legal level. In other words, rushing implementation is unacceptable and testing should begin in a context where the vote is not legally binding. For example, the legislation on local self-government provides for the possibility of conducting a survey, which is effectively a consultative referendum. It’s best to limit this until after all of the procedures have been worked out and all of the obstacles have been removed. Otherwise, there's no guarantee, for example, that voters' work supervisors or someone else on whom they depend won't be secretly pulling their strings.
It is obvious that those “on top” really want to introduce remote electronic voting as quickly as possible. And this gives rise to the logical assumption that they are planning to use this type of voting for “correcting” results that do not suit the authorities.
New restrictions imposed on convicts under articles on ‘extremism’
In a nutshell: Individuals convicted under “political” or “entrepreneurial” articles are losing the right to run in elections for five years after their criminal records are expunged or expired. This will apply even to individuals put on probation, such as popular YouTuber Egor Zhukov.
For a long time, Russian lawmakers proceeded on the basis of the fact that all restrictions on the right to stand for election were outlined in Article 32 of the Constitution: citizens recognized by the court as legally unfit, as well as citizens kept in places of confinement by a court sentence, do not have the right to vote or stand for election.
However, the gradual establishment of new restrictions began as early as 2006.
At the time, citizens sentenced to imprisonment for serious crimes and/or especially serious crimes were deprived of the right to stand for elections, as well as those convicted of crimes of an “extremist nature,” or those who had unexpunged or unexpired convictions for aforementioned crimes still on their criminal records on the day of the elections.
In 2012, individuals sentenced to imprisonment for serious and/or especially serious crimes lost the right to stand for election for life.
This provision has been challenged in the Constitutional Court, which recognized it as not in-line with the Constitution. The court said that it is impossible to deprive someone of a constitutional right for life, and that the restriction should take a differential approach. Then, in 2014, the law was clarified: individuals convicted of committing especially serious crimes do not have the right to be elected for 15 years after their criminal records are expunged or expired, while those who committed serious crimes are deprived of this right for 10 years after their convictions are expunged or expired.
This time around, lawmakers simply listed 50 articles and excerpts from the Criminal Code (something experts say is a misdemeanor offense), and [thereby] established that citizens sentenced under these articles or sections are ineligible for election for five years after their criminal records are expunged or expired.
Included among these articles are the “political” articles, which oftentimes are used to persecute opposition leaders, as well as “entrepreneurial” articles, often used in disputes with businesses. In these cases the use of suspended sentences is relatively common, essentially meaning that the accused is actually innocent. Practically speaking, the authorities are putting additional tools for eliminating dangerous competitors from elections into their own hands.
This innovation raises serious doubts about its constitutionality, but the work of the Constitutional Court leaves little hope that it will be challenged: in principle, judges have effectively approved the restriction on eligibility for election already. In 2017, the Constitutional Court refused to accept for consideration a complaint from citizens on probation about being deprived of their rights to be elected.
Judge Konstantin Aranovsky (the former chairman of the Primorsky Krai’s electoral commission) disagreed with this decision: “A suspended sentence usually indicates an offenses’ moderate degree of public danger, even if criminal law considers it a serious crime. The danger of the offense is defined not only by the law, but also by the court, which assesses its real gravity in the act of conviction and the appointed punishment. If the court decided that the offense does not merit real deprivation of freedom and deserves to make do with a suspended sentence, this reflects the gravity of the offense in terms of its character and degree of public danger.”
Signatures for candidate nominations can be submitted through ‘Gosuslugi’
In a nutshell: Signing in support of this or that candidate can be done through the government portal ‘Gosuslugi’ (but only for regional elections). Experts have advocated this for a long time, but the authorities chose to insure themselves instead, and left the mandatory collection of paper signatures, which are easily rejected, in place.
For many years experts advocated collecting voter signatures through the government portal “Gosuslugi.” Lawmakers initially ignored these suggestions. Then they decided to adopt them, but in a truncated form.
Electronic signature collection will be introduced in regional elections only. This possibility has not been provided for either the “big” elections to the State Duma (including supplementary elections) or the “small” municipal elections. Of course, the majority of municipal elections require the collection of a small number of signatures, but there are also large cities. However, this is only allowed in regional elections where regional lawmakers permit it.
The main restriction is that it’s impossible to collect all of the required number of signatures in electronic form. Regional law should outline concrete limits, but no more than half of the required number should be collected online. Why? In discussions about this question, CEC representatives attempted to justify their position, arguing that not all voters use the “Gosuslugi” portal. This is a misleading explanation. The policy should favor candidates. If they can collect a sufficient number of signatures in electronic form, why not give them this opportunity?
Demanding too many electronic signatures is also wrong
During the elections for regional deputies in single-mandate constituencies, candidates are required to collect the signatures of 3 percent of voters. Experts have long said that this is excessive. And when collecting signatures in electronic form, this bar needs to be lowered even further. Seeing as it’s one thing when the collector has to go to the voter at home, and a completely different thing when the voters themselves are taking the initiative. The second option is more correct, of course, but far fewer voters will do that. Nevertheless, this remains at the discretion of the regions.
The idea of electronic signature collection was thought up to kill two birds with one stone. On the one hand, it presents the opportunity to fake signatures. On the other, it does not allow for signatures to be rejected arbitrarily. However, the restriction of no more than half of the signatures being electronic spoils everything. Election commissions still have the opportunity to reject signatures collected on paper. And it’s hardly accidental that in the same law the allowable share of discarded signatures was cut in half — from 10 percent to 5 percent. That means that one needs half as many signatures collected in paper form, but an equally smaller number will have to be discarded, should anything happen.
In addition, they came up with the idea that now a voter should personally provide not only a signature and date, but also their first name, last name, and patronymic. This is so handwriting experts — who are still not required to provide any justification or take any responsibility for their conclusions — have additional opportunities for arbitrary rejections.
Previously, monitors relied mostly on the dates listed in candidate endorsements (the signatures themselves were rarely recognized as fake), but their incompetence in this area became apparent to the public during last summer's Moscow City Duma elections. These officials now have a new assignment: focus on surnames, first names, and patronymics recorded by third parties. Until experts are able to debunk these methods, election officials can go nuts.
Translation by Eilish Hart