Is there logic in the legislative regulation of the candidate registration based on electoral signatures / Есть ли логика в законодательном регулировании регистрации кандидатов на основании подписей избирателей

Любарев Аркадий Ефимович кандидат юридических наук, кандидат биологических наук эксперт, Фонд Кудрина по поддержке гражданских инициатив 129090, Россия, г. Москва, 1-й Троицкий пер., 12, корп. 5 Lyubarev Arkadiy adviser at Kudrin Fund for Suport of Civil Initiatives. 129090, Russia, Moskva, g. Moscow, ul. 1-I troitskii per., 12 korp. 5 lyubarev@yandex.ru Другие публикации этого автора

It is without a doubt that legal norms should meet the requirements of logic. This also includes the norms of electoral legislation. In 1990’s, when Russian electoral law was just being formed, this question received some attention. Moreover, one of the legislators O. N. Kayunov released a special brochure that explained the logic of the electoral laws ^[3].

From the mid 2000’s Russian electoral legislation was constantly being changed ^[12] and essentially became unsystematic ^[9]. Especially rapid and often diverse changes (resembling “inconsistency”) took place over the last few years; some norms survived only one or two years, and at times, even less ^[13]. As a result, electoral legislation has significantly shed its inner logic.

The brightest illustration for this conclusion is the positions of the federal laws that regulate registration of candidates and electoral lists. The alogism can be clearly observed by comparing norms pertaining to elections of various levels.

As first example, let us examine the positions that exempt specific political parties from collection of voter signatures. Experience of more than 20 years shows us that competition between party tickets for the election for State Duma is higher (and often significantly higher) than at the regional and municipal representative branches of government. Thus during the period when dozens of tickets were allowed, the State Duma elections in 1995had 43 electoral lists; in 1999 – 26; in 2013 – 23. At the regional elections, the record was set in the Krasnoyarsk Krai in 1997 – 25 electoral lists ^{[1, p. 44-80]}.During the period of 2003-2007 the highest number of electoral lists (13) was recorded at the elections of the State Assembly - El Kurultai of the Altai Republic in March of 2006; the March 2006 campaign also had the highest average number of lists in the elections (8.1) ^{[4],[5, p. 679-693]}.

In September of 2013 when the number of political parties that had the right to run consisted of 48-54 (depending on the date of calling of the election) and all parties were exempt from collection of voter signatures, none of the regions at the elections for the legislative branch had a number of running parties greater than 23 (average was 17.2 lists per region) ^{[6, p. 76-78]}; at the municipal elections the record was set in Volgograd – 24 lists ^{[6, p. 110]}. There is no doubt that if the registration for the elections into State Duma had same requirements, then 40-50 parties would participate, and if the number of parties allowed to participate was raised to 75 – then 60-70 parties would participate.

From these factors we can make an unambiguous conclusion: the issue of limitation of electoral lists participating in electoral campaign for State Duma elections is much greater than for elections of regional parliaments. Thus, the norms for regional elections should be less stringent than for federal elections.

But we are seeing the opposite situation. The Federal Law from February 22, 2014 No. 20-FZ “On Election of Deputies for State Duma of the Federal Assembly of the Russian Federation” established conditions under which political parties are exempt from collection of voter signatures for State Duma elections.At the time the law was passed, 12 parties met these requirements; after September of 2014 – 14 parties.

Initially, same requirements were supposed to be set for the regional and municipal elections as well. But in the final draft, the Federal Law from May 5, 2014 No. 95-FZ “On Amendments to the Federal Law “On Basic Guarantees of Electoral Rights and the Right of Citizens of the Russian Federation to Participate in a Referendum”” established a more stringent requirements for these elections.As a result, at the regional elections in September of 2014 only 5-8 (depending on the region) parties were exempt from collection of signatures ^{[7, p. 9-11]}, at the regional elections in September of 2015 – 5-9 parties ^{[8, p. 56]}. It is no surprise that this resulted in a substantial decrease in competition – on average to 8.4 in 2014 ^{[7, p.172]}, and to 7.8 in 2015 ^{[8, p. 271-272]}.

The second example relates to the legislative positions on the number of signatures necessary to register a candidate or a list. Most often this number is expressed as a percentage from the total number of voters registered on the territory of the corresponding electoral district. Here we should note two substantial moments. First, the increase of the size of the electoral district creates more complications with collection of signatures. Thus, a reasonable approach would be to lower the percentage of signatures for larger electoral districts. Second, at the elections by party lists there should be a higher level of competition than at the elections by single-mandate districts (including elections of officials): in the first case there are usually 3-6 winners (lists included in delegation of mandates), in the second case – there is only one winner.

The positions that were in force prior to 2012 did not conflict with this logic for the most part. At the regional and municipal elections the federal law allowed requirements of up to 2% of the number of registered voters in the district, the regional laws usually set either 1% or 2%. At the elections for State Duma, the single-mandate candidates were required to get 1% of signatures, and for federal lists – 150,000-200,000 signatures, which amounted to about 0.14-0.18% from the total number of registered voters in Russia. At the presidential elections, the number of signatures amounted to 1,000,000 according to the 1995 and 1999 laws (0.9% of total registered voters), and 2,000,000 by the 2003 law (1.8%).

Multiple changes in 2012 and 2014 led to the following situation: at the municipal elections (except districts with less than 2,000 voters), 0.5% signatures were required. The same percentage is set for the elections for regional legislative branches by party lists.For single-mandate candidates at the elections for State Duma and regional legislative body the requirement was substantially higher – 3% (let us note that Venice Commission recommends a requirement of not more than 1% of signatures^{[14, p. 626]}). For federal lists at the elections for State Duma there is a requirement of 200,000 signatures (0.18%). For presidential elections there are the following norms: 100,000 signatures (0.09%) for candidates from non-parliamentary parties, and 300,000 signatures (0.28%) for independents.

Therefore, for single-mandate candidates at the State Duma elections (average size of a district is 488,000 voters) and regional parliament elections (average size of a district at the September 2015 elections equaled approximately 50,000 voters) the percentage required is six times higher than at the municipal elections, where the districts are significantly smaller (at the elections for the representative branches of regional centers in September 2015 the average size of a district consisted of approximately 19,000 voters; in the smaller cities and districts it was usually even less). There is no reasonable justification for such differences.

There is no evident logic in the complex of norms pertaining to federal elections. Why does a presidential candidacy from non-parliamentary party require half the signatures than from the same party for registration of a federal list of candidates at the elections to State Duma?Of course, we can suppose that the reason lies in the different time of the passing of the aforementioned norms: the requirements for the presidential elections were set in 2012 (and will possibly be reviewed prior to the 2018 elections), while for the parliamentary elections in 2014. But such explanation has no relation to law.

An even higher criticism arises from the triple difference in requirements for the party candidates and independence at the presidential elections. It could not be considered justifiable even when the party was required to consist of at least 40,000 members, since the number of required signatures is greater. But these positions were passed at the same time as the lowering of the requirements for the membership size of the parties.Currently, the party is only required to have at least 500 members, and for support an independent candidate according to law it is necessary to create a group of voters of no less than 500 Russian citizens with an active voter registration. So the starting positions as far as the level of citizen support for independence and candidates from non-parliamentary parties is roughly equal, thus there are no legal grounds for establishing such different requirements for the number of signatures needed for registration at the presidential elections.

The unjustified differences in legislation are complemented by the alogism in the actions of the electoral committees. The law allows them to either check all presented signatures, or make selective checks of no less than 20% of the required number of signatures. It seems that the right to conduct selective verification is established in order to relieve the volume of work in checking signatures and thus give the commission the opportunity to be more thorough, considering the limited timeframe.

But at the regional elections in 2014 by party lists we have discovered a paradoxical scenario: the electoral commissions of large regions where the number of signatures exceeded 10,000 (Novosibirsk and Chelyabinsk Oblasts) decided to check all signatures, while in the small regions where the required number of signatures was less than 4,000 (Komi Republic, Kurgan and Magadan Oblasts, Yamalo-Nenets Autonomous Okrug) they were satisfied with just the 20% selective verification ^{[8, p. 274-277]}. If such decisions have logic, it is certainly not legal logic.

The actual problem of registration based on electoral signatures is much deeper than everything that is associated with the required number of voter signatures.The analysis reveals that the requirement for collection of signatures became the primary barrier for registration of candidates, especially in such important elections as elections of deputies for the regional legislative branches.Due to the legislative “inconsistencies” we received a visual confirmation to this thesis.

At the regional election that took place during the simultaneous voting in October 2010, March 2011, and December 2011, when only parliamentary partieswere exempt from the required signatures, the elimination during the registration in the single-mandate district of candidates nominated by the parliamentary parties consisted of 1.3-1.6% candidates; for non-parliamentary parties – 58-60%; independents – 40-47%. After the 2012 exemption of candidates of non-parliamentary parties from signature requirements, their indexes changed drastically: at the October 2012 elections their elimination consisted of 5%, at the September 2013 elections – 9%. At the same time, the indexes of other candidates changed very little: the elimination of the parliamentary party candidates at the October 2012 elections consisted of 3.3%, and at the September 2013 elections – 3.4%; among the independents the elimination at the October 2012 elections amounted to 40.5%, and at the September 2013 elections – 47.5% ^[10].

After the May 2014 legal requirement for most of the non-parliamentary parties to collect voter signatures, the situation for this category of parties returned to the pre-reform situation: in 2014 the elimination of their candidates at the regional elections totaled 77%, in 2015 – 88%. The elimination percentagein the parties that were exempt from the signature collection requirement remained low – 8% and 4% respectively ^{[7, p. 180-182],[8, p. 284-287]}.

The September 2015 elections have also clearly demonstrated the role of the decision made by the legislators at the beginning of 2014, of which we mentioned earlier: reduction in the number of parties exempt from collection of signatures for the regional elections. At the aforementioned elections, the six parties exempt from collection of signatures for the State Duma elections (“Patriots of Russia”, “Rodina”, “Russian Party of Pensioners for Justice”, “Communists of Russia”, Russian Ecological Party “The Greens”, and “People’s Freedom Party PARNAS”) nominated 37 lists in the three regions where they were exempt from the signature requirements, but only 20 of them were registered ^{[8, p. 279-281]}.

The Constitutional Court of the Russian Federation repeatedly noted that in setting the order of nomination and registration of candidates, the legislator has the right to provision special preliminary conditions in the interests of voters, which would allow exclusion from the election process of candidates that do not have sufficient voter support (for example, see Ruling of the Constitutional Court of the Russian Federation from 11/17/1998 No. 26-P).But the extensive experience allows us to make a conclusion that the registration system that is based on voter signatures is often counterproductive: popular candidates or lists of popular electoral associations are excluded from the elections ^{[7, p. 187-204],[8, p. 280-282],[10],[11, p. 56-57]}, while candidates and partiesthat then get pitiful voter support at the elections.

Thus, at the elections to the Moscow City Duma on September of 2014, the 35 out of 52 candidates registered by signatures (67%) received fewer votes than the presented signatures ^{[11, p. 66-67]}.At the regional parliament elections in September of 2015, 41 out of 75 lists registered by signatures (55%) received fewer votes than they had collected signatures. At the same time, in Kostroma Oblast the correlational analysis revealed a paradoxical scenario: the fewer the signatures that the electoral commission rejected from a particular party, the worse were the party’s results in the elections ^{[8, p. 308-309]}.

The presented facts testify that the system of registration of candidates and candidate lists at the elections requires a comprehensive and thorough reform. The key proposalsfor such reforms were devised by the author and his colleagues during the course of work on the project for the Electoral Code of the Russian Federation ^{[2, p. 93-102]}.They include:
- Restoration of theelectoral deposit (as a faculty alternative to the collection of voter signatures) for all levels of elections except presidential, with the federal law (Electoral Code) establishing the maximal allowed amount of deposit;
- Allowance of collection of delegate signatures (as a faculty alternative to the collection of voter signatures) for the presidential and regional elections, but with significantly different rules than those currently active for the elections of hands of regions (including consideration of the weight of the vote of a deputy that would correspond with a number of votes they received during their election);
- Preservation of the traditional system of collection of voter signatures for medium-sized electoral districts (from 500 to 50,000 voters) with the maximum amount of required signatures to not exceed 1%; for elections with average number of representation of less than 500 people there should be a declarative order of registration; in large districts (above 50,000 voters) the collection of signatures should take place in the specially designated places under the supervision of the electoral commissions, with a number of required signatures to not exceed 0.1%, with a decentralized verification of signatures;
- Equal requirements for registration for the federal and regional elections for all candidates regardless of the type of their nomination; for registration of candidate lists of the most successful parties the declarative character should be allowed;
- Reduction in the number of causes for rendering a voter signature invalid; realization of the principle,according to which a signature cannot be rejected if the voter can be unequivocally determined and there are no grounds to consider that they did not sign their name;
- Establishment of precepts, according to which the selective verification would be conducted only for the purposes of determining the “fake” signatures, while checks for invalid signatures should be total;
- Increase of the allowed surplus of presented signatures and allowed number of invalid signature to 20%, and the allowed number of signatures should remain at a low level or even diminish;
- Reduction of the list of documents necessary for registration of candidate, as well as the list of grounds for refusal of registration.

We believe that only a complex of such measures will allow restoration of normal political competition at Russian elections.